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Wells Fargo under investigation by DOJ and SEC

With Wells Fargo’s credit card and savings divisions already disciplined by the Federal Reserve over a fake account scandal during which the bank opened bogus accounts on behalf of its customers, federal officials have begun an investigation into Wells Fargo Wealth Management to determine whether Wells Fargo’s investment wing inappropriately sold clients in-house investments using tactics similar to the illicit conduct that permeated the aforementioned credit card and savings scandal.

In its investigation of Wells Fargo Wealth Management, the Department of Justice and SEC seek to determine whether the firm breached its duty to investors and used incentives that were inadequately disclosed in order to sell in-house products that were more profitable for the firm, at the expense of its clients’ interests.

According to an InvestmentNews report, as recently as in 2016, Wells Fargo incentivized its advisers through quotas and bonus pay to steer investment clients into fee-bearing loans and brokerage accounts. The report states that Wells Fargo Wealth Management’s quotas and representative incentives were similar to the illicit scheme previously employed by the credit card, savings, and banking division in the company’s prior scandal, which had produced approximately 3.5 million potentially fake or otherwise improperly opened banking accounts.

Specifically, investigators will reportedly seek to determine whether Wells Fargo made inappropriate or unsuitable recommendations involving 401(k) rollovers, alternative assets, estates, and trusts. Investigators will also look into rewards and referral incentives, such as an alleged 15%-of-first-year-revenue reward in multi-million dollar accounts offered to some retail bank employees for referring wealthy clients to the firm’s brokerage arm.

Officials expressed concern that Wells Fargo’s investment business improperly steered clients toward in-house investments that may have been more profitable for the firm, at the expense of its clients’ best interests. In addition to suitability violations, this could possibly point to a widespread breach of fiduciary duty involving Wells Fargo Advisors and other related Wells Fargo Wealth entities.

For example, a Bloomberg review indicated that Wells Fargo Advisors personnel often ran simulations through Envision financial planning software, sometimes without clients present, and by “plugging in numbers they knew would recommend investments that clients already held.”

According to one former adviser, the Envision simulations would then confirm the clients’ investment strategy at Wells Fargo, making the clients much more likely to remain Wells Fargo customers and keep funds invested in products preferred by the firm. Wells Fargo disputes that charge, claiming that Envision did not disadvantage clients.

As a historical note, the SEC and US Commodity Futures Trading Commission in 2015 charged JP Morgan Securities and JPMorgan Chase Bank with improperly marketing JP Morgan-managed mutual funds to retail customers through a Chase Bank program, failing to disclose this practice and the associated conflict of interest to its clients.

Like Wells Fargo, JP Morgan stood accused of inappropriately recommending in-house investments that were more profitable for the firm, at the expense of its customers’ best interests.

JP Morgan and Chase Bank ultimately agreed to settle the charges by paying over $300 million in penalties, disgorgement, and interest.

SEC freezes Longfin (LFIN)

The U.S. Securities and Exchange Commission obtained an emergency freeze of $27 million in trading profits involving the CEO of cryptocurrency company Longfin and three other people, the agency said in a statement Friday.

Longfin’s stock was halted on the Nasdaq as of 10:01 a.m. ET on the SEC alert after jumping more than 47 percent. Shares had been halted numerous times throughout the week for volatility. The stock was worth more than $3 billion at one point in December after the company announced a cryptocurrency-related acquisition.

“We acted quickly to prevent more than $27 million in alleged illicit trading profits from being transferred out of the country,” Robert Cohen, chief of the SEC Enforcement Division’s Cyber Unit said in the statement. “Preventing defendants from transferring this money offshore will ensure that these funds remain available as the case continues.”

The SEC claims Longfin CEO and Chairman Venkat Meenavalli had the company issue unregistered shares to the three people so they could sell them, which they did.

The financial watchdog does allow people to own a certain amount of unregistered shares without having to go through what one lawyer calls a “very long” registration process. But those shares are restricted and cannot be sold during certain time periods.

Timary Delorme and Wedbush Securities, Inc.

The Securities and Exchange Commission announced charges against Wedbush Securities Inc. for failing to supervise employee Timary Delorme after the broker-dealer ignored numerous red flags indicating that Delorme was involved in a long-running pump-and-dump scheme targeting retail investors.  Delorme agreed to settle fraud charges stemming from the same scheme.  This is the second SEC action against Wedbush this year and the third since 2014.

