Articles Posted in Investors Topics

U.S. oil prices have been on a roller coaster ride over the last few weeks, at one point dropping below $0 for the first time in history to -$37.63 a barrel.  Oil has since rebounded from its subzero levels, but it remains questionable as to whether it can stay there.  It begs the question, what does this mean for investors and the U.S. oil market generally?

When prices cratered below zero, there were those that weighed in that it was nothing to worry about.  After all, the subzero price drop really had more to do with the expiration of contracts for oil futures.  It was explained that the current demand for oil is so low that producers would rather put their oil in storage and then sell it at some point in the future.  Placing additional strain on the market, the U.S. is running out of places to store it, with backlogs of oil tankers from Saudi Arabia out at sea and being turned away from U.S. shipping ports.

The U.S. has traditionally been a net importer of oil, but with the emergence of oil fracking, the U.S. at one point in 2019 surpassed Saudi Arabia as the world’s top oil exporter.  This trend towards parity gave many observers of the U.S. oil market a feeling of confidence that the U.S. was a rising oil power, with President Trump going so far as describing the U.S. level of participation as “energy dominance.”  But as pointed out by professionals, increased participation in the market has little to do with control over the market.  For instance, the price of U.S. oil recently began to spiral down when Russia and Saudi Arabia started to increase their production levels.  U.S. oil prices teetered even further, and then below zero, when the global and U.S. economic response to the spread of Covid-19 began to take shape – every state being under some level of a stay-at-home order, with fewer cars on the road, fewer people travelling by air, and U.S. oil workers in Texas and elsewhere being laid off in the tens of thousands.  The pumps have stopped and oil companies are already declaring bankruptcy, with likely more to follow.

In March 2020 Oil prices had their worst day since 1991, plunging to multi-year lows. Tensions between Russia and Saudi Arabia and OPEC’s failure to strike a deal were escalated by the global economic slowdown spurred by COVID-19 resulting in oil’s worst day since 1991. With oil’s and the energy markets substantial price plunge the investment fraud attorneys at Malecki Law announce the firm’s investigation into potential securities law claims against broker-dealers relating to the improper concentration or oil and gas in portfolios, as well as the sale of energy related structured notes, Exchange Traded Funds (ETFs), and Master Limited Partnerships (MLPs).  Malecki Law has successfully prosecuted a number of these cases, including obtaining awards of attorneys’ fees and costs for investors.

Malecki Law is interested in hearing from investors who were recommended concentrated positions in oil and gas, as well as those recommended futures in Oil and Gas, MLPs or energy sector ETFs. Investors have lost millions in these products as the energy markets dropped.  As prices have continued to slide, losses have compounded. The energy market plunge is terrible for those whose financial advisors recommended that investors stay in and “ride it out.”

Unfortunately, many energy sector investments are risky investments that can be inappropriate for typical “mom and pop” investors, as well as those heading to or in retirement.  Unfortunately, there are some financial advisors and brokers that sell them to their clients anyway, without fully disclosing the potentially devastating risks.

Predicated on fear of a global slowdown and the uncertainty around coronavirus, the stock has experienced extreme volatility as it heads into bear territory. While it may be expected for even the bluest of blue-chip stocks to experience volatility,  investors should pay particular attention to their entire investment portfolios as it is in violate market climates that broker misconduct may reveal itself, especially as it relates to your investment objectives and suitability.

When the market suddenly drops, investment portfolios will reflect not only the fluctuations, but also the risks inherent inparticular strategies and investments. All securities carry risk, but some investment products have more than others. Risk tolerance refers to the level of uncertainty in investment performance that is acceptable to the investor. An investor’s risk tolerance is reflective of their financial situation, needs, age, objectives, time requirements, and other considerations. Generally, investors can be categorized within varying levels of conservative, moderate, or aggressive. The types of investments in an investor’s portfolio should reflect their risk tolerance. The changes that investors noticed in their portfolio during market shifts could be indicative of where their portfolio falls on this spectrum.

Investors with the lower risk tolerances should have a conservative investment strategy in place that shields their portfolio from significant declines in market downturns. The goal of conservative investors is to prioritize principal protection and liquidity over risky appreciation. A conservative investment portfolio will be mainly comprised of safer, low-risk fixed-income investments, such as bonds and certificates of deposits. While low-risk investments do not generate the highest returns, the chances of losing principal are much lower. Older individuals closer to retirement should have investment profiles that reflect a more conservative investment portfolio. It is a huge red flag for any conservative investors to have noticed a complete decline in their portfolio from the market downturn.

