Investor Alerts - Russell L. Forkey

Broker/Dealer Remote Office Supervision – South Florida FINRA Arbitration and Regulatory Attorney

Russell L. Forkey — Sat, 12 Mar 2022 17:04:31 GMT

Remote Office Supervision

This post is designed to provide a summary of various rules and regulations requiring the establishment and enforcement of supervisory responsibilities over remote activities of a firm’s business activities. It is being presented for educational purposes only and thus, is not designed to be complete in all material respects. If you have any questions, you should contact a qualified professional.

Introduction

The Securities and Exchange Commission has provided guidance relative to “Remote Office Supervision.” Sections 15(b)(4)(E)1 and 15(b)(6)(A) 2 of the Securities Exchange Act of 1934 (Exchange Act) authorize the Commission to impose sanctions on a firm or any person that fails to reasonably supervise a person subject to their supervision that commits a violation of the federal securities laws. Section 15(b)(4)(E) also provides an affirmative defense against a charge of failure to supervise where reasonable procedures and systems for applying the procedures have been established and effectively implemented without reason to believe such procedures and systems are not being complied with. The Commission’s policy regarding failure to supervise is well established. The Commission “has long emphasized that the responsibility of broker-dealers to supervise their employees is a critical component of the federal regulatory scheme. A broker-dealer must develop a system for implementing its procedures that could reasonably be expected to prevent and detect securities law violations. In addition, a broker-dealer must have an appropriate system of follow-up and review if red flags are detected. However, establishing policies and procedures alone is not sufficient to discharge supervisory responsibility. It is also necessary to implement measures to monitor compliance with those policies and procedures.

Some broker-dealer firms have geographically dispersed offices staffed by only a few people, and many are not subject to onsite supervision. Their distance from compliance and supervisory personnel can make it easier for registered representatives (representatives) and other employees in these offices to carry out and conceal violations of the securities laws. The supervision of small, remote offices, therefore, can be especially challenging. The Commission staff has examined branch offices and the Commission has brought numerous enforcement cases involving inadequate supervision of these small, remote offices. These cases address situations in remote offices where supervisory mechanisms failed to detect and prevent misconduct.

Policies and Procedures

Clearly articulated and vigorously enforced policies and procedures, with sufficient resources to implement them, are an essential part of a supervisory system for remote offices. Comprehensive policies and procedures address all aspects of a remote office’s operations. The following policies and procedures may form part of an effective supervisory system.

Inspections. Inspections are a vital component of a supervisory system. The Commission has determined that broker-dealers that conduct business through remote offices have not adequately discharged their supervisory obligations where there are no inspections of those offices. Effective inspections can detect misconduct in its infancy, deter future wrongdoing, and prevent or mitigate investor harm. An effective supervisory system employs a combination of onsite and offsite monitoring, including the use of unannounced inspections and mechanisms for verifying that deficiencies are corrected.

Routine or “For Cause” Inspections. Onsite inspections usually take one of two forms: routine or “for cause.” Routine inspections are conducted in the ordinary course of business, while “for cause” inspections are conducted upon learning about a specific event or potential violation. It is suggested that all inspections include at least: (1) a review of a sampling of customer files, including account opening documents and trading records; (2) a review of the signature guarantee log; (3) a review of correspondence, advertisements, and sales literature made available at the remote office; (4) a review of business records, including physical and computer files; (5) in-person questioning of the representative by the supervisor about business activities, including inquiry about any unusual activity; and (6) in-person interview by the supervisor of the representative’s assistant or support staff, if any, about the remote office’s business and any unusual activity. If during the course of the examinations deficiencies are identified, examiners should consider the need to conduct a more in-depth review.

Unannounced Inspections. Routine or “for cause” inspections may be either announced or unannounced. Unannounced inspections are conducted on a random, surprise basis. Firm’s are encouraged to use unannounced, onsite inspections of remote offices to enhance supervision. They can deter and detect misconduct because they diminish the opportunity for concealment, removal, or destruction of the evidence of misconduct.

In addition, a supervisor is more likely to uncover evidence of misconduct in customer files, such as fictitious account statements, during an unannounced inspection than in an announced inspection that gives the representative an opportunity to remove such documents from customer files. An unannounced inspection might also reveal marketing materials that describe unapproved products, local billboards with unapproved advertisements, or customer account statements showing purchases of unapproved securities.

Unannounced inspections could be employed at random, as well as when triggered by “red flags” warning of potential misconduct. When indications of impropriety reach the attention of those in authority, they must act decisively to detect and prevent violations of the federal securities laws. Red flags that could suggest the existence or occurrence of illegal activity and might prompt an unannounced inspection include: (1) customer complaints; (2) a large number of elderly customers; (3) a concentration in highly illiquid or risky investments; (4) an increase or change in the types of investments or trading concentration that a representative in a remote office is recommending or trading; (5) an unexpected improvement in a representative’s production, lifestyle, or wealth; (6) questionable or frequent transfers of cash or securities between customer accounts, or to or from the representative; (7) the disciplinary history of the representative; (8) substantial customer investments in one or a few securities or class of mutual fund shares that is inconsistent with firm policies related to such investments; (9) churning; (10) trading that is inconsistent with customer objectives; or (11) significant switching activity of mutual funds or variable products held for short time periods. It is equally important that representatives do not obtain advance notice about a particular focus of an inspection. Advance notice of the focus affords representatives an opportunity to “doctor” particular records.

Offsite Monitoring of Trading, Handling of Funds, and Use of Personal Computers. Centralized technology to monitor the trading and handling of funds in remote office accounts, as well as the use of personal computers, helps detect misappropriation of customer funds, selling away, and unauthorized trading, among other things. Thus, if firms permit communications with customers from employees’ home computers or personal computers not connected to the firm’s network, SRO rules require firms to employ systems to monitor those communications.

Designate supervisory responsibility. Explicit delineation of the supervisory hierarchy, including the designation of a direct supervisor for each representative and the assignment of specific supervisory responsibilities to the supervisor, is a necessary part of a firm’s supervisory structure. Consideration should be given to the independence of supervision when supervisory responsibility is designated. For example, one factor firms should consider is whether the supervisor stands to benefit from the representative’s sales activities. No individual can supervise themselves. As with all supervisory procedures, the Commission has stated that firms should provide a system of review and follow-up to ensure that supervision (by a branch manager or a producing manager) is diligently exercised. The Commission also encourage firms to review the number of representatives for whom a supervisor is responsible as well as the number, nature, and extent of remote offices that an office of supervisory jurisdiction oversees. The degree of supervisory effectiveness is likely to decrease if a supervisor does not have adequate resources to oversee all of the representatives for whom he or she is responsible.

