Tag Archives: unsuitable investments

Investment Fraud of Marlon Cole, Legend

We are investigating the potential investment fraud actions of Marlon Cole of Legend Securities.  Please call 1-866-817-0201 for a free and confidential consultation with a private attorney specializing in the representation of investors.

Mr. Marlon Cole has also Spartan Capital, Fordham Financial, E.J. Sterling and Blackbook Capital.  He has recently been the subject of scrutiny by securities regulators.  He recently entered into a settlement agreement with FINRA, one of these regulators where Cole neither admitted nor denied the allegations against him.

The allegations against Cole are that from April 2013 through October 2014, while Cole was associated with Legend Securities, FINRA alleges that Cole engaged in excessive trading, unsuitable trading, and unauthorized trading. Specifically, Cole engaged in excessive trading in the investment accounts of six senior citizen investors that had trusted Cole as their broker.

One way to prove that an account was traded excessively is through the cost/equity ratio, the level of costs of an account per year as a percentage of the value of the account.  Turnover, the number of times the account was sold and purchased, also serves to measure illicit activity.  During the Relevant Period, Cole’s trading generated cost-to-equity ratios ranging from 29.82% to 589% and turnover rates ranging from 6.01 to 63.39. Such costs and turnover rates were inconsistent with the objectives of the senior investors, yet generated steady commissions for Cole.

Under FINRA Rule 2111, a registered representative must have a reasonable basis to believe, that a recommended securities transaction or investment strategy is suitable for a customer. Relevant to Cole’s trading here, the Rule prohibits excessive trading and trading that lacks a reasonable basis in light of a customer’s investment objectives and risk tolerance.

Rule 2111 also requires that where a representative controls an account, a series of recommended transactions, even if suitable by themselves, is not excessive and unsuitable for the customer when taken together in light of the customer’s investment profile.

When the costs in an account are so high that there can be no expectation of a reasonable return, no rational investor would knowingly agree to them.   That is what happened in the present matter.  The six customers here had investment objectives of growth and income or speculation. The sales charges for the six customers were in the form of both commissions and markups and mark-downs.  Both were excessive in light of the profiles.

This is not the first time Cole has been alleged to have engaged in securities fraud.  In 2011, Cole entered into a similar settlement with the Alabama Securities Commission.  That settlement centered on allegations that Cole “engaged in dishonest or unethical practices” including unauthorized trading in a customer account.

 

Losses with Stuart Pearl of Ameriprise

If you have been the victim of unauthorized securities trades or been recommended unsuitable securities by your financial advisor, please call 1-866-817-0201.  We are interested to investors suffering losses with Stuart Pearl.  Mr. Pearl has recently entered into a regulatory settlement where he neither admits or denies the following:

investingstockphoto 1On May 14, 2015, Stuart Pearl used discretion to liquidate positions in six different securities with a total principal amount of approximately $20,000, on behalf of a senior investor. Although the investor had authorized Pearl to execute these liquidations in discussions that took place prior to May 14, 2015, Pearl failed to speak with the investor again on May 14, 2015, to confirm the investor’s authorization to make these sales.

Pearl’s use of discretion as described was without prior written authorization from the investor, and without prior written acceptance of the account as discretionary from his firm, Ameriprise. By virtue of the foregoing, Pearl violated NASD and FINRA rules.

In June 2010, two other customers of Pearl, who were retired and both in their 70s, opened a joint brokerage account with him at Ameriprise. The new account documentation provided that securities could be purchased on margin, a process or lending money to buy securities that involves a great deal of risk.

At the time they opened their account, the investors had an investment objective of “growth and income,” a risk tolerance of”conservative/moderate” and limited experience with trading on margin. They also had a combined annual income of $30,000, a liquid net worth of$500,000 and investable funds of $400,000.

Between September 2011 and March 2012, Pearl recommended that the investors purchase four securities valued at approximately $122,000 on margin. Prior to making those purchases, the customers bad no margin debt balance in their account. As a result of those investments, the investors experienced a significant increase in their margin debt balances in relation to their available funds and their account was subject to seven margin calls during the relevant period, where the parties must deposit funds into their account to pay the outstanding loan or risk liquidation of their portfolio.  The recommendation to purchase such investments utilizing margin was unsuitable and in violation of FINRA and NASD rules prohibiting unsuitable recommendations.

Ameriprise had a duty to oversee the transactions of Pearl and should be responsible for the lack of supervision given Pearl.

More information on this matter can be found in the October 10, 2017 issue of InvestmentNews.

