Securities Lawyers Blog

What are Tenants-in-Common Securities?

October 30, 2013 | by Staff Attorney

Tenants-in-common real estate investments (“TIC”) are a more than $1-billion a year industry. However, with all innovative investment products, TIC investments receive their share of complaints from unhappy investors who bought them through a private placement. In FINRA arbitration, these complaints materialize as suitability claims and allegations of negligent misrepresentation. Usually, one or more of the following claims are made:

Investing in a TIC was not appropriate for me because of my needs, experience, or risk tolerance.
My broker did not perform adequate due diligence on the,offering materials of the TIC, appraisals of the underlying properties, persons promoting the TIC.

Do I Have a Securities or Investment Claim?

October 29, 2013 | by Staff Attorney

This is the most common question a potential client asks during an initial interview. This article is directed to those investors who are wondering if they have a claim but have not yet sought a consultation. Hopefully, this article will provide some insight into what a securities fraud attorney looks at when reviewing a potential client’s claim. However, I would stress that all evaluations are individual in nature and while this article is meant to provide generally instructive insight, only a full one-on-one consultation with an attorney can provide a full review of your claim and provide individual guidance.

In my analysis of a potential client’s securities claim I look at two primary factors: 1) the strength of the liability case; and 2) the ability to collect from the defendant. The answer to these two factors weigh heavily in moving forward with the potential client’s claim. The strength of the liability of the claim is the initial assessment of how likely a judge or arbitration panel would likely find the defendant liable for misconduct. The ability to collect factor looks at what potential defendants could be liable for the misconduct the client is alleging and the ability of those defendants to compensate the client’s losses. In many cases, the second factor will not need to be seriously investigated.

What factors influence the strength of the liability of the case? This is a hard question to answer because each case is different and liability is premised on different factors given the type of claims being made. In cases of fraud or misrepresentation the strength of the case often lies in the ability to prove the false statements made to the client. Written communications, emails, advertisements, and other documents that can be proven false or misleading tend to make stronger cases. If a securities regulator has also found the defendant’s conduct to be fraudulent or misleading or has disciplined the same or another brokerage firm for similar conduct such evidence helps to strengthen the case.

Broker Sanctioned Over Unsuitable Sales of Private Placement Securities

October 28, 2013 | by Staff Attorney

All brokers and broker-dealers have an obligation to ensure that their investment or investment strategy recommendation is suitable for the customer. All sales efforts must be reasonable and appropriate for the investor based upon the investor’s risk tolerance, investment objectives, age, financial circumstances, other investment holdings, experience, and other facts or information disclosed by the investor.

With respect to the sale of private placements, regulators have found significant problems in the due diligence and sales efforts of some brokerage firms when selling private placements to investors. These problems include fraud, misrepresentations and omissions in sales materials and offering documents, conflicts of interest, and suitability abuses.

In order for a brokerage firm to meet its due diligence obligation, the brokerage firm must make reasonable efforts to gather and analyze information both about the private placement and the customer the security is being sold to. Private Placements are considered “alternative investments” and are inherently speculative. Consequently, a broker must also ensure that an investment recommendation in a private placement is suitable for the particular customer. The broker must ensure that the client can withstand the risk taken and not imperil the client’s account by concentrating their assets in speculative investments.

Fidelity In Lawsuit Over Its Employees’ 401(k) Plan

October 24, 2013 | by Staff Attorney

On March 19, 2013, a former employee of Fidelity Investments filed suit in the U.S. District Court in Boston, Massachusetts against her former employer alleging self-dealing with respect to the management of the FMR LLC Profit Sharing Plan, Fidelity’s 401(k) plan. In September, twenty-six additional current and former Fidelity employees joined a proposed class action lawsuit against Fidelity. The complaint captioned, Bilewicz v. Fidelity Investments, alleges that the FMR LLC Profit Sharing Plain offered expensive Fidelity mutual funds despite the availability of lower-fee mutual funds within Fidelity’s own investment offerings and the offerings of outside providers.

Fidelity’s 401(k) plan holds approximately $8.5 billion in assets for more than 50,000 of its employees. Fidelity generally makes annual profit sharing contributions to the plan in addition to matching up to 7% of its employees’ salary contributions.

The Employee Retirement Income Security Act (ERISA) creates a fiduciary duty for 401(k) plans, meaning Fidelity, and any other 401(k) plan provider, must act in the best interest of its employee investors. The complaint in this case alleges that Fidelity and some of its officers failed to uphold thier fiduciary duty with respect to selecting, evaluating, monitoring, and removing investment options from the Fidelity 401(k) Plan. The complaint alleges that Fidelity and certain officers selected high-fee Fidelity mutual fund products that financially benefited Fidelity instead of acting in the best interest of their employees.

