July 9, 2015

MRI International Officers Indicted for $1.5 Billion Fraud Affecting Thousands of Victims

Las Vegas-based MRI International Inc.'s former president/chief executive Edwin Fujinaga, Asia-Pacific executive vice president Junzo Suzuki, and general manager of Japan operations Paul Suzuki, have all been indicted on eight counts of mail fraud and nine counts of wire fraud in connection with a Ponzi scheme that defrauded thousands of victims, according to a Fox News article.

According to U.S Attorney Daniel Bodgen, the men told thousands of overseas investors that their investments were safely managed by a third party escrow agent in Nevada. Nevertheless the men are accused of using investors' funds to pay for gambling, a private jet, and other personal expenses. The government alleges that this Ponzi scheme preyed on new enrollees' money that they turned and used to pay early-stage investors and to give other investors incentive to take part.

According to the indictment filed by the U.S. District Court, the scheme was exposed in April 2013 after four years of operation and individually charges Fujinaga with three counts of money laundering. The document also seeks from the defendants the forfeiture of proceeds from the alleged crime. As a result the defendants could also face decades in prison if convicted.

Money placed in a Ponzi scheme is typically difficult to recover directly from the primary wrongdoers, as that money has often been spent. However, Ponzi schemes often involve a number of other players who may have both liability to the victims and the ability to pay damages. Victims should consult with an experienced fraud recovery attorney to discuss their options.

June 2, 2015

SEC Announces Charges against Atlanta Investment Firm and Two Executives Accused of Defrauding Police and Firefighter Pension Funds

On May 21, 2015 the Securities and Exchange Commission announced fraud charges against Gray Financial Group, Founder and President Laurence O. Gray, and co-CEO Robert C. Hubbard IV. According to the SEC, the advisory firm and the two executives breached their fiduciary responsibility by swaying Atlanta public pension find clients to invest in alternate investments funds offered by Gray Financial Group, despite knowing the investments would violate Georgia pension laws. The pension fund clients include Atlanta's police, firefighters, and transit workers pension funds.

The SEC alleges that Gray Financial Group and Gray "made material misrepresentations to at least one client when asked specifically about the investments' compliance with the law," as well as, "misrepresented the number and identity of prior investors in the fund."

Alternative investments are often complex, high-risk, high-fee investments. Georgia law requires that public pension funds invest no more than 20% of their capital in alternative investments; however, the investments sold to two of the Atlanta pension funds in this case caused them to exceed that limit. Georgia law also prohibits public pension funds from investing in an alternative fund unless there are at least four other investors at the time of investment, but there were fewer than four investors in the funds sold to its Atlanta pension fund clients. Georgia law further provides that alternative investment funds must have at least $100 million in assets in order to be purchased by public pensions, yet the funds in this case never reached that amount of assets.

Gray Financial Group collected over $1.7 million in fees from its Atlanta pension fund clients that in connection with the improper investments, according to the SEC.

May 22, 2015

ITT Educational Services and Two Executives Charged with Fraud by SEC

The Securities and Exchange Commission announced on May 12, 2015 that fraud charges were being filed against ITT Educational Services Inc., as well as Kevin Modany (chief executive officer), and Daniel Fitzpatrick (chief financial officer).

According to the SEC, the national operators of for profit colleges and its two chief executives fraudulently concealed from ITT's investors the negative financial impact on ITTof the two student loan programs called "PEAKS" and "CUSO." ITT had provided guarantees against the risk of loss from non-performing loans that resulted in millions of dollars in liability for ITT. However, instead of disclosing these liabilities to its investors, ITT took steps to mislead them.

Those steps included, according to the SEC, making payments on delinquent student loans in order to "keep the loans from defaulting and triggering tens of millions of dollars of guarantee payments, without disclosing this practice."

