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by Bill Singer
 
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Written: July 24, 2014

In a Financial Industry Regulatory Authority (“FINRA”) Arbitration Statement of Claim filed in May 2013, public customer Claimant Meadows asserted causes of action including breaches of fiduciary duty and contract, negligence, and fraud in connection with his three Individual Retirement Accounts (“IRAs”) maintained at Respondent Charles Schwab & Co., Inc. Claimant Meadows sought $241,000 in compensatory damages, interest, fees, and costs. In the Matter of the FINRA Arbitration Between John Anthony Meadows, Individually and on behalf of His IRAs, Claimant, vs. Charles Schwab & Co., Inc., Respondent (FINRA Arbitration 13-01672, July 18, 2014).

As set forth in the Arbitration Decision:

Claimant alleged that changes to Claimant's account verification forms were not based on any contact with Claimant nor did Claimant request any such changes, but it appears to be Respondent's effort to make changes to Claimant's customer account profile in light of the sizeable losses. Claimant alleged that his education, prior investing experience with annuities and mutual funds, health and medical conditions, full disability and unemployment status combined with the fact that his three (3) Schwab accounts represented the vast majority of his net worth suggest that Claimant should never have been authorized to conduct any options trading of any kind and never should have been authorized to conduct any options trading.

Respondent Schwab generally denied the allegations and asserted affirmative defenses.

Award

The FINRA Arbitration Panel found Respondent Schwab liable and ordered it to pay to Claimant Meadows individually and on behalf of his IRAs, $30,000 in compensatory damages.

Bill Singer’s Comment

Given the allegations, this was an interesting case based upon a provocative premise: Claimant Meadows alleged that his account forms had been tampered with because of an inappropriate consideration about "sizeable losses" by Respondent Schwab. As set forth in the Decision, the customer asserted that forms were altered without his request or pursuant to any contact with him. Those are troubling allegations.

Further, Claimant apparently argued that he should not have been approved to conduct options trading. In support of that contention, he cites to such factors as his education and seems to claim that his prior investing experience was limited to annuities and mutual funds. He further raised “health and medical conditions” that may or may not have apparently contributed to “full disability and unemployment status.” Those are all unsettling allegations and, on top of that, they are made against a major brokerage firm, a household name, if you will. 

As I read the public customer's allegations, I anticipated that the outcome would be a dismissal. Why?  Well, that's a tough one to answer precisely; let's just say it's part instinct and part a default expectation that such a major brokerage firm as Schwab would not do any thing as idiotic as back-dating or altering customer forms. Then again . . . you just never know with Wall Street, right?

When I got to the part of the Decision where the arbitrators found Respondent Schwab guilty, that surprised me -- and I immediately went back to the beginning of the document to re-read the statement of facts and rationale for a better explanation. Sadly, that second pass through the Decision left me with little understanding of what the Panel found wrong and worthy of an award. Which is NOT to suggest that there was no misconduct but it is to suggest that I don't understand which of the Claimant's allegations were sustained and why only $30,000 in damages was awarded out of $241,000 sought.

What, for example, were Respondent Schwab’s defenses and explanations in response to truly significant allegations that it tampered with the customer’s account statements in a clumsy effort to justify options-trading losses? Given the nature of such allegations, you’d think that the FINRA Arbitration Panel would have at least shared with us some of the alleged fabrications. You’d also think that we would be informed of some of the findings those arbitrators made about some/any/all of the alleged form revisions and suitability concerns.

Claimant Meadows sued for at least $241,000 but was awarded just about 12% of that amount, a somewhat paltry $30,000. That doesn’t suggest a “stunning” victory for the public customer and could be interpreted as a modest victory for Respondent Schwab. We have absolutely no idea why the Panel awarded such a small percentage of the damages sought. Even more annoying, we don't know whether the Panel found any account form fabrication by Respondent.

Did the Panel agree with Claimant that he lacked the educational and investing background to understand options trading? Did the Panel conclude that Respondent Schwab should not have approved him for options trading?All of which begs the question: What type of options trading (if any) did occur? Are we talking about a conservative Covered Call strategy or a highly speculative naked buy/sell?

Does FINRA do any quality control whatsoever with these Arbitration Decisions? Not only doesn’t it appear that someone reviews drafts to ensure that a modicum of pertinent information and rationale is conveyed, but sometimes the grammar is painful. Consider this excerpt [Ed: Yellow highlighting supplied, not in original]:

[C]laimant should never have been authorized to conduct any options trading of any kind and never should have been authorized to conduct any options trading.

Before the "and," we are told that Claimant’s allegation was that he “should never have been authorized to conduct any options trading of any kind . . .” Okay, that’s a pretty powerful allegation and it speaks for itself.

After the “and,” however, we are additionally informed that Claimant alleged that he “never should have been authorized to conduct any options trading.”

