Articles Posted in Fiduciary Duties

shutterstock_185901806-300x200Our investment attorneys are investigating customer complaints filed with The Financial Industry Regulatory Authority (FINRA) against Bryon Martinsen (Martinsen) currently associated with Centaurus Financial, Inc. (Centaurus) alleging unsuitable investments, breach of fiduciary duty, misrepresentations, and fraud among other claims.  According to brokercheck records Martinsen has been subject to five customer complaints, one judgment or lien, and one employment termination for cause.  Many of the complaints involve direct participation products (DPPs) such as non-traded real estate investment trusts (REITs) and other alternative investments.

Our firm has experience representing investment fraud victims with these investments against Centaurus.  See Gana LLP Wins Arbitration Award On Behalf of Client Against Centaurus Financial.  In that case, the Claimant alleged that the broker involved invested over $2,000,000 in exclusively high cost products and 50% of those investments were in alternative investments such as private placements, oil and gas partnerships, and REITs.  The other 50% was invested in variable and equity-indexed annuities.  Award Can Be Found Here.

All of these investments come with high costs and have historically underperformed even safe benchmarks, like U.S. treasury bonds.  For example, products like oil and gas partnerships, REITs, and other alternative investments are only appropriate for a narrow band of investors under certain conditions due to the high costs, illiquidity, and huge redemption charges of the products, if they can be redeemed at all.  However, due to the high commissions brokers earn on these products they sell them to investors who cannot profit from them and have created a large market for a failed product.  Further, investor often fail to understand that they have lost money in these illiquid investments until many years after investing.  In sum, for all of their costs and risks, investors in these programs are in no way additionally compensated for the loss of liquidity, risks, or cost.

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shutterstock_102757574Our firm’s investment attorneys are investigating customer complaints filed with The Financial Industry Regulatory Authority (FINRA) against Alan Thomilson (Thomilson) currently associated with Lincoln Financial Securities Corporation (Lincoln Financial) alleging unsuitable recommendations to invest in variable products such as variable annuities, equity indexed annuities, and variable life insurance.  According to brokercheck records Thomilson has been subject to six customer complaints and one criminal matter.

In March 2015 a customer alleged that Thomilson misrepresented a recommendation to replace an existing variable annuity with an equity indexed annuity and that the recommendation was not suitable causing $125,000 in damages.  The claim is currently pending.

Variable annuities and equity indexed annuities are complex financial and insurance products.  In fact, recently the Securities and Exchange Commission (SEC) released a publication entitled: Variable Annuities: What You Should Know encouraging investors to ask questions about the variable annuity before investing.  Essentially, a variable annuity is a contract with an insurance company under which the insurer agrees to make periodic payments to you.  The investor chooses the investments made in the annuity and value of your variable annuity will vary depending on the performance of the investment options chosen.  The primary benefits of variable annuities are the death benefit and tax deferment of investment gains.

However, the benefits of variable annuities are often outweighed by the terms of the contract that include exorbitant expenses such as surrender charges, mortality and expense charges, management fees, market-related risks, and rider costs.

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shutterstock_27597505The attorneys of Gana LLP recently filed a Statement of Claim on behalf of a client against Mutual Securities, Inc. (Mutual Securities), NOVA Financial LLC (NOVA), and financial advisor Jacob “Jake” Kagele (Kagele) alleging that the firms provided unsuitable investment advice that overconcentrated the Claimant in risky assets including foreign debt, oil and gas related investments, and Puerto Rico bonds.  The Claimants alleged damages of over $4.3 million.

The Statement of Claim alleges that the Claimant sold a successful business to fund his retirement account that would allow him to live off of the income and one day build a home for himself.  The Statement of Claim alleges that the Respondents, on a discretionary basis, lost over $2,300,000 investing in in energy and commodity related investments.  The complaint stated that Kagele was extremely bullish on energy and commodities and invested substantial sums in oil and metals related investments, including Petrobras, Transocean, Cliffs, Vale, Freeport-McMoRan, Barrick, Kinross, and others, even when these sectors were in a major down turn.

One of the investments that led to catastrophic losses in Claimants’ accounts was iPath S&P GSCI Crude Oil Total Return Index ETN (Symbol: OIL) in which Claimants lost $1.5 million.  OIL is a speculative ETN that attempts to “reflect[] the returns that are potentially available through an unleveraged investment in the West Texas Intermediate (WTI) crude oil futures contract.”

According to the Statement of Claim, in December 2014, after the price of oil had fallen 50% in value since June 2014, Kagele told Claimant that the reason his account was down is because of oil prices and that the price decline represented an opportunity.  Kagele recommended that Claimants invest heavily in oil through OIL because it was directly linked to the price of oil.

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shutterstock_175835072The securities lawyers of Gana LLP are investigating a number of customer complaints involving Wells Fargo Advisors, LLC (Wells Fargo) brokers, including financial advisor Charles Lynch (Lynch), concerning allegations that the investors have been recommended or their advisory accounts have been mismanaged to hold high concentrations of energy related investments. According to Lynch’s publicly available records, there are 11 customer complaints with 9 of those complaints being filed in 2015 all related to energy investments. The customer complaints against Lynch allege securities law violations that including unsuitable investments among other claims.