In order to further conceal its liabilities, the SEC alleged that IIT netted its anticipated guarantee payments against recoveries it projected for many years later without disclosing this approach or its near-term cash impact. In addition, the SEC charged, ITT failed to consolidate the PEAKS program in its financial statements despite ITT's control over the economic performance of the program." Finally, ITT and the executives reportedly misled and withheld crucial information from its auditor.

After two years of misleading investors, ITT finally disclosed the true extent of its guarantee obligations, which resulted in ITT's stock value declining by approximately two-thirds, according to the SEC.

January 28, 2015

Not Putting Customers' Interests First is a Central Failing of Wall Street

On January 6, 2015, the Financial Industry Regulatory Authority (FINRA) published its tenth annual Regulatory and Examinations Priorities Letter. In that letter, FINRA identified five areas, which it described as "recurring challenges," that have harmed investors and resulted in compliance and supervisory breakdowns at member firms. At the top of FINRA's list of problem areas is the continuing failure of some brokerage firms and their registered representatives to put customer interests ahead of their own. Here is how FINRA described this recurring problem:

"Putting customer interests first: A central failing FINRA has observed is firms not putting customers' interests first. The harm caused by this failure may be compounded when it involves vulnerable investors (e.g., senior investors) or a major liquidity or wealth event in an investor's life (e.g., an inheritance or Individual Retirement Account rollover). Poor advice and investments in these situations can have especially devastating and lasting consequences for the investor. Irrespective of whether a firm must meet a suitability or fiduciary standard, FINRA believes that firms best serve their customers - and reduce their regulatory risk - by putting customers' interests first. This requires the firm to align its interests with those of its customers."

This central failing is related to, and sometimes caused by, the other four recurring problem areas that FINRA identified: firm culture; supervision, risk management and controls; product and service offerings; and conflicts of interest. "Many of the problems we have observed in the financial services industry have their roots in firm culture" - i.e., a poor culture in which top management tolerates or even encourages improper sales practices and lax supervision. Fee and compensation structures that incentivize brokers to push certain products continue to lie at the heart of many conflicts of interest, according to FINRA. For example, high-commission, complex investment products with misleading "teaser rates" are often sold to investors by brokers who do not fully understand the risks of the product, and, therefore, do not disclose those risks to the investor.

The financial services industry, by and large, has not addressed these problems to the satisfaction of its own self-regulatory organization (FINRA). FINRA has proposed a rule to help it detect sales practice violations by brokers, called the Comprehensive Automated Risk Data System (CARDS). Under CARDS, firms would be required to periodically submit to FINRA data relating to securities and account transactions, holdings, and account profile information, excluding personal identifying information. The financial services industry is so upset about CARDS that it is going to war with FINRA over the proposed rule. See New York Times article entitled "In Push for Change, Finra Is Opposed by the Wall St. Firms It Regulates."

Its argument is that CARDS would expose customers' personal identifying information to security breaches via reverse engineering, even though CARDS would not collect such personal identifying information. Fred H. Cate, a senior fellow at the Center for Applied Cybersecurity Research at Indiana University in Bloomington, was quoted as saying that, while there were some valid concerns about data security, "it felt to me like an industry that doesn't want to comply with the rules, sort of dragging out every argument it could think of, as opposed to focusing on what practical steps could be included to be sure information is secure."

The message for the public is clear - the financial services industry does not want to be forced to put investors' interests ahead of its own, and does not want FINRA to be an effective regulator.

January 23, 2015

Workers Saving for Retirement Need Brokers To Act as Fiduciairies, Government Research Finds

A just-released government memorandum finds that people investing for retirement have lost billions of dollars as a result of abusive sales practices, and that brokers handling retirement accounts should be held to a stricter fiduciary duty standard to better protect workers' retirement savings, according to an InvestmentNews article entitled "Brokers under White House scrutiny for costing workers billion in retirement savings." The memo, which was drafted by the Chairman of the President's Council of Economic Advisers ("CEA"), Jason Furman, reports that investor losses of between $8 billion and $17 billion are attributable to broker/financial adviser misconduct.

