New York Securities Lawyer Blog

Published on: April 14, 2020

Broker Transitions During the COVID-19 Pandemic

The market for financial advisors to transition from one firm to another is thriving despite less broker dealers being part of the Broker Protocol, the global economy being at a near standstill, and millions of Americans applying for unemployment on a weekly basis. The wire houses are actively recruiting and Fidelity recently announced its hiring efforts: https://jobs.fidelity.com/ With a volatile stock market causing extreme angst among investors, advisors are in high demand as they calm unsteady nerves and identify investment opportunities for weary clients. Given these realities, it would seem an unlikely time for advisors to make the jump from one firm to another. But many advisors – and the firms who have stepped up their recruiting efforts during the pandemic – feel otherwise.

Attempting to move an entire book of business during unprecedented market volatility can certainly be a risky endeavor, but there are good reasons to consider taking the leap at this particular time. Having experienced counsel will help too.

First, in light of the stock market roller coaster of the past several weeks, investors are more inclined to remain with the advisor upon whom they’ve come to rely, regardless of which firm he or she works.

Published on: April 1, 2020

Mortgage REITs Collapse During Market Turmoil

By Ross B. Intelisano

Mortgage REITs have often been recommended by brokerage firms as safe investments that generate consistent income. However, during the recent market turmoil the bottom has fallen out for many Mortgage REITs. For example, AGNC Investment and Annaly Capital are down over 50% in the last month or so, a way larger drop than the general equities markets. Another Mortgage REIT, AG Mortgage, is down 75%. Many of these mortgage REITs do not expect to be able to meet upcoming margin calls.

How did these mortgage REITs end up here? Well, first of all, a REIT is a real estate investment trust which is a security that invests in real estate directly either through properties or in this case, mortgages or mortgage-related bonds. The mortgage REITs listed above are publicly held and sold on exchanges. There are also what are called non-traded REITs which are often sold through broker-dealers and are not traded publicly. Mortgage REITs invest and own property mortgages. They also loan money for mortgages to real estate owners, buy existing mortgages and purchase complicated MBS (mortgage-backed securities). Mortgage REITs generate revenue by collecting interest on the mortgage-related products.

As reported widely this week, the Mortgage REITs often fund themselves by pledging bonds in return for cash in the repo markets. They are highly leveraged which in good times allowed them to pay dividends at higher yields than most bonds. Brokers often recommend to investors to reach for yield in low yielding time periods and many brokers sold Mortgage REITs to investors without fully disclosing the risks associated with them. In recent weeks, many Mortgage REITs found that the mortgage bonds they held dropped in value which triggered margin calls which then forced the Mortgage REITs to sell bonds into a falling market.

Published on: March 19, 2020

Margin Call Disputes Primer

By Ross B. Intelisano

Margin call disputes often arise during times of market turmoil such as now. Knowing what to do and whom to speak to when a margin call is issued is vitally important to an investor’s financial well-being. Here is a little primer on what to do.

A margin call often occurs when the value of an investor’s margin account falls below the broker dealer’s required amount. A margin call is the broker dealer’s demand that an investor deposit additional money or securities so that the value of the account is brought up to the minimum value, which is known as the maintenance margin. Some margin calls are small and an investor simply has to move securities in from another account or write a check to the broker. However, in other situations, the acts by the broker dealer prior to the margin call being issued may have played a role in the margin call itself.

For example, a conservative investor often should not be holding any securities on margin at a brokerage firm. If the firm recommended an unsuitable investment strategy that contained a significant amount of margin, and the market turned bad, and the investor sustained losses, said investor may have a potential FINRA arbitration claim against the broker. In these situations, when a margin call is issued on the account, we highly recommend that the investor call a law firm such as ours who regularly represents investors in disputes with the financial industry. It is paramount that the investor receives legal advice as soon as possible. Most broker dealers have very broad powers in how to handle margin calls pursuant to onerous margin agreements. The brokers sometimes even blow out investors’ portfolios without providing any notice (though they are supposed to exercise good faith in any decision they implement). Time is usually of the essence. It is important to have counsel engage with the broker dealer as soon as possible to potentially work out any issues.

Published on: January 29, 2020

Beware of Investment Advisor “Recommendations” from Securities Firms that Specialize in “Self Directed” Trading Accounts.