WFG Investor Loss Recovery

WFG has recently been identified and fined as the result of allegations that its supervision of its brokers is lacking.  To speak to an attorney to discuss your rights please call 1-866-817-0201 for a free and confidential consultation.

FINRA asserts that during 2012 and 2013, senior personnel at WFG were aware of red flags that one of its brokers in its San Antonio office, who FINRA only identifies as “MB,” was engaged in unsuitable trading with respect to low-priced securities, which generally carry a high level of risk. Notwithstanding their knowledge of these red flags, the Firm consistently failed to take adequate supervisory steps to ensure that MB’s sales of low-priced securities to his customers were suitable.

Unsuitable investments are investments a broker recommends that are either more aggressive than an investor’s risk tolerance, inconsistent with an investor’s objectives, too risky given an investor’s financial condition, too complicated for an investor given the investor’s lack of investment sophistication, or otherwise inconsistent with the wants and needs of an investor.  There are many incentives that a broker may have for recommending unsuitable investments, but the most common is that risky investments often pay a higher commission.

Brokerage firms have a duty to ensure that only suitable investments are sold.  FINRA’s action alleges that WFG failed to respond appropriately when it should have been aware that a broker was recommending unsuitable investments.

For instance, in August 2012, the Firm held a meeting at WFG’s headquarters that was attended by senior supervisory and compliance personnel, as well as a supervisor FINRA identifies only as “WG,” MB’s direct supervisor. During this meeting, compliance personnel noted that MB was unsuitably concentrating his customers’ portfolios in low-priced securities. WG was instructed during this meeting not to permit MB or other representatives in the San Antonio branch office to purchase any more positions in a specific security, LB, on behalf of their clients.

WG, however, failed to enforce this directive. In fact, MB continued to sell low-priced securities, including LB, in his WFG and RIA (investment advisory) accounts. The Firm and its personnel also failed to follow up appropriately on red flag information that they learned about MB’s sale practices during this meeting.

ln September 2012, the Firm conducted an inadequate inspection of MB’s branch office in San Antonio. The Compliance Manager assigned to conduct this audit, JA, another supervisor, had participated in the August 2012 meeting. Notwithstanding his knowledge of potential sales practice violations involving low-priced securities, the audit conducted by JA related only to non-sales practice issues, such as the review of change of address requests and a check of controls over the receipt of incoming mail.

During this audit, JA did not review: (1) advisory activity by representatives in this branch office, including MB, (2) trading in low-priced securities, including LB; or (3) suitability of transactions recommended or executed in this branch office. In January 2013, the Firm held another meeting at its headquarters with senior supervisory and compliance personnel, as well as WG and MB. During this meeting, compliance personnel raised continuing concerns about ongoing unsuitable trading in low-priced securities in MB’s accounts and about undisclosed complaints against MB from his time with his previous employer.

Ultimately, FINRA censured the firm and ordered it to pay a $150,000 fine for their supervisory lapses.  Such lapses in supervision can make the firm responsible for other broker misdeeds.  If you suffered a loss, call toll-free 1-866-817-0201.

Demitrios Hallas investment loss

Hallas, a former stockbroker representative at a number of New York City broker-dealers, including PHX Financial, Santander, and Forefront Capital, is alleged by the SEC to have violated the multiple federal securities laws.  Investors should speak to a private attorney about their rights. We at PedersonLaw are currently investigating this matter.  Please call 1-866-817-0201.

The allegations contained in the SEC complaint are as follows:

First, Hallas is alleged to have purchased and sold daily leveraged Exchange-Traded Funds and Notes (ETFs and ETNs) in his customers’ accounts, knowingly or recklessly disregarding that these products were unsuitable for such customers.  Hallas had no reasonable basis for recommending daily leveraged ETFs and ETNs.  This constitutes a violation of the suitability requirement that a broker must only recommend investments that are suitable in light of an investors risk tolerance, objectives and that are within an investors level of sophistication.

Second, Hallas is alleged to have stolen funds from investors.  Under the guise of soliciting funds from one of his customers for investment purposes, misappropriated a total of $170,750 from that customer.

The products in which Hallas invested his customers’ hard-earned savings were daily leveraged ETFs and ETNs, and are characterized by a significant degree of volatility and risk. As alleged in the SEC complaint, these products were unsuitable, and Hallas had no reasonable basis for these recommendations.

ETFs are investment companies and ETNs are unsecured notes. Daily leveraged ETFs and ETNs seek to deliver a multiple, the inverse, or a multiple of the inverse of the performance of an underlying index or benchmark over the course of a single trading day. To accomplish their investment objectives, daily leveraged ETFs and ETNs pursue a range of investment strategies, though the strategies are mostly speculative, and only appropriate for investors willing to take the highest level of risk.

