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On October 30, 2017 Morgan Stanley announced that it would exit the Protocol for Broker Recruiting (the “Protocol”), effective on Friday, November 3rd.  Firms such as Morgan Stanley and Merrill Lynch signed on to the Protocol in 2004, in an effort to limit costly litigation or arbitration claims that can arise when brokers transition to new firms, or set up arrangements such as a Registered Investment Advisor (“RIA”). The Protocol is intended to outline an orderly system for transitions, by limiting the client information brokers can bring with them during job changes to the following: names; addresses; phone numbers; email addresses; and account title. Other client information and documents are not permitted to be taken. The Protocol additionally restricts brokers from telling clients they are planning to move, or from committing any other forms of pre-solicitation.

While the Protocol is advantageous to firms in terms of reducing litigation and compliance costs, these benefits are offset by the downside of increased volume of broker transitions. The frictional costs and risks associated with a broker moving his or her book of business are reduced by the Protocol —thereby giving brokers more bargaining power in recruitment deals, and instigating recruitment package bidding wars between banks.

Morgan Stanley released a statement, titled “Morgan Stanley Announces a New Talent Investment Strategy to Deliver Added Value to Clients.” The statement mentions technology solutions for strengthening investment objectives for clients, a focus on building client relationships, and other marketing tactics, all used as a prelude to justify leaving the Protocol, under the auspices of protecting client interests. Morgan Stanley emphasized that they will focus on building existing talent: “[t]hese investments further the Firm’s previously stated commitment to reducing recruiting efforts in order to refocus those resources on existing talent,” a strategy intended to reduce costs.

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Lax & Neville is currently investigating the activities of Michael D. Mathias, a broker associated with Summit Brokerage Services, Inc. (“Summit”).  Mr. Mathias, who has been in the industry for three decades, has a long history of sales practice abuses, including making unsuitable recommendations to his clients.  He has over twenty customer complaints or arbitrations listed on his record (CRD No. 1349406).  The vast majority of these complaints or arbitrations were resolved in the customer’s favor and roughly half required a personal contribution from Mr. Mathias.  Almost all involve the recommendation of high commission products, including limited partnerships and variable annuities.

In particular, Lax & Neville is focusing its investigation on the unsuitable recommendation and sale of variable annuities.  The recommendation and sale of variable annuities has long been a concern within the securities industry.  NASD and FINRA have released a number of investor alerts and notices to members on the subject, emphasizing that certain suitability requirements must be met to recommend variable annuities (NASD Notice 96-86), highlighting the importance of supervisory procedures to ensure that the suitability requirements are met (NASD Notice 07-06), and warning potential investors of the liquidity issues, high fees, and market risks associated with variable annuities (FINRA Investor Alert 12-00045).

In June 2004, the SEC and NASD released the joint report “On Examination Findings Regarding Broker-Dealer Sales of Variable Insurance Products.”  The report recognized that high commissions helped drive the sale of variable annuities but that the high fees and surrender charges associated with the product made them inappropriate for a wide variety of investors.  The report then identified a number of factors that could assist in “identifying abusive sales practices and violations,” including

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On October 16, 2017, The Financial Industry National Regulatory Authority (“FINRA”) announced a $3.4 million dollar fine against Wells Fargo, in connection to Wells Fargo brokers improperly placing retail clients in volatility linked products. Many of these volatility linked exchange-traded products (“ETPs”) such as the VXX, XIV, TVIX, and other variations of volatility indexes, that attempt to match, inverse, or leverage Chicago Board of Exchange volatility metrics, are highly complex products that are not suitable for all investors.  FINRA found in its investigation that Wells Fargo registered representatives recommended these ETPs to customers without fully understanding the risks they entail.

ETPs are uniquely volatile products that degrade in value significantly over time and are designed primarily for short term holds when part of a comprehensive hedging strategy or in anticipation of a binary event or large market move. ETPs are not designed to be bought and held in customer accounts for any significant time period, which is a practice Wells Fargo registered representatives were recommending to their customers. As a reminder to financial industry professionals of the obligations they have to customers when recommending volatility ETPs, FINRA released a new Regulatory Notice 17-32 reiterating and reminding firms of their obligations surrounding ETPs.

