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Category Archives: FINRA News

FINRA Sanctioned Four Brokerage Firms for Unsuitable Leveraged & Inverse ETF Transactions

The Financial Industry Regulatory Authority (“FINRA”) sanctioned Citigroup Global Markets Inc., Morgan Stanley & Co., LLC, UBS Financial Services, and Wells Fargo Advisors, LLC (the “firms”), for improper transactions involving leveraged and inverse exchange-traded funds.  FINRA ordered the firms to pay the following: Citigroup, $2 million fine and $146,431.00 in restitution, Morgan Stanley, $1.75 million fine and $604,584 in restitution, UBS, $1.5 million fine and $431,488.00 in restitution, and Wells Fargo, $2.1 million fine and $641,489 in restitution.

According to FINRA, leveraged and inverse ETF’s have particular risks not found in traditional ETF’s.  Most of these products “reset” daily, meaning that they are designed to achieve their stated objectives on a daily basis.  FINRA’s investigation revealed that each firm sold billions of dollars of these non-traditional EFT’s.  The firms exposed investors to risks and unpredictability factors inherent in these products, especially when held over a period longer than a day.

FINRA’s investigation found that from January 2008 through June 2009, the firms did not have adequate supervisory systems to monitor the sales of the products and failed to conduct proper due diligence regarding the risks and features of inverse ETF’s.   Furthermore, the firms’ registered representatives made unsuitable recommendations of these products to some customers with conservative investment objectives and/or risk profiles.  FINRA said, “[t]he added complexity of leveraged and inverse exchange-traded products makes it essential that brokerage firms have an adequate understanding of the products and sufficiently train their sales force before the products are offered to retail customers.  Firms must conduct reasonable due diligence and ensure that their representatives have an understanding of these products.”

By accepting the settlement, the firms neither admitted nor denied the charges.

FINRA & SEC Fined Goldman, Sachs $22 Million for Inadequate Policies & Procedures in Research “Huddles”

The Financial Industry Regulatory Authority (“FINRA”) in conjunction with the Securities and Exchange Commission (“SEC”) fined Goldman, Sachs & Co. $22 million for failure to establish adequate policies to prevent the misuse of material, nonpublic information about upcoming changes to its research.

According to the investigation, in 2006 Goldman implemented a formalized business process known as “Trading Huddles.” These were internal weekly meetings attended by equity research analysts, traders, and on occasion, may have included clients, to discuss their top short-term trading ideas. In addition to Trading Huddles, in January 2007, Goldman established a program known as the Asymmetric Service Initiative (ASI) in which analysts shared information and trading ideas from the huddles with Goldman’s high priority clients. ASI clients were typically large hedge funds and other institutional investors. These programs created significant risks that material nonpublic information could be disclosed to ASI clients, prior to its release to the general public. Goldman’s failure to properly supervise these programs gave ASI clients an unfair advantage of trading in advance of research ratings and other changes.

The SEC found that the Trading Huddles and the ASI programs were created to improve the performance of the firm’s traders and generating increased commission revenues from ASI clients. Furthermore, FINRA alleged that Goldman made clear to analysts the importance of the programs to their performance evaluations which would impact their compensation.

The SEC stated, “[f]irms must understand that they cannot develop new programs and services without evaluating their policies and procedures,” and that “Goldman failed to implement policies and procedures that adequately controlled the risk that research analysts could preview upcoming ratings changes with select traders and clients.” Both the Trading Huddles and the ASI programs were discontinued in 2011.

The SEC and FINRA sanctions come 10 months after Massachusetts regulators fined Goldman for the same practice.

FINRA Fines Citi International Financial Services for Excessive Markups and Markdowns

The Financial Industry Regulatory Authority (“FINRA”) fined Citi International Financial Services, LLC, a subsidiary of Citigroup, Inc., for charging excessive markups and markdowns on corporate and agency bond transactions.

