Biggest Recent FINRA Fines Point to Poor Supervision at Large Broker-Dealers

April 11, 2014,

Apparently the opportunity for bad brokers to engage in wrongful conduct is enabled by big brokerage firms, as recent Financial Industry Regulatory Authority (FINRA) fines indicate that these businesses fail to properly supervise their foot soldiers. The FINRA Rules, including Rule 3010, make clear that broker-dealers are the securities gatekeepers, because they are ultimately responsible for supervision of their brokers. Not all brokers take advantage of their customers, but those who do will certainly feel emboldened to continue their schemes if they know they can print account statements listing fictitious investments, or make misrepresentations to clients over emails they know will never be supervised.

InvestmentNews recent reported regarding the largest recent fines handed out by FINRA. The fines, some mentioned in prior blog posts, point to continued poor supervision at large broker-dealers.

For instance, we recently commented regarding FINRA's announcement on February 24, 2014 of a $775,000 fine for Berthel Fisher & Company Financial Services, Inc. and its subsidiary for failure to supervise brokers on recommendations and sales of alternative investments such as non-traded real estate investment trusts (REITs) and leveraged and inverse exchange-traded funds (ETFs).

Then, one month later on March 24, 2014, FINRA announced that it had fined LPL Financial LLC $950,000 for supervisory deficiencies related to brokers' recommendations and sales to public investors of alternative investments, including non-traded REITs, oil and gas partnerships, business development companies (BDCs), hedge funds, managed futures and other illiquid pass-through investments.

Other broker-dealers on InvestmentNews' notorious list include FINRA's report of a fine and ordered restitution in the amount of $1.2 million against Triad Advisors and Securities America for those companies' failure to supervise the use of consolidated reporting systems and inaccurate valuations being sent to customers, and for failure to retain the consolidated reports, in violation of applicable securities recordkeeping laws. These types of failures are particularly problematic, because they allowed brokers to sell potentially fraudulent investments with the appearance of legitimacy, since they were printed on firm account statements. Such investments, according to FINRA, included those held "away" from the broker-dealers, which sometimes included fictitious promissory note schemes or other fraudulent or Ponzi-like investments. FINRA reported that the supervisory failures extended to "hundreds of brokers."

The FINRA fine that topped the list was that handed to, again, LPL Financial LLC in the amount of $9 million (including a fund set up to compensate customers) for "systemic email failures" and "misstatements to FINRA," reported on May 21, 2013. FINRA found that from 2007 to 2013, LPL Financial, which had completed numerous mergers to become one of the country's largest independent broker-dealers, experienced repeated failures in their policies and procedures for supervising the email system. FINRA reported that LPL was unable, on many occasions, to capture email, supervise its brokers or even to respond to regulatory requests. Included in the supervisory oversights were 28 million emails sent or received from brokers acting as independent contractors through a DBA entity.

The attorneys at Malecki Law have prosecuted several failure to supervise cases over the years. Cases involving independent contracts acting through DBAs, or brokers peddling unsuitable alternative investments or issuing false reports, are some of the issues we have seen repeatedly. If you believe you have lost money as a result of inappropriately marketed or unsuitable investments, please contact an attorney at Malecki Law to determine if you may be able to recover some or all of your losses.

Managed Futures Fund Fees: When Is Enough Enough?

April 4, 2014,


When are money management fees too much? It is hard to imagine that any investor who has sought the guidance of professional financial advisors has not asked himself or herself this question at least once - most likely more. In the case of managed futures, the CFTC is asking that question for investors right now. Following an article in Bloomberg Magazine in the Fall of last year, 2013, the CFTC has launched a probe in to the fees charged by those who manage the more than $300 billion in the managed futures market.

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According to the Bloomberg report, investors in 63 managed futures funds paid out 89% of the $11.51 billion in gains from managed futures investors in the form of fees, commissions and expenses from January 1, 2003 to December 31, 2012 - more than $10.2 billion.

Bloomberg quoted Mr. Bart Chilton, a member of the Commodity Futures Trading Commission as saying:

""The big news here is, the fees are so outlandish, they can actually wipe out all the profits . . . We absolutely need to do a better job of letting consumers know in plain English what's going on. . . Those numbers tell a story. It's astounding."

For example, Spectrum Technical LP, run by Morgan Stanley, reportedly managed more than $1 billion, making gross profits of $490.3 million. Apparently, what seemed like a great gain for investors shockingly became a loss. It seems that all $490.3 million was eaten up in fees, which totaled $498.7 million - meaning an $8+ million loss for investors. However those charging the fees pocketed nearly half-a-billion dollars over the same time frame. Over ten years, Bloomberg reported that twenty nine Citigroup and Morgan Stanley funds charged over $1.5 billion in fees to investors.

One might ask, "Why would anyone invest in a fund where they could potentially lose money, and where an overwhelming majority of any gains would be eaten up by fees?" Many are introduced to managed futures by their broker or financial advisor. These funds are typically sold as an alternative to traditional investments such as stocks and bonds and as a way to further diversify a portfolio. However, many investors might not realize that managed futures funds reportedly pay commissions to the selling broker that can be as high as 4% of total assets invested annually. Total costs and fees to the investor can run as high as 9% of total assets invested per year.