Carefully review FINRA Forms U-4 and U-5 when hiring representatives. Firms should be especially cautious about employing personnel with disciplinary histories. Where a representative with a disciplinary history is employed in a remote office, the Commission has repeatedly emphasized the need for heightened supervision of the representative. Where a representative has left a firm for cause or changed firms several times, the hiring firm should try to ascertain the reason for the changes and contact prior firms as necessary.

Closely monitor outside business activities and selling away. A firm should have adequate procedures for reviewing, analyzing, or following up on the information representatives provide concerning outside activities.46 In addition, a firm should be alert to and investigate “red flags” indicating possible undisclosed outside business activities and assess all outside business activities by a representative, whether or not related to the securities business. The Commission has recognized that there is a risk that representatives will use outside business activities to carry out or conceal securities law violations. A representative appearing to live more lavishly than his business income would allow might be a “red flag” indicating pursuit of improper or outside business activities. Additionally, it is suggested that firms be wary of a representative who owns a company with a name similar to the name of the firm. A customer may make a check payable to the firm that could be altered by a representative and deposited into a bank account in the name of the company he owns.

Implement procedures to detect financial misconduct. It is suggested that firms consider implementing procedures to prevent and detect the following improper activities: (1) the receipt of checks made payable to a representative or any outside business of a representative; (2) the opening of a bank account in the firm’s name or any name similar to the firm’s name by a representative; (3) the receipt of cash and securities by a representative; (4) frequent or questionable transfers of funds or securities between customer accounts; (5) use of a post office box or an address associated with the representative for customer accounts; and (6) the transfer of customer funds or securities to employee accounts without supervisory approval. Inspections and thorough investigations of customer complaints can help detect financial misconduct.

Education for representatives. It is incumbent on firms to provide representatives with training so that the representatives understand the responsibilities under the firm’s procedures, as well as under the securities laws and rules applicable to their business. As with all compliance and sales practice matters, firms are more likely to prevent misconduct if they provide training for representatives and periodically reinforce that training.

Monitor and verify customer address changes. SEC rules require firms to send notification of a change of address to a customer’s old address for each account with a natural person as a customer or owner. This verification enhances customer protection, and we encourage firms to send such verifications for all customer address changes. Moreover, a customer address change to a post office box or an address affiliated with a representative warrants additional steps to verify that the change is genuine.

Record use of the signature guarantee stamp. A firm should have procedures to deter misuse of the signature guarantee stamp to prevent forgeries. These procedures might include maintaining a log of all uses of the stamp and using a stamp with a counter that records each use of the stamp.

Maintain copies of and review incoming and outgoing correspondence. The Exchange Act and rules thereunder require firms to maintain copies of incoming and outgoing correspondence, while SRO rules require firms to review and retain such correspondence, including all documents, reports, profit and loss statements, e-mails, or other materials sent to customers by a representative or received from customers. Firms can enhance the effectiveness of their inspections by reviewing e-mails between representatives. One method of monitoring use of facsimile machines in remote offices is to program these machines to automatically send duplicate incoming and outgoing facsimiles to an office of supervisory jurisdiction.

Contact Us:

With extensive courtroom, arbitration and mediation experience and an in-depth understanding of securities law, our firm provides all of our clients with the personal service they deserve. Handling cases worth $25,000 or more, we represent clients throughout Florida and across the United States, as well as for foreign individuals that invested in U.S. banks or brokerage firms. Contact us to arrange your free initial consultation.

At the Fort Lauderdale Law Office of Russell L. Forkey, we represent clients throughout South and Central Florida, including Fort Lauderdale, West Palm Beach, Boca Raton, Sunrise, Plantation, Coral Springs, Deerfield Beach, Pompano Beach, Delray, Boynton Beach, Hollywood, Lake Worth, Royal Palm Beach, Manalapan, Jupiter, Gulf Stream, Wellington, Fort Pierce, Stuart, Palm City, Jupiter, Miami, Orlando, Maitland, Winter Park, Altamonte Springs, Lake Mary, Heathrow, Melbourne, Palm Bay, Cocoa Beach, Vero Beach, Daytona Beach, Deland, New Smyrna Beach, Ormand Beach, Broward County, Palm Beach County, Dade County, Orange County, Seminole County, Martin County, Brevard County, Indian River County, Volusia County and Monroe County, Florida. The law office of Russell L. Forkey also represents South American, Canadian and other foreign residents that do business with U.S. financial institutions, investment advisors, brokerage and precious metal firms.

Exchange Traded Notes (ETNs) – Boca Raton, Florida FINRA Arbitration and Federal and State Court Litigation Attorney

Russell L. Forkey — Mon, 14 Dec 2015 02:44:15 GMT

Exchange Traded Notes (ETNs) Frequent Asked Questions – Boca Raton, Florida FINRA Arbitration and State and Federal Court Litigation Attorney:

Frequently asked questions about Exchange Traded Notes (ETNs). ETNs are unsecured debt obligations of financial institutions that trade on a securities exchange. ETN payment terms are linked to the performance of a reference index or benchmark, representing the ETN’s investment objective. You should understand that ETNs are complex and involve many risks for interested investors, and can result in the loss of your entire investment.

What is an ETN?

ETNs are unsecured debt obligations of financial institutions. They are very different from traditional corporate bonds because, unlike traditional corporate bonds – which pay a stated rate of interest – the return on an ETN is based on the performance of a reference index or benchmark (minus any investor fees you may pay). ETNs generally do not pay interest to their holders. Payments on ETNs may be linked to well-known broad based securities indexes or based on indexes tied to emerging markets, commodities, volatility, a specific industry sector (e.g. oil and gas pipelines), foreign currencies, or other assets. ETNs that offer leveraged exposure pay a multiple of the performance of the reference index or benchmark. Other ETNs (called inverse ETNs) are calculated based on the opposite of the performance of the reference index or benchmark. Many ETNs are issued with maturities of 20 or 30 years, and are not intended to be held to maturity. Accordingly, returns to an investor generally arise from trading the ETN rather than from holding the ETN to maturity.

What is the Difference Between an ETN and an ETF?

ETNs are often confused with exchange-traded funds (ETFs). ETNs and ETFs are both traded on a securities exchange and can be bought and sold throughout the day, but there are important differences. ETFs are registered investment companies. An investor in an ETF owns shares of a fund, which represents an ownership interest in an underlying portfolio of assets. An ETF discloses to investors the value of its portfolio of assets by publishing an end-of-day net asset value and by disseminating an estimate of its value generally every 15 seconds during the trading day, which is sometimes called an intraday indicative value. An ETF issues and redeems its shares in creation units, at their net asset value.

