News & Resources

FINRA Disciplinary Action against Buttonwood Partners, Inc. 

On August 20, 2018, FINRA issued a Letter of Acceptance, Waiver and Consent in which Buttonwood Partners, Inc. was censured and fined $50,000.  Without admitting or denying the findings, the firm consented to the sanctions and to the entry of findings that it failed to establish, maintain and enforce a supervisory system and written procedures designed to review and monitor the transmittal of funds from customer accounts to third party accounts.

According to the investigation, in March 2015, a Buttonwood customer’s funds were fraudulently transferred out of her account after her email was hacked.  In 2015, the firm had approximately 100 customers who used a bill payment service that allowed them to transfer funds regularly from the customers’ security accounts to pay invoices from third parties.  Buttonwood’s clearing firm required the use of a letter of authorization (LOA), signed by the client, for transfers larger than $100,000.  The firm did not have a written supervisory procedure to address wire transfers of customers’ funds to third-party accounts. Nonetheless, it was a well-known routine practice to ask customers who used the bill payment service to sign a blank letter of authorization form.  This was done so that they would not have to sign a new LOA for each third-party fund transfer.

Per the Letter of Acceptance, Waiver and Consent, in or about February 2015, a Buttonwood customer advised her registered agent that she would be requesting fund transfers from her trust account.  On February 27, 2015, the customer called to request a wire transfer for $569,700.53.  The firm used a pre-signed, blank letter of authorization from the customer’s file to process the request.  Within the next couple of days, the customer’s email account had been hacked and the firm received 6 emails with wire transfer requests to different payees.  Buttonwood did not contact the customer to confirm each request.  Instead, it used the pre-signed LOA form and disbursed $207,300 out of the customer’s account as directed in the fraudulent emails.  The fraud was discovered once the firm became suspicious of the activity and called the client to confirm.  Buttonwood and its clearing firm were able to retrieve most of the money and reimburse the reminder amount to make the client whole.   It is worth noting that Buttonwood self-reported the violations to FINRA.

If you believe that you have suffered losses as a result of misconduct, you may contact David A. Weintraub, P.A. 7805 SW 6th Court, Plantation, FL 33324.  By phone: 954.693.7577 or 800.718.1422.

FINRA Disciplinary Action against Thrivent Investment Management, Inc. 

On August 9, 2018, FINRA issued a Letter of Acceptance, Waiver and Consent in which Thrivent Investment Management, Inc. (Thrivent) was censured.  Without admitting or denying the findings, the firm consented to the sanctions and to the entry of findings that it failed to establish, maintain and enforce a supervisory system and written procedures designed to supervise mutual funds sales to ensure that eligible customers received the benefit of applicable sales charge waivers and breakpoint discounts.

According FINRA, during the investigation period (January 2011 – April 2016), Thrivent failed to reasonably supervise the application of sales charge waivers and available breakpoint discounts to eligible mutual fund sales.  The firm relied on its financial advisors to determine the applicability of sales charge waivers and breakpoint discounts to eligible customers but failed to maintain written policies and procedures to make correct determinations.  The different sales charges, breakpoint discounts, waivers and fees associated with different share classes impact mutual fund investors’ returns.

Per the Letter of Acceptance, Waiver and Consent, Thrivent launched an internal investigation and as a result it returned a total of $855,465.04 (inclusive of interest) in restitution to customers, which represents the amount eligible customers were overcharged because of its deficiencies.  An additional $16,157.75 (inclusive of interest) was returned to customers in restitution, which represents the overcharges for missed sales charge waivers.

It was unclear from FINRA’s announcement whether customers had initiated FINRA arbitrations or any other type of securities arbitrations.  If you believe that you have suffered losses as a result of misconduct, you may contact David A. Weintraub, P.A. 7805 SW 6th Court, Plantation, FL 33324.  By phone: 954.693.7577 or 800.718.1422.

FINRA Disciplinary Action Against Royal Alliance Associates, Inc; FSC Securities Corporation; SagePoint Financial, Inc.; and Woodbury Financial Services, Inc.

On July 24, 2018, FINRA announced that the firms submitted Letters of Acceptance, Waiver and Consent in which Royal Alliance Associates, Inc. was censured and fined $350,000; FSC Securities Corporation was censured and fined $200,000; SagePoint Financial, Inc was censured and fined $200,000.; and Woodbury Financial Services, Inc. was censured and fined $250,000.  Without admitting or denying the allegations, the firms consented to the sanctions and to the entry of findings that during the investigation period the firms failed to establish, maintain and enforce a supervisory system and written procedures designed to reasonably supervise representatives’ sale of multi-share class variable annuities and failed to provide training to their representatives and principals on the sale and supervision of these annuities.   Additionally, Royal Alliance failed to reasonably supervise variable annuity exchanges in that it failed to implement a reasonable supervisory system and procedures to regulate its registered representatives.

