New Jersey Lawyer News

The New Jersey Bureau of Securities announced that it has resolved its investigation of the online broker dealer Interactive Brokers LLC of Greenwich, CT (“Interactive”) relating to fraudulent trading activity and securities fraud Interactive permitted on its online trading platform. Interactive has agreed to pay a $100,000 penalty to the Bureau of Securities and reform its opening account procedures for investors looking to sign up with the broker dealer in the future.

The New Jersey Bureau of Securities investigation of the broker dealer Interactive arose from the fraudulent trading activity conducted by a former investment advisor Peter Zuck of Middletown, NJ, through his hedge fund, Osiris Fund LP of Jersey City, NJ. The former investment advisor Zuck operated the hedge fund from April 2009 through December 2011. According to the New Jersey Bureau of Securities, while Zuck promoted his hedge fund as a conservative trading fund, in reality his team conducted the investment fund’s trading in a “wildly speculative” and aggressive manner. Zuck opened 16 investment advisory accounts at Interactive. Two of the investment accounts were in his own name, and one for the hedge fund. The New Jersey Bureau of Securities investigation revealed that, after initially seeing trading profits, the hedge fund lost $4.5 million in April – May 2010. Zuck and his cohorts concealed trading losses from fund investors by fabricating monthly account statements showing investors their holdings and a breakdown of the securities and trading activity in the account. These monthly account statements falsely hid trading losses and inflated the accounts’ values. Zuck was also accused of charging investors $3.9 million in management fees to which the fund was not entitled. There were approximately 76 investors in the Osiris Fund.

As a result of Zuck’s illegal conduct managing the Osiris Fund, the New Jersey Bureau of Securities sued Zuck and others in 2014 and obtained a judgment of $7.5 million. In 2017, Zuck pled guilty in federal court to charges of conspiracy to commit fraud and tax evasion. He was sentenced to a three-year prison term in connection with the securities fraud.

            The Securities Exchange Commission (“SEC”) recently filed a complaint for fraud in connection with risky securities sold by a Registered Investment Advisor. The SEC complaint states that Tamara Steele and her investment advisory, defrauded retail investors by recommending high risk technology stocks with massive commission markups that were not disclosed to the clients. According the to the SEC complaint, from December 2012 through to October 2016 Steele and her wholly owned investment advisory Steele Financial marketed over $13 million of securities issued by a private company and was acting as a broker for the company.

The SEC complaint states that the high-risk securities were connected to a private issuer who the investment advisor had a relationship with. The registered investment advisor was receiving high commissions on these private securities in the range of 8 to 18% – a material piece of information that was not disclosed to investors in violation of the duty of care and duty of loyalty and breach of the investment advisors’ fiduciary duty. The SEC complaint goes on to state that Steele and Steele Financial marketed and sold these high-risk securities to clients even though neither entity was registered as a broker.

The clients who were marketed this product were not accredited investors. Rather most of the investors were employees of a school system. Steele was marketing these risky private securities while working for a broker dealer known as Comprehensive Asset Management. Steele was fired after disclosing to the broker dealer that she had been marketing the private securities without the firms approval or knowledge – a practice known as selling away. As stated in our post on Selling/Trading away FINRA rules mandate that an investor advisor provide prior notice to the broker dealer and receive approval for all private securities marketed. Brokers are required to report in writing.

Stockbrokers in the market do not all owe a fiduciary duty to their clients. A fiduciary duty, as listed in the Investment Advisors Act of 1940 calls upon investment advisors to act with the highest standard of care. It’s difficult for investors to tell when their stock broker owes them a fiduciary duty and even what having a duty owed to them would translate to. Investing with a financial professional who can be trusted to offer sage investment advice while also placing clients interests above their own is what any investor would want. But generally, what most investors discover if they ever consider filing a lawsuit or securities arbitration claim against their stockbroker for a stock market fraud claim of any kind, is that many investment professionals do not technically owe a fiduciary duty to their clients. What the stock brokers title is, which would seem like a small consideration when deciding who to invest with and use for professional wealth management is of critical importance.

