Texas Securities Act– The Statutory Basis for a $2.8 Million Arbitration Award On a $1.6 Million Investment.

March 11, 2020 | Bryan Forman

Austin, Texas Investor Wins $ 2.8 Million in Arbitration on Claims Under The Texas Securities Act

Investors in Private Offerings in Texas Have Substantial Tools At Their Disposal Through the Texas Securities Act (TSA).

In February of 2018, we posted a piece about how the Texas Securities Act was a “Powerful Tool For Victims of Oil and Gas Fraud” and we discussed how the TSA might apply to oil and gas investments, as we were seeing a significant number of investors’ inquiries about their investments in private oil and gas deals. As we noted, the TSA considers “any interest in or under an oil, gas or mining lease” to be a security. It is true that the TSA is a powerful tool for oil and gas investors that have been lied to about a deal, but the TSA is not limited to just oil and gas deals, but is applicable to the offer or sale of any security or investment contract. In this post, we highlight one of the firm’s recent awards where our client received all of his investment back, plus interest, costs, and a substantial award for his attorneys’ fees. The investment was not in an oil and gas deal, but was a somewhat typical investment in a start-up venture.

Some Novel Defenses in Employee Forgivable Loan Cases

June 28, 2018 | Bryan Forman

Offering bonuses in the form of employee forgivable loans (EFLs) is common in the financial industry, but these so-called bonuses can result in a trap for unsuspecting brokers (see our website here). While there are a variety of defenses (LINK) available to brokers when a brokerage firm seeks to enforce these EFLs in a FINRA action, the fact is that arbitrators seem to rule against brokers in these matters almost reflexively. But a couple of novel theories might offer new alternatives.

The Uniform Commercial Code

One potential new defense to an arbitration proceeding to enforce a promissory note is based on the Uniform Commercial Code (UCC). The UCC is a model law adopted by states throughout the country to insure that certain financial instruments are subject to the same legal requirements nationwide. The relevant provisions of the UCC for our purposes apply to negotiable instruments, which include, for example, checks and promissory notes. A negotiable instrument is a signed, transferrable document promising payment to a named payee at a specified time or upon demand. For example, your mortgage document is likely a negotiable instrument transferrable between banks, which explains how your bank can sell your mortgage to another financial institution, and then you get a notice to send your payments elsewhere.

“A Recovery Checklist For Victims of Investment Fraud”

June 26, 2017 | Bryan Forman

This week FINRA published a Recovery Checklist for Victims of Investment Fraud and at the risk of being called sensitive, it seems the Checklist seemed to omit, at least on its face, that hiring an attorney may be the most direct route to seeking any compensation that may be due from being a victim of a financial crime or a victim of investment fraud. Granted, if you click through to the embedded links, you will find another page published by FINRA titled “Legitimate Avenues for Recovering Investment Losses.” Therein you will find FINRA’s suggestion that “…You may want to hire an attorney to represent you during the arbitration or mediation proceedings to provide direction and advice.” I guess it is nice to be considered a “legitimate” avenue by FINRA, as any suggestion of illegitimacy would not sound quite as nice.

But back to the “Checklist.” FINRA provided a number of resources to report the crime, and victims of investment fraud and financial crimes should report these crimes to all appropriate agencies, as those agencies represent the only real process that can (whether they will is a different issue) bring criminal or regulatory charges against the perpetrator. However, it is in my experience rare that the authorities responsible for enforcing the criminal and regulatory statutes will recover the victim’s damages, although it certainly happens from time to time. That is not their real responsibility–they want to enforce the criminal laws and regulations and put deserving criminals behind bars or revoke licenses. Yes, recovery will sometimes be the product of criminal enforcement, but hiring someone that has no purpose other than representing the victim in seeking the appropriate recovery is wise.

