Author Archives: David Weintraub

In July 2014, FINRA announced that Jaime Andres Diaz, previously employed by National Securities Corporation, was barred from association with any FINRA member in any capacity and ordered to pay a total of $600,000, plus interest, in restitution to customers. The sanctions were based on findings that Diaz willfully misrepresented and omitted material facts in connection with the purchase and sales of securities.

The findings stated that Diaz misrepresented to customers and a co-worker that he would purchase securities with their funds when he never intended to do so. Diaz fraudulently solicited and received $900,000 from customers and the co-worker, and kept the vast majority for his own use. Diaz converted the funds to his own use and benefit, made monetary payments to friends and covered office expenses. Diaz also concealed from investors negative financial information, the risk of loss of principal, known delays in ventures’ business plans, his own failures to conduct due diligence, and his lack of authority to sell some of the products involved. Diaz convinced customers to sell securities or borrow against securities held in their accounts.

In addition, the findings stated that Diaz engaged in private securities transactions in the form of promissory notes without providing his member firm with prior written notification of these sales, including describing the proposed transactions to the firm and his proposed role in the sales, and he failed to obtain prior authorization from the firm before making the sales. Diaz also misrepresented on an outside business disclosure form maintained in CRD that he was involved in outside businesses, but did not identify the sale of promissory notes as outside business activities, and inaccurately identified an entity as non-investment related, even though he solicited customer’s investments in that entity. Diaz falsely represented on his firm’s compliance questionnaire that his outside business disclosure form in CRD was correct and provided false answers on the questionnaire. The findings also included that Diaz provided untimely and incomplete responses to repeated FINRA requests for information and failed to respond in any manner to a FINRA request for information.

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 Jaime Andres Diaz’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.

In July 2014, FINRA announced that Jun Rong Chen, previously employed by NYLife Securities LLC, submitted a Letter of Acceptance, Waiver and Consent in which he was barred from association with any FINRA member in any capacity. Without admitting or denying the findings, Chen consented to the sanction and to the entry of findings that he failed to appear and provide testimony to FINRA.

The findings stated that FINRA requested that Chen appear and provide testimony pertaining to allegations that he provided incorrect phone numbers for insurance company customers on traditional life insurance applications, used an address in his control to receive certain insurance company customers’ mail, used checks from his approved outside business activity to pay the insurance premiums for insurance company customers’ policies without there being identifiable familial relationships, personally purchased money orders to fund insurance policies for insurance company customers, knowingly submitted inaccurate change of ownership and beneficiary forms that indicated that there was a relationship between the insured and the new policy owners and beneficiaries, and obtained applications for traditional life insurance policies during his suspension from the insurance company and instructed a colleague to sign the applications as the soliciting agent and witness, when in fact the colleague had not met the policy holders. Chen advised FINRA, through counsel, that he would not appear and provide testimony, provide any further documents and information, or otherwise participate in FINRA’s investigation.

In July 2014, FINRA announced that John Warren DeBrule, previously employed by Merrimac Corporate Securities, Inc., submitted an Offer of Settlement in which he was barred from association with any FINRA member in any capacity. Without admitting or denying the allegations, DuBrule consented to the sanction and to the entry of findings that he willfully engaged in securities fraud by knowingly or recklessly causing the distribution of summary quarterly statements that contained false information about the valuation of a hedge fund.

The findings stated that DuBrule knowingly inflated the value of the fund’s assets on its quarterly statements by, among other things, including the face value and promised interest of defaulted promissory notes as assets of the fund, and he falsely inflated the value of investors’ interests in the fund. DuBrule made materially false and misleading statements and omissions to investors to entice them to re-invest additional funds. DuBrule’s member firm granted him permission to engage in this outside business activity. DuBrule failed to disclose that the valuation of the fund was based on defaulted promissory notes and promissory notes that had been cancelled. The summary quarterly statements contained false and misleading statements that claimed the fund utilized the services of an independent firm to prepare statements and tax reports, and that they were prepared in accordance with generally accepted accounting principles (GAAP).

In addition, the findings stated that DuBrule and his wife invested a total of $88,554 in the fund and withdrew a total of $92,405, relying on the inflated value of their investments in the fund. DuBrule misappropriated investor funds by withdrawing the funds despite knowing that the promissory notes had been cancelled and the value of the fund’s assets had decreased substantially. Investors deposited $3.8 million into the fund, based in part on the fraudulent misrepresentations and omissions in the summary quarterly statements. The findings also included that DuBrule and his colleague withdrew a quarterly management fee from the fund. DuBrule knew or was reckless in not knowing that they inflated the value of the fund’s assets. By using the unsupported and inflated value of the fund to calculate the management fees, DuBrule knew or was reckless in not knowing that they were withdrawing significantly more than the .5 percent maximum quarterly fee,

based upon the true and accurate value of assets in the fund. As a result, DuBrule and his colleague withdrew $141,632 of excess fees from the fund, which came directly from what remained of the capital accounts of the fund’s investors. FINRA found that despite knowing that a member of the firm’s staff had forged a significant but unknown number of Deposit Securities Request forms and caused numerous unregistered penny stocks to be deposited into firm customer accounts absent supervisory review, DuBrule failed to conduct any investigation to determine the scope of the forgeries and unsupervised penny stock trading.

