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The New Hampshire Bureau of Securities Regulation is reportedly investigating Merrill Lynch and Charles Kenahan, one of its top-producing brokers, over customer complaints alleging “churning” in their accounts that resulted in damages of approximately $200 million. Churning, or excessive trading, occurs when a broker or financial advisor trades securities in a customer’s account at high frequency in order to generate commissions rather than advance the customer’s best interests. According to multiple sources familiar with the New Hampshire securities regulator’s investigation, the churning claims that alerted the regulator stem from two arbitrations filed before the Financial Industry Regulatory Authority (“FINRA”), one by former New Hampshire Governor Craig Benson and the other from Benson’s long-time friend and business partner, Robert Levine.

According to CNBC, which obtained documents from the FINRA arbitrations, Benson’s claim, currently pending before FINRA, names Merrill Lynch, Kenahan, and another Merrill Lynch advisor Dermod Cavanaugh and alleges damages in excess of $100 million due to churning and unauthorized trading. Levine’s arbitration claim sought approximately $100 million in damages based on allegations of churning, unsuitable investment recommendations and misrepresentation.

According to news outlets, Benson and Levine originally met Kenahan through Cavanaugh, who had been the accountant for Cabletron Systems – a company Levine and Benson co-founded out of Levine’s garage. Levine and Benson said they thought they could trust and that Cavanaugh and Kenahan would act in their best financial interests, so they decided to move their individual investment accounts into the care of the two men.

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In October 2019, a Maryland District Court judge sentenced Kevin B. Merrill, a salesman, and Jay B. Ledford, a former CPA, to 22 years and 14 years in federal prison, respectively, each followed by three years of supervised release, arising from an investment fraud Ponzi scheme that operated from 2013 through September 2018 and raised more than $345 million from over 230 investors nationwide. The judge ordered Merrill and Ledford to pay full restitution for victims’ losses, which is at least $189,166,116, plus forfeiture of additional sums still to be determined. Cameron R. Jezierski, a key employee of two companies controlled by Merrill and Ledford, was sentenced in November 2019 to serve 2 years in prison and an additional year of home confinement for his role in the fraud. The criminal charges and recent sentencing stem from an action filed by the U.S. Attorney’s Office for the District of Columbia.

In a parallel action, the U.S. Securities and Exchange Commission’s (“SEC”) filed a complaint in federal district court in Maryland in September 2018 against Merrill, Ledford and Jezierski alleging that, from at least 2013 to 2018, they attracted investors by promising substantial profits from the purchase and resale of consumer debt portfolios. Consumer debt portfolios are defaulted consumer debts to banks/credit card issuers, student loan lenders, and car financers which are sold in batches to third parties that attempt to collect on the debts. Instead of using investor funds to acquire and service debt portfolios—as they had promised— Merrill, Ledford and Jezierski allegedly used the money to make Ponzi-like payments to investors and to fund their own extravagant lifestyles, including $10.2 million on at least 25 high-end cars, $330,000 for a 7-carat diamond ring, $168,000 for a 23-carat diamond bracelet, millions of dollars on luxury homes, and $100,000 to a private fitness club. Merrill, Ledford and Jezierski allegedly perpetrated their fraudulent scheme by lying to investors, creating sham documents and forging signature. The victims included small business owners, restauranteurs, construction contractors, retirees, doctors, lawyers, accountants, bankers, talent agents, professional athletes, and financial advisors located in Maryland, Washington, D.C., Northern Virginia, Boulder, Texas, Chicago, New York, and elsewhere.

The SEC obtained an emergency asset freeze and the appointment of a receiver. The receiver is empowered to pursue actions on behalf of the receivership estate to recover assets for the benefit of defrauded investors, victims, and creditors. Avoidance (“clawback”) actions are often brought by a receiver in bankruptcy court after a Ponzi scheme or fraud is revealed. Clawback actions are commenced to recover funds distributed to victims or investors by the fraudster operating the Ponzi scheme or fraud.

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On July 17, 2020, the Supreme Court of the State of New York (Commercial Division) confirmed a FINRA Arbitration Award against Credit Suisse for approximately $6.68 million, including unlawfully withheld deferred compensation, interest, attorneys’ fees, and liquidated damages pursuant to the New York Labor Law.  See Lerner and Winderbaum v. Credit Suisse Securities (USA) LLC, Index No. 652771/2019 (N.Y. Sup. Ct.), Doc. 140.   