By John G. Rich

Many firms, such as TD Ameritrade, Charles Schwab and Fidelity, whose business model includes or is tailored primarily to investors who want the benefits of a self-directed account also offer to introduce investors who wish independent investment advice to professional investment advisors who are technically “unaffiliated” with the firm. Such investment advisors are often small SEC Registered Investment Advisors (“RIA”s) who are thinly capitalized and have supervisory systems that are well below FINRA broker dealer standards. The brokerage firms contract with such RIAs to be on their platforms and available to provide advice to customers that the firm introduces them to. Those contracts are often designed to, among other things, insulate the brokerage firm from liability for investment advice given to the investor. This is so even though the brokerage firms vet such advisors, who become part of a “platform” they market to investors. Investors who are “introduced” by their firm to an RIA who will provide them investment advice may not realize that the firm’s position is that if the advice is inappropriate the RIA and not the firm is legally responsible. Indeed, the firms structure their contracts with the customer as well as the RIA to give them this protection. Customers can be easily misled by such “introductions” into believing that the firm stands behind the RIA. Although the legal documents, couched in legalese, may so specify, the customer, who often does not read all the legalese in these documents, can be forgiven for believing that the firm that recommended the advisor and investment plan should have some responsibility if that advisor acts improperly. Investors at such firms need to know that they are taking a risk that if their firm recommended RIA gives them unsuitable advice they may be stuck suing a potentially judgment proof RIA in court (rather than the more cost effective FINRA arbitration).

Published on: September 26, 2019

UBS YES Strategy Lawsuits

By Ross B. Intelisano

Rich, Intelisano & Katz, LLP (RIK) continues its investigation into UBS’ sale of its Yield Enhancement Strategy or the “YES” options program. Many investors around the country have filed arbitrations against UBS alleging that UBS misrepresented the risks of the options program, failed to implement appropriate risk controls, and failed to supervise the YES options program.

The Yield Enhancement Strategy is run by two UBS registered representatives, Matthew Buchsbaum and Scott Rosenberg. UBS recruited both gentlemen from Credit Suisse in 2015 when Credit Suisse closed its private wealth management business. Messrs. Buchsbaum and Rosenberg ran the YES options program at Credit Suisse for many years.

UBS allowed its financial advisors other than Messrs. Buchsbaum and Rosenberg to market and sell the YES options program to their own clients. Cases filed by aggrieved investors allege that UBS represented that its YES options program was a low-risk strategy to generate modest income. However, the program is actually a complex investment strategy that carried significant risk and caused substantial investor losses.

Published on: July 8, 2019

Lax & Neville LLP Appointed Special Securities Counsel for Court Appointed Receiver

By Lax & Neville LLP

On September 18, 2017, Lax & Neville LLP was appointed special securities litigation counsel for court-appointed Receiver, Richard W. Barry, in an action commenced by the Attorney General of New Jersey on behalf of the Chief of the New Jersey Bureau of Securities. The action alleged securities fraud in the sale of securities, as well as other violations of the New Jersey Uniform Securities Laws, by defendants Osiris Fund Limited Partnership (a hedge fund), Peter Zuck, and others. State of New Jersey, et al. v. Peter Zuck, et al., Docket No.: HDU-C-125-12.

The Receiver—who was empowered to pursue actions on behalf of the receivership estate to recover assets for the benefit of defrauded investors, victims, and creditors—filed a motion to approve the retention of Lax & Neville LLP as special securities counsel to assist the Receiver in his duties and seek relief on behalf of those defrauded. Given the sophisticated nature of the securities-related issues, the Receiver sought to retain a law firm with specialized skill, knowledge and experience in securities law and arbitration. Lax & Neville LLP’s retention as special securities counsel was approved by court order on September 18, 2017.

On December 30, 2017, Lax & Neville LLP commenced a Financial Industry Regulatory Authority (“FINRA”) arbitration claim on the Receiver’s behalf against Interactive Brokers and Kevin Michael Fischer, who is the head of Interactive Brokers LLC’s block trading desk. The FINRA arbitration concerned the collapse of Osiris Fund, a fraudulent Ponzi scheme orchestrated by Peter Zuck, a convicted felon who was banned from the securities industry (specifically, the National Futures Association (“NFA”)) fifteen years before he opened accounts with Fischer at Interactive Brokers. The Receiver’s Statement of Claim alleged that, from April 2009 through December 2011, Interactive Brokers ignored numerous red flags, including obviously fraudulent account opening documents, suspicious fund transfers, ludicrously high “management fees,” and hundreds of e-mails and hours of recorded phone calls between Osiris Fund’s employees and Fischer. The Receiver further alleged that Interactive Brokers and Fisher became instrumental to the scheme, with Interactive Brokers providing substantial participation in the form of what was apparently a completely unsupervised platform that gave Osiris Fund credibility with Investors, and with Fischer participating substantially in marketing and solicitating new investors, recommending securities, directing Osiris Fund’s employees, and at times managing Osiris Fund’s investments himself. The Receiver alleged that Interactive Brokers, Fisher, and Osiris Fund defrauded approximately 72 investors out of approximately $6.5 million.

