Bloomberg reported about a wealthy 93 year old who brought constructive fraud, abuse of fiduciary duty, and other claims before FINRA against J.P. Morgan Securities, LLC and previously registered brokers and investment advisers Evan Schottenstein and Avi Schottenstein. Evan and Avi had been registered through J.P. Morgan. They were also the claimant’s grandchildren. A FINRA panel awarded the claimant approximately $19 million against the bank and brokers.
According to the description of the dispute on Evan Schottenstein’s BrokerCheck report, the “causes of action relate to the allegedly unauthorized purchase and/or sale of various securities in Claimants’ account, including, but not limited to, multiple auto-callable structured notes and various other securities for which Respondent J.P. Morgan Securities, LLC was a market maker, as well as initial public offerings (IPOs) and follow-on offerings (FPOs).” This description leaves out, as reported by Bloomberg, that when Evan and Avi joined J.P. Morgan and brought their grandmother’s account with them, the account was so valuable to J.P. Morgan that it gave one of the brothers a $1.5 million signing bonus.
If you suspect someone you know is the victim of financial elder abuse, the National Council on Aging may be a good resource. According to the National Council, 1 in 10 adults aged 60 and over have experienced some form of elder abuse. As was true in the case in the Bloomberg article, the National Council says that in nearly 60% of elder abuse and neglect cases, the perpetrator is a family member.
The Oregon Department of Justice has free resources and instructions about how to report elder abuse here.
Mistakes made by even well-intentioned financial advisers, stock brokers, promoters, solicitors, and others who give investment advice or sell financial products sometimes come to light when markets are volatile or when a bull market ends. Volatility and bear markets can make it difficult to conceal fraud and other illegal acts. Lawyers who represent investors in Oregon, Washington, Alaska, and in other states, along with investors in FINRA arbitrations, often consider several potential claims when evaluating a case.
1. States Securities Laws
Investors sometimes have claims under state securities laws. State securities laws may provide protection to not only state residents but also when investors or investments have a connection to the state. State securities laws, sometimes called Blue Sky Laws, often have two broad categories of claims—technical claims and claims involving misrepresentation or omission.
Common technical claims include sales by an unregistered salesperson and sales of unregistered securities. For example, in general, it is a violation of Oregon law for an unregistered salesperson to sell a security. Unless an exemption applies, it is also generally a violation of the Oregon securities laws to sell an unregistered security. The Oregon securities laws can be found in the Oregon Revised Statutes at Chapter 59.
The second broad category of state securities law claims involve misrepresentation or omission. Common misrepresentations and omissions include inadequate risk disclosures, misleading projections or reports about financial performance, false statements about business operations, and incomplete or false information about fees.
The plaintiff or claimant should always consider who is potentially liable for any misrepresentation or omission. In securities fraud cases under Oregon law, for example, the seller is potentially liable as are officers, directors, managing members, control persons, and anyone who participates or materially aides in the sale of a security.
2. Breach of Contract
For some investors, the strongest claim is for breach of contract. When a promissory note or other contractual right to payment is at issue and the debtor does not pay, a breach of contract claim may be available. A missed payment or other breach may also give the creditor the right to accelerate payment on the entire debt.
Pay close attention to the language of the contract. Contracts sometimes include an arbitration provision, seek to limit the time period within which a person must bring a claim, apply the law of a particular jurisdiction, and include other provisions that determine the parties’ rights and obligations.
3. Elder Abuse
Many states have laws designed to protect people based on age or disability. In Oregon, a defrauded investor who was 65 years of age or older at the time they invested should consider a claim for financial elder abuse. In investor cases, these claims typically involve the wrongful taking of money. A plaintiff who prevails on a financial elder abuse claim under Oregon law is entitled to treble damages and attorney fees. Oregon’s elder abuse statute is available in the Oregon Revised Statutes at Chapter 124.
4. Suitability and Best Interest
Unsuitability and best interest claims arise when a broker makes an investment that is inconsistent with an investor’s goals or investment profile. The broker should consider the investor’s age, risk-tolerance, financial goals, net worth, and other factors when recommending an investment. When an investment recommendation is out of line with these factors, the investment might be unsuitable or not in the customer’s best interest. For example, it might be unsuitable for a retired investor who plans to live off interest from fixed income investments to have a significant percentage of their assets invested in a volatile, equity options fund.
For more on the best interest requirement, see our blog post from July 1, 2020, available here.
This is not a complete list of potential claims an investor who is the victim of fraud or other financial abuse should consider. Other common claims include negligence, breach of fiduciary duty, common law fraud, claims under a state’s unlawful trade practices act, churning, and unauthorized trading. Whether a claim is available—and whether it makes strategic sense to make any given claim—depends on the specific facts of the case and the law that applies.
On June, 3, 2020, the U.S. Securities and Exchange Commission (“SEC”) obtained a preliminary injunction against investment adviser Paul Horton Smith, Sr. and related entities. The SEC alleges Smith and his entities engaged in a Ponzi scheme targeting senior citizens.
The SEC’s complaint refers to three entities associated with Smith: Northstar Communications, LLC, eGate, LLC, and Planning Services, Inc. Through these entities, the complaint alleges that Smith targeted seniors, guaranteeing investors annual interest payments in so called “private annuity contracts.” Smith did not in fact invest the money as promised, the SEC explained, and instead used the money to pay investors in a Ponzi-like fashion. The SEC also alleges that Smith held himself out to be a trusted fiduciary.
The case is Securities and Exchange Commission v. Paul Horton Smith, Sr., et al., Central District of California, No. ED CV 20-1056 PA (SHKx).
June 15, 2020 was World Elder Abuse Awareness Day. The Oregon Division of Financial Regulation used June 15 as an opportunity to remind all of us to help elders be on guard for financial exploitation. You can see the State’s announcement here.
The State’s announcement is a reminder that in light of COVID-19, social isolation has exposed seniors to increased risk of financial abuse. Schemes to take advantage of seniors can include everything from identify theft, to prize and sweepstakes scams, to romance scams, to unscrupulous investment advisers who overconcentrate a senior’s portfolio or recommend unsuitable investments.
Along with laws that protect you from investment fraud, Oregon has laws aimed at providing additional protections for people who are 65 and older. In particular, laws prohibiting financial elder abuse create a statutory right for a person 65 and over to bring a legal action against someone who causes or permits financial abuse. Many financial abuse cases in Oregon involve a defendant who has wrongfully taken money that belongs to an elderly person or that is intended for the use of an elderly person. Oregon’s financial elder abuse statutes give the plaintiff who wins his or her case the right to recover three times the amount of damages plus reasonable attorney fees.
Because of the protections for seniors in elder abuse statutes in Oregon and other states, when we are evaluating cases that involve investment fraud or other financial misconduct, we also look to see whether the victim may have a right to bring a claim for financial elder abuse.