The CEA memo advocates that brokers and financial advisers be governed by a fiduciary duty, which requires them to act in the investor's best interest, and to place investors' interests ahead of their own. It states in part: "Consumer protections for investment advice in the retail and small-plan markets are inadequate...," and only the placement of a fiduciary duty upon brokers and financial advisers offers "meaningful protections" to investors.

The brokerage industry has long objected to and lobbied against the imposition of a fiduciary duty standard of care as being too high and burdensome a duty. For four years, industry representatives have argued that having to act as a fiduciary would be too costly and would eliminate lower cost options for investors. "Any signal that the DOL [Department of Labor's fiduciary duty] proposal is moving forward would cause us concern," a brokerage industry lobbyist was quoted as saying.

The InvestmentNews article reports that the CEA memo and debate come in the midst of a "massive shift" away from defined benefit plans (e.g., pension plans) to defined contribution plans (i.e., 401(k) plans). The net effect of this is to shift the risks that retirement plans will not produce sufficient returns to fund a retirement away from professional money managers onto the back of workers who have no experience in the management of retirement plans.

As the CEA memo points out, many workers have been the victims of broker/adviser misconduct that arises out of an inherent conflict of interest. "Academic research has clearly established that conflicts of interest affect financial advisers' behavior and that advisers often act opportunistically to the detriment of their clients," the memo was quoted as saying.

For example, a broker who receives payment for the sale of a mutual fund or other investment has an interest in recommending it, even if it is not in the client's best interest because there are other more suitable investments. Under the current "suitability standard" that the brokerage industry wants to keep, it would be okay for a broker to recommend a less suitable investment that the broker had a financial interest in recommending as long as it was not unsuitable based on the client's investment profile.

The CEA memo was reportedly circulated to senior White House officials, and it is expected that President Obama will support the proposed fiduciary duty standard for brokers.

January 22, 2015

Investors Need to be Careful About Who Has Custody of Their Money

The Securities and Exchange Commission recently filed fraud charges against a Fort Lauderdale, Florida-based investment advisor and related funds in the federal district court for the Southern District of Florida. The SEC's complaint names Frederic Elm (formerly known as Frederic Elmaleh), his unregistered advisory firm Elm Tree Investment Advisors LLC, and three funds: Elm Tree Investment Fund LP, Elm Tree "e"Conomy Fund LP, and Elm Tree Motion Opportunity LP.

According to the SEC, Elm perpetrated a Ponzi scheme - in effect recycling new investor money to earlier investors, and using investor funds the funds for personal expenses, such as a $1.75 million home, luxury automobiles, and jewelry. In this way, Elm allegedly stole at least $17 million from unsuspecting investors. This kind of misconduct violates the anti-fraud provisions of federal securities laws and SEC rules.

The investors sent their investment funds to Elm by wire transfer or by mailing a check. Elm deposited the funds in various bank account that he controlled. In this way, Elm had custody and control over the investors' funds, and was able to misappropriate the funds.

Investors should be wary of sending money anywhere other than to an account set up for them at a well-known, trustworthy financial institution. Normal operating procedure is for investment advisors to manage a client's money held in an account at a reputable firm, which would have actual custody of the funds and safeguards in place to prevent the kind of theft alleged by the SEC.

December 16, 2014

Sudden Collapse of Oil Prices Surprised Stock Market, But Not Industry Insiders

The collapse in oil prices was a major shock that took a lot of people by surprise. For years the story line had been that the world was running out of oil and America was dependent on foreign oil produced by governments not friendly to U.S. interests. With dwindling supplies, the price of oil had to be higher in the future. Sellers of energy stocks and other oil and gas investments had a compelling story to tell potential investors.

Despite this oil-depletion story line, however, the sudden and sharp decline in oil prices was not really unexpected. According to Gregory Zuckerman, author of The Frackers, the U.S. experienced the largest crude oil production increase in history in 2012, and, in 2013, the U.S. increased daily output from 5 million barrels per day to 7.5 million - on a track to outproduce Saudi Arabia by 2020. As for natural gas, production increases have led to price declines of 75% since 2008. Better technologies like horizontal drilling and hydraulic fracking - a process for accessing oil and gas trapped in dense rock - have allowed these production increases and price declines to occur.