Even more shocking misleading marketing information that is allegedly used to sell managed futures to investors. According to the Bloomberg report, charts produced by BarclayHedge (not related to Barclays PLC) show astonishing gains in the managed futures market to the tune of 29 fold growth in some cases. However, BarclayHedge reportedly only uses information volunteered by managed-futures traders, and the firm does not include the fees charged to investors in its calculations. Therefore, given the exorbitant fees associated with these funds, when shown to investors, these charts can be grossly misleading.

Ultimately, the sale of any security, including managed futures fund, to any investor through misrepresentations or omissions is not ok. Nor is it ok for a broker or financial advisor to solicit unsuitable investments to their customer solely to reap a high commission payout for himself or herself.

Any investor who believes that they have lost money as a result of a misrepresentation, omission or unsuitable solicitation may be able to recover some or all of their losses. The attorneys at Malecki Law are experienced in representing investors. For a free consultation, contact us.

FINRA Files LPL Financial for Failures to Supervise Alternative Investments

March 27, 2014,

LPL Financial LLC has been hit again for supervisory failures stemming from the recommendation of non-traded real estate investment trusts (REITs), as well as other illiquid investments, begging the question whether the fines are large enough to deter future bad conduct. According to a news release dated March 24, 2014, the Financial Industry Regulatory Authority (FINRA) announced that LPL Financial has been fined $950,000 for the firm's failures in supervision over alternative investments, including non-traded REITs, oil and gas partnerships, business development companies, hedge funds, managed futures and other illiquid pass-through investments.

LPL Financial submitted a Letter of Acceptance, Waiver and Consent No. 2011027170901 (AWC), in which it admitted to "fail[ing] to have a reasonable supervisory system and procedures to identify and determine whether purchases of [alternative investments] caused a customer's account to be unsuitably concentrated in Alternative Investments in contravention of LPL, prospectus or certain state suitability standards." LPL also admitted in the AWC that though it had a computer system to assist and supervision, this computer system did not consistently identify alternative investments that fell outside of the firm's suitability guidelines. Additionally, LPL stated that its written compliance and written supervisory procedures failed to achieve compliance with NASD Rule 2310 and state suitability standards.

NASD Rule 2310 has since been superseded by FINRA Rule 2111. The current rule establishes the industry standard that FINRA members and their employees must have a reasonable basis to believe their recommendations are suitable for their customers. The Rule further dictates that the firm must establish suitability for each customer by considering the customer's age, other investments, financial situation and needs, tax status, investment objectives, investment experience, investment time horizon, liquidity needs, risk tolerance, and any other information, though this list is not exclusive.

LPL Financial's AWC was not the first time it was fined for selling non-traded REITs. In the AWC, LPL Financial disclosed that it entered into a prior settlement with the Massachusetts Securities Division wherein it consented to a $500,000 fine and approximately $2 million in restitution for the firm's role in selling such products in contravention of state rules concerning prospectus net worth, annual income requirements and state concentration limits.

Many State securities divisions limit the percentage of investors' investible assets that may be invested in such alternative investments such as REITs. Ohio, for instance, sets its concentration limit to 10%. The Ohio Division of Securities has in the past noted in a Securities Bulletin that Direct Participation Programs such as non-traded REITs involve substantial risks, including "severe restrictions on liquidity, ... upfront fees and expenses ranging between 12%-18% of the initial offering price and substantial ongoing fees thereafter,... and distributions to shareholders paid from borrowings or a return of the shareholder's investment after deducting fees paid to insiders. Broker-dealers are highly incentivized to sell these products by the 7%-10% commissions commonly charged to investors, some of the highest selling commissions of any investment product available."

Due to the very risky nature of alternative investments such as non-traded REITs, it is imperative that firms conduct appropriate suitability inquiries to determine whether a recommendation for the purchase of such a product is actually appropriate for each customer. According to FINRA Rules, it is also imperative that an investor be informed of all risks and costs associated with such an investment, though this is rarely done. If you believe you were not properly informed of the risks associated with alternative investments, or were recommended such an investment that may not be suitable for you, please contact the attorneys at Malecki Law to determine if you have a claim for damages.

Whistleblower Due To Receive $63+ Million Reward

March 21, 2014,

Keith Edwards, a former J.P. Morgan employee is due to receive a nearly $64 million payment from the U.S. government for the tips he provided as a whistleblower. Mr. Edwards provided information that led to a payment by J.P. Morgan to the government in the amount of $614 million stemming from insurance on home loans.
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Allegedly, J.P. Morgan had been falsifying certifications for Federal Housing Administration and Department of Veterans Affairs loans, going back as far as 2002. As a result, the agencies reportedly suffered substantial losses.

It was reported that the $614 million was paid by J.P. Morgan to settle the charges levied against it as a result of Mr. Edwards' tips. In settling, J.P. Morgan reportedly admitted to approving thousands of FHA and hundreds of VA loans that did not pass normal underwriting requirements.

Mr. Edwards was able to collect his reward under the False Claims Act. Under the False Claims Act, the government reportedly collected roughly $3.8 billion in 2013 alone - a big year for the Justice Department. Under this act, individuals can sue the target company directly. The government may elect to join the whistleblower in pursuit of the target company in court.

Whistleblowers can also benefit from a myriad of other whistleblower reward programs, including Dodd-Frank and Sarbanes-Oxley. Unlike the False Claims Act, whistleblowers under these acts will not bring suit against the target company directly. Rather, whistleblowers will simply provide the government with the "tip." It is then up to the government to pursue the bad actor or not.