FINRA’s investigation concluded that from July 2007 through September 2010, Citi International charged markups or markdowns between 2.73% and 10%, which were excessive given market conditions, the cost of executing the transactions, and the value of the services rendered to its customers, among other factors.  FINRA stated “[t]he markups and markdowns charged by Citi International were outside of appropriate standards for fair pricing in debt transactions.”  FINRA’s Rules of Fair Practice established 5% as a reasonable guideline in markups and markdowns.  FINRA fined Citi International $600,000, and ordered it to pay more than $648,000 in restitution and interest to its customers.  According to FINRA, the firm’s supervisory procedures in reference to fixed income transactions had significant deficiencies.

By accepting the settlement, Citi International neither admitted nor denied the charges.

FINRA Charges Charles Schwab & Co. with Violating its Customers’ Litigation Rights

The Financial Industry Regulatory Authority (“FINRA”) filed a complaint against Charles Schwab & Company for violating FINRA rules when the firm amended its Customer Account Agreements to include (1) a Waiver of Class Action or Representative Action provision, and (2), language requiring customers to waive their right to bring or participate in class actions against Schwab.

According to FINRA’s complaint, Schwab mailed improper contractual amendments to over 6.8 million clients.  FINRA alleged that Schwab’s “violative conduct is ongoing”, and that it will “likely lead millions of Schwab customers who have received the account agreements to incorrectly believe they don’t have the ability to bring or participate in class actions.”

FINRA stated that both provisions violate FINRA Rule 2268(d)(1), which prohibits member firms from placing any condition in a pre-dispute arbitration agreement that “limits or contradicts the rules of any self-regulatory organization.”  Additionally, FINRA alleges Schwab’s class action waiver is a condition that contradicts the FINRA Code of Arbitration Procedure for Customer Disputes, Rule 12204(d), which addresses how customers can bring and participate in class actions against member firms.

In response, Schwab filed a lawsuit in the U.S. District Court for the Northern District of California in San Francisco, where the company is based, against FINRA.  Schwab alleged that it added the waiver provision to all of its customers account agreements in September 2011, following the Supreme Court’s decision in AT&T Mobility LLC vs. Concepcion.  In a statement, Schwab declared that it is confident that the court will find FINRA’s action is barred by the Federal Arbitration Act.  Moreover, the company says that it is “committed to resolving customer disputes fairly and efficiently without litigation through its internal customer advocacy program or by use of FINRA Dispute Resolution.”

FINRA Warns Investors of Email Hack Attacks

The Financial Industry Regulatory Authority (“FINRA”) has received an increasing number of complaints from investors whose funds have been stolen by fraudsters.  Hackers access investors’ email accounts and later send email instructions to the brokerage firms, seeking to transfer money from brokerage accounts.

FINRA’s Alert warns investors about the potential financial consequences of a compromised email account, and provides tips for safeguarding assets.  Simultaneously, FINRA issued a Regulatory Notice advising Members of the risks associated with accepting instructions to transmit or withdraw funds via email.  According to FINRA, brokerage firms should reassess their policies and procedures to ensure they are adequate to protect customer assets from these risks. FINRA stated, “Investors who suspect that their email account has been hacked should immediately notify their brokerage firm and other financial institutions, and anyone who suspects they have been defrauded should file a complaint with FINRA.”

This law firm was recently consulted by a client whose account was hacked.  When the client complained to the brokerage firm, the firm refused to reimburse the client, blaming the client for the hack attack.  The client’s only recourse was initiating a FINRA arbitration.

Merrill Lynch to pay $1 Million for Failure to Arbitrate Disputes with Employees

The Financial Industry Regulatory Authority (FINRA) announced today that it has fined Merrill Lynch, Pierce, Fenner & Smith $1 million for failing to arbitrate disputes with employees relating to retention bonuses.

FINRA’s investigation found that on January 2009, when Merrill Lynch merged with Bank of America, an Advisor Transition Program (ATP) was implemented.  Under the ATP, Merrill Lynch would pay a lump sum retention payment to certain high producing registered representatives.  The ATP was structured as an up-front forgivable loan to entice Merrill Lynch’s high producing brokers to stay with the firm after the merger.

