Claims Against Brokers For “Selling Away”
When an investor decides to put his or her money with a brokerage firm, they expect that the firm has some controls in place to insure that the investments being recommended are vetted, a process in the securities industry known as “due diligence”. In other words, investors expect that the individual brokers and investment advisors who work for that firm are operating under the brokerage firm’s policies and procedures and the laws and rules of the securities industry. That’s important to investors, who rely on a firm’s reputation and the regulatory framework to ensure that the investment being recommended is known to the firm and has been determined to be appropriate for a particular category of investor.
Brokerage firms often have extensive compliance departments that go to great lengths to protect their reputations and their firm’s customers. One way they do this is by conducting due diligence on investment products offered to their investors. In turn, the individual brokers and advisors are expected to sell to the firm’s customers only those products that have been vetted and approved.
Selling Unapproved Investments
Some brokers go beyond the approved investment products and offer investors products that have not been as thoroughly investigated by their employing brokerage firm. This form of private sale between the broker and the investor is known in the investment community as “selling away.” In most cases, the unapproved products – such as securities of start-up companies and promissory notes – are riskier than the firm’s approved products.
One can imagine that investments in unapproved products result in losses far more frequently and severe than investments in approved products. Such actions by a rogue broker not only damages the investor financially but can also damage the brokerage firm’s reputation.
Selling Away is Prohibited
The practice of “selling away” is prohibited by industry rules and, when uncovered, can often come under by the scrutiny of the Financial Industry Regulatory Authority (FINRA), the primary regulator of the securities industry.
Grounds for Recovery
The broker and the brokerage firm can be held liable for losses on several grounds, such as:
- Having failed to offer suitable investment products given the investor’s needs and goals.
- Having misrepresented the nature of the investment
In selling away cases, it’s important to establish what the broker told the investor about the product. This usually involves two different versions of what was said and when. It is to the investor’s benefit to be able to produce additional evidence like:
- Copies of e-mails, text messages and the like.
- Notes of phone calls.
- Notes of in-person meetings.
- Any written descriptions or explanations of the investment.
Brokerage Firm Liability
Even though the brokerage firm took no active part in offering the unapproved securities, and, even though it explicitly limited the broker to selling approved investments, there may be grounds for holding the brokerage firm responsible. In simple terms, the firm may have failed to adequately supervise the broker in order to detect “red flags” or signs of wrongdoing. If the brokerage firm’s supervision of the broker has not been reasonable based on industry rules and practices, the firm can be held liable for the actions of its broker.
The best time for investors to get legal help is the moment they have reason to suspect that something is amiss with the product(s) they have been sold. Suspicions can arise from the following:
- The investment does not appear on the customer’s monthly account statement.
- Swearing the investor to secrecy so “others” don’t find out about this “great investment.”
- Directing payment to someone other than the brokerage firm (especially if payment is made to the broker himself).
- Setting up meetings outside the brokerage firm (especially when that has not been normal practice).
If you think or know that your broker has been “selling away” to your financial detriment, call the law firm of Todd A. Zuckerbrod, P.A. He can advise you on the best way to proceed to recover your losses and see to it that the broker is no longer able to harm investors. Todd has over 30 years of experience in the securities industry dealing with issues just like this, and your initial consultation is always free.