Focus on Securities Brokers:

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1 Focus on Securities Brokers: Fun with FINRA Atea Martin CNA Pro 125 Broad Street New York, NY (212) Chad Weaver Edgerton & Weaver 2615 Pacific Coast Hwy, Suite 300 Hermosa Beach, CA 9025 (310)

2 Atea Martin is a director in the CNA Pro Specialty Claim Unit in New York City, where she is responsible for managing the life agents broker dealer professional liability claims group, involving claims against insurance agents, registered representatives and broker-dealers. Prior to joining CNA, she worked in the claims unit of another major professional liability carrier, as well as in-house for a broker dealer, and practiced commercial litigation for two New York law firms. Chad Weaver is a partner and co-founder of Edgerton & Weaver in Hermosa Beach, California. His civil litigation practice is primarily focused on defending professional liability claims, with a particular specialty of representing financial institutions, insurance companies, registered representatives and insurance agents in customer-related disputes and regulatory matters before the Financial Industry Regulatory Authority, various state and federal courts, the California Department of Corporations, the Department of Insurance and the Securities and Exchange Commission. He is a member of the California and Florida state bar associations.

3 Focus on Securities Brokers: Fun with FINRA Table of Contents I. Real Estate Based Investment Claims...15 II. Forum Selection: FINRA vs. Court...15 III. Heightened Regulatory Scrutiny of Broker Dealer...16 IV. Issues/Claims...17 V. Assessing the Risk and Defending the Claim...19 Focus on Securities Brokers: Fun with FINRA Martin and Weaver 13

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5 Focus on Securities Brokers: Fun with FINRA I. Real Estate Based Investment Claims a. Tenant-in-Common Investments aka TICs i. General Characteristics: Under Section 1031 of the Internal Revenue Code, an investor in income-producing or rental real estate may exchange the investment in income-producing or rental real estate of equal or greater value and defer payment of capital gains. ii. IRS Revenue Ruling , 1 C.B. 733: If the arrangement among the investors is respected as a TIC interest in real estate, rather than an interest in a partnership, an exchange may qualify under Section iii. Are TICs Securities under SEC v. Howey?: Probably yes. TIC investors are generally obtaining a fractional interest in property by pooling their assets and sharing the risks and benefits of the enterprise. They also have the expectation of receiving profits derived predominately from the efforts of others (ie. TIC sponsors). b. Real Estate Investment Trusts aka REITs i. Public REITs: A security that sells like a stock on the major exchanges and invests in real estate directly, either through properties or mortgages. REITs receive special tax considerations and typically offer investors high yields, as well as a highly liquid method of investing in real estate. ii. Private REITs: A real estate investment trust that is not traded on the national stock exchanges. Investments typically last for a set time period, usually 10 to 12 years. At the end, investors cash out through an initial public offering, a merger, or a liquidation. The investment usually lacks the liquidity of a publicly traded REIT it is often difficult to redeem the shares or sell to a third party. II. Forum Selection: FINRA vs. Court a. Expenses/Costs b. Discovery i. Pros and Cons of limited discovery c. Limited Motion Practice in FINRA i. Rule 12504: Motions to dismiss a claim prior to the conclusion of a party s case in chief are discouraged in arbitration. 1. Rule (aka Six Year Rule): No claim shall be eligible for submission to arbitration under the Code where six years have elapsed from the occurrence or event giving rise to the claim. The panel will resolve any questions regarding the eligibility of a claim under this rule. d. Panel vs. Jury e. Asserting claims against third parties (ie. Product Sponsors) Focus on Securities Brokers: Fun with FINRA Martin and Weaver 15