FINRA found that Wells Fargo failed to implement a sufficient or credible supervisory system to oversee solicited sales of volatility linked ETPs. Broker soliciting sales of volatility linked ETPs should already be cognizant of the significant risks they entail, the limited hold time, and the potential for significant losses.

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There is an enormous amount of speculation currently occurring in the initial coin offering (“ICO”) sphere, fueled by the rapid increase in the value of bitcoin and other cryptocurrencies. Cryptocurrency is a digital asset that uses cryptology to make transactions secure, and is decentralized in that its creation of new units of currency is fixed via an algorithm, and outside the control of central banks. As such, cryptocurrency currently acts as a derivative to world money supply and debt, with its value increasing in tandem with money supply, demand, and increased pressure from the no-arbitrage rule of functional equivalence. This exchange applies as long as a counterparty accepts the given cryptocurrency as a store of value and medium of exchange.

Cryptocurrencies have appreciated rapidly largely due to the worldwide low interest rate environment created by central banking policy. Many safe fixed income investments offer negative real rates of return after taxes and inflation are accounted for, generating a massive “search for yield” into alternative investment classes. This search includes hard assets such as commodities and real estate, and increasingly exotic assets such as ICOs. With the growth of ICOs, there is a tangent proliferation of fraudulent or risky investment schemes that seek to capitalize on increased ICO demand through complex capital structures and equity issuance. Given the limited regulation and inherent difficulties in insuring or protecting risk in this sphere, it is important investors be wary.

Apple Pay, and PayPal are sophisticated versions of digital assets, however the technical innovation with cryptocurrency is the use of a decentralized ledger distributed among network nodes, as opposed to a centralized ledger used by banks. As such, Apple Pay and Paypal are simply digital versions of a specific fiat currency such as USD, and are not a separate asset class. Each node in a cryptocurrency network has a full copy of the entire distributed network, meaning corruption of the system would necessitate corruption of all nodes simultaneously, which according to experts is nearly mathematically impossible from a code breaking standpoint. The key innovation difference between digital fiat and algorithmically derived cryptocurrencies is that cryptocurrencies can be created with a fixed supply set by the algorithm, as with Bitcoin which is capped at 21 million coins. There are currently approximately 16,519,00 coins in circulation, and with supply fixed and demand growing, some speculators think the price will continue to rise dramatically.

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On August 22, 2017, the Securities and Exchange Commission (“SEC”) charged Jeremy Drake (“Drake”), a former financial advisor of HCR Wealth Advisors (“HCR”), with defrauding two clients – a professional athlete and his wife—of more than $1.2 million in undisclosed fees from their accounts. The SEC is seeking a return of the ill-gotten monies, plus interest and disgorgement penalties, and is additionally seeking an injunction against Drakes’ future activities in the capital markets. The SEC Complaint (the “Complaint”) found that Drake’s actions constituted a violation of Sections 206(1) and 206(2) of the Advisers Act, 15 U.S.C. §§ 80b-6(1) & 80b-6(2), or, alternatively, the aiding and abetting of HCR’s uncharged violations of those same provisions.

Drake deceived his clients as to his fee structure, by misrepresenting that they had been given a special discounted rate of 0.2% due to their high net worth and status, when in fact they were charged a 1% fee. Drake personally received $900,000 of these fees, through his performance based compensation. Drake’s clients, who were victim to this fraud, were led to believe they had paid only $300,000 in fees, rather than $1.2 million.

Drake worked as a registered investment advisor for HCR from 2009 through July 2016, until he was terminated for misconduct regarding fraudulent fee misrepresentation. Drake personally managed over $50 million dollars for approximately 20 clients. HCR itself has over $900 million in assets under management, with approximately 500 clients in its book. The Complaint’s findings of Drake’s misconduct at HCR should caution investors to look closely at their asset holdings, and insure they are not being charged excessive fees. Compliance screening procedures at HCR may be inadequate at properly protecting investors from predatory sales practice abuses.

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New York State, among other states, has a “shield law” that gives journalists the right to keep their sources confidential. This law may prove problematic for cases of insider trading. Consider the following recent scenario: Reorg Research Inc (“Reorg”), a subscriber newsletter that covers bankruptcy and distressed debt, published an article about Murray Energy Corporation (“Murray”), one of the largest coal mining companies in the US. Given the confidential nature of the information published, Murray assessed that the information had to have come from some of its private investors, and as such the disclosure of this information to Reorg constituted a breach of Murray confidentiality covenants.

