Securities Lawyers Blog

Joseph Cotter Sanctioned Over High Commissions and Excessive Trading

December 13, 2017 | by Staff Attorney

According to BrokerCheck records kept by The Financial Industry Regulatory Authority (FINRA) broker Joseph Cotter (Cotter) has been subject to two customer complaints, two employment terminations for cause, and one regulatory action. Cotter was formerly registered with Next Financial Group, Inc. (Next Financial). In March 2016 Next Financial terminated Cotter claiming that the firm conducted an internal review of the trading activity in a customer’s accounts and found the level of trading activity to be excessive (excessive trading) in light of the customer’s profile and the character of the account.

Thereafter, FINRA investigated Cotter and found that Cotter engaged in excessive, unsuitable trading in the accounts of one customer. FINRA found that Cotter exercised de facto control over an IRA account and a second account of a customer. FINRA determined that Cotter used this control to excessively trade the accounts in a manner that was inconsistent with the customer’s investment objectives, financial situation, and needs. The trading generated commissions of $100,549 while the client lost $391,893.

When brokers engage in excessive trading, sometimes referred to as churning, the broker will typical trade in and out of securities, sometimes even the same stock, many times over a short period of time. Often times the account will completely “turnover” every month with different securities. This type of investment trading activity in the client’s account serves no reasonable purpose for the investor and is engaged in only to profit the broker through the generation of commissions created by the trades. Churning is considered a species of securities fraud. The elements of the claim are excessive transactions of securities, broker control over the account, and intent to defraud the investor by obtaining unlawful commissions. A similar claim, excessive trading, under FINRA’s suitability rule involves just the first two elements. 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 plus whether or not the expenses incurred in the account made it unreasonable that the investor could reasonably profit from the activity.

SEC Accuses Payson Petroleum 3 Well 2014 Owners Of Fraud

December 10, 2017 | by Staff Attorney

The Securities and Exchange Commission (SEC) filed a civil action charging Matthew Griffin and William Griffin with fraudulently offering two Texas oil and gas partnerships – Payson Petroleum 3 Well 2014. The SEC alleges that between November 2013 and July 2014 the Griffins conducted a fraudulent offering of interests raising $23 million from approximately 150 investors for the purpose of developing three oil and gas wells. The SEC claims that the Griffins misled investors about Payson’s promised participation in the program and other aspects of Payson’s compensation as the program’s sponsor and operator.

According to the SEC, the Griffins authorized offering materials containing numerous misrepresentations and omissions including: i) that Payson would contribute an up-front 20% of the offering amount in the amount of $5.4 million and that this capital infusion would cover 20% of the cost of the wells; ii) that Payson’s consideration as program sponsor/operator/co-investor would be limited to 20% of any petroleum revenue generated by the wells; and iii) that Payson would cover any cost overages beyond the estimated $24 million.

The SEC found these representations to be false because Payson contributed no money to the offering and paid nothing toward the well costs and moreover Payson lacked the financial means to pay even the smallest cost overage. The program later declared bankruptcy.

William Heiden Accused of Concentrating Customers in Oil & Gas Investments

December 10, 2017 | by Staff Attorney

According to BrokerCheck records financial advisor William Heiden (Heiden), employed by Wedbush Securities Inc. (Wedbush), has been subject to nine customer complaints. According to records kept by The Financial Industry Regulatory Authority (FINRA) Heiden has been accused by a customers of unsuitable investment advice concerning various investment products including energy stocks including master limited partnerships (MLPs). The law offices of Gana Weinstein LLP continue to report on investor related losses and potential legal remedies due to recommendations to investor in oil and gas and commodities related investments.

The most recent claim was filed in June 2017 and alleges that Heiden, breach his fiduciary duty, committed violation of industry rules, and financial elder abuse causing $855,299. The customer’s accounts were maintained at the firm from September 2013 to April 2017. The claim is currently pending. The broker has stated in defense of the claim that market conditions and the collapse of oil prices in 2014 and 2015, resulted in a loss of value of some stock and bond positions in the customer’s account.

In January 2017 a customer alleged that Heiden, that from March 2012 to February 2016, made unsuitable investments in the client accounts causing $950,718 in damages. The claim is currently pending.