Advanced Equities and First Allied Sales of Fisker Automotive Private Placements Under Scrutiny – Part II

October 23, 2013 | by Staff Attorney

This article continues my in depth look into how unsuspecting investors are sold speculative private placements.

While investors were told that Fisker Auto’s prospects were fantastic, nothing could have been further from the truth. In February 2012, the DOE loan had been frozen after $192 million had been given to the company because it hadn’t hit certain milestones with its Karma car product. The last payment Fisker had received from the DOE was in May 2011. Yet, according to investors, Advanced Equities and First Allied continued to sell Fisker Auto shares without disclosing that the DOE was no longer backing the venture, presumptively because the auto makers chances of success had grown increasingly slim.

From December 2011 into 2012, Advanced Equities increasing began to run into fundraising problems. As Fisker Auto fell into a increasing number of technical, delivery, and political problems with its cars the car maker’s ability to attract new capital plummeted. Yet, the company still needed money. So the brokerage firms turned to threatening investors by telling them that unless they agreed to invest more money into Fisker Auto their current shares will be diluted and their preferred stock will be converted to common stock.

Gana LLP Investiga las ventas de Bonos del Fondo de Puerto Rico hechas por UBS Puerto Rico, Popular Securities, y a Santander Securities

October 22, 2013 | by Staff Attorney

La caída en los precios de los bonos de Puerto Rico ha causado pérdidas financieras sustanciales a los inversionistas en activos que les fueron vendidos como como bonos seguros y garantizados. Según el New York Times, la raíz de los problemas de Puerto rico es el hecho de que 3.7 millones de sus habitantes tienen aproximadamente $87 billones de deudas pendientes (alrededor de $23,000 de deuda por cada hombre, mujer y niño) y por el aumento en el costo de las pensiones. Puerto Rico ha experimentado una disminución en la población y una cifra alta de desempleo causando que la deuda financiera del país pase a un segundo plano y dejando a una población menor y más pobre con la carga de la deuda sobre sus hombros.

Las pérdidas de valor en los bonos de Puerto Rico han sido de tal magnitud que han quedado fuera del mercado de valores. El gobierno se ha visto en la obligación de financiar sus operaciones con créditos de banco y medidas a corto plazo que no son sostenibles. Los bonos de Puerto Rico están ampliamente mercadeados por fondos mutuos locales expedidos por algunas de las firmas de corretaje más grandes en la isla, se encuentran incluidas UBS Puerto Rico, Popular Securities, Inc., y Santander Securities, Corp. Si la situación financiera continua empeorando, se teme que Puerto Rico necesite alguna intervención federal para poder salir de su situación financiera.

La pérdida de los inversionistas atada a la liquidación de activos de los fondos de bonos se estima que ha alcanzado los cientos de millones de dólares. Sin embargo, una cifra total y exacta de los daños es imposible de determinar en estos momentos. Algunos inversionistas ya han realizado reclamaciones a sus casas de corretaje bajo el reclamo que las pérdidas que han sufrido han sido de tal magnitud que se han perdido en una gran parte o de manera completa, sus ahorros de retiro. Estos inversionistas reclaman que las casas de corretajes les vendieron fondos de bonos como unos seguros, estables, como inversiones que producirían ingresos garantizados. Sin embargos, estos fondos de bonos no solamente han sido un riesgo crediticio concentrado en los valores de Puerto Rico sino que también, en el caso de los fondos de apalancamiento (leverage funds) de UBS, utilizaron sobre un 53% en apalancamiento exacerbando así las pérdidas. A manera comparativa, en cuanto a los fondos de bonos municipales en los Estados Unidos solamente se permite utilizar alrededor de la mitad del apalancamiento utilizado por UBS.

Advanced Equities and First Allied Sales of Fisker Automotive Private Placements Under Scrutiny – Part I

October 21, 2013 | by Staff Attorney

In August, I wrote an article about how the brokerage firm Advanced Equities, Inc. (Advanced Equities) and First Allied Securities, Inc. (First Allied) sold nearly $1 billion in private placement offerings linked to clean technologies (clean-tech) to investors that have since become nearly worthless. Some of those investors have now come forward alleging that the brokerage firms did not conduct proper due diligence for selling the private placements. The private placements sold by the two brokerage firms include Advanced Equities GreenTech Investments, LLC, AEI 2007 Venture Investments, LLC, AEI 2010 Cleantech Venture, LLC, and AEI Fisker Investments, LLC.

