Suitability

Broker Investigation: Patrick McGrath Former Oppenheimer & Co. Advisor

May 31, 2015 | by Staff Attorney

According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) broker Patrick McGrath (McGrath) has been the subject of at least four customer complaints, two regulatory actions, and one termination over the course of his career. Customers have filed complaints against McGrath alleging a litany of securities law violations including that the broker received loans and failed to pay the client timely, made unsuitable investments, and unauthorized trades, among other claims.

McGrath entered the securities industry in 1984 with brokerage firm Merrill Lynch, Pierce, Fenner & Smith Incorporated. Thereafter, from July 2003, until April 2009, 2007 through June 2009, McGrath was associated with brokerage firm Wachoiva Securities, LLC. Then, from April 2009 until January 2014, McGrath was a representative with Oppenheimer & Co. Inc. (Oppenheimer). Finally since February 2014, McGrath has been registered with Northeast Securities, Inc.

McGrath was permitted to resign from Oppenheimer in January 2014 due to his failure to finalize arrangements to repay money he borrowed from an Oppenheimer customer. There are also two regulatory actions against McGrath. One is a 30 day suspension and a $10,000 fine by the Florida Office of Financial Regulation based on allegations that McGrath engaged in prohibited business practices. FINRA also suspended McGrath for four months and fined him $10,000 concerning allegations that he borrowed money from a client contrary to Oppenheimer’s compliance policies that bar loan arrangements.

Gana LLP Investigates Investor Losses in BPZ Energy

May 19, 2015 | by Staff Attorney

The law offices of Gana Weinstein LLP are currently investigating investors who have suffered losses in in now bankrupt oil and gas company, BPZ Resources, Inc. (BPZ Resources) (Stock Symbols: BPZRQ and BPZ) BPZ Resources is an independent oil and gas exploration and production company with license contracts covering approximately 1.9 million net acres in four properties in northwest Peru. BPZ Resources filed for chapter 11 bankruptcy in March 2015.

Our offices continue to report on investment losses suffered by investors in various oil and gas investments that brokerage firms have increasingly recommended to retail investors in recent years. These investments include private placements, master limited partnerships (MLPs), leveraged ETFs, mutual funds, and individual stocks. See Overconcentrated in Oil and Gas Investments?, MLP Fund MainStay Cushing Royalty Energy Hurt by Failing Oil & Gas Prices; Oil and Gas Investments – Issuers Profit While Investors Take All the Risk, BlackGold Opportunity Fund Investors Suffer Losses

Oil and gas related investments have been recommended by brokers under the assumption that oil & gas would continue to be sold at around $100 and increase steadily over time. However, last summer the price of oil & gas plummeted due to a strengthening dollar and increased global supply of oil and remains below $60 to this day. Some experts are saying that if production volume continues to be as high as it currently is and demand growth weak that the return to $100 a barrel is years away.

Gana LLP Now Representing Investors That Suffered Losses in Quicksilver Resources

May 18, 2015 | by Staff Attorney

The law offices of Gana Weinstein LLP are currently representing investors who have suffered losses in in now bankrupt oil and gas company Quicksilver Resources, Inc. (Quicksliver) (Stock Symbols: KWKAQ, KWKA, and KWK). Quicksilver is an independent oil and gas company engaged in the acquisition, exploration, development, production, and sale of natural gas, natural gas liquids, and oil in North America headquartered in Fort Worth, Texas. Quicksilver filed for chapter 11 bankruptcy on March 14, 2015.

Our offices continue to report on investment losses suffered by investors in various oil and gas investments that brokerage firms have increasingly recommended to retail investors in recent years. These investments include private placements, master limited partnerships (MLPs), leveraged ETFs, mutual funds, and even individual stocks. See Overconcentrated in Oil and Gas Investments?, MLP Fund MainStay Cushing Royalty Energy Hurt by Failing Oil & Gas Prices; Oil and Gas Investments – Issuers Profit While Investors Take All the Risk, BlackGold Opportunity Fund Investors Suffer Losses

Oil and gas related investments have been recommended by brokers under the assumption that oil & gas would continue to be sold at around $100 and increase steadily over time. However, last summer the price of oil & gas plummeted due to a strengthening dollar and increased global supply of oil and remains below $60 to this day. Some experts are saying that if production volume continues to be as high as it currently is and demand growth weak that the return to $100 a barrel is years away.

Has Your Financial Advisor Overconcentrated Your Investments In Oil & Gas?

