Investor Lawyers Blog

FINRA Orders Morgan Stanley to Pay $2.4M Over Ex-Broker’s Trades, Bars Former Merrill Lynch Trader from the Industry

Published on: July 28, 2015 | by Shepherd Smith Edwards & Kantas, LLP

A Financial Industry Regulatory Authority panel arbitration panel says that Morgan Stanley (MS) must pay at least $2.4M to settle the latest client claims accusing its former broker, Steven Mark Wyatt, of mishandling their investments. The brokerage firm fired Wyatt in 2012.

According to a group of doctors and their loved ones, Wyatt, who was their broker, made unauthorized and excessive trades in the stock market that cost them during and after the 2008 financial crisis. Wyatt bought thinly-traded stocks for the investors and placed speculative bets on exchange-traded funds and other securities in their portfolios.

This is the latest batch of claims against Wyatt, Morgan Stanley, and managers at the Mississippi branch where he worked. The claimants believe that Morgan Stanley failed to detect warning signs of Wyatt’s purported wrongdoing. Other employees named in this securities case are adviser Hilary Zimmerman, currently a Morgan Stanley senior vice president, and branch manager Fred Eugene Brister III. The claimants contend that Brister failed to properly supervise Zimmerman and Wyatt. They say that their accounts were mismanaged and suspect trading occurred.

UBS Warns Investors to Stay Away from Puerto Rico Bond Funds

Published on: July 27, 2015 | by Shepherd Smith Edwards & Kantas, LLP

In a complete turnaround, UBS AG (UBS) is now telling clients to step away from Puerto Rico bond funds. Reuters reports that in a recent letter, the firm’s Puerto Rico arm told clients that they would be contacted shortly regarding alternative investments.

Reasons cited for the warning is that the funds can no longer be used as loan collateral in the wake of the U.S. territory’s financial woes. Puerto Rico is currently $72 billion in debt. Concerns over its economy were not eased when Governor Alejandro García Padilla recently asked the island’s debt holders for help in postponing bond payments and restructuring the Commonwealth’s debt.

Reuters also reported that in the letter to UBS customers – issued on July 13 – UBS said the firm would lower the collateral value given to every Puerto Rico closed-end fund share to zero. However, noted the news agency, despite the declaration of zero value for the funds’ shares, the brokerage firm continues to list share prices on its website.

UBS Puerto Rico’s decision to reject the funds as collateral shows just how high risk the firm now views these investments. According to Sam Edwards, a partner in Shepherd, Smith, Edwards & Kantas, who is currently representing dozens of Puerto Rico investors, “UBS came up with the scheme to use the Closed-End Funds as collateral for loans from UBS Bank since they were not eligible for margin loans. It was that leverage against already internally leveraged losses that causes some of the worst losses on the island. UBS is now pulling the plug on its own plan and effectively admitting this was a faulty idea and not only too risky for investors, but now, too risky for UBS, who designed the plan in the first place.”

Once again, the evidence appears to support that UBS is protecting itself at the expense of its customers.
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DOL Says It Will Modify Fiduciary Rule Proposal Involving Retirement Accounts

Published on: July 27, 2015 | by Shepherd Smith Edwards & Kantas, LLP

In the wake of criticism regarding its proposed rule to enhance the investment advice standards that brokers must abide by when working with retirement accounts, the U.S. Department of Labor official reportedly will make modifications. Under the current proposal, brokers would have to act in their clients’ best interests in individual retirement accounts and 401(k) accounts.

The Labor Department introduced the fiduciary rule proposal earlier this year with the backing of the White House. Public comments were sought.

Members of the financial industry have been critical of the proposal’s provision over best interest contract exemption. By signing a legally binding duty with a client to be in a fiduciary relationship with him/her, a broker is entitled to collect compensation in numerous ways, including commissions, as long as he/she acts in that client’s best interests. Some have expressed concern that such an agreement at the start of talks between a potential client and a broker could be problematic. Others are worried that certain costly changes would have to take place for brokers and their firms abide by the rule, and clients may end up having to foot the extra fees.