According to the findings, the firms’ procedures did not specifically address suitability issues related to the different surrender periods, fees and costs of the different variable annuity share classes; as well as, it did not specifically address the suitability concerns raised by the sale of an L-share contract when combined with a long-term income rider.  The investigation also found that the firms failed to provide adequate training to their registered representatives and reviewing principals to ensure that they understood the material features of variable annuities.   The firms’ training was not designed to ensure that their representatives and reviewing principals understood all suitability considerations.

The investigation revealed that between February 2014 and December 2015, Royal Alliance received over $61.9 million from the sale of variable annuities.  More than 28% of the annuities were L-share contracts.  Between January 2013 and December 2014, FSC received over $51.5 million from the sale of variable annuities; SagePoint received over $52.7 million from the sale of variable annuities; including $11.5 million from the sale of L-share contracts, and Woodbury received over $107.1 million from the sale of variable annuities, including approximately $18.8 million from the sale of L-share contracts.

Questions or comments may be addressed to David A. Weintraub, P.A. 7805 SW 6th Court, Plantation, FL 33324.  By phone: 954.693.7577 or 800.718.1422.

FINRA Interference with Estate Planning

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Financial exploitation of the elderly is rampant in the United States.  The elderly are routinely exploited by those close to them, such as family and friends, caregivers, financial advisors, as well as by scammers trying to sell them products they do not need.  These products include elaborate home security systems and other home improvements.

An example of a new type of elder abuse is that which will be the by-product of the Financial Industry Regulatory Authority’s (hereafter “FINRA”) well intended rules designed to curb financial exploitation.  Effective February 2018, FINRA Rule 4512 requires registered representatives to make reasonable efforts to obtain the name of and contact information for a “trusted contact person” (hereafter “TCP”) upon the opening of a retail account, or when updating account information for a retail account.  Pursuant to the Rule, “the member is authorized to contact the trusted contact person and disclose information about the customer’s account to address possible financial exploitation, to confirm the specifics of the customer’s current contact information, health status, or the identity of any legal guardian, executor, trustee or holder of a power of attorney….”  The TCP is intended to be a resource for the FINRA member in administering the customer’s account, protecting assets and responding to possible financial exploitation.  Unfortunately, this Rule will serve to alert nefarious third parties that Aunt Betty or Uncle Bernie had significantly more assets than relatives may have believed.  But for Rule 4512, certain people (the putative “villains”) will be alerted to assets they did not know existed.  Opportunity and motive to steal have been created by this new Rule.  The Rule may also interfere with pre-existing estate plans.

Because FINRA Rule 4512 does not require the customer to identify the TCP, how should we as lawyers advise our clients?  Do we tell them to refuse to identify TCP’s?  Do we encourage clients to identify TCP’s, and if so, do we do it in writing?  Should we explain to our clients the pros and cons of designating TCP’s?  Do we incorporate the TCP concept in estate planning documents?  Do we revise Durable Powers of Attorney to address issues that will arise from a potentially conflicting TCP?  Do we provide copies of Durable Powers of Attorney to financial advisors?  Do we routinely write to financial advisors to find out if our clients have already designated a TCP?  If our clients have designated a TCP, is the TCP consistent with the client’s choice of Estate Executor or trustee?  Do we want to put into place mechanisms that prevent financial advisors from changing TCP’s without attorney involvement?

 

SEC Charges New York-Based Firm and Supervisors for Failing to Supervise Brokers Who Defrauded Customers

On June 29, 2018, the Securities and Exchange Commission announced that it had charged New York-based broker-dealer Alexander Capital L.P. and two of its managers for failing to supervise three brokers who made unsuitable recommendations to investors, “churned” accounts, and made unauthorized trades that resulted in substantial losses to the firm’s customers while generating large commissions for the brokers.

Their report found that Alexander Capital failed to reasonably supervise William C. Gennity, Rocco Roveccio, and Laurence M. Torres, brokers who were previously charged with fraud in September 2017.  According to the order, Alexander Capital lacked reasonable supervisory policies and procedures and systems to implement them, and if these systems were in place, Alexander Capital likely would have prevented and detected the brokers’ wrongdoing.

