Arbitration Panel Finds Merrill Lynch Defamed Former Employee

Merrill Lynch, Pierce, Fenner & Smith, Inc., a brokerage firm registered with Financial Industry Regulatory Authority (“FINRA”) and investment adviser firm registered with Securities Exchange Commission (“SEC”), as well as Merrill Lynch International Finance, Inc. (collectively, the “firms”), have been ordered by an Arbitration Panel to pay former employee, Miguel Andres Ballestas, $750,000.00 in compensatory damages based upon the firms having been found liable for defamation on FINRA Form U5 relating to the circumstances of Ballestas’ termination. (FINRA Office of Dispute Resolution Arbitration Award No. 14-01946, April 30, 2018).

According to the Arbitration Award, the firms brought an arbitration against Ballestas alleging unjust enrichment and breach of contract, contending that Ballestas failed to pay a promissory note executed on January 9, 2009. Ballestas counterclaimed, alleging that the firms, inter alia: breached duties of good fair and fair dealing; violated FINRA Rule 2010; wrongfully terminated Ballestas; breached fiduciary and contractual duties owed to Ballestas; and committed Central Registration Depository (“CRD”) Form U5 defamation pertaining to Ballestas’ termination from the firms.

In the “Termination Disclosure” section of the Form U5, the firms were apparently asked if Ballestas voluntarily resigned from the firms, or had been discharged or permitted to resign from the firms, after allegations were made that accused Ballestas of: (1) violating investment-related statutes, regulations, rules or industry standards of conduct; and/or (2) fraud or the wrongful taking of property. Evidently, those questions were answered by the firms in the affirmative.

The Arbitration Award revealed that the firms collectively sought: $407,451.40, which reflected the outstanding promissory note balance, as well as interest, costs and attorneys’ fees; and for Ballestas’ counterclaim to be completely dismissed. However, Ballestas sought a total of $26,000,000.00 in damages from the firms based upon the loss of Ballestas’ book of business, pension, and deferred compensation, and for having suffered from mental pain and anguish by the firms. Moreover, Ballestas sought for his promissory note to be cancelled or at least offset by service payments pertaining to his employment with those firms, and for his CRD Form U5 to be expunged. Evidently, on June 27, 2017, FINRA Office of Dispute Resolution was provided a notice of settlement regarding a portion of the claims made by the firms and Ballestas against each other.

After having considered the evidence, testimony and pleadings, the Arbitration Panel concluded that the firms were jointly and severally liable for CRD Form U5 defamation of Ballestas, and ordered the firms to pay Ballestas $750,000.00 in compensatory damages. Further, the Arbitration Panel recommended that the firms’ answers in the “Termination Disclosure” section of Form U5 be changed to “No” based on the firm’s initial responses being of a defamatory nature.

Cosgrove Law Group, LLC has represented former employees in several U5 defamation cases nationwide, helping them obtain settlements and awards ranging from $100,000.00 to $3,500,000.00. If you feel that you have been a victim to U5 defamation, call Cosgrove Law Group and speak to our experienced counsel today.

EX-CITIGROUP BROKER VINDICATED WITH $4M FINRA ARBITRATION AWARD

A Miami broker, formerly with Citigroup, won a nearly $4 million award in a recent FINRA arbitration case regarding wrongful termination.  Christian Gherardi “worked at Smith Barney and other Citigroup units in Miami from the start of his career in 1996 until he was fired in December 2015.”[1]  Gherardi alleged that Citi fired him because it was afraid he would leave the firm and it wanted to retain his $200 million book of business.

            Moreover, Citi was allegedly worried that Gherardi would leave because of a moratorium that had been imposed on the bank which prevented brokers from pursuing new business until the bank got some things in order with its anti-money-laundering program.  “Citi managers alleged that Gherardi had physically threatened other brokers who were trying to poach his accounts.”¹  Mr. Gherardi claimed the incidents were distorted by Citi in an effort to terminate him and take his book of business.  Gherardi was unable to take the majority of his substantial book of business with him to his new firm.

  

            The award included “$3.45 million in compensatory damages for wrongful termination, $150,000 for ‘lost quarter’ trail fees and almost $396,000 for deferred compensation.”¹  Ironically, Cosgrove Law Group, LLC has obtained awards and settlements of about the same amount for other defamed registered representatives.

            The arbitration award can be viewed here.