Ex-Oppenheimer Employees Resolve SEC Charges Over Unregistered Penny Stock Sales

Published on: July 25, 2015 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission said that Scott A. Einsler, Arthur W. Lewis, and Robert Okin, three former Oppenheimer & Co. (OPY) employees, have settled charges involving the unregistered sales of billions of shares of penny stocks for a customer. The actions are related to part of an enforcement action that the brokerage firm settled with the regulator, as well as with the U.S. Treasury Department’s Financial Crimes Enforcement Network. Under that agreement, the firm paid $20 million to resolve those claims.

In this latest order instituting administrative proceedings that have been resolved, Eisler, who used to be a registered representative at an Oppenheimer Florida branch, is accused, along with former supervisor and branch manager Lewis, of executing the penny stock shares in illegal unregistered distributions. While securities laws grant exemption liability for brokers who make a reasonable inquiry into the facts involving the proposed sale of a customer, the SEC said that the two men did not make the required inquiry even though there were significant warning signs. Also, according to the regulator, Lewis and Okin, previously the head of the private client division, committed supervisory failures when they did not address the warnings.

To resolve the proceedings against him, Eisler consented to pay $50,000 and he will be barred from the securities industry and penny stock sales for a year. Lewis also will pay a penalty for the same amount and his bar from the industry in a supervisory capacity is also for a year. Okin will pay $125,000 and also serve a yearlong supervisory bar from the industry. All three men agreed to settle without denying or admitting to the SEC’s findings.

SEC Probes Whether Mutual Fund Managers Are Charging Investors Undisclosed Fees

Published on: July 24, 2015 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission is looking into whether Franklin Templeton, Oppenheimer Funds (OPY), J.P. Morgan Chase & Co. (JPM), and other mutual fund managers are charging investors for fund fees that have not been fully disclosed. While money managers are allowed to use some of investors’ money to pay compensation to the brokers who sell a fund’s shares, as well as for certain marketing purposes, the regulator wants to know whether firms are exceeding the allowed limits.

The Commission is trying to find out whether mutual fund companies have come up with ways to make extra payments to brokers by using investor assets to cover certain services, such as the consolidation of client trading records. The agency is worried that proper disclosure of these added fees are not being made to investors. The SEC is also wondering if brokers are more inclined to recommend funds that provide such additional payments, compelling them to prioritize profit over funds.

Fund companies have said that they do properly disclose fees for marketing. Oppenheimer, which is one of the companies that the SEC has investigated over this issue, has said that it doesn’t bill mutual fund clients for recordkeeping costs but that the money comes from the firm.
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SEC Awards Over $3M to Whistleblower

Published on: July 24, 2015 | by Shepherd Smith Edwards & Kantas, LLP

In the third highest award that the Securities and Exchange Commission has issued under its whistleblower program, the regulator is giving one individual $3 million for providing information that helped expose a complex fraud. The tip provided by the whistleblower included details and specifics about the scam, which would have been difficult to detect otherwise. Related actions also resulted because of the information this person provided.

Since inception four years ago, the SEC whistleblower program has paid out over $50 million to 18 whistleblower. The biggest award to date was $30 million, issued last year. A $14 million whistleblower award was issued in 2013.

Under the program, whistleblowers that provide the regulator with original information that helps the SEC pursue a successful enforcement action are eligible for 10-30% of the money collected if the sanction exceeds $1 million. The SEC is legally bound to protect the confidentiality and identity of whistleblowers.

Puerto Rico Owes $5.4B of Bond Payments

Published on: July 23, 2015 | by Shepherd Smith Edwards & Kantas, LLP

Puerto Rico owes investors $5.4 billion of bond payments in the next 12 months. A lot of this debt is for COFINA, which is sales tax debt, and securities that were sold by the Government Development Bank.

As a result of the upcoming payments and overall debt of the Commonwealth, Puerto Rico Governor Alejandro Garcia Padilla is continuing to press for a restructure of Puerto Rico’s $72 billion debt, which he claims the island cannot pay. Because Puerto Rico has over a dozen kinds of bonds with different security pledges, negotiations over this debt have proved challenging. While some general obligation bonds are protected by the constitution of the commonwealth, others are revenue-backed. Negotiations must move fast as roughly $1 billion is due in January.