Okay, so you tell me, just what the hell is the difference between a claim that a public customer:
  • should never have been authorized to conduct any options trading of any kind; and
  • never should have been authorized to conduct any options trading.
Did the Decision intend to draw a distinction between "should never" and "never should' (on the one hand), and "any options trading of any kind" and "any options trading"? What, if anything was the importance of such differences?

Finally, since the FINRA Arbitration Panel found Respondent Schwab liable, how the hell did it decide to award the relatively paltry $30,000? And puhleeeease don’t interpret my complaint as an effort to choose sides as between Meadows or Schwab -- I am not doing that. That’s not my point. My point is why are we left to guess as to why only some 12% of the sought damages were awarded in a case involving such unsettling allegations? The public customer's allegations seem to merit a more substantial award; however, for those same reasons, the brokerage firm is entitled to some written statement of exoneration, if, in fact, the Panel did not find that the firm had engaged in some of the serious alleged conduct.

 

Written: July 23, 2014

This one ain't pretty and there's sure as hell nothing here to laugh about. In 2012, a stockbroker finds himself charged with felony child molestation and felony attempted rape of a child. Eventually, he pleads to three misdemeanors of communication with a minor for immoral purposes. How does all of that impact his Wall Street career? Read on.

Case In Point

For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority (“FINRA”), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Moses G. Torres submitted a Letter of Acceptance, Waiver and Consent (“AWC”), which FINRA accepted. In the Matter of Moses G. Torres, Respondent (AWC 2013037723201, July 15, 2014).

Torres was first registered in 2009, and in February 2011 was associated with TIAA-CREF Individual & Institutional Services, LLC. The AWC asserts that he had no prior disciplinary history in the securities industry.

September 2012 Criminal History

According to online FINRA records as of July 23, 2014, on September 5, 2012, Torres was charged in the Superior Court of the State of Washington with two felony charges: Child Molestation and Attempted Rape of a Child. On June 20, 2013, the felony charges were reduced to three misdemeanor counts of communication with a minor for immoral purposes, to which Torres pleaded guilty. 

The FINRA records assert that he was incarcerated from June 20, 2013 to July 3, 2013 and fined $17,000.

The AWC asserts that in June 2013, Torres requested paid time off to care for his wife, when he was in fact using the time to serve his jail sentence. 

By The Book

FINRA By-Laws Article V, Section 2(c): applications for registration must be kept current at all times and amendments must be filed within 30 days of learning facts or circumstances giving rise to the amendment.

FINRA Rule 1122: prohibits associated persons from filing information that is incomplete or inaccurate or failing to amend an incomplete or inaccurate filing after receiving notice of the need for the amendment.

The Uniform Application for Securities Industry Registration or Transfer ('Form U4") Questions 14A(1) and 14B(1) : require registered representatives to disclose any conviction or charge of a felony or of certain specified misdemeanors (among which are the wrongful taking of property). 

FINRA Rule 2010: registered representatives shall observe high standards of commercial honor and just and equitable principles of trade.

Failure To Report

On July 23, 2013, TIAA-CREF filed a Uniform Termination Notice for Securities Industry Registration (''Form U5") reporting that it terminated Torres's employment on June 25, 2013, because he "did not report criminal proceedings for which he was charged, convicted, sentenced and, from June-July 2013, jailed." 

SIDE BAR: On December 27, 2012, Torres completed and signed a Compliance Policies and Procedures Acknowledgment Form, acknowledging that he would notify the firm immediately about any issue that would require an amendment to his Form U4. Torres failed to disclose his September 2012 felony charges to TIAA-CREF, and failed to amend his Form U4 to reflect the felony charges. Torres also failed to disclose his June 2013 guilty plea and misdemeanor conviction to the firm. 

FINRA Follows Up

In a written response to FINRA, Torres stated that he should have disclosed the criminal proceeding but failed to do so because he feared losing his job. FINRA apparently concluded that Torres was fully aware of the charges, and his obligation to report such information, and, accordingly, the AWC characterized his failure to disclose his felony charges as “willful.”

In accordance with the terms of the AWC, FINRA found that Torres willfully violated Article V, Section 2(c) of FINRA's By-Laws and FINRA Rules 1122 and 2010 and the self-regulatory organization imposed a $5,000 fine and a six-month suspension from association with any member of FINRA in any capacity.

Willfully 

As set forth in the AWC, Torres acknowledged the impact of the “willful” finding:

I understand that this settlement includes a finding that I willfully omitted to state a material fact on a Form U4, and that under Section 3(a)(39)(F) of the Securities Exchange Act of 1934 and Article III, Section 4 of FINRA's By-Laws, this omission makes me subject to a statutory disqualification with respect to association with a member.

For further discussions of the impact of willful non-disclosure and various issues pertaining to felony histories, visit the BrokeAndBroker.com FELONY PAGE.

Topics: Felony  Willful  Form U4  Form U5  FINRA  AWC  BrokeAndBroker  Bill Singer  
 

Written: July 22, 2014

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