In January 2009, Merrill Lynch paid $2.8 billion in retention bonuses structured as loans to over 5,000 registered representatives.  In most cases, the loans were set up to be forgiven by Merrill Lynch on an annual basis.  If the financial advisor stayed with the firm through the duration of the forgiveness period of the loan, the broker would not have to repay the loan.  If, however, the financial advisor resigned from the brokerage firm, or was terminated, before the loan was forgiven, the broker was contractually obligated to repay the outstanding amounts owed on the loan and the Merrill Lynch could move to collect the outstanding amount still owed.

According to FINRA, Merrill Lynch designed the ATP programs so it could avoid arbitration proceedings when seeking to collect amounts due under the ATP loans.  Merrill Lynch achieved this by stating that the loans were being made to the registered representatives by a non-registered affiliate of Merrill Lynch, when in fact, the funding for the ATP loans came from Merrill Lynch.  The program was structured to allow Merrill Lynch to pursue collection of the amounts under the loans in expedited proceedings in New York state court.  FINRA rules require that disputes between firms and associated persons be arbitrated if they arise out of the business activities of the firm or associated person.  Between January and November 2009, Merrill Lynch filed over 90 of these actions in New York state court, violating FINRA Rule 2010.

Brad Bennett, FINRA Executive Vice President and Chief of Enforcement, said, “Merrill Lynch specifically designed this bonus program to bypass FINRA’s rule requiring firms to arbitrate disputes with employees, and purposefully filed expedited collection actions in New York State courts and denied those registered representatives a forum to assert counterclaims.”

Credit Suisse Securities Fined $1.75 Million

On December 27, 2011, the Financial Industry Regulatory Authority (FINRA) fined Credit Suisse Securities, LLC, $1.75 million for violating Regulation SHO and failing to properly supervise short sales of securities and marking of sale orders.

By definition, a short sale is the selling of a security that the seller does not own, or any sale that is completed by the delivery of a security borrowed by the seller.  Short sellers assume that they will be able to buy the stock at a lower amount than the price at which they sold short.  Regulation SHO requires a broker or dealer to have reasonable grounds to believe that the security could be borrowed and available for delivery before accepting or effecting a short sale order. Requiring firms to obtain and document this “locate” information before the short sale is entered reduces the number of potential failures to deliver in equity securities. In addition, Reg SHO requires a broker or dealer to mark sales of equity securities as long or short.

FINRA found that for at least the period from June 2006 through December 2010, Credit Suisse released millions of short sale orders to the market without reasonable grounds to believe that the securities could be borrowed and delivered.  In addition, Credit Suisse mismarked tens of thousands of sale orders in its trading systems. The mismarked orders included short sales that were mismarked as “long,” resulting in additional violations of Reg SHO’s locate requirement.

FINRA found that Credit Suisse’s supervisory framework over its equities trading business was not reasonably designed to achieve compliance with the requirements of Reg SHO and other securities laws, rules and regulations.  Due to the company’s supervisory failures, many violations were not detected or corrected until after FINRA’s investigation.

Brookstone Securities, Inc., fined for making misrepresentations, omissions, unsuitable investments

FINRA has taken disciplinary action against Brookstone Securities, Inc and five of its agents for making misrepresentations or omissions of material fact.  Additionally, FINRA found that registered representatives recommended and effected the sale of securities without having a reasonable basis to believe that the transactions were suitable given the customers’ financial circumstances and conditions, and their investment objectives.

FINRA’s investigation found that Richard J. Buswell and Herbert S. Fouke, while registered with Brookstone, made misrepresentations and omissions of material fact in connection with the sale of investments in Advanced Blast Protection, Inc.  The registered representatives guaranteed customers that they would receive back their principal investment plus returns.  Additionally, they failed to inform investors of risks associated with the investments and did not discuss the risks outlined in the private placement memorandum (PPM).  The PPM stated that the investment was speculative, involved a high degree of risk and was only suitable for investors who could risk losing their entire investment.  In addition, Buswell exercised discretion in the accounts of customers without prior written authorization, made unsuitable recommendations to customers with conservative investment objectives, and made excessive use of margin.