Our firm is investigating potential securities claims against brokerage firms over sales practices related to the recommendations of oil & gas and commodities products such as exchange traded notes (ETNs), structured notes, private placements, master limited partnerships (MLPs), leveraged ETFs, mutual funds, and individual stocks.  Our firm has written numerous articles concerning the dangers of MLP investments. MLPs are publicly traded partnerships. About 86% of the total MLP securities market, a $490 billion sector, can be attributed to energy and natural resource companies. However, most of these companies are heavily reliant on high oil prices to sustain their business models.

Before recommending investments in oil and gas and commodities related investments, brokers and advisors must ensure that the investment is appropriate for the investor and conduct due diligence on the company in order to understand the risks and prospects of the company. Many of these companies relied upon high energy prices in order to sustain their operations. As reported by the Wall Street Journal the drop in oil and energy prices and the industry downturn has made it difficult for many companies to refinance their debts.

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shutterstock_187735889According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) broker John Galinsky (Galinsky) has been the subject of at least 4 customer complaints, 2 regulatory actions, 2 employment separations for cause, and two criminal matters. In the most recent action, eleven claimants brought claims against Matrix Capital Group, Inc., John W. Eugster, Fintegra LLC, and Galinsky, alleging numerous securities law violations including breach of fiduciary duty, unsuitable investments, and misrepresentations relating to the sale of MiaSole Investments II LLC.

At an arbitration hearing, the arbitrators found that Galinsky and Fintegra were liable and asked them to buy back the investor’s securities in MiaSole totaling over $1.19 million in compensatory damages, and awarding $308,000 in attorneys’ fees and over $35,000 in costs. Since the award, Fintegra filed for bankruptcy.

Subsequently, Galinsky failed to pay the arbitration award. On August 7, 2015, FINRA suspended Galinsky’s broker license for failing to comply with the arbitration award and failing to provide FINRA information concerning status of compliance with the award.

Galinsky entered the securities industry in 1986. From July 2006 until November 2009, Galinsky was associated with Advanced Equities, Inc. Thereafter, Galinsky, from January 2010, until December 2011, was associated with Fintegra, LLC. Presently, Galinsky is a registered representative with National Securities Corporation out of the firm’s Chicago, Illinois office locations.

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shutterstock_21147109The Financial Industry Regulatory Authority (FINRA) entered into an agreement whereby the regulatory fined National Securities Corporation (NSC) while alleging that in 2013, NSC acted as the exclusive placement agent for two private placements of its parent company, National Holdings Corporation (National Holdings). The FINRA rules require that offerings of unregistered securities issued by a control entity of a member firm disclose to investors the selling compensation to be paid to the member in connection with the offering. FINRA found that while NSC generally disclosed to investors that it would receive compensation in connection with the sale of both private placements the firm failed to disclose in writing to investors the amount of selling compensation it would receive.

NSC has been registered with FINRA as a since 1947 and engages in a number of businesses, including retail brokerage, investment banking, and investment advisory. NSC has 760 registered representatives in 140 branch offices. Our law offices have been tracking a number of regulatory and customer complaints involving NSC and its brokers including:

FINRA alleged that while soliciting potential investors for the two offerings NSC provided them with a document entitled Registration Rights Agreement, the Securities Purchase Agreement (SPA), the non-disclosure agreement, and a PowerPoint slide deck. FINRA found that tone of these documents disclosed the selling compensation NSC received for its role in selling the private placement.

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shutterstock_175320083The investor advocacy bar association PIABA (the Public Investors Arbitration Bar Association) has recently issued a report called “Major Investor Losses Due to Conflicted Advice: Brokerage Industry Advertising Creates the Illusion of Fiduciary Duty.” The PIABA report argues that the brokerage industry uses false advertising to convey to investors that the firms have a fiduciary duty to their clients only then to do a 180 turn when sued to claim that no such duty exists.

According to the report, some of the largest firms in the United States are falsely advertise in this fashion including Merrill Lynch, Wells Fargo, Morgan Stanley, UBS, Fidelity, Ameriprise, Allstate Financial, Berthel Fisher, and Charles Schwab. The report claimed that all of these firms “advertise in a fashion that is designed to lull investors into the belief that they are being offered the services of a fiduciary.”

In the wake of the financial crisis of 2008, the Dodd-Frank legislation authorized the Securities Exchange Commission (SEC) to pass a fiduciary duty rule that would apply to brokers, as opposed to only financial advisors. Most investors do not realize and are usually shocked to learn that there broker only has an obligation to recommend “suitable” investments, and not to work in their client’s best interests. Currently, the fiduciary duty rule only applies to financial advisors (and brokers under certain circumstances).

The fact that the investing public has absolutely no clue how crucial the fiduciary duty is to protecting their retirement futures and holding Wall Street accountable for mishaps has prevented any serious public debate to combat the millions of dollars the industry has and will spend to kill this part of the law. However, recently President Obama has brought this issue to the public’s attention through his support of the Department of Labor to move ahead with a proposal to impose a fiduciary standard on retirement accounts.