The SEC’s investigation found that Delorme – a registered representative of Wedbush – received undisclosed benefits for investing her customers in microcap stocks that were the subject of a “pump-and-dump” scheme orchestrated by Izak Zirk Engelbrecht, who was previously charged by the Commission and criminal authorities in separate actions.  According to the SEC’s order, Wedbush ignored multiple signs of Delorme’s fraud, including a customer email outlining Delorme’s involvement in the scheme and multiple FINRA arbitrations and inquiries regarding her penny stock trading activity.  In response to these clear red flags, Wedbush conducted two flawed and insufficient investigations into Delorme’s conduct but failed to take appropriate action.

The SEC’s order instituting administrative proceedings against Wedbush charges that the broker-dealer failed reasonably to supervise Delorme with a view to preventing and detecting her violations.  The matter will be scheduled for a hearing before an administrative law judge, who will hear the case and prepare an initial decision.  A separate order finds that Delorme violated the antifraud provisions of the federal securities laws.  Without admitting or denying the findings, Delorme agreed to entry of the order, which requires her to pay a $50,000 penalty, imposes industry and penny stock bars, and orders her to cease and desist from future violations.

The SEC previously charged Engelbrecht, 15 other individuals, and several entities in the related manipulation scheme:

Eleven individuals, including Engelbrecht, pleaded or were found guilty in parallel criminal proceedings.

Broker Charged With Repeatedly Putting Customer Assets At Risk

The Securities and Exchange Commission today announced that Electronic Transaction Clearing (ETC), a registered broker-dealer headquartered in Los Angeles, has agreed to settle charges that it illegally placed more than $25 million of customers’ securities at risk in order to fund its own operations.

Among other things, the SEC found that ETC violated the Customer Protection Rule, which is intended to safeguard customers’ cash and securities so that they can be promptly returned if a broker-dealer fails.  It requires broker-dealers to maintain physical possession or control of customers’ fully paid and excess margin securities.

According to the SEC’s order, ETC put customer securities at risk numerous times in 2015.  ETC improperly transferred almost $8 million of fully paid securities belonging to cash customers to an account at another clearing firm to meet margin requirements on borrowed funds, and the firm used more than $17 million of securities of two customers to borrow funds without consent.  The order also finds that ETC improperly commingled customers’ securities and allowed a customer’s excess margin securities to be loaned out by the other clearing firm.

“The SEC has brought several recent cases charging violations of the Customer Protection Rule, which establishes critical protections to ensure that investors’ securities are kept safe by broker-dealers,” said Michele W. Layne, Director of the SEC’s Los Angeles Regional Office.  “As this case shows, no broker-dealer is allowed to use its customers’ securities to fund its own operations.”

The SEC’s order charged ETC with violating the Securities Exchange Act and Customer Protection Rule as well as other related rules.  Without admitting or denying the SEC’s findings, ETC agreed to entry of the order, to pay an $80,000 penalty, to cease and desist from committing or causing any similar violations in the future, and to be censured.  ETC cooperated with the SEC’s investigation and has taken remedial steps to prevent future violations.

Wedbush Securities Inc. fined $1.5 Million by FINRA

The Financial Industry Regulatory Authority (FINRA) announced today that it has fined Wedbush Securities Inc. $1.5 million for violating the Securities and Exchange Commission’s (SEC) Customer Protection and Net Capital Rules, and for related supervisory and books and records failures.

The SEC Customer Protection Rule creates requirements to protect customers’ funds and securities. To ensure that customers could recover their assets in the event of the broker-dealer’s insolvency, the rule requires the broker-dealer, which maintains custody of customer securities, to obtain and maintain physical possession or control over certain of those securities. These securities must be segregated in a “control location,” free of liens or any other encumbrance that could prevent customers from taking their possession. The rule also requires the broker-dealer to maintain a reserve of cash or qualified securities, in a bank account, that is at least equal in value to the net cash the broker-dealer owes its customers.

The SEC Net Capital Rule regulates the ability of broker-dealers to meet their financial obligations to customers by requiring broker-dealers to maintain a minimum amount of net capital and to compute their net capital in accordance with specified formulas.

