Investment Attorney

The Department of Labor Fiduciary Rule May Impact Securities Arbitration Claims

November 21, 2017 | by Staff Attorney

The fiduciary rule passed during the Obama administration is being reviewed by the Department of Labor (DOL), leaving plenty of uncertainty for advisers and investors. As Barry Tempkin reports, “During this period, advisers who do not receive level-fee compensation are held to the DOL impartial conduct standard for retirement accounts, but are not required to enter into best interest contracts for commission-based compensation.” Under the DOL impartial conduct standard, brokers who offer retirement investing advice are required to put clients’ interests ahead of their own. Although portions of the rule went into effect in June, there are additional requirements but the DOL has proposed a delay to fully implementing the rule until July 2019.

We cannot be sure how the current DOL under Secretary Acosta will ultimately handle the adoption of a fiduciary standard. In the meantime, the impartial conduct standard for retirement accounts will likely result in more litigation and arbitration. Since the rule benefits investors, there will likely be a higher success rate for investors’ representatives.

Under the new fiduciary rule, if an adviser engages in a BIC (“Best Interests Contract”) agreement with a client, it allows the adviser to engage in transactions that are prohibited under the rule. If the “Best Interests Contract” (BIC) exception goes into effect, these claims will include breach of contract.

FINRA bans Broker Christopher Jorgensen

November 1, 2017 | by Staff Attorney

The investment lawyers of Gana Weinstein LLP are investigating regulatory action brought by the Financial Industry Regulatory Authority (FINRA) against Christopher Stephen Jorgensen (Jorgensen). Jorgensen allegedly refused to appear for on-the-record testimony requested by FINRA resulting in a ban from the securities industry.

In April 2017, Jorgensen was terminated from his position at Summit Brokerage Services after “the firm received a verbal complaint from a customer who alleged that [he] instructed her not to respond to a FINRA inquiry.”

In 2012, he was terminated from his position at Raymond James Financial Services “due to client complaint and settlement relating to unauthorized discretion.”

Broker Dennis Rasmusson Subject to Customer Complaints

November 1, 2017 | by Staff Attorney

The investment lawyers of Gana Weinstein LLP are investigating claims against Dennis Rasmusson (Rasmusson). According to BrokerCheck records, Rasmusson has been subject to two customer disputes and regulatory action.

In 2014, a customer alleged that Rasmusson failed to follow instructions, traded excessively and breached his fiduciary duty. The damage amount requested was $500,000 and this dispute settled for $110,000. In 2013, a customer alleged mismanagement of portfolio. This dispute was settled for $34,000.

In 2011 the state of Nebraska sanctioned Rasmusson for failing to keep certain books and records and maintain policies and procedures manual.

Former RBC Advisor Patrick Hudson Sanctioned Over Real Estate Sales

October 13, 2017 | by Staff Attorney

According to BrokerCheck records kept by The Financial Industry Regulatory Authority (FINRA) advisor Patrick Hudson (Hudson), in June 2015, was terminated by his then employer RBC Capital Markets (RBC). RBC stated that Hudson was terminated due to undisclosed outside business activities and the sale of unapproved products.

Thereafter, in August 2017, FINRA brought action against Hudson finding that Hudson participated in private securities transactions in the form of promissory notes, without providing written notice or seeking written from RBC. FINRA found that Hudson’s outside real estate business entered into a series of promissory notes away from the firm totaling $490,000. In addition, Hudson participated in multiple outside businesses without providing prior written notice to the firm. FINRA determined that on at least 21 occasions Hudson sent letters on firm letterhead to various third-parties for the purpose of verifying the assets of firm customers but that Hudson failed to submit these letters to the firm’s operations support department for supervisory review.

The providing of loans or selling of notes and other investments outside of a brokerage firm constitutes impermissible private securities transactions – a practice known in the industry as “selling away”.

Austin Dutton and Newbridge Securities Sanctioned By the State of Pennsylvania Over Securities Sales

October 10, 2017 | by Staff Attorney

Former Newbridge Securities Corporation (Newbridge) broker Austin Dutton (Dutton) has been subject to two complaints and a recent sanction citing dishonest or unethical practices in the securities business by the Pennsylvania Department of Banking and Securities and fining Dutton $200,000. According to a BrokerCheck report Dutton recommended the purchase of a security to at least one customer without reasonable grounds to believe that the transaction was suitable for the customer.

In addition, Dutton’s firm, Newbridge, was also sanctioned by the state of Pennsylvania on findings that “From in or about January 2012 until December 2016, Newbridge did not maintain a reasonable system for applying and enforcing written procedures pertaining to their sales of structured products by one agent in Pennsylvania to certain of his clients…” While The order does not name the broker it appears reasonably related to Dutton.

According to newssources, Dutton is known to have recommended and sold and direct participation products (DPPs) such as non-traded real estate investment trusts (REITs). In particular Dutton sold real estate investment trusts formerly managed by Nicholas Schorsch’s private firm, American Realty Capital (ARC), now AR Global. An accounting scandal affected ARC and its REITs. According to sources, Dutton sold these products to retirees and police officers.