May 14, 2015 | by Staff Attorney

Long time readers of this blog know that we have previously reported that brokerage firms have increasingly recommended that retail investors invest heavily in various types of oil & gas investments including private placements, master limited partnerships (MLPs), leveraged ETFs, mutual funds, and even individual stocks. See Overconcentrated in Oil and Gas Investments?, MLP Fund MainStay Cushing Royalty Energy Hurt by Failing Oil & Gas Prices; Oil and Gas Investments – Issuers Profit While Investors Take All the Risk

For instance, MLPs are publicly traded partnerships where about 86% of approximately 130 MLP securities, a $490 billion sector, can be attributed to energy and natural resource companies. Billions more have been raised in the private placement market. These oil and gas private placements suffer from enormous risks that often outweigh any potential benefits including securities fraud, conflicts of interests, high transaction / sales costs, and investment risk.

These investments have been recommended by brokers under the assumption that oil & gas would continue to be sold at around $100 and increase steadily over time. However, last summer the price of oil & gas plummeted due to a strengthening dollar and increased global supply of oil and remains below $60 to this day. Some experts are saying that if production volume continues to be as high as it currently is and demand growth weak that the return to $100 a barrel is years away.

Gana LLP Broker Spotlight: Pasquale “Pat” Vitucci Sales of Variable Annuities

April 27, 2015 | by Staff Attorney

According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) broker Pasquale “Pat” Vitucci (Vitucci) has been the subject of at least 19 customer complaints over the course of his career. Customers have filed complaints against Vitucci alleging that the broker made unsuitable investments primarily in variable annuity related products. Other claims concerning Vitucci’s handling of customer accounts include allegations of misrepresentations, breach of fiduciary duty, churning, and fraud. In total investors have complained of over $1 million in losses.

Vitucci has been registered with FINRA since 1992. From October 2005 until October 2008, Vitucci was registered with AIG Financial Advisors, Inc. Thereafter, Vitucci has been associated with National Planning Corporation (National Planning). According to public records Vitucci operates out of a DBA business called Vitucci & Associates Insurance Services.

All advisers have a fundamental responsibility to deal fairly with investors including making suitable investment recommendations. Thus, the product or investment strategy being recommended must be appropriate for the investor and the advisers must convey the potential risks and rewards before bringing it to an investor’s attention.

Former Ameriprise Advisor Jack McBride Discharged Over Soliciting Leveraged ETFs

April 22, 2015 | by Staff Attorney

According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) broker Jack McBride (McBride) has been the subject of at least 4 customer complaints over the course of his career. Customers have filed to recent complaints against McBride alleging that the broker made unsuitable investments in leveraged ETFs and the use of margin. McBride has been registered with FINRA since 1994. From that time until August 2014, McBride was registered with Ameriprise Financial Services, Inc. (Ameriprise). In August 2014, Ameriprise discharged McBride claiming that the broker violated the company’s policies relating to making a settlement and for soliciting prohibited securities.

All advisers have a fundamental responsibility to deal fairly with investors including making suitable investment recommendations. Part of the suitability requirement is that the broker must have a reasonable basis to believe, based on appropriate research and diligence, that all recommendations are suitable for at least some investors. Thus, the product or investment strategy being recommended must be appropriate for at least some investors and the advisers must convey the potential risks and rewards before bringing it to an investor’s attention.

In the case of Non-Traditional ETFs, these products contain drastically different risk qualities from traditional ETFs that most investors and many brokers are not aware of. While traditional ETFs simply seek to mirror an index or benchmark, Non-Traditional ETFs use a combination of derivatives instruments and debt to multiply returns on underlining assets, often attempting to generate 2 to 3 times the return of the underlining asset class. Non-Traditional ETFs can also be used to return the inverse or the opposite result of the return of the benchmark.

Broker Spotlight: Wells Fargo Advisor Marcus Debaise

March 30, 2015 | by Staff Attorney

According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) broker Marcus Debaise (Debaise) has been the subject of at least 14 different customer complaints over the course of his career. Beginning in 2011 and continuing into 2015, customers have been filing complaints against Debaise alleging that the broker made unsuitable investments and unauthorized trading in speculative securities that were inappropriate for the customer.

Debaise has been registered with FINRA since 1993. From 2003 until present Debaise has been registered with Wells Fargo Advisors, LLC (Wells Fargo).

All advisers have a fundamental responsibility to deal fairly with investors including making suitable investment recommendations. Part of the suitability requirement is that the broker must have a reasonable basis to believe, based on appropriate research and diligence, that all recommendations are suitable for at least some investors. Thus, the product or investment strategy being recommended must be appropriate for at least some investors and the advisers must convey the potential risks and rewards before bringing it to an investor’s attention. Second, all brokers must have a reasonable basis to believe that the recommended investment strategy is suitable for the particular customer. The recommendation must be reasonable for the investor based upon the investor’s risk tolerance, investment objectives, age, financial circumstances, other investment holdings, and experience.

FINRA Sanctions Oriental Financial Over Concentrated Customer Accounts in Puerto Rico Bond Funds

March 27, 2015 | by Staff Attorney

This is the second regulatory action that our firm has tracked concerning brokerage firms recommending concentrated positions in Puerto Rico bond funds without having appropriate supervisory system and procedures designed to identify and review concentrated securities purchases in Puerto Rico closed-end funds.

