Broker Fraud

Former NEXT Financial Group Stockbroker’s Claim that He Was Fired for Refusing to Conceal Churning is Subject to Arbitration

Published on: December 16, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Texas Supreme Court says that former NEXT Financial Group Inc. stockbroker Michael Clements’s claim that the brokerage firm fired him for refusing to cover up churning activity must be arbitrated. Clements was hired as a NEXT Financial regional supervisor in September 2006. Nearly a year later, the brokerage firm fired him because he allegedly failed to perform his required broker responsibilities related to an NASD audit.

Clements filed a lawsuit against the company, claiming he was terminated from his job because he refused to conceal the fact that a NEXT trader had violated federal securities laws by churning client accounts. NEXT pushed for arbitration, claiming that Clements had signed a Form U-4 when he was hired, which requires that he resolve any claims with the brokerage firm through arbitration-per the Federal Arbitration Act.

Clements has maintained that because his claim was based on at-will employment and wrongful termination, rather than a contract connected to a commercial transaction, his claim is exempt from the FAA’s arbitration requirement. He also asserted that his claim resulted from NEXT’s alleged illegal behavior, not its business dealings, and that a recent change in NASD code (following the National Association of Securities Dealers’s merger with the Financial Industry Regulatory Authority) indicated an intent to exclude disagreements involving employment matters from arbitration. Clements noted Sabine Pilot Services v. Hauck, (1 687 S.W.2d 733, 1985), a case where the Texas Supreme Court held that an employer had to pay an ex-employee damages because the worker was fired for refusing to perform an illegal act.

The Texas Supreme Court, however, upheld that the FAA was applicable in this case, NEXT could compel arbitration, and the NASD rule 13200 (a) did not exclude employment and termination-related claims. The court’s decision reverses the trial court’s ruling, which denied NEXT’s request, as did the court of appeals.

Related Web Resources:

Next Financial Group Inc.
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Stockbroker Fraud Law Firm Shepherd Smith Edwards & Kantas LTD LLP Investigate Securities Fraud Claims Involving Former World Group Securities Representatives David Olson and Edward Allen

Published on: December 9, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority says that former World Group Securities representative David Olson was named in a customer complaint filed in October 2008. The customer claims Olson persuaded him to buy real estate, which was leased back to the representative. The customer alleges that Olson agreed to pay the customer mortgage payments plus interest.

The customer says Olson defaulted on their deal and stopped making payments. The customer is also accusing the representative of soliciting three promissory notes for purchase and earmarking proceeds to buy other real estate properties.

It is considered improper for a FINRA registered representative to issue promissory notes, borrow money from clients, or engage in undisclosed, outside business.

Shepherd Smith and Edwards is investigating securities fraud claims involving David Olson and business partner Edward Allen, as well as their business entities WFG and A&O Companies. Allen also used to work for World Group Securities.

World Group Securities
World Group Securities brokers have been in the headlines recently following news that the US Securities and Exchange Commission was suing five of them due to allegations that they persuaded investors to use subprime mortgages to refinance their homes. The brokers allegedly were compensated for securities sales and mortgage refinancings.

Related Web Resources:

Shepherd Smith Edwards & Kantas LTD LLP Investigates Claims for Clients of David Olson, Edward Allen and World Group Securities, Inc., Marketwatch.com, December 3, 2008
Securities and Exchange Commission Sues Five World Group Securities Brokers For Persuading Clients to Refinance Homes With Subprime Mortgages, Stokbroker Fraud Blog, October 16, 2008 Continue Reading ›

Lazard Capital Markets Pays $2.8 Million to Settle SEC Charges Over Allegedly Improper Expenditures Made to Fidelity Investment Traders

Published on: November 7, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Lazard Capital Markets, LLC and a number of associated individuals have agreed to pay fines to settle Securities and Exchange Commission charges that over $600,000 was allegedly spent on entertaining Fidelity Investment traders to garner their business. While the SEC says the privately-held broker dealer failed to supervise the three employees that collectively spent money on the improper gifts, four of the company’s former employees were charged for their involvement in the securities laws violations made by the Fidelity traders.

The SEC has charged Fidelity and a number of current and past executives and employees, including ex-Fidelity equity trader Thomas Bruderman, with improperly accepting lavish gifts from brokers. The SEC accuses the former Lazard Capital Markets employees of supplying Bruderman with expensive entertainment and flying him internationally on private planes.

The commission says that David Tashjian, the Lazard Capital Markets’s former US sales and trading department head, and W. Daniel Williams and Robert Ward, two ex-Lazarus trading representatives, “facilitated” violations made by Bruderman. The SEC is also accusing Tashjian and Louis Gregory Rice, the former head of Lazard Capital Markets’s U.S. equity sales and trading desk, of failing to supervise Williams and Ward while they engaged in the alleged misconduct.