Murray proceeded to sue Reorg, (Murray Energy Corporation v. Reorg Research Inc. 55 Misc.3d 669, 47 N.Y.S.3d 871, 45 Media L. Rep. 1301, 2017 N.Y. Slip Op. 27036) demanding that the source who disclosed information on Murray financials be revealed. The court ordered Reorg to reveal the sources. Reorg appealed, and on July 13, 2017 won the appeal, with the Supreme Court Appellate Division First Department of New York ruling: “we find that the Respondent is except from having to disclose names of its confidential sources from New York’s Shield Law, because it is a professional medium or agency which has one of its main functions the dissemination of news to the public.”

The court made the determination that despite the fact Reorg has only 375 subscriber firms who each pay tens of thousands of dollars a year for access to the publication, Reorg covers a niche market—distressed debt—that is of vital public interest. According to the court, Respondents argued persuasively that the public benefits secondarily from the information Reorg provides to its high paying subscribers, because that audience is comprised of “people most interested in this information and most able to benefit from it” and from this network distributes the information and its pricing effects to the wider public.

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The Financial Industry Regulatory Authority (“FINRA”) fined and suspended Wells Fargo broker Eli Ungar (“Ungar”) for allegedly poaching client data from his former employer the Hong Kong and Shanghai Banking Corporation (“HSBC”). Mr. Ungar has been a registered broker since 2004, and was employed at HSBC from 2008 through 2016. In 2016, after Mr. Ungar’s transition to Wells Fargo, HSBC began a fraud investigation into Mr. Ungar’s activities, alleging that he took HSBC client data, and in doing so violated several investment-related statutes.

Many broker-dealers—including Wells Fargo—are signatories of the Protocol for Broker Recruiting (the “Protocol”), which establishes the type and quantity of client information brokers may transfer from one firm to the next when transitioning. Certain client contact information is allowed to be taken in transitions, however account balances and social security numbers are not, unless two broker-dealers have a specific onboarding relationship with each other that permits the transmission of such data. Regardless, HSBC is not a signatory to the Protocol, making Mr. Ungar’s alleged actions a possible violation of both FINRA rules and contractual obligations to HSBC. Mr. Ungar agreed to a $10,000 fine and 15-day suspension, according to the Settlement FINRA released.

Firms such as HSBC, who are not signatories to the Protocol, often actively try to prevent former employees from leaving with client information. Many brokers sign employment agreements including non-solicitation clauses or other restrictive covenants, thereby complicating their transition to other broker-dealers, especially if their former or future employer is not a member of the Protocol. In these instances, the firms they are leaving may go to court to file injunctions against the former employees, or their new firms, who attempt to utilize these previously acquired client books.

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Merrill Lynch Wealth Management (“Merrill Lynch”) has, at the directive of its parent company Bank of America (“BOA”), rolled out a new broker recruiting program in an effort to trim costs, a move that falls in line with consolidation trends in the larger wealth management industry. Merrill Lynch is opting out of the expensive bidding wars between banks for experienced brokers with large client books. These recruiting initiatives, involving head hunters and recruiting agents, and six to seven-figure promissory note inducements to entice brokers with high-net worth client lists, are already being rolled back industry-wide.

At the same time Merrill Lynch is rolling back its recruitment of veteran brokers, it is aggressively expanding its wealth management division. Merrill Lynch is pursuing this strategy through a pilot program that involves hiring inexperienced, often new advisors—and paying them a salary with limited performance-based compensation inducements. Merrill Lynch appears to have made a risk reward calculation, and determined that paying veteran brokers sign-on bonuses in multiples of their yearly book revenue was no longer a viable investment.  Given the propensity for brokers to transition between banks in a race to the highest bidder, and an industry wide slowdown in active wealth management as assets move into lower cost exchange traded funds (“ETFs”), Merrill Lynch has opted for a lower-cost approach to its wealth management strategy. As of June 1st, Merrill Lynch will no longer pay sign-on bonuses for brokers.