FINRA found that, during a five-month period in 2015 and 2016, Wedbush was net capital deficient, ranging between $10.5 million and $59.4 million. The deficiencies resulted from Wedbush’s failure to take required deductions when valuing certain certificates of deposit for purposes of computing its net capital.

In addition, from 2011 to 2016, Wedbush failed to accurately calculate its customer reserve requirement on 84 occasions, causing the firm to underfund its customer reserve account 73 times, in amounts ranging from approximately $2 million to $77 million. Wedbush also included ineligible assets in its customer reserve account, causing it to underfund its reserve an additional 110 times, in amounts ranging from approximately $9 million to $375 million.

Also, from 2009 to 2016, Wedbush repeatedly violated the possession or control requirement of the Customer Protection Rule by creating and/or increasing deficits in the quantity of securities it was required to keep in its possession or control, and holding customer assets in locations that were not protected from claims by third parties.

“Firms have a fundamental responsibility to safeguard the securities of their customers,” said Susan Schroeder, FINRA’s Executive Vice President, Department of Enforcement. “The Customer Protection and Net Capital Rules are important components of investor protection, and member firms must have reasonably designed and maintained systems and supervision to ensure both that they comply with the rules’ requirements, and detect and remediate any weaknesses.”

Wedbush also failed to establish and maintain supervisory systems and procedures reasonably designed to ensure compliance with the Customer Protection and Net Capital Rules, which exposed customer funds and securities to risk and prevented the firm from detecting the deficiencies for nearly seven years. Their supervisory failures also caused the firm to maintain inaccurate books and records, and to file 37 inaccurate FOCUS reports.

In settling this matter, Wedbush neither admitted nor denied the charges, but consented to the entry of FINRA’s findings.

SEC Charges Ameriprise With Overcharging Retirement Account Customers for Mutual Fund Shares

The Securities and Exchange Commission today announced that a Minnesota-based broker-dealer and investment adviser has agreed to settle charges for recommending and selling higher-fee mutual fund shares to retail retirement account customers and for failing to provide sales charge waivers.

According to the SEC’s order, Ameriprise Financial Services Inc. disadvantaged certain retirement account customers by failing to ascertain their eligibility for less expensive mutual fund share classes.  Ameriprise recommended and sold these customers more expensive mutual fund share classes when less expensive share classes were available.  Ameriprise also failed to disclose that it would receive greater compensation from the purchases and that the purchases would negatively impact the overall return on the customers’ investments.

“Ameriprise generated greater revenue for itself but lower returns for its retirement account customers by recommending higher-fee share classes,” said Anthony S. Kelly, Co-Chief of the SEC Enforcement Division’s Asset Management Unit.  “As evidenced by our recently announced Share Class Selection Disclosure Initiative, pursuing these types of actions remains a priority for the Division as we seek to get money back in the hands of harmed investors.”

Approximately 1,791 customer accounts paid a total of $1,778,592.31 in unnecessary up-front sales charges, contingent deferred sales charges, and higher ongoing fees and expenses as a result of Ameriprise’s practices.  Ameriprise cooperated with the Commission and voluntarily identified the affected accounts, issued payments including interest to the affected customers, and converted eligible customers to the mutual fund share class with the lowest expenses for which they are eligible, at no cost.

The SEC’s order instituting a settled administrative and cease-and-desist proceeding finds that Ameriprise violated Sections 17(a)(2) and 17(a)(3) of the Securities Act of 1933.  Without admitting or denying the findings, Ameriprise consented to a cease-and-desist order, a censure, and a penalty of $230,000.

Western International Securities, Inc. Fined $521,098 in Connection With Sales of Non-Traditional ETFs

On February 28, 2018, FINRA Enforcement entered into a settlement via Acceptance, Waiver and Consent (“AWC”) with Respondent Western International Securities, Inc. (“WIS”) (CRD# 39262).  Specifically, without admitting or denying any wrongdoing — WIS consented to paying a fine of $521,908, in addition to restitution to certain investors in the amount of $125,000 — in connection with FINRA’s findings of fact that from January 2011 – November 2015, WIS allegedly failed to supervise its registered representatives with regard to sales of certain leveraged, inverse, and inverse-leveraged Exchange-Traded Funds (“Non-Traditional ETFs”).