ETNs share some characteristics with ETFs. For example, ETNs also issue and redeem notes in creation unit sizes (generally, 25,000 to 50,000 notes); like with ETFs, the creation and redemption process affects the number of notes trading at any point in time. For both ETNs and ETFs, the purchasers of the creation units split them up to sell the individual notes or shares, as applicable, to investors in transactions on an exchange. But there is a fundamental difference between ETFs and ETNs. Unlike ETFs, ETNs do not own an underlying portfolio of assets and this makes holders of ETNs subject to the creditworthiness of the issuer. As ETNs do not own assets, when issuing new ETNs, ETN issuers calculate the value of the ETN using a described formula, rather than using net asset value.

Market Trading and Valuing ETNs

ETNs are listed on an exchange and may be bought and sold at market prices. An ETN’s prospectus will describe both how the value of the note is determined on any particular trading day, as well as how the value of the reference index or benchmark is calculated. Issuers publish a value at the conclusion of each trading day representing the amount an issuer would be obligated to pay the investor. Market prices may vary from these published values.

Potential Risks to Consider Before Investing in ETNs

Potential risks of investing in ETNs include the following:

Complexity – You and your broker should take time to understand the manner in which the reference index or benchmark is calculated, including the fees that are included in either the reference index or the calculation of the value of the ETN. Compare and contrast the ETN to other investment products offering a similar investment strategy.

Credit Risk (Issuer Default) – You should be aware that when you purchase an ETN you are subject to the creditworthiness of the issuing financial institution and would be a creditor if the issuer defaults on payments due.

Market Risk – In addition to the credit risk of the issuer, ETNs also expose investors to the performance risk of the reference index or benchmark.

Leverage – Leveraged, inverse, or inverse-leveraged ETNs reset on a daily basis their exposure to the leveraged, inverse, or inverse-leveraged exposure stated in the prospectus, meaning that all investors receive an equal amount of leveraged, inverse, or inverse-leveraged exposure. As a result, investors holding such ETNs for more than one day should not expect to receive returns proportional to the exposure stated in the prospectus. The difference can be significant. Consequently, leveraged, inverse, or inverse-leveraged ETNs are not typically used as buy-and-hold instruments.

Price Volatility (Market Price versus Indicative Value) – ETNs can trade at premiums or discounts to their indicative value, especially in instances in which the issuer has suspended further note issuances. If you are considering purchasing ETNs, you should compare market prices against indicative values.

Liquidity Risk – There is a risk that if you need to cash out your investment, you may not be able to sell the ETN immediately and at a price that you would consider reasonable (for example, you may have to sell the ETN at a lower price than if you were able to wait to liquidate your investment). This is the case for most illiquid securities and the liquidity of ETNs varies significantly. For example, some ETNs have daily volume in excess of a million notes, while others may have little trading activity over several days. You should consider your overall timeframe for the investment, including how quickly you may need to sell the ETN.

Additional Considerations:

Do not invest in something that you do not understand. Before purchasing an ETN, you should consider:

Whether ETNs are a suitable investment for you. You should review your investment objectives and tolerance for risk with your broker or financial adviser before you consider investing in an ETN. They can help you determine whether or not the risks associated with a particular ETN are within your tolerance for risk, or whether your investment needs are better served by investing in another product. Your broker should only recommend transactions and investment strategies that are suitable for you based on your investment profile.
What fees are associated with an ETN, such as fees included in the reference index or benchmark, daily investor fees that reduce the closing indicative value of the ETN, and the amount of brokerage commissions you may pay when buying and selling an ETN.
Whether you understand how the reference index or benchmark is calculated.
Whether you understand how the indicative values and redemption values are calculated and what they measure.
Whether you understand the tax implications, if any, because the tax treatment can vary depending upon the nature of the ETN. It may be appropriate to consult a tax professional.

Finally, you may wish to consider seeking the advice of an investment professional. If you do, be sure to work with someone who understands your investment objectives and tolerance for risk. Your investment professional should understand complex products, such as ETNs, and be able to explain to your satisfaction whether or how they fit with your objectives.

Contact Us:

With extensive courtroom, arbitration and mediation experience and an in-depth understanding of elder abuse, exploitation and securities law, our firm provides all of our clients with the personal service they deserve. Handling cases worth $25,000 or more, we represent clients throughout Florida and across the United States, as well as for foreign individuals that invested in U.S. banks or brokerage firms. Contact us to arrange your free initial consultation.

At the Boca Raton Law Office of Russell L. Forkey, we represent clients throughout South and Central Florida, including Fort Lauderdale, West Palm Beach, Boca Raton, Sunrise, Plantation, Coral Springs, Deerfield Beach, Pompano Beach, Delray, Boynton Beach, Hollywood, Lake Worth, Royal Palm Beach, Manalapan, Jupiter, Gulf Stream, Wellington, Fort Pierce, Stuart, Palm City, Jupiter, Miami, Orlando, Maitland, Winter Park, Altamonte Springs, Lake Mary, Heathrow, Melbourne, Palm Bay, Cocoa Beach, Vero Beach, Daytona Beach, Deland, New Smyrna Beach, Ormand Beach, Broward County, Palm Beach County, Dade County, Orange County, Seminole County, Martin County, Brevard County, Indian River County, Volusia County and Monroe County, Florida. The law office of Russell L. Forkey also represents South American, Canadian and other foreign residents that do business with U.S. financial institutions, investment advisors, brokerage and precious metal firms.

Tribal Capital Markets, LLC. a/k/a Blue Capital Securities, Inc. – CMO Risk Disclosure – Boca Raton, Florida FINRA Arbitration Attorney

Russell L. Forkey — Sun, 23 Aug 2015 22:18:29 GMT

The Financial Industry Regulatory Authority, Inc. (FINRA) is a self-regulatory authority assigned the responsibility, by the Securities and Exchange Commission, to license, regulate and discipline securities broker/dealers and their employees, including account executives. In the event that FINRA elects to institute an enforcement action, firms and licensed individuals have the responsibility to reflect such action on their U-4 and/or U-5 filings, which can be viewed on the FINRA website under the broker-check section of the site or by viewing the monthly disciplinary information also provided on the FINRA site.

