Tuesday, July 29, 2014

Calculating Breach of Fiduciary Duty Damages

According to a variety of authorities including the SEC, the much-debated fiduciary duty for registered investment advisers and their representatives includes a subset of responsibilities[1].  Common sense would, or should tell you that the appropriate damage calculation for a breach of fiduciary duty will be directly dependent upon and vary according to the particular unfulfilled responsibility.  For example, a breach of the fiduciary duty regarding conflicts of interest or honesty, as opposed to mere suitability, will call for out-of-pocket damage compensation if these breaches occurred before any market-losses at issue.  Even in a suitability only arbitration, however, expert witnesses may debate the applicability of out-of-pocket loss calculations as opposed to model portfolio based market-adjusted damage calculations.

It is common in breach of fiduciary duty cases involving trustees to award damages in the amount necessary to make the beneficiary whole. Restatement of Trusts, Second, § 2205, (1957), provides that proof of harm from a breach of fiduciary duty entitles an injured party to whom the duty was owed to damages that: (a) place the injured party in the same position it would have been in but for the fiduciary breach;(b) place the non-breaching party in the position the party was in before the breach; and (c) equal any profit the breaching fiduciary made as a result of committing the breach. See also Restatement (Second) of Torts § 874 (1979) (“One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation.”).
Delaware law is consistent with this principle. In Hogg v. Walker, 622 A.2d 648, 653 (Del. 1993), the court noted that “where it is necessary to make the successful plaintiff whole” for a breach of fiduciary duty, courts have been willing to allow the plaintiff to recover a portion of trust property or its proceeds along with a money judgment for the remainder. The court in Hogg stated that “[i]t is an established principle of law in Delaware that a surcharge is properly imposed to compensate the trust beneficiaries for monetary losses due to a trustee’s lack of care in the performance of his or her fiduciary duties.” Id. at 654.[2]; see also Weinberger v. UOP, Inc., 457 A.2d 701, 714 (Del. 1983) (stating that in measuring damages for breach of fiduciary duty the court has complete power “to fashion any form of equitable and monetary relief as may be appropriate, including rescissory damages.”); Harman v. Masoneilan Intern., Inc., 442 A.2d 487, 500 (Del. 1982) (finding that “the relief available in equity for tortious conduct by one standing in a fiduciary relation with another is necessarily broad and flexible.”) (citing See Restatement (Second) of Torts, § 874 (1979)).

In O'Malley v. Boris, 742 A.2d 845, 849 (Del. 1999), the court stated that the relationship between a customer and stock broker is that of principal and agent. The court stated a broker must act in the customer’s best interests and must refrain from self-dealing, and that these obligations are at times described “as fiduciary duties of good faith, fair dealing, and loyalty.” (emphasis added) Id. The court further found that fiduciary duties of investment advisors “are comparable to the fiduciary duties of corporate directors, and are limited only by the scope of the agency.” Id.   Bear, Stearns & Co. v. Buehler, 432 F.Supp.2d 1024, 1027 (C.D.Cal. 2000) (finding that reasoning from case addressing breach of fiduciary duty by a trustee was persuasive in case involving investment advisor because, “[l]ike a trustee, an investment advisor may be considered a fiduciary.”).

In sum, it is critical to identify the particular duty at issue in order to arrive at a proper damage calculation.  The broker’s duty of suitability is essentially a limited duty of care akin to the one at play in a negligence matter. The fiduciary duty, however, carries within it an entire penumbra of duties of which portfolio/investment suitability is just one.  If an alleged breach of fiduciary duty is limited to the adviser’s responsibility to recommend or make a suitable investment only, the damage calculations may indeed mirror the broker-dealer damage calculation.  An adviser’s breach of its fiduciary duty beyond the mere standard of investment care, however, requires the finder-of-fact to calculate “make-whole” damages.


[1]Miley v. Openheimer, 637 F.3d 318 (1981) is “the seminal case on damages in a suitability case[.]”
[2] A “surcharge” is relief in the form of monetary compensation for a loss resulting from a trustee’s breach of duty. The Supreme Court in CIGNA Corp. v. Amara, 131 S.Ct. 1866, 1880 (2011), stated that an ERISA fiduciary can be “surcharged” or ordered to pay money damages under the ERISA provision allowing a participant or beneficiary of the plan to obtain “other appropriate equitable relief.” In making this determination, the court stated that “[t]he surcharge remedy extended to a breach of trust committed by a fiduciary encompassing any violation of a duty imposed upon that fiduciary.” The court went on to conclude that “insofar as an award of make-whole relief is concerned, the fact that the defendant in this case, . . . , is analogous to a trustee makes a critical difference.”