-Maria T. Eggert

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[1] https://advisorhub.com/ex-citi-broker-wins-4-million-wrongful-termination-case/

FINRA’S NEW DISCLOSURE REVIEWS MAY HELP LIFT BURDEN FOR FIRMS AND REPRESENTATIVES

Beginning July 9, 2018, FINRA will conduct an individual public records search on every applicant when a broker-dealer files a form U-4 application for registration.  FINRA currently performs this search for all registered persons—but only annually.  This additional records search—

which will satisfy the requirement to perform a search of records for judgments, bankruptcies, and liens only—will provide added benefit to member firms and registered persons, according to FINRA.  In FINRA’s May 18, 2018 Information Notice, FINRA claims this additional search is “likely to: (1) reduce the costs to firms associated with conducting these public records checks, which often involve finding and hiring a vendor; (2) result in more timely reporting of disclosure information to the benefit of regulators, investors and firms; and (3) result in a significant reduction of late disclosure fees related to judgments and liens[1].”

Numbers (1) and (2) seem like probable benefits to both the member firms and the registered persons.  Saying the same for number (3), however, appears to be a stretch.  Regardless, the burden of these public records searches is real, especially to smaller broker-dealers.  FINRA taking over this requirement is a welcome change and one that makes sense given that it is already performing the annual searches.  Firms and agents will still need to respond to and file any items that are found in these searches, but the searches themselves will no longer have to be performed in-house or by a third-party vender for each registered hire. 

Finally, firms and registered persons are still required to report unsatisfied liens and judgments within 30 calendar days of learning of the event as long as the agent is registered and to report other activity, such as certain criminal matters per FINRA Rules.

Cosgrove Law Group, LLC regularly assists registered persons with disclosure matters, regulatory inquiries, registration matters, and other matters related to industry registration compliance.  We also have experience assisting broker-dealers with regulatory inquiries related to their registration filings.

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[1] Firms and registered persons are required to report unsatisfied liens and judgments within 30 calendar days of learning of the event. FINRA determines whether a filing is late based on the date the registered person learned of the judgment or lien and, if it is late, will assess the late disclosure fee based on that date. See Information Notice 8/17/12 (Late Disclosure Fee Related to Reporting of Judgment/Lien Events). Occasionally, an individual is unaware of the existence of a judgment or lien. The public records search facilitates the identification and timely reporting of these events

Missouri Securities Division Bars Two Former Owners of Local Broker-Dealer

Steven Larson and Michael Standley owned Oakbridge Financial Services along with Kathy Winter.  All three of them functioned as registered representatives of the broker-dealer as well.  The three were also associated with a state registered investment adviser, Private Label Money Management (PPMM).  Late last year Winter agreed to pay a small fine and submit to heightened supervision due to her alleged administrative failures as president of PPMM.  She was also barred from operating as a supervisor for either a broker-dealer of RIA for two years.  Not long before that, Winter had been suspended by FINRA for selling unregistered promissory notes that went sour. 

This month her two former co-owners were barred for their failure to supervise Robert Boyer, II of the Heroic Life Assurance Company.  Larson was also tagged for over-concentrating some of his clients’ portfolios with reverse convertible securities, also known as “recons.”  Recons are:  “…complex, structured products that contain a put option held by the issuer that triggers if the underlying equity falls below a certain barrier price and stays there at the end of the term.  When the equity price triggers the put option, the investor gets a certain number of shares of the equity at the ‘strike price’.  Whether or not the barrier price is breached, the investor gets income during the term of the Recon at an above market interest rate.  The interest rate is a function of the volatility of the underlying equity.  The higher the volatility and closer the barrier price to current price, the higher the interest rate.  Recons are sold in $1,000 increments.”

All three orders can be reviewed here.

WHEN YOU GET A LETTER FROM THE STATE SECURITIES DIVISION

If you receive a letter demanding information and documentation from a state securities division, I hope you find this blog before you rifle off a response.  As a former Commissioner of Securities, I am frequently retained by individuals who are the subject of a state securities division investigation.  Unfortunately, and far too often, the individuals hire me after they have sent in a response to the initial demand letter.  Some even wait until after they have been through a recorded interrogation at the division. 

A request for information is not a friendly or harmless inquiry.  How you respond and the documents you provide could damn you, or at least make it very difficult to defend you once you hire us.  Going through an on-the-record exam (“OTR”) is even worse.  You will not be properly prepared, no matter how smart and innocent you perceive yourself to be.  Moreover, the Securities Division will likely not provide the attorney you will eventually need with a transcript of the interrogation.  This will leave you and your counsel at a marked disadvantage throughout the proceedings.  In sum, when you get the letter, pick up the phone and hire an attorney experienced in defending state securities prosecutions.  Food for thought.