Oil and gas investment offerings have become more common in these days of low interest rates, as investors have been unable to generate enough income from bond interest and stock dividend payments. Also, state securities regulators have long warned that high oil prices have allowed promoters to generate interest in investments in energy-related business ventures.

Sellers of investments are legally required to be accurate and completely truthful in marketing investments, disclosing all important risks, and are prohibited from recommending investments that are unsuitable for the investor. But sellers do not always do that. Investors who lost money in energy-related investments that were either unsuitably risky for them, or whose sellers misrepresented or failed to disclose important risks, have valid legal claims to recover those losses.

October 29, 2014

UBS Hit With $900 Million in Puerto Rican Bond Fund Claims

Investors have filed claims against UBS Wealth Management Americas totaling more than $900 million for losses in its Puerto Rican closed-end municipal bond funds, according to InvestmentNews, citing the company's third quarter earnings report. The bond funds plummeted in value last year.

UBS had sold more than $10 billion of the funds through 2012, according to the article. Investors have alleged fraud, misrepresentation and unsuitable recommendations against UBS and its brokers in connections with the sales. In addition, at least one UBS broker persuaded some investors to take out loans and invest the proceeds in the funds in violation of UBS policies. UBS has reportedly set aside millions of dollars to cover anticipated liability.

Separately, the Puerto Rican division of UBS Wealth Management Americas, has reportedly agreed to pay $5.2 million to Puerto Rico regulators to settle charges that the firm's brokers improperly sold these funds to investors. Of the $5.2 million, approximately $1.7 million is earmarked for reimbursing 34 "mostly senior, low-net-worth" investors, who were heavily concentrated in the closed-end funds. The other $3.5 will be deposited into the commission's investor education fund.

The Doss Firm, LLC is a Marietta, Georgia based law firm with over 40 years combined experience in helping investors recover losses resulting from unsuitable recommendations by brokers and other misconduct. If you have a question about your investments, feel free to give us a call at (770) 578-1314 for a free consultation.

October 8, 2014

FINRA Charges Southwest Securities With Improper Variable Annuity Sales

The Financial Industry Regulatory Authority (FINRA) has filed a disciplinary action against SWS Financial Services Inc. (SWS) for failing to supervise unsuitable sales of variable annuities to investors, and failing to maintain and implement appropriate supervisory policies, according to a recent InvestmentNews article. FINRA is seeking undisclosed monetary sanctions for violations that occurred during the period from September 2009 to May 2011. During this time, sales of variable annuities made up to 20% of SWS's total revenue.

With regard to the charge of failure to supervise, FINRA found that variable annuity sales were generated in SWS offices that did not have an on site supervisor to monitor compliance with FINRA rules regarding sales of variable annuities. The variable annuities in question were issued by an insurance company that is affiliated with SWS. More than 70% of these variable annuities were sold to investors without ever having been reviewed by an SWS securities principal to determine whether they were suitable for the investors.

Some of the variable annuity sales involved a practice known as switching in which an existing annuity is sold and replaced with another annuity. Improper switching is a form of churning in which a broker trades excessively for the purpose of generating commissions. Improper switching and failure to properly explain to investors the terms and risks of variable products have been long-term problems in the securities brokerage industry. In particular, brokers often fail to clearly explain the illiquidity and surrender charges, as well as the risks associated with the subaccounts that comprise the investment component of these products.

In one case, a SWS sales person recommended that 29 of his clients switch from MassMutual Life variable annuities into new ones issued by Jackson National Life Insurance Co., which had higher annual expenses, according to the article. In addition to paying higher expenses, some of the investors incurred surrender charges as a result of the switching.