This week, PREPA, Puerto Rico’s public power authority, criticized bondholders’ new offer to refinance billions of dollars in debt. The plan was drafted by 40% of the agency’s bondholders, including investors such as BlueMountain Capital and Franklin Advisors. It would divide roughly $8 billion of debt into two tranches.

One tranche would take the form of capital appreciation bonds, which would allow for payments to be deferred for years. Payment for the first tranche, holding about $5.7 billion of debt, would come with debt relief through 2019. Payments on the second tranche, which would hold $2.4 billion, would not have to be completed until 2035.
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U.S. Chamber of Commerce Wants the SEC to Reform Its In-house Trials

Published on: July 23, 2015 | by Shepherd Smith Edwards & Kantas, LLP

The US Chamber of Commerce is calling on the U.S. Securities and Exchange Commission make reforms to the way it conducts in-house trials. The Chamber wants the regulator to put into place a uniform policy of when such trials should take place, amend its rules to allow for more pretrial discovery, and set up a process that would let defendants challenge the choice of an in-house venue.

Critics believe that the SEC’s administrative trials violate the Constitution because there is limited discovery and no jury. Depositions are not allowed nor are counterclaims. To appeal a ruling by an administrative law judge, the person has to go to the Commission first before it can go to a circuit court of appeals.

The SEC has increased its use of in-house trials, which are presided over by one of its judges, ever since the 2010 Dodd-Frank Act went into effect. The Chamber of Commerce is concerned that this is causing serious issues of fairness. The lobbying group made nearly forty recommendations, including that the SEC revise certain deadlines and update its rules.

The chamber believes that some of the rules that preside over the SEC in-house court are no longer appropriate for certain complex cases, such as those involving insider trading. It wants more streamlining of investigations, modifications to the Wells notice process, less duplicate efforts among regulators, and clarification of the SEC’s policy regarding admission of guilt in enforcement actions.

Wells Fargo Must Pay Woman Over $8M For Alleged Fraud Involving Childhood Trust

Published on: July 22, 2015 | by Shepherd Smith Edwards & Kantas, LLP

Wells Fargo Bank (WFC) must pay a Dallas woman over $8 million. Texas State Judge Emily Tobolowsky said that the bank defrauded Angela Militello in its role as trustee for a trust that family members set up for her when she became an orphan at the age of seven.

Militello contends that in 1999, a trust officer sent to her by the bank told her to set up a new account and gave her papers for establishing a revocable trust. After Militello filed for divorce in 2006, she asked the trust officer about withdrawing $200,000 from the trust to purchase a home for her and her child.

The trust officer gave her a check for that amount and a form asking for approval of the completed sale of a percentage of the assets in the trust. The remainder of assets was to be sold within a few months. Militello claims that Wells Fargo and a third party conspired to sell the assets in her trust at way below market value and fraudulently charge her tfor the property taxes after a buyer purchased the assets.

Royal Alliance Must Pay $1.4M To Retirees for Non-traded REIT, Variable Annuities Sales

Published on: July 21, 2015 | by Shepherd Smith Edwards & Kantas, LLP

A Financial Industry Regulatory Authority Inc. panel says that AIG Advisor Group (AIG) subsidiary Royal Alliance Associates Inc. must pay $1.4 million to three retirees who claim that the brokerage firm was negligent when supervising the sales of variable annuities and nontraded real estate investment trusts.

The investors, who were former AT & T Inc. employees, claim that ex-broker Kathleen Tarr recommended that they take a lump-sum buyout from the communications company instead of a lifetime annuity. The money was then put into non-traded REIT company Inland Real Estate, as well as different variable annuities.

Tarr’s BrokerCheck record shows that she has been named in about forty customer disputes and complaints. She was let go from Royal Alliance in 2010.

The claimants, who are low-wealth, low-income seniors, believe that they should not have been encouraged to take a lump sum and place their funds into non-traded REITs and variable annuities involving an IRA. Even though they did not sustain out-of-pocket losses from the investment recommendations, the retirees purportedly lost out on earnings they would have made if only they had invested their money more reasonably or opted for the lifetime annuity. With the latter, an investor would have given over a lump sum figure in return for a guaranteed payout for the duration of his/her life.
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