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On May 7, 2019, two former Credit Suisse investment advisers represented by Lax & Neville LLP won a $6.68 million FINRA arbitration award against Credit Suisse Securities (USA) LLC for unpaid deferred compensation and violations of the New York Labor Law (“NYLL”).  This is the fourth FINRA Award against Credit Suisse for unpaid deferred compensation.

The claimants, Joseph Todd Lerner and Anna Sarai Winderbaum, were advisers in the New York branch of Credit Suisse’s US private banking division (“PBUSA”) and were terminated when Credit Suisse closed PBUSA.  Credit Suisse took the position, as it has with hundreds of its former investment advisers, that Ms. Winderbaum and Mr. Lerner voluntarily resigned and forfeited their deferred compensation.  A three member FINRA Arbitration Panel determined that Credit Suisse terminated Ms. Winderbaum and Mr. Lerner without cause, breached their employment agreements by cancelling their deferred compensation and violated the NYLL.    The FINRA Panel was chaired by a law professor and expert in labor and employment law.

The FINRA Panel awarded Ms. Winderbaum and Mr. Lerner compensatory damages totaling $2,787,344, which included 100% of their deferred compensation awards, 2015 deferred compensation, and severance.  Having concluded that the cancellation of deferred compensation violated the NYLL, the FINRA Panel awarded statutorily mandated interest, attorneys’ fees and liquidated damages equal to 100% of the unpaid compensation.  See NYLL § 198(1-a).  The FINRA Panel ordered Credit Suisse to pay 100% of the FINRA forum fees, totaling $50,250.00, and recommended expungement of Mr. Lerner and Ms. Winderbaum’s Form U-5, the termination notice a broker-dealer is required to file with FINRA.  As with hundreds of their colleagues, Credit Suisse falsely reported that Mr. Lerner and Ms. Winderbaum’s “Reason for Termination” was “Voluntary,” i.e. that they voluntarily resigned.  The FINRA Panel recommended that the “Reason for Termination” be changed to “terminated without cause.”   The FINRA Panel also denied Credit Suisse’s counterclaims.  To view this Award, visit 17-00057.

On April 5, 2019, the Financial Industry Regulatory Authority (“FINRA”) issued Regulatory Notice 19-10, which clarifies conduct regarding how brokerage firms and brokers should communicate with clients in the event a broker transitions to a new firm. FINRA Regulatory Notice 19-10 makes two key points:

1. in the event of a registered representative’s departure, the member firm should promptly and clearly communicate to affected customers how their accounts will continue to be serviced; and
2. the firm should provide customers with timely and complete answers, if known, when the customer asks questions about a departing registered representative.

On March 5, 2019, the Securities and Exchange Commission (“SEC”) entered into a settlement agreement with BB&T Securities in which the firm agreed to return approximately $5 million to retail investors and pay a penalty of $500,000. These fines and violations were related to the brokerage firm Valley Forge Asset Management (“Valley Forge”), which was acquired by BB&T, making BB&T responsible for Valley Forge’s liabilities.

Valley Forge represented to clients that it was a full-service brokerage house with high levels of client servicing, and clients must pay a premium for that servicing. Valley Forge did not disclose to clients that investors who did not choose in house advisory services paid fees 25% less than those who used the in-house service. Valley Forge justified these high fees by making false representations to clients that the fees were actually discounted by 70%, when in fact there was no higher price they were discounted from, and even the supposedly discounted rate was far above market rates for the level of service provided.
The SEC increasingly scrutinizes small broker-dealers and investment advisors for charging fees for services that have not in fact been delivered, or for charging fees not in line with the general mark to market for that level of service.  The attorneys at Lax & Neville LLP have extensive experience in successfully prosecuting claims on behalf of customers who have suffered losses as a result of investment and securities fraud. Additionally, attorneys at Lax & Neville are experienced with employment law in the financial services industry, and dealing with regulatory bodies such as the SEC. If you are a victim of fraud or are a Financial Advisor with a prospective regulatory issue, please contact Lax & Neville LLP today at (212) 696-1999 to schedule a consultation.

On February 8, 2019 the Financial Industry Regulatory Authority (“FINRA”) accepted an Acceptance Waiver and Consent (“AWC”) from Elizabeth Marie Garcia, a Merrill Lynch Financial Advisor, pursuant to which Ms. Garcia consented to a complete and total bar from the securities industry. FINRA’s investigation concluded that Ms. Garcia filed fake childcare reimbursement expenses to Merrill Lynch, through the Merrill Lynch Business Development Account (“BDA”). The investigation concluded that approximately $9,015 in false expenses were improperly reimbursed to Ms. Garcia.

