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Tag Archives: FINRA

Accountant = Superman?

20 Sunday Jul 2014

Posted by Barry M. Bordetsky, Esq. in Uncategorized

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Accountant, Arbitration, Commissions, Complaints, FINRA, Frequent Trading, Investment Attorney, Securities Attorney, Stockbrokers, Tax Returns, Trading Responsibility, Unauthorized Trading

You know the story.  Little Billy is playing with matches on the hot summer day.   He strikes the match, puts it to the small leaves he’s gathered and watches at first with pure joy as the small fire sparks and snaps as he expected. And then the wind picks up, spreading that small fire across the forest, moving ever so close to threatening the small family farm neighboring the forest. The fire is now beyond little Billy’s control and he can’t undo the damage. And then, just as the fire spreads to the farmhouse, Superman swoops in and puts out the fire. While there is damage from the fire, it is nothing compared to what would have occurred had Superman not arrived “in the nick of time”.

Like little Billy starting a fire, often your broker is playing recklessly with your investments, not looking to the long-term effects of the buying or selling of investments or paying attention to the investment environment. Because of this your investments throughout the year are consistently declining in value putting at risk your retirement goals. Your broker is telling you during this time the strategy he has put in place must be followed, for your benefit. However, like little Billy’s fire, it is moving to a dangerous place.

While accountants are not flying in and saving any farmhouses from fires, they are in place to play the part of Superman when it comes to your investments. In the first quarter of every year your accountant reviews your investment information for tax reporting purposes. Your accountant looks at your investment gains and losses. More importantly, your accountant reviews (or should) the commissions generated from the investment account as well as the number of trades made in the account.   Superman uses his “freeze breath” to stop the fire; your accountant uses his or her calculator.  With that tool, your accountant can tell you that when your broker said “all of these trades are necessary to reach your investment goals” what he really meant was “thanks for all these commissions” as the value of the account actually decreased over the last year.

Your accountant isn’t there to stop the trading before it happens, but with your accountant’s preparation of your tax returns, your accountant may very well play the role of Superman by “swooping in” and working with you to put a stop to the improper trading, ensuring your retirement does not go up in smoke.   While you may not feel comfortable initially confronting your broker about the trading or the commissions in your account, talk to your accountant about what it is you want from your investment account, whether you authorized each of the trades in the account and whether you regularly talk to your broker. Your answers may very well put your accountant in place to “put out the fire” before it threatens your retirement.

When your broker improperly trades your investment account there are means to seek recoupment of the losses. There is a process in place to right such wrongs. However, use the means available to you, such as your accountant, to stop losses, significant losses, before they take place.

If you have questions relating to this topic or other investment matters, please contact The Law Offices of Barry M. Bordetsky by calling Barry M. Bordetsky at (800) 998-7705 or emailing at barry@bordetskylaw.com.

 

 

 

 

You Agreed to What?

14 Friday Mar 2014

Posted by Barry M. Bordetsky, Esq. in Uncategorized

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Arbitration Complaint, Attorney, Bordetskylaw, Breach of Contract, Broker-Dealer, Commercial Litigation, Court, Enforcement of Contract, FINRA, Investor Complaint, Lawsuit, Litigation Costs, Misrepresentation, Strong Defense, Suitability, Unfair Competition

If you were asked to sign an agreement containing the language below, you would think a joke was being played on you:

BY SIGNING BELOW YOU ARE GIVING YOUR LIFE

SAVINGS TO [FILL IN LEAST FAVORITE PERSON]

          X_______________________________________________

You would think the joke continued if above the signature block on the next page of the agreement contained the following:

BY SIGNING THIS AGREEMENT YOU ARE AGREEING TO:

          (i)          KL**AJSDF;

          (ii)         LK AKJKJADFE; and

          (iii)        KAJD-KJT

          X_______________________________________________

As much as these examples may bring a smile to your face because of the respective absurdity or incongruity of each, they, or more detailed examples of the same, can be found in any number of breach of contract cases.

With respect to the first, many people haphazardly review a document before signing it, not taking the time to read each and every paragraph or appreciate the significance and legal consequence of each term. What inevitably takes place, most likely at the signer’s deposition, is the signer testifies: “I didn’t think this was going to be enforced.”   The reason contracts have many paragraphs is because the party or parties intend each and every term and paragraph to be enforceable against the other.   By signing an agreement, the signatory is agreeing to each of the terms set forth in the document.

