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When financial advisors transition from one bank to another, there is always a litigation risk. This risk can be minimized and greatly reduced by seeking proper counsel and gaining a full understanding of the restrictive covenants and duties of loyalty employment contract impose on financial services employees. A recent move that resulted in litigation was Kirk Cunningham and Todd Helfrich, who together manage close to $14 billion in assets, moving from JPMorgan to Merrill Lynch. JP Morgan has brought a suit against the former employees, claiming that the two advisors engaged in “bad-mouthing” the firm to former clients and that they allegedly violated the one-year non-solicitation clauses in their employment agreements. According to JPMorgan, the team allegedly told clients that the firm “only has junior people left to manage the client accounts,” and “forces its clients to use only its own products.” JP Morgan is seeking a temporary restraining order so as to halt this alleged activity.

The firm is suing Merrill advisors Kirk Cunningham and Todd Helfrich for violating non-solicitation agreements and improperly taking client contact information. Cunningham and Helfrich left JPMorgan’s private bank in February, after nine years as a private banker and seven years as an investment specialist, respectively. Together the pair served over 100 clients, making the $14 billion business a narrow-focused book, according to federal court documents from the U.S. District Court for the Northern District of Illinois.

Cunningham and Helfrich’s alleged solicitation efforts came to JPMorgan’s attention after the bank received complaints from clients about phone calls and emails from the duo. One client claimed his private data was being compromised by the duo and provided emails wherein Cunningham asks to discuss advisory services that he could offer from his new position with Merrill Lynch, according to JPMorgan’s suit.

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There have been over 2,000 FINRA arbitrations filed in Puerto Rico in regards to unsuitable leveraged investments in Puerto Rican bond funds, and over $226 million in awards so far. However, many of these cases settle. Some analysts have noted that while banks such as UBS have faced a large number of arbitration claims for investing clients’ funds in unsuitable high-risk leveraged Puerto Rican bond funds, bank of Santander was spared from most of these claims and is subject to only 200 filings. This lower number of claims stands in contrast to the fact that the Santander funds had higher leverage than UBS, and may have been marketed more aggressively to unsuitable clients.

Santander sold over 12 closed end funds and six open end funds in Puerto Rico; designated “First Puerto Rico Funds.” Santander marketed 11 of these funds to clients with conservative investment goals of “capital preservation,” yet these funds declined by 56% on average. In 2013, there were $3.4 billion in assets in these 11 closed end funds. By 2015, there were only $1.6 billion, with $1.8 billion in valuation vanishing as default rates rose on the bonds.

Most municipal bond funds are leveraged at a maximum of 20%, whereas Santander sold Puerto Rican municipal bond funds to conservative investors leveraged at 50% – 100%, doubling potential gains, but also doubling possible losses. Given that Puerto Rican municipal bonds were already paying coupons of between 5% to 6%, leveraging an already-risky bond in which the inflated yield is supposed to compensate for increased risk is unwise at best, according to some investment professionals.

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The Georgia Court of Appeals has held that the Protocol for Broker Recruiting (“the Protocol”) does not preclude Financial Advisors from informing their employers of their intentions to leave. Some firms have Notice of Termination provisions in their employment contracts, which require brokers to give notice of their intentions to resign, prior to terminating their employment.

The Protocol is an agreement that was made in 2004. It was designed to allow financial advisors and brokers to transition from one firm to another while taking client information with them. At its peak, the Protocol included the vast majority of brokerage firms, leading to a significant decrease in litigation costs, which had reached staggering levels prior to the institution of the protocol. However, with the withdrawal of firms such as Morgan Stanley, which effectively withdrew from the Protocol on November 3, 2017, the Protocol has lost some of its influence. A recent Georgia court decision has further weakened the Protocol.

The June 2018 decision concerns a 2014 case where several brokers departed from Aprio Wealth Management LLC. Without waiting the obligatory 60 to 90 days outlined in their contracts, the brokers encouraged their clients to transfer their accounts over to Morgan Stanley. Morgan Stanley had recruited the brokers, telling them that the Protocol would override their advanced notice agreements. The Georgia court-of-appeals was tasked with determining what influence the Protocol plays on advanced notice agreements. The presiding judge of the Georgia Court of Appeals ruled that the Protocol does not override the advance notice provisions present in brokers’ contracts. Aprio claims that this decision is beneficial to its purposes, as it protects smaller and mid-sized firms from being poached by larger firms with more resources.