Friday, March 28, 2014

Defamation v. Tortious Interference

Most of us have at least a “street-level” understanding of defamation. Individuals that hear or read damaging false statements about themselves or their business typically think: “I need to find a defamation lawyer.” They may be right. But if the defamatory statements at issue intersect with a commercial relationship or transaction, there is another avenue of relief and compensation that should be considered.
There are times when defamatory statements are intended to interfere with an existing business relationship. Take for example the case of investment adviser representative and broker Norm Meyer. He retained a fine lawyer, other than this firm, to go to war with his former broker-dealer1. Norm may have had some issues if he, or his lawyer, restricted their thinking to defamation. First and foremost, defamation claims typically have to be brought within one year. Other causes of action, such as breach of contract and tortious interference have much longer life-spans.
After a very long legal battle, Norm has his BrokerCheck (professional record) amended. The arbitration panel ordered a uniquely thorough Form U-5 expungement and a detailed amendment.
One more observation: defamatory statements, even in the commercial context, frequently get repeated in the media. One example is a business journal. Whether or not the media is liable for repeating the defamatory statements of another depends upon the facts and forum at play. A careful analysis of what was said and in what context is critical in determining whether or not the media should be added as defendants, if litigation is the path you must follow. 
Keep an eye on this blog to learn more about defamation, tortious interference, and reputation damage management and compensation.
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1 We represented Norm's colleague in the same matter.

Wednesday, March 19, 2014

Defamation Reputation Damage Management

In 1378, the Statute of Scandalum Magnatum granted judges and church officials in England a legal right to compensation if they had been insulted or defamed. The first Common Law defamation action on record was filed in England in 1507. Back then, however, the cause of action only applied to false utterances regarding criminality, incompetence, and disease. The law evolved dramatically in the United States. Indeed, Supreme Court Justice Stewart once wrote that the tort of defamation “reflects no more than our basic concept of the essential dignity and worth of every human being.1

Defamation law has been somewhat static since the seminal Supreme Court case of New York Times Co. v. Sullivan in 1964. But consider what has changed in the 50 years since that ruling. Let me cite just a few examples of developments that have completely transformed the impact of damages caused by defamatory conduct:
  1. An erosion of society's perception of what is a private matter;
  2. 24-hour news cycles;
  3. The relative decline of more thorough print media; and
  4. The internet (and the explosion of linked high-speed outlets for the dissemination of falsehoods.)

As the old saying goes, “A lie makes its way around the world before the truth has time to get its pants on.”

I will blog again shortly about the intersection of defamation and U-5 FINRA defamation claims. The lesson for now is as follows: brokers that have suffered from U-5 defamation need to do much more than simply file an arbitration claim. Reputation management is critical.
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1 If you want to dig deeper in to the legal history of defamation law, start with David Hudson's excellent piece by clicking here.

Wednesday, March 12, 2014

Missouri Supreme Court Rejects Trade Secret Claim Over Client List

Troy Kennedy (Kennedy”) left his position as director and executive officer of a trust and investment company when that company was bought by Central Trust & Investment Company (“CTI”). Kennedy left to found a competing firm. Both companies provided financial advice and investment management services. Within six months, Kennedy had successfully solicited 85 former clients.

Before the sale and departure in question, Kennedy had placed a detailed list of 200 clients in a safe deposit box upon the advice of legal counsel. Kennedy did not register his new company, ITI, with the SEC as an investment adviser. Instead, Kennedy affiliated himself as an investment adviser representative of an RIA called SignalPoint Asset Management, LLC (“SignalPoint”), the defendant in this case. The agreement between Kennedy and SignalPoint allowed Kennedy to offer investment services through SignalPoint in exchange for various fees on an independent contractor basis.

CTI filed suit against Kennedy and his new company, ITI. At the time it filed suit, it didn't even know about the client list in the safe deposit box. The suit included causes of action for conspiracy, misappropriation of trade secrets (MUTSA) and tortious interference with business relations. CTI then added SignalPoint as a third defendant. All three defendants filed motions for summary judgment. The trial court granted SignalPoint's only. The Supreme Court ordered the matter transferred to it from the Court of Appeals. The Supreme Court's analysis of the three different claims begins on page 7 of the 2014 Opinion [Click HERE]. The Opinion is a must read for attorneys representing agents or representatives that are about to “change ships” or broker-dealers or RIAs that are taking on a competitor's producer.