The monthly disciplinary information is referenced on the FINRA site generally in alphabetical order. This post relates to the following company or individuals. If the reader would like to review the entire FINRA release or the broker-check information concerning this matter, you can follow these highlighted links:

August 2015 Disciplinary and Other FINRA Actions

Broker Check: http://www.finra.org/Investors/ToolsCalculators/BrokerCheck/

Tribal Capital Markets, LLC aka Blue Capital Securities, Inc. (CRD #38901, New York, New York) submitted an AWC in which the firm was censured and fined $50,000. Without admitting or denying the findings, the firm consented to the sanctions and to the entry of findings that in connection with selling collateralized mortgage obligations (CMOs), it provided marketing materials for a proposed CMO transaction to customers that failed to adequately disclose and present a balanced discussion of certain risks involved in the transaction. The findings stated that the firm failed to provide required CMO educational materials prior to its sales of CMOs to retail customers. The findings also stated that the firm violated books and records rules in connection with its mortgage-backed securities (MBS) and CMO business, in that its order memoranda transactions were incomplete or contained inaccuracies. Order tickets failed to identify the registered representative who entered the order, contained inaccurate order execution times, and were marked as unsolicited when that was not the case. The findings also included that the firm violated FINRA’s TRACE rules in connection with its MBS and CMO business. The firm failed to report transactions, failed to report transactions within 15 minutes of the execution time, and failed to accurately report times of order receipt, order entry and order execution for transactions in TRACE-eligible securitized products to TRACE. To review the complete release, please follow the above link.

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10 Ways for Seniors to Protect Themselves From Fraud – South Florida Senior and Retirement Financial Abuse and Exploitation Attorney

Russell L. Forkey — Thu, 27 Nov 2014 19:36:54 GMT

10 Ways for Seniors to Protect Themselves From Fraud – South Florida Senior and Retirement Financial Abuse and Exploitation Attorney:

Know who you’re dealing with.

Try to find a seller’s physical address (not a P.O. Box) and phone number. With internet phone services and other web-based technologies, it’s tough to tell where someone is calling from. Do an online search for the company name and website, and look for reviews. If people report negative experiences, you’ll have to decide if the offer is worth the risk. After all, a deal is good only if you get a product that actually works as promised.

Know that wiring money is like sending cash.

Con artists often insist that people wire money, especially overseas, because it’s nearly impossible to reverse the transaction or trace the money. Don’t wire money to strangers, to sellers who insist on wire transfers for payment, or to anyone who claims to be a relative or friend in an emergency and wants to keep the request a secret.

Read your monthly statements.

Scammers steal account information and then run up charges or commit crimes in your name. Dishonest merchants bill you for monthly “membership fees” and other goods or services without your authorization. If you see charges you don’t recognize or didn’t okay, contact your bank, card issuer, or other creditor immediately.

After a disaster, give only to established charities.

In the aftermath of a disaster, give to an established charity, rather than one that has sprung up overnight. Pop-up charities probably don’t have the infrastructure to get help to the affected areas or people, and they could be collecting the money to finance illegal activity.

Talk to your doctor before you buy health products or treatments.

Ask about research that supports a product’s claims – and possible risks or side effects. In addition, buy prescription drugs only from licensed U.S. pharmacies. Otherwise, you could end up with products that are fake, expired, or mislabeled – in short, products that could be dangerous to your health. Learn more about buying health products online.

Remember there’s no sure thing in investing.

If someone contacts you with low-risk, high-return investment opportunities, stay away. When you hear pitches that insist you act now, that guarantee big profits, that promise little or no financial risk, or that demand that you send cash immediately, report them at ftc.gov.

What Not to Do.

Don’t send money to someone you don’t know. Not to an online seller you’ve never heard of – or an online love interest who asks for money. It’s best to do business with sites you know and trust. If you buy items through an online auction, consider using a payment option that provides protection, like a credit card.

If you think you’ve found a good deal, but you aren’t familiar with the company, check it out. Type the company or product name into your favorite search engine with terms like “review,” “complaint,” or “scam.” See what comes up – on the first page of results as well as on the later pages.

Never pay fees first for the promise of a big pay-off later – whether it’s for a loan, a job, a grant or a so-called prize.

Don’t agree to deposit a check and wire money back. By law, banks have to make funds from deposited checks available within days, but uncovering a fake check can take weeks. You’re responsible for the checks you deposit: If a check turns out to be a fake, you’re responsible for paying back the bank. No matter how convincing the story, someone who overpays with a check is almost certainly a scam artist.

Don’t reply to messages asking for personal or financial information. It doesn’t matter whether the message comes as an email, a phone call, a text message, or an ad. Don’t click on links or call phone numbers included in the message, either. It’s called phishing. The crooks behind these messages are trying to trick you into revealing sensitive information. If you got a message like this and you are concerned about your account status, call the number on your credit or debit card – or your statement – and check on it.

Don’t play a foreign lottery. It’s illegal to play a foreign lottery. And yet messages that tout your chances of winning a foreign lottery, or messages that claim you’ve already won, can be tempting. Inevitably, you have to pay “taxes,” “fees,” or “customs duties” to collect your prize. If you must send money to collect, you haven’t won anything. And if you send any money, you will lose it. You won’t get any money back, either, regardless of promises or guarantees.

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Valuations of Unlisted Real Estate Investment Trusts and Direct Participation Programs – Boca Raton, Florida REIT and DPP FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Thu, 23 Oct 2014 21:29:42 GMT

SEC Order Approving FINRA Rule Change Relative to How Member Firms are Required to Calculate the Value of Unlisted Real Estate Investment Trusts and Direct-Participation Programs:

The Sec has approved FINRA’s plan to overhaul how member firms calculate the value of unlised real estate investment trusts (“REITs”) and direct-participation programs (“DPPs”). Under the new rules – specifically FINRA Rule 2310 – the firms will be required to include on customer account statements a per-share estimated value for any unlisted REIT and DPP securities that they have reason to believe is reliable.

Firms also will need to make new disclsoures about the nature of the investment, including that they are not traded on a public securities exchange and that the price that the investor receives may be less than the estimated per-shre value.

Please keep in mind that the above information is being provided for informational purposes only. Thus, it is not designed to be complete in all material respects. If you have any questions relative thereto, you should contact a qualified professional.

John Thornes – South Florida Elder and Retirement Financial Abuse, Fraud and Breach of Fiduciary Duty FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Mon, 04 Aug 2014 19:07:39 GMT

Boca Raton, Boynton Beach, Lake Worth, Delray Beach and Deerfield Beach, Florida Elder and Retirement Financial Abuse, Fraud and Breach of Fiduciary Duty FINRA Arbitration and Litigation Attorney:

Securities and Exchange Commission v. John Thornes, Defendant, and Christopher Burnell, Kyle Larick, and Doreen Thornes, Relief Defendants, Civil Action No. 14-cv-06088 (C.D. Cal.)

SEC Charges California-Based Broker with Stealing Money from Accounts

The Securities and Exchange Commission recently charged a California-based broker with stealing $4.4 million from two trust brokerage accounts at his firm and diverting it to a pair of friends for uses ranging from gambling to chartering a private jet.