Nonetheless, whistleblowers under these acts can also reap large rewards for the information they provide. Under Dodd-Frank, the Securities and Exchange Commission (SEC) has paid over $14 million in rewards in the past two years alone. Under Dodd-Frank the SEC is looking for tips that will aid in the successful investigation of securities laws violations. In return, a whistleblower may be entitled to between 10% and 30% of all monies recovered.

Once you have made the decision to be a whistleblower, a major concern should be to make sure that you have maximized your potential to receive your reward. It is important to know how to present your "tip" to the appropriate government agency. A properly prepared and presented "tip" may increase the chances that the government pursues the case. Whistleblowers should also be aware of potential pitfalls that may compromise their ability to collect an award.

Like anything else, it is important to be diligent and protect your rights when making the decision to blow the whistle. This decision is often not an easy one and should be made carefully and diligently. You should speak with a knowledgeable attorney first to ensure that you are protected that maximize your chances at receiving an award for your information.

If you believe you may have valuable information and are thinking about blowing the whistle, contact an attorney at Malecki Law for a free consultation. The attorneys at Malecki Law have experience representing whistleblowers, and can help you file your whistleblower complaint with the appropriate agency to maximize your chances at getting the reward to which you may be entitled.

Jenice Malecki Of Malecki Law Heads To Washington To Meet With Congressmen And Senators About Investor Protection

March 13, 2014,

Jenice Malecki of Malecki Law will be in Washington, D.C. tomorrow to meet with Congressmen and Senators along with others from the Public Investors Arbitration Bar Association (PIABA) to advocate for the Investor Choice Act and federal legislation to increase transparency and accountability from our financial regulators.

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Ms. Malecki will be meeting with Rep. John Dingell (D-MI), Senator Kirsten Gillibrand (D-NY), Rep. Stephen Lynch (D-MA), Senator Charles Schumer (D-NY), and Rep. Blaine Luetkemeyer (R-MO).

The primary significance of the Investor Choice Act will be the elimination of pre-dispute arbitration agreements that are commonly used in broker-dealer and investment advisor contracts. These agreements force customers who sue their broker, advisor or firm to pursue their claims only in arbitration. By eliminating these agreements, customers who have a dispute with their advisor, broker, or firm will have the option of electing to sue in arbitration or go to court and have their case heard by a jury.

Talking points will include: 1) the problems with mandatory arbitration, 2) who are the people bringing claims against their brokers, financial advisors, etc., and 3) why choosing arbitration over court should be the choice of the investor, not the broker-dealer.

Ms. Malecki will also be discussing the need for more transparency among our financial regulators like the Securities and Exchange Commission (SEC) as well as the Financial Industry Regulatory Authority (FINRA).

This discussion will center around the benefits and need for the public at large to have access to information about how the securities industry is regulated and to be able to verify the fairness of FINRA's arbitration forum, with a focus on how the lack of transparency harms the investing public.

United States Supreme Court Holding Applies Retaliation Protections to Employees of Contractors who Contract for Publicly-Traded Companies

March 11, 2014,

clooney.jpgApparently, you do not need to be George Clooney to enjoy whistleblower protections.

Employees of private contractors and subcontractors who provide services to publicly traded companies including mutual funds are protected by the whistleblower provisions of Sarbanes-Oxley Act of 2002 ("Act"), the United States Supreme Court held in its decision dated March 4, 2014. See 18 U.S.C. § 1514A; Lawson v. FMR LLC, --- S. Ct. ---, 2014 WL 813701, *7, 2014 U.S. LEXIS 1783 (2014). The majority decision, written by Justice Ginsburg, relied on the language of the Act, applying "their ordinary meaning." Lawson, *7.

The case involved two employees who formerly worked for "privately held companies that provide advisory and management services to" Fidelity funds. Id. at *6. One of the employees worked for Fidelity Brokerage Services, LLC, a subsidiary of the Respondents, for 14 years. Id. This employee alleged that she suffered a series of adverse employment actions, eventually being constructively discharged, after raising concerns about certain cost accounting methodologies that may have overstated expenses associated with operating the mutual funds. Id. The second employee worked for Fidelity Management & Research Co. and later by a different subsidiary, FMR, Co., Inc. for eight years, and alleged he was fired after raising concerns about inaccuracies in a draft SEC registration statement concerning certain Fidelity funds. Id.

The Respondents argued that the intent of Congress was to include only those contractors who fire employees of public companies, such as the "ax-wielding specialist" exemplified by George Clooney's character in the movie Up in the Air. Id. at *7. In that movie, Mr. Clooney was hired by companies for the sole purpose of passing on the news that certain employees had been fired. The Court reasoned that if the company made the decisions about who would be fired, as they did in Up in the Air, they would not be insulated from liability by the contractor, who would merely be communicating the information to the employees. Id.

The holding of the Supreme Court has a significant impact in the area of whistleblower protections. This decision solidifies whistleblower protection to employees of contractors. This is significant for mutual funds, which the Supreme Court noted do not generally employ any of their own employees and are "managed, instead, by independent investment advisors. Id. at *12.