The strategies include swaps, futures contracts, and other derivative instruments. These products are inherently risky, complex and volatile, and are only appropriate for sophisticated, high-risk investors.

Unfortunately, Hallas’s customers were unsophisticated and not suitable for such investments. The investors had limited or no investing experience and their incomes, net worth levels, and assets were modest. “The risk and volatility in daily leveraged ETFs and ETNs was inconsistent with the investment profiles of Hallas’s customers, yet Hallas purchased and sold a total of 179 daily leveraged ETF and ETN positions in their accounts from September 2014 to October 2015.”

Hallas’s investors paid a total of approximately $128,000 in commissions and fees in connection with the purchase and sale of these 179 positions. The net loss across these 179 positions was approximately $150,000.

Hallas purchased and sold 22 different daily leveraged ETFs and ETNs in his customer accounts. These products sought to double or triple the performance, or the inverse of 2 Case 1:17-cv-02999 Document 1 Filed 04/25/17 Page 3 of 17 the performance, of over a dozen different underlying indices, including the S&P 500 VIX ShortTerm Futures Index, an investment based upon a volatility index, as well as certain gold mining, oil and gas and Russian, Chinese and Brazilian stock indices.

Finally, in a what the SEC has described as a “brazen and fraudulent scheme,” Hallas misappropriated $170,750 from an unsophisticated investor, who the SEC describes as “a truck driver with no trading or finance experience and no retirement resources outside of the funds that he provided to Hallas.”  The investor transferred funds to Hallas with the understanding that Hallas would make investments on his behalf; instead, Hallas spent Customer’s A’s funds on personal expenditures – a fact that he concealed from the investor.

A comprehensive article on the deeds of Mr. Hallas can be found in Investmentnews.com.

To speak to a private attorney about the recovery of losses with Mr. Hallas, call 1-866-817-0201 for a free and confidential initial consultation.

Attention Investors of Jeffrey Dragon

FINRA alleges that over a two-year period, Jeffrey Dragon, a registered representative of Berthel Fisher & Co. Financial Services. Inc., generated more than $421,000 in concessions for himself and his firm. at the expense of his customers, by recommending and effecting a pattern of unsuitable short-term trading of unit investment trusts ( UITs ).

Invest photo 2Specifically, between January 1, 2013 and December 31, 2014 (the ‘UIT Period’ ) Dragon recommended to 12 customers – many of whom were seniors, unsophisticated investors, or both – that they liquidate UIT positions that they had held for only a few months, and which they had purchased on Dragon s recommendations, and then use the proceeds to purchase other UITs. Because each UIT purchased carried a new sales load, and because UITs are designed not to be actively traded, Dragon s recommendations were excessive and unsuitable.

Dragon’s recommendations to these customers were further unsuitable. in that he designed his recommendations to prevent his customers’ UIT purchases from qualifying for sales-charge discounts. Despite regularly recommending that customers purchase UITs in amounts that exceeded volume-discount “breakpoints” of $50,000 and $100.000. Dragon routinely structured their investments – by spreading the amounts over smaller purchases and multiple days – in order to avoid reaching those thresholds. By doing so. Dragon sought to increase his concessions at his customers’ expense.

Berthel allowed this activity to occur – and. in fact, profited from it – as a direct result of its inadequate system for supervising UIT trading. Throughout the UlT Period. Berthei’s only regular supervisory review of UIT recommendations and customer activity consisted of manual reviews of daily trade blotters that did not indicate either how long UIT positions had been held before liquidation or the source of funds used to purchase new UITs. Thus, Berthel’s supervisory system was not reasonably designed to prevent short-tenn and potentially excessive UIT trading.

Berthel’s supervisory system was also inadequate because it was not reasonably designed to prevent short-term and potentially excessive trading in mutual funds. As with UlTs. the firm’s supervisory system lacked any methods, reports, or other tools to identify mutual-fund switching or trading patterns indicative of other misconduct between January 1. 2013 and December 31, 2015 (the ‘ Mutual Fund Period’ ).

Likewise, Berthel’s supervisory system was not reasonably designed to censure that the firm’s UIT and mutual-fund customers received all sales-charge discounts to which they were entitled during the UIT Period and Mutual Fund Period, respectively. Instead. Berthel relied 2 on its registered representatives and its clearing firm to determine whether UIT and mutual-fund purchases should receive sales-charge discounts, and conducted no review or supension to determine i f those discounts were applied correctly.

