Investor Lawyers Blog

Merrill Lynch Ordered to Pay $1.6M to Former Broker for Ethnic Bias – But Will This Survive Appeal?

Published on: July 25, 2007 | by Shepherd Smith Edwards & Kantas, LLP

A NASD arbitration panel ordered Merrill Lynch & Co. Inc. to pay an Iranian former employee $1.6 million, for claims that his boss set him up to be fired after discovering his ethnicity. Merrill is currently defending a suit filed in court by another Iranian who has also accused the firm of discrimination.

In an unusually lengthy decision, the securities arbitration panel awarded Fariborz Todd Zojaji $400,000 in compensatory damages and $1.2 million in punitive damages. The arbitrators explained that Merrill Lynch defamed Mr. Zojaji in a required exit disclosure form (Form U-5), which “destroyed claimant’s ability to become employed in the securities industry.”

This language may cause the award to be undone, since it was recently determined that brokerage firms have total immunity for statements made in such disclosures. Yet, the standard for vacating arbitration awards is quite high and a court could let the decision stand if it determines the arbitrators could have decided the case for any other reason. It is also possible the arbitrators heard evidence that the derogatory statements made in the U-5 were stated orally or in writing elsewhere, thus not be protected by the privilege.

Wall Street Wars VII: SEC Chairman to RIAs – “Greetings” – A Regulator on Steriods?

Published on: July 25, 2007 | by Shepherd Smith Edwards & Kantas, LLP

As a review: Instead of charging commissions to sell investments and products to their clients, as do brokerage firms, investment advisors charge a small percentage to advise clients how to invest their money. Wall Street decided this would be a lucrative addition to their business, but did not want to owe a fiduciary duty (of good faith) to their clients as required by the Investment Advisors Act of 1940. They therefore had their politically appointed friends at the SEC exempt them from registering as advisors. This was called the “Merrill Rule.”

Investment advisors then cried foul and their largest association filed suit against the SEC. A few months ago, they won! After brooding for a few weeks but realizing the SEC had no power to exempt anyone from the law, the SEC’s Chairman decided not to appeal. Instead, the Wall Street-friendly former Congressman began his retaliation.

The SEC Chairman first, without waiting for others at the SEC, personally asked Congress to investigate certain practices of investment advisors. The SEC then sprung a hasty investigation of some investment advisors and soon reported only one had properly disclosed facts in its performance claims.

Citigroup’s Smith Barney Unit Ordered to Pay $50 Million over Widespread Fraud Charges

Published on: July 24, 2007 | by Shepherd Smith Edwards & Kantas, LLP

In one of its final regulatory acts before being folded into the NASD, the New York Stock Exchange’s regulatory unit has censured and fined Smith Barney $50 million over illegal trades, failures to supervise and record-keeping violations. The firm agreed to the sanctions without admitting or denying the charges.

The Smith Barney unit of Citigroup Global Markets Inc. will pay a fine of $10 million to the NYSE, and a fine of $5 million to the State of New Jersey, related to a “separate regulatory matter arising out of the same conduct.” An additional $35 million will be paid into a restitution fund to compensate victims.

The NYSE regulators say Smith Barney agreed to these huge sanctions to resolve charges related to a variety of fraudulent trading activities, including excessive trading, improper trading in mutual fund shares, improper trading in variable annuity mutual fund sub-accounts, illegal market timing trades, plus the firm’s failures to supervise and to maintain adequate books and records.

Morgan Stanley Last Again in Customer Satisfaction

Published on: July 24, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Each year the research firm of J.D. Power ranks the largest brokerage firms based on customer satisfaction. This year’s survey polled 5,000 investors and asked them to rate factors such as the quality of their broker, account set-up, investment offerings, and investment performance. Similar polls are taken regarding airlines and other companies which serve the public.

For the second straight year, Morgan Stanley’s retail brokerage unit ranked 11th in customer satisfaction, which was last place in the poll. Highly publicized problems at Morgan Stanley, including a public uprising of high level executives, prompted the ousting of that firm’s CEO.

The management shake-up also included replacement of the head of Morgan Stanley’s retail unit, with James Gorman moving from Merrill Lynch to accept the position. Changes have been initiated by Gorman, including the release of almost 1,000 under-performing brokers and addition of several new products. While his efforts may be a work in progress, results so far have obviously been less than stellar.

As Wall Street Seeks to Lower the Bar, Investors Continue to Say They Value Ethics

Published on: July 21, 2007 | by Shepherd Smith Edwards & Kantas, LLP

It seems that Wall Street has convinced state and federal regulators, as well as Congress and Presidential candidates, that the regulatory bar must be lowered if we are to compete in the international securities market (or perhaps Wall Street’s donations have affected the judgment of these politicians). Yet, studies continue to show that most investors prize a company’s behavior over rich returns.

After the crash of 1929, and for over 70 years, our securities markets have been regulated by a network of federal and state securities laws. During that period, U.S. financial markets have thrived and becme the envy of the world. Conventional wisdom is that investors want to feel safe in investment waters – as shark free as possible. Yet, those on Wall Street, many of whom have proven themselves to be sharks, lobby regulators and lawmakers to attempt to win a “race to the bottom” in worldwide financial regulation.

