California Securities Fraud Lawyer Blog

The Financial Industry Regulatory Authority (FINRA) has finally expelled Provident Asset Management for committing outright securities fraud in a Ponzi scheme that involved the marketing of a series of private placements under the names "Provident Energy" and "Shale Royalties." In typical FINRA-fashion, the expulsion was accomplished through a settlement in which the firm neither admitted nor denied any wrongdoing. FINRA's expulsion did not come about until more than 6 months after the Securities and Exchange Commission filed a securities fraud lawsuit against Provident Asset Management in July 2009 and Provident Royalties, LLC filed for bankruptcy in June 2009. Meanwhile, FINRA also announced today that their head of enforcement, Susan Merrill, is stepping down to return to private practice.

According to FINRA, the self-regulatory agency is conducting a broader investigation into the more than 50 broker-dealers who sold the Provident Energy and Shale Royalties private placements to their customers, which may lead to more settlements and potential fines. Disgruntled investors have already begun filing securities arbitration claims against some of these broker dealers alleging unsuitability, fraud and misrepresentation.

For more information, please visit the following recent blog postings:

• Even for Accredited Investors, Stockbroker Recommendations to Buy Private Placements Are Subject to the Suitability Rule
• Provident Royalties Bankruptcy Update: Investors Should Look Before They Leap
• Medical Capital Holdings & Provident Asset Management Securities Fraud Update

Here is a bit of good news for investors with securities arbitration claims against 14 of the largest brokerage firms, including Merrill Lynch, Morgan Stanley Smith Barney and Wells Fargo. The Financial Industry Regulatory Authority (FINRA) has agreed to extend its year-old pilot program established to give investors the option to request an arbitration panel composed entirely of arbitrators that are not affiliated with the securities industry. Currently, a 3-person arbitration panel must include one industry arbitrator and two public arbitrators. The pilot program was created in response to criticism over whether an industry arbitrator, such as a stockbroker or branch manager, can act impartially when a customer is complaining about securities fraud or account mismanagement by their broker. I've participated in arbitrations with both good and bad industry arbitrators. The trouble is, allowing an industry arbitrator to sit on a panel gives the appearance of bias and takes away from the legitimacy of the proceedings. That should be reason enough to dump the industry arbitrator. My California securities law firm is in favor of the pilot program and we have been actively encouraging clients to participate whenever possible.

The brokerage firms who have agreed to participate in the pilot program are:

Ameriprise Financial Services
Charles Schwab
Chase Investment Services
Citigroup Global Markets
Edward Jones
Fidelity Brokerage Services
LPL Financial
Merrill Lynch
Morgan Stanley Smith Barney
Oppenheimer
Raymond James
TD Ameritrade
UBS Financial Services
Wells Fargo Advisors / Wachovia Securities

Each of the above firms has committed to participate in a limited number of cases under the program on a first come, first served basis. The pilot program will end on October 5, 2010. Since the average arbitration hearing takes 14 ½ months to conclude, most cases in the pilot program have not gone to hearing yet. FINRA plans to compare the results of the pilot program cases with non-pilot cases. Of the 396 arbitration cases that have been decided this year, only 139 (45%) recovered anything at all. Hopefully, the arbitration award results for cases in the pilot program will be much better. If the pilot program results in more awards in favor of customers, will the brokerage industry lobby to keep the industry arbitrator? Let's hope not.

At the University of San Francisco Law School's Investor Justice Clinic, where I am an adjunct professor and supervising attorney, I am seeing a disproportionately large number of senior citizens who are victims of securities fraud and account mismanagement. The oldest client at the clinic is in her 90's. Elderly clients and those who are seriously ill have unique needs that require swift justice.

The typical securities arbitration claim filed with the Financial Industry Regulatory Authority (FINRA) takes about 1.25 years to complete. Fortunately, investors who are 65 years or older or seriously ill can request an expedited hearing under a program that was established in June 2004. So far, 701 customers have participated in FINRA's expedited program and, according to FINRA, their cases have been resolved 31% sooner.

For eligible cases, FINRA assures investors that its staff will administer the hearing in an expeditious manner. This program is not specifically covered in the arbitration rules; however, FINRA has amended the Arbitrator's Reference Guide to remind the arbitrators that they should avoid unnecessary postponements or do anything to delay the proceedings. In my experience, the program has been helpful but the expedited procedures should be included in the arbitration code. As it now stands, the burden rests on the investor's attorney to insist on getting the earliest possible hearing dates while allowing enough time to adequately prepare the case.

