Morgan Stanley

Published on: November 8, 2024

Court Reaffirms Ruling That Morgan Stanley’s Deferred Compensation Plans are ERISA Plans, Denies Morgan Stanley’s Motion to Reconsider

On November 5, 2024, Judge Paul G. Gardephe of the United States District Court for the Southern District of New York denied Morgan Stanley’s motion to reconsider and, in a detailed opinion, reaffirmed his November 21, 2023 ruling that Morgan Stanley’s deferred compensation plans are ERISA plans.

Last year, Judge Gardephe held that Morgan Stanley’s Compensation Incentive Plan and Equity Incentive Plan are “individual account plans” for the purposes of the Employee Retirement Income Security Act of 1974 (ERISA), a ruling that would require the Plans to comply with ERISA’s statutory protections for employee plan participants. On December 5, 2023, Morgan Stanley moved for “reconsideration and/or clarification” of the Court’s ruling, arguing that (i) the Court overstepped its authority and (ii) factual issues precluded the Court’s determination that Morgan Stanley’s Plans are governed by ERISA. On May 24, 2024 Morgan Stanley took the unusual step of seeking a writ of mandamus from the Second Circuit Court of Appeals, which the Second Circuit denied on August 27, 2024.

In his November 5, 2024 Order, Judge Gardephe examined Morgan Stanley’s arguments at length and rejected them, finding that Morgan Stanley’s contention that this Court committed “clear error” in deciding the ERISA coverage question is “disingenuous and incorrect” and that “[t]he issue of ERISA’s applicability to [Morgan Stanley’s] deferred compensation programs has been front and center since this lawsuit was filed in 2020.” Considering whether testimony proffered by Morgan Stanley in a separate arbitration precluded the Court’s determination that the Plans are governed by ERISA, Judge Gardephe found the testimony “irrelevant” because the question of whether a plan is governed by ERISA is determined from the plan documents. Judge Gardephe again rejected Morgan Stanley’s argument that the deferred compensation plans fall within the U.S. Department of Labor’s bonus regulation and reaffirmed his prior ruling that “Morgan Stanley’s deferred compensation programs are ERISA plans.”

Published on: August 8, 2024

Protecting Your Interests: Barry R. Lax on Deferred Compensation Legal Battles (Podcast)

By Lax & Neville LLP

Click here to listen.

Recently, financial advisory firms have been getting slammed by lawsuits over deferred compensation and ERISA violations, with cases involving major players like Morgan Stanley, Merrill Lynch, and U.S. Bancorp. To help you navigate these turbulent waters, we sat down with Barry R. Lax, a founding partner of Lax & Neville LLP, who provided an in-depth analysis of these landmark cases. Barry’s expertise sheds light on the complexities and potential pitfalls of deferred compensation plans, offering crucial insights for financial advisors who might have deferred compensation coming their way.

In this episode, Barry explains the recent victories and defeats of these firms in arbitration and court battles, providing a detailed look at the legal strategies and outcomes. He discusses the implications of these cases for advisors, especially those dealing with deferred compensation and retirement plans protected by ERISA. Barry also shares practical advice on how advisors can protect their interests and navigate the legal landscape.

Published on: May 21, 2024

Lax & Neville LLP Pursuing Unpaid Deferred Compensation Claims Against Merrill Lynch

By Lax & Neville LLP

On April 30, 2024, a class action was filed against Merrill Lynch in the Western District Court of North Carolina to recover the deferred compensation that Merrill Lynch cancelled upon Plaintiffs’ voluntary resignation. While we believe there are strong claims against Merrill Lynch for violation of ERISA, we believe that they must be arbitrated at FINRA. See Regulatory Notice 16-25 here. Lax & Neville is pursuing arbitration claims on behalf of former Merrill Lynch advisors for their cancelled deferred compensation comprised of both Long-Term Incentive (LTI) Cash Plans/WealthChoice and Restricted Stock Units (RSUs).

In a similarly situated class action, Shafer, et. al. v. Morgan Stanley, et. al., the Plaintiffs, former Morgan Stanley financial advisors, sued Morgan Stanley in December 2020 to recover their deferred compensation, which was cancelled by Morgan Stanley when those advisors voluntarily resigned. Morgan Stanley moved to compel those advisors’ claims to FINRA arbitration. On November 21, 2023, almost three years after the filing of the Complaint, the Federal Court granted Morgan Stanley’s motion requiring any Morgan Stanley advisor who wants to recover their deferred compensation to file FINRA arbitration claims against Morgan Stanley. See the Court’s Order and Opinion here. For more information on the Morgan Stanley decision, see here.

Our firm has extensive experience successfully pursuing deferred compensation claims in FINRA arbitration. Most recently, we have won more than $35 million in unpaid deferred compensation, interest, costs, and attorneys’ fees for more than two dozen former Credit Suisse investment advisers, and we represent dozens of Morgan Stanley financial advisors seeking to recover their deferred compensation.