This not only allowed Dragon s breakpoint-manipulation scheme to go unchecked, it also resulted in further injury to Berthel s customers: from 2010 through 2014, Berthel failed to detect that more than 2,700 of its customers’ UIT purchases did not receive applicable sales-charge discounts. As a result, Berthel customers paid excessive sales charges of approximately $667.000, nearly all of which was paid to Berthel and its registered representatives as dealer concessions.

Investment Professionals, Inc. (IPI)

If you have suffered investment losses with Investment Professionals, Inc. (IPI) and believe that it may be due to mismanagement, please call 1-866-817-0201 for a free and confidential attorney consultation.

Invest photo 2IPI has recently agreed to pay a fine to the Massachusetts Attorney General for violations of the suitability rule.  This rule requires a financial adviser to not recommend investments that are of a higher risk than an investor either wants or is financially able to take.  The allegations were that IPI was recommending risky investments to seniors who could not afford to take such risks. Though the action was brought by Massachusetts, the systemic nature is a good indication that such violations are occurring in other states as well.

IPI’s business model is based upon partnering with community banks so that the bank’s existing depository customers can be used to provide revenue to IPI and additional revenue to the bank. Though IPI is based in San Antonio, Texas, it engages in such partnerships around the country.

Networking agreements between IPI and their bank partners reveal a referral program where bank employees of its partner banks refer bank customers to IPI financial advisers for monetary incentives. In exchange for allowing IPI representatives convenient access to bank customers, IPI’ s bank partners receive “rent,” or commonly referred as a kickback, which is a percentage of the sales that IPI representatives earn from selling products at bank branches.

While IPI and their bank partners profit from their networking arrangements, the pervasive sales culture emphasizing and rewarding the volume of production at the expense of compliance with policies and procedures, suitability, and oversight means that certain senior citizen bank customers have been harmed .

As identified in the regulatory complaint, IPI has partnered with the following. banks and credit union in Massachusetts: Eastern Bank, Mutual Bank, East Boston Savings Bank, Edgartown National Bank, The Cooperative Bank, and Homefield Credit Union.  Between January 2014 and June 2016, the top ten IPI representatives working out of Massachusetts community banks received approximately 2,208 customer referals. Approximately forty-five percent ( 45%) of these bank referrals to IPI financial were referrals of semor citizens, those individuals aged 65 or older. Approximately fourteen percent (14 %) of those referred invested in market-linked certificates of deposit (“MLCDs”) and approximately thirty-nine percent (39%) invested in annuities. Eastern Bank, is IPI’s largest partner in Massachusetts. Eight of the top ten highest producing IPI representatives in the stat work at Eastern Bank branches.

IPI’s aggressive sales contests exist against a backdrop of lax supervision from offices located in Texas and Kentucky that management personal at IPI identified as “not adequate.” Although IPI’s own policies and procedures prohibit “activities that are designed to reward sales for a particular financial product or family of products” and prohibit activities that “would only serve as a luxury” to representatives, in 2016 IPI rewarded the top ten percent of the previous year’s highest-producing representatives with a trip to Turks and Caicos. In 2015, IPI held a sales contest approved by IPI’ s President and CEO whereby representatives who achieved sales of products up to $150,000.  This served as motivation to put seniors in inappropriate investments.

Losses with Matthew David Niederbaumer

Please call if you suffered losses with Matthew David Niederbaumer of Huron, South Dakota and employed by Thrivent Investment Management.

Mr. Niederbaumer submitted an AWC, a settlement agreement where a securities broker neither admits but cannot deny fault, in which he was fined $5,000 and suspended from association with any FINRA member in any capacity for 10 business days.

Without admitting or denying the findings, Niederbaumer consented to the sanctions and to the entry of findings that he exercised discretion in executing transactions in connection with the sale and purchase of exchange-traded notes and funds in five of his customer’s accounts. The findings stated that while the customers consented to the transactions, Niederbaumer did not obtain the customers’ prior written authorization to exercise discretion in the accounts, and his member firm did not approve the accounts for discretionary trading.

Part of the concern in this matter is the fact that the trades involved exchange traded notes (ETN).  ETN investments carry a high commission and are high risk.  The possibility for abuse and improper intent is much more likely when such trades result in a commission higher than normal, and the chance that a customer would reject a recommended investment with such a high commission if consulted is greater.

The record of Mr. Niederbaumer’s compiled by FINRA can be found at the following link.

First Financial Equity Corp. Losses

Please call for a free consultation with an attorney if you suffered losses First Financial Equity Corp., particularly if you suffered losses in ETF or annuity investments.