The Court held that the plain language of the Act and the treatment of a similar whistleblower provision protecting employees who complain about violations relating to air carrier safety supported its conclusion. The Act stated "[n]o [public] company... or any officer, employee, contractor, or subcontractor ... may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against any employee in the terms and conditions of employment because of [whistleblowing or other protected activity]." Id. at *3 (citing § 1514A(a) (2006 ed.)). Separately, the Court in a minority decision cited the legislative history for the Act, but this part was not joined by Justices Scalia and Thomas, and therefore was not a part of the holding of the majority.

The attorneys at Malecki Law are committed to providing advocacy to whistleblowers who courageously wave the flag about fraudulent conduct occurring in the securities industry. If you believe you have original information about potentially fraudulent conduct, contact Malecki Law for a confidential consultation.

Bitcoin Appears Headed for Regulation

March 6, 2014,

As the old adage goes, one good deed deserves another. And so it is for bitcoin, which the Wall Street Journal reported may receive regulatory oversight in the not-too-distant future. It seems that enough people complained about what appears to have been a hacker-theft that led to the bankruptcy filing by Mt. Gox, until recently one of the major bitcoin exchanges. While the Federal Reserve appear unwilling, the WSJ noted that the Federal Trade Commission recently stated their goal "is to protect consumers, whether they pay by credit card, check, by some sort of virtual currency." Despite Mt. Gox's bankruptcy filing, the market for bitcoin continues to be routed through exchanges that up until now have operated with minimal to no oversight and bitcoins continue to be used to purchase services and goods, and likely, as a basis for investment.

The nature of Mt. Gox's collapse is noteworthy. As reported on Tech Crunch, over the course of approximately one month, a supposed software bug caused Mt. Gox to lose approximately $500 million worth of bitcoin, including 750,000 bitcoin owned by investors and 100,000 bitcoin owned by Mt. Gox itself. Realizing the theft, Mt. Gox ceased investor transfers and shut down at the end of February 2014 and applied for bankruptcy protection from creditors. The WSJ reported on March 5, 2014 that the shutdown may have been caused by Mt. Gox's bank refusing to process wire transfers after its repeated requests that Mt. Gox close its account.

Mt. Gox's predicament may be the most publicized, but it certainly is not alone. According to the WSJ article on March 3, 2014, a recent study found that of 40 bitcoin exchanges, 18 have closed in the past three years, generally causing customer accounts to be completely wiped out. The WSJ reported that fraud is sometimes the cause of such closures. In other related bitcoin news, it was reported by the New York Post on March 5, 2014 that Autumn Radke, the CEO of bitcoin exchange firm First Meta, as a result of what may have been suicide.

As of the end of February 2014, Bitcoin has slid in value to approximately $550, half of its value from a high of over $1,100 in mid-December 2013, according to CoinDesk's Bitcoin Price Index. Given this significant volatility, it is amazing that only now are regulators looking in to whether they have the ability to provide regulation over the currency. Currently, it is estimated that there is approximately $6.9 billion in bitcoin in the world.

In addition to the risk of total loss of one's investment, bitcoin holds other hallmarks that make it a particularly risky investment, including that it is often effected in anonymous transactions and that transactions are irreversible, meaning defrauded parties often have no or limited recourse, as noted by the WSJ.

Investments based on bitcoin must still be marketed and sold in accordance with securities laws and related regulations, and so must be suitable for investors appropriate under each specific investor's circumstances. If you believe you were not properly informed of the risks associated with an investment involving bitcoin, please contact the attorneys at Malecki Law to determine if you have a claim for damages.

Berthel Fisher and PNC Fined In Connection With The Sale Of ETFs

February 25, 2014,

Just yesterday, FINRA announced that it has fined Iowa-based broker-dealer Berthel Fisher $775,000 for failures to adequately train and supervise brokers selling alternative investments, such as real estate investment trusts ("REITs"), and non-traditional exchange traded funds ("ETFs"), including leveraged and inverse ETFs.
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In addition to REITs and ETFs, Berthel brokers also reportedly sold managed futures, oil and gas investments, equipment leasing programs and business developments companies, all while having "inadequate supervisory systems and written procedures for sales" of these investments.

Firms are required to have sufficient supervisory systems and written procedures for the sale of such investments to help ensure that these potentially risky and illiquid investments are only sold to investors for whom they are suitable and appropriate. Oftentimes, these investments are not appropriate for your average investor.

It was reported that Berthel failed to properly review for suitability and may have left investors over-concentrated, meaning that too much of the investor's savings may have been in just one investment, rather than being spread out in many different investments (i.e. diversified).

Even though these potentially very risky investments may not be appropriate for an average investor, brokers my sell them to average investors anyway because they are often "high-commission products," meaning that the broker gets paid more for selling them than he or she would for selling a more traditional investment such as a mutual fund. Some commissions paid to brokers and broker-dealers on some of these non-traditional products can be 10% or more of the total amount invested.

All in all, it has been reported that Berthel brokers recommended more than $49 million worth of nontraditional ETFs to over 1,000 clients. It is believed that these sales were sometimes not appropriate for the investor.

Unfortunately, Berthel Fisher is not alone. FINRA's fine of Berthel comes just two months after the regulator fined PNC Investments for failing to establish and maintain a satisfactory supervisory system with respect to the sale of non-traditional ETFs. The conduct for which PNC was fined was surprisingly similar to that of Berthel. Ultimately, PNC was fined $275,000 and paid restitution of more than $33,000.