The SEC alleges that John T. Thornes of Redlands, Calif., formerly the sole owner of Thornes & Associates, Inc., diverted funds out of a brokerage account for a trust established for the health and welfare of an 80-year-old dementia patient who has been living at home for several years with 24-hour nurse care. Thornes also siphoned money out of a brokerage account for a trust set up to fund college scholarships for local high school graduates.

According to the SEC’s complaint filed in U.S. District Court for the Central District of California, Thornes stole money from the two accounts from November 2010 to April 2013 primarily to benefit two of his friends, Christopher Burnell of Highland, Calif., and Kyle Larick of Redlands, Calif. Thornes has tried to pass off the payouts as loans, however there were no loan documents, no stated interest, and no collateral for the funds given. None of the money was ever repaid.

The SEC alleges that Thornes deceived his own mother with respect to the educational trust. She served as trustee, and he periodically asked her to sign blank checks that he then used in his misappropriation scheme. Thornes never informed his mother about trades he made, and he converted the brokerage account to a margin account even though it was designated as a low or minimal-risk tolerance account. He used the margin debt in his scheme and later sold securities from those accounts to avoid the margin calls. Thornes did the same thing with the brokerage account for the elderly dementia patient.

According to the SEC’s complaint, after Thornes liberally transferred money from the brokerage accounts to his friends, they used it to charter a private jet, buy a luxury car, and purchase a vacation home. Burnell also used the funds to gamble at a nearby casino or pay gambling debts. Thornes paid his mother about $84,000 in excess trustee fees.

Thornes has agreed to settle the charges and consented to the entry of a final judgment ordering him to pay disgorgement of $4,366,790, prejudgment interest of $278,540, and a penalty of $4,366,790. Without admitting or denying the SEC’s allegations, he agreed to be permanently enjoined from future violations of Section 17(a) of the Securities Act of 1933 as well as Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. Thornes also has agreed to consent to a collateral industry bar and a penny stock bar.

The SEC’s complaint also names Thornes’ friends Burnell and Larick as well as his mother Doreen Thornes as relief defendants for the purposes of recovering any illicit funds in their possession.

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Robert G. Bard – South Florida Securities and Bank Fraud and Misrepresentation FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Sat, 02 Aug 2014 01:33:59 GMT

Boca Raton, Delray Beach, Boynton Beach, Lake Worth and West Palm Beach, Florida Investment Advisor Securities and Bank Fraud and Misrepresentation FINRA Arbitration and Litigation Attorney:

Securities and Exchange Commission v. Robert Glenn Bard, et al., Civil Action No. 1:09-cv-1473 (M.D. Pa.)

Pennsylvania-Based Investment Adviser Charged in SEC and Criminal Actions Receives Prison Sentence

A Pennsylvania-based investment adviser who was charged with fraud in an SEC enforcement action and later by criminal authorities has received a prison sentence of more than 21 years.

Robert G. Bard of Warfordsburg, Pa., was sentenced on July 31 by Sylvia H. Rambo of the U.S. District Court for the Middle District of Pennsylvania. Bard had been found guilty by a jury and convicted of 21 counts of securities fraud, mail fraud, wire fraud, bank fraud, and making false statements for defrauding his investment advisory clients between December 2004 and August 2009. Judge Rambo sentenced Bard to 262 months imprisonment and ordered him to pay $4.2 million in restitution to 66 victims.

The criminal case, filed by the U.S. Attorney’s Office for the Middle District of Pennsylvania on July 18, 2012, arose out of the same facts that were the subject of a civil injunctive action filed by the SEC on July 30, 2009. The Commission’s complaint alleged that defendant Bard, an investment adviser, and his solely-owned company Vision Specialist Group LLC had violated the federal securities laws through fraudulent misrepresentations regarding client investments, account performance and advisory fees, and by Bard’s creation of false client account statements, and forgery of client documents. On May 23, 2012, after granting summary judgment for the Commission, the U.S. District Court for the Middle District of Pennsylvania entered a final judgment against Bard and Vision Specialist Group finding both violated § 17(a) of the Securities Act of 1933, § 10(b) of the Exchange Act of 1934, and Rule 10b-5 thereunder, and §§ 206(1) and 206(2) of the Investment Advisers Act of 1940. In that judgment, the court also entered permanent injunctions for violations of those provisions, and held Bard and Vision Specialist Group jointly and severally liable for disgorgement, prejudgment interest, and civil penalties totaling $3,003,039.

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Do CFPs Have to Register as an Investment Adviser in Florida – Delary, Deerfield Beach, Boca Raton and Boynton Beach, Florida FINRA Arbitration, Litigation and Elder Abuse Attorney

Russell L. Forkey — Fri, 01 Aug 2014 10:54:46 GMT

Do CFPs have to register as an Investment Adviser in Florida – Delray, Boynton Beach, Lantana, Boca Raton and West Palm Beach FINRA Arbitration, Litigation and Elder Abuse Attorney:

Any person who for compensation refers, solicits, offers, or negotiates for the purchase or sale of investment advisory services is required to be registered in Florida, regardless of their professional designation as a Investment Adviser and/or Associated Person of a broker/dealer.

Please keep in mind that this information is being provided for informational purposes only. It is not designed to be complete in all material respects. Thus, it should not be relied upon as legal or investment advise. If the reader has any questions relating to this post, you should contact a qualified professional.

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Florida’s Requlation D and Rule 506 Offering Requirements – Boca Raton, West Palm Beach and Fort Lauderdale, Florida Securities Fraud and Misrepresentation FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Fri, 01 Aug 2014 10:42:33 GMT

Florida’s Regulation D and Rule 506 Offering Requirements – Boca Raton, Fort Lauderdale and West Palm Beach, Florida Securities Fraud and Misrepresentation FINRA Arbitration, Litigation and Elder Abuse Attorney:

What are Florida’s Regulation D and Rule 506 Offering requirements?

Regulation D and Rule 504 Public Offerings:

Sales must be made pursuant to the registration by Qualification (Intra-state or Merit Review) requirements of Chapter 517.081, Florida Statutes, and Rule 69W-700.001, Florida Administrative Code, and the dealer registration requirements of Chapter 517.12, Florida Statutes.

Rule 506 Filings (Offerings):

Florida does not require any Notice filing fee, or consent to service for Rule 506 Filings (Offerings), Chapter 517.071(1), Florida Statutes.

All sales of securities in Florida must be made by a properly registered Dealer (Chapter 517.12(1), Florida Statutes) or by someone utilizing an exemption provided by Chapter 517.12(3), Florida Statutes. This includes officers and employees of Rule 506 issuers.