The Supreme Court sustained the dismissal of the statutory trade secret claim because CTI could not establish that SignalPoint had access to the client list. In doing so, it side-stepped the issue of whether the client list qualified as a trade secret. Ironically, the most valuable portion of the opinion for practitioners might be the two extensive footnotes (8 and 9) about client lists that prove that lawyers and judges can render obscure what should be obvious. Regardless, the Supreme Court concluded that because there was no access, there was no misappropriation, so there was no MUTSA violation.

The first 10 pages of the opinion fail to pin the law to the reality of the situation—that Kennedy had access to the list and was using it to benefit himself and SignalPoint. Ironically, the plaintiff's attorney couldn't pin that tail on the donkey either—he or she somehow failed to plead any theory of vicarious liability. The theory of respondent superior was not available either—Kennedy's IAR Agreement clearly established him as a non-employee. CTI needed but failed to plead that Kennedy was an agent over whom SignalPoint had a sufficient degree of control.

The Court proceeded to set forth the elements of a claim for tortious interference:

“To prove a claim for tortious interference with a contract or a business expectancy, the plaintiff must prove the following five elements: “(1) a contract or a valid business expectancy; (2) defendant's knowledge of the contract or relationship; (3) intentional interference by the defendant inducing or causing a breach of the contract or relationship; (4) absence of justification; and (5) damages resulting from defendant's conduct.”

The Court concluded that the fourth element requires a showing of “improper means” and the plaintiff could not establish any because there was no misappropriation of a trade secret. The civil conspiracy claim died from the same wound. Food for thought.


The Cosgrove Law Group represents individual agents and reps both before and after they make a move to a new B/D or RIA. Retaining counsel before the litigation starts just might help you prevail and prosper.   

Sunday, March 2, 2014

Is your RIA's Code of Ethics Adequate?

Being a fiduciary to clients means acting in the client’s best interest and putting their interest before yours and others. Sometimes knowing what is in the client’s best interest can get foggy so establishing certain guidelines can help protect you, your client, and your representatives. 

In accordance with Rule 204A-1 of the Investment Advisors Act of 1940, RIA’s registered with the SEC are required to maintain a written code of ethics that outline the fiduciary duties and standards of conduct of the RIA and its representatives. State registered RIA’s may also be required to develop a code of ethics consistent with state regulations. 

It’s important to keep in mind that in creating a code of ethics, the SEC and various state regulations set minimum requirements.  The following items are required in an RIA’s code of ethics under Rule 204A-1:
  • A standard of business conduct which reflects the fiduciary obligations to clients;  
  • Provisions requiring all advisers’ and supervised persons’ compliance with applicable federal securities laws;
  • Protection of material non-public information of both the adviser’s securities recommendations, and client securities holdings and transactions;
  • Periodic reporting and reviewing of access persons’ personal securities transactions and holdings;
  • Advisor’s approval before an access person can invest in an IPO or private placement;
  • Duty to report violations of the code of ethics;
  •  A written acknowledgment that all supervised persons received the code of ethics; and
  • Recordkeeping provisions. 
RIAs often set higher standards that work to reinforce the values or business practices of the company.  Rule 204A-1 does not require detailed measures to be included into every code because of the vast differences among advisory firms.  However, the SEC has offered guidance and recommendations on additional best practices that advisors should consider incorporating into its code of ethics.  The following list contains additional safeguards that are commonly implemented by other advisers:
  • Prior written approval before access persons can place a personal securities transaction (“pre-clearance”);
  • Maintenance of lists of issuers of securities that the advisory firm is analyzing or recommending for client transactions, and prohibitions on personal trading in securities of those issuers;
  • Maintenance of “restricted lists” of issuers about which the advisory firm has inside information, and prohibitions on any trading (personal or for clients) in securities of those issuers; 
  • “Blackout periods” when client securities trades are being placed or recommendations are being made and access persons are not permitted to place personal securities transactions.
  • Reminders that investment opportunities must be offered first to clients before the adviser or its employees may act on them, and procedures to implement this principle.
  • Prohibitions or restrictions on “short-swing” trading and market timing.
  • Requirements to trade only through certain brokers, or limitations on the number of brokerage accounts permitted;
  • Requirements to provide the adviser with duplicate trade confirmations and account statements; and
  • Procedures for assigning new securities analyses to employees whose personal holdings do not present apparent conflicts of interest.
Another issue that may be important to include in your code of ethics is provisions concerning gifts and entertainment since giving or receiving gifts between a client and advisor may create the appearance of impropriety.  Gift and entertainment provisions usually contain reporting requirements and a prohibition of accepting gifts over de minimus values, such as $100.