One of the most prominent underlying investments in Advanced Equities private placement offerings portfolio was Fisker Automotive, Inc. (Fisker Auto). How Fisker Auto was sold to investors offers an unflattering view into how some in the brokerage industry still peddle worthless and speculative securities to unsuspecting investors to enrich themselves at investor’s expense.

Fisker Auto spent over a billion dollars, much of it from investors and a government loan, to invest and develop its cars. Ultimately Fisker Auto delivered only 2,000 cars and is on the verge of bankruptcy. Recently, the U.S. Department of Energy (DOE) started an auction on its loan made to Fisker Auto back in 2010. The DOE is still owed $168 million under the loan terms but put the loan on the auction block after “exhausting any realistic possibility” that Fisker Auto could repay the loan. The question is how did Fisker Auto receive $1 billion in the first place?

Capstone Asset Planning Company Fined Over Misleading Church Bond Mutual Fund Disclosures

October 19, 2013 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) recently sanctioned Capstone Asset Planning Company (CAPCO) alleging that from 2010 through 2012, CAPCO distributed communications to the public concerning the Capstone Fund that failed to accurately reflect the change in the fund’s performance. In addition, FINRA alleged that the Capstone Fund’s website contained a misleading statement concerning the fund’s redemption policy and compared church bonds to corporate bonds without disclosing the material differences between them. As a result, FINRA found that CAPCO violated the content and communications standards under Rules 2210(d)(1)(A), 2210(d)(2)(B), and 2210(d)(2)(B).

CAPCO is a brokerage firm with one office in Houston, Texas, and 22 registered representatives. CAPCO is a mutual fund underwriter and is a subsidiary of Capstone Financial Services, Inc. CAPCO served as the principal underwriter and distributor of shares of the Capstone Church Capital Fund (Capstone Fund). Capstone Fund’s holdings were approximately 87% church mortgage bonds and 13% church mortgage loans. From 2009 to 2012, the net assets of the Capstone Fund declined as a result of the decrease in the fair value of the fund’s assets. The Capstone Fund stopped accepting sales on January 24, 2013.

Under NASD Rule 2210(d)(1)(A) communications must be “based on principles of fair dealing and good faith,” “fair and balanced,” and must “provide a sound basis for evaluating the facts in regard to any particular security.” Similarly, NASD Rule 2210(d)(1)(B) prohibits members from making “false, exaggerated, unwarranted or misleading statement or claim in connection with any communication.”

Broker Jerry McGlothlin of Lincoln Financial Barred Over Selling Away Allegations

October 18, 2013 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) barred broker Jerry McGlothlin from associating with any member firm for engaging in outside business activities, engaging in private securities transactions, providing false responses on annual compliance questionnaires, and failing to respond to FINRA requests for information.

Between May 2003, and October 2012, McGlothlin was registered with FINRA through his association with Lincoln Financial Securities Corporation (“Lincoln Financial”) and its predecessor Jefferson Pilot Securities, Inc. On October 12, 2012, Lincoln Financial filed a Uniform Termination Notice (Form U5) terminating McGlothlin’s registration with the firm.

FINRA alleged that McGlothlin engaged in outside business activities without notifying Lincoln Financial, in violation of NASD Conduct Rules 3030 and 2110, and FINRA Conduct Rules 3270 and 2010. FINRA alleged that while McGlothlin was employed with Lincoln Financial he engaged in business activities with International Business Law Center, Inc. (IBLC), a/k/a Internet Business Law Services and IBLS Online Education, Inc. (IBLS Online). Both IBLC and IBLS Online provide internet legal services and learning programs.

Sunset Financial Services Fined By FINRA Over Nontraditional (Leveraged) ETF Sales

October 16, 2013 | by Staff Attorney

Between March 16, 2009, and September 21, 2012, FINRA alleged that Sunset Financial Services, Inc., (Sunset) failed to establish and maintain a supervisory system regarding the sale of leveraged or inverse exchange-traded funds, otherwise known as nontraditional ETFs, that was reasonably designed to comply with NASD Conduct Rule 3010.

Sunset has its principal offices in Kansas City, Missouri and is wholly-owned by Kansas City Life Insurance Company, Inc., an insurance company. Sunset has approximately 302 branch offices, 504 registered individuals and 197 non-registered individuals associated with the firm.

FINRA alleged that Sunset’s written supervisory procedures did not address the selling of nontraditional ETFs in any fashion. A leveraged ETF employs financial debt in order to amplify the returns of an underlying stock position. Leveraged ETFs are generally available for most indexes like the S&P 500 and Nasdaq 100. For example, a leveraged ETF with 300% leverage will return 3% if the underlying index returns 1%. Nontraditional ETFs can also be designed to return the inverse of the benchmark.