There are two exemptions available under Chapter 517.12(3), Florida Statutes, for Issuers of Rule 506 Offerings:

1. Chapter 517.061(19) and 517.021(6)(b)6, Florida Statutes, and Rule 69W-500.016, Florida Administrative Code, requiring the offer and sale to be made by a bona fide employee of the issuer.

2. Chapter 517.061(11) and 517.021(6)(b)6, Florida Statutes, and Rule 69W-500.001-007, Florida Administrative Code, requiring the sale to be made in reliance upon a limited offering exemption.

Please keep in mind that the above information is being provided for informational purposes only. It is not designed to be complete in all material respects. Thus, it should not be relied upon as legal or investment advise. If the reader has any questions concerning the contents of this post, you should contact a qualified professional.

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Elder and Retirement Financial Abuse – How To Spot Investment Fraud – South Florida FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Sat, 26 Jul 2014 22:23:15 GMT

Boca Raton, Fort Lauderdale and West Palm Beach, Florida Elder and Retirement Financial Abuse FINRA Arbitration and Litigation Attorney:

Elder and retirees should think twice about investing if you spot any of these red flags of investment fraud:

Limited history of posts. Fraudsters can set up new accounts specifically designed to carry out their scam while concealing their true identities. Be skeptical of information from social media accounts that lack a history of prior postings or sending messages.
Pressure to buy or sell RIGHT NOW. Take the time to research the stock before you invest. Be skeptical of messages urging you to buy a hot stock before you “miss out” or to sell shares of a stock you own before the price goes down after negative news is announced. Be especially wary if the promoter claims the recommendation is based on “inside” or confidential information.
Unsolicited investment information or offers. Fraudsters may look for victims on social media sites, chat rooms, and bulletin boards. Exercise extreme caution regarding information provided in new posts on your wall, tweets, direct messages, e-mails, or other communications that solicit an investment or provide information about a particular stock if you do not personally know the sender (even if the sender appears connected to someone you know).
Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms. Check license and registration status by searching the SEC’s Investment Adviser Public Disclosure (IAPD) website or the Financial Industry Regulatory Authority (FINRA)’s BrokerCheck website.

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Christopher Plummer, Lex Cowsert and CytoGenix, Inc. – Microcap and Penny Stock Fraud and Misrepresentation Litigation and Arbitration Attorney

Russell L. Forkey — Sat, 19 Jul 2014 12:15:45 GMT

Boca Raton, Westin, Coral Springs, Plantation, Davie and Fort Lauderdale, Florida Microcap and Penny Stock Fraud and Misrepresentation Litigation, Arbitration and Elder Abuse Attorney:

Securities and Exchange Commission v. Christopher Plummer, Lex M. Cowsert, and CytoGenix, Inc., Civil Action No. 14-CV-5441 (LTS)

The Securities and Exchange Commission recently charged a serial con artist and a penny stock company CEO with misleading investors in a supposed vaccine development company by issuing false press releases portraying it as a successful venture when it was in fact a failing enterprise.

The SEC alleges that Christopher Plummer teamed up with the CEO of CytoGenix, Lex M. Cowsert, to defraud investors with extravagant claims about the microcap company’s revenue and other benefits flowing from a “shared revenue agreement” with Franklin Power & Light, an electricity provider supposedly operated by Plummer. However, Plummer’s entity was a complete sham, CytoGenix had actually lost all of its vaccine patents and other intellectual property in a lawsuit, and Plummer and Cowsert stole proceeds of CytoGenix stock offerings that they told investors would be used for energy production projects and other corporate purposes.

According to the SEC’s complaint filed against CytoGenix, Cowsert, and Plummer in federal district court in Manhattan, Plummer also spearheaded a separate scheme around the same time in 2010 involving another microcap company that similarly issued a rapid-fire series of press releases with bogus information. Those press releases touted a purported partnership with Plummer’s phony power company to own and operate solar energy farms across the country. In reality, the microcap issuer was in dire financial straits and lacked the financial or logistical capability to commercially produce a product of any kind let alone break ground on energy farms. The company continues to have no operations, customers, or revenues.

Trading in CytoGenix and the other microcap stock was suspended by the SEC as part of a mass trading suspension in 2011. The two companies are now either dormant or defunct. Plummer is currently serving a multi-year federal prison term for an unrelated fraud, and he also has two prior convictions for fraud offenses.

According to the SEC’s complaint, CytoGenix was in dire financial straits when Plummer approached Cowsert and proposed a partnership with the sham company he created, Franklin Power & Light. Cowsert agreed and began issuing a series of false press releases, including one touting the formation of a new CytoGenix subsidiary to operate as a joint venture with Plummer’s company to develop “biologically-based” technologies for energy production in untapped retail electrical markets. Cowsert had no basis for believing that Plummer’s company had the means to generate the revenue needed to fund such energy production technologies, yet he nonetheless prepared and authorized the CytoGenix press releases with the materially false and misleading information about Franklin Power & Light that Plummer supplied.

The SEC’s complaint further alleges that other CytoGenix press releases unrelated to the partnership with Plummer touted outdated test results and a non-existent new laboratory for testing the vaccine products that CytoGenix claimed to be developing. These materially false and misleading statements were made despite CytoGenix having lost its assets in litigation with two former employees, including the rights to various vaccine patents and other intellectual property featured in press releases. These CytoGenix press releases failed to disclose the loss of those critical assets.

According to the SEC’s complaint, Cowsert and Plummer further defrauded CytoGenix shareholders by misappropriating the proceeds of purported private offerings. Cowsert obtained approximately $91,000 in funds directly from CytoGenix investors by falsely telling them that they were investing in a private placement of CytoGenix stock, but no shares were ever issued to the investors. Cowsert asked the investors to make their checks payable to him personally, deposited the checks into his personal bank account, and used the funds to pay personal expenses. Meanwhile, Plummer defrauded a shareholder out of more than 6.5 million free trading shares of CytoGenix stock.

The SEC’s complaint charges Plummer, Cowsert, and CytoGenix with violating antifraud provisions of the federal securities laws. Plummer is additionally charged with violating Section 20(b) of the Securities Exchange Act of 1934. The SEC seeks permanent injunctions along with disgorgement, prejudgment interest, financial penalties, and orders barring Plummer and Cowsert from acting as officers or directors of a public company and from participating in a penny stock offering.

