Securities Lawyers Blog

FINRA Sanctions Felt & Company Broker Timothy O’Brien Over Discretionary Trades

February 17, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) recently sanctioned broker Timothy O’Brien (O’Brien) alleging that O’Brien exercised discretion in two customers’ accounts without obtaining prior written authorization from the customers. O’Brien is associated with brokerage firm Felt & Company.

The FINRA rules provide that registered representatives shall not exercise discretionary power in a customer’s account unless the customer has given prior written authorization to a stated broker and the account has been accepted by the member on that basis. FINRA found that O’Brien was the registered representative for two Felt customers. FINRA determined that in handling the customers’ accounts O’Brien periodically discussed trading strategies with these two customers. However, FINRA alleged that these customers did not give O’Brien written authorization to exercise discretion in their accounts nor did Felt approve these accounts as discretionary accounts. From July 2012, through February 2013, FINRA found that O’Brien used discretion to execute approximately 171 transactions in these customers’ accounts.

Often times unauthorized discretionary trading goes hand and hand with churning, trading that broker engages in solely to generate commissions at the client’s expense. In order to establish a churning claim the investor must show that the trading was first excessive and second that the broker had control over the investment strategy. Certain commonly used measures and ratios used to determine churning help evaluate a churning claim. These ratios look at how frequently the account is turned over and whether or not the expenses incurred in the account made it unreasonable that the investor could reasonably be expected to profit from the activity.

FINRA Sanctions Felt & Company Over Leveraged ETF Recommendations to Clients

February 16, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) recently sanctioned brokerage firm Felt & Company (Felt) alleging that between January 2009, and September 2012, Felt failed to establish and supervisory system that was reasonably designed to ensure that sales leveraged or inverse exchange-traded funds (Non-Traditional ETFs) complied with all applicable securities laws.

Feltl is headquartered in Minneapolis, Minnesota, has approximately 114 registered representatives operating out of eight branch offices in Minnesota and Illinois. Felt derives revenue from securities commissions, underwriting, and investment company activity and has been a FINRA member since 1975. This most recent FINRA action is not the first time the regulatory has brought an action concerning issues of how Felt sells securities products to investors. As we previously reported, FINRA sanctioned Feltl and imposed a $1,000,000 fine concerning allegations that the firm, between January 2008, and February 2012. failed to comply with the suitability, disclosure, and record-keeping requirements engaging in a penny stock business.

In the most recent disciplinary action, FINRA alleged that the securities laws requires a firm to have a reasonable basis for believing that a product is suitable for any customer before recommending any purchase of that product. In order to meet this requirement, a firm must understand the terms and features of the product including how they are designed to perform, how they achieve that objective, and the impact that market volatility on the product. In the case of Non-Traditional ETFs the use of leverage and the customer’s intended holding period are significant considerations in recommending these products.

FINRA Sanctions Former LPL Financial Broker Marc Baldinger Over Private CMO I/O Strip Sales

February 13, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) recently sanctioned former LPL Financial LLC (LPL) broker Marc Baldinger (Baldinger) concerning allegations that between August 2010 and November 2012, Baldinger participated in private securities transactions (a/k/a “selling away”) without prior approval of LPL. In addition, FINRA alleged that in connection with these private securities transactions Baldinger failed to disclose his position as a managing partner of two limited liability companies.

Baldinger entered the securities industry on in 1989. Thereafter, from 2001 onward Baldinger was associated with LPL until Baldinger’s employment with LPL ended on November 24, 2012. On December 13, 2012, LPI, filed a Form U5 terminating Baldinger’s registration.

The FINRA rules require that all brokers report securities transactions to their employer. However, FINRA alleged that between August 19, 2010 and November 24, 2012, Baldinger introduced 20 customers to brokerage firms by the initials “RS” and “AFS” and purchased inverse strips of Government National Mortgage Association Interest Only bonds (GNMA I/Os). According to FINRA, the 20 clients invested a combined total of at least $12 million in GNMA I/Os. FINRA found that Baldinger received compensation for these investment recommendations of approximately $233,427.

FINRA Bars Broker David Lavine Concerning Allegations of Outside Business Activities

February 12, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) sanctioned and barred broker David Lavine (Lavine) concerning allegations that Lavine engage in private securities transactions also known as “selling away.” FINRA Rule 8210 authorizes the regulator to require persons associated with a FINRA member to provide information with respect to any matter involved in the investigation.

In October 2014, FINRA alleged that it pursued an investigation into allegations that Lavine (i) exceeded the scope of an approved outside business activity and potentially engaged in an unapproved private securities transaction; and (ii) failed to timely disclose several reportable financial events. FINRA requested that Lavine provide documents and information on or before November 14, 2014. On December 2, 2014, FINRA stated that Lavine, through his counsel, requested an extension of time to respond but ultimately failed to provide the responsive documents and information and informed FINRA that he would not provide information at any time.