Published on: May 10, 2019

TWO MORE FORMER CREDIT SUISSE ADVISERS REPRESENTED BY LAX & NEVILLE LLP WIN FINRA AWARD, NEW YORK LABOR LAW CLAIMS AGAINST CREDIT SUISSE

By Lax & Neville LLP

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.

Published on: April 24, 2019

NEW YORK SUPREME COURT, COMMERCIAL DIVISION DENIES CREDIT SUISSE’S PETITION TO VACATE $1 MILLION FINRA AWARD FOR UNPAID DEFERRED COMPENSATION

By Lax & Neville LLP

On November 6, 2018, Nicolas Finn, a former Credit Suisse investment adviser represented by Lax & Neville LLP, won a FINRA arbitration award against Credit Suisse Securities (USA) LLC for unpaid deferred compensation. On November 27, 2018, Credit Suisse petitioned the New York Supreme Court (Commercial Division) to vacate the Finn Award on grounds of arbitrator misconduct and manifest disregard of the law. See Credit Suisse Securities (USA) LLC v. Nicholas B. Finn, CV 655870/2018. The Honorable Judge Jennifer Schecter, by order dated April 24, 2019, denied the Petition to Vacate in its entirety and entered judgment for Mr. Finn.

Credit Suisse is currently being sued by dozens of its former investment advisers in connection with the 2015 closure of its US private bank. Four FINRA Panels have issued awards thus far, all of them finding Credit Suisse terminated its advisers without cause and ordering it to pay deferred compensation. This is the first time a court has heard Credit Suisse’s defenses to the Credit Suisse Deferred Compensation Arbitrations.

Credit Suisse contended that the Finn Panel acted in manifest disregard of the law on two issues. First, Credit Suisse argued that Mr. Finn resigned as a matter of law when he left Credit Suisse on November 23, 2015, a month after Credit Suisse announced it was closing its private bank. Under the terms of Credit Suisse’s contracts with its investment advisers, deferred compensation is cancelled immediately upon voluntary resignation but vests immediately upon termination without cause. The evidence at arbitration overwhelmingly established that Credit Suisse both structured the closure of the private bank and deliberately concealed and misrepresented material information in order to mischaracterize its advisers as having “resigned” after they were given no option but to leave Credit Suisse. It then cancelled more than 95% of its advisers’ deferred compensation, amounting to almost $200 million. The Finn Panel rejected Credit Suisse’s argument that Mr. Finn resigned voluntarily and ordered expungement of “Voluntary” termination from his Form U-5. The Panel recommended that the Form U-5 be amended to state that the reason for termination was “Termination Without Cause.”

Published on: April 8, 2019

UBS’s Flawed Yield Enhancement Strategy (YES)

By John G. Rich

The so-called “Yield Enhancement Strategy,” or “YES,” has seen a major rise in popularity at large investment firms, especially UBS, as a vehicle for investors to “enhance” returns relatively safely. “YES” has been pitched as a relatively safe way to generate enhanced returns on a consistent basis, especially when markets are flat. Fairly stable markets have been norm for many years, until recently, making this approach attractive to many investors. However, because of this historic stability, the inherent risks of the investment have not been widely known to investors.

As a result, because “YES” relies on stability in the market place, when significant volatility does hit, as it has at various times in the last 18 months, particularly last December, it can cause major losses to unsuspecting investors who were not prepared for them.

The “YES” Strategy is not only risky, but exceedingly complicated, involving an exotic options play, which is difficult for all but the most sophisticated investors to understand. YES is only appropriate for the most experienced and sophisticated investors, those with a high risk tolerance and who understand options strategies, and only when accompanied with proper and specific disclosure of all the underlying risks. Unfortunately, it appears that this product may have been sold to many investors without proper risk disclosure who did not meet the above criteria.

Published on: November 15, 2018

ANOTHER FORMER CREDIT SUISSE ADVISER REPRESENTED BY LAX & NEVILLE LLP WINS A FINRA ARBITRATION AWARD AGAINST CREDIT SUISSE SECURITIES (USA) LLC IN THE DEFERRED COMPENSATION ARBITRATIONS

By Lax & Neville LLP

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.