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South Florida – Certified Public Accountant Independence and Negligence Litigation and Arbitration Attorney

Russell L. Forkey — Tue, 15 Jul 2014 12:24:16 GMT

Boca Raton, Deerfield Beach, Delary Beach, Boynton Beach, Lantana, Lake Worth and West Palm Beach Certified Public Accountant and Public Accountant Independence and Negligence Litigation and Arbitration Attorney: SEC Charges Ernst & Young With Violating Auditor Independence Rules in Lobbying Activities

The Securities and Exchange Commission recently charged Ernst & Young LLP with violations of auditor independence rules that require firms to maintain their objectivity and impartiality with clients.

Ernst & Young agreed to pay more than $4 million to settle the charges.

The SEC’s order instituting a settled administrative proceeding finds that an Ernst & Young subsidiary lobbied congressional staff on behalf of two audit clients. Such lobbying activities were impermissible under the SEC’s auditor independence rules because they put the firm in the position of being an advocate for those audit clients. Despite providing the prohibited legislative advisory services on behalf of the clients, Ernst & Young repeatedly represented that it was “independent” in audit reports issued on the clients’ financial statements.

According to the SEC’s order, Ernst & Young’s subsidiary Washington Council EY (WCEY) impaired the firm’s independence in several lobbying actions:

WCEY sent letters signed by a senior executive of an Ernst & Young audit client to congressional staff, urging passage of certain legislation.
WCEY asked congressional staff to insert language into a bill that was favorable to the business interests of an Ernst & Young audit client.
WCEY met with congressional staff in order to defeat legislation detrimental to the business interests of an Ernst & Young audit client.
WCEY asked third parties to approach a U.S. senator in order to seek support for a legislative amendment sought by an Ernst & Young audit client.
WCEY marked up a draft of a bill by inserting an Ernst & Young audit client’s language and sending it to congressional staff.

According to the SEC’s order, Ernst & Young had issued a written independence policy intended to provide guidance on the provision of legislative advisory services to audit clients. However, Ernst & Young did not provide WCEY with formal, in-person training specifically tailored to the policy.

The SEC’s order finds that Ernst & Young committed violations of Rule 2-02(b)(1) of Regulation S-X; caused violations of Section 13(a) of the Securities Exchange Act of 1934 and Rule 13a-1; and engaged in improper professional conduct pursuant to Exchange Act Section 4C(a)(2) and Rule 102(e)(1)(ii) of the Commission’s Rules of Practice. The SEC’s order requires Ernst & Young to cease and desist from violating the auditor independence rules and from causing violations of the corporate periodic reporting provisions of the federal securities laws. The SEC also censured Ernst & Young and ordered payment of $4.07 million in monetary sanctions, including disgorgement of $1.24 million, prejudgment interest of $351,925.98, and a penalty of $2.48 million. The SEC took into consideration the remedial acts undertaken by Ernst & Young and its cooperation with SEC staff during the investigation. For example, Ernst & Young voluntarily issued new guidance in June 2012 restricting such legislative advisory services. The firm issued similar final guidance in May 2013.

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HLM Securities and Terrance Hennessy – Boca Raton, Florida Unapproved Outside Business Activity and Negligent Supervision FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Wed, 25 Jun 2014 00:52:54 GMT

June 2014 Disciplinary and Other FINRA Actions

Broker Check: http://www.finra.org/Investors/ToolsCalculators/BrokerCheck/

HLM Securities, Inc. (Chicago, Illinois) and Terrance Richard Hennessy (Valparaiso, Indiana) submitted a Letter of Acceptance, Waiver and Consent in which the firm was fined $100,000 of which $10,000 is joint and several with Hennessy. Hennessy was assessed a deferred fine of $50,000, which includes the $10,000 joint and several fine, and suspended from association with any FINRA member in any capacity for 18 months. Without admitting or denying the findings, the firm and Hennessy consented to the sanctions and to the entry of findings that although the firm was aware, Hennessy failed to provide written notice to the firm prior to or even subsequent to, his participation in the purchase of membership interests in limited-liability companies, as required by the firm’s written supervisory procedures. The findings stated that Hennessy’s failure to provide written notice of his participation in the private securities transactions, as well as the firm’s failure to include those transactions in its books and records, deprived FINRA of its ability to oversee Hennessy’s and the firm’s securities activities, since the firm did not have any record of those activities. (Case #2012034822601). To review the full release, please follow the above highlighted link.

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Your Best Memories and Robert Hurd – South Florida Ponzi Scheme and Securities Fraud FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Thu, 12 Jun 2014 11:44:32 GMT

South Florida, including Fort Lauderdale, Boynton Beach, West Palm Beach, Boca Raton and Deerfield Beach Ponzi Scheme and Securities Fraud FINRA Arbitration and Litigation Attorney:

Securities and Exchange Commission v. Robert Hurd, Your Best Memories International Inc. and Kenneth Gross, Civil Action No. 13-CV-04464-RGK (JCGx) (C.D. Cal. June 20, 2013)

Court Orders California Company and Its President to Pay Over $1.9 Million in Investment Scheme Involving Purported Alzheimer’s Treatment

The Securities and Exchange Commission recently announced that on June 10, 2014, a California federal court entered final judgments against Your Best Memories International Inc., a promoter of a purported Alzheimer’s treatment, its president, Robert Hurd, and Smokey Canyon Financial Inc., another company controlled by Hurd. Your Best Memories and Hurd, both of Los Angeles, California, were charged as defendants in a fraud action filed by the Commission in June 2013. The Commission alleged that they claimed to be in the business of raising money from investors on behalf of a Massachusetts-based company that was in the business of developing products intended to improve memory function in individuals suffering from Alzheimer’s disease and other conditions. The Commission charged Your Best Memories and Hurd with misleading investors about how their funds would be used and making misleading statements that one of the products touted to investors had received approval from the U.S. Food and Drug Administration as a treatment for Alzheimer’s disease. Smokey Canyon Financial, based in Reno, Nevada, was charged by the Commission as a relief defendant because it received investor funds.

According to the Commission’s complaint, filed on June 20, 2013, Your Best Memories and Hurd falsely told investors that their funds would largely be used to finance the development and marketing of products intended to improve memory function in individuals suffering from Alzheimer’s disease, dementia or memory loss. The Commission alleged that, unbeknownst to investors, a mere 17% of the funds raised were used for their intended purpose, while 37% of investor funds were funneled to Hurd or his company, Smokey Canyon Financial. The Commission also alleged that Your Best Memories and Hurd made Ponzi payments to investors (using investors’ principal to make payments purporting to be investment returns to other investors) and falsely stated that they had secured FDA approval to sell coconut oil as a treatment for Alzheimer’s disease, when, in fact, the FDA had never approved such a claim. The complaint alleged that, in total, Your Best Memories raised approximately $1.2 million from more than 50 investors in an unregistered securities offering.