The Financial Industry Regulatory Authority (FINRA) was established in July 2007 when the National Association of Securities Dealers (NASD) and the New York Stock Exchange (NYSE) were consolidated. FINRA is responsible for overseeing regulation and compliance of more than 4,800 brokerage firms and nearly 650,000 stockbrokers.

FINRA's Investor Complaint Program

FINRA's Investor Complaint Program investigates complaints against brokerage firms and their employees. Where appropriate, FINRA will take disciplinary action against brokers. Sanctions can include fines, suspensions and disbarment from the securities industry. FINRA's Investor Complaint Program is a disciplinary program that is separate from FINRA's Dispute Resolution Division. Whenever a disciplinary investigation is started, FINRA often sends investors a standard letter with the following disclaimer:

"Please understand that we are not representing you individually in this matter. There is no assurance that any action will result in the return of funds or securities to you. If you feel you are entitled to monetary relief, you may wish to initiate an individual action, such as mediation or arbitration. FINRA provides a forum for resolving individual disputes through its Dispute Resolution Division."

FINRA's Dispute Resolution Division is responsible for overseeing the arbitration and mediation of disputes between investors and stockbrokers. When a customer opens a brokerage account with a brokerage firm that is a member of FINRA, the customer is obligated to submit any dispute to arbitration in accordance with the rules and procedures of FINRA Dispute Resolution.

Arbitration of Securities Disputes

Claims seeking damages of $25,000 or less are usually decided under the "simplified arbitration" procedures in which a single arbitrator decides the case based on the written record without the need for a hearing. Larger claims are decided by a panel of either one or three arbitrators, depending upon the dollar amount involved. A total of 7,173 securities arbitration cases went to hearing during the 5-year period from 2003 to 2008. Customers prevailed in 3,295 of those cases--or just 45% of the time. Securities arbitration is often misperceived as an informal proceeding; however, securities arbitration is a highly specialized area of the law and there are many qualified attorneys who focus exclusively on representing either customers or brokerage firms. When going to arbitration, customers need to be well prepared.

Mediation of Securities Disputes

Mediation is an alternative method of resolving a securities dispute that can be initiated at any stage of the arbitration process. Because participation in mediation is voluntary, both parties must agree to submit a case to mediation. Mediation begins with the selection of a trained mediator whose function is to help the parties negotiate a settlement. Mediation is non-binding, so the dispute will go to arbitration if the parties are unable to reach a settlement.

Here are the results from my analysis of securities arbitration awards made in San Francisco, California, during the first half of 2009 before the Financial Industry Regulatory Authority (FINRA). The claimants that did the worst were the ones who handled their own cases on a pro se basis. Pro se is Latin for "on one's own behalf." I could find only one instance where a pro se claimant recovered anything at all during the first half of 2009. In that case, the claimant, who was asking for $37,500 in damages, was awarded a mere $792.

Excluding pro se cases, claimants who went to hearing before San Francisco arbitrators in the first half of 2009 with an attorney prevailed 37.5% of the time. This is well below the national average reported by FINRA. According to FINRA, claimants received favorable awards in 47% of all arbitration hearings held during the first half of 2009.

Another telling statistic is the amount recovered by claimants who did win. After weeding out claims with questionable or uncertain damage claims, I found that claimants who won in San Francisco received awards that averaged 59% of their claimed damages during the first half of 2009. Choosing the right arbitrators can have a large impact on the outcome of a case. In reviewing awards, I notice that some San Francisco arbitrators who sat on multiple cases consistently ruled against claimants.

One final note: In each of the cases where the claimants did quite well, they were represented by an experienced securities arbitration attorney. Retaining a knowledgeable securities attorney and having fair-minded arbitrators appointed to a case can have a huge impact on the success or failure of a securities arbitration proceeding--especially in San Francisco where every little bit helps.

Would you like to know whether your brokerage firm or stockbroker has had a history of customer complaints?

You can easily check a broker's employment and disciplinary history online at FINRA BrokerCheck Website or call the BrokerCheck Hotline at (800) 289-9999.

The letters F-I-N-R-A stand for the Financial Industry Regulatory Authority. They are the non-governmental regulatory authority for securities firms and stockbrokers.