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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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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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Chinese coffee chain Luckin Coffee’s stock plunged more than 80% on April 2, 2020 after it revealed in an SEC filing that it was internally investigating an alleged fraud on the part of its former COO, Jian Liu. The allegations surround fraudulently fabricated transactions that involved a substantial part of Luckin Coffee’s revenue during the last three quarters of 2019. The embattled company stunned investors by disclosing that as much as 2.2 billion yuan ($310 million) in sales had been fabricated by the COO and some of the employees who worked under him. The falsified sales represented close to half of Luckin Coffee’s reported or projected revenue for the nine-month period.

In a few short years, Luckin Coffee displaced Starbucks as the coffee retail and delivery leader in China. But its stock is down another 18% (approximately) as investors continue appreciate the ramifications of the disclosure in the SEC filing and the re-positioning of the competitive Chinese coffee market. Immediately before its initial public offering (IPO) in May 2019, Luckin Coffee was valued at roughly $4 billion. Now, the company’s market cap is approximately $1.1 billion.

The steep dive in valuation is putting enormous pressure on the banks that extended loans to buy Luckin Coffee’s stock on margin. Buying on margin is the act of borrowing money to buy securities, which includes buying an asset where the buyer pays only a percentage of the asset’s value and borrows the rest from the bank or broker. The broker acts as a lender and the securities in the investor’s account act as collateral. Many investors who bought Luckin Coffee’s stock on margin are facing margin calls, which occur when the value of an investor’s margin account falls below the broker’s required amount. A margin call is the broker’s demand that an investor deposit additional money or securities so that the account is brought up to the minimum value.

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Redwood Trust, Inc. (“RWT”), a publicly traded real estate investment trust (“REIT”), filed a Form 8-K on April 2, 2020 revealing that its book value fell as much 56% in the first quarter, resulting in the decline of RTW shares of approximately 31% in a single day. See RWT SEC filing http://www.snl.com/Cache/IRCache/c7e6c9bfb-d506-663b-3b5d-328e2398755c.html.

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The Form 8-K reported as follows:

Preliminary Estimate of Book Value – Excluding any potential decline in the value of our intangible assets since December 31, 2019, as of March 27, 2020, we estimate that on a preliminary basis GAAP book value per common share is between $7.03 and $7.67, an estimated year-to-date decline of approximately 52% to 56% from our GAAP book per common share at December 31, 2019.

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Direxion has announced that on March 31, 2020, the leverage of 10 daily ETF’s will be changed from 300% to 200%. Direxion released the following presser:

NEW YORK — March 27, 2020—The investment objective and strategy of each Fund in the table below is currently to seek daily leveraged, or daily inverse leveraged, investment results, before fees and expenses, of 300% or -300%, as applicable, of the performance of its underlying index. Effective after market close on March 31, 2020 each Fund’s investment objective and strategy will change to seek daily leveraged, or daily inverse leveraged, investment results, before fees and expenses, of 200% or -200%, as applicable, of the performance of its underlying index, as shown below:

Ticker Fund Underlying Index New Daily Leveraged Investment Objective (before fees and expenses)
BRZU Direxion Daily MSCI Brazil Bull 3X Shares MSCI Brazil 25/50 Index 200%
RUSL Direxion Daily Russia Bull 3X Shares MVIS Russia Index 200%
NUGT Direxion Daily Gold Miners Index Bull 3X Shares NYSE Arca Gold Miners Index 200%
DUST Direxion Daily Gold Miners Index Bear 3X Shares -200%
JNUG Direxion Daily Junior Gold Miners Index Bull 3X Shares MVIS Global Junior Gold Miners Index 200%
JDST Direxion Daily Junior Gold Miners Index Bear 3X Shares -200%
ERX Direxion Daily Energy Bull 3X Shares Energy Select Sector Index 200%
ERY Direxion Daily Energy Bear 3X Shares -200%
GUSH Direxion Daily S&P Oil & Gas Exp. & Prod. Bull 3X Shares S&P Oil & Gas Exploration & Production Select Industry Index 200%
DRIP Direxion Daily S&P Oil & Gas Exp. & Prod. Bear 3X Shares -200%

 

Since inception, these 10 Direxion funds have been used by traders, funds and investors as trading or hedging vehicles. Collectively, these funds hold billions of dollars of total assets. Direxion’s changing the leverage ratio of its funds may have been prompted by the extreme market volatility seen across capital markets throughout March 2020. However, this change could lead to immediate and significant losses by both Direxion fund investors and those who purchased options on Direxion funds.

Lax & Neville has significant experience with complex securities cases involving ETFs, ETNs and options. If you have suffered investment losses from Direxion funds or options, or your broker’s or investment advisor’s purchase of ETFs or ETNs in your investment account, contact Lax & Neville LLP today at (212) 696-1999 and schedule a consultation.

 

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On February 14, 2020, four former Credit Suisse investment advisers represented by Lax & Neville LLP won a $2.2 million FINRA arbitration award against Credit Suisse Securities (USA) LLC for failure to pay their earned deferred compensation when it exited the U.S. wealth management business in October 2015.  See Galli, et al. v. Credit Suisse Securities (USA) LLC, FINRA No. 17-01489.  This is one of numerous FINRA arbitrations against Credit Suisse arising from its calculated decision to withhold more than $200 million in deferred compensation from nearly 300 former advisers in breach of their employment agreements and its own deferred compensation plans.   Seven have gone to award thus far, including five brought by  Lax & Neville LLP.  See Galli, et al. v. Credit Suisse Securities (USA) LLC, FINRA No. 17-01489; DellaRusso and Sullivan v. Credit Suisse Securities (USA) LLC, FINRA No. 17-01406; Lerner and Winderbaum v. Credit Suisse Securities (USA) LLC, FINRA No. 17-00057; Finn v. Credit Suisse Securities (USA) LLC, FINRA No. 17-01277; and Chilton v. Credit Suisse Securities (USA) LLC, FINRA No. 16-03065.  All seven FINRA arbitration panels and a New York State Judge (Credit Suisse Securities (USA) LLC v. Finn, Index No. 655870/2018 (N.Y. Sup. Ct. 2019)) have found for the advisers and ordered Credit Suisse to pay the deferred compensation it owes them.

Lax & Neville LLP has won more than $13 million in compensatory damages, liquidated damages, interest, costs and attorneys’ fees on behalf of former Credit Suisse investment advisers.  To discuss these FINRA arbitration Awards, please contact Barry R. Lax, Brian J. Neville, Sandra P. Lahens or Robert R. Miller at (212) 696-1999.

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On January 28, 2020, the SEC charged Edward E. Matthes, a former registered representative and investment adviser in Wisconsin, with defrauding 26 of his majority elderly clients out of approximately $2.4 million.

According to the SEC’s complaint, between April 2013 and March 2019, Matthes made misrepresentations to his clients, claiming that a new investment opportunity would generate a higher return for them and earn a guaranteed minimum yield of 4% per year. The claimed investment opportunity did not exist and Matthes simply stole approximately $1.4 million from his clients. Matthes allegedly used the money to renovate his home, pay child support and purchase various luxury items.

Matthes further misappropriated an additional $1 million of his clients’ money by allegedly making unauthorized sales and withdrawals from his clients’ variable annuities and depositing the money directly into his personal bank account instead of clients’ accounts. Matthes used all of the funds he raised for his own personal use and to operate a Ponzi-like payment scheme, paying $170,000 to certain, select customers.

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