In separate orders, the SEC found that supervisors Philip A. Noto II and Barry T. Eisenberg ignored red flags indicating excessive trading and failed to supervise brokers with a view to preventing and detecting their securities-law violations.  The SEC’s order against Noto found that he failed to supervise two brokers and its order against Eisenberg finds that he failed to supervise one broker.

Alexander Capital agreed to be censured and pay $193,775 of allegedly ill-gotten gains, $23,437 in interest, and a $193,775 penalty, which will be placed in a Fair Fund to be returned to harmed retail customers.  Alexander Capital also agreed to hire an independent consultant to review its policies and procedures and the systems to implement them.  Noto agreed to a permanent supervisory bar and to pay a $20,000 penalty and Eisenberg agreed to a five-year supervisory bar and to pay a $15,000 penalty.  These penalties will be paid to harmed retail customers.  Alexander Capital, Noto and Eisenberg agreed to settle today’s charges without admitting or denying the findings in the SEC’s orders. If you believe that you have suffered losses as a result of Alexander Capital L.P.’s misconduct, you may contact David A. Weintraub, P.A., 7805 SW 6th Court, Plantation, FL 33324.  By phone:  954.693.7577 or 800.718.1422.

Newport Coast Securities, Inc. expelled as FINRA member.

On June 22, 2018 Newport Coast Securities appealed a National Adjudicatory Council decision to the Securities and Exchange Commission.  The firm was expelled from FINRA membership, fined $403,000 and ordered to pay $853,617.04, plus prejudgment interest, jointly and severally, in restitution to customers.   Representatives Andre Vincent La Barbera and Douglas Anthony Leone were barred from association with any FINRA member in all capacities and ordered to pay full restitution to their customers.  The sanctions were based on the findings that the firm, La Barbera and Leone excessively traded customers’ accounts.  Specifically, the investigation found that La Barbera and Leone exercised de facto control of customers’ accounts and the firm is liable for the excessive trading and churning of its representatives.  FINRA found that the firm ignored multiple red flags indicating that these representatives were excessively trading and churning certain customers’ accounts.  FINRA noted that these representatives’ clients appeared repeatedly on the firm’s exception reports reflecting the high volume of trading, commission charges, or both.   As a result of their conduct, the firm, La Barbera and Leone violated Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, NASD Rule 2120 and FINRA Rule 2020.  The firm’s expulsion is in effect pending review.  On June 25, 2018 the NAC decision became final with respect to La Barbera and Leone.

It was unclear from FINRA’s announcement whether customers had initiated FINRA arbitrations or any other type of securities arbitrations.  If you believe that you have suffered losses as a result of misconduct, you may contact David A. Weintraub, P.A. 7805 SW 6th Court, Plantation, FL 33324.  By phone: 954.693.7577 or 800.718.1422.

SEC Charges Morgan Stanley in Connection With Failure to Detect or Prevent Misappropriation of Client Funds

On June 29, 2018, the Securities and Exchange Commission announced that Morgan Stanley Smith Barney (MSSB) had agreed to pay a $3.6 million penalty and to accept certain undertakings for its failure to protect against its personnel misusing or misappropriating funds from client accounts.

The SEC’s order found that MSSB failed to have reasonably designed policies and procedures in place to prevent its advisory representatives from misusing or misappropriating funds from client accounts.  The order further found that although MSSB’s policies provided for certain reviews of disbursement requests, the reviews were not reasonably designed to detect or prevent such potential misconduct.

According to the SEC’s order, MSSB’s insufficient policies and procedures contributed to its failure to detect or prevent one of its advisory representatives, Barry F. Connell, from misusing or misappropriating approximately $7 million out of four advisory clients’ accounts in approximately 110 unauthorized transactions occurring over a period of nearly a year.

Without admitting or denying the findings, MSSB consented to the SEC’s order, which includes a $3.6 million penalty, a censure, a cease-and-desist order, and undertakings related to the firm’s policies and procedures.  Morgan Stanley previously repaid the four advisory clients in full plus interest. If you believe that you have suffered losses as a result of Barry Connell’s misconduct, you may contact David A. Weintraub, P.A., 7805 SW 6th Court, Plantation, FL 33324.  By phone:  954.693.7577 or 800.718.1422.

