Monday, September 27, 2021

State Regulators Focus on Precious Metals and Self-Directed IRA’s

The organization of North American securities regulators recently had their annual conference. The organization is known as NASAA.

During the conference presentation and panel discussion, it was reported that much attention was paid to self-directed IRA’s. The regulators believe that SDIRA’s are being used in conjunction with investment “scams.” It was reported that the regulators are anxious to work with federal legislators, but it was unclear as to what the proposed legislative solution to the alleged problem would be.

In conjunction with the discussions, the regulators referenced the precious metals industry. Our firm has worked with stakeholders in the precious metals industry for over a decade. Many of those industry players take compliance and ethical business practices very seriously. We also represent precious metals industry stakeholders when they are contacted by or receive a subpoena from a regulator. It was reported that state regulators opened more than 80 investigations of offerings related to SDRIA’s last year and brought 53 enforcement actions as well. The results of these investigations and actions were not, however, reported.

Wednesday, September 15, 2021

Court Strikes Non-Compete and Non-Solicitation Provisions

 In a financial services industry dispute, the Eighth Circuit Court of Appeals recently reversed a district court's enforcement of a non-compete agreement and non-solicitation agreement in employment contracts. The appellants were a financial advisor and her new financial services firm. The appellee that lost on appeal was the financial advisor's former employer.

The financial advisor was Cara Miller. When she worked for Honkamp Krueger Financial Services, she signed an employment agreement that included a non-compete and non-solicitation agreement and then an Agreement Ancillary to Employment that failed to include a non-compete provision. Miller voluntarily terminated her employment when Honkamp Krueger was purchased by another firm. She wisely sent a letter terminating her employment agreement rather than just her employment. She sought a declaratory judgment in the district court. Honkamp Kruger counterclaimed, seeking a preliminary injunction against her, and prevailed.  

The Court of Appeals took different approaches to the non-compete and non-solicitation agreement[1]. The Court concluded that the non-compete agreement ended when Miller provided written notice that the employment contract had ended. The Court found that the District Court's application of the non-solicitation agreement was void against public policy in that it prohibited accepting clients as well as soliciting them. Two quotes from the opinion are worthy of repetition: 1) "…non-compete agreements are 'strictly' constructed against the one seeking to restrain another from pursuing his profession, business, or employment", and 2) "…a contract cannot prevent former employees from accepting clients of their former employers because clients are not parties to the contract and should be allowed to choose with whom they want to do business." Food for thought.

What to do about FINRA Customer Complaints

Trust is essential for a successful career as a securities broker. FINRA’s BrokerCheck website allows the public and employers to search a securities broker by name and discover any disciplinary actions that have been issued against that broker. A BrokerCheck report also lists any formal complaints by previous investors. This system helps prevent investors from getting involved with securities brokers with a history of fraudulent and/or negligent behavior. In some instances, however, BrokerCheck casts too wide a net, causing significant reputational harm to undeserving brokers.

When a customer complaint appears on a broker’s BrokerCheck report, it is originally listed as pending. This occurs whether or not the complaint actually has merit. Unfortunately, complaints can be listed as pending for years until settled or decided in an arbitration. If the Broker-Dealer or FINRA deny the complaint on its merits the status of the complaint changes from pending to denied; however, the complaint remains on the BrokerCheck report. Even though a complaint is listed as denied, investors may still find themselves weary of that broker when comparing them to a broker with a claim-free record.

Recognizing that BrokerCheck complaints can have a tremendous influence on a broker’s career, FINRA allows brokers to request expungement of claims on their BrokerCheck report.  Here at Cosgrove Law Group, LLC, we have experience helping securities brokers remove meritless complaints from their FINRA BrokerCheck report. If you are suffering under a meritless claim on your BrokerCheck report, please contact the Cosgrove Law Group, LLC for more information on how we can help. 

Authors: Alexander Oakes and Max Simpson


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