The Opaque World of Arbitration Might Soon Become Clearer in New York

The New York Legislature has two bills pending in the Assembly and Senate which would make public, for the first time, details of private arbitrations. A09769 and S07146, sponsored by Matthew Titone and Brian Kavanagh respectively, are both crafted to provide information related to private arbitrations to the public. Information such as:

· the name of the non-consumer party,

· the state and zip code in which the consumer party resided at the time of arbitration, the type of  

  dispute involved,

· whether the consumer was the prevailing party,

· on how many occasions, if any, the non-consumer party has previously been a party in an 

  arbitration or mediation administered by that same private arbitration organization,

· the date the private arbitration organization received the demand for arbitration,

· the date the arbitrator was appointed,

· the date of disposition by the arbitrator or private arbitration organization,

· the type of disposition of the dispute, if known,

· the amount of the claim,

· the amount of any award or settlement, and any other relief granted,

· the name of the arbitrator,

· the arbitrator's total fee for the case,

· and the percentage of the arbitrator's fee allocated to each party.

The bills also define and prohibit certain financial conflicts of interest. Recurring parties as paying customers to the arbitrators is not listed as a financial conflict of interest and still remains a concern for consumers. The bills do provide for private causes of action and civil penalties for violations. The New York Attorney General would enforce the provisions. Neither Bill is retroactive.

The Senate bill was referred to the Consumer Protection Committee, but has not moved. The Assembly bill, however, was referred to the Consumer Affairs and protection Committee and passed on March 6, 2018. Should one of these bills pass, the impact on private arbitration in favor of consumers would be significant. Currently, businesses can bind customers with an arbitration agreement, have multiple arbitration claims brought against them and other customers and the general public would never know. Under these bills, customers would have access to the arbitration history a specific business has with a particular arbitration company. Should this pass, given arbitration’s significant and increasing prevalence, it is likely other states will look into passing similar consumer protections in an effort to shed light on the currently opaque arbitration process.

While these bills seem to strive to protect consumers by making important information public, some may argue the bills go too far by requiring the amount of a settlement, which is typically confidential. The bills could likely get to the same destination of providing important information to the public about companies without requiring this information.  

REPRESENTING ELDERS AND ATHLETES

It wouldn’t seem likely that elders and athletes would have much, if anything, in common.  But they do.  They are frequently blessed with substantial semi-liquid assets, and are therefore the targets of fraudulent or reckless investment schemes.

Much has been written about why professional athletes are frequent victims.  And the last professional athlete I represented possessed many of the following common attributes:

·         Young and inexperienced with finances;

·         Rapidly accumulating substantial wealth;

·         Easily identified as a person with substantial wealth subject to potential investment;

·         Highly focused on meeting the demands of a career requiring singular attention, frequent travel, and unplanned relocations.

As a result, the media is littered with accounts of massive investment losses suffered by current and former athletes.  Some of the statistics are shocking.  For example, from 1999-2002 78 NFL players lost over $40 million to fraud.  According to a Sports Illustrated article, approximately 60% of NBA players are “broke” within five years of their retirement from the league.  And in 2014 former Yankee star Jose Pasada sued two financial advisers that allegedly bilked him of $11 million through real estate and hedge-fund investments.

The National Football League Players’ Association took action in 2002 and created a Financial Advisors Program. The Program required advisers to apply and be screened for approval for inclusion in the program.  But it was not sufficiently robust.  For example, just a few years after the program was initiated, an approved financial adviser lured several active players in to a hedge fund.  The players lost almost $20 million and the adviser was convicted of securities fraud and money laundering.  Moreover, some approved advisers use their NFLPA registration as a marketing tool.  One even suggests that their athlete clients can be free of financial distractions while the adviser constructs a “bulletproof” financial retirement plan.  That type of pitch seems to encourage the very characteristics that lead to the financial victimization of athletes.  Laurence Landsman wrote an excellent article that was published in the National Sports Law Institute’s Journal in 2010.  He called for reforms to the NFLPA program.  And the NFLPA made them in 2012.  Now when will the NBA, NHL, and MLB get on board?

There are strong parallels between the methodology and prevalence of financial exploitation of athletes and elders.  Our firm has represented several elder investors over the years.  And all of us are former securities regulators that witnessed the pace and pattern of financial elder abuse.  Elders frequently have a large accumulation of wealth available for investments, and they are prone to over-trust and over-rely on their financial advisers.

In 2012 Stephen Dunn published in Forbes a list of do’s and don’ts for professional athletes.  They are, however, equally applicable to our elders.  Just a few of them are:

·         An adviser’s trustworthiness is paramount;

·         Invest with advisers associated with a well-established firm;

·         Don’t pretend you are a business mogul.  Kurt Schilling’s saga may be a good tale of caution, and;

·         Avoid complex investment schemes.

And I have one final self-serving but sound piece of advice:  retain an attorney that is independent of your financial adviser and who is also sophisticated in investment matters.  That attorney should be called upon to interface with your adviser and help you evaluate the wisdom and risk of your adviser’s proposals, background, etc.  Food for thought.

1.  https://www.sec.gov/news/pressrelease/2016-83.html
2.  ESPN's "Broke" : https://www.youtube.com/watch?v=Elfw0ESih-A