If an ETF or other investment is sold to an investor, and it is not suitable for them, the investor may be able to recover for any and all losses caused by that investment.

If you believe you have lost money as a result of an investment in these or any other non-traditional investment, contact an attorney at Malecki Law for a free consultation to determine if you may be able to recover your losses.

Credit Suisse Group AG Admits to Providing Brokerage and Investment Advisory Services Without Registering with the SEC

February 24, 2014,

Money makes the world go 'round and apparently also makes Credit Suisse employees work faster or slower, as the case may be. The Wall Street Journal reported on Friday February 21, 2014 that Credit Suisse Group AG (Credit Suisse) agreed to pay $196 million to settle charges brought by the Securities and Exchange Commission that it provided brokerage and investment services to U.S. clients without registering with the SEC. According to the SEC's Order, Credit Suisse willfully violated the Exchange Act and Investment Advisors Act by failing to register, in violation of Section 15 of the Securities Exchange Act of 1934 and Section 203 of the Investment Advisors Act of 1940. The SEC announced in a news release on Friday that Credit Suisse admitted to the violations.

In the Order, the SEC noted that Credit Suisse apparently knew the services its relationship managers were providing across borders to U.S. clients was improper, and set up a properly registered entity to transfer the U.S. business. However, the Order went on to detail that the transfers took far more time than was initially planned, partly because Credit Suisse did not properly incentivize its employees to timely transfer the accounts. This, in addition to other wrongful conduct led the Commission to conclude that Credit Suisse failed to implement its own policies and procedures to efficiently move the accounts. The Order and the WSJ article both noted that Credit Suisse has subsidiaries that are properly registered to provide both brokerage business and investment advisory business to U.S. clients. Until the bank completed its exit from its cross-border business, it continued to charge brokerage and advisory fees to the U.S. clients it served.

Registration by brokers, dealers and investment advisors with the SEC or state regulators is a bedrock principle of the securities laws and is designed to protect investors. Section 203 of the Investment Advisors Act regulates and requires registration of brokers, dealers and investment advisors, with limited exception. The SEC regularly fines individuals and entities such as Credit Suisse for failing to follow these laws.

U.S. clients who held these accounts may not have known that they were transacting paying fees to an unregistered entity to provide advisory services. These clients may possess causes of action for those transactions and fees paid. While there may not be a private right of action under the Investment Advisors Act of 1940, it may still serve to establish duties and obligations of investment advisors. Investors should always look to their specific investment advisory agreements to determine whether breaches have occurred.

The attorneys of Malecki Law have experience representing investors in actions against firms in FINRA arbitration and in court. Investors of Credit Suisse Group or other unregistered firms should contact Malecki Law to determine whether they were inappropriately charged fees, and to determine if any other causes of action may exist.

All Eyes On The SEC After Recent Losses

February 21, 2014,

In recent weeks, attention has turned to the Securities and Exchange Commission's declining success rate when going to trial against alleged wrongdoers. Publications such as the New York Times and Wall Street Journal have run multiple articles recently about this surprising decline. Per the Wall Street Journal, the SEC's success rate has dropped to 55% since October, as opposed to the more than 75% success rate in the three consecutive years prior.

While the cases at the center of this decline were in the works well before Mary Jo White took the helm at the SEC, many are beginning to speculate how the Commission will react. Ms. White recently touted the then 80% success rate last year, citing it as a potential reason why attorneys counsel their clients to settle rather than face trial. However, this may be on the verge of changing. Emboldened by the newfound success of defendants in defending trials against the Commission, those who may find themselves in the SEC's crosshairs may begin to opt to go to trial.

Recent cases, such as the insider-trading investigation and trial of billionaire Dallas Mavericks owner, Mark Cuban, have only intensified the public interest in the Commission and the work it does to investigate violations of the securities laws.

Manhattan U.S. Attorney Preet Bharara's reported 79-0 record in securing convictions or guilty pleas in the U.S. Attorney's Office's recent crackdown on insider trading has only increased the pressure on the SEC in the public eye. While the two are not identical, to the casual observer, there may not be an apparent difference.

Complicating this situation even further is the agency's stated objective of pursuing admissions of wrongdoing in some cases, even when settling. Since this could potentially expose the defendant to liability in separate civil suits, it bears watching whether or not those against whom the SEC pursues an admission of wrongdoing choose to take their chances at trial.

If targeted individuals and companies begin to opt for trial rather than settlement, the question then may become whether or not the Commission has sufficient resources to handle the increased caseload. For those who find themselves the subject of an SEC investigation, the impact could potentially mean better settlement offers for those against whom the Commission believes its case to be less strong.

There is also the potential for the SEC to triage resources, allocating the most resources to the cases it believe have the greatest likelihood of success. If this were to happen, it could very well mean that those against whom the SEC has the weakest cases may find that their cases are dropped following some pressure by their defense attorney.

Ultimately, the SEC will have to determine how to properly strike the balance between dropping cases that it will not win, settling those that it can, and pursuing cases that are going to have a result that is worth the effort. Most importantly, the Commission will have to learn to tell the difference between the three.

The attorneys at Malecki Law have experience representing individuals in regulatory actions before the SEC as well as FINRA. Contact us for a free consultation. Various hourly-billing and flat-fee based options are available to make smart decisions from inception to the completion of your matter.