Generally speaking, sales of variable annuities are very lucrative for the selling agent and firm, but are often unsuitable for investors because they are subject to surrender charges, which, as a practical matter, make them illiquid, as well as contract provisions that make them inordinately expensive to own, among other reasons. The major benefit of owning a deferred variable annuity, tax deferral, is lost if the annuity is held in an already tax-deferred account like an IRA.

The Doss Firm, LLC has over thirty years of combined experience representing investors in disputes with brokerage and advisory firms and their representatives. If you have any questions about your investments, please call us for a free consultation.

September 15, 2014

LPL Financial Representative Operating in Buford, Georgia Defrauded Investors Out of $1.7 Million in Savings

On August 26, 2014, a federal district court in Atlanta ordered Blake Richards of Buford, Georgia to pay approximately $1.7 million of money that he obtained from investors by fraudulent means, plus interest of nearly $50,000 and a civil penalty of $80,000. The money is to be paid to and held by the district court until further order. Unfortunately, Richards claims to be indigent, and the investors he defrauded are unlikely to recover any money from Richards, although they may have claims against LPL Financial. At least two of the investors defrauded by Richard were elderly and most of the misappropriated funds were from retirement savings and life insurance proceeds.

Richard was associated with LPL Financial, which is a brokerage and investment advisory firm headquartered in Boston. Richards' financial advisory firm, Lanier Wealth Management, LLC, which operated like a branch office of LPL Financial, is located in Buford, Georgia.

When the investor victims had money to invest, Richards would have them write checks to entities he controlled. The entities were named Blake Richards Investments and BMO Investments. Richards told his victims that he would cause the money to be invested, but he actually siphoned off the money and used it for his personal benefit.

One of Richards' victims was a woman he had dated. Her father became another victim. Still another victim was a woman who received over $200,000 in life insurance proceeds when her husband had died of pancreatic cancer. Richards cultivated a relationship of seeming trust, going so far as to deliver pain medication to her husband during a snowstorm in his 4-wheel-drive vehicle.

Richards provided fictitious account statements detailing non-existent investments. At least one of the statements purported to be on LPL Financial letterhead. When Richards was questioned or challenged by a victim, he always had an answer. When one victim asked Richards why she had not received statements from LPL Financial, he told her that her accounts had not been "linked" properly. When another questioned him about the status of her supposed investments, Richards showed her a phony statement generated by an internet-based software program.

In addition to losing the money entrusted to Richards, one victim's social security check was subjected to garnishment by the IRS, because of an improper IRA distribution that was caused by Richards, and which he promised to correct, but did not.

There are some lessons to be learned from this awful story. Investors should never give custody of their money to an individual or a business they do not have good reason to believe is legitimate and reputable. If you do not have the time and/or expertise to invest the money wisely yourself, you are probably better off obtaining advice from a fee-only financial planner (i.e., one who does not act as a broker or invest the money for you) and implementing the plan by investing in well-diversified stock and bond index funds, keeping an appropriate amount (a "rainy day fund") in relatively safe and liquid investment like a certificate of deposit or money market fund. Money that you may need to access sooner in the next three years should never be invested in stocks or other volatile investments. To learn more, read books on investing by John C. Bogle, the founder of Vanguard mutual funds and the person widely credited with inventing index funds.

Any time you have a question about your investments - either proposed or already made - we would be happy to share our experience. Brokers and investment advisors have certain duties to investors that, when breached, give rise to legal rights to recoup investment losses caused by the breach. For many years now, we have represented investors in securities arbitrations against brokerage firms and financial advisers, helping them to recover losses in unsuitable investments. It is certainly possible to recover such investment losses in securities arbitration. However, we would prefer to help you avoid bad investments in the first place.

