Conflict of Interest

FINRA Addresses Conflicts of Interest In the Sales of Securities

January 23, 2014 | by Staff Attorney

In the securities industry conflicts of interest can arise where a duty of care or trust exists between two or more parties. While the existence of a conflict does not always mean that one party will be harmed by the other party’s interest, brokerage firms have been involved in many situations where they did not effectively and fairly manage conflicts of interest.

The Financial Industry Regulatory Authority (FINRA) recently issued a “Report on Conflicts of Interest” that focused on enterprise-level frameworks to identify and manage conflicts of interest; approaches to handling conflicts of interest distributing new financial products; and approaches to compensating their associated persons.

Part of FINRA’s focus on conflicts on interests focused on the introduction of new financial products. FINRA recommended a number of effective practices to address conflicts in the issuance of new securities. First, firms can use a new product review process that includes identifying and mitigating conflicts that a product may present. Second, firms should disclose those conflicts in plain English to ensure that customers comprehend the conflicts that a firm or registered representative have in recommending a product. FINRA reminded firms that conflicts may be particularly acute where complex financial products are sold to less knowledgeable investors, including retail investors.

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.

SEC Charged New York Based Hedge Fund Adviser Shadron Stastney, a Partner at Vicis Capital, LLC With Breaching Fiduciary Duty By Participating in Conflicted Principal Transaction

September 19, 2013 | by Staff Attorney

September 18, 2013 The Securities and Exchange Commission (SEC) charged Shadron Stastney, a partner at a New York based hedge fund, Vicis Capital, LLC with breaching his fiduciary duties by engaging in undisclosed principal transactions in which he had a personal financial interest.

A principal transaction occurs when a registered investment adviser (RIA) acts as a principal for its own account and knowingly and intentionally buys securities from, or sells securities to a client. sells securities to, or buys securities from, a client. A principal transaction may also occur in situations where a controlling owner or an affiliate of the RIA engages in trades with the adviser’s clients. These transactions may lead to abuses, such as price manipulation, and the placement of unwanted securities in clients’ accounts—a practice known as “dumping.”

In passing Section 206(3) of the Investment Advisers Act, Congress recognized that principal transactions are potentially very harmful to investors and advisory clients. Principal transactions create the opportunity for RIAs to engage in self-dealing. Principal trading with clients is a clear conflict of interest that must be adequately disclosed to customers.