Financial services firms such as Merrill Lynch have business development accounts, or travel and entertainment spending allowances, for Financial Advisors, and other client facing/business development personnel. It is common for firms to contribute a sum to the accounts, and Financial Advisors to also contribute to the account, and there are generally tax advantages to this practice. Because Financial Advisors contribute their own money to the account, there is a trend towards advisors filing false expense reports, as they view a large portion of the money set aside as their own.

This view is unfounded: a percentage of the monies in any BDA account are contributed by the firm, therefore some percentage of any fraudulent expense is paid for with firm money. Additionally, filing a false expense report is taken very seriously by FINRA, and seen as both a violation of the just and equitable principles of trade, and a violation of the requirement to maintain accurate books and records. Individuals who file false expense reports can expect to face possible termination by their employer, face negative U5 language, and be investigated by FINRA. These investigations can have a wide range of outcome, with anything from a letter of warning, to a complete bar from the industry, depending on FINRA’s view of the specific circumstances surrounding the matter.

On January 17, 2018 State Street Advisors announced the intention to reduce its work force by 1,500 employees, including 15% of senior management positions. This layoff may affect many veteran employees, impacting complicated compensation packages involving deferred compensation, equity awards, and bonuses in addition to base pay.

Lax & Neville has extensive experience negotiating severance packages on behalf of financial services executives. Lax & Neville can help ensure executives are protected when they transition to a new firm and provide input on draft U4 and/or U5 language to make it more favorable for the departing individual.

Lax & Neville can also assist departing employees in navigating restrictive covenants within their former firm’s employment agreements and negotiate contract language and compensation in new firm agreements.

Wells Fargo has made its recruiting packages more generous than ever. The current deals on the street reflect Wells Fargo giving brokers with Trailing 12-month production (“T12”) exceeding $500,000 upfront forgivable loans that equal two times the previous year’s T12. The total value of some of these deals if the onboarding broker achieves back end bonuses of revenue and asset targets can exceed 325%.

The new deals Wells Fargo is offering resemble those that wirehouses such as Merrill Lynch, Morgan Stanley, and UBS used to make, during the peak of recruiting frenzies. Many firms have since scaled back on these expensive deals, due to the weight of forgivable-loan debt on their balance sheets and questions regarding the net return on such expensive broker book acquisitions.

Wells Fargo ended 2018 with approximately 13,970 brokers across its Private Client Group, branch bank group, and independent channel. Many brokers have been leaving Wells Fargo, possibly due to reputational issues affecting client’s perception of the banks abilities and platform.

On November 6, 2018, a former Credit Suisse investment adviser represented by Lax & Neville LLP, a leading securities and employment law firm, won a FINRA arbitration award against Credit Suisse Securities (USA) LLC for unpaid deferred compensation.  This is the second FINRA Award against Credit Suisse for unpaid deferred compensation. 

The claimant, Nicholas Finn, was an adviser in Credit Suisse’s New York US private banking division (“PBUSA”) and was terminated when Credit Suisse closed PBUSA.  Credit Suisse took the position, as it has with hundreds of other former investment advisers, that Mr. Finn voluntarily resigned and forfeited his deferred compensation.  A three arbitrator panel determined that Credit Suisse terminated Mr. Finn without cause and awarded him all of his compensatory damages in the amount of $975,530, which included all of his deferred compensation awards valued as of November 23, 2015, the day he left Credit Suisse, and his 2015 deferred compensation.  The Panel ordered Credit Suisse to pay 100% of the FINRA forum fees, totaling $27,300, and recommended expungement of Mr. Finn’s Form U-5, the termination notice a broker-dealer is required to file with FINRA.  As with Mr. Finn’s colleagues, Credit Suisse falsely reported that Mr. Finn’s “Reason for Termination” was “Voluntary,” i.e. that Mr. Finn resigned.  The Panel recommended that the “Reason for Termination” be changed to “terminated without cause.”   The Panel also denied Credit Suisse’s counterclaims.  To view this Award, Nicholas Finn v. Credit Suisse Securities (USA) LLC, FINRA Case No. 17-01277 

Credit Suisse raised a mitigation defense based upon compensation Mr. Finn received or may receive from his current employer, UBS Financial Services Inc.  Like the Panel in Brian Chilton v. Credit Suisse Securities (USA) LLC, FINRA Case No. 16-03065, the Finn Panel  rejected Credit Suisse’s mitigation defense when it awarded Mr. Finn all of his Credit Suisse deferred compensation.