September 2, 2014

Prosecutors Say Financial Fraud is On the Rise

As if ISIS terrorists, ebola, militarized police, and race riots are not enough, we now read in the Atlanta Business Chronicle that white collar crime is on the rise ("White Collar Crime Wave," by Dave Williams, August 22-28, 2014). Prosecutors report a significant increase in white collar criminal activity, according to the article. One former federal prosecutor was quoted as saying: "It's a national trend."
White collar crime includes various forms of financial fraud. Examples include Ponzi schemes (think Madoff, where cash flow from newer victims was used to pay previous investors until the house of cards collapsed) and affinity fraud. In an affinity fraud scenario, the investment promoter gains credibility and hooks victims by playing up things they have in common.
Perhaps the most common and outrageous example of affinity fraud that is the proverbial "wolf in sheep's clothing" who preys on church members. The article mentioned the sad case of Ephren Taylor II, the purported wealth builder who defrauded members of a prominent Atlanta church out of millions of dollars.
Elder financial exploitation is another tragic and infuriating example of the kind of white collar criminal activity that is on the rise.
Victims of financial fraud, through no fault of their own, undergo a kind of vertigo similar to that experienced by a pilot, who, in a crisis, must decide whether to trust his or her own strong instinct (which is typically the tragic mistake) or what the instruments are showing, which seems to be counterintuitive. Similarly, victims of financial fraud often report that they experienced conflicting signals: the signal from the fraudster, who is often a polished and convincing confidence (con) man versus an internal warning bell that something is not quite right about this opportunity or the person conveying it.
When it comes to deciding whether to invest, especially in an alternative or unconventional investment, investors are well-advised to be skeptical, and act accordingly. If the business is so great, why do they need financing from investors like me? Why haven't banks or professional venture capitalists provided financing? If the opportunity is so great, why is the promoter selling instead of buying?
The Doss Firm represents people from all walks of life who are victims of financial fraud. If you have fallen victim to financial fraud, you should consult with attorneys who have experience representing investors, because you may be able to recover some or all of your losses. You should do so promptly, because time limits, such as statutes of limitation, can bar some or all of your claims.

August 21, 2014

Unregistered Investments Are Almost Always Unsuitable, and Are Often Fraudulent

Private placements are investments that have not been registered with the United States Securities and Exchange Commission. The lack of registration is either unlawful, or lawful due to an exemption from registration under the securities laws. Private placement investments are always high-risk investments that are complex, not transparent, and illiquid (cannot be readily sold) - despite the fact that they are often presented as having little or no risk, and are sometimes fraudulent.

Issuers of private placement investments often employ unregistered brokers and financial advisers to sell them to individual (or retail) investors. The sellers of private placements typically receive outsized commissions, and thus do very well indeed. On the other hand, many investors who could ill afford it have lost a substantial portion of their life savings by investing in private placements.

The SEC recently published an Investor Alert identifying 10 red flags that an unregistered offering (private placement) may be fraudulent. The red flags include such things as promises of high returns with little or no risk; involvement of unregistered sales people; high-pressure sales tactics; amateurish, sloppy or no documentation; absence of the "usual suspects" involved in "legitimate" private placements (lawyers, accountants, etc.); the old "mail drop as corporate address" trick; cold call solicitations; and phony backgrounds of managers or promoters.

While it is true, as the SEC indicates, that some private placements may be used by legitimate businesses to raise capital, it is also true that private placements may be fraudulent investment schemes. Even if a private placement is legitimate, it is always improper for an investment adviser or broker to recommend that an individual investor invest a substantial percentage of his or her liquid net worth in such investments due to the risk of losing everything you invest.

The laws requiring registration of securities offerings are designed to protect investors, though that protection may be illusory. Generally, unregistered securities can only be sold to so-called "accredited investors." For an individual to be considered an accredited investor, he or she must either have annual income of over $200,000 for the prior two years (or $300,000 jointly with a spouse), or have a total net worth of over $1 million above the value of the primary residence and any loans secured by it.

Now, it is still true that $1 million is a lot of money, but it is not nearly as much as it used to be back when these "accredited investor" rules were written. The "accredited investor" requirement is supposed to protect investors but, arguably, the income/net worth cut-off is too low. It is based on a false premise that anyone with $200,000 or $300,000 annual income or a net worth of $1 million is wealthy and, therefore, able to bear the loss of his or her entire investment, even if that investment is all or a substantial portion of that person's net worth.

