Why are investors hesitant to bring claims? Public Investor Foundation Video: "Trust Me!?"

On November 18, 2016, the Public Investors Arbitration Bar Association ("PIABA") Foundation posted a video that uses the recent Wells Fargo scandal to highlight that conflicts of interest are a root cause of many financial downturns and bad investment recommendations.  

The video features victims as well as many securities arbitration attorneys who explain why investors are hesitant to hold their brokers responsible for bad investment recommendations and fraud: 

Reason #1: Investors Blame Themselves.

Reason #2: Advertising Cultivates Trust.

Reason #3: Investors Do Not Understand their Legal Rights

The bottom line:  Investors who suspect that they have a problem should seek out an attorney in the experienced representing investors.  

Important First Circuit U.S. Court of Appeals Decision on Auction Rate Securities

On November 21, 2016, the U.S. First Circuit Court of Appeals issued an interesting and important securities decision involving state and federal securities fraud claims against Bank of America Securities (now known as Merrill Lynch, by merger).  The claims boils down to an allegation that Bank of America fraudulently sold tens of millions of dollars of auction rate securities ("ARS") to a large customer, Tutor Perini Corporation.

The decision provides a primer on ARS, risks associated with them, and what Bank of America knew (and when) about ARS.  The decision contains a great deal of nuanced discussion about risk disclosures, reliance, and other elements of securities fraud claims (and defenses).

Tutor Perini has a few more hoops to jump through, but should get its chance to present its claims to a jury, hopefully sometime in 2017 (in a case it filed in 2011, judging by the docket number).

FINRA Contemplates Creation of Fund for Unpaid Arbitration Awards

The Financial Industry Regulatory Authority (FINRA) is considering creating a fund to be used for unpaid arbitration awards. As it stands, some investors do not recover arbitration awards.

According to FINRA News, a study done by the Public Investors Arbitration Bar Association revealed that in 2013 alone a total of $62 million in awards went unpaid—about one in three awards. The Wall Street Journal found that more than $34 million of arbitration awards made to investors in 2014 remain unpaid, or 15% of the total awards granted that year. Of the awards granted to investors in the five years through 2014, almost $213 million, or 13% of overall awards, remain unpaid. A proposal aimed at solving this problem would require FINRA members to pay annual dues into a pool, amounting to about $100 per broker, to help compensate the award winners.

The fund may encourage additional arbitration claims, according to Nasdaq.com, since investors have little incentive to pursue claims that are uncollectable and securities lawyers may refuse to represent fraud victims when there is no chance of collecting from bankrupt firms or brokers.

Rising Cost of Universal and Variable Universal Life Insurance: Legal and Other Options

Many consumers are learning the hard way that life insurance bought years ago is much more expensive and more risky than anticipated.

The Wall Street Journal reported here that a number of major insurers are "breaking a long-standing industry taboo of raising rates on life-insurance policies."   According to the Journal, tens of thousands of people have been notified that they face rising costs, from single digits to as much as 200%.  

Fine print buried in the policies gives insurers the right to raise costs, subject to certain limitations. 

That fine print typically does not, however, protect persons who sell insurance from claims of fraud or misrepresentation.  For those policies that qualify as securities, the fine print does not exempt persons selling securities from their obligations under federal and state securities law.  Nor does the fine print exempt registered representatives and financial planners from their fiduciary obligations, including to act only in the best interest of customers.

To explore the options, consumers facing bad insurance outcomes should get a second (or third) opinion from an independent insurance or financial consultant -- there are many -- who can look over the policy, information on the performance of the policy over time (so-called insurance illustrations) and consult on options. 

 

In doomsday scenarios, the consumer may have no real choice but to drop the policy -- allowing it to lapse at zero value.  The consumer ends up without insurance and loses all of the money paid into the policy. That result may be a red flag for bad financial advice.

 

Fortunately, there are a range of policy rescue options available in many circumstances, cogently summarized here.  In assessing the options, financial and tax consequences must be considered carefully.  Those options include: 

• adjusting the policy (the policy terms are often flexible, within limitations);
• changing to a new policy or other type of investment (e.g., an annuity);
• surrendering (i.e., cashing out) the policy;
• selling the policy (a life settlement)

To explore the options, consumers facing bad insurance outcomes should also consider a consultation with legal counsel experienced in pursuing insurance related legal claims. 

Entities Mount Legal Challenge to Labor Fiduciary Rule in Federal Court

As we posted earlier, the U.S. Department of Labor, which regulates tax-advantaged retirement savings accounts, is holding more financial advisors to a "fiduciary standard" that requires financial advisors to put clients' best interests ahead of profits.

Although the Rule will take effect in part on April 2017, with full implementation in January 2018, there are already legal challenges to it.

According to BusinessWire, various entities led by the U.S. Chamber of Commerce filed a lawsuit in federal court challenging the Department of Labor’s fiduciary rule for brokers and registered investment advisers serving Americans with Individual Retirement Accounts (IRAs) and 401(k) plans.

The CEOs of several of the above plaintiffs issued a statement claiming “support for the creation of a uniform best interest–or fiduciary–standard of customer care for financial professionals providing personalized investment advice to retail investors.” But they objected to the length and content of the Department of Labor’s rule and claimed that the Rule would limit the options and guidance provided by advisors to retirement savers.

Among other things, in the Complaint, the Plaintiffs assert that the Rule:

• would “upend” “well-developed regulatory framework, with harmful consequences for retirement savers, small businesses, and tens of thousands of businesses . . . that provide retirement advice, products, and services,”
• “will limit consumer choice by forcing those who need retirement investment assistance to obtain it only by entering a fiduciary relationship, and bearing the accompanying costs, or to forgo it entirely,” and that
• “small businesses in the United States will be hampered in their ability to maintain retirement plans for their workers.“

This litigation was not unexpected, as InvestmentNews reports. The Labor Department has said it expected legal challenges over the rule and is confident that it will prevail in court.

