Investor Lawyers Blog

What’s in a Title? Washington State Securities Regulators Want to Know

Published on: July 20, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Ever notice how impressive titles are thrown around in the field of investments? Just what, if anything, to these mean. The Washington State Securities Division has proposed that that anyone who uses a professional designation that connotes some type financial planning expertise should fulfill the requirements and register as an investment adviser.

The Washington Department of Financial Instututions “notes the growth in the use of professional designations which state or imply that a person has special expertise, certification or training in financial planning,” as quoted in a release by the North American Securities Administrators Association Inc. (NAASA).

The state therefore plans to clarify its rules to consider a person who uses such a professional designation as holding himself out as a financial planner. It would also prohibit the misleading use of other professional designations. Washington and other states have expressed the need to limit designations regarding advisors to senior citizens. Washington has now expanded its efforts to control the use of designations to protect investors of all ages.

Securities Class Action Filings Fall Dramatically

Published on: July 20, 2007 | by Shepherd Smith Edwards & Kantas, LLP

WIth securities class actions being dismissed at an alerming rate and charges being filed against high-profile securities class action attorneys, it’s not suprising that securities class action filings fell 42% in the first half of 2007. In fact, this is the fourth consecutive semi-annual drop in filings of such cases, according to the Stanford Law School Class Action Clearinghouse and Cornerstone Research.

The study group has propounded a variety of possible theories for the precipitous drop in securities class actions. One absolutely preposterous theory, unsupported by data, is that securities fraud has dropped because of prior settlements and fines. A spokesman from the Stanford group states: “Economic theory suggests these factors should lead to a decline in the incidence of fraud–exactly what we have seen occur since the middle of 2005.”

Another of the group’s questionable explanations for the decrease in securities class action filings is a “strong stock market” hypothesis. Under that hypothesis, decreased levels of class action filings correlate to a strong stock market with low volatility. Yet, historical data also does not support this hypothesis.

What’s in a Name? Ask the NASD

Published on: July 19, 2007 | by Shepherd Smith Edwards & Kantas, LLP

The NYSE and its former boss Dick Grasso were heavily criticized over salary and benefits to Grasso of well over $100 million. Many thought it unconscionable for the head of a self-regulatory body to earn that kind of money. For that reason, and so it could play ball in the international arena, the NYSE simply bribed all 5000+ members of the NASD $35,000 each to vote to take over its regulatory functions.

The National Association of Securities Dealers, Inc. is an association. Its members are securities dealers. Yet, it does not like its name and wants to change it. After all, it sounds strange for an association of securities dealers to be the primary regulator of securities dealers – too much like a fox in charge of a hen house.

The NYSE takeover seemed a perfect excuse to change the name. So a few folks at the NASD thought about names that would sound more like it was something other than an association of securities dealers. After not so careful thought, the NASD came up with “The Securities Industry Regulatory Authority”, or SIRA.

Enron Victims, Now Victims of Their Own Government, Finally Find Friends in Former Regulators

Published on: July 19, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Defrauded Enron shareholders recently lost again, this time as victims of federal judges who seem intent on helping Wall Street crooks rather than Wall Street victims. With their case before the U.S. Supreme Court, the Enron shareholders lost yet again when the SEC and Bush Administration, who had indicated they would intervene, missed a deadline. Now, three former SEC Commissioners are asking the Supreme Court to allow them to intervene to help.

In 2001, the total value of Enron shares plummeted from over $80 billion to almost zero. Enron officials and its auditors were indicted, several persons were convicted and some are now serving jail terms. The auditing firm of Arthur Anderson was forced to close. The scandal then turned to several Wall Street firms which are claimed ot have played a large role in assisting Enron to falsify its books.

Several individuals and firms were accused – and four former Merrill Lynch Brokers were convicted of by a jury – for arranging loans to appear as sales in order for Enron to book the loans as profits. Yet, just as the Enron shareholders’ claims against Merrill Lynch were headed for trial, business-friendly appointed appellate judges dismissed the case.

Edward Jones Must Pay $75 Million For Failing to Disclose Mutual Fund Incentives

Published on: July 19, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Edward D. Jones & Co. will pay $75 million to settle charges by the Securities and Exchange Commission that it failed to adequately disclose financial incentives to sell mutual funds from its Preferred Families of mutual funds.

The SEC also said that Edward Jones did not make adequate disclosures on its website about its revenue sharing, its directed brokerage payments and other payments for distribution of mutual fund shares. The firm was also accused of failing to disclose information about college savings (or “529”) plans it sold.

Edward Jones agreed to pay $37.5 million in civil penalties, as well as $37.5 million in disgorgement, and to alter its website disclosures about the preferred mutual fund family program and the college savings plan, but neither admitted or denied the claims against it.

Wedbush Hit with Nun’s Complaint over CMO’s – May Have More Than Brokers in Common with Brookstreet

Published on: July 18, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Last month, when Brookstreet Securities suffered a flame-out over high risk mortgage investments, its second in command, also the son of its founder, joined Wedbush Morgan and invited Brookstreet brokers to join him at that firm. Some thought it an odd fit, but the firms may have more in common than earlier believed.