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On June 21, 2018 U.S. District Judge William Orrick (“Orrick”) in San Francisco granted a Motion to Dismiss (“MTD”) in the case Christopher M. Laver v Credit Suisse Securities (USA), LLC. Orrick ruled that the plaintiff Christopher Laver was bound by an agreement to arbitrate employment-related disputes and could not pursue his proposed class action on behalf of roughly 200 brokers.

In the Order Granting the Motion to Dismiss, Orrick wrote the following:

As Laver notes, Regulatory Notice 16-25 characterized as dicta a discussion in a FINRA Board of Governors 2014 enforcement action decision. Regulatory Notice 16-25 at fns. 17, 23 (discussing Board of Governor decision in Dept of Enforcement v. Charles Schwab & Co., 2014 FINRA Discipl. LEXIS 5 (April 24, 2014)). The Cohen court relied on that now-FINRA-disapproved-of-dicta from the Schwab decision suggesting firms could contract around employee rights to a FINRA arbitration (but not consumer rights to FINRA arbitration). However, the fundamental point remains; nothing in Regulatory Notice 16-25 indicates that member firms cannot contract around other, less fundamental provisions of the FINRA Code. Rule 13204 itself provides that its subparagraphs “do not otherwise affect the enforceability of any rights under the Code or any other agreement” indicating that the provisions of this specific rule are subject to waiver by private agreement. See Rule 13204

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On June 19, 2018 the Securities and Exchange Commission filed charges against multiple individuals and associated companies that defrauded investors out of $102 million. The individuals charged are Perry Santillo, Christopher Parris, Paul LaRocco, John Piccarreto, and Thomas Brenner (collectively “Defendants”).

These individuals accrued client assets largely through buying the books of business of retiring brokers. This method of raising funds allowed the brokers to gain clients trust, by ingratiating themselves with older brokers who were retiring and inserting themselves into the relationship. The Defendants would then convince clients to liquidate safe investments and move funds into companies controlled by Defendants. These companies were represented as real estate development trusts, financial services entities, oil and gas operations, etc. and double-digit investment returns combined with high dividends were promised.

In reality, these companies were simply shell entities controlled by Defendants, and once funds were transferred into the entities, they were transferred to feeder accounts, comingled, and withdrawn and misappropriated by Defendants for personal use. Defendants preyed on elderly victims with Alzheimer’s and deteriorating health, and while building trust and promising the safekeeping of funds, brazenly stole them for personal use.

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On May 30, 2018 the Securities and Exchange Commission (“SEC”) charged Steven Pagartanis (“Mr. Pagartanis”) with an $8 million fraud. Mr. Pagartanis was a registered representative of Lombard Securities Incorporated (“Lombard Securities”), an SEC registered broker-dealer. The SEC alleges Mr. Pagartanis had clients, including elderly retirees, write checks to an entity that he controlled that was similarly named to Lombard Securities.

Mr. Pagartanis promised the funds would be safe, and represented guaranteed monthly payments to his clients, while in fact he used the funds to pay personal expenses, or to make interest payments to earlier investors. Mr. Pagartanis hid this fraudulent, illicit activity from investors by creating fictitious account statements showing real estate holdings and interests in private development companies that did not in fact exist. Marc P. Berger, Director of the SEC’s New York Regional Office, said of the fraud: “[A]s part of the alleged scam, Pagartanis preyed on his customers’ trust, duping them to write checks payable to his own entity…regardless of how long investors have worked with their brokers, they should always confirm that recommended investments are approved for sale by their brokerage firm before transferring funds.”

When Financial Advisors engage in fraud and criminal behavior and steal victim’s funds, often times the funds have been spent and are difficult to recover. In some instances, the broker-dealer, custodian, or clearing firm that was involved in holding client accounts for the Financial Advisor that defrauded clients can be held liable for losses caused by the criminal activities of the Financial Advisor.

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Paul James Marshall (“Marshall”), a former Bear Stearns manager with over two decades in the wealth management industry, perpetrated a brazen fraud against clients through his registered investment advisory (“RIA”) firm Bridge Securities. Marshall had clients wire funds to JP Morgan, and make checks payable to JP Morgan, and then deposited those funds directly into Bridge Securities’ accounts. From there, he transferred the funds directly to checking accounts without ever even buying any securities with client funds.