First Financial Equity, a securities brokerage firm headquartered in Scottsdale, Arizona, as identified by FINRA in February 2017, entered in a regulatory settlement with FINRA regulators concerning allegations that financial advisers were receiving excessive commissions and selling unsuitable ETF investments and annuities.  The suit also revealed that systemic problems existed in the supervising of the advisers that would prevent such violations.

A FFEC broker who typifies the problems at FFEC is John Schooler.  This FFEC broker has 26 customer complaints.  Such complaints generally evolve into arbitration lawsuits against the firm.  The complaints against Schooler involve TIC, oil/gas and other inherently aggressive investments.

Under the terms of the Offer of Settlement with FINRA, the firm consented to, without
admitting or denying the same, the entry of the following findings. The findings
stated that First Financial Equity failed to establish, maintain, and enforce an adequate supervisory system, including written procedures, designed to ensure that the firm’s sales of leveraged and inverse ETFs (nontraditional ETFs) complied with applicable securities laws, and
NASD and FINRA rules.

The findings also stated that First Financial Equity failed to establish, maintain,
and enforce an adequate supervisory system and written procedures related to the sale
of multi-share class variable annuities and to maintain records supporting customer
suitability determinations with respect to variable annuity purchases.

Leveraged and inverse ETF are a high risk investment that pays advisers a high commission.  This creates a problem in that it provides motivation for advisers to recommend such investments to investors not seeking high risk.  Such suitability violations are in violation of FINRA rules in addition to the anti-fraud provision of federal and most state securities laws.

 

The firm failed to provide sufficient training to its registered representatives and principals on the sale and supervision of multi-share class variable annuities. The findings also included that the firm failed to implement a reasonable supervisory system and procedures to supervise variable annuity exchanges.

John Burns, Ameriprise, UBS Loss Recovery

John Burns of St. Charles, MO, and formerly of Ameriprise, UBS, Edward Jones and Sagepoint, submitted an agreement settling a regulatory suit in which he was assessed a deferred fine of and suspended from association with any FINRA member in any capacity for 14 months.  Such regulatory actions rarely work to compensate injured investors and injured investors should speak to an attorney concerning their losses.  If you believe that you have suffered losses, or believe the offer to settle your matter is too low, call 1-866-817-0201 for a free initial consultation with an attorney.

Without admitting or denying the findings, Burns consented to the sanctions and to the entry of findings that he engaged in a pattern of unauthorized trading in customer accounts and made unsuitable, risky investments for a senior couple. The findings stated that Burns did not have written discretionary authority to place trades in any of these customer accounts. In some of UBSthe customer accounts, Burns executed the trades without any authorization, while in other customer accounts, Burns had some verbal authorization to exercise discretion generally, but exceeded that verbal authorization by executing trades in excess of the available funds in the account. The findings also stated that Burns made unsuitable and unauthorized investments over a twoyear period in the account of a senior retired couple, both of whom were over 65 years old. These transactions involved repeated high-risk investments in small drug company stocks which were unsuitable for the customers’ moderate risk tolerance and investment profile. The customers sustained losses in all but one of these investments in an aggregate amount exceeding $50,000.

Burns has also been the subject of five lawsuits in recent years filed by investors concerning the mishandling of their accounts.

David B. Tysk of Ameriprise Investment Loss

If you suffered investment loss with David B. Tysk please call 1-866-817-0201 for a free consultation.

David Tysk, financial advisor for Ameriprise in Eden Prairie, MN, was fined $50,000 and
suspended from association with any FINRA member in any capacity for one year. The
Invest photo 2NAC affirmed the findings in the OHO decision and increased the sanctions. The sanctions
were based on findings that Tysk altered computer notes of customer contacts after the
customer complained about the suitability of a recommendation.

The findings stated that Tysk knew or should have known the importance of customer-related notes in the event of complaints. Tysk’s concealed alterations of his notes did not comply with the clear import of the document-retention policies in his member firm’s code of conduct. Tysk failed toinform the firm of the alterations when he provided a copy of the notes to be produced in discovery during an arbitration proceeding.

The customer became suspicious of the notes and requested further discovery to determine whether the notes had been altered after he lodged his complaint with the firm. Tysk and his firm opposed the requests. In a meeting to prepare for the arbitration hearing, Tysk finally disclosed to the firm that he had altered the notes. At the conclusion of the arbitration hearing, the firm and Tysk were sanctioned for violating arbitration discovery rules.

A copy of the NAC decision can be found at the following link.