Regulatory Audits & Investigations

FINRA Fines Citigroup Global Markets $3.5 Million for Providing Inaccurate Performance Data Related to Subprime Securitizations

June 1, 2012 | Nick Curley

Investors rely upon their brokers for accurate statements on the market: without knowledge and researched facts, there is no trust that our investments have been wisely managed. In understanding this need, regulatory bodies intervene in situations when brokerage firms have failed to live up to their end of the informational bargain struck with their customers. To learn more about failure to disclose, misrepresentation, and omission within the securities game – as well as Malecki Law’s extensive experience in aiding investors harmed by misinformation – visit the Investors page of our firm’s site.

A new instance of high-profile misinformation is alleged in a May 22nd press release which confirms that the Financial Industry Regulatory Authority (FINRA) has fined Citigroup Global Markets, Inc. the sum of $3.5 million. The release cites numerous causes for the admonishment, including several alleged violations pertaining to subprime residential mortgage-backed securitizations (RMBS), including the supplying of erroneous information on mortgage performance and failure to supervise. An RMBS can be defined as a type of security in which investor profit stems from home-equity loans and mortgages (subprime and otherwise).

FINRA cites inaccurate RMBS information on Citigroup’s website as the fine’s direct cause. Citigroup and other RMBS distributors are required to disclose accurate and up-to-date historical data on mortgage performances, so as to grant investors a fair assessment of the RMBS value, as well as the true likelihood of a mortgage-owner’s failure to make payments. According to FINRA Executive Vice President and Chief of Enforcement Brad Bennett, “Citigroup posted data for its RMBS deals that it should have known was inaccurate; for over six years, investors potentially used faulty data to assess the value of the RMBS.”

In Light of MF Global: Knowing the Risks of European Investment

December 20, 2011 | Malecki Law Team

It has been difficult to not hear about the recent events surrounding MF Global Holdings Ltd and former Senator and New Jersey Governor, John Corzine. However, many investors do not really understand what happened or why. A recent article in Forbes Online titled “MF Global: Were the Risks Clear?” helps to break down just how these events transpired. The article details how overexposure to European sovereign debt (government bonds) leveraged by using borrowed money (called “margin”) coupled with declines in the value of those bonds caused the downfall of the fund.

The almost overnight collapse of such a prominent and public investment fund as MF Global has brought many issues to light, and the Forbes article characterizes this “as the latest reminder to investors that it’s important – and sometimes very difficult – to understand the entire spectrum of risk they’re exposed to.” These events also raise many questions that should be asked by investors, such as “Do I really understand how my advisor is managing my savings?” and “Have the risks in my portfolio been adequately explained to me?”.

Many investors in MF Global have said that they did not understand what their money was being invested into, but rather trusted that the firm would do the right thing by them. One investor cited by the article said on his blog that “I am supposed to know the difference between an ethical operator and one that is not. The truth is that it often is very difficult to tell them apart.” This has unfortunately come to be a fairly common sentiment by many individual investors, in reference to their personal broker and the funds they invested in.

Watching the Watchers: Charting the SEC’s Increased Pursuit of Negligent Execs

November 4, 2011 | Nick Curley

The Securities and Exchange Commission (SEC) has in recent weeks seemingly broadened its pursuit of wrongdoers by filing cases against defendants on the charge of negligence alone. Negligence can be defined as a situation in which one should have known that information given to investors was inadequate. In recent years, negligence fines have been what accused bigwigs would accept and pay to avoid more severe charges of fraud, which carry heavy costs and the potential to be banned from the finance industry. Such admissions were usually made out of court and out the public eye. Readers looking to learn more about the role of negligence in securities law proceedings can visit our firm’s informational Practice Areas and Investors sections.

As of today, these ramped-up regulations have been sparsely utilized, though the Wall Street Journal speculates that more actions against negligence are forthcoming. It’s the SEC’s recently united “Structured and New-Products Enforcement” unit that’s claiming to be newly insistent about information being more fairly provided to investors.

Criticism of the SEC’s post-2008 methods has come in part because they have seemingly failed to catch many financial criminals in the act. Detractors believe that in many cases, outright fraud or recklessness is the issue: branding such failures as negligence would then only diminish or downplay their severity. The penalties for fraud are far more severe, but are in turn more challenging to obtain, as they require proof of intentional malfeasance. The charge of “Recklessness” falls between fraud and negligence in severity, and can be defined as one turning a blind eye to potentially harmful activity.