While the above requirements and recommendations generally encompass an advisor’s fiduciary duty as it relates to conflicts of interests, advisors have additional fiduciary duties to clients that should be memorialized in a code of ethics as well.  For example, and what might appear obvious to some, advisors cannot defraud or engage in manipulative practices with a client in any way.  Advisors also have a duty to have a reasonable, independent basis for the investment advice provided to a client and to ensure that investment advice meets the client’s individual objectives, needs, and circumstances.  Advisors are also expected to stay abreast of market conditions.  Clients should be provided with all material information related to their investments or investment strategy and should be adequately informed of the risks associated with those investments.  The depth of the explanation of those risks or strategy depends on the client’s level education and experience.     

The buck doesn’t stop with establishing a written code of ethics, however.  Implementation and enforcement of your code of ethics are just as crucial.  This also includes educating your representatives.  Rule 204A-1 does not mandate specific training procedures but ensuring that your representatives understand their obligations and their fiduciary duties is imperative.  Thus, periodic training with new and existing employees is not only in your best interest, but also the interest of your employees and clients.  Finally, you should annually review your code of ethics to determine if there are any areas of deficiency or whether changes need to be made.

The Syndicate can assist with your firm in the following ways: (1) drafting or establishing a code of ethics; (2) reviewing your current code to assure it complies with applicable state or federal laws; (3) implementing training programs; and (4) analyzing your firm’s implementation procedures to ensure compliance with the codes provisions.

Friday, February 28, 2014

Supreme Court Rules in Favor of Stanford Fraud Victims’ Ability to Bring State Law Claims  

When I covered Chadbourne & Parke LLP v. Troice during oral arguments in the Supreme Court, I promised I would update you when the High Court rendered its decision.     

Yesterday, the Supreme Court decided in a 7-2 decision whether investors in a class action suit were precluded by the Securities Litigation Uniform Standards Act (“SLUSA”) from bringing state law causes of action against law firms and other third party entities for their alleged roles in the $7 billion R. Allen Stanford Ponzi scheme. SLUSA bars certain class action plaintiffs from bringing state law claims based on misrepresentations made “in connection with the purchase or sale of a covered security.”  SLUSA narrowly defines “covered security” as “[a security] listed, or authorized for listing, on a national securities exchange” such of which must be listed or authorized to be listed “at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred.”

The class action at the center of this case concerned a Ponzi scheme by R. Allen Stanford involving certificates of deposits (“CDs”) sold to investors.  Part of the misrepresentations made to the investors were that the CDs were backed by a portfolio of marketable securities.  Recovery against Stanford has been unsuccessful, with investors receiving about a penny on the dollar for their losses, so the victims brought claims against various third-party entities alleging they made misrepresentations concerning the safety of the investments and that Stanford’s attorneys conspired with and aided and abetted Stanford in violating the securities laws by lying to the SEC and assisting Stanford to evade regulatory oversight.

The central question of the case was whether the purported securities-backed CDs sold to investors qualified the transactions as a covered security.  Plaintiffs argued that since SLUSA specifically exempted CDs from the definition of a covered security, they were not preempted from bringing state law claims.  Defendants, however, argued that since Stanford represented that the CDs were backed by marketable securities, a covered security under SLUSA, plaintiffs were barred from asserting state law claims. 

The test applied by the District Court, used in the Eleventh Circuit, asks “whether a group of plaintiffs premise their claim on either ‘fraud that induced [the plaintiffs] to invest with [the defendants] … or a fraudulent scheme that coincided and depended upon the purchase or sale of securities.’”  Since the District Court determined that the investors were induced to purchase the CDs under the belief that they were backed by marketable securities, it denied plaintiffs’ state law claims. 

On appeal, the Fifth Circuit reversed the decision, rejecting the test applied in the Eleventh Circuit and instead adopting the Ninth Circuit test: “A misrepresentation is ‘in connection with’ the purchase or sale of a security if there is a relationship in which the fraud and the stock sale coincide or are more than tangentially related.” The Fifth Circuit relied on public policy considerations that requires interpretation of the “in connection with” element in a manner not to preclude group claims simply because the issuer advertises that it owns covered securities in its portfolio.