I am glad FINRA acknowledges that the damage done by investment fraud not only includes the damages from financial loss, but also includes “…at least one severe emotional consequence—including stress, anxiety, insomnia, and depression.” These damages are real, and should be recoverable in arbitration, right? Well, FINRA knows that it is not easy to recover from investment fraud, and states so plainly. FINRA states, “While full financial recovery may be difficult to achieve…” and again states “It can be difficult to recover assets lost to fraud or other scenarios in which an investor has experienced a problem with an investment. But there are legitimate ways to attempt recovery. In most cases, you can do so on your own—at little or no cost.” Alas, is this a comment on the fairness/difficulty in recovering legitimate damages in its own arbitration forum? Perhaps, but don’t expect FINRA to connect these dots. But given this admitted “difficulty”, why does FINRA seemingly encourage victims of investment fraud to go it alone? FINRA is certainly aware of what can happen to the investor/claimant/victim proceeding on their own against veteran Wall Street attorneys in its FINRA arbitration forum—something akin to throwing raw meat into a crowded lions’ den comes to mind. Granted, experienced FINRA arbitrators will recognize a meritorious claim before them, but when it comes to recovering money from investment fraud, don’t go it alone!

FINRA Statistics-What Do They Tell Us About FINRA’s Arbitration Process and Its Fairness?

June 19, 2017 | Bryan Forman

As a Texas securities attorney I have been involved in the securities industry over much of the last three decades, and it seems the debate over the fairness of mandatory arbitration before FINRA between customers and firms or brokers has been heated, and near constant. Periods of greater scrutiny seem to only coincide with any rule proposal or legislation which has the potential of tilting the playing field in one direction or the other. During this debate, FINRA statistics seem to used by both sides (the consumer advocates and the industry) to support their respective arguments, but do these statistics tell us anything about “fairness.”

For those that may not have had the pleasure of engaging in this titillating debate, it may be generally summed up as follows: “Is FINRA Arbitration Fair, And Does It Offer Any Compelling Advantage to Either the Industry or the Public Customer?” It is not surprising that each constituency group argues zealously they are “right” in their analysis of fairness, or the lack thereof. However, and more interestingly, these constituencies can sometimes be found to argue “Yes” before some audiences, and “No” before others, perhaps suggesting a more candid insight while their respective guard is down, if not some resignation, about the current process and maybe a “kiss your sister” type of fairness.

Some background may be helpful for those not familiar with the origins of the debate. In 1987 the United States Supreme Court decided in the Shearson v. McMahon case that brokerage firms can contractually mandate arbitration for claims brought by their customers, thus forcing citizens to give up their right to the court system and a jury. It was heralded as a fair trade-off given the so-called fairness, efficiency, and economy of arbitration versus the court system. Since then, the debate continues: Is FINRA arbitration fair, and does it still offer compelling reasons to waive a right to a jury trial? Pragmatically speaking, the answer may not matter because it is likely, if not certain, that the customer agreement used by every brokerage firm contains a provision requiring mandatory arbitration before FINRA, and change to the status quo will only come, if at all, from the legislative and rule making process, or perhaps from a new decision from the Supreme Court, but don’t hold your breath.

Can I Sue My Stockbroker?

June 12, 2017 | Bryan Forman

Can I Sue My Stockbroker?

Well, yes and no. The question is more appropriately “How do I sue my stockbroker?” or “Where can I sue my stockbroker?” As I will explain shortly, the common denominator to all of these answers is that investors can (and should) seek recovery when their stockbroker breaches a duty owed to them and they suffer losses.

The short, but correct answer is “No,” you are likely prohibited from suing your brokerage firm in Court, and can only bring a claim in FINRA arbitration (which may look like a “Yes” answer…). All broker-dealers (think Merrill Lynch, Edward Jones, LPL, Wells Fargo, and any company that employs a stockbroker) must be registered with the Financial Industry Regulatory Authority (FINRA), the Self-Regulatory Organization that is vested with the regulation of brokers and the enforcement of rules governing the brokerage industry. All firms and their brokers are supposed to comply with FINRA’s rules and procedures, and these rules set forth many of the duties owed by the firm and the broker to the customer. When one or more of these rules are violated, a customer can be harmed and lose money (account losses) or be prohibited from making money (missed profits). One of these rules requires the broker-dealer to submit to a customer’s demand for arbitration using FINRA’s Dispute Resolution Forum–so even if there was no agreement to arbitrate, the customer could mandate that the firm submit to arbitration, but it is generally perceived that investors would prefer to be in a local court, before a local judge, and a jury of their peers.