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 John Warren DaBrule’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.

In July 2014, FINRA announced that INTL FCStone Securities Inc. submitted a Letter of Acceptance, Waiver and Consent in which the firm was censured, fined $70,000, ordered to pay $62,297.13, plus interest, in restitution to customers, and required to revise its Written Supervisory Procedures. Without admitting or denying the findings, the firm consented to the sanctions and to the entry of findings that it failed to contemporaneously or partially execute customer limit orders in over the counter securities after it traded each subject security for its own market-making account at a price that would have satisfied each customer’s limit order. The findings stated that the firm’s supervisory system did not provide for supervision reasonably designed to achieve compliance with respect to the applicable securities laws and regulations, and FINRA rules, concerning customer limit order protection.

In July 2014, Blackrock Capital LLC submitted a Letter of Acceptance, Waiver and Consent in which the firm was censured, fined $50,000 and required to comply with undertakings and revise the firm’s Written Supervisory Procedures. Without admitting or denying the findings, the firm consented to the sanctions and to the entry of findings that it charged its customers $60.50 on separate purchase or sale transactions in addition to or in place of a designated commission charge.

The findings stated that the firm characterized the charge on customer trade confirmations as “miscellaneous” and/or as an “additional fee.” A substantial portion of the $60.50 charge was not attributable to any specific cost or expense the firm incurred or performed in executing each transaction, or determined by any formula applicable to all customers. A substantial portion of the charge represented a source of additional transaction-based remuneration or revenue to the firm, and was effectively a minimum commission charge. By designating the charge on trade confirmations as “miscellaneous” and/or as an “additional fee” in addition to or in place of a designated commission charge, the firm mischaracterized and understated the amount of the total commissions the firm charged.

In June 2014, FINRA announced that Dawson James Securities, Inc. submitted a Letter of Acceptance, Waiver and Consent in which the firm was censured, fined $75,000, and required to revise its Written Supervisory Procedures.

Without admitting or denying the findings, the firm consented to the sanctions and to the entry of findings that the firm’s Written Supervisory Procedures failed to provide for one or more of the four minimum requirements for adequate Written Supervisory Procedures in several subject areas, including registered representatives’ disclosure of potential conflicts of interests to clients; registered representatives’ trading in the opposite direction of solicited customer transactions; sales practice concerns, including unauthorized trading, suitability, excessive trading and free-riding; concentrations of securities in clients’ accounts; sharing of profits or losses in clients’ accounts; wash sales; coordinated trading; marking the open and marking the close; cancel-rebill transactions in clients’ accounts; and the review of registered representatives’ electronic communications.

The findings also stated that the firm failed to investigate numerous red flags relating to a registered representative’s activities. The firm failed to enforce its Written Supervisory Procedures, which specified that all electronic correspondence, whether incoming or outgoing, would be reviewed on a daily basis. The firm failed to ensure that its head trader was reasonably carrying out his delegated supervisory responsibilities relating to proprietary trading, trade reporting, clock synchronization, short sale compliance, compliance with the Manning Rule, mark ups and mark downs, and compliance with inventory guidelines.

On June 16, 2014, FINRA announced that it had fined Merrill Lynch, Pierce, Fenner & Smith, Inc. $8 million for failing to waive mutual fund sales charges for certain charities and retirement accounts. FINRA also ordered Merrill Lynch to pay $24.4 million in restitution to affected customers, in addition to $64.8 million the firm has already repaid to disadvantaged investors.

Mutual funds offer several classes of shares, each with different sales charges and fees. Typically, Class A shares have lower fees than Class B and C shares, but charge customers an initial sales charge. Many mutual funds waive their upfront sales charges for retirement accounts and some waive these charges for charities.

Most of the mutual funds available on Merrill Lynch’s retail platform offered such waivers to retirement plan accounts and disclosed those waivers in their prospectuses. However, at various times since at least January 2006, Merrill Lynch did not waive the sales charges for affected customers when it offered Class A shares. As a result, approximately 41,000 small business retirement plan accounts, and approximately 6,800 charities and 403(b) retirement accounts available to ministers and employees of public schools, either paid sales charges when purchasing Class A shares, or purchased other share classes that unnecessarily subjected them to higher ongoing fees and expenses. Merrill Lynch learned in 2006 that its small business retirement plan customers were overpaying, but continued to sell them more costly shares and failed to report the issue to FINRA for more than five years.

Merrill Lynch’s written supervisory procedures provided little information or guidance on mutual fund sales charge waivers. Even after the firm learned that it was not providing sales charge waivers to eligible accounts, Merrill Lynch relied on its financial advisors to waive the charges, but failed to adequately supervise the sale of these products or properly train or notify its financial advisors about lower-cost alternatives.

In concluding this settlement, Merrill Lynch neither admitted nor denied the charges, but consented to the entry of FINRA’s findings.