6 III. Heightened Regulatory Scrutiny of Broker Dealer a. NTM (Hedge Funds) February 2003: Indicates that members have a heightened responsibility to investigate unregistered products they recommend to customers and train associated persons about the characteristics of the products. NTM may offer guidance as to how a broker-dealer should handle due diligence for unregistered private placements. According to NTM 03-07, the substantial due diligence that must be performed includes, but is not limited to: (1) an investigation of the background of the fund manager; (2) reviewing the offering memorandum; (3) reviewing the subscription agreements; (4) examining references; and (5) examining the relative performance of the fund. In addition, broker-dealers must train associated persons about the characteristics and risks associated with the product before they are allowed to recommend them. b. NTM (Non-Conventional Investments) November 2003: Indicates that appropriate due diligence must be performed to ensure that the broker-dealer understands the nature of the product, including the potential risks and rewards. The type of due diligence that is appropriate will vary from product to product. However, common features about the product must be understood, including but not limited to: (1) the liquidity of the product; (2) the existence of a secondary market and transparency of pricing in any secondary market transaction; (3) the creditworthiness of the issuer; (4) the creditworthiness and value of any underlying collateral; (5) the principal, return and/or interest rate risks and the factors that determine those risks; (6) the tax consequences of the product; and (7) the costs and fees associated with purchasing and selling the product. Although NTM indicates that a broker-dealer may in good faith rely on representations contained in a prospectus or disclosure document, reliance on these materials may not be sufficient to satisfy due diligence requirements where the contents do not provide sufficient information to fully evaluate the risk of the product or fully educate the associated persons. NTM also mandates members to train registered persons about the characteristics, risks and rewards of each product before they allow registered persons to sell that product to investors. c. NTM (Private Placements of Tenants-in-Common Interests) - March 2005: NASD staff believes that it is not appropriate for members that recommend a TIC transaction simply to rely on representations made by the sponsor in the offering document. While the nature and extent of verification will vary with the facts and circumstances related to particular sponsor and offerings, members should make a reasonable investigation to ensure that the offering document does not contain false or misleading information. Such investigation could include: * Background checks of the sponsor s principals; * Review of the agreements (property management agreement, purchase and sale agreement, lease and loan agreements); * Property inspection If the offering document contains projections, members should understand the basis for those projections, and the degree of likelihood that they will occur. For example, members should determine whether any projected yields can reasonably be supported by the property operations. NTM also reminds member firms of the general prohibition on general solicitation and its application to the sale of TICs by registered representatives. 16 Professional Liability Seminar December 2012

7 d. NTM (New Products) April 2005: Indicates that a firm s written procedures should include clear, specific and practical guidelines for determining what constitutes a new product. In addition, NTM goes through great lengths to elaborate on best practices regarding the implementation of an initial product review system and formal approval process. It also reminds firms of the obligation to implement appropriate in-firm training. e. Reg Notice (Unlisted REITS and DPPs) February 2009: Reminds firms of requirements regarding per-share customer account statement values of REITS and DPPs. In accordance with NASD Rule 2340(c)(2), firms must not use par value in a customer account statement more than 18 months following the conclusion of an offering, unless an appraisal of the program s assets and operations yields the same value. f. Reg Notice (Private Placements) April 2010: Reminds firms of obligation to conduct reasonable due diligence of Regulation D offerings. Reg. Notice states that a broker dealer may not rely blindly upon the issuer for information concerning a company, nor may it rely on the information provided by the issuer and its counsel in lieu of conducting its own reasonable investigation. It also reminds firms of two part suitability analysis: (1) is the product suitable for some investors and (2) whether the security is suitable for the customer to whom it is being recommended. IV. Issues/Claims a. Suitability i. Rule 2310 (aka the Suitability Rule): In recommending to a customer the purchase, sale or exchange of any security, a member shall have reasonable grounds for believing that the recommendation is suitable for such customer upon the basis of the facts, if any, disclosed by such customer as to his other security holdings and as to his financial situation and needs. ii. Rule 2111 (new Suitability Rule): A member or an associated person must have a reasonable basis to believe that a recommended transaction or investment strategy involving a security or securities is suitable for the customer, based on the information obtained through the reasonable diligence of the member or associated person to ascertain the customer s investment profile. A customer s investment profile includes, but is not limited to, the customer s age, other investments, financial situation and needs, tax status, investment objectives, investment experience, investment time horizon, liquidity needs, risk tolerance, and any other information the customer may disclose to the member or associated person in connection with such recommendation. iii. Specific Suitability Issues 1. Risk Tolerance a. PPM Language vs. New Account Form 2. Concentration a. NTM 05-18: Concentration of an investor s assets in a single asset class is not suitable for many investors. Members must, with respect to each customer for whom they make a recommendation, consider the risks from over-concentration against the benefits of tax deferral and the investment potential of the underlying real estate asset(s). Focus on Securities Brokers: Fun with FINRA Martin and Weaver 17

