Securities law

The Government Shutdown Stalls the Securities and Exchange Commission’s Enforcement Activity After Impressive 2018 Achievements

January 18, 2019 | Malecki Law Team

The current ongoing federal government shutdown adversely affects the Securities and Exchange Commission with a “very limited number of staff members available” to carry out the agency’s tasks. The SEC handles the enforcement of federal securities laws through overseeing approximately $90 trillion in annual securities trading as well as the activities of over 27,0000 registered entities and self-regulatory organizations. The SEC’s Division of Enforcement investigates into potential securities laws or regulatory violations and recommends any required action against perpetrators. Now, the SEC is reportedly operating at 5.8% and the enforcement division at 8% of capacity. In fact, the Division will take months after the shutdown ends to recover, according to the SEC’s Office of Internet Enforcement’s chief, John Stark. The constraints posed by the government shutdown come after the SEC’s outstanding enforcement and accomplishments in 2018, posted in their second annual report.

Starting with the first 2017 report, the Division assesses the performance of their fiscal year with five core principles in mind. These Division of Enforcement’s five principles are a focus on the Main Street Investor; individual accountability; keep pace with technological change; impose remedies that most effectively further enforcement goals; and continuously assess the allocation of resources. Based on their assessment, SEC’s codirectors Stephanie Avakin and Steven Peikin described the Division of Enforcement’s efforts this year as a “great success”. In evaluating their effectiveness, the Division’s assessment focuses more on the “nature, quality, and effects” of their enforcement actions, rather than just the quantitative metrics.

Nonetheless, the Division did accomplish impressive numeric feats as well despite the constraints of a hiring freeze and the Supreme Court’s 2017 decision in Kovesh v. SEC. The Division has investigated and recommended hundreds of cases alleging misconduct, leading to $794 million returned to harmed investors. Compared to the prior year, the SEC filed more enforcement actions (821) with higher numbers for stand alones (490), follow-on admin proceedings (210) and delinquent filings (121) in 2018. The most common stand-alone enforcement actions involved securities offerings, investment advisors, and issuer reporting as well as disclosure. Despite Kovesh v. SEC limiting the window of time for collecting, the SEC ordered around $2.5 million in disgorgement and another $1.5 million in penalties.

Are Private Placements a Tool for “Troubled Brokers”? That’s What a Wall Street Journal Study Suggests

June 28, 2018 | Malecki Law Team

If you want to find trouble on Wall Street, follow the money. A “troubled broker” is a broker more concerned for his or her commissions than the quality of the investments he or she recommends. Finding investors for private placements can be very lucrative for a broker, but very risky for a client. As complaints about a broker mount on his CRD, so does the lifespan of a broker and as their career prospects dwindle, they become more desperate. While not all private placements are bad investments, they must be approached with extreme caution and are not appropriate for all investors. If you get presented with a private placement, the very prospectus states: you should consult an attorney before signing. It’s a mandatory disclosure that regulators believe you should get and you should not ignore it. You should always consult a good New York securities lawyer before you give large amounts of your money to a non-public company in its infancy. Understanding the investment, the company and doing due diligence is the only way to protect your interests. If you don’t want to spend time or money to do that, don’t invest. The “next big thing” your broker might be selling you on may be your “next big problem.” There’s no free lunch.

These concerns about the multi-billion-dollar private capital markets are sound, based on a Wall Street Journal report finding that firms selling private placements have a much higher proportion of “troubled brokers”. The study compared the percentages of brokers with customer complaints, regulatory investigations and other disclosures at firms selling private placements with industry norms. Among the worried securities industry members include former FINRA enforcement chief, Robert Bennet who allegedly proclaimed private placements as a “perennial concern for regulators.”. Private placement is the offer and sale of unregistered securities to a limited number of investors for a company’s capital generation. Our securities fraud attorneys always knew that a higher prominence of “troubled brokers” is at firms selling private placements, now our belief has been confirmed.

According to the WSJ study, of the firms selling private placements, half had at least one troubled broker out of every ten brokers. Conversely, of the included firms that didn’t sell private placements, over 75% had less than that amount. Additionally, the analysis shows that half of the firms expelled by FINRA since 1993 sold private placements, despite comprising a lesser amount of the total industry. The private capital market has continued to rise with a reported $750 billion in sales. Given this, any insights about private placements should be known by investors, securities fraud attorneys, brokers and other affected financial industry members.

You May Know About Your Broker, But How Much Do You Know About Your Brokerage Firm?