On October 10, 2018, a former Credit Suisse investment adviser represented by Lax & Neville LLP, a leading securities and employment law firm, won a FINRA arbitration award against Credit Suisse Securities (USA) LLC for unpaid deferred compensation.  The claimant, Brian Chilton, was an adviser in Credit Suisse’s US private banking division (“PBUSA”) and was terminated when Credit Suisse closed PBUSA.  As it did with hundreds of his colleagues, Credit Suisse took the position that Mr. Chilton voluntarily resigned and forfeited his deferred compensation.  A highly sophisticated and experienced three arbitrator panel determined that Credit Suisse terminated Mr. Chilton without cause and awarded him all of his deferred compensation, consisting of 39,980 shares of Credit Suisse AG valued as of the date of his termination at $585,307.20.  The Panel ordered Credit Suisse to pay interest of $131,694.12, attorneys’ fees of $146,326.80, and 100% of the FINRA forum fees, totaling $69,750.00.  The Panel also recommended expungement of Mr. Chilton’s Form U-5, the termination notice a broker-dealer is required to file with FINRA.  Credit Suisse had falsely reported that Mr. Chilton’s “Reason for Termination” was “Voluntary,” i.e. that Mr. Chilton resigned.  The Panel recommended that the “Reason for Termination” be changed to “terminated without cause.”  To view this Award, Brian Chilton v. Credit Suisse Securities (USA) LLC, FINRA Case No. 16-03065.

Credit Suisse announced it was closing PBUSA on October 20, 2015.  Dozens of its former advisers have subsequently filed FINRA Arbitration claims for their unpaid deferred compensation.  The claims are based upon unambiguous language in Credit Suisse’s contracts providing that deferred compensation awards vest immediately upon termination without cause.  In a transparent attempt to evade its deferred compensation liabilities, which amounted to hundreds of millions of dollars, Credit Suisse deliberately mischaracterized its advisers’ terminations as voluntary resignations, notwithstanding that it had announced it was closing PBUSA, told its employees, including the advisers, to find someplace else to work and told its clients to close their accounts.  In its Form U-5 filings, Credit Suisse misrepresented to its regulator that the advisers had voluntarily resigned.

The Chilton Panel was the first to reach a decision on this issue and found that Mr. Chilton’s Form U-5 filing was false and should be changed to termination without cause.  Under the unambiguous terms of Credit Suisse’s contracts, Mr. Chilton was therefore entitled to his deferred compensation.

J.P. Morgan announced this week that it had terminated broker Trevor Rahn. Mr. Rahn’s U5 language, the regulatory filing made to the Financial Industry Regulatory Authority (“FINRA”) associated with any termination, stated the reason for termination as “unacceptable practices” related to the “timing and size of orders entered and resulting transaction charges in a client account.” This practice is referred to as “churning,” in the industry, when a broker repeatedly buys and sells securities in a clients account, not for strategic purposes in the interest of the client, but to generate fees and commissions.

J.P. Morgan reported Mr. Rahn’s date of termination as September 17, 2018. Mr. Rahn was terminated more than three months after reaching a settlement with a Tracey Dewart who filed a complaint against Mr. Rahn and J.P Morgan for the excessive fees charged to her elderly fathers account. Ms. Stewart, using a forensic accountant, found that Mr. Rahn had charged her father approximately $128,000 in commissions, in one year, on an account of approximately $1.2 million. Wealth management fees and commission fees are rarely supposed to exceed 2%, by industry standards, and FINRA has very specific rules regarding fee ratios to account size and profit. Mr. Rahn’s yearly fees exceeded 10% of the total account value.

Broker-dealers, especially large wire houses like J.P. Morgan, are intended to have compliance software that screens customer accounts for excessive churning. It is unknown why such flagrant activity by Mr. Rahn was not detected earlier. According to Ms. Stewart, there was irregular activity in her fathers account going back years. J.P. Morgan settled this churning case, and then continued to allow Mr. Rahn to trade customer accounts for three months before terminating him, a timeline that regulators may take issue with due to the possibility of members of the public being further exposed to Mr. Rahn’s sales practice abuses.

On September 5, 2018 the Securities and Exchange Commission (“SEC”) issued an alert warning investors of scams involving marijuana related stocks. As the marijuana market becomes more mainstream, and legalization efforts continue to expand, there is an increasing number of publicly listed companies involved in the marijuana industry. The SEC alert noted a marked increase in the number of fraudulent schemes related to marijuana stocks.

Many marijuana stocks, such as Canopy Growth Corp (“$CGC”), Tilray (“$TLRY”) and Cronos ($CRON) have increased in value by several hundred percent within the last year. The enormous returns in this space may have attracted large amounts of speculative trading by retail investors. Where retail investors go, fraudulent securities schemes often follow.

As some analysts note, many Canadian listed marijuana stocks are now taking steps to list on US exchanges, so as to target US investors, and the increased trading volume and capital inflow that comes with a US listing. Many of these marijuana companies would be considered microcap stocks and can easily be subject to market manipulation. Stocks with small floats and low trading volume can be marketed to retail investors and manipulated in “pump and dump” schemes.