FINRA Announces Initiative to Transform CRD, Other Registration Systems

On June 14, 2018,FINRA announced details of a multi-phased effort to overhaul its registration and disclosure programs, including the Central Registration Depository (CRD)—the central licensing and registration system that FINRA operates for the U.S. securities industry and its regulators and that provides the backbone of BrokerCheck. The first phase of the transformation—a new WebCRD interface that highlights important information or activities requiring immediate attention of firms, branches and individuals—goes into effect June 30.

The transformation aims to increase the utility and efficiency of the registration and disclosure process for firms, investors and regulators, as well as to reduce compliance costs for firms. FINRA’s Board of Governors has approved moving forward with the project, which FINRA expects to complete in 2021.

FINRA developed and operates several systems that support registration and disclosure requirements for the securities industry, and works closely with the SEC and NASAA on policy and program requirements for the systems. Securities firms use these systems to register and maintain the records of associated persons who operate within the securities industry, and investors use them—through BrokerCheck—to research the professional backgrounds of brokers and brokerage firms. These registration systems are essential to the operation of the securities industry, and experience consistently high usage volume.

The redeveloped registration systems will facilitate more efficient interaction for users and leverage information from other FINRA regulatory programs, resulting in a more accurate and complete set of information about registered individuals, branches and firms—enhancing firm compliance programs and reducing compliance costs. The transformation also allows FINRA to leverage the information security benefits of cloud-based technology, and architect systems that address dangers associated with current and anticipated cyber threats and risks.

The changes are being made in response to feedback FINRA has received through various channels during its ongoing organizational improvement initiative—FINRA360—including via recommendations from firms in response to FINRA’s 2017 Special Notice on Engagement. FINRA is working closely with member firms throughout the multi-year project, and will continue to solicit their input and feedback to ensure the enhanced systems are meeting the industry’s needs.

 

General Securities Representative Bradley Everett Gardner barred from FINRA

On June 4, 2018, Bradley E. Gardner accepted a Letter of Acceptance, Waiver and Consent in which he acknowledged that he was barred from association with any FINRA member in any capacity.   According to FINRA, on June 2, 2017, Gardner accepted a personal check in the amount of $7,400 from one of his elderly customers.  He allegedly told his client that she could pre-pay the fees associated with her advisory Firm accounts at a discount by writing a check payable to him, and that he would then “turn off” the fees associated with her accounts until March 2019.    He then deposited the check into his personal bank account and used the funds to pay for his personal expenses.  In the meantime, the firm continued to charge the client the fees associated with her advisory Firm accounts.  Mr. Gardner’s misconduct was discovered in September 2017, at which time Mr. Gardner reimbursed the whole amount to his client.

By converting customer funds, Garner violated FINRA rules.   Conversion is the intentional and unauthorized taking of an/or exercise of ownership over property by one who neither owns the property nor is entitled to possess it.

If you believe that you have suffered losses as a result of misconduct, you may contact David A. Weintraub, P.A. 7805 SW 6th Court, Plantation, FL 33324.  By phone: 954.693.7577 or 800.718.1422.

SEC Charges Long Island Investment Professional in $8 Million Scam Targeting Long-Standing Brokerage Customers

On May 30, 2018, the Securities and Exchange Commission charged a former registered representative with defrauding long-standing brokerage customers in an $8 million investment scam.

According to the SEC’s complaint, Steven Pagartanis, who was affiliated with a registered broker-dealer, told some investors – including retirees who had been Pagartanis’s customers for many years – that he would invest their funds in either a publicly-traded or private land development company.  He promised that the funds would be safe and also promised guaranteed monthly interest payments on the investments.  At Pagartanis’s direction, his investors wrote checks payable to a similarly-named entity that was secretly controlled by Pagartanis.  In all, the customers invested approximately $8 million, which Pagartanis used to pay personal expenses and make the guaranteed “interest” payments to his customers.  To conceal the scam, which unraveled earlier this year when Pagartanis stopped making the so-called interest payments to customers, Pagartanis created fictitious account statements reflecting ownership interests in the land development companies.

The Suffolk County District Attorney’s Office filed criminal charges on May 30, 2018 against Pagartanis.

The SEC’s complaint, filed in federal district court in Brooklyn, charged Pagartanis with violating the antifraud provisions of the federal securities laws.  The SEC is seeking a judgment ordering Pagartanis to disgorge his allegedly ill-gotten gains plus prejudgment interest, and to pay financial penalties. If you believe that you have suffered losses as a result of Steven Pagartanis’ misconduct, you may contact David A. Weintraub, P.A., 7805 SW 6th Court, Plantation, FL 33324.  By phone:  954.693.7577 or 800.718.1422.

93.7577 or 800.718.1422.

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