8 b. Internal compliance procedures often limit participation in direct investment programs to 20 percent of client s net worth. 3. Partial 1031 Exchange 4. Accredited Investor: Issuers raising capital in private offerings rely on accredited investor definition under Rule 215 of Securities Act of 1933, to determine if offering is exempt from Act s registration requirements. a. Prior definition: Any natural person: (1) who had an individual income over $200,000 in each of the two most recent years or joint income with spouse over $300,000 in those years AND has reasonable expectation of same income in current year; OR (2) whose individual or joint net worth at the time of purchase exceeds $1 million (includes value of primary residence) b. New definition: Excludes value of primary residence from $1 million net worth test i. Anticipate SEC will allow investors to exclude mortgage or other debt secured by residence that does not exceed residence s fair market value c. FINRA NTM 05-26: Accredited status under Regulation D is not necessarily an indicator of sophistication, particularly if the value of the investor s home constitutes a significant percentage of net worth. b. Due Diligence Claims c. Misrepresentation/Omission Causes of Action i. State Securities Statutes 1. California Corporations Code 25401: It is unlawful for any person to offer or sell a security in this state by means of any written or oral communication which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. Assuming liability, under Section 25501, Plaintiffs are entitled to recover either (1) rescission of their investment, or (2) damages if Plaintiffs no longer own investment. Section sets forth the manner in which damages are calculated, which is the difference between: the purchase price of the security, plus interest at the legal rate of 10 percent (from the date of purchase); and the value of the security at the time it was disposed of by the purchaser, plus the amount of any income received on the security. a. Note - Statute of Limitation: California Corporations Code requires that the case must be filed within five years after the act or transaction constituting the violation, or within two years after the discovery by the plaintiff of the facts constituting the violation, whichever shall first expire. 2. Illinois Statute 815, Section 12 (j) When acting as an investment adviser, investment adviser representative, or federal covered investment adviser, by any means or instrumentality, directly or indirectly: To employ any device, scheme or artifice to defraud any client or prospective client: To engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client; or 18 Professional Liability Seminar December 2012

9 To engage in any act, practice, or course of business which is fraudulent, deceptive or manipulative. The Secretary of State shall for the purposes of this paragraph (3), by rules and regulations, define and prescribe means reasonably designed to prevent such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative a. Rescission - Section 13L: A sale of security in violation of the act shall be voidable and the purchaser entitled to the full amount paid including interest (if not stipulated 10 percent) less any income or other amounts received by the purchaser on the securities. b. Note - Statute of Limitation: No action shall be brought for relief under this Section or upon or because of any of the matters for which relief is granted by this Section after 3 years from the date of sale; provided, that if the party bringing the action neither knew nor in the exercise of reasonable diligence should have known of any alleged violation of subsection E, F, G, H, I or J of Section 12 of this Act which is the basis for the action, the 3 year period provided herein shall begin to run upon the earlier of: (1) the date upon which the party bringing the action has actual knowledge of the alleged violation of this Act; or (2) the date upon which the party bringing the action has notice of facts which in the exercise of reasonable diligence would lead to actual knowledge of the alleged violation of this Act; but in no event shall the period of limitation so extended be more than 2 years beyond the expiration of the 3 year period otherwise applicable. V. Assessing the Risk and Defending the Claim a. Damages i. Recourse vs. Non-Recourse TICs ii. Compensatory 1. Handling of distributions 2. Offset of tax benefits of 1031 exchanges iii. Calculating current value of disputed investments 1. TICs 2. REITs iv. Model Portfolio Damages v. Rescission 1. Note significant interest calculations b. Retention of Experts i. Damages ii. Suitability iii. Due Diligence c. Mediation d. Arbitration/Trial Focus on Securities Brokers: Fun with FINRA Martin and Weaver 19

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