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shutterstock_92699377As our firm has written about on numerous occasions, our firm is currently representing investors who purchased the UBS Puerto Rico closed-end-bond funds and other Puerto Rico municipal debt. The allegations our firm has brought on behalf of clients focuses on UBS’ sales tactics and recommendations to its customers to invest in 23 proprietary closed-end funds. The UBS Puerto Rico bond funds contained substantial risks that allegedly were downplayed by the firm’s advisors in order to generate sales. The funds’ risks included excessive amount of leverage, conflicts of interests, and omission of material information concerning the risky nature of certain of the funds’ holdings.

Many of our clients tell very similar tales about how they were recommended to invest as much as 100% of their portfolios in the UBS Puerto Rico closed-end funds, some through additional margin or bank loans. Now, thanks to an article published by Reuters, Puerto Rico bond fund investors are starting to learn why.

According to the article, a group of brokers came up with a list of 22 reasons why they wanted to stop selling the funds including the facts that the funds suffered from low liquidity, excessive leverage, oversupply and instability, and contained debt underwritten by UBS, a conflict of interests.

However, the audio recordings show that these brokers’ concerns were unacceptable to Miguel Ferrer, the chairman of UBS Financial Services Inc of Puerto Rico, who stated that the brokers should change their mindset or leave the firm. On the tape Ferrer can be heard stating that “You need to focus again on the attractive benefits of our funds and stop this nonsense that there are no products available – because if there are no products, go home, get a new job!”

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shutterstock_176319773This post continues our examination of the numerous regulatory actions against Wedbush Securities, Inc. (Wedbush) for its failure to supervise the activities of its employees and the recent National Adjudicatory Council (NAC) decision affirming the FINRA hearing decision.

What were the failures to report that were claimed by FINRA? In one instance, a client faxed a letter to Wedbush alleging that his broker had committed unauthorized trades but Wedbush did not report the complaint until January 2010, 275 days later. At hearing Wedbush conceded that the complaint was not timely reported but disputed their responsibility for the late reporting because a firm office manager failed to forward the letter to the business conduct department after concluding that the letter wasn’t a customer complaint. FINRA found though that the office manager’s failure does not excuse the late filing or the firm’s responsibility for the late filing.

In addition, the firm had argued that Mr. Wedbush was not liable for failure to supervise because he was more of a manager than a supervisory. Again, FINRA disagreed stating that as president he was ultimately responsible for the misconduct.

These regulatory actions spanning the past four plus years should have been enough to change the culture at Wedbush. But think again, on December 18, 2014, FINRA filed another complaint against Wedbush and three individuals alleging that fabricated documents were submitted to the regulator in response to an examination of the firm’s municipal securities supervision. Complaint Found Here. FINRA alleged that on two occasions, in April 2012, and again in September 2012, Wedbush, Samantha Arrieta McAfee (McAfee), Peter Julijs Auzers (Auzers), and Shira Naby (Naby) created and produced to FINRA falsified and misleading documents in connection with FINRA’s review of the firm’s reporting of municipal securities transactions between October 1, 2011, and December 31, 2011.

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shutterstock_93231562In the wake of the financial crisis of 2008, the Dodd-Frank legislation authorized the Securities Exchange Commission (SEC) to pass a fiduciary duty rule that would apply to brokers, as opposed to only financial advisors. Most investors do not realize and are usually shocked to learn that there broker only has an obligation to recommend “suitable” investments, and not to work in their client’s best interests. Currently, the fiduciary duty rule only applies to financial advisors (and brokers under certain circumstances) – more commonly recognized by the public as advisors who charge a flat fee for their services as opposed to commissions.

The fact that the investing public has absolutely no clue how crucial the fiduciary duty is to protecting their retirement futures and holding Wall Street accountable for mishaps has prevented any serious public debate to combat the millions of dollars the industry has and will spend to kill this part of the law. True to form, recently the House of Representatives passed a budget that would prevent the SEC from imposing a fiduciary standard on brokers during the upcoming federal fiscal year beginning in October.

What’s the big deal you may ask? Why is the fiduciary standard important to me? Well there are many reasons but maybe one story will highlight how the brokerage industry is currently allowed to operate to put their interests ahead of their clients. As recently reported in Bloomberg and InvestmentNews, an undercover U.S. Labor Department economist exposed how brokerage firms sought out federal workers to roll over their 401(k)’s with the government to IRAs with the brokerage firm even though the result could increase the client’s annual costs by as much as 50 times!

The undercover economist, John Turner, called representatives at companies such as Bank of America Corp., Charles Schwab Corp., and Wells Fargo & Co. identifying himself as a potential client. Turner kept his money in the Thrift Savings Plan, which is considered the gold standard of 401(k)-type programs for its rock-bottom fees that the government is able to maintain. Yet, according to his investigation, “all but one company told him to roll over all his money into individual retirement accounts. On average, stock funds charge almost 50 times more than the government plan.”

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