March 23, 2017 | Malecki Law Team

There is an interesting point in this week’s Wall Street Journal titled “Brokerage Files Don’t Give The Full Pictures,” which talks about the how brokerage firms and individual brokers are held to different standards, when it comes to their BrokerCheck records. BrokerCheck, the online search tool from FINRA for brokers and brokerages, reports arbitration decisions that are not in a securities firm’s favor but not the negotiated legal settlements, whereas every settlement in a broker’s record is clearly delineated. So why does this gap exist in reporting and how does it continue to happen?

FINRA is not a government body, but it is overseen by the Securities and Exchange Commission (SEC). Within 30 days of reaching a settlement, brokerage firms are obligated to report agreements to FINRA, if the amount meets a certain threshold. However, BrokerCheck records pull information from an SEC document named “Form BD” that doesn’t ask brokerage firms about negotiated settlements. The agreement that gets reported to FINRA in the event of a settlement is not currently a part of SEC approved list of documents. This loophole in communication and reporting allows brokerage firms to maintain clean BrokerCheck records, without disclosing settlements to investors. As far as brokers are concerned, the BrokerCheck information comes from a different FINRA form that does require brokerages to disclose if they paid settlements on behalf of any employees over $15,000. It should be noted that many or most settlement payouts for brokers are actually paid for by brokerage firms and these firms are listed as co-defendants or only defendants in the FINRA arbitration proceedings.

Many individuals in the securities industry feel that data about brokerage firms should be more transparent so that they can be ranked based on this information. There are others who are “shocked” by this gaping hole in the BrokerCheck that does not paint the “full picture”, as per the WSJ story. Those in favor of the current scenario, argue that brokerage firms settle for many reasons without admitting to wrongdoing, so reporting settlements would create an unfair perception about the brokerage firm in an investors’ mind.

6 Telltale Signs of a Bad Investment

February 6, 2017 | Malecki Law Team

Salesperson seems to openly live a lavish lifestyle: The most famous Ponzi schemers have been infamous for their extravagant lifestyles. Scott Rothstein, the mastermind in a $1.2million Ponzi scheme said, “We were living like rock stars; private jets, massive amounts of money. There were lots of things that kept fueling that,” in his 2011 deposition testimony (reported in Forbes 2014). Be cautious if you are approached by a broker or advisor who fits the bill. As an extra precautionary measure, check your broker out on FINRA’s BrokerCheck.

Their marketing/ sales documents look like they could have come out of a printer in their home! Robert Van Zandt, known as the Bernie Madoff of Bronx, who was criminally prosecuted for running a Ponzi scheme, distributed homespun brochures that said “Learn to Earn 9% On Your Investment.” The quality of their marketing materials could be a good indication of the credibility of the investment.

“Guarantees” with high returns: If it sounds too good to be true, it probably is. Look out for buzzwords like “High Return” or “Risk-Free” Investments. But in reality no investment is risk-free. In fact, higher probability of return is usually associated with higher risks, according to the risk-reward tradeoff principle. So if you are offered a guaranteed high return investment with no risks, the chances are that you are dealing with a financial scam.

Figuring Out the Fiduciary Rule in the Trump Administration

January 24, 2017 | Malecki Law Team

Financial industry stakeholders are all locked in a guessing game about the fate of the DOL Fiduciary rule in the new Trump administration. In 2015, the Obama administration and the DOL had introduced the Fiduciary rule that requires financial advisers to always act in the best interest of their clients when handling their retirement savings and removing unnecessary fees. Wall Street had continued to oppose it on the grounds of excessive costs and paperwork. The initial implementation deadline for the rule is set for April 2017.

According to an Investment News report, industry lobbyists are now expecting a quick response from the seemingly “business first” Trump administration to delay this investment advice rule. They expect the Fiduciary rule to be one of the first targets of the new administration. This delay could come in the form of a directive to agency heads to review and delay regulations that are not operational.

There are two courses that are expected: the Trump administration may issue an order to delay the implementation of the fiduciary rule and have another regulation, an “interim rule” in its place. Or they could propose a delay but this would be tricky because for a rule that technically became effective last June, the administration is legally obligated under the Administrative Procedure Act to go through a public notice and comment period.

Why Are University Retirement Plans Attracting Lawsuits?

August 16, 2016 | Malecki Law Team

First, it was M.I.T., Yale and N.Y.U. Then, Duke University, Johns Hopkins, University of Pennsylvania, and Vanderbilt were sued for excessive fees in their employees’ retirement accounts, according to a New York Times report. With these class-action suits filed, let’s examine what are the common problems and allegations made against 403(b) plans.