Different Stockbroker Titles

When investors start looking to place money into the markets they are generally confronted with a barrage of titles stock brokers carry. Broker, Stockbroker, Investment Advisor, registered representative, account executive, financial advisor, portfolio management specialist, and on and on. What is important to understand and what few investors know before plunging into the world of professional wealth management, is that whether a broker truly owes a fiduciary duty of placing a clients interests before their own depends on a number of factors. Stock brokers making recommendations for a certain stock or bond alone, is not generally enough for a stock broker to be considered a customers fiduciary.

With the advent of new technology being employed at almost all broker dealers, the potential for a financial advisor to engage in excessive or unauthorized trading or “churning” has been substantially reduced. Churning is simply excessive trading in a brokerage account in order for the broker or financial management team managing the investment account to generate greater commissions.

In brokerage customer accounts, or trading accounts in which the broker is paid only when trades are generated, churning or excessive fees has always been a concern. If a broker is only compensated when selling or purchasing securities, the potential for the broker to engage in fraud is compelling. The logic of a brokerage account, as opposed to a fee based account, is that the model is suitable for investors who have a set asset allocation with very little trading activity. As opposed to a monthly or yearly fee for managing assets, known as a fee-based account or wrap account, customers who have set investments in stocks or bonds will save money because there is very little trading activity.

Now with the advent of a very basic trading systems algorithm, broker dealers should be able to immediately register when churning occurs by cross checking the total customer’s assets under management against the trading activity in the account. If the trading activity in comparison to a customer’s assets reaches a certain threshold, known as the turnover ratio, the broker dealer should have alerts in place to identify the client, the broker or financial advisor, and inform the broker’s branch manager. The branch manager should then conduct a review of the trading activity as well as the client’s investment profile. If the trading abuse is occurring in an investment account belonging to a senior citizen, new FINRA Rule 4512 has mandated brokerage firms to create a trusted contact person. This trusted contact person should be notified in order to respond to any possible stockbroker fraud being committed in the investment account. FINRA Rule 2165 permits brokerage firms that have a reasonable basis to believe that stock broker fraud has occurred, to place a temporary hold on the “disbursement of funds.” These rules and cross checks should make it very difficult to engage in churning. But still, it occurs more frequently than most other forms of stock broker fraud.

The Securities Exchange Commission on Tuesday filed charges against companies and “individuals” for selling Woodbridge Securities. As discussed in our previous post, in December 2017, Woodbridge filed for bankruptcy and, immediately thereafter, received an SEC complaint listing the company as a massive Ponzi scheme. Woodbridge sold securities billed as “First Position Commercial Mortgage Loans” or (“FPCM’s”). The Woodbridge FPCM Fund functioned as a private loan owned and held by Woodbridge. Investors owned a first position lien on a pool of mortgage loans. The way the security was touted to investors was that the product offered excellent safety. In the event that any one of the mortgages defaulted, investors were informed that they would simply pick up the collateral or underlying property that went into default. This safety, coupled with a short-term interest rate above 6%, made the product incredibly appealing to returned investors looking for safety and income. Investors were promised monthly payments and a return of their principal invested in a 12-24 month span. Woodbridge marketing material provided to brokers to present to clients provided “Property Examples” such as a water bottling plant in New York or a single family home in California. Roughly 8,400 individual investors purchased Woodbridge securities.

In reality, Woodbridge was operating a massive Ponzi scheme with funds from new investors going to pay the promised high interest rates from earlier Woodbridge purchasers. As stated by the SEC, the funds were risky, illiquid private offerings.

Investor funds also went to funding the lavish lifestyle of Woodbridge CEO Robert Shapiro. Woodbridge also spent massive sums on commissions to brokers looking to unload their products. Brokers selling Woodbridge were offered compelling commissions on the FPCM and Promissory Notes sold to investors.