Articles Posted in This Week At Malecki Law

On Friday, Malecki Law securities attorneys Jenice Malecki and Darryl Bouganim traveled to Washington D.C to lobby on behalf of investors as part of PIABA’s annual Hill Day. PIABA is an international bar association for securities attorneys representing investors in disputes within the financial services industry. As part of Hill Day, PIABA attorneys from across the nation met with representatives and their legislative aids on Capitol Hill to lobby for stronger investor protection. Following a day of discussing the issues amongst PIABA members, our attorneys met with officials across party lines including at the offices of Brian Higgins, John Katko, Tom Reed, Danny Davis, John Hawley, Tim Scott, and Patty Murray.  Alongside other PIABA members, Malecki Law securities attorneys lobbied for the FAIR Act; legislation to fund outstanding arbitration awards; and modification or clarification of the proposed Regulation Best Interest.

On Capitol Hill, Malecki Law attorneys lobbied for members of the House of Representatives and Senate to co-sponsor the Forced Arbitration and Repeal Act, known as the FAIR Act. U.S Rep. Hank Johnson (D-GA) and U.S Sen. Richard Blumental (D-CT) introduced the FAIR Act to end the use of mandatory arbitration in their effort to restore public accountability. As it stands now, investors must sign contracts with forced arbitration clauses when opening new brokerage accounts. The FAIR Act outlaws forced arbitration, thereby granting investors the freedom to choose venues besides private arbitration to adjudicate their disputes. Investors will still have the option to choose to use arbitration under FINRA rules, just as how it was before the historic Shearson/American Express v. McMahon case.

Mandatory arbitration clauses within investment account contracts undermine investors’ rights for fair process and their right to trial by jury under the 7th amendment. The industry’s self-regulatory agency, FINRA runs arbitrations as off the record legal proceedings. Instead of a judge and jury, one or three arbitrators decide on the verdict of cases. A major problem is that arbitrators are usually industry people who tend to be overwhelmingly older, white and male. Thus, the arbitration pool is not diverse enough for the diverse investors that use it to feel their case is being heard by their peers, which undermines the process. Additionally, arbitrators do not have to apply the law or include any reasoning behind their decisions. When only 40% of their cases win their cases, the process should be more transparent especially with the other forces that could foster bias. Even after winning their case in arbitration, investors sometimes cannot collect their damages from the wrongdoers found liable. This undermines self-regulation.

Malecki Law’s newest securities attorney, Michael Liik will speak to law students on a panel at his alma mater, the Elisabeth Haub School of Law, tomorrow February 14, 2019. The event will feature a panel of lawyers educating law school students about their practice areas along with the ropes of professional networking.  As an attorney panelist, Mr. Liik will provide career advice as well as share his experiences as a former student now working as a securities attorney in New York City.

It is with great honor that Mr. Liik accepts this invitation to join the panel from the New York City Bar Association and Elisabeth Haub School of Law at Pace University. Since graduating a few years ago, Mr. Liik has remained involved as an active member of his school’s alumni community. Continue reading

Yesterday, a Financial Industry Regulatory Authority (FINRA) arbitration panel in New Jersey, FINRA Case No. 03-08177, handed down a decisive award in favor of a trader, who was also a Series 7 registered broker.  The trader was sued by a retail investor relating to his recommendation of a municipal bond nearly fifteen years ago.  The arbitration was first filed with the National Association of Securities Dealers in November of 2003, which predates the entity’s merger with the enforcement and arbitration arm of the New York Stock Exchange to form FINRA.  The matter, which started in arbitration, winding its way in and out of the New Jersey courts, was the oldest and longest running case in FINRA’s history.  As argued before the arbitration panel by the broker’s attorney, Jenice L. Malecki, “this case was nearly old enough to drive and only three years away from being allowed to vote.”