In upholding the Fifth Circuit’s decision, the Supreme Court relied on several factors.  First, the basic focus of SLUSA seeks to include transactions in covered securities, not upon transactions in uncovered securities.  Second, a natural reading of SLUSA’s language supports the interpretation that a connection between the representation and a sale matters where the misrepresentation makes a significant difference to someone’s decision to purchase or to sell a covered security, not to purchase or to sell an uncovered security.  The Supreme Court noted that the plaintiffs never alleged the defendants’ misrepresentations led anyone to buy or to sell (or to maintain positions in) covered securities.  Third, the Supreme Court found that prior case law supports its interpretation because every securities case brought before the Court where fraud was “in connection with” a purchase or sale of a security has involved a covered security as defined by SLUSA. 

In its fourth point, the Supreme Court pointed out that their interpretation of SLUSA was consistent with the underlying regulatory statutes: the Securities Exchange Act of 1934 and the Securities Act of 1933.  The opinion states, “[n]ot only language but also purpose suggests a statutory focus upon transactions involving the statutorily relevant securities” and nothing in those acts or SLUSA provides a reason for interpreting its language more broadly.  Writing for the majority, Justice Breyer went on to explain that “to interpret the necessary statutory “connection” more broadly…would interfere with state efforts to provide remedies for victims of ordinary state ­law frauds.”  For instance, the Court noted that a broader interpretation would allow SLUSA to prohibit a lawsuit brought by creditors of a small business that falsely represented it was creditworthy, in part because it owns or intends to own exchange-traded stock.

Finally, the majority rejected the dissent’s argument that the Court’s ruling would significantly curtail the SEC’s enforcement powers, especially since enforcement powers are enumerated in other statutes and the dissent could not point to one example of a federal securities action—public or private—that would now be impermissible under the Court’s decision.   

While the case did not consider the merits of the plaintiffs’ claims, it allows the victims to proceed in their fight to recovery for the billions lost in the Ponzi Scheme. 

*I owe credit to this prompt update to Gerhard Petzall, an attorney here in St. Louis who started his own firm in 1963.  Meeting him for the first time last night at a high school mock trial competition, we sparked up a conversation about securities law and how technology has changed the landscape of our profession and personal lives.  I had extreme admiration for the fact that Gerhard practiced during a time where information was not readily at your fingertips the way it is now.  I couldn't even imagine.  Gerhard read about the Supreme Court decision in the financial section of the newspaper.  I told him that I believed I sat near him for a reason because I had been following this case and had been waiting for the decision to be released.  Had he not mentioned it, I might not have gotten the news right away.  We had a good laugh and I promised him that I would make sure to give him credit when I wrote my article.  Since I keep my promises, thank you Gerhard! 


Thursday, February 20, 2014

Investment Adviser Fiduciary Duty Standard Includes a Duty to Explain Investment Activity

The Securities and Exchange Commission regulates larger investment advisers under the Investment Advisers Act of 1940 (the “Act”). In a previous posting, we noted that perhaps the most significant provision of the Act is Section 206, which prohibits advisers from defrauding their clients and which has been interpreted by the Supreme Court as imposing on advisers a fiduciary duty to their clients. See Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 17 (1979) (“[T]he Act’s legislative history leaves no doubt that Congress intended to impose enforceable fiduciary obligations.”).

A number of obligations to clients flow from the fiduciary duty imposed by the Act, including the duty to act in the clients’ best interests, to fully disclose any material conflicts the adviser has with its clients, to seek best execution for client transactions, to provide only suitable investment advice, and to have a reasonable basis for client recommendations. See Registration Under the Advisers Act of Certain Hedge Fund Advisers, SEC Release No. IA-2333; Status of Investment Advisory Programs under the Investment Company Act of 1940, SEC Release No. IA-1623.

From these fiduciary obligations arises the duty to properly explain investments or an investment strategy to clients. Where a financial adviser provides advice about investments, “a fiduciary duty is breached when the client is encouraged to purchase an investment with a level of risk that is not appropriate for the client, or is not properly informed of the speculative nature of an investment.” Sakai v. Merrill Lynch Life Ins. Co., C-06-2581 MMC, 2008 WL 4193058 (N.D. Cal. Sept. 10, 2008) (citing Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 803 F.2d 454, 460-61 (9th Cir.1986) (holding that broker had fiduciary duty to fully inform client of nature and risks of selling short, “in terms capable of being understood by someone of [client’s] education and experience.”)).