According to Lavine’s brokercheck his disclosed outside business activities include Angel Flight South Central and LAKAP, LLC. It is unclear at this time if FINRA’s investigation concerned Lavine’s participation in these enterprises.

FINRA and SEC Bring Action Against Timothy Dembski and Walter Grenda Over Fraudulent Sales in Prestige Wealth Management

February 11, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC) have brought action (FINRA Here, SEC Here) against Timothy Dembski (Dembski) and Walter Grenda (Grenda) concerning allegations that they made false and misleading statements to their clients at Reliance Financial Group (Reliance) an investment advisory firm, in recommending and selling investments in a risky hedge fund called Prestige Wealth Management Fund, LP (Prestige Fund). Also mentioned as a manager of the fund was Scott Stephan (Stephan).

Dembski was a registered broker with FINRA starting in 1995. From October 2006 until March 2011, Dembski was registered with Wall Street Financial Group, Inc. (Wall Street). Thereafter, Dembski was registered with Mid Atlantic Capital Corporation (Mid Atlantic) until August 2013. In January 2011, Dembski co-founded and was the managing partner at Reliance Financial and also co-founded the Prestige Fund.

Grenda has been a registered broker with FINRA since 1981. From October 2006 until March 2011, Grenda was registered with Wall Street. Thereafter, Grenda was registered with Mid Atlantic until July 2013.

Gana LLP Investigation Spotlight: Source Capital Group and Donald Saccomano

February 10, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) recently brought a complaint against Source Capital Group, Inc. (Source Capital) broker Donald Saccomano (Saccomano) alleging misconduct in connection with suitability, false representation, and failure to supervise claims relating to Direct Participation Products, limited partnerships, and municipal debt securities. FINRA has not released detailed information concerning the pending complaint but this is only one of several recent actions FINRA has taken against Source Capital and its financial advisors in recent years.

As we recently reported, FINRA filed a complaint against former Source Capital broker Joseph Hooper (Hooper) alleging that Hooper was working for a company called the iPractice Group, Inc. (iPractice) in a capacity that included solicited and participating in the sale of iPractice stock to customers. In that complaint FINRA alleged that Hooper was compensated for his activities. FINRA alleged that Hooper participated in 53 private securities transactions involving 41 investors or investor groups and a total of $3,400,648 worth of iPractice stock. In return, FINRA alleged that Hooper received $425,081 and more than 21,000 shares of iPractice stock as compensation for his activities.

Previously, our firm wrote about supervisory and disclosure issues at Source Capital, including FINRA’s action against Source Capital and certain principals concerning the failure of the firm’s brokers to adequately disclose material facts and the transaction of sales through misstatements. The allegations in FINRA’s action concerned certain oil and gas partnership interests in Blue Ridge Securities (Blue Ridge) and Argyle Securities. (Argyle) offered by Source Capital.

WFG Investments Sanctioned Over Failure to Review Transactions for Suitability Part II

February 9, 2015 | by Staff Attorney

This article continues our prior post concerning The Financial Industry Regulatory Authority (FINRA) recent sanctions of brokerage firm WFG Investments, Inc. (WFG) alleging a host of supervisory failures from March 2007, through January 2014.

In one supervisory failure example involving suitability, FINRA found that between 2009, and 2013, a broker by the initials “MC” (1) traded with discretion in several of his customers’ accounts without their written authorization; and (2) also excessively traded in at least one of his customer’s accounts in light the customer’s investment objectives and risk tolerance. FINRA also alleged that many of the securities traded were also qualitatively unsuitable in light of the customers’ age, objectives, risk tolerance, and financial situation. In addition, several of the customer’s accounts were charged both commissions and management fees and this problem was not identified or corrected even after it was detected.

FINRA also alleged that MC used unapproved charts and provided consolidated statements to a customer without the firm’s knowledge or approval. Moreover, allegedly there were exception reports that highlighted the problem trading activity in several of these accounts that were simply not reviewed or not properly processed. In fact, FINRA found that one of the customers who complained about unsuitable activity in her accounts was not contacted by the firm until after she had complained despite the fact that her accounts had appeared on numerous exception reports. Similarly, FINRA found that broker SGD was also permitted by the WFG to engage in unsuitable trading in one of his customer’s accounts which included the recommendation and sale of numerous high risk equity and ETF purchases for a retired client with a conservative risk tolerance.