FINRA Fines Three New York Based Broker-Dealers For Mischaracterizing Customer Fees

September 8, 2011 | Malecki Law Team

New York securities law saw quite the news day, as the Financial Industry Regulatory Authority (FINRA) issued a news release on September 7, 2011 announcing fines against five Broker-Dealers, three of them based in New York, for mischaracterizing fees charged to customers. The three New York based firms were John Thomas Financial of New York, NY, A&F Financial Securities, Inc. of Syosset, NY and Salomon Whitney, LLC of Babylon Village, NY. FINRA alleged that the firms understated commissions but charged additional handling fees to make up transaction based income for the firm. FINRA found that by structuring their fees this way, the firms ended up charging fees significantly higher than the actual cost of the services the firms provided.

In making their findings, FINRA reiterated that broker-dealers must accurately disclose commissions earned. By settling these charges with FINRA, the firms did not admit or deny wrongdoing, but they did consent to the entry of FINRA’s findings and also agreed to implement actions sufficient to remedy the handling-fees violations.

Such mischaracterization of handling-fees is one example of how broker-dealers can put their own interests ahead of the interests of their clients, and represent what is essentially securities fraud. If you held an account with one of these firms or you think your broker-dealer may have charged fees in excess of what they disclosed to you, your entire portfolio may need a thorough review for suitability.

Malecki Law Announces Investigation of IRA Services Trust Company and Fiserv, Inc. Arising Out of Investments with the Van Zandt Agency

August 25, 2011 | Malecki Law Team

Malecki Law, a New York securities law firm based in Manhattan, is currently investigating claims against IRA Services Trust Company and Fiserv, Inc. arising out of investments solicited and promissory notes issued through the Van Zandt Agency in relation to real estate investments in the Bronx, New York and elsewhere.

The Attorney General of the State of New York is currently investigating the practices of the Van Zandts and on April 6, 2011, filed an application in the Supreme Court of the State of New York for an order of discovery and preliminary injunction against the Van Zandts and other related agencies.

Based on the initial inquiry of the securities fraud lawyers of Malecki Law and the Attorney General’s investigation, there are questions about whether or not the Van Zandt Agency broke the law by engaging in the fraudulent issuance, promotion offer and sale of securities to the public in the State of New York. It is believed that hundreds and possibly thousands of investors may have lost money invested with the Van Zandts.

FINRA Issues Regulatory Notice 11-39 to Address Business Use of Social Media Websites

August 23, 2011 | Malecki Law Team

The talk among New York securities lawyers this week was all about the Financial Industry Regulatory Authority (FINRA) release of Regulatory Notice 11-39 addressing business use of social media website in the wake of surging popularity of social media tools such as Facebook and Google+. These social media tools make connecting with friends, colleagues and third-parties easy, but also raise novel questions related to the extent to which associated persons may use these sites for business use and registered principals must supervise such use.

Securities Exchange Act Rule 17a-4(b)(4), which requires the retention of copies of communications between members, brokers or dealers and the public of “business as such,” underlies Regulatory Notice 11-39. Thus, a firm’s or an associated person’s communications with the public through social media posts may require pre-approval by the firm and/or registered principal, and be subject to regulation by FINRA, depending on whether the communication is related to the firm’s “business as such” and is “static” as opposed to “interactive.” Generally, all communications related to a firm’s business as such must be recorded and preserved, while all static posting is deemed an advertisement requiring the firm’s pre-approval under NASD Rule 2210.

Regulatory Notice 11-39 begins to address the grey area of posting to message boards. Associated persons, be they advertising in the first place or responding to questions via such message boards, are limited to what they can say and claim. Thus, postings in static forums or blogs on websites would require pre-approval of all statements made relating to the firm’s business.

Goldman Sachs Pays $10 Million to Settle Allegations of Questionable Investor Relations

June 9, 2011 | Jenice L. Malecki, Esq.

Goldman Sachs Group Inc. will pay $10 million after Massachusetts securities regulators contended its “research huddles” were dishonest and unethical, according to a Wall Street Journal article “Goldman Fined $10 Mln By Massachusetts Over Research ‘Huddles'” by Liz Moyer that has New York securities lawyers singing the court’s praises.

The state said the “huddles,” which included communications between top analysts and top clients, gave special access, information and tips to select clients, which other clients did not receive. Goldman admitted no wrongdoing; investigations by the Securities and Exchange Commission and the Financial Industry Regulatory Authority are ongoing.New York securities attorneys note the increasing number of investigations into the advice investment firms are doling out in the wake of the economic collapse; some have been accused of touting the safety of real estate securities even as they were moving top clients and funds out of real-estate-backed products.

An experienced law firm should be brought in to handle audits and investigations in New York at the earliest possible stages of such cases. In many cases, how you handle requests for information and respond to investigative entities — both formally and informally — can have a dramatic effect on the outcome of your case. As Peter Henning at the New York Times recently reported in “Zealous Advocacy vs. Obstructive Conduct”, there can be a fine line between zealous advocacy and obstruction — a fact both executives and their attorneys must always be aware. At the same time, you need a law firm with the knowledge, experience and resources to stand up for your rights — not to cave to government intimidation.