The two former Credit Suisse investment advisers, represented by Lax & Neville LLP, sued Credit Suisse for breach of contract, fraud and violation of the New York Labor Law after it closed its US wealth management business in October 2015 and cancelled their earned deferred compensation.  Credit Suisse defended the claims on the grounds that its former advisers voluntarily resigned after it told them they were being terminated, that future compensation by their next employer “mitigated” their damages, and that the New York Labor Law does not apply to deferred compensation.  A three member FINRA Arbitration Panel found for the advisers and ordered Credit Suisse to pay  compensatory damages totaling $2,787,344 and interest, attorneys’ fees, FINRA forum fees, and liquidated damages equal to 100% of the advisers’ unpaid wages pursuant to New York Labor Law § 198(1-a).  The FINRA Panel also recommended that the “Reason for Termination” on the advisers’ Form U-5 be changed from “Voluntary” to “terminated without cause.”

Credit Suisse petitioned to vacate the Award for manifest disregard of the law, “challeng[ing] FINRA’s finding that petitioners’ deferred compensation qualified as wages under Labor Law §198 (1-a).”  Lerner at 3.   Rejecting Credit Suisse’s petition to vacate the Award in its entirety, the Court held:

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On June 4, 2020, the Financial Industry Regulatory Authority (“FINRA”) announced that it ordered Merrill Lynch, Pierce, Fenner & Smith Inc. to pay its customers more than $7.2 million in restitution and interest  resulting from unnecessary sales charges and excess fees incurred by more than 13,000 Merrill Lynch accounts in connection with mutual fund transactions from 2011 to 2017.  FINRA found that Merrill Lynch’s ’s supervisory systems and procedures failed to ensure that certain customers received sales charge waivers and fee rebates that were available to them.

Typically, mutual fund issuers will offer their customers a right of reinstatement, allowing the investors to purchase shares of a mutual fund after previously selling shares of that fund or another fund in the same fund family, without incurring a front-end sales charge, or allowing the investors to recoup some to all of contingent deferred sales charges.

Rather than ensuring that  proper supervisory systems and procedures were in place to identify waivers and fee rebates that were available through rights of reinstatement, Merrill Lynch instead relied on its brokers and investment advisors to manually recognize and apply waivers and rebates for investors and for the financial advisors to manually identify which customers are eligible  for reinstatement rights.  According to FINRA, the manual system was “unreasonably designed… given the number of customers involved, the complexity of determining which customers were due sales charge waivers or fee rebates, and difficulty in calculating the amount of the waiver and rebate.”

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On March 12, 2020, the Securities and Exchange Commission (“SEC”) charged Morgan Stanley with providing misleading information to customers regarding the costs of “wrap fee” programs. Wrap fee programs offer accounts in which customers pay asset-based fees meant to cover investment advice and brokerage services, including the execution of trades. The SEC alleged that nowhere in Morgan Stanley’s retail wrap fee programs was it disclosed to customers that additional fees were charged for certain wrap fee trades that were directed to third-party broker-dealers for execution.

The SEC alleged that Morgan Stanley’s wrap fee practices involved extra costs that were not visible to customers, limiting the customers’ ability to assess the true costs and value of the services for which they were paying.  Morgan Stanley, without admitting or denying the wrongdoing, agreed to pay $5 million to settle the SEC charges. Morgan Stanley’s alleged wrongdoing occurred from October 2012 to June 2017, and the $5 million will be distributed to harmed investors.

Customers of brokerage firms or registered investment advisors are often unaware of all the fees they are charged for the investment advice and services they are receiving. As Melissa Hodgman, associate director in the SEC’s enforcement division, noted, “[i]nvestment advisers are obligated to fully inform their clients about the fees that clients will pay in exchange for services.” If an investment advisor fails to disclose all the fees to his or her customer or charges excessive fees to the customer, the customer may have a claim against the investment advisor, the advisory firm or the brokerage firm where the customer held his or her investments and accounts.

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Oil and gas investments have experienced extreme volatility throughout 2020, as the underlying price of oil has plummeted. Oil prices briefly dropped below $0 for the first time in history, with contracts for West Texas Intermediate (WTI)—a grade of crude oil used as North America’s main benchmark for oil pricing—trading at approximately -$37.00 a barrel on April 20, 2020.