The final judgments, entered by default by the United States District Court for the Central District of California, imposed permanent injunctions prohibiting Your Best Memories and Hurd from future violations of Sections 5(a) and (c) and 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934. Your Best Memories, Hurd, and Smokey Canyon Financial also were ordered to pay disgorgement of $963,000 and prejudgment interest of $34,170. In addition, Your Best Memories and Hurd were ordered jointly and severally to pay a civil penalty of $963,000.

On March 14, 2014, the Court entered a partial final judgment, by consent, against the other Defendant in the action, Kenneth Gross, of Porter Ranch, California, who was charged with selling Your Best Memories stock without being registered as a broker-dealer as required by the federal securities laws. The judgment permanently enjoined Gross from future violations of Sections 5(a) and (c) of the Securities Act and Section 15(a) of the Exchange Act, with disgorgement, prejudgment interest and civil penalties to be decided by the Court at a later date. The Commission also instituted a settled follow-on administrative proceeding against Gross on March 6, 2014, permanently barring him from the securities industry.

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Investment Newsletters – South Florida Investment Newsletter Fraud and Misrepresentation Litigation and FINRA Arbitration Attorney

Russell L. Forkey — Wed, 11 Jun 2014 01:23:25 GMT

Fort Lauderdale, Pompano Beach, Lighthouse Point, Deerfield Beach and Boca Raton, Florida Investment Newsletter Fraud and Misrepresentation Litigation and Arbitration Attorney:

Investment newsletters come in many forms. They may be found online or in hard copy; they may be available for a fee or free of charge. Some newsletters address general securities topics, such as which types of stocks, bonds, or funds might make good investments. Others may provide commentary and analysis about particular companies, investment products, or financial trends.

While many investment newsletters are legitimate, some are used to carry out schemes designed to deceive investors. Such schemes can include:

Touting – promoting a stock without properly disclosing compensation received for promoting the stock.
Pump and dump schemes – pumping up a company’s stock price by making false and misleading statements to create a buying frenzy, and then selling shares at the pumped up price.
Scalping – recommending a stock to drive up the stock price and then selling shares of the stock at inflated prices to generate profits.
Undisclosed conflicts of interest – falsely claiming to provide independent analysis or failing to explain conflicts of interest (or biases), including financial incentives, that may influence the investment recommendations.
False performance claims – misrepresenting the track record of the newsletter’s investment recommendations.

Some investment newsletters claim to be sources of unbiased information, when in fact the newsletter publisher will make a lot of money if the newsletter convinces investors to buy or sell particular stocks. Do not take comfort because a newsletter encourages you to purchase or sell a stock through your own brokerage account. Even if you do not give the newsletter publisher any money to place trades for you, the newsletter publisher may profit from your trading activity. For example, you may purchase a stock (causing the stock price to rise) and then the newsletter publisher may sell its shares of that stock (profiting at your expense).

If a newsletter promotes a particular stock, read carefully what the newsletter says about compensation it receives and look for these red flags:

No disclosures. Be suspicious if the newsletter does not disclose having received any compensation.
Vague disclosures. Be skeptical of newsletters that do not specifically disclose who paid them, the amount, and the type of payment.
Buried disclosures. Be wary if the newsletter’s disclosures are difficult to find or appear in tiny, hard-to-read print.
Questions about your stock purchases. Be careful if a newsletter representative asks you detailed questions about your stock purchases like how many shares you bought, when you purchased the shares, or which broker you used to buy the shares. The newsletter publisher may make money based on the amount of shares its subscribers buy.

Even if a newsletter makes specific disclosures about being compensated for promoting a stock, be aware that fraudsters may include such disclosures to create the false appearance that the newsletter is legitimate.

Fraudsters may also use newsletters as a way to get their foot in the door to pitch fraudulent investments by phone. Be careful if someone tries to get you to subscribe to a newsletter and then calls you with specific investment recommendations.

When considering any potential investment, watch out for these warning signs of investment fraud:

Promises of high investment returns. Be highly suspicious if the promoter guarantees you a high rate of return on your investment.
Pressure to buy RIGHT NOW. Be skeptical if the promoter pitches the investment as a “limited time only” opportunity, especially if the promoter claims to base the recommendation on “inside” or confidential information.
Sounds too good to be true. Exercise caution if the investment sounds too good to be true. Investments providing higher returns typically involve more risk.

Please keep in mind that the above information is being provided for educational purposes only. It is not designed to be complete in all material respects. Thus, it should not be relied upon as legal or investment advice. If you have any questions concerning the contents of this post, please contact a qualified professional.

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Fort Lauderdale, Boca Raton, Deerfield Beach and Pompano Beach, Florida Oil and Gas Fraud and Misrepresentation FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Wed, 30 Apr 2014 10:19:10 GMT

Fort Lauderdale, Boca Raton, Deefrield Beach and Pompano Beach, Florida Oil and Gas Fraud and Misrepresentation FINRA Arbitration and Litigation Attorney:

Securities and Exchange Commission v. Guardian Oil & Gas, Inc., Guardian Oil and Natural Gas, Inc., and Rick D. Mullins, Civil Action No. 3:14-cv-01533-L (N.D. Tx.)

SEC Charges Texas Resident and His Companies for Selling Fraudulent Oil and Gas Investments

On April 25, 2014, the Securities and Exchange Commission (“Commission”) filed civil securities fraud charges against Guardian Oil & Gas, Inc. (“Guardian”), Guardian Oil & Natural Gas, Inc. (“GONG”) and their principal, Rick D. Mullins. The charges stem from an alleged oil and gas offering fraud.

The Commission’s complaint, filed in the U.S. District Court for the Northern District of Texas, alleges that between August 2010 and June 2013, Mullins, Guardian, and GONG raised approximately $6.5 million through the fraudulent offer and sale of securities to investors in the form of limited partnership interests in oil and gas programs.

According to the complaint, Mullins and Guardian failed to disclose to investors Guardian’s deteriorating financial condition, including significant amounts owed on pre-existing bank loans. The Commission further alleges that defendants falsely represented to investors that their contributions would be used solely for the specific drilling project in which they had invested but instead, under Mullins’s direction, Guardian and GONG redirected investor funds for other unrelated purposes. The complaint also alleges that defendants falsely represented to investors that they would directly receive revenue from the sale of any oil and gas production from the project in which they were invested when, in truth, operators were deducting from production revenue expenses due on other unrelated projects, a process known as “net checking.” Moreover, according to the Complaint, Mullins made direct misrepresentations to investors. When, after collecting money from investors for one project and spending that money on unrelated expenses, Guardian was unable to obtain an interest in the oil and gas drilling project that it had purported to sell to investors, Mullins further lied to investors, telling them