Today, Malecki Law, won a court appeal to allow an international investor to proceed in his securities lawsuit against Lek Securities Corporation and its principals (Samuel Lek and Charles Lek), allowing the case to go forward and be decided by a panel of arbitrators in the dispute resolution forum provided by the Financial Industry Authority (FINRA).  Today’s court order, which was issued by New York’s Appellate Division, First Department, reversed the July 19, 2019 order of the lower court (Supreme Court, New York County), which improperly granted Lek Securities a permanent stay (i.e., a halt) from arbitrating the dispute in FINRA.  The outcome of today’s decision is important because it adds color to the legal definition of who is a “customer” and, thus, who is eligible to bring their claims in FINRA arbitration.

Lek Securities is a U.S. brokerage firm regulated by the enforcement arm of FINRA – the largest independent regulatory body for securities trading and securities firms operating in the United States.  Within the fine print of their new account forms, all investors who open retail brokerage accounts with U.S. brokerage firms waive their rights to court and are, instead, required to arbitrate any disputes in FINRA.  However, FINRA provides a cost-effective arbitration forum that allows retail customers of brokerage securities firms to recover their lost investments much faster, and for far less money, than they would typically be able to in court.  This is due in part to arbitrations generally not being subject to appeal and arbitration having far less onerous discovery requirements, including not allowing depositions, generally speaking.   Arbitration in FINRA is also advantageous to investors because firms that lose in arbitration are incentivized to pay awards to customers within 30 days or otherwise have their brokerage licenses revoked.  While the firm is still operational, and while this case was waiting for the appeal to be decided, the owner of Lek Securities, Samuel Lek, who is also named in the instant lawsuit, was barred from the securities industry by FINRA and the Securities and Exchange Commission (SEC) in December of 2019.

In reversing the lower court’s decision, today’s order by the First Department holds that there was a customer relationship established between the investor and Lek Securities under the FINRA rules and in accordance with the law established in Global Mkts. Inc. v. Abbar, 761 F.3d 268 (2d. Cir. 2014) – a seminal case in which Malecki Law’s founder, Jenice Malecki, was instrumental in shaping and arguing before the Second Circuit.  The law in Abbar requires that to be a customer (and to therefore be eligible to arbitrate against a firm in FINRA), the investor must have either had an account or purchased a good or service from the firm.   In its court papers, Lek Securities claimed that the international investor had an account with the firm’s UK operations (LekUK), which is not subject to regulatory oversight in the United States, and that LekUK, in carrying out brokerage services for the investor, transferred the investor’s assets to the subject U.S. affiliate, and that any payment received by the Lek entity in the United States was incidental, and not received directly from the investor, but paid internally by LekUK.

Last week, the Financial Industry Regulatory Authority (FINRA) censured and assessed a fine of $50,000 against a national investment firm, Paulson Investment Company LLC, in connection with its sale and solicitation of private placement offerings to investors, in violation of Rule 506 of Regulation D and Section 5 of the Securities Act of 1933.  Among other things, Regulation D (more commonly known as Reg D) provides a legal “safe harbor” for investment firms to sell and market private placements, which are restricted securities (i.e., not traded on a public market and therefore carry more risk), to no more than 35 non-accredited investors, provided the firm has a pre-existing relationship with that investor.  The law is intended to prevent advertising and marketing to non-accredited investors – a legal term for those who do not have the requisite financial means to bear risk or who are unsophisticated and cannot appreciate the risks of purchasing an investment that is typically illiquid and cannot readily be traded on a national exchange.  In violation of Reg D, as well as FINRA Rule 2010 (requiring all member firms to conduct their business with high standards of commercial honor), FINRA found that Paulson solicited 11 individuals and sold six separate private placement offerings, totaling approximately $4.5 million, prior to having a pre-existing and substantive relationship with these investors.

Perhaps this barely registers as a newsworthy event; brokerage firms are censured and fined all the time by regulators, and for much more than $50,000.  Paulson is considered a small to medium-sized firm and it is registered in 53 states and territories.  The firm has been licensed as a member brokerage firm with FINRA since 1971 and has carried its registration as an investment advisory firm with the Securities and Exchange Commission (SEC) since 1983.  However, there are other recent developments at Paulson, particularly at its 40 Wall Street office in New York City, which should give pause to any investor or prospective retiree.