Oil companies in the United States have been saddled with debt and operating at a loss year after year, well before the COVID-19 pandemic caused further declines in oil prices. Many of these companies have been kept solvent only by the continual flow of investor dollars, as investors or financial advisors speculate that the price of oil will eventually rise and the investments will be profitable in the future. Investments in oil and natural gas companies, such as Chesapeake Energy, Diamondback Energy, and Whiting Petroleum Corp., have all declined precipitously this year as oil prices plunged. Complex exchange traded funds (ETFs), such as ProShares Ultra Bloomberg Crude Oil (UCO), United Stated Oil Fund LP (USO) and United States 12 Month Oil Fund LP (USL), collectively holding billions of dollars of investor assets, have also dropped over 70% in the last three months.

Given the high levels of debt and volatility in the industry, investments in the United States oil and gas industry are very risky and not suitable for all investors. Financial advisors or brokers who recommend and purchase oil and gas investments to investors have a duty to disclose all the risks associated with these types of investments, including that they are speculative bets in debt-laden and often unprofitable companies and can be high commission investment vehicles. If the financial advisors or brokers failed to do so, they and their advisory or brokerage firms could be liable for the losses incurred from recommending these investments.

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The Securities and Exchange Commission (“SEC”) announced this month that four investment advisory firms—Merrill Lynch, RBC Capital Markets, Eagle Strategies, and Cozad Asset Management—agreed to pay $4.72 million to settle charges that they recommended and sold mutual share classes to its customers when cheaper shares were available to those investors.  The majority of that sum, namely, $3.88 million, is attributable to RBC Capital Markets.  The mutual fund fee disgorgements resulting from the settlements with the SEC are part of the SEC’s initiative, launched in February 2018, wherein the SEC agreed to waive civil penalties against investment advisers who self-reported and admitted that they had been putting investors into high-fee mutual fund classes and agreed to reimburse those customers.  These settlements are the last ones the SEC will accept as it concludes the mutual fund amnesty program.

A mutual fund share class represents an interest in the same portfolio of securities with the same investment objective, with the primary difference being the fee structures.  For example, some mutual fund share classes charge what are called “12b-1 fees” to cover fund distribution and sometimes shareholder service expenses.  Many mutual funds, however, also offer share classes that do not charge 12b-1 fees, and investors who hold these shares will almost always earn higher returns because the annual fund operating expenses tend to be lower over time.

In the various cease and desist orders, the SEC found that Merrill Lynch, RBC Capital Markets, Eagle Strategies, and Cozad Asset Management purchased, recommended or held for their clients mutual fund share classes that paid the firms or the advisors 12b-1 fees instead of lower cost share classes of the same funds for which their customers are also eligible.  The firms also failed to disclose these conflicts of interest, either in its Forms ADV or otherwise, related to their receipt of 12b-1 fees and/or the selection of mutual fund share classes that pay higher fees and result in higher commissions to the investment advisors.  Investment advisors owe a fiduciary duty to their customers to act in their best interest, including disclosing conflicts of interest.  The SEC found that the investment advisory firms’ failures to adequately disclose that the advisors were actually incentivized to recommend funds with higher fees when the same mutual funds without those fees were available violated the firms and advisors’ fiduciary duty to their customers.

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On April 23, 2020, a New York appellate court unanimously affirmed confirmation of a FINRA arbitration award against Credit Suisse for approximately $1 million in unlawfully withheld deferred compensation.

Credit Suisse had petitioned the New York Supreme Court (Commercial Division) to vacate the Award, arguing that, as a matter of law, (1) it did not terminate its investment advisers when it announced it was closing its US wealth management division and (2) its advisers were made whole by transition packages from their new employers.  The Supreme Court rejected both arguments and denied Credit Suisse’s petition from the bench.  Credit Suisse appealed on both grounds.  Affirming, a five justice panel of the Appellate Division (First Department) cited with approval numerous cases holding that an employee who departs in the face of inevitable termination is constructively terminated.  As for Credit Suisse’s defense that its liability can be offset or mitigated by the advisors’ transition package with a new employer, the Appellate Division found that Credit Suisse “offers no authority for the proposition that mitigation or offset is a defense to payment of vested compensation.”