The bottom line is that private placements (even if they are not outright frauds) are almost always unsuitably risky and illiquid for individual investors. They should not be recommended to most individual investors by brokers or investment advisers, and would not be recommended were it not for the high sales commissions. If such an investment is presented to you, the best response is to "just say no." If the opportunity was so great, venture capitalist investors would invest and the issuer would not need to be raising money from people like you and me. More appropriate, liquid, and less risky investment alternatives that do not pay the seller high fees or commissions are usually available.

If you are stuck in one of these investments, you may be able to get your money back by undoing the sale (a legal remedy called rescission). We would be glad to discuss your options with you, so feel free to give us a call.

January 13, 2014


According to a recent news release, the Financial Industry Regulatory Authority (FINRA) has fined Stifel, Nicolaus & Company, Incorporated and an affiliate $550,000 ordered them to pay approximately $475,000 in restitution to 65 customers for making unsuitable recommendations of leveraged and inverse exchange-traded funds (ETFs). The affiliate is Century Securities Associates, Inc., which is owned by Stifel.

Leveraged and inverse ETFs are complex alternative investments that are usually poorly understood by both the selling brokers and investors. They are designed to be short-term trading vehicles that "reset" daily. Consequently, over time, they fail to track the underlying index or benchmark. The use of leverage magnifies such discrepancies. Thus investors may experience large losses even though the long-term performance of the index may gain.

Securities firms and their representatives and their representatives are required to understand investment products before recommending them to their customers. Firms must conduct reasonable due diligence on complex products, train their sales force to adhere to appropriate sales practices, and supervise them to see that such practices are implemented. As in this case, however, selling firms often fall short of their duties.

Stifel and Century representatives did not have a good understanding of leveraged and inverse ETFs, but the firms allowed them to recommend the products to risk averse customers, who suffered significant losses, according to FINRA. FINRA further found that Stifel and Century failed to put reasonable supervisory systems in place. The time period involved was January 2009 though June 2013.

Stifel and Century consented to FINRA's findings and agreed to pay the fines and restitution.

January 9, 2014

J. P. Morgan Chase Avoids Criminal Prosecution for Hosting Madoff Fraud

Banking giant J. P. Morgan Chase has reached a deal with federal prosecutors to avoid criminal prosecution for its role in the Bernard Madoff Ponzi scheme. According to the prosecutors, J. P. Morgan, which had custody of Madoff accounts, witnessed suspicious money transfers, too-good-to-be-true investment returns, unverifiable trading activity, and the use of a one-man accounting firm. But while the bank connected the dots, filed a suspicious activity report with British officials, and was concerned enough to withdraw its own money from Madoff feeder funds, it failed to protect investors in that it "never closed or even seriously questioned Madoff's Ponzi-enabling 703 account," according to U. S. Attorney Preet Bharara.

The nation's largest bank faced two felony charges of violating the Bank Secrecy Act because it did not file a Suspicious Activity Report after witnessing red flags about Madoff and did not have appropriate anti-money laundering compliance procedures in place. The charges come on top of other legal woes at J. P. Morgan, including a $13 billion settlement with the U. S. government in connection with its mortgage practices that led up to the financial crisis.

Madoff reportedly perpetrated his Ponzi scheme through accounts at J. P. Morgan from 1986 up until his arrest in 2008. Almost all of his clients' funds were deposited at J. P. Morgan, and money flowed into and out of those accounts. In October 2008, one of J. P. Morgan's analysts wrote a memo indicating that the bank could not verify Madoff's trading activities or custody of assets. It also questioned Madoff's "odd choice" of using a small, unknown accounting firm. Also in October 2008, J. P. Morgan filed a report with British regulators that stated in part that Madoff's purported investment returns were "too good to be true."