Yet a recent study found, for example, that two-thirds of investors say they would sell their shares of a company that engages unethical but legal behavior-even if that behavior brought in higher returns. These results were found through poll research performed by Opinion Research Corp. for Pepperdine University’s Graziadio School of Business and Management.

What’s in a Title? Washington State Securities Regulators Want to Know

Published on: July 20, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Ever notice how impressive titles are thrown around in the field of investments? Just what, if anything, to these mean. The Washington State Securities Division has proposed that that anyone who uses a professional designation that connotes some type financial planning expertise should fulfill the requirements and register as an investment adviser.

The Washington Department of Financial Instututions “notes the growth in the use of professional designations which state or imply that a person has special expertise, certification or training in financial planning,” as quoted in a release by the North American Securities Administrators Association Inc. (NAASA).

The state therefore plans to clarify its rules to consider a person who uses such a professional designation as holding himself out as a financial planner. It would also prohibit the misleading use of other professional designations. Washington and other states have expressed the need to limit designations regarding advisors to senior citizens. Washington has now expanded its efforts to control the use of designations to protect investors of all ages.

Securities Class Action Filings Fall Dramatically

Published on: July 20, 2007 | by Shepherd Smith Edwards & Kantas, LLP

WIth securities class actions being dismissed at an alerming rate and charges being filed against high-profile securities class action attorneys, it’s not suprising that securities class action filings fell 42% in the first half of 2007. In fact, this is the fourth consecutive semi-annual drop in filings of such cases, according to the Stanford Law School Class Action Clearinghouse and Cornerstone Research.

The study group has propounded a variety of possible theories for the precipitous drop in securities class actions. One absolutely preposterous theory, unsupported by data, is that securities fraud has dropped because of prior settlements and fines. A spokesman from the Stanford group states: “Economic theory suggests these factors should lead to a decline in the incidence of fraud–exactly what we have seen occur since the middle of 2005.”

Another of the group’s questionable explanations for the decrease in securities class action filings is a “strong stock market” hypothesis. Under that hypothesis, decreased levels of class action filings correlate to a strong stock market with low volatility. Yet, historical data also does not support this hypothesis.

What’s in a Name? Ask the NASD

Published on: July 19, 2007 | by Shepherd Smith Edwards & Kantas, LLP

The NYSE and its former boss Dick Grasso were heavily criticized over salary and benefits to Grasso of well over $100 million. Many thought it unconscionable for the head of a self-regulatory body to earn that kind of money. For that reason, and so it could play ball in the international arena, the NYSE simply bribed all 5000+ members of the NASD $35,000 each to vote to take over its regulatory functions.

The National Association of Securities Dealers, Inc. is an association. Its members are securities dealers. Yet, it does not like its name and wants to change it. After all, it sounds strange for an association of securities dealers to be the primary regulator of securities dealers – too much like a fox in charge of a hen house.

The NYSE takeover seemed a perfect excuse to change the name. So a few folks at the NASD thought about names that would sound more like it was something other than an association of securities dealers. After not so careful thought, the NASD came up with “The Securities Industry Regulatory Authority”, or SIRA.

Enron Victims, Now Victims of Their Own Government, Finally Find Friends in Former Regulators

Published on: July 19, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Defrauded Enron shareholders recently lost again, this time as victims of federal judges who seem intent on helping Wall Street crooks rather than Wall Street victims. With their case before the U.S. Supreme Court, the Enron shareholders lost yet again when the SEC and Bush Administration, who had indicated they would intervene, missed a deadline. Now, three former SEC Commissioners are asking the Supreme Court to allow them to intervene to help.

In 2001, the total value of Enron shares plummeted from over $80 billion to almost zero. Enron officials and its auditors were indicted, several persons were convicted and some are now serving jail terms. The auditing firm of Arthur Anderson was forced to close. The scandal then turned to several Wall Street firms which are claimed ot have played a large role in assisting Enron to falsify its books.

Several individuals and firms were accused – and four former Merrill Lynch Brokers were convicted of by a jury – for arranging loans to appear as sales in order for Enron to book the loans as profits. Yet, just as the Enron shareholders’ claims against Merrill Lynch were headed for trial, business-friendly appointed appellate judges dismissed the case.

Edward Jones Must Pay $75 Million For Failing to Disclose Mutual Fund Incentives

Published on: July 19, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Edward D. Jones & Co. will pay $75 million to settle charges by the Securities and Exchange Commission that it failed to adequately disclose financial incentives to sell mutual funds from its Preferred Families of mutual funds.

The SEC also said that Edward Jones did not make adequate disclosures on its website about its revenue sharing, its directed brokerage payments and other payments for distribution of mutual fund shares. The firm was also accused of failing to disclose information about college savings (or “529”) plans it sold.

Edward Jones agreed to pay $37.5 million in civil penalties, as well as $37.5 million in disgorgement, and to alter its website disclosures about the preferred mutual fund family program and the college savings plan, but neither admitted or denied the claims against it.