Non-Traditional ETFs are designed to return a multiple of an underlying benchmark or index (or both) over the course of one trading session (typically, a single day).  Therefore, because of their design, Non-Traditional ETFs are not intended to be held for more than a single trading session, as enunciated by FINRA Enforcement in its recent AWC as concerns Respondent WIS:

“[t]he performance of Non-Traditional ETFs over periods of time longer than a single trading session ‘can differ significantly from the performance… of their underlying index or benchmark during the same period of time.”  FINRA Regulatory Notice 09-31.

Pursuant to the AWC, FINRA’s findings of fact allege that WIS registered representatives solicited and effected Non-Traditional ETF purchases that were unsuitable for specific customers.  For example, in one instance, FINRA determined that a 73 year-old customer with a net worth of $200,000 and an investment objective of growth and a conservative risk profile was purportedly steered into five Non-Traditional ETFs.  As alleged by FINRA, this elderly investor held the Non-Traditional ETFs for an average of 356 days, resulting in a net loss of $20,232.

In another instance of purported unsuitable recommendations, FINRA Enforcement determined that a WIS customer with a net worth of $200,000 and an investment objective of growth and a conservative risk profile was also purportedly steered into five Non-Traditional ETFs.  As alleged by FINRA, this investor held the Non-Traditional ETFs for an average of 350 days, resulting in a net loss of $32,865.

Larry Martin Boggs – Ameriprise – Dallas, Texas

An AWC was issued in which Boggs was barred from association with any FINRA member firm in all capacities. Without admitting or denying the findings, Boggs consented to the sanction and to the entry of findings that he engaged in excessive and unsuitable trading in customer accounts. The findings stated that Boggs used his control over the customers’ accounts to excessively trade in them in a manner that was inconsistent with these investors’ investment objectives, risk tolerance and financial situations. Boggs engaged in a strategy that was predicated on short-term trading of primarily income-paying equity securities that were identified on a list of recommended securities by his member firm. Boggs would typically buy or sell these securities based on whether they were added to or removed from this list, and would frequently liquidate positions that increased or decreased by more than 10 percent. The findings also stated that Boggs improperly exercised discretion in these accounts without written authorization from the customers or the firm. The findings also included that Boggs caused the firm’s books and records to be incorrect by changing the investment objectives and risk tolerance for several of these customers in order to conform to his high-frequency trading strategy, even though the customers’ investment objectives and risk tolerance had not actually changed. (FINRA Case #2015045518901)

Energy losses with Wedbush Securities broker Mark Heiden?

Aidikoff, Uhl & Bakhtiari continues its investigation of the sales practices of Mark Heiden for his management of client accounts and the overconcentration of energy related stocks investments:

  • Energy XXI Bermuda Ltd.
  • Clearbridge American Energy MLP
  • Goldman Sachs MLP Energy
  • Arch Coal
  • Seadrill

We are currently investigating whether all material risks of the recommended investments were disclosed to clients as well as whether Wedbush broker, Mark Heiden, implemented an appropriate risk management strategy.

 

To discuss your options please contact an attorney below.

Aidikoff, Uhl & Bakhtiari represents retail and institutional investors around the world in securities arbitration and litigation matters. Attorneys for the firm have appeared before the Financial Industry Regulatory Authority (FINRA) and in numerous state and federal courts to resolve financial disputes between customers, banks, brokerage firms and other financial institutions.

Philip M. Aidikoff, pma@aublaw.com
Ryan K. Bakhtiari, rkb@aublaw.com
Aidikoff, Uhl & Bakhtiari
(800) 382-7969 Toll Free or (310) 274-0666
www.securitiesarbitration.com

William Fitzgerald White – San Diego, California

An Offer of Settlement was issued in which White was fined $12,500 and suspended from association with any FINRA member in all capacities for 16 months. Without admitting or denying the allegations, White consented to the sanctions and to the entry of findings that he willfully failed to timely amend his Uniform Application for Securities Industry Registration or Transfer (Form U4) to disclose a bankruptcy petition, tax liens, FINRA arbitrations and a civil litigation. The findings stated that White failed to timely respond to FINRA requests for documents and information during the course of an investigation into whether he disclosed certain reportable events on his Form U4. The findings also stated that White opened and traded in an outside securities account without giving prior written notice to his member firm and the executing firm. The suspension is in effect from October 2, 2017, through February 1, 2019. (FINRA Case #2015048104602)


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