Investors Topics

Can My Broker or Investment Advisor Sell Me Cryptocurrency?

November 8, 2023 | Jacqueline Candella

Can my broker or investment advisor sell me cryptocurrency (“crypto”)? Is it an investment? The answer is not so simple; no, they cannot sell it directly, but they may try to sell it to you indirectly through a fund or private placement. Rest assured, it is still just as volatile and not appropriate for most investors. Malecki Law is looking into the sale of crypto-based products, as they have been on the rise. Although investors might be intrigued and ecstatic to get into the new shiny investment on the street, it is still a high-risk bet, no matter what your investment professional may say.

Investing in something new can be enticing, but it does not necessarily mean that it is in your best interest as an investor. If you were sold crypto-based products and sustained substantial losses, you need a Crypto-Based Investment law firm in New York, like Malecki Law, to review your potential claim.

What is crypto? Digital assets are the umbrella which crypto falls under. There is a wider range of assets that land under the digital assets umbrella, such as non-fungible tokens (“NFTs”). The common denominator of the variety of digital assets is that they tend to use blockchain technology. Crypto consists of a broad range of virtual currencies, such as Bitcoin (BTC) or Ethereum (ETH).

What Does a Defective Securities Product Look Like? Example: GWG Holdings L Bond

May 3, 2023 | Malecki Law Team

Today, very few products use asbestos, an abundant and inexpensively produced heat-resistant mineral once common in a wide array of construction materials, auto parts, and firefighter equipment, to name a few. Its use was rampant until studies revealed that asbestos causes various forms of cancer—clearly a defective product, use of asbestos is now scarce and regulated by the government.

Defective securities products are no different. Brokerage firms often develop complex securities products that promise to beat the market but instead result in catastrophic financial losses to investors. If this sounds familiar to you, you need to contact a New York Defective Securities Law Firm, like Malecki Law. Touted as the next big thing since sliced bread, some defective securities are so complex that even the brokers who sell them do not understand how the product works. Some other such products are easier to understand, but their viability is misrepresented, or their attendant risks are downplayed. The GWG Holdings L Bond is of the latter kind.

A few years ago, GWG Holdings Inc. created what they called the L bond, a speculative, unrated, high-risk, and high-yield investment instrument. GWG issued the bond to raise funds to purchase life insurance policies from insureds with the intention to collect the policies’ payouts upon their deaths. Each L Bond was priced at $1,000 principal with a minimum buy-in of 25 units ($25,000) and offered to investors with varying maturity terms and corresponding interest rate incomes. Given the investment’s high risk and price tag, the L Bond was deemed suitable only for wealthy investors. Nevertheless, brokers fraudulently sold it to the elderly, retirees, and other relatively inexperienced people with conservative to moderate risk tolerances and limited resources. If your broker sold you high-risk investments and failed to disclose or explain their inherent risks, you should have an experienced Defective Securities Lawyer in New York, like the lawyers at Malecki Law, review your portfolio. Based on the foregoing, it is clear this story does not have a happy ending; but before getting there, a word on the L Bond’s defective nature is apropos.

Surely My Financial Advisor Has an Insurance Policy to Protect Me When Things Go Wrong, Right? Not So Fast…

February 10, 2023 | Adam G. Schreck

Although a handful of states have requirements in place, surprisingly few Registered Investment Advisors (RIAs) across the country carry liability insurance to protect clients from their own wrongdoing leaving investors as the only party left to bear the brunt of losses when things go sideways.

The professional liability insurance industry for Registered Investment Advisors (RIAs) has been described by one in the industry as, “the Wild West.” There is immense uncertainty as to the number of independent RIAs who carry professional liability insurance as well as extreme variability within the specifics of the policies offered to RIAs. While there are some states that require RIAs to carry insurance, most states do not have mandates in place, and the federal government has yet to draft any laws on the matter.

At the forefront of requiring RIAs to maintain insurance coverage are Oregon and Oklahoma. In 2018, Oregon became the first state to pass legislation requiring RIAs registered with the state to carry professional liability insurance. The Oregon law requires RIAs to carry at least $1 million in coverage and to show proof of such coverage during the state’s licensing process. Similarly, in 2020, Oklahoma passed legislation requiring RIAs registered with the state to carry professional liability and cybersecurity insurance. Curiously, the Oklahoma law fails to indicate how much insurance coverage is required for RIAs. If you are an investor in Oregon, Oklahoma, or any other state, who believes you have lost money due to your RIA’s wrongdoing, you should consult with a Securities Law Firm like Malecki Law.

Know Your Custodian – Uniform Transfers and Gifts to Minors Acts

January 18, 2023 | Malecki Law Team

The Uniform Transfers to Minors Act (UTMA) and Uniform Gifts to Minors Act (UGMA) allow adults to give or transfer assets to minor beneficiaries. The slight difference between the accounts is that the UGMA is limited to financial assets while the UTMA includes any tangible or intangible assets. These accounts allow children to safely invest and build up capital legally before they become adults. There are also tax benefits to these accounts as contributions are made with after-tax dollars. If you believe your brokerage firm failed to supervise your trust account or the advisor managing your trust, you need to consult a New York Failure to Supervise Trusts Law Firm like Malecki Law.