Buyers Should Beware when Considering Investments Involving Bitcoin

February 12, 2014,

blank-coin.jpgBitcoin, and the exchanges that provide a space for trading Bitcoin, have received a lot of press lately. The Wall Street Journal reported on February 11, 2014 that the price of a Bitcoin dropped to approximately $650. This would be a significant drop from a trading high of over $1,100 per Bitcoin in mid-December 2013, according to CoinDesk's Bitcoin Price Index.

As the Journal reported, the Slovenia-based Bitcoin-trading exchange Bitstamp halted customer withdrawals while Bulgaria-based BTC-e had delays in crediting transactions. This, apparently, came as a result of a hacker attack on the exchanges. Recently, Mt. Gox, a Tokyo-based Bitcoin trading exchange recently reported that it was halting withdrawals for a period of time after it discovered a software glitch that "could give rogue traders a way to falsify transactions," as reported by the Journal. Incidentally, according to Wired, Mt. Gox stands for "Magic: The Gathering Online Exchange" and prior to 2011 was a digital trading exchange for Magic playing cards. According to that Wired article, in 2011, the website was changed to handle transactions exchanging Bitcoin.

Back in 2011, it was reported by Daily Tech that Mt. Gox was forced to shut down trading and "roll back" trades after 478 accounts were allegedly hacked, resulting in the withdrawal of a total of 25,000 Bitcoins. Mt. Gox reportedly informed investors that they "assume no responsibility should your funds be stolen by someone using your password," and that the hacker made off with only 1,000 of the Bitcoins stolen. According to the Daily Tech article, the hacker gained access to the investors' passwords by hacking Mt. Gox's database.

The Securities and Exchange Commission (SEC) has taken notice of Bitcoin. In 2013, it charged an individual named Trendon T. Shavers for running a Ponzi scheme involving Bitcoin. According to the SEC's news release, he set up a company called Bitcoin Savings and Trust and raised approximately 700,000 Bitcoin, allegedly offered investors 7% weekly interest as a result of Bitcoin arbitrage activity. However, he used certain investors' Bitcoins to pay other investors' interest, as well as his own personal expenses.

The SEC then issued an Investor Alert to inform the public of Ponzi schemes involving virtual currency. In the Investor Alert, the SEC stated that fraudsters may choose to use virtual currencies like Bitcoin, because of the lack of governmental or regulatory oversight. The SEC went on to state that any investments in securities, such as promissory notes or other investments promising regular payments in Bitcoin, remain subject to the SEC's jurisdiction and continue to require licensure by federal or state agencies.

The Bitcoin, a virtual currency, remains a risky investment, given that exchanges are not yet subject to governmental regulation. Investments based on Bitcoin must still be marketed and sold in accordance with securities laws and related regulations, and so must be suitable for investors and appropriate under each specific investor's circumstances. If you believe you were not properly informed of the risks associated with an investment based on Bitcoin, please contact the attorneys at Malecki Law to determine if you have a claim for damages.

I Just Got An SEC Subpoena: Now What Happens?

February 7, 2014,

The recent string of cases brought by the Securities and Exchange Commission in connection with the US Attorney's Office against members of SAC Capital for insider trading has shone a bright light on the world of SEC investigations. Though all financial professionals surely hope that they will never be involved in an SEC investigation, the truth of the matter is that many unfortunately will.

Receiving a subpoena from any government agency can be a worrisome event in anyone's life, but for a financial professional, receiving a subpoena from the Securities and Exchange Commission can be especially intimidating. More often than not, the recipient may be confused as to, "Why is the SEC contacting me?"

Individuals are typically contacted by the SEC for two reasons: 1) You are the subject of its investigation; or 2) The SEC believes you may have valuable information related to its investigation of an entity or someone else.

In either case, you may be subpoenaed to provide documents (called a subpoena "duces tecum") or to testify (called a subpoena "ad testificandum"), or both.

Subpoenas for documents are generally straightforward in that they list specific types or categories of documents that must be produced to the SEC by a specific date. To comply with the subpoena, the recipient must produce all responsive documents by the due date.

When the SEC calls individuals in to provide testimony, it will be in what is commonly referred to as an "on the record" interview (or "OTR" for short). Subpoenas for testimony will also be rather straightforward in that the recipient will know when and where they will need to appear to testify, but will typically not contain any clues as to what the testimony will be about. However, in advance of the OTR, you may be required to provide documents related to certain transactions, individuals, businesses, etc. that you will likely be questioned on in your OTR. You also may be questioned on documents or testimony provided by others.

When you receive a subpoena, the first thing you should do is contact a securities industry law firm that understands these matters. It is important to get a copy of the formal order of investigation, which will tell you some more detail about the investigation about which you have been called to testify or produce documents.

It is important to be properly prepared for responses to subpoenas, both for testimony and for documents. Now that you are involved in an investigation and potential litigation, ordinary words could have new meaning. Something that may seem harmless in an ordinary discussion could have a different meaning in a legal context - potentially exposing you to liability.

Once you have responded to subpoena and/or appeared at your OTR, the SEC may choose to formally charge you or it may determine that it will not pursue any action against you. While, the latter is certainly the preferred option, the former is certainly the most concerning. The SEC may pursue you civilly or criminally (typically through the U.S. Attorney's Office).