As we reported, The Financial Industry Regulatory Authority (FINRA) sanctioned Popular Securities, Inc. (Popular Securities) alleging between July 1, 2011, and June 30, 2013, Popular failed to establish and enforce a supervisory system and procedures designed to identify and review concentrated securities purchases in Puerto Rico municipal bonds and Puerto Rico closed-end funds. Now in a similar action, FINRA alleged that between July 1, 2011, and June 30, 2013, Oriental Financial Services Corp. (Oriental) failed to establish, maintain, and enforce, supervisory systems and procedures to identify and review concentrated securities purchases in Puerto Rico municipal bonds and Puerto Rico closed-end bond funds.

Oriental has been a F]NRA member since 1993 and is a subsidiary of OFG Bancorp. Oriental operates out of headquarters in San Juan, Puerto Rico and engages in a general securities business that focuses on Puerto Rico municipal securities and open and closed-end mutual funds. Oriental has 50 brokers located in 12 branch offices.

FINRA Files Complaint Against Broker Darnell Deans Over Undisclosed Tax Liens

March 23, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) has filed a complaint against broker Darnell Deans (Deans) concerning allegations that while associated with Garden State Securities, Inc. (GSS), Deans willfully failed to amend his Form U4 documents to disclose three unsatisfied federal tax liens totaling approximately $254,995. FINRA also alleged that from in or about April 2011, through August 2011, Deans borrowed a total of $266,000 from two customers of the firm without seeking or obtaining the firm’s approval for the loans. In addition, FINRA alleged that in November 2011, Deans falsely represented to GSS in an Annual Attestation that he had not borrowed money from customers. Thereafter, in January 2012, FINRA alleged that Deans failed to disclose to GSS the extent of funds borrowed from two customers.

In January 1992, Deans first became registered with FINRA. From January 2005, through November 26, 2013, Deans was registered through GSS. On November 26, 2013, GSS filed a Form U5 terminating Deans’ registration stating that Deans was terminated due to management’s loss of confidence due to ongoing regulatory issues. Thereafter, Deans was associated with John Carris Investments LLC until June 2014. Currently, Deans is associated with brokerage firm BlackBook Capital LLC.

In addition to FINRA’s recent action, Deans has had three other regulatory actions filed against him, at least three customer complaints, and has one judgment and tax lien on record. These statistics are troubling because so many customer complaints, regulatory actions, and liens are rare. According to InvestmentNews, only about 12% of financial advisors have any type of disclosure event on their records. These disclosures do not necessarily have to include customer complaints but can include IRS tax liens, judgments, and even criminal matters. The number of brokers with multiple customer complaints is far smaller.

World Equity Group Supervisory Failures Explored Part II

March 18, 2015 | by Staff Attorney

As we previously reported, The Financial Industry Regulatory Authority (FINRA) sanctioned brokerage firm World Equity Group, Inc. (World Equity) concerning at least seven different allegations of supervisory failures that occurred between 2009 through 2012. These failures included failures to implement an adequate supervisory system reasonably designed to detect and prevent potential rule violations concerning both internal processes and procedures and in the handling of customer accounts in the areas of suitability of transactions in non-traditional ETFs, private placements, and non-traded REITs.

FINRA alleged that World Equity failed to implement an adequate system to ensure the suitability of Non-Traditional ETFs. As a background, Non-Traditional ETFs are registered unit investment trusts or open-end investment companies whose shares represent an interest in a portfolio of securities that track an underlying benchmark, index, commodity, or other instrument. Shares of ETFs are typically listed on national exchanges and trade at established market prices. Non-Traditional ETFs are different from traditional ETFs in that they return a multiple of the performance of the underlying index or benchmark or the inverse performance.

Non-Traditional ETFs may use swaps, futures contracts, and other derivative instruments in order to create leverage to achieve these objectives. In addition, most Non-Traditional ETFs are designed to achieve their stated objectives in one trading session. Between trading sessions the fund manager generally rebalances the fund’s holdings in order to meet the fund’s objectives. For most Non-Traditional ETFs the rebalancing happens on a daily basis. Further, because the correlation between a Non-Traditional ETF and its linked index or benchmark is inexact there is typically tracking error between a fund and its benchmark becomes compounded over longer periods of time. In addition, the tracking error effect becomes more pronounced during periods of volatility in the underlying index or benchmark. FINRA advised brokerage firms in June 2009 due to the effect of compounding the performance of Non-Traditional ETFs over longer periods of time can differ significantly from the performance of their underlying index or benchmark during the same period of time and because of these risks and the inherent complexity of the products, FINRA advised broker-dealers and their representatives that the products are typically not suitable for retail investors who plan to hold them for more than one trading session.