Marshall went so far as to steal funds from a client dying of colon cancer who was in desperate financial condition. After the client passed away, Marshall pursued the insurance money, representing that he would manage it, while in fact using it for his own personal benefit. Marshall additionally charged the deceased’s relatives $5,000 in fees for tax-related work on the deceased clients account that he had never in fact performed.

Marshall falsified account statements by creating phony securities positions and investment returns. When clients attempted to redeem funds or seek information on their investments, Marshall either ignored them or lied to them. Federal prosecutors stated in the sentencing memorandum: “This case is not about mismanagement, poor investment decisions or bad luck, this is a case about outright theft from victims, many of whom were elderly, and the profound losses they suffered as a result.”

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On Friday, April 20, 2018, regulators announced a $1 billion fine against Wells Fargo over claims of misconduct and poor oversight in the auto lending and mortgage lending channels of Wells Fargo’s business. This $1 billion settlement with the Consumer Financial Protection Bureau (“CFPB”) and Office of the Comptroller of the Currency was in response to investigations that found Wells Fargo failed to catch or prevent improper charges to consumers.

Experts have posited that the myriad regulatory issues that have afflicted Wells Fargo are the result of poor internal controls and incentive structures – employees were given aggressive sales and account opening targets to achieve, and were bonused based on hitting specific hurdles. This aggressive payout system, while common in the industry, appears to have had particularly negative consequences at Wells Fargo, where some employees essentially defrauded both consumers and Wells Fargo itself by receiving performance bonuses based on fraudulently opened accounts or fees charged.

Wells Fargo has faced continual and mounting regulatory pressure, with a $185 million penalty in September 2016 for the fraudulent opening of 3.5 million accounts.  In February 2018, the Federal Reserve took the unprecedented enforcement action of issuing a cap on Wells Fargo’s assets, citing regulatory oversight issues.

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On April 6, 2018, the Securities and Exchange Commission (“SEC”) announced that three investment advisors, PNC Investments LLC, Securities America Advisors Inc., and Geneos Wealth Management (the “Advisors”) have settled charges with the SEC. The Advisors paid $12 million in restitution to clients harmed by the Advisor’s breach of their fiduciary duties.

The SEC found that these Advisors “violated their duty to seek best execution” by investing client assets in high cost mutual funds, when lower cost shares of the exact same funds were readily available. The SEC determined that the Advisors made these investment decisions simply for the purposes of self-enrichment.

Under the “Share Class Selection Disclosure Initiative,” the SEC is granting eligible Financial Advisors until June 2, 2018 to disclose and self-report any misconduct surrounding mutual fund purchases. The SEC’s Enforcement Division is willing to extend leniance to financial advisors, including recommending favorable settlement terms and waiving civil penalties, during this grace period granted under this Initiative.

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On March 27, 2018 the Securities and Exchange Commission (“SEC”) announced charges against Wedbush Securities Inc. (“Wedbush”) for failing to supervise employee Timary Delorme (“Delorme”).  The SEC Complaint alleges that Wedbush repeatedly failed to monitor or prevent Delorme’s activities, despite numerous red flags that Delorme was engaging in illicit activities.

The SEC complaint further alleges that Delorme was working in concert with Izak Engelbrecht — who was previously charged by the Commission and criminal authorities in separate actions – and received kickbacks and undisclosed benefits from Engelbrecht in exchange for buying penny stocks in customer accounts.  Wedbush failed to flag these high risk, unsuitable penny stock transactions, and failed to halt this fraudulent kickback scheme despite multiple FINRA inquiries regarding Delorme’s penny stock trading activity, and a customer complaint email to Wedbush detailing the specific scheme Delorme was engaged in.

A separate order against Delorme found that she had violated federal securities laws.  Without admitting or denying the findings, Delorme agreed to pay a $50,000 fine, and to a lifetime ban from the securities industry.  SEC Officer Marc P. Berger, Director of the New York Regional Office, issued a statement in regards to this investigation, saying “Brokerage firms play an important role in protecting retail investors from abusive conduct by brokers like Delorme; this case sends a clear message that we will not tolerate broker-dealers that fail to exercise appropriate supervision over employees, as alleged here.”