More often than not, individuals are pursued civilly, either in court or in an administrative proceeding before an administrative law judge. Prior to being formally charged, individuals are often given the opportunity to settle their matter and consent to certain sanctions. The more common civil sanctions usually include revocation/suspension of professional licenses (i.e. Series 7, 24, etc.), disgorgement (i.e. paying back any profits earned from the illegal conduct), and monetary fines. Criminal charges can also result in imprisonment among other penalties.

Given the magnitude of the potential penalties you may be facing, from the moment you receive an SEC subpoena, your focus needs to be on protecting yourself, your savings, your reputation, and your license(s).

To do that, the very first questions that need to be addressed are: Who is the target of the SEC's investigation? Is it definitely me? Could it be me? Is it someone I work for/with? Is it someone I did business with? Is it someone I continue to do business with?

Unfortunately, the answers to these questions are often not readily apparent. While SEC subpoenas are usually specific in what they request, they are often equally as vague with respect to the subject of the investigation and offer few clues to the untrained eye.

As a result, from the very first moment the SEC contacts you, experience can be your best ally. For most people, when they receive a subpoena from the SEC it is their first (and hopefully only) experience being subpoenaed. If you have do not have experience in dealing with the SEC, you may be unaware of protections available to you in both producing documents and when testifying. As a result, an unfortunate reality is that all too often, individuals may get themselves into more trouble by trying to handle the situation themselves.

Consulting with an experience attorney could be the best move that you make when faced with such a potentially life-changing event. Now is not the time to be penny wise and pound foolish. The attorneys at Malecki Law have experience representing individuals in regulatory actions before the SEC as well as FINRA. Contact us for a free consultation. Various hourly-billing and flat-fee based options are available to make smart decisions from inception to the completion of your matter.

Steep Market Selloffs May Uncover Risks in Accounts Such as Adverse Consequences of Margin

January 27, 2014,

crisis-1260919-s.jpgIt was reported by Bloomberg News on Friday January 24, 2014 that there was a "massive selloff" in emerging markets that led to a decline of approximately 2% to the Dow Jones Industrial Average and S&P 500. It is during such fast and sudden selloffs that underlying problems in public investors' brokerage accounts are typically uncovered.

At Malecki Law, we have seen an increase in claims arising from margin in investors' accounts. Overwhelmingly, investors were not informed about the risks of buying securities on margin and were only told that they could make more money by leveraging their accounts to buy more securities. However, without fully understanding the risks of products and services such as margin, public investors cannot make a fully informed decision about whether it is suitable for them.

Margin is essentially a loan from the brokerage firm to the investor. The effect of margin is not similar to that of a typical home mortgage, because the securities or cash in the investor's brokerage account serves as collateral for the loan and large market drops can cause margin calls, request for more money or collateral or a sell-off of positions. Investors may use margin to increase their purchasing power or "buying power," as some brokers like to say. However, it is very important that the investor is fully informed of all risks associated with the use of margin, including that they can lose more than they borrow.

Like all loans, brokerage firms make money charging interest on the margin. So, as more money is borrowed, the interest payments increase. The Financial Industry Regulatory Authority (FINRA) underlines that in a down market, the securities that are used as collateral also tend to decline in value. The brokerage firm may issue a "margin call" if the value of collateral sinks too low. In these circumstances, the brokerage firm may demand that additional cash be deposited in the account, and if the investor fails to do so, the firm may unilaterally sell securities to satisfy the margin calls. For these margin calls, investors are typically given as little as three days' notice, and it often comes as a shock that a service that was described as helpful or safe has ended up being very costly (although that is a sign the investor does not understand and should not be in margin).

Margin can be used with many different types of investments, including equity/stock, bonds, mutual funds, etc., but increases in the leverage in a brokerage account increases the risk of the investment, and consequently, also increases the risk to investors of substantial losses. Due the manner in which margin accounts work, investors may lose more than they borrow by making interest payments and satisfying margin calls.

Margin is especially dangerous when purchasing shares of ETFs that already use leverage. By purchasing these shares on margin, the investor is "leveraging their leverage" meaning that they are taking on much more risk. Even relatively small movements in the market can cause crushing losses on such a position. Below are a few leveraged ETFs that incurred serious losses over the past three months.

  • Barclays Short B Lvgd Inv S&P 500 TR ETN - BXDB
  • Direxion Daily Gold Miners Bull 3X Shrs - NUGT
  • Direxion Daily Technology Bear 3X Shares - TECS
  • Direxion Daily Financial Bear 3X Shares - FAZ
  • Direxion Daily Semicondct Bear 3X Shares - SOXS
  • Direxion Daily Small Cap Bear 3X Shares - TZA
  • Direxion Daily Mid Cap Bear 3X Shares - MIDZ
  • ProShares Ultra Silver - AGQ
  • ProShares UltraShort Semiconductors - SSG
  • ProShares UltraShort SmallCap600 - SDD
  • Direxion Daily Brazil Bull 3X Shares - BRZU
  • ProShares UltraShort Nasdaq Biotech - BIS
  • ProShares UltraShort S&P500 - SDS
  • Direxion Daily Nat Gas Rltd Bear 3X Shrs - GASX
  • ProShares Ultra Gold - UGL
  • PowerShares DB Gold Double Long ETN - DGP
  • ProShares UltraShort Russell2000 Value - SJH
  • Direxion Daily Dev Mkts Bear 3X Shrs - DPK
  • Direxion Daily South Korea Bear 3X Shrs - KORZ

Unfortunately, public investors can suffer losses due to their margin account in a stock market that rises or falls. Securities rules require that a broker fully advise the investor of all risks to establishing and using margin in their account. If you believe you were not properly informed of the risks associated with margin, please contact the attorneys at Malecki Law to determine if you have a claim for damages.