 “A fiduciary must provide a proper disclosure and explanation of the investment activity, and should warn a client to exercise caution if an investment presents a greater risk than tolerable, given the client’s goals and circumstances.” Id.; see also Gochnauer v. A.G. Edwards & Sons, Inc., 810 F.2d 1042, 1049-50 (11th Cir. 1987) (finding that where adviser assisted clients in establishing speculative option trading account, “[a] more studied opinion of the risks of option trading in light of the [clients’] then-existing investment objective was owed by [the adviser] to [his clients]. This he failed to do, in breach of his fiduciary duty.”); In re Old Naples Sec., Inc., 343 B.R. 310, 324 (Bankr. M.D. Fla. 2006) (stating that “failing to disclose and fully explain the risk of an investment to an investor can be a breach of the broker’s fiduciary duty.”); Rupert v. Clayton Brokerage Co. of St. Louis, Inc., 737 P.2d 1106, 1109 (Colo. 1987) (“A broker who becomes a fiduciary of his client must act with utmost good faith, reasonable care, and loyalty concerning the customer’s account, and owes a duty . . . to keep the customer informed as to each completed transaction, and to explain forthrightly the practical impact and potential risks of the course of dealing in which the broker is engaged.”).

A good example of the application of the fiduciary duty to explain comes from Faron v. Waddell & Reed, Inc., 930 S.W.2d 508 (Mo. App. E.D. 1996).  Although this case involves a broker-dealer as opposed to an investment adviser, Missouri imposes an unambiguous fiduciary standard on broker-dealers.  In Faron, the client approached a registered representative of the broker-dealer inquiring whether he could obtain money from a trust to purchase a new home. He asked whether it would “cost any money.” Id. at 510. After he consulted with the registered representative he felt assured he could get the money and the transaction would result in no cost to him. He did not specifically consider tax ramifications nor did he directly ask about tax consequences. He assumed Waddell & Reed was lending the money to him to use, at no cost. However, instead of a loan the transaction actually consisted of a redemption of mutual funds. Id. He obtained the $250,000 from Waddell & Reed, returning the same amount within the required 21 days. The client’s accountant discovered the tax liability in the amount of approximately $32,000 while preparing an income tax return. The accountant brought it to the attention of the client, who brought suit against Waddell & Reed.

The trial court granted summary judgment for Waddell & Reed, finding that Waddell & Reed had no duty to provide tax information because none was requested.  On appeal, the court noted:

In Missouri, stockbrokers owe customers a fiduciary duty. This fiduciary duty includes at least these obligations: to manage the account as dictated by the customer's needs and objectives, to inform of risks in particular investments, to refrain from self-dealing, to follow order instructions, to disclose any self-interest, to stay abreast of market changes, and to explain strategies. Implicit in these obligations is a duty to disclose to the customer material facts.
 Id. at 511 (emphasis added).

The court of appeals found that Waddell & Reed was privy to information and had expertise not yet proven on summary judgment to be equally or reasonably available to the client. In particular, the registered representative was aware of details of the transaction which consisted of a redemption of mutual funds, while the clients understood the transaction to amount to a short-term loan. Id. Waddell & Reed had a duty to manage the account according to the client’s expressed needs and objectives, to bridge finance by use of trust assets with “no loss whatsoever,” if possible, or to inform the client of the costs. Id. The client communicated his concerns about possible costs associated with the proposed transaction to the registered representative. The client was not told how the transaction would occur but was told it would not cost any money. The court of appeals concluded that what was meant by “costs” in the discussions between the parties remained uncertain. This implicated an unresolved question of fact, making summary judgment for Waddell & Reed inappropriate. Id.

In sum, the fiduciary duty standard requires that the client be properly informed of the nature of an investment or investment strategy. What is necessary in order to meet this standard will depend on the facts and circumstances of each case. A more in depth explanation of the risks of an investment or investment strategy will be necessary where the client’s related education and experience is minimal. Similarly, a more detailed explanation of strategy will become necessary where the strategy being implemented is more speculative in nature. Whether the fiduciary duty to explain has been met will usually be a question of fact to be decided by the judge, jury, or arbitrator after hearing all of the evidence.