Coleman Devlin Sanctioned By FINRA Over Unauthorized Trading

December 9, 2017 | by Staff Attorney

According to BrokerCheck records financial advisor Coleman Devlin (Devlin), formerly associated with IFS Securities (IFS), has been subject to 14 customer complaints. In addition, Devlin has been subject to two regulatory matters and has been terminated by two firms for cause. In June 2016 Devlin was discharged from Stifel, Nicolaus & Company, Incorporated (Stifel, Nicolaus) on allegations of unauthorized trading. Thereafter, The Financial Industry Regulatory Authority (FINRA) conducted its own investigation of Devlin’s trading activities.

In October 2017, FINRA found that Devlin effected discretionary trades in five customer accounts without obtaining prior written authorization from the customers and without acceptance of the accounts as discretionary by his member firm.

Devlin has also been subject to numerous customer complaints over the course of his career. The most recent case was filed in November 2017 and alleged unsuitable investments. The customer seeks $600,000 in damages and the claim is currently pending.

Donald Devito Subject to Numerous Complaints Over Excessive Trading

December 9, 2017 | by Staff Attorney

According to BrokerCheck records kept by The Financial Industry Regulatory Authority (FINRA) broker Donald Devito (Devito) has been subject to 10 customer complaints. Devito was formerly registered with Wells Fargo Advisors (Wells Fargo). In December 2016 Wells Fargo terminated Devito claiming that the firm had concerns over the level of trading in client accounts. In 2016 through 2017 Devito has had six complaints filed against him concerning the level of trading and fees generated in his accounts. Customers have filed complaints alleging a number of securities law violations including that the broker engaged in churning (excessive trading), unauthorized trading, and unsuitable recommendations among other claims.

When brokers engage in excessive trading, sometimes referred to as churning, the broker will typical trade in and out of securities, sometimes even the same stock, many times over a short period of time. Often times the account will completely “turnover” every month with different securities. This type of investment trading activity in the client’s account serves no reasonable purpose for the investor and is engaged in only to profit the broker through the generation of commissions created by the trades. Churning is considered a species of securities fraud. The elements of the claim are excessive transactions of securities, broker control over the account, and intent to defraud the investor by obtaining unlawful commissions. A similar claim, excessive trading, under FINRA’s suitability rule involves just the first two elements. 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 plus whether or not the expenses incurred in the account made it unreasonable that the investor could reasonably profit from the activity.

The number of complaints against Devito are unusual compared to his peers. According to newsources, only about 7.3% of financial advisors have any type of disclosure event on their records among brokers employed from 2005 to 2015. Brokers must publicly disclose reportable events on their CRD customer complaints, IRS tax liens, judgments, investigations, and even criminal matters. However, studies have found that there are fraud hotspots such as certain parts of California, New York or Florida, where the rates of disclosure can reach 18% or higher. Moreover, according to the New York Times, BrokerCheck may be becoming increasing inaccurate and understate broker misconduct as studies have shown that 96.9% of broker requests to clean their records of complaints are granted.

Broker George Warner Sanctioned Over Altering Client Records

December 8, 2017 | by Staff Attorney

According to BrokerCheck records financial advisor George Warner (Warner), currently associated with Chelsea Financial Services (Chelsea Financial), has been subject to one customer complaint, one regulatory action, and two terminations for cause. According to records kept by The Financial Industry Regulatory Authority (FINRA), in June 2013, LPL Financial LLC (LPL Financial) terminated Warner for cause alleging that he obtained client signatures on black account transfer forms. Thereafter, Warner was terminated from NFP Advisors Services (NFP Advisors) under similar circumstances. NFP Adviosrs claimed in November 2014 that Warner corrected client documents after the client had signed them.

In April 2017, FINRA sanctioned Warner stated that Warner altered various customer documents on at least five occasions after the documents had already been signed by the customers. FINRA found that Warner corrected or included the customer’s anticipated liquidity needs, net worth, liquid net worth, and/or annual income on new account forms, alternative investment disclosure forms, and an IRA application.

Often times, brokers change client information or have clients sign documents in blank in order to use false information to purchase products that the client is otherwise not qualified to purchase.

Kenneth Jones Terminated Undisclosed Outside Business Activities

December 8, 2017 | by Staff Attorney

According to BrokerCheck records kept by The Financial Industry Regulatory Authority (FINRA) advisor Kenneth Jones (Jones), in May 2017, was terminated by his firm, Aegis Capital Corp. (Aeigs Capital) based on allegations that Jones was under investigation for failure to disclose outside business activities. Subsequently, Jones was barred from the industry by FINRA after FINRA requested documents and information and he failed to provide the FINRA requested documents and information. FINRA sought documents concerning the circumstances surrounding Jones’s termination from his member firm and of certain municipal bond trades that Jones performed while registered with the firm.