FINRA Sanctions WFG Investments $700,000 for Supervisory Failures Part I

February 6, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) recently sanctioned brokerage firm WFG Investments, Inc. (WFG) alleging a host of supervisory failures from March 2007, through January 2014. FINRA alleged that WFG failed to commit the necessary time, attention, and resources to critical regulatory obligations in supervising registered representatives including: (1) failure to conduct appropriate due diligence on a private placement offering that was sold by a broker away from the firm; (2) failure to supervise the private securities transactions of one of its brokers that were executed through the representative’s investment advisory firm; (3) failure to maintain a supervisory system to ensure customer transactions were suitable; (4) failure to enforce its written supervisory procedures regarding the sale of alternative investments; (5) failure to supervise statements made by one broker on his weekly radio broadcast; and (6) failure to timely report customer complaints and update the Forms U4 and U5 of its brokers.

WFG has been a FINRA member since 1988, conducts a general securities business, and is headquartered in Dallas, Texas. WFG currently has about 280 brokers operating out of 102 branch offices.

FINRA alleged that in 2007, a WFG broker by the initials “SGD” provided notice to the firm that he intended to sell a private placement offering FINRA called “ATMA” to his customers. ATMA was designed to offer an income stream to investors based revenues form automated teller machines (ATMs). In evaluating a selling agreement with SGD, FINRA alleged that WFG assigned its compliance officer known by the initials “TS” to conduct due diligence on ATMA. TS owned a 5% interest in ATMA and SGD was the 90% owner and the operator of ATMA, had no prior experience in structuring and offering private placement investments. FINRA found that the entity that was to provide the ATM machines to ATMA was engaged in fraudulent business practices and most of the ATMs were fictional. FINRA found that WFG declined to enter into a selling agreement with SGD, but permitted him SGD to sell interests in ATMA as private securities transactions.

Broker Spotlight: Shawn Burns of Salomon Whitney

February 5, 2015 | by Staff Attorney

The law offices of Gana Weinstein LLP are investigating a string of customer complaints against broker Shawn Burns (Burns) currently registered Salomon Whitney LLC (Salomon). According to The Financial Industry Regulatory Authority (FINRA) BrokerCheck system, the customer complaints primarily allege unauthorized trading, failure to execute, suitability, misrepresentation, fraud, churning, and breach of fiduciary duty.

Burns has been in the industry since 1999. In only 15 years Burns has been employed by 10 different firms. After leaving Westrock Advisors, Inc. in May 2007, Burns became registered with J.P Turner & Company, L.L.C. until June 2009. From June 2009, until July 2011, Burns was registered with First Midwest Securities, Inc. Thereafter, Burns was registered with Salomon until August 2012. Then Burns became associated with Cape Securities Inc. until April 2014 before again going back to Salomon where he is currently registered.

Burns has had 12 customer complaints filed against him during his career, one termination, and five judgments or liens. These statistics are troubling because so many customer complaints are rare. According to InvestmentNews, only about 12% of financial advisors have any type of disclosure event on their records. These disclosures do not necessarily have to include customer complaints but can include IRS tax liens, judgments, and even criminal matters. The number of brokers with multiple customer complaints is far smaller.

FINRA Brings Action Against Randor Research, William Scholander, and Talman Harris

February 4, 2015 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) recently brought a complaint against brokerage firm Randor Research & Trading Company (Randor) and registered representatives William Scholander (Scholander) and Talman Harris (Harris) alleging that between February 2011, through March 2013, Radnor displayed a pattern of disregard of its supervisory obligations concerning reporting, disclosure, and compliance responsibilities. FINRA alleged that this disregard included the firm’s failure to report customer complaints, failure to update a registered representative’s Form U4 and failure to ensure that material information was disclosed to customers, and to maintain and enforce adequate supervisory systems and written procedures.

Radnor has been a member of FINRA since 2004, is based in the Philadelphia area and had one branch office in New York. The firm has 17 registered persons working in the two branches. Scholander has been registered with 13 different firms since 1998. Harris has been registered with 16 different firms since 1998. Harris was the branch manager of the New York office during the period.

FINRA alleged that in late 2011, Radnor failed to report two customer complaints made against its brokers. One customer claimed that certain trades were unauthorized and made a demand for damages. According to FINRA, another potential customer claimed that a broker of the firm had participated in unethical or illegal behavior possibly market manipulation. Despite those claims, FINRA claimed that Radnor chose not to report the complaints as required by FINRA rules. FINRA also alleged that Radnor also chose not to report the unauthorized trade complaint on the Form U4 of Scholander and Scholander knowingly failed to ensure that his Form U4 was timely updated to reflect the complaint. As a result, FINRA alleged that both Radnor and Scholander willfully violated the FINRA rules.