By agreeing to settle, Lazard Capital Markets and its four former employees are not admitting to or denying the SEC’s charges. Lazard Capital Markets has agreed to pay $1,817,629 in disgorgement plus $429,379.04 in prejudgment interest, as well as a $600,000 penalty. The broker-dealer has also agreed to be censured.

Tashjian, Williams, Ward, and Rice have agreed to separate suspensions and penalties.

Related Web Resources:

Lazard Capital Markets to Pay $2.8M for Gifts to Fidelity Traders, Financial-Planning.com, November 4, 2008
SEC Charges Lazard Capital Markets, Former Employees for Improper Gifts and Entertainment to Fidelity Employees, SEC, October 30, 2008
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Hedge Fund Manager Settles SEC Charges He Helped Defraud Investors of Nearly $20 Million

Published on: September 18, 2008 | by Shepherd Smith Edwards & Kantas, LLP

A hedge fund manager has settled Securities and Exchange Commission charges that he misrepresented Pinnacle West, LLC and Sunquest Development, LLC as sound investments and, as a result, defrauded investors of almost $20 million. Mark Joseph Peterson Boucher will pay a $100,000 civil fine and will be barred from giving investment advice for five years. He also agreed to a permanent injunction from antifraud violations in the future.

Per the SEC’s complaint, the San Francisco-based hedge fund manager told clients that the real estate development companies did not have much debt and owned viable real property when, in fact, one of the companies did not own any property and the other company owned one property and had debts that exceeded potential profits. Along with the companies’ owners, Boucher was accused of using the invested funds for personal purposes. He is not agreeing to or denying the allegations by settling.

The SEC says that even though Boucher was not a registered investment adviser, he charged a fee to give clients advice. He is the author of the book The Hedge Fund on investing and the SEC says that he recommended the companies to clients in a newsletter that he owns.

Gary Paul Johnson, who owns 20% of Sunquest Development stock, also settled antifraud allegations. As part of his agreement with the SEC, Johnson will pay a $120,000 civil penalty, disgorge over $1.8 million in ill-gotten gains and about $700,000 in pre-judgment interest. Defendant and primary Pinnacle West owner John Earl Brake has not yet reached a settlement with the SEC.

SEC Charges Bay Area Investment Adviser, Others in Real Estate Investment Scam, SEC, August 27, 2008
Read the SEC Complaint (PDF)
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2nd Circuit Reinstates TIAA-CREF Enterprises Inc. Faces Negligence and Breach of Fiduciary Duty Claims

Published on: August 28, 2008 | by Shepherd Smith Edwards & Kantas, LLP

TIAA-CREF Enterprises Inc. is once more facing claims of negligent misrepresentation and breach of fiduciary duty following the US Court of Appeals for the Second Circuit’s reinstatement of the claims. The appeals court, however, did affirm the District Court’s decision to dismiss the 1934 Securities Exchange Act Section 10(b) and New York fraud claims.

Per the court’s account, plaintiff Vera Muller-Paisner filed the lawsuit against TIAA-CREF Enterprises Inc. and other entities. Mueller-Paisner was the executrix of the estate belonging to a woman named Mary Engel, who had purchased a fixed annuity from the defendants for about $1.2 million. The annuity was to pay Engel $8,000 each month until her death.

Engel would have recovered the purchase price in 12 years, but she
died six months after buying the annuity and had only collected $48,000. Muller-Paisner discovered that most of Engel’s assets had been used to buy the annuity. This made it impossible for the executrix to dispose of the decedent’s estate, per Engel’s will.

While the district court had dismissed the entire lawsuit, this month, the appeals court affirmed part of that ruling and reversed it in part.

The 2nd circuit says it dismissed common law fraud and federal securities claims because the plaintiff did not sufficiently allege both a scienter and that there had been a materially misleading misstatement or omission. The appeals court, however, also ruled that Muller-Paisner’s allegations were enough to withstand any motions to dismiss the negligence and breach of fiduciary duty claims. It noted, among the plaintiff’s allegations, claims by the defendants that they have the resources and system in place to help customers buy the best options available to them that will maximize their income and allow them to support their post-retirement lives.

Related Web Resources:

US Court of Appeals for the Second Circuit
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SEC Charges Former AG Edwards and Bank of America Broker With Misappropriating $1.3 Million from Customers

Published on: August 15, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has filed a complaint charging Brent S. Lemons, a former AG Edwards Inc. and Bank of America Investment Services Inc. stockbroker, with misappropriating over $1.3 million from at least three clients. He allegedly used the money to pay off his gambling debts.

The Commission is accusing Lemons of violating Section 10(b) of the Securities Act of 1934 and Rule 10b-5 there under. The SEC says that Lemons, who managed the financial affairs of certain customers, had clients sign brokerage and bank documents in blank. The former stockbroker allegedly then told them he would use the documents to liquidate securities in their accounts and reinvest any proceeds in instruments that were higher yielding.