While Paulson derives more than 50% of its revenue from underwriting activities, it also engages in general brokerage activities by buying and selling investments for retail investors.  Among the brokers or registered employees at its Wall Street address, there are currently seven individuals with at least 3 or more public disclosures in the Central Registration Depository (CRD) known as BrokerCheck, a national database that tracks the background and disciplinary history of stockbrokers and other financial professional concerning customer complaints, regulatory or criminal events, and other financial disclosures (such as personal bankruptcy or tax liens).  This is significant, because, according to FINRA, most brokers have a clean history, with approximately 4% having been subject to at least one customer complaint, but only less than 0.41% with 3 or more BrokerCheck complaints.   Paulson’s Wall Street office alone employs seven such individuals with 3 or more disclosures.  But this is only scratching the surface.

Last week, a New York City panel of arbitrators with the Financial Industry Regulatory Authority (FINRA) unanimously awarded an investor represented by Malecki Law over $200,000 in damages, plus attorneys’ fees of $67,000 and 5% interest dating back to May 2018.  The panel’s award found the New Jersey-based brokerage firm Network 1 Financial Securities Inc. to be liable in connection with the investor’s allegations of unsuitable investment recommendations, misrepresentations (NY General Business Law § 349), and failure to supervise its broker/financial adviser, Robert Ciaccio, who now has 7 disclosures on his public FINRA BrokerCheck disciplinary record (5 customer complaints and 2 regulatory censures).  The investment at issue was Proshares Ultra Bloomberg Crude Oil 2X (otherwise known by its stock symbol UCO), which Mr. Ciaccio recommended to the investor but failed to disclose the numerous risks associated with this product, which belongs to a group of products known as Non-Traditional Exchange Traded Funds (or Non-Traditional ETFs).

FINRA, the Securities and Exchange Commission (SEC), and other regulators have repeatedly warned firms against selling Non-Traditional ETFs because they are difficult to understand and carry risks that are not easily understood by the typical investor.  Unlike a simple investment like a stock or bond, Non-Traditional ETFs are fee-laden, structured products, built with derivatives and complex mathematical formulas, which, in “simplest” terms, offer leverage and are designed to perform inversely to an outside benchmark index (e.g., the S&P 500, VIX, etc.).  Noting the popularity of these high-risk, high-cost products, FINRA has issued numerous investor alerts and warnings to member brokerage firms about Non-Traditional ETFs, stating:

“While such products may be useful in some sophisticated trading strategies, they are highly complex financial instruments that are typically designed to achieve their stated objectives on a daily basis. Due to the effects of compounding, their performance over longer periods of time can differ significantly from their stated daily objective. Therefore, inverse and leveraged ETFs that are reset daily typically are unsuitable for retail investors who plan to hold them for longer than one trading session, particularly in volatile markets….  In particular, recommendations to customers must be suitable and based on a full understanding of the terms and features of the product recommended; sales materials related to leveraged and inverse ETFs must be fair and accurate; and firms must have adequate supervisory procedures in place to ensure that these obligations are met.”

With the highly-publicized Bernie Madoff Ponzi scheme, which resulted in an ABC mini-series and the HBO original movie, Wizard of Lies, investors might tend to think that Ponzis are a thing of the past.  But Ponzi schemes are alive and well, and may even be on the rise.  According to a New York Times report from last week, the United States Securities and Exchange Commission (SEC) has prosecuted 50 percent more Ponzi cases in the last 10 years since the Madoff scheme was busted, affecting over 4 million investors in 291 Ponzi cases, ultimately costing investors more than $31 billion in losses.

This week, the SEC filed charges against yet another Ponzi fraudster, James T. Booth, who the SEC alleges to have conducted a multi-year scheme, defrauding approximately 40 investors out of up to $10 million.  The SEC complaint alleges that Mr. Booth fabricated elaborate account statements for his clients, many of whom were seniors and unsophisticated investors who utilized Mr. Booth to manage their retirement savings.  Mr. Booth is 74 years old and resides in Norwalk Connecticut, and he is the founder of Booth Financial Associates, a firm originally created by Booth to sell advisory services and insurance products.

Mr. Booth was also a financial advisor registered with the investment advisory and brokerage firm LPL Financial LLC, a firm that is registered with the SEC and the Financial Industry Regulatory Authority (FINRA).  Over time, Mr. Booth would solicit his customers from LPL to wire money away from LPL to invest in opportunities elsewhere, with promises of safer investments or higher returns.

The investment and securities fraud attorneys at Malecki Law are currently investigating UBS’s Yield Enhancement Strategy (“YES”) for the purpose of investor recoveries. Our attorneys are interested in hearing from investors and others who have information and/or have experienced losses due to UBS YES or other complex yield enhancing investments regardless of the brokerage firm.