The second example comes into play more often than not in business transactions involving individuals.  The irony here is for each person that reads the above unintelligible example thinking “who would sign an agreement with language they don’t understand”, three others have just signed contracts containing language the signers did not read or simply do not understand.

Courts have made it very clear a party is responsible for and will be held accountable to the terms and corresponding obligations set forth in an agreement that is signed by the party.  Naiveté and ignorance are not proper or acceptable defenses.

Take the time to read documents put in front of you that require your signature. If you do not understand a term or reasoning for the inclusion of a paragraph, ask as many questions as you need to so you understand the content. If asking the questions you still do not feel comfortable with the answer or you still do not have an understanding as to how that term or paragraph will effect you, do not sign the agreement.

Otherwise, the last laugh may very well be at you.

 

If you have questions relating to this topic or other contractual matters, please contact The Law Offices of Barry M. Bordetsky by calling Barry M. Bordetsky at (800) 998-7705 or emailing at barry@bordetskylaw.com.

 

Prepare The Defense On Day One

08 Saturday Mar 2014

Posted by Barry M. Bordetsky, Esq. in Uncategorized

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Arbitration Complaint, Arbitration Discovery, Compliance, Customer Complaint, Enforcement, FINRA, Investor Complaint, Stockbroker, Strong Defense

In today’s environment an informal customer complaint must be taken as seriously as a formal filing with FINRA.   Upon receipt, a swift and comprehensive investigation of the alleged wrongdoing should be commenced.  Lay the groundwork for any third party’s review of your files.  Whether it’s FINRA’s or claimant’s counsel reviewing your files, the firm should demonstrate that it takes the claims seriously and is/was working both with the broker and the customer to: (i) resolve the issue; and (ii) ensure the complaining acts to do not repeat themselves.

When the formal statement of claim does arrive from FINRA, the clock starts to run on the time to submit an answer and prepare for an upcoming arbitration hearing.   FINRA is putting  pressure on arbitrators to expedite the proceedings.  The days of pushing back hearings a year and a half after the initial pre-hearing conference are a thing of the past.

Firms must be smart, and by doing so, they will save money and perhaps more importantly, avoid grief and liability.  Upon receipt of a statement of claim, a full profit and loss should be completed.  Provide your counsel with: (i) account statements; (ii) new account documents; (iii) client and broker files; and (iv) an analysis of net out-of-pocket losses and turnover rate.  As knowledge is power, providing defense counsel this information will permit a comprehensive response to the claims.  Additionally, the broker must have a “tell all” with counsel, explaining the relationship with the client,  leaving no stone unturned.  Let the attorney make the decision as to what is and what is not important to the case.  Remember, prior to the arbitration hearing, two out of the three arbitrators will have no contact with the parties outside of the pleadings.  The statement “you don’t get a second chance to make a first impression” lies true with the submission of the answer and you must give your attorney all the ammunition to submit a strong defense on your behalf.

Broker-Dealers Must Act to Protect Themselves

07 Friday Mar 2014

Posted by Barry M. Bordetsky, Esq. in Uncategorized

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Broker-Dealer, Enforcement Investigation, FINRA, Protect Investor, Supervision

Today broker-dealers are under constant fire.  The pressure comes from various sources: (i) the industry wanting to ensure investors they are being protected; (ii) FINRA enforcement investigations; and (iii) clients demanding positive returns regardless of the trading strategy they selected and approved.

Firms today must be aggressive, and such aggressiveness must begin on day one.  This day is not when a firm receives a customer complaint, but rather, the day the investor becomes a customer of the firm.

From the brokers, supervisors and back office personnel, everyone must be on the same page realizing that every ordinary act required in the opening and continuing of an account can prove to be crucial in defending the firms.  The simplicity of the acts is often overlooked.  For example, make sure account documentation is properly completed.  Client contact with the firm should be documented on a daily basis.  (Brokers often complain about the time it takes to scribble the notes.  Compare that time to working with defense counsel and spending three to five days at an arbitration hearing.  Suddenly the 30 seconds becomes very worthwhile.)  Also, supervision of brokers, such as documenting the comparison of investors’ trading to trading objectives, will provide a layer of protection if, and when, necessary.

The Law Offices of Barry M. Bordetsky works with brokers and broker-dealers when faced with both customer complaints and regulatory issues from FINRA.  If you have questions, please reach out to Barry M. Bordetsky at (800) 998-7705 or barry@bordetskylaw.com

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