Published on: November 22, 2023

Court Compels Morgan Stanley Advisors to Arbitrate for Their Deferred Compensation at FINRA

By Lax & Neville LLP

Today, the Southern District of New York granted Morgan Stanley’s motion to compel arbitration in the class action Shafer, et. al. v. Morgan Stanley, et. al. (Case 1:20-cv-11047-PGG).

Plaintiffs, former Morgan Stanley financial advisors, sued Morgan Stanley asserting that Morgan Stanley violated the Employee Retirement Income Security Act of 1974 (“ERISA”) by not paying Plaintiffs all of their deferred compensation when they resigned from Morgan Stanley, and Morgan Stanley moved to compel arbitration on June 29, 2022. The Court’s decision forces Plaintiffs and any similarly situated former Morgan Stanley financial advisor to file their claims for unpaid deferred compensation in FINRA Arbitration.

In its opinion, the Court held that Morgan Stanley’s Compensation Incentive Plan and Equity Incentive Plan are ERISA plans and “‘individual account plans,’” which under ERISA “means a pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant’s account….” (Order, p. 44). The Court’s holding may significantly strengthen FINRA arbitration claims against Morgan Stanley, which primarily depend on the applicability, and Morgan Stanley’s violation, of ERISA.

Published on: August 30, 2023

Client Represented by Lax & Neville Wins $1.8MM Award Against Morgan Stanley for Unsuitability and Failure to Supervise Investment in WisdomTree (WETF)

By Lax & Neville LLP

On August 21, 2023, a retired artist and teacher of the visually impaired represented by Lax & Neville LLP won a FINRA award against Morgan Stanley for its years-long recommendation that she invest her savings in WisdomTree (WETF), a sponsor of exchange traded funds (“ETFs”) and asset manager. Over a period of nearly seven years, the customer’s Morgan Stanley advisors, David and Todd Wachsman, solicited numerous purchases of WisdomTree stock even as its price fell and her position became highly concentrated. WisdomTree stock ultimately made up the vast majority of her networth. Despite numerous red-flags and internal recognition that the position was highly concentrated and sustaining substantial losses, Morgan Stanley permitted the Wachsmans to recommend additional investments in WisdomTree for years, including selling risky put options that significantly increased her exposure to decline in WisdomTree’s price, decimating her savings. Morgan Stanley’s primary defense was that, over the lifetime of the account prior to the first WisdomTree purchase a decade ago, Morgan Stanley had made money for the customer, a retiree in her mid-seventies, and was therefore entitled to bet it all on a single-stock strategy. Additionally, Morgan Stanley took the position that they warned the customer of the risks involved. However, it still allowed the Wachsmans to recommend that she purchase more WETF, that she sell other securities rather than WETF, and that she hold the overly concentrated position they built in her accounts.

After considering the pleadings, testimony and evidence presented at the hearing, the Arbitration Panel rejected Morgan Stanley’s defense and unanimously awarded the customer $1.8 million, including the entirety of damages caused by Morgan Stanley’s investment in WisdomTree market adjusted to account for Morgan Stanley’s mismanagement of her account during an historic bull market.

The Arbitration Panel also denied the expungement requests made on behalf of the financial advisors, Todd Wachsman and David Wachsman. To view this Award, Karen Busch v. Morgan Stanley Smith Barney, LLC – FINRA Case No. 21-00203, click here.

Published on: July 1, 2015

FINRA Suspends And Fines Cambridge Investment Research, Inc. Broker Mark F. Leone For Making Unauthorized Trades In Customer Accounts

By Lax & Neville LLP

On June 29, 2015, Mark F. Leone (“Leone”) submitted a Letter of Acceptance, Waiver, and Consent (“AWC”) to settle allegations made by the Financial Industry Regulatory Authority, Inc. (“FINRA”). Currently, Leone is registered with Cambridge Investment Research, Inc.; however, FINRA alleged that while Leone was registered with Morgan Stanley, he exercised discretion in customer accounts without written authorization to do so. To settle the FINRA allegations, Leone submitted to censure, a fine of $5,000 and suspension for fifteen (15) business days. A copy of the FINRA AWC is available here.

Specifically, FINRA alleged that on March 10, 2014, Leone, effected five (5) discretionary transactions on customer accounts without first obtaining written authorization from the customers, or having the accounts accepted as discretionary at Morgan Stanley. According to Leone’s BrokerCheck Report, on April 3, 2014, Morgan Stanley terminated Leone for allegations regarding discretionary trading without written authorization. In response to those allegations, Leone stated, “five clients owned a stock and had a gain in the stock. The market was about to close and I was going out of town. I quickly entered sell orders to close the positions in the account. This generated a bunching report to Morgan Stanley.”

Bunching, or aggregating multiple executions into a single tape report, is prohibited under FINRA Rules Rules 6282(f), 6380A(f) and 6380B(h). Similarly, NASD Conduct Rule 2510(b), FINRA Rule 2010, and Morgan Stanley firm policies all prohibit registered representatives from exercising discretionary control over customer accounts without written authorization from that customer and firm approval. FINRA alleged that Leone lacked any authorization to make transactions in these customer accounts outside of one account where he was given insufficient verbal authorization. As such, Leone violated NASD Conduct Rule 2510(b) and FINRA Rule 2010.