Given that the average age of wealth management advisors is close to 60, and the industry of active management is contracting, Merrill Lynch is looking to hire and train young, aggressive brokers to replace its more expensive and retiring veterans. The new compensation grid, which skewes towards base salary rather than performance-based bonuses, sets a precedent for lower compensation that reflects the challenges that the industry faces. BOA Chairman Brian Moynihan has stated that in regards to bank profits, “not every dollar is a good dollar,” which could be interpreted to mean that the risk of closely tying bonus packages to meeting recruiting goals is now outweighing the rewards, due to regulatory pushes and legal risks in the backdrop of active management contraction.

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The United States Supreme Court has agreed to hear the case FTI Consulting, Inc. V. Merit MGMT. Grp. LP 16-784, that has the potential to make it easier for creditors to claw back cash that was paid out by a company for extended time periods before filing for bankruptcy. FTI Consulting, Inc. V. Merit MGMT. Grp. LP 16-784 involves a dispute on the outcome of a buyout of a horse racing track by Valley View Downs, an entity which is currently a debtor to FTI Consulting. FTI Consulting is Trustee to Centaur LLC, a litigation trust, that is the primary debtor to which Valley View Downs owes funds. Valley View Downs purchased another race track, Bedford Downs, by acquiring 100% of the stock of Bedford Downs in exchange for $55 million in cash. Merit Management Group was a 30% shareholder of Bedford Downs. After Valley View purchased Bedford Downs in a cash-for-stock transaction, similar to a leveraged buyout, Valley View was forced to file Chapter 11 due to an inability to secure a gambling license for the Bedford Downs race track. FTI Consulting, the Trustees to the entity Centaur LLC to which Valley View Downs owes funds, subsequently sued Merit for $16.5 million, which is to say the 30% stake Merit Management held in Bedford Downs stock for which it received a cash transfer in the buyout.

Bankruptcy law currently provides a ‘safe harbor’ to financial institutions that conduct securities transactions. The rationale behind this protection is to shield securities trades from creditor claims, thereby promoting stability in financial markets in the face of corporate restructuring that involves bankruptcy filings. The downside to these bankruptcy protections however is that they can provide protections for fraudsters, who use these transactions to trade funds out of a fraudulent entity, and then file for bankruptcy protection. Under the current law, it can be difficult to claw back these funds. The Supreme Court will consider whether these ‘safe harbor’ bankruptcy protections should apply to entities that acted merely as pass-through conduits for fraudulent financial transactions.

A federal appeals court in New York dismissed FTI Consulting, Inc. V. Merit MGMT. Grp. LP 16-784, citing ‘safe harbor’ protections, and ruling that the shareholders were except from clawback action. The Plaintiffs in the suit argued that the ‘safe harbor’ shield was designed to protect the banks who facilitated the transaction, not the shareholders who are being sued, and because they acted only as a conduit to facilitate the leveraged buyout, the protection should not extend to the shareholders in clawback actions.

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Jesse Litvak, a former bond trader at Jeffries Global Investment Banking (“Jeffries”), was arrested and charged with securities fraud in 2013 for selling bonds to customers while lying about the price he himself had previously paid for the bonds. Litvak was initially convicted in 2014 for fraud and sentenced to two years in prison. However, after appealing, the Court decided that he should have the opportunity to explain his case to a jury. A federal jury in New Haven, Connecticut rendered a verdict on his case in January 2017, and he will be sentenced at the end of April.

Litvak sold bonds comprised of residential mortgage backed securities (“RMBS”) which are financial products comprised of pools of residential mortgage loans created by banks and packaged together based on different structuring of credit, prepayment risk, principle payment, and interest payment, and then packaged into securities and traded on the open market. When trading these bonds, Litvak habitually lied about when he had purchased the bonds and what prices he paid for them. For example, Litvak would tell a customer that he had bought bonds for $73.00 each earlier that day, and sell them to the customer for $73.25 the same day. In reality, Litvak had purchased the bonds for $71.00 several days prior, and had been shopping them around to institutional buyers to whom he could unload them for as high a price as possible.

Litvak’s defense is as follows: lying to his customers is not fraud, because fraud requires the lies be material, and lying about the price he paid for bonds is not material to the buyers’ pricing mechanisms in structuring a trade. Some analysts of the case have termed this defense a ‘used car salesman defense’ playing off the perception that used car salesmen bend the truth, and therefore assertions made about a cars previous condition and prices paid are not material to the buyer’s objective valuation of the car.