Mark Kaplan Barred by Regulator Over Churning a Customer Account

shutterstock_57938968-200x300According to BrokerCheck records kept by The Financial Industry Regulatory Authority (FINRA) former Vanderbilt Securities, LLC (Vanderbilt Securities) broker Mark Kaplan (Kaplan) has been subject to eight disclosed customer complaints, one employment termination for cause, and one regulatory action resulting in an industry bar.  Many of the customer complaints against Kaplan allege churning or excessive trading.

In March 2018, FINRA found that Kaplan violated the securities laws and FINRA rules by churning and engaging in unsuitable excessive trading in the brokerage accounts of a senior customer. FINRA found that Kaplan exercised de facto control over the customer’s accounts and the customer relied on Kaplan to direct investment decisions in his accounts. In addition, FINRA found that the elderly customer was experiencing a decline in his mental health and had a court allow the nephew to act as his legal guardian and manage his financial affairs after he was diagnosed with dementia.  Nonetheless, FINRA found that Kaplan effected more than 3,500 transactions in the customer’s accounts resulting in approximately $723,000 in trading losses while generating approximately $735,000 in commissions and markups for Kaplan. FINRA claimed that Kaplan never discussed with the customer the extent of his losses or the amount paid in sales charges and commissions. In sum, FINRA found that this level of trading was excessive and unsuitable for the customer given his investment profile, including his age, risk tolerance, and income needs.

When brokers engage in excessive trading, sometimes referred to as churning, the broker will typical trade in and out of securities, sometimes even the same stock, many times over a short period of time.  Often times the account will completely “turnover” every month with different securities.  This type of investment trading activity in the client’s account serves no reasonable purpose for the investor and is engaged in only to profit the broker through the generation of commissions created by the trades.  Churning is considered a species of securities fraud.  The elements of the claim are excessive transactions of securities, broker control over the account, and intent to defraud the investor by obtaining unlawful commissions.  A similar claim, excessive trading, under FINRA’s suitability rule involves just the first two elements.  Certain commonly used measures and ratios used to determine churning help evaluate a churning claim.  These ratios look at how frequently the account is turned over plus whether or not the expenses incurred in the account made it unreasonable that the investor could reasonably profit from the activity.

The number of complaints against Kaplan are unusual compared to his peers.  According to newsources, only about 7.3% of financial advisors have any type of disclosure event on their records among brokers employed from 2005 to 2015.  Brokers must publicly disclose reportable events on their CRD customer complaints, IRS tax liens, judgments, investigations, and even criminal matters.  However, studies have found that there are fraud hotspots such as certain parts of California, New York or Florida, where the rates of disclosure can reach 18% or higher.  Moreover, according to the New York Times, BrokerCheck may be becoming increasing inaccurate and understate broker misconduct as studies have shown that 96.9% of broker requests to clean their records of complaints are granted.

Kaplan entered the securities industry in 1989.  From March 2011 until February 2018 Kaplan was registered with Vanderbilt Securities out of the firm’s Woodbury, New York office location.

Investors who have suffered losses are encouraged to contact us at (800) 810-4262 for consultation. At Gana Weinstein LLP, our attorneys are experienced representing investors who have suffered securities losses due excessive trading and other securities laws violations.  Our consultations are free of charge and the firm is only compensated if you recover.