James Geake Subject to Variable Annuity and Alternative Investment Complaints

October 2, 2017 | by Staff Attorney

In February 2017, broker James Geake (Geake) was subject to a customer complaint alleging $347,083 in damages concerning equity indexed annuities. The customer alleges that he was sold equity indexed annuities that gave the broker a bonus for signing clients and that it was a bait and switch scheme. The complaint is currently pending.

Geake is currently associated with Madison Avenue Securities, LLC (Madison Avenue). The law offices of Gana Weinstein LLP are currently investigating customer complaints concerning this broker. According BrokerCheck Geake has a total of four customer complaint disclosures including allegations of unsuitable investments in annuities and alternative investments among other claims.

Equity indexed and variable 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.

FINRA Bars Former First Allied Broker John Kai

September 26, 2017 | by Staff Attorney

The investment lawyers of Gana Weinstein LLP are investigating allegations made by The Financial Industry Regulatory Authority (FINRA) against former First Allied broker John Kai (Kai), working out of Hilo, Hawaii. According to Kai’s file on FINRA’s BrokerCheck, he was suspended in June 2017 for failing “to respond to FINRA requests for information” and was barred from the securities industry on September 12, 2017.

Kai entered the industry in 1991 and worked for Merrill Lynch, Pierce, Fenner & Smith Incorporated until 1995. He then moved to Painewebber Incorporated from 1995 until 1999. From 1999 until 2006, he was with Linsco/Private Ledger Corp. From 2006 until 2010, Kai was with Commonwealth Financial Network. And finally, he was with First Allied Securities, Inc. from 2010 until 2017 when he was terminated.

First Allied terminated John Kai in April for violating “numerous firm policies including communication with the public, undisclosed private securities transactions and outside business activity, borrowing funds from a client, and exercising discretion in clients’ brokerage accounts without the firm’s approval.”

Advisor Todd Ryman Subject to Multiple Customer Complaints

September 20, 2017 | by Staff Attorney

According to BrokerCheck records Todd Ryman (Ryman), now associated with SunTrust Investment Services, Inc. (SunTrust), has been subject to six customer complaints and one regulatory action in his career. According to records kept by The Financial Industry Regulatory Authority (FINRA) Ryman has been accused by customers of unsuitable investment advice in a variety of securities including equities, private equity investment funds, and other types of investment vehicles. Some customers have also alleged unauthorized trading, misrepresentations and failure to follow instructions, among other claims.

One customer complaint filed in November 2016 alleged an unsuitable investment in a private equity fund resulting in $250,000 in damages. The claim was settled for $205,193.

Brokers have a responsibility treat investors fairly which includes obligations such as making only suitable investments for the client. In order to make a suitable recommendation the broker must meet certain requirements. First, there must be reasonable basis for the recommendation the product or security based upon the broker’s investigation and due diligence into the investment’s properties including its benefits, risks, tax consequences, and other relevant factors. Second, the broker then must match the investment as being appropriate for the customer’s specific investment needs and objectives such as the client’s retirement status, long or short term goals, age, disability, income needs, or any other relevant factor.

SEC Charged Financial Advisor Leon Vaccarelli with Defrauding Investors in Ponzi Scheme

September 7, 2017 | by Staff Attorney

The investment lawyers of Gana Weinstein LLP are investigating allegations by the Securities and Exchange Commission (SEC) claiming that financial advisor Leon Vaccarelli (Vaccarelli) defrauded his elderly clients out of more than $1 million.

According to FinancialPlanning, the SEC filed a complaint in federal court in New Haven alleging Vaccarelli engaged in a Ponzi scheme for more than four years. To pay his mortgage and other personal expenses, Vaccarelli allegedly did not put client funds in conventional brokerage accounts as promised and instead had some clients write checks payable directly to him and used the funds to pay for his expenses or to repay earlier investors.

Upon information and belief, as of September 7, 2017, Gana Weinstein LLP is the only firm to have brought civil claims in arbitration to help investors recovery their money from this Ponzi Scheme.

Ameriprise Broker Jonathan Mirer Subject to Multiple Customer Complaints

July 9, 2017 | by Staff Attorney

Ameriprise Financial Services, Inc. (Ameriprise) financial advisor Jonathan Mirer (Mirer) has subject to seven customer complaints according to BrokerCheck records. Mirer has been employed with Ameriprise since July 2016. According to BrokerCheck the most recent customer complaints allege unsuitable investments and unauthorized trading among other claims.

The most recent complaint was filed in October 2016 and alleges unauthorized trading causing $62,000 in damages. The complaint was settled. In April 2016 another investor filed a complaint alleging damages as a result of unsuitable investments in energy stocks. The complaint was settled. The securities lawyers of Gana Weinstein LLP continue to investigate the customer complaints against Mirer.

Our firm is currently tracking a number of brokers that severely concentrated their clients in the oil and gas and commodities sectors which has historically possessed speculative risks due to the volatile nature of commodities prices. Before making such recommendations, financial advisors must ensure that the oil and gas and commodities related investments being recommended to their client is appropriate for the investor and conduct due diligence on the company before making the recommendation. Unfortunately, sometimes adivsors fail to conduct sufficient research or understand the risks and prospects of the company and the volatile nature of commodities.