Recently, a group on nuns, who claim they were led to believe they were making safe investments, apparently had their funds invested by Wedbush into mortgage-backed CMO securities which were just pools of mobile home loans. They soon lost $1 million, according to a complaint filed by The Sisters of St. Joseph of Carondelet in California against Wedbush Morgan in arbitration through the National Association of Securities Dealers.

Ed Wedbush, president of the firm that handled the nuns’ investments, said in an interview that the losses in this and other cases came on the riskier portions of mortgage investments and were the result of “clients being very aggressive and wanting high yields.” They should have understood, he said, that “high yield is high risk.” (The statement resembles another recently made by Oppenheimer & Company, which claimed an elderly widow “only has herself to blame” for losses in a joint account as her husband lay dying. Oppenheimer was subsequently fined $1 million and ordered to reimburse over a million to the widow by the state of Massachusetts.)

UBS to Pay $23 Million over Charges by NY Attorney General of Abuse in Fee-based Accounts

Published on: July 18, 2007 | by Shepherd Smith Edwards & Kantas, LLP

UBS Financial Services, Inc. will pay $23.3 million to settle charges by New York’s Attorney General of “inappropriately steering” of brokerage customers into fee-based accounts. The NYAG said that under the agreement UBS will pay a $2 million fine and $21.3 million to approximately 3,000 customers it inappropriately placed in its InsightOne program.

According to the NYAG office, UBS charged one 91-year-old InsightOne client more than $35,000 over two years, although only four trades transpired in his account, meaning each trade cost him approximately $8,800. In another example, it says an 82-year-old paid approximately $24,000 in InsightOne fees one year in which only one transaction took place.

“UBS convinced customers to rely on its advice and then abused that trust,” said NYAG Andrew Cuomo. “This major settlement is a win for customers inappropriately pushed into unsuitable brokerage accounts and a warning to the entire industry that customers’ interests must come first.”

SEC Fines of Invesco and AIM Advisors to Fund $375 Million in Payments to Victims of Late Trading Fraud in Mutual Funds

Published on: July 18, 2007 | by Shepherd Smith Edwards & Kantas, LLP

After a widespread investigation into late-trading of mutual funds the SEC levied sanctions against various mutual fund management companies and others, including fines as well as orders to disgorge profits and to reimburse the victims of the fraudulent trading. In 2004, Invesco was ordered to pay $325 million and AIM Advisors was ordered to pay $50 million.

The basis of the fraud was simple: Closing prices of mutual fund shares are set based on closing prices of the shares held in the funds. However, inflow and outflow of funds can legitimately occur based on orders placed prior to the close. The fraudulent orders were placed after the market closed but were made to appear as earlier orders. Those transacting the late orders had the unfair advantage of news announced after the close as well as post-closing changes in stock prices.

Over several years, billions were reaped from such improper market timing activities. The victims of the fraud were the millions of legitimate owners of the mutual funds. The SEC has established what it calls “Fair Funds” to reimburse victims of late trading and other scams. This week over $300 million will be also distributed to Time Warner shareholders who bought based on improper financial data. The SEC says that, with these distributions, the total paid from Fair Funds now tops $2 billion.

Securities America Fined $375,000 Over Secret Commissions Directed to Its Broker

Published on: July 18, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Securities America, Inc. agreed to a $375,000 fine to settle charges by the NASD that it received improperly directed mutual fund commissions on behalf of one of its brokers, failed to supervise and failed to disclose the arrangements to the affected mutual fund owners.

The NASD said that this situation, in which a mutual fund company directed brokerage fees specifically for the benefit of a lone broker, is the first known case of its kind. NASD rules prohibit registered firms from allowing sales personnel to participate in directed brokerage arrangements. NASD fair dealing regulations also require disclosure to clients of such fees and other compensation received through arrangements involving their accounts.

A directed brokerage arrangement is one in which a client, such as a pension fund, directs a planner to use a certain broker-dealer for trade executions. In return for the commissions received on the transactions, the broker-dealer provides other services to the advisor or these can be rebated to the clients. The Securities America broker arranged for such commissions from union-sponsored retirement plan clients to be directed to his firm for his own benefit.

Margin Debt on NYSE Stocks Over $350 Billion – Record Debt Brings New Warnings of Risks

Published on: July 12, 2007 | by Shepherd Smith Edwards & Kantas, LLP

Margin debt owed on stocks listed on the New York Stock Exchange has surpassed $350 billion. This is up to $35 billion, or over 10%, in just one month. The jump in margin debt brings new warnings to investors concerning the risks of leveraged investments.

Traditional theories concerning the stock market include that small investors are always wrong. They jump into the market when it is near its highs and get out near the lows. There is both a guesstimate and empirical data to support this theory. One measure of investing by small investors is margin account debt. With the exception of hedge funds, most large investors do not use margin.

Considering this theory, the warnings are thus two-fold. Not only is high margin account debt an indicator of a market top, but margin investing can also be very dangerous. Margin debt amplifies losses and even a moderate drop in stock prices can cause forced liquidations. As well, the cost of margin interest exacerbates losses in leveraged accounts. Non-margined investors can wait for recovery without liquidation or enduring interest costs.