403(b) plans, are similar to 401(k) retirement plans available to employees of public schools and nonprofit institutions like universities and hospitals. The most common allegation that has been reported against 403(b) plans is excessive fees that result in lost retirement savings for the investors. These universities reportedly used multiple ‘record keeper’ providers and paid excessive revenue sharing payments to these providers, amounting to millions of dollars in lost savings.

While the employee investors would have benefited more from fewer simplified options that leveraged economies of scale, there were 400+ investment options which were confusing for them and made them opt for duplicative strategies according the same news report. Allegedly, millions of dollars in retirement assets were unsuitably invested in underperforming funds in a retail share class as opposed to a less-expensive institutional share class. The investment advisors for these plans allegedly breached their fiduciary duty which mandates the reduction of excessive fees and conflicts of interest that erode retirement savings for all investors.

Jenice L. Malecki to Address the Securities Experts Roundtable This Weekend

July 22, 2016 | Malecki Law Team

Securities Experts Roundtable (SER) is hosting its 24th Annual Conference and Membership Meeting on July 22 and July 23 at a private and exclusive destination, The Union League Club. Ms. Malecki will participate in two of their panels “The FINRA Resolution Taskforce Report After Seven Months: Where Are We Now and Where Are We Going” and “The Graying of America- Suitability and Supervision for Senior Investors”.

Ms. Malecki frequently meets with the Securities Exchange Commission (SEC), Department of Justice (DOJ) and Financial Industry Regulatory Authority (FINRA) to discuss issues related to investor protection, supervision for elderly investors, and suitability. She also speaks at educational events and conferences.

Other panelists and speakers at the SER comprise of luminaries in securities and investment litigation, law professors, members of FINRA, and FBI white-collar crime experts. The conference provides an in-depth view and presentation on securities litigation. SER has 90+ experienced experts in securities and investment consulting, wealth management, investment banking, litigation and arbitration, and more.

Product Spotlight: AR GLOBAL REITs

July 13, 2016 | Malecki Law Team

Malecki Law’s team of investment attorneys are interested in speaking with those who invested in AR Global REITs. Industry analysts and consultants believe that investors in a number of AR Global-sponsored real estate investment trusts (REITs) are in danger of having their distributions cut, per InvestmentNews.

Specifically, investors in American Realty Capital Global Trust II, American Realty Capital New York City REIT, American Finance Trust, American Realty Capital Hospitality Trust, American Realty Capital Retail Centers of America, Healthcare Trust, and Realty Finance Trust may be at risk, according to the report.

The problem is said to stem from the MFFO (modified funds from operations a/k/a cash flow) at seven of AR Global’s REITs. The MFFO of these seven funds reportedly failed to match or exceed their distributions. In simple terms, this would mean that the funds failed to take in as much as they were distributing. Such a situation has the potential to mean big trouble for investors including distribution cuts and rapid decline in asset value – i.e., less income and large losses to the principal.

SEC Announces Significant Settlement With Massachusetts-Based PTC, Inc. Regarding Foreign Corrupt Practices Act Allegations

February 18, 2016 | Malecki Law Team

The Securities and Exchange Commission (SEC) announced on February 16, 2016 a settlement with Massachusetts-based PTC, Inc. involving alleged violations of the Foreign Corrupt Practices Act (FCPA). In total, PTC was reported to agree to pay approximately $28 million, including nearly $12 million in disgorgement and more than $14 million in a non-prosecution agreement with the United States Department of Justice in a parallel action.

According to the SEC Order, PTC’s China-based subsidiaries made payments to China officials in an effort to win business, including:

Provided improper travel, gifts, and entertainment totaling nearly $1.5 million to Chinese government officials who were employed by state-owned entities that were PTC customers.

BROKER REPORT: John Keyser of Dawson James Customer Complaints

January 20, 2016 | Malecki Law Team

The securities and investment fraud attorneys at Malecki Law are interested in hearing from investors who have complaints against Florida stockbroker John T. Keyser. Mr. Keyser is reportedly registered with Dawson James Securities, Inc. in Boca Raton, Florida. Industry records indicate that Mr. Keyser has also recently been registered with Viewtrade Financial and SAL Financial Services.

According to BrokerCheck, as maintained by the Financial Industry Regulatory Authority (“FINRA”), Mr. Keyser has been the subject of three customer complaints and a suspension of his license.

In 1998, Mr. Keyser reportedly had his FINRA (then NASD) license to sell securities suspended for failing to pay an arbitration award against him.