Each of these accounts have a custodian who acts in the child’s interest as a fiduciary. This means that the investments made and the way the money in the accounts is managed must be for the child’s benefit. When the minor reaches the age of majority, the custodian no longer has authority to make decisions on behalf of the beneficiary and the beneficiary continues to monitor the account on their own. Additionally, once the money is transferred to the beneficiary, it is permanently their property.

FINRA Rule 2090, the “Know your Customer” rule, requires firms “verify the authority of any person purporting to act on behalf of the customer. So, brokerage firms and their members are supposed to know the essential details about who is acting on behalf of the customer (i.e. the custodian). Did your brokerage firm fail to “know” your custodian? Did you suffer losses because of this? You should reach out to a New York Failure to Supervise Trusts Lawyer like the lawyers at Malecki Law for a free consultation. The member must not only know the customer at the beginning of their relationship (account opening) but throughout the whole of the relationship. In line with this “Know your Customer” rule, firms are supposed to have a supervisory system for their members, which makes sure brokers are in compliance with procedures. The problem is that many firms do not have supervisory procedures in place for UT/UGMAs. In turn, the brokers do not know their customers, resulting in custodians not being monitored.

Reg D Fraud Lawyers Can Help Recover Trillions of Investor Losses

October 31, 2022 | Jenice L. Malecki, Esq.

The Securities and Exchange Commission governs private placements exemption from registration of securities on an exchange that are still sold to the investing public via Regulation D (Reg D). Reg D offerings are attempted by private companies or entrepreneurs because funding is faster at a lower cost than in a heavily reviewed and documented public offering. The problem many investors face are illiquidity, company failure and the end of promised distribution income.

Studies show that in the past 14 years, there have been $20 trillion in Reg D offerings, $7.7 trillion sold by brokers; $4.8 trillion of that has happened since 2016. Reg D Fraud Lawyers in New York at Malecki Law know the losses these investments can cause investors.

Studies estimate that close to 10% of Reg D offerings fail, meaning likely in excess of $5 trillion sold by brokers in the past 6 years may have failed. Approximately one-third of Reg D offerings reportedly fail within the first six years and approximately 25% are sold by high-risk brokerage firms.

Elder Investment Fraud and Exploitation

October 5, 2022 | Malecki Law Team

Elders Need Protection from Exploitation

When a client entrusts their financial professional with their money, the client assumes that the best care will be taken. Clients expect loyalty and guidance from their broker. Unfortunately, elders can be exploited and defrauded by them instead. This is why it is important to have Elder Fraud Lawyers in New York to review your elder’s portfolio at no cost.

While an investment advisor has a fiduciary duty to their clients, a broker only follows the regulation best interest rule, which is similar but systematically different. A fiduciary duty is one made up of trust, loyalty, and a duty to prevent one’s clients from engaging in any transaction that operates as fraud or deceit (Section 206 – Investment Advisers Act). The fiduciary relationship applies to the whole relationship between the client or prospective client and advisor. Fiduciaries have the affirmative duty to act with utmost good faith and full disclosure of material facts.

How Might a Brokerage Firm Fail to Supervise Its Brokers’ Misconduct?

September 19, 2022 | Malecki Law Team

Securities Industry Background

The securities industry is one of the most regulated industries in the United States. Statutes, common law, and federal regulations all govern the conduct of securities firms and their representatives. Securities firms must register with the Financial Industry Regulatory Authority (FINRA). FINRA is a self-regulated organization (SRO) that protects investors by ensuring that the securities industry operates honestly and fairly. An SRO is an organization that has power to create and enforce industry regulations on its own. This means that FINRA has the authority to create and enforce its rules on securities firms that register with FINRA. A broker-dealer is a securities firm that must register with FINRA. Broker-dealers engage in the business of buying and selling securities. Broker-dealers also offer services such as trade execution, selling securities out of inventory, and lending. Since all broker-dealers and its registered representatives (its individual brokers) must register with FINRA, FINRA’s rules and regulations apply to broker-dealers. If you notice all your investments declined at the same time, it may be a clue that your broker engaged in misconduct. Your brokerage firm has a duty to supervise its brokers to detect and prevent misconduct. You may have a failure to supervise claim. You need a New York Failure to Supervise Lawyer like the lawyers at Malecki Law to review your portfolio, at no cost.

Failure to Supervise Broker Misconduct

Jenice L. Malecki to Moderate PIABA Mid-Year Meeting on Getting Grandma’s Nest Egg Back

April 19, 2022 | Malecki Law Team

The Public Investors Advocate Bar Association (PIABA) will be welcoming back the organization’s former board member, Jenice Malecki, as a moderator for its Mid-Year Meeting and one-day continuing legal education (CLE) program entitled Getting Grandma’s Nest Egg Back. The program kicks off on April 21, 2022, from 12 PM to 6 PM, and will be held via Zoom for registered participants. The CLE program is designed for securities arbitration practitioners, including attorneys, experts, consultants, mediators, educators, but it is also open to the general public.

Ms. Malecki will be moderating the program finale, Strategies and Techniques in Dealing with FINRA Arbitrations Involving Senior Citizens. The panel will feature securities litigator Sandra Grannum from the law firm Faegre Drinker and Professor Christine Lazaro, Director of the Securities Arbitration Clinic at St. John’s University School of Law. The experienced panel of lawyers will delve into strategies and techniques such as client and witness preparation, cross examination of brokers and registered investment advisors (RIAs), tactics commonly employed by defense firms, and what to consider in arbitration when dealing with senior citizen claims specifically.

Financial elder abuse is a topic that is near and dear to Ms. Malecki, who has long been passionate about advocating for retirees who have been taken advantage of or have lost their retirement savings owing to brokerage firms and financial professionals who did not properly manage or supervise their retirement accounts. For nearly 30 years, Ms. Malecki has successfully brought numerous lawsuits on behalf of seniors and retirees who have lost their financial nest eggs, recovering tens of millions of investment dollars on their behalf.

Malecki Law Files Comment in Response to FINRA’s Proposed Modification to Rule 3240 Prohibiting Borrowing or Lending Arrangements Between Brokers and Their Customers

February 15, 2022 | Malecki Law Team

Yesterday, Malecki Law filed its official response to FINRA’s proposed changes to FINRA Rule 3240, in which FINRA seeks to modify the five current exceptions to the general rule that prohibits any “registered person” with a brokerage firm, from borrowing or lending to their customers. The rule applies to registered persons, which is most typically the account’s stockbroker, but applies to any licensed person with the firm. While FINRA has proposed this rule to “narrow the scope” of certain exceptions to the rule, Malecki Law filed its comment because of concerns that some of the modifications do not go far enough and still leaves room for possible abuse of the customer.

The five existing exceptions that currently permit borrowing or lending arrangements with a customer under Rule 3240 are if the customer is (1) a member of the registered person’s immediate family; (2) if the customer is a financial institution; (3) if the customer is also a registered person with the same firm; (4) if the lending arrangement is based on a personal relationship with the customer such that the arrangement would not exist had the personal relationship not existed in the first place; and (5) if the lending arrangements is based on a business relationship external to the broker-customer relationship.

Malecki Law is in favor of Rule 3240’s general prohibition against borrowing or lending to customers, because, as noted in Malecki Law’s filed comment, “there are thousands of brokers and advisors in America,” and therefore plenty “available to take over the debtor or lender’s investment account until the loan is repaid.” So while we support any proposal that narrows the rule, we believe that the inherent conflicts of interest in allowing such arrangements, even with a narrowed set of exceptions, could be entirely avoided in the first place.

Malecki Law Announces the Filing of an Expedited Group FINRA Arbitration Against Henley & Company, LLC, Claiming Henley Failed to Supervise its Recently Deceased Broker, Philip Incorvia, Who Allegedly Operated a Ponzi Scheme Out of a Henley Branch Office

January 14, 2022 | Malecki Law Team

This week, Malecki Law filed its second FINRA arbitration lawsuit against Henley & Company, LLC on behalf of a group of retirees who lost their money in an apparent Ponzi Scheme. Their arbitration alleges that they were victimized by the brokerage firm’s inadequate supervision over its registered representative, Philip Incorvia, by allowing him to run his alleged Ponzi scheme unchecked out of a Henley branch office.

It is alleged that for nearly fifteen years, Henley failed to supervise Mr. Incorvia as he sold fictitious investments in Jefferson Resources and Vanderbilt Realty out of Henley’s Shoreham, New York office. The scheme was uncovered when he died in August of 2021. Investors not only trusted Mr. Incorvia, but their trust was bolstered because Henley’s documents prominently featured a reassuring connection to Jefferson Resources, lending it a sign of legitimacy. For example, Henley featured Jefferson on much of its correspondence sent to customers, including monthly statements, tax documents, and general letterhead. Malecki Law filed its first lawsuit on behalf of a retiree in October of 2021, claiming losses of $2.5 million. Since then, more Henley customers have come forward after demanding answers and failing to receive financial restitution from Henley.

The five investors who are part of the second group lawsuit, filed this week, are claiming losses in excess of $900,000, and are all elderly retirees from New York, New Jersey, Massachusetts, and Florida. FINRA has already granted the group expedited status to the proceedings due to their senior age, which should help fast track a recovery. Some of the investors in the group were already delayed in learning about the scheme because it appears Henley failed to notify them of the fraud, which several of its corporate officers named in the lawsuit were believed to have known about for several weeks or months following Mr. Incorvia’s death. In November 2021, it is alleged that Henley further sent out a misleading letter to its customers, suggesting that they could recover their lost investment funds through an insurance policy benefitting Mr. Incorvia’s personal estate. Henley’s letter failed to mention that the investors seeking a recovery against the estate would likely not have legal standing to bring a claim, since the alleged investments were in the names of a companies, not Mr. Incorvia personally. The letter also omitted that Henley had apparently already sought to claim the proceeds of the policy for itself under contractual indemnification and contribution clauses within Henley’s own employment agreements with Mr. Incorvia.