Labor Department Sets New Fiduciary Standard for Retirement Advice

The U.S. Department of Labor, which regulates tax-advantaged retirement savings accounts, is holding more financial advisors to a "fiduciary standard," which requires financial advisors to put clients' best interests ahead of profits. A new set of rules regulates any investment advice that is a recommendation to a plan, plan fiduciary, plan participant and beneficiary and IRA owner for a fee or other compensation, as to the advisability of buying, holding, selling or exchanging securities or other investments, including recommendations as to the investment of securities or other property after the securities or other property are rolled over or distributed from a plan or IRA, recommendations as to the management of securities or investment property, including recommendations on investment policies or strategies, portfolio composition, selection of other persons to provide investment advice/investment management services, selection of investment account arrangements and recommendations with respect to rollovers, transfers, or distributions from a plan or IRA.

Until now, financial advisors were subject to a fiduciary standard on an ad hoc basis, depending on state law, and when registered as investment advisors with the SEC. Many brokers and other self-described financial advisors are held only to a “suitability standard,” under which they need only make investment recommendations that are suitable for their clients, but not necessarily the best option.

Highlights of the rule include:

• Financial brokers must now act in clients' "best interest" when giving retirement investment advice. 
• Firms must ban financial incentives for advisers not to act in the client's best interest. 
• Firms must disclose compensation arrangements on a webpage and by making sure customers are aware of their right to all fee information. 
• Firms and advisors may continue receiving the most common forms of compensation for offering investment advice to retail customers and small-plan sponsors. The rule also does not limit the types of assets they can invest in. 
• Firms are allowed to sell insurance products like variable and indexed annuities under the best interest rule. 
• The rule allows firms and their advisers to recommend proprietary products. 
• Education is not included in the definition of retirement investment advice, allowing advisers to offer basic information without acting as fiduciaries. 
• Under the rule, financial advisers may communicate with potential clients before signing a contract. However, firms must eventually tell new clients in writing that they are acting in their best interest, and any advice given before a contract is signed must be covered by the contract and meet the best interest standard. 

Firms have a year or more to adjust to the new rule. It will take effect in part on April 2017, with full implementation in January 2018.

The Problem of Unpaid Securities Arbitration Awards

The big players in the securities industry have deep pockets and can afford to settle or pay securities arbitration awards when the lose.  But a recent report shows that there a plenty of small brokers who either can't or won't meet their obligation to pay customers harmed by their misconduct.  Unlike other licensed professionals brokers are not required to carry insurance and their firms may have surprisingly little cash or other assets available to satisfy claims.

A recent report by the Public Investors Arbitration Bar Association (PIABA) reveals that nearly $1 out of every $4 awarded to customers in arbitration went unpaid in 2013  The report describes the scope of the problem, provides context, and reviews and recommends solutions.  Brokers who fail to pay are barred from the industry, but the PIABA report suggests that regulators should not tolerate the status quo.  The problem has been around too long and hurts too many investors.  It concludes:

 “Allowing one in three awards to go unpaid is unconscionable.  FINRA’s cures:  barring from the industry those who fail to pay awards, and notifying claimants that they can pursue actions in court against former FINRA members, have failed to cure, or put a meaningful dent in, the problem.  Steps must therefore be taken to put forth a new division of FINRA to craft and administer a National Recovery Pool.”

Per PIABA, a small per-broker fee would quickly generate a large fund, which could be used to reimburse investors unable to collect on their awards.

FINRA has issued figures suggesting that the problem is not quite so grave.  According to a Wall Street Journal article, FINRA's figures put the prevalence of unpaid awards at about 15%.   FINRA continues to "study" the problem.  That is little solace to investors who obtain an award, often at significant legal expense and cost, but find that the award is noncollectable.

Expelled Stockbrokers vs. Disbarred Lawyers

Earlier this year, USA Today reported that FINRA suspended a record number of brokers in 2015, but the FINRA chairman, Richard Ketchum, responsible for the crackdown is retiring. 

A review of FINRA statistics, including data on investor protection, shows that FINRA got results more or less on par with 2014.  In 2015, 492 brokers were barred from Wall Street. That compares with 481 brokers barred in 2014, only eleven fewer.  In 2015 FINRA levied fines of $93.9 million.  That compares with $134 million in fines in 2014.  The numbers of firms expelled from 2010 to 2014 varied between 14 and 30.

Just to be fair to registered representatives -- and because there are bad apples in any profession -- I took a look at how many lawyers have been disbarred for the sake of comparison.

In 2011, according data reported in an American Bar Association (ABA) article, 652 lawyers were involuntarily disbarred nationwide, up from 503 in 2010. By comparison, 329 brokers were expelled in 2011 up from 288 brokers in 2010.  The Boston Globe reported that in 2011 there were about 1.22 million lawyers in the United States, which matches ABA data.  This compares with about 630,000 brokers in 2011, according to FINRA data. 

The conclusion from this very unscientific survey, looking at 2011 only, lawyers were suspended at about the same rate as stockbrokers! No further comment.

e-Mediation!

Anyone who has done much securities arbitration work knows about FINRA's mediation program, and of course mediation can be arranged directly by the parties without involving FINRA.

But what about mediation of discovery disputes?  This emerging field invokes mediation for use in discovery of electronically stored information, sometimes referred to as e-Mediation.  The potential benefits include reducing motion practice and fights over discovery, particularly over electronically stored information.  That can save time and money.  Such mediation can be issue based, not time-based to control costs. 

An e-Mediation process to  is worth a look and could benefit all sides (and the court or arbitration panel) under the right circumstances.