Credit Suisse’s arguments on appeal are also its sole defenses to the dozens of claims brought by former advisers seeking more than $200 million in earned, vested deferred compensation it has refused to pay them in breach of the employment agreements and deferred compensation plans its own lawyers drafted.  Seven FINRA arbitration panels have heard these defenses and rejected them, uniformly awarding deferred compensation to the advisers.  The New York Supreme Court has heard these defenses and rejected them.  Now, the New York Appellate Division has heard these defenses and unanimously rejected them on the law.  By contract, New York law governs the deferred compensation arbitrations against Credit Suisse regardless of where a former adviser worked or files his or her claim.  With a clear, unequivocal decision by a New York appeals court, Credit Suisse can no longer claim to rely upon its frivolous defenses in good faith.

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Due in large part to the current COVID-19 pandemic, March of 2020 was one of the most volatile months for financial markets since the market crash of 1929 and the financial crisis of 2008. During periods of extreme market volatility, securities prices can fluctuate wildly, triggering margin calls and the liquidation of securities in investor’s investment margin accounts, at substantial and unrecoverable losses to investors. Margin accounts can be very risky and are not suitable for everyone.

In margin accounts, investors borrow money to purchase securities and that loan is collateralized with the cash and securities in the account. As with all loans, when an investor buys security on margin he or she will have to pay back the money borrowed plus interest and commissions. An investment strategy or portfolio that includes trading on margin exposes an investor to increased risks, added costs, and losses greater than the amount of the investor’s initial investment.

The use of securities to collateralize margin loans in a margin account exposes investors to leverage, which increases the risks in an account. One of the biggest risks from buying on margin and leveraging your portfolio is that the investor can lose significantly more money that he or she initially invested. For instance, a loss of 50% or more from securities purchased on margin is equivalent to a loss 100% or even more to an investor. An investor stands to lose all of the money he or she invested, plus interest for borrowing money, plus the commissions paid to the brokerage firm for the purchase or sale of the underlying securities. Trading on margin exposes an investor to significant risk when the brokerage firm or financial advisor forces a sellout of a stock in the account (without notice to or approval by the investor) to meet a margin call after the price of the stock has plummeted. In that scenario, the investor has lost out on the chance to recoup his or her losses if or when the market bounces back.

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In January 2020, J.P. Morgan Chase & Co. announced that it would be placing one of its senior credit traders, Edward Koo, on administrative leave pending its investigation into his use of WhatsApp Messenger for “market chatter” with other J.P. Morgan Chase & Co. employees. This month, J.P. Morgan Chase & Co. fired Mr. Koo and cut the bonus payments for more than a dozen other J.P. Morgan Chase & Co. employees who used WhatsApp Messenger during the course of their business. On February 4, 2020, Paul Falcon, a broker with Aegis Capital Corp., signed a Financial Industry Regulatory Authority (“FINRA”) Letter of Acceptance, Waiver and Consent, agreeing to a fine of $5,000 and 30 day suspension for using WhatsApp Messenger to “conduct securities-related business with three Firm customers.” FINRA found that “Aegis was not able to capture the communications Falcon sent and received through WhatsApp Messenger” and that “[b]y virtue of the foregoing, Falcon violated FINRA Rules 4511 and 2010.”

FINRA Rule 4511 states: “(a) Members shall make and preserve books and records as required under the FINRA rules, the Exchange Act and the applicable Exchange Act rules; (b) Members shall preserve for a period of at least six years those FINRA books and records for which there is no specified period under the FINRA rules or applicable Exchange Act rules; and (c) All books and records required to be made pursuant to the FINRA rules shall be preserved in a format and media that complies with SEA Rule 17a-4.” FINRA Rule 2010 states: “A member, in the conduct of its business, shall observe high standards of commercial honor and just and equitable principles of trade.”

Member firms typically include provisions in their written supervisory procedures that require electronic communications between employees and customers be conducted on firm-systems using firm-issued electronic devices in an effort to comply with these rules. These policies have allowed firms to monitor employees’ phone calls, emails and instant messages for potential violations of securities laws, including insider trading and money laundering, and retain this information for their records. However, WhatsApp Messenger’s encryption of its platform has made traditional monitoring and retention methods more difficult. Its prevalence among both employees and customers for social purposes has also made complete prohibition challenging.

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