It appears that the YES strategy may have been sold to UBS clients as a conservative and low-risk investment strategy that would provide them with an increased yield (income) in their portfolio. In fact, in our opinion, the strategy was an esoteric leveraged options strategy that utilized an options strategy known as the Iron Condor, which is inherently risky as it relies on consistent stability in the markets.

USB YES employing the esoteric Iron Condor strategy uses a leveraged options strategy in a client’s portfolio. UBS would use the client’s assets as collateral in a margin account then execute four different options trades, simultaneously selling calls and puts in an attempt to generate income and buying calls and puts in an attempt to hedge risk. This resulted in the creation of a price spread. If the price of the index or security the options were a derivative of stayed within the spread it would produce a premium to the investor. However, the excessive volatility experienced by the markets recently and most notably in the fourth quarter of 2018 blew through these spreads resulting in serious losses to investors.

FINRA-registered brokerage firm, Nomura Securities International, Inc., will pay over $25 million to settle the SEC’s allegations that its supervisory shortcomings permitted traders to defraud customers in transactions involving mortgage-backed securities. In two related enforcement actions, the SEC details how five former Nomura brokers allegedly made misrepresentations to customers while selling non-agency commercial real estate (CMBS) and residential mortgage-backed securities (RMBS) between 2010 and 2014. As part of the settlement, Nomura will pay $20.7 million to RMBS customers and $4.2 million to CMBS customers as reimbursement for profits obtained from the brokers’ misrepresentations along with a$1.5 million regulatory fine. Our investor fraud lawyers highlight this case as an example of the potential fraud that could occur in markets as opaque as that for mortgage-backed securities.

According to the SEC, Nomura traders allegedly mislead customers about the cost of the securities and the profit the firm would receive from transactions. Notably, the traders reportedly inflated the prices of securities by sometimes even doubling the actual cost. The SEC also alleges that the Nomura brokers would sometimes claim to still be in negotiations with a third party while already having the mortgage-backed securities in their possession. The traders were able to get away with their misrepresentations because the secondary trading market for mortgage-backed securities does not make trade prices public. Therefore, customers can only rely on the words of their financial professionals. The trust should have been safeguarded by proper oversight by the brokerage firm. However, Nomura’s alleged “weak” supervisory procedures enabled otherwise discernible and preventable fraud to go undetected.

Mortgage-backed securities are fixed-income investments collateralized by a pool of residential or commercial real estate loans. The creation process of these asset-backed securities entails banks selling mortgages to an entity that securitizes the pool for sale to investors. Entities that issue mortgage-backed securities could be a federal government agency, government-sponsored enterprise, or a securities firm. Investing in mortgage-backed securities entitles the investor to the interest payments and principal paid by the original burrower. Investors can expect a coupon rate, known as the yield, equivalent to the borrower’s payments to their mortgage. The amount of risk involved in mortgage-backed securities depends on the issuer. Mortgage-backed securities issued by the Government National Mortgage Association, a U.S government agency guarantee that investors receive timely payments. However, private institution-issued mortgage-backed securities do not have such protections.

Former Windsor Capital broker, Jovannie Aquino has been barred from working in the industry by the Securities and Exchange Commission after allegedly churning his retail customers’ accounts. The SEC further alleged that Mr. Aquino executed trades in client’s accounts during his time as a registered representative at Windsor Capital between May 2014 and November 2017. While at least seven customers incurred at least $881,000 in losses, Mr. Aquino generated $935,000 in profits, according to the SEC. A recent administrative proceeding order issued by the SEC reveals that Mr. Aquino consented to a final judgment enjoining him from future violations. Our securities attorneys have investigated into the SEC’s findings on Jovannie and many other brokers accused of engaging in fraud involving churning claims.

According to the SEC’s complaint, Mr. Aquino allegedly gained control of these customer accounts through cold-calls using publicly-available databases. Once Mr. Aquino held these seven customer accounts, he reportedly recommended a series of frequent, short term-trades. Even though the customer accounts were non-discretionary, Mr. Aquino allegedly made trades without their explicit permission. Allegedly, Mr. Aquino profited through excessive markups/markdowns, commissions, and other fees from churning these accounts.

Churning is when a broker frequently trades in a customer’s account to profit from the commissions. Although there is no exact formula to demonstrate churning, the securities industry informally considers turnover rates and cost-to-equity ratios to be indicative of this behavior. The average turnover rate, defined as the percentage of securities replaced in a given year was 28.9 for these customer accounts. Such a number is well above the minimum of 6, that usually suggests excessive trading. Additionally, the average annualized cost-to-equity, the break-even ratio for Mr. Aquino’s seven customer accounts was 87%. Based on that metric, the customers’ portfolio values would have to increase by at least 87% on average to see any profits.

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