Leveraged and Inverse ETFs Can Spell Trouble for Investors Who Buy Them and Brokerage Firms Who Sell Them

January 15, 2014,

Just this past week, two brokerages units of Stifel Financial were ordered by the Financial Industry Regulatory Authority ("FINRA") to pay more than $1 million related to the sale of leveraged and inverse exchange-traded funds ("ETFs"). Of the more than $1 million to be paid, $550,000 comes in the form of a fine to be split by Stifel, Nicolaus & Co., Inc. and Century Securities Associates Inc. The firms were also ordered to pay more than $475,000 in restitution to 65 customers to compensate them for losses incurred on ETF purchases.

According to the Wall Street Journal, FINRA said that some of the brokers who were selling the ETFs did not have a full understanding of the products they were selling, including the risks associated with them.

Brokerage firms can be fined and/or sued when they allow their brokers to sell unsuitable, or inappropriate, investments to customers, especially when the brokers have not been properly trained. Industry regulations require that a broker understand both the product they are selling and the customer to whom they are selling the product. Most importantly a broker must understand the risks of the products being sold and appreciate the customer's ability (or inability) to tolerate risk. Brokerage firms are also required to train their brokers properly, including what qualifies as a suitable, or appropriate, recommendation to a customer.

Regulators have been looking at the sale of ETFs, especially inverse and leveraged ETFs, in recent years. In the past few years, FINRA has reportedly fined multiple brokerage firms millions of dollars, including Citigroup, Morgan Stanley, UBS and Wells Fargo over the sales of ETFs.

These investments are complex and often not completely understood by the average investor. They use futures and/or derivatives to 1) multiply the return (and loss) of a given index on a given day and/or 2) cause the value of the ETF to rise when the index falls, or vice versa. However, they are largely designed as a product for day-traders and are not typically supposed to be recommended as "buy and hold" investments.

For example, below are twenty five ETFs that lost the most in the past 12 months per Yahoo Finance, many of which are inverse, leveraged, or both. Malecki Law is investigating and/or has recently pursued claims for customers who incurred losses in these ETFs.

1. Direxion Daily Gold Miners Bull 3X Shrs (NUGT)
2. VelocityShares Daily 2x VIX ST ETN (TVIX)
3. C-Tracks Citi Volatility Index TR ETN (CVOL)
4. Barclays Short B Lvgd Inv S&P 500 TR ETN (BXDB)
5. Direxion Daily Semicondct Bear 3X Shares (SOXS)
6. VelocityShares Daily 2x VIX MT ETN (TVIZ)
7. Direxion Daily Small Cap Bear 3X Shares (TZA)
8. ProShares UltraPro Short Russell2000 (SRTY)
9. VelocityShares Long VIX ST ETN (VIIX)
10. ProShares VIX Short-Term Futures ETF (VIXY)
11. ProShares UltraPro Short QQQ (SQQQ)
12. ProShares Ultra Silver (AGQ)
13. Direxion Daily Nat Gas Rltd Bear 3X Shrs (GASX)
14. Direxion Daily Mid Cap Bear 3X Shares (MIDZ)
15. ProShares UltraPro Short MidCap400 (SMDD)
16. Global X Gold Explorers ETF (GLDX)
17. Market Vectors Junior Gold Miners ETF (GDXJ)
18. Direxion Daily S&P500 Bear 3X Shares (SPXS)
19. Direxion Daily China Bear 3X Shares (YANG)
20. ProShares UltraPro Short Dow30 (SDOW)
21. ProShares UltraShort Russell2000 Growth (SKK)
22. Direxion Daily Technology Bear 3X Shares (TECS)
23. Market Vectors Gold Miners ETF (GDX)
24. ProShares UltraShort SmallCap600 (SDD)
25. ProShares UltraShort Health Care (RXD)

If you believe you have lost money as a result of an investment in these or any ETFs, or because of some other investment, contact an attorney at Malecki Law for a free consultation to determine if you may be able to recover your losses.

Jenice Malecki to Appear on Fox Business News with Dennis Kneale

November 19, 2013,

Jenice Malecki of Malecki Law will be appearing on Fox Business News at 12pm today, speaking with Dennis Kneale to revisit the $13 billion settlement announced by JP Morgan today.

The focus of the discussion will be the aftermath of the settlement, and what it means for JP Morgan moving forward. The settlement was for conduct that occurred from 2005 to 2008, largely predating the financial crisis and acquisitions of Bear Stearns and Washington Mutual. In fact, according to the Department of Justice, as reported by Fox Business News, JP Morgan regularly represented that the loans it bundled and sold to investors complied with underwriting guidelines, when they actually did not.

It remains to be seen whether this will impact other litigation that JP Morgan continues to defend against private litigation, or in future criminal proceedings arising from the conduct of JP Morgan's employees. It also remains to be seen whether JP Morgan will provide liquidity for a fire sale, as it did with Bear Stearns during the financial crisis.