FINRA found that Anthony L. Turbeville, acting as Chief Operating Officer (COO), and David W. Locy, as President, failed to reasonably supervise Buswell and failed to follow up on “red flags”.  FINRA stated that Brookstone failed to establish, maintain and enforce reasonable supervisory procedures in four areas: (1) due diligence; (2) prevention and detention of unsuitable recommendations resulting from excessive trading, excessive use of margin and over concentration; (3) the new account application process; and (4) the reviews of customer accounts required by the procedures.  Despite numerous violations and red flags, the firm took no steps to contact customers or place the representative on heightened supervision, although it later placed limits only on the representative’s use of margin.

FINRA stated that Mark Mercier was the Chief Compliance Officer and was responsible for ensuring that the offering of Advanced Blast Protection, Inc. complied with due diligence requirements, but performed only a superficial review and failed to complete the steps required by the firm’s Written Supervisory Manuals.  The findings also stated that the firm failed to establish, maintain and enforce supervisory procedures reasonably designed to prevent violations of NASD Rule 2310 regarding suitability.

FINRA accepted an offer of settlement, in which the firm will pay a fine of $200,000.00.  David W. Locy, Mark M. Mercier and Anthony L. Turbeville were sanctioned with suspensions and additional fines.

Wells Fargo to Pay Restitution to Affected Customers

On December 15, 2011 the Financial Industry Regulatory Authority (FINRA) announced that it fined Wells Fargo Investments, LLC, $2 million for unsuitable sales of reverse convertible securities to elderly customers.  In addition, the firm is required to pay restitution to customers who did not receive UIT sales charge discounts and to provide restitution to certain customers found to have unsuitable reverse convertible transactions.

Also known as “revertible notes” or “reverse exchangeable securities”, reverse convertibles are interest-bearing notes in which repayment of principal is tied to the performance of an underlying asset, such as a stock or a basket of stocks. Depending upon the reverse convertible’s specific terms, an investor risks sustaining a loss if the value of the underlying asset falls below a certain level at maturity, or during the term of the reverse convertible.

In addition to the reprimand, FINRA filed a complaint against Alfred Chi Chen, the former Wells Fargo registered representative responsible for recommending and selling the unsuitable reverse convertibles, and making unauthorized trades in several customer accounts, including accounts of deceased customers.  Chen recommended hundreds of unsuitable reverse convertible investments to 21 clients, fifteen of whom were over 80 years old.  These transactions exposed investors to risk inconsistent with their investment profiles, and resulted in overly concentrated reverse convertible positions in their accounts.

FINRA also found that Wells Fargo had insufficient systems and procedures to monitor for unsuitable reverse convertibles sales.  As a result of these deficiencies, the firm failed to provide certain eligible customers with breakpoint and rollover and exchange discounts in their sales of UIT’s.  UIT’s offer sales charge discounts on purchases that exceed certain thresholds (“breakpoints”) or involve redemption or termination proceeds from another UIT during the initial offering period. Between January 2006 and July 2008, Wells Fargo failed to provide certain eligible customers with these “breakpoint” and “rollover and exchange” discounts.

Former Securities America Representative Sanctioned for Not Disclosing Outside Businesses

FINRA sanctioned a former Securities America representative, Frank A. Gutta, for failing to disclose that he owned and operated a Florida corporation, Business Investors, Inc. (BII).  Mr. Gutta participated in numerous private securities transactions without notice or approval from Securities America, his employer at the time.

FINRA’s investigation found that during the period from September 2003 through at least January 2008 he operated Business Investors, Inc., without any notice to SAI.  He offered and sold BII promissory notes to 19 individuals, nine of which were SAI customers, for proceeds of approximately $2.9 million.  The proceeds were used to finance the creation and/or operation of various small businesses, including gas stations and a dollar store.  The BII promissory notes were not sponsored or approved by SAI.   Additionally, Mr. Gutta recommended BII Promissory notes to at least one of his SAI customer without having a reasonable basis to believe that the investment was suitable for her.

FINRA imposed a two-year suspension from association with any FINRA member in any capacity upon Mr. Gutta.  Since Mr. Gutta was granted a discharge in bankruptcy on June 11, 2010, no monetary sanctioned was placed.