J. P. Morgan will pay approximately $2.24 billion to settle criminal charges plus another $350 million in civil penalties. In return, the U. S. will defer prosecution of the bank for two years as long as the bank complies with certain provisions, including reforming its anti-money laundering policies and cooperating with ongoing investigations. No individual executives at J. P. Morgan Chase were charged with a crime.

In addition to the criminal case settlement, the trustee for the liquidation of Bernard L. Madoff Investment Securities, LLC ("BLMIS") appointed by the Securities Investor Protection Act (SIPA), Irving H. Picard, announced recovery agreements with J. P. Morgan totaling approximately $543 million for the benefit of BLMIS customers, for which bankruptcy court approval is being sought. The SIPA trustee has recovered approximately $9.783 billion for the BLMIS Customer Fund, or about 56% of the $17.5 billion that was lost in the Madoff ponzi scheme, according to a press release from the office of Mr. Picard.

While $1.7 billion is reported to be the largest bank forfeiture in history, investor advocates have been critical of the criminal case settlement. In particular, they criticize the failure to charge individual bank executives, who may have turned a blind eye to Madoff's fraud, with a crime. They also criticize the leniency of the settlement terms as amounting to an ineffective deterrent.

January 9, 2014


Each year, the Financial Industry Regulatory Authority (FINRA) publishes a letter to the financial services industry identifying its regulatory and examination priorities. FINRA is the industry's "self-regulatory organization," which is charged with policing sales practice violations by its member broker-dealer firms, among other things. According to FINRA, its letter highlights important risks and problem areas in the industry that "could adversely affect investors." While there may be some differences from year to year, the major risks and problems that impact the most investors seem to persist.

The two major categories of violations that concern FINRA are unsuitable recommendations and misrepresentation of the material facts about recommended investments. In general, the suitability rule requires selling firms to have (and be able to demonstrate) a reasonable basis for believing that a recommended investment is both (1) suitable for at least some investors based upon the nature of the investment and its potential risks and rewards, and (2) that the investment is suitable for the particular customer to whom it is being recommended based on that customer's investment profile (e.g., age, investment experience, time horizon, liquidity needs, and risk tolerance).

FINRA has long been, and remains, concerned about sales practices related to a group of investments that share the characteristics of being illiquid, not transparent and hard to understand, and that are extraordinarily costly in that they pay outsized commissions to the agents that sell them to investors. In this regard, FINRA's list includes the following categories of investments: Complex Structured Products, Private Real Estate Investment Trusts (also known as non-traded REITs), Frontier Funds and a group of interest rate-sensitive securities like Mortgage-Backed Securities, Long Duration Bond Funds, Long Duration Bond ETFs, and so on.

These products are typically sold to income-oriented investors, who are often retired people trying to live on a fixed income that consists of social security payments and investment income. Such investors typically have high liquidity needs and low risk tolerance. The low interest rate environment has sharply reduced their income. While these income-oriented investments promise more income, they are largely illiquid, higher-risk investments. For example, a number of non-traded REITs reduced or eliminated distributions in the wake of the real estate market crash, but they cannot be sold like a stock - i.e., they are illiquid, and investors were left holding a non-producing asset that was worth far less than what they paid for it.

FINRA is concerned that the selling brokers neither fully understand nor explain the risks and problems associated with these investments.

According to its letter, FINRA is also concerned about the disproportionate effect that chronic bad brokers, which it calls "recidivist brokers," have on investors. However, if FINRA truly wanted to protect investors from recidivist brokers, it would take action to prevent brokers from expunging or whitewashing their customer complaint histories from the records it makes available to investors (and urges them to check out before investing) known as BrokerCheck. PIABA (the Public Investors Arbitration Bar Association), under the leadership of its President, Jason Doss, has launched a campaign aimed at improving disclosures of brokers' histories to potential investors by placing more appropriate restrictions on brokers' ability to expunge their records posted on FINRA's BrokerCheck. We will keep you posted on those efforts. FINRA's priorities letter can be viewed here.