The SEC is seeking a permanent injunction against Lemons, as well as disgorgement with prejudgment interest and a civil penalty. He also faces criminal charges related to his alleged misconduct.

Broker Misconduct
It is wrong for a stockbroker to misappropriate investor funds for personal use. If you have lost money because of broker misconduct, our stockbroker fraud lawyers can help you determine whether you have grounds to file a claim to get your money back.

Examples of common claims involving broker misconduct:

• Unsuitability • Misrepresentation • Overconcentration • Omissions • Churning • Failure to Supervise • Failure to Execute Trades • Breach of Fiduciary Conduct • Breach of Contract • Negligence • Breach of Promise • Margin Account Abuse • Unauthorized Trading • Registration Violations
Related Web Resources:

SEC Charges Brent Lemons, Former Registered Representative From Tyler, Texas, With Fraud, SEC.gov
Read the SEC Complaint (PDF)
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State Regulators Investigate World Financial for Deceptive Sales Practices

Published on: June 10, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Security regulators in Missouri, Utah, and a number of other US states are accusing World Financial Group of making variable annuities sales that are unsuitable and misrepresenting investment returns. A number of World Financial customers have filed private arbitration claims making similar allegations.

World Financial is owned by Dutch insurer Aegon NV. World Financial’s agents sell annuities, life insurance, and mutual funds. Unlike more traditional sales teams, however, agents make money based on a pyramid-like multilevel sales system. The agents receive most of their compensation from their recruitment of new agents rather than products sales, including a portion of the commissions that the new agents make.

In a 2006 investor presentation, Aegon USA CEO Patrick Baird called World Financial a “real recruiting machine.” The company reportedly has over 18,000 licensed insurance agents and brokers and, according to an Aegon executive in 2006, about 80,000 “producers,” which includes unlicensed and part-time members. Those who meet sales goals are awarded jewelry and trips to the top of the Transamerica Building in San Francisco that is owned by Aegon. Clients are sometimes invited to join the company’s sales force.

Ex-Assent LLC Broker Pleads Guilty to Concealing Insider Trading Activities

Published on: April 17, 2008 | by Shepherd Smith Edwards & Kantas, LLP

In the U.S. District Court for the Southern District of New York on April 10, ex-Assent LLC registered broker Samuel Childs pled guilty to a conspiracy charge to commit securities fraud, wire fraud, and commercial bribery for agreeing to receive $100,000 in exchange for concealing insider trading activities from Assent senior executives. In court, Childs, 35, announced that he was 100% guilty.

This case is part of a broader criminal probe involving 13 people that have pled guilty to a massive insider trading scheme involving data they acquired from Wall Street brokerage companies. Defendants included ex-employees from Morgan Stanley, UBS AG, Bear Stearns Co, and Bank of America Corp.

The Justice Department says that one of the defendants, former UBS Securities executive Mitchel Guttenburg, had sold nonpublic data prepared by UBS stock analysts to another defendant, trader David Tavdy.

Two Brazilian Nationals Indicted For Alleged Involvement In $50 Million Telemarketing Scheme

Published on: April 3, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Two Brazilian nationals have been indicted on money laundering and other charges related to an alleged $50 million international penny stock scam that took money from many international investors.

The two defendants, Marcos Macchione and Rodrigo Molina, face charges of money laundering, conspiracy, and participating in illegal financial transactions. The two men reside in Florida and are being charged in connection with their involvement with the US part of the securities scam. A Florida jury handed out the indictment in the U.S. District Court for the Southern District of Florida.

Doron Mukamal, the alleged leader of the telemarketing securities scam, was also arrested. He lives in Brazil, as do his 17 partners, employees, associates, and money launderers that were also arrested.

FINRA Says Ex-Morgan Stanley Stockbroker Misappropriated Nearly $400,000 From 97-Year-Old Widow

Published on: February 27, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority is charging stockbroker John Mullins with misappropriating nearly $400,000 from an elderly widow and her charitable foundation. Esther Weil, a 97-year-old widow, died earlier this month. She was living in a nursing home. Mullins was her stockbroker for over 20 years.

Mullins allegedly tried to conceal his status with his elderly client’s charitable foundation. John and his wife Kathleen were the trustees of Weil’s nonprofit foundation-a relationship that is prohibited by Morgan Stanley’s firm policies. Morgan Stanley employed the Mullins from 2002-2006. The company fired them after it was discovered that they were violating company policies.

John is accused of allegedly misappropriating funds from his employer for improper expenses, making misstatements on his firm’s yearly compliance questionnaires and Form U4, and accepting an unauthorized $100,000 loan from a client.