At this time it is unclear the extent and scope of Jones’ outside business activities or if they involve private securities transactions. Jones’ CRD lists that he is engaged in insurance an outside business activity at the Mather Christian Church. Often times undisclosed outside business activities can lead to private securities transactions. 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”.

In the industry the term selling away refers to when a financial advisor solicits investments in companies, promissory notes, or other securities that are not pre-approved by the broker’s affiliated firm. However, even though when these incidents occur the brokerage firm claims ignorance of their advisor’s activities the firm is obligated under the FINRA rules to properly monitor and supervise its employees in order to detect and prevent brokers from offering investments in this fashion. In order to properly supervise their brokers each firm is required to have procedures in order to monitor the activities of each advisor’s activities and interaction with the public. Selling away misconduct often occurs where brokerage firms either fail to put in place a reasonable supervisory system or fail to actually implement that system. Supervisory failures allow brokers to engage in unsupervised misconduct that can include all manner improper conduct including selling away.

Broker Martin Stevens Subject to Multiple Customer Complaints

December 7, 2017 | by Staff Attorney

According to BrokerCheck records financial advisor Martin Stevens (Stevens), currently associated with Stifel, Nicolaus & Company, Incorporated (Stifel Nicolause), has been subject to seven customer complaints. According to records kept by The Financial Industry Regulatory Authority (FINRA), in August 2017 a customer filed a complaint alleging that Stevens conduct breached his fiduciary duty, negligence, unsuitable investments, violations of Arizona’s Securities Fraud Statute, negligent misrepresentation, and breach of contract among other claims. The customer seeks $249,000 in damages and the claim is currently pending.

Also in August 2017 another customer filed a complaint alleging unsuitable investments causing $34,719 in damages. The claim is currently pending.

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.

Broker Robert Hoffmann Sanctioned Over Failure to Disclose Financial Difficulties

December 7, 2017 | by Staff Attorney

According to BrokerCheck records financial advisor Robert Hoffmann (Hoffmann), formerly associated with Thurston, Springer, Miller, Herd & Titak, Inc. (Thurston, Springer), has been subject to two customer complaints, one regulatory action, and one tax lien. According to records kept by The Financial Industry Regulatory Authority (FINRA), in January 2017 a customer filed a complaint alleging that Hoffmann made unsuitable investments, unauthorized trading, and churning among other claims. The claim seeks $3,200,000 in damages and is currently pending.

In September 2017, FINRA sanctioned Hoffmann stated that Hoffmann consented to the sanctions and to the entry of findings that he willfully failed to amend his Form U4 to timely disclose an unsatisfied Internal Revenue Service (IRS) tax lien filed against him. In addition, there is one tax lien disclosed on Hoffmann’s report for $106,991 filed in December 2014. Tax liens and judgements are material information for an investor to consider for several reasons. A broker with large unpaid debts may be tempted to recommend high commission products and services to satisfy their personal debts. In addition, a broker’s inability to manage their own finances is material in a customer’s decision to retain the advisor’s services.

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.

Wells Fargo Sanctioned and Fined Over VIX Sales Practices

December 5, 2017 | by Staff Attorney

The Financial Industry Regulatory Authority (FINRA) ordered Wells Fargo Clearing Services, LLC and Wells Fargo Advisors Financial Network, LLC (Wells Fargo) to pay more than $3.4 million in restitution to customers for unsuitable recommendations of volatility-linked exchange-traded products (ETPs) and supervisory failures concerning the sales of these products. FINRA found that between July 2010, and May 2012 Wells Fargo brokers recommended volatility-linked ETPs without fully understanding their risks and features.

These complex products are extremely difficult to understand and are easy to improperly sell. In recent years many exotic ETN have been created that either use leverage or futures exposure to replicate an index. However, many of these investments are appropriate only for institutional investors and short term trading for various reasons.

The most popular volatility-linked ETP is the Chicago Board Options Exchange Volatility Index (VIX). The VIX tends to be negatively correlated with broader financial indexes and rises in period of market distress. However, it is not possible to directly invest in the VIX and instead investments are made in VIX derivatives such as futures or options. The three main Volatility ETPs offered to retail investors are VXX, VXZ, and VIXY. Volatility ETPs attempt to provide exposure to the VIX through VIX futures contracts but these Volatility ETPs do not track the VIX Accordingly, VIX investments held for long periods of time will almost certainly lose value.