September 4, 2015
Yesterday, we discussed the case of a registered
representative who was sanctioned by the Financial Industry Regulatory
Authority ("FINRA") as a result of some alleged improper conduct in
connection with variable annuities ("VAs") switches. "The Ol'
Variable Annuity Switcheroo" (BrokeAndBroker.com
Blog, September 3, 2015). In today's article, we consider the ordeal
of a registered representative who was accused of engaging in improper sales of
annuities and wound up being sued by a customer in a FINRA Arbitration.
Case In Point
In
a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of
Claim filed in July 2014, and as thereafter amended, public customer Claimant
Hebert represented herself (pro se) and asserted causes of action for
"unsuitability, breach of fiduciary duty and promise; financial negligence;
inappropriate advice; lack of proper counseling; and indifference to a special
needs client." In the original Statement of Claim, there were apparently two
Claimants, but by the time of the Amended Statement of Claim, only Hebert
remained. The claims arose in connection with Claimant's allegations that
Respondents had sold her multiple annuities, which were inappropriate. Claimant further asserted that she had been
treated by Respondents with "impatience, hostility, and neglect." Claimant
ultimately sought $385,195.39 in compensatory damages, $3,712 in attorneys'
fees, and $1,425 in filing fees. In the Matter of the FINRA
Arbitration Between Jeanne H. Hebert, Claimant, vs. Wells
Fargo Advisors, LLC and Lindsey Dare Barlow, Respondents (FINRA
Arbitration 14-02240, August 25,
2015).Respondents generally denied the allegations,
asserted various affirmative defenses, and sought the expungement of this
matter from Respondent Barlow's Central Registration Depository records
("CRD"). SettlementIn July 2015, the parties
settled the matter and, thereafter, the motion for Barlow's expungement proceeded
without a response from Claimant, who did not participate at the hearing or contest
the motion.Vague
AccusationsIn deliberating over the requested expungement, the
FINRA Arbitration Panel considered that Respondent Barlow did not contribute to
the monetary sum paid to Claimant by Respondent Wells Fargo. In deciding to
recommend expungement, the Panel offered this
rationale:The Statement of Claim contains vague accusations
that are not substantiated by facts. Barlow had an eleven year relationship
with Claimant and maintained copious notes of each conversation, especially
when significant changes were made to Claimant's
account. Claimant was placed in a managed
income-producing account, which consisted of appropriate stocks that generated
dividends to support Claimant's need for income. The annuity switch which
Claimant complained about involved an exhaustive explanation by the broker on
the "Annuity Exchange and Replacement Questionnaire" and included the
math supporting a switch. Claimant's CPA was in attendance in a meeting that
covered the switch and he supported the
switch. Barlow also arranged a refinance through Wells Fargo that included
outstanding debt and lines of credit in an effort to help Claimant control
expenses. Finally, Claimant had unrealistic expectations of the broker for
assistance on social security issues. Barlow did not have expertise in this
area and referred her to the social security
office.
Bill Singer's
CommentAccording to online FINRA BrokerCheck
records as of September 4, 2015, Wells Fargo settled the matter on June 29, 2015
for $8,500. Among the topics that often come up in my
discussions with clients of my law practice is the issue of giving tax advice.
My answer is consistent: Don't do it! That doesn't always
sit well with registered representatives who want to go the extra mile in terms
of customer service, and, in many cases, those brokers believe that they
understand the tax ramifications as well as (and often better) than a CPA or
tax attorney.In Barlow, we have a registered person who pretty
much handled things perfectly (in terms of documenting her customer
communications) but despite that, still got sued and required to disclose the
allegations. In the end, Barlow was exonerated by the Arbitrators but it took
time and dollars to get there -- and the expungement was never a slam dunk of a
proposition.What are the takeaways in Barlow's victory? One, she
apparently documented her rationale for the now-disputed annuity switch. Those
worksheets likely helped persuade the arbitrators of her sincerity and the
accuracy of her recollection. Note that the Panel characterized Barlow's
explanation to Hebert as "exhaustive."Two, the
customer's CPA attended the meeting. That's a wonderful idea. It strongly
suggests that the customer had the ability to seek independent advice from her
accountant in contradistinction to solely relying upon the stockbroker's
recommendations.Three, when it came to opining about social
security ramifications, Barlow declined. What a novel concept? I don't
know. If more stockbrokers would utter those magical words to more
customers there would likely be fewer lawsuits. On top of acknowledging the
limits of her social security expertise, Barlow even referred the customer to a
local social security office.Having set forth
the positive things that Barlow did to aid her defense, let me make a few
points in favor of customers in general. If you watch
enough television commercials about the brokerage industry, you sort of come
away with the impression that stockbrokers know it all. They know where you
should start with your retirement planning. They can literally paint a line on
the sidewalk and walk you through the many years of saving and investing. They
will show up at your son's soccer games. They will offer the toast at your
wedding. They have resources at their fingertips capable of answering each and
every question, be the query about taxes, investing in Kazakhstan, how you can
afford a vacation home, and what Fibonacci says about your proposed re-entry
price. In defense of many customers, it's hard to reconcile the public image of
the all-knowing, all-powerful stockbroker with the more realistic image of the
all-too-human stockbroker who pushes house product on you and told you to
heavily invest in Greek banks in
2010.