In addition to dismissing the investors’ claims in their entirety, the arbitration panel made the rare, and ultimately just, decision to award the trader $47,831.01 in attorneys’ fees based on the panel’s finding of “malicious prosecution” by the claimant investors.  The panel further recommended expungement of the complaint from the broker’s registration records, as maintained by the Central Registration Depository (CRD), finding the investors’ allegations to be without merit and false.  The case was in and out of arbitration and court numerous times over the years, contributing to its length.

According to the award, the Claimants in this case, in connection with their single purchase of municipal bonds, had alleged damages against the Respondent trader “in excess of $500,000.00 but not less than $1,000,000.000, the exact amount to be proven at the hearing.”  However, as the panel determined, the investors had suffered no losses at all but in fact, received interest and turned a profit:

Investors are encouraged to watch out for “false prophets” that commit affinity fraud by targeting members of religious communities. CNBC posted an article about rampant religious-based fraud with securities attorney Jenice Malecki’s commentary for tonight’s new episode of true crime series American Greed. The episode, entitled “An Ungodly Scammer” will feature the story of convicted multimillion-dollar Ponzi Scheme fraudster Ephren Taylor, who targeted churchgoers. Ephren Taylor pleaded guilty to conspiracy to commit wire fraud and sentenced to 235 months. In an interview for tonight’s premiering American Greed episode, Jenice Malecki comments on Ephren Taylor’s religious fraud with a warning for investors to be on the lookout for affinity fraud.

Ephren Taylor collected millions of dollars by traveling to megachurches in 43 states to solicit investors in his low-risk investments as part of his “Building Wealth” tour. In his visits, Ephren Taylor spoke of his status as a self-made multimillionaire from a young age to represent his credibility. Investors listened and believed as Ephren Taylor used religion to garner their funds through his “prosperity gospel” sales pitches. Ephren Taylor claimed to sell investors high yield promissory notes that would finance socially responsible ventures that included low-income housing projects. Instead, provided funds were being allocated to Ephren Taylor’s personal expenditures and occasional false “returns” to existing investors, as part of a Ponzi Scheme.

Now, victims of Ephren Taylors’ Ponzi Scheme are left distraught and defrauded out of millions of dollars in life savings after falling prey to his affinity fraud. Affinity fraud refers to an investment scam that targets members of identifiable groups based on shared commonalities. The affinity fraud perpetrator will leverage represented membership within the group to exploit trust and sell a fraudulent investment. Jenice Malecki told CNBC that in affinity situations, people would tend to be comfortable enough to blindly trust those that share membership within their church or ethnic communities. A famous example of this is Bernie Madoff’s Ponzi Scheme which raised billions through targeting Jewish communities.

Malecki Law is pleased to announce that a FINRA arbitration panel granted 28 expungements for three broker clients with customer complaints from their sale of Puerto Rican closed-end funds. The 28 expungements were granted as part of a FINRA arbitration award, the claim filed on behalf of nine Puerto Rico brokers against UBS; only three sought expungements. This winning result for our UBS Puerto Rico broker expungement case was detailed in an unusually long 40-page Award posted to the FINRA Dispute Resolution Portal yesterday.

Malecki Law filed this case in July 2015 and worked through the completion of discovery with a local PR lawyer, Benjamin Quinones Lebron Esq. before also teaming up with Harris, St. Laurent & Chaudhry LLP to try the numerous witness case in Puerto Rico. The FINRA arbitration claim filed on behalf of nine brokers, sought $30 million plus fees in addition to expungement. The monetary portion of the arbitration claim was resolved to the satisfaction of all parties. Only three of the nine brokers chose to move forward with expungement claims after the monetary portion was resolved.

The majority-public panel issued the award after considerable deliberation regarding the merits of the brokers’ request. In fact, the FINRA arbitration panel had a week of hearings, a time frame longer than usual. FINRA considers expungement to be an “extraordinary remedy” that should only be recommended in certain situations that do not compromise investor protection.

Malecki Law attorney Jenice Malecki was on the set of business news network CNBC’s documentary true crime series American Greed yesterday to speak about affinity fraud for an upcoming episode. American Greed provides in depth-reporting exposing Ponzi Schemes, mortgage fraud, art heists, identity theft, and other shocking things people have done for money. For twelve seasons, American Greed has examined the most extensive corporate and white-collar crimes in American history. The documentary series currently airs new episodes on the CNBC network on Monday nights at 10 PM EST.

In the interview, Jenice Malecki leveraged her knowledge as an experienced securities attorney to answer questions about affinity fraud. Affinity fraud is a type of investment scam that targets members of the same identifiable groups based on religion, ethnicity, age and other commonalities.  Typically, an affinity fraud perpetrator will be or at least pose as a member of the group to exploit trust and relationships. Otherwise, the fraudster might elicit the help of a group member to orchestrate the scam, which is frequently a Ponzi or pyramid scheme.

In this segment, Jenice Malecki describes affinity fraud along with the telltale signs that should induce concern. Notably, Jenice Malecki emphasizes the importance for investors to do their due diligence in gathering information before investing. With this in mind, the seller should be able to provide information regarding the investment’s purpose, objective data, and history. Furthermore, Jenice Malecki offers helpful tips for anyone suspecting affinity fraud to respond appropriately to the situation.

Last week, Malecki Law filed an amended FINRA arbitration complaint against Securities America on behalf of victims claiming that the broker-dealer’s inadequate supervision over its registered representative, Hector May, permitted his alleged Ponzi Scheme to happen. Securities America failed to act as Hector May sold fictitious “tax-free” corporate bonds from his New City Securities America office with his Securities America approved Registered Investment Advisory business, Executive Compensation Planners. The amended complaint adds two pension plans as additional plaintiffs joining the original nine victims specified in the June 18th filing. Our announcement of the filing to the press piqued the interest of the media including a reporter who interviewed attorney Jenice Malecki for an article in Lohud, as well as an article in Financial Planning magazine.

Hector May was formerly a Securities America registered representative, who reportedly managed more than $18 million in assets according to his Form ADV. Before the alleged Ponzi scheme surfaced, Hector May was an influential community member who donated to charities and political candidates. Claimants alleged that Hector May simply used his community status to issue, solicit and sell these non-existent securities products. Now, Hector May is being investigated by multiple government agencies for alleged fraud resulting in millions of dollars bilked from unsuspecting investors. Of course, Hector May refuses to provide answers regarding the whereabouts of the invested funds or any further details about the transaction activities in dispute.

The amended complaint now alleges that Hector May also stole money from two New York company’s pension plans while running his Securities America branch office.  The newly added pension plans’ beneficiaries were allegedly sold fictitious “tax-free” corporate bonds. Hector May allegedly told company beneficiaries not to worry since their invested money would be in “safe places” under his RIA with Securities America. Hector May’s reassuring comment could not be further from the truth, hidden by his falsely produced employee benefit plan and annual reports. Consequently, company employees have been defrauded out of millions of dollars that had been intended to be their income upon retirement.

Malecki Law was featured in the news for filing a FINRA arbitration claim on behalf of investors alleging that Securities America failed to perform proper supervisory duties as their formerly registered broker, Hector May allegedly operated a Ponzi Scheme. In the Financial Planning article, investor fraud attorney Jenice Malecki provides additional information and commentary on her representation of nine clients against Securities America. Financial Planning provides breaking and daily news coverage as well as analysis to help independent financial advisors better their business, practice and client services. Readership often includes independent broker-dealers, financial planners and other industry professionals seeking insights into the highly regulated securities industry. Malecki Law spoke with Financial Planning to spread the message so that other innocent victims who lost their hard-earned savings may seek justice.

Investor fraud attorney, Jenice Malecki released more details regarding the specific allegations relating to Hector May’s allegedly fraudulent practices against investing clients to Financial Planning in hopes of raising awareness. Allegedly, victims of the New City broker’s Ponzi scheme were under the impression that Hector May invested their money into “tax-free” bond products from firms like General Electric. The clients later learned alleged Ponzi Schemer’s “tax-free” bond products were non-existent and apparently just words on false account statements.  When asked for a comment, Hector May’s attorney declined to provide a comment regarding a case started by a law firm placing ads in the newspaper for clients.

The clients are filing the claim only against Securities America since Hector May already had assets frozen and could not pay the award, Jenice Malecki commented.  FINRA rules place broker-dealers at fault for investment losses resulting from their failure to properly supervise and detect a Ponzi Scheme committed by their registered representative. Securities America had an obligation to monitor Hector May’s activities, including the fraud that transpired. Clients are claiming that Securities America missed many “red flags” that would have clued off a Ponzi Scheme.

Malecki Law filed an expedited FINRA arbitration complaint today on behalf of nine investors from Upstate New York, Northern Virginia and Long Island, New York alleging that Securities America, Inc. failed to supervise its registered representative Hector May and failed to audit his remote Securities America office, which it is alleged in essence allowed his alleged Ponzi-type fraud to persist for many years. Through these alleged supervisory shortcomings, it is alleged that Securities America’s Inc. aided and abetted fraudulent practices conducted by its registered representative as well as in his disclosed, approved SEC-registered investment advisor, Executive Compensation Planners, Inc. “At some point, a license to sell securities can become a license to steal when there is inadequate supervision of these remote brokerage firm offices,” offered well-known securities attorney Jenice Malecki.

Executive Compensation Planners was supposed to solicit wrap fee programs through Securities America, according to its Form ADV filed with the SEC.  Instead, as alleged in the FINRA pleading, Hector May had wires sent and checks written directly to Executive Compensation Planners; created fictitious statements; and pocketed client funds. Hector May reported managing $18 million in his Form ADV. Mr. May’s FINRA BrokerCheck report indicates that Hector May, who had been with Securities America since 1998, was terminated for misappropriation of clients’ assets just after the Department of Justice initiated a criminal investigation into his suspected felony, along with investigations by the U.S. Postal Inspectors and the United States Securities and Exchange Commission.

Prior to his alleged conduct coming to light, Hector May was widely known with an excellent reputation within his New York Community, often sponsoring charities – “clients now want to know if he was using their money to be charitable,” said Jenice L. Malecki, Esq., a securities lawyer in New York.  Mr. May’s wife, daughter and other family members are alleged to have worked with him.

Can’t imagine having a retirement brokerage account drained in a case of preventable identity theft? Such an unimaginable misfortune is a devastating reality for an investor alleging in a FINRA arbitration complaint that he had the entirety of his account at Invesco stolen, without any help or recompense from the brokerage firm.  An unidentified perpetrator used this unsuspecting investor’s private identifying information to access and steal money from a 401k retirement account. Malecki Law securities fraud attorneys recently filed a claim against Invesco Distributors Inc, on behalf of this investor alleging their failure to safeguard their client’s assets pursuant to FINRA Rules, SEC Regulations, and securities laws.

This foreseeable fraud initiated when, just around the busy Christmas holiday season, an unidentified individual accessed our client’s Invesco retirement 401k. The perpetrator changed the email address and phone number, which had previously been on file for ten years. Within days, the perpetrator stole funds totaling over $100,000 from the investor’s Invesco 401k brokerage account. The perpetrator also successfully took a loan against the 401k account and transferred money to a bank account not owned by our client. Furthermore, Invesco transferred $25,000 to the IRS as a penalty for borrowing against the 401(k) accounts. Amazingly, the investor learned of these unauthorized account transactions only from checking Invesco’s account portal.

Invesco Distributors, Inc. is an indirect wholly owned subsidiary of Invesco Ltd, according to their official website. Invesco Ltd. announced in a recent press release that their firm manages an estimated $972.8 billion in client assets. Based in Texas, Invesco Distributors Inc., is their U.S distributor of mutual funds, exchange-traded funds, institutional money market funds and other retail products. As a FINRA registered broker-dealer, Invesco Distributors Inc. is expected to comply with required industry practices, statutes, rules, and regulations. FINRA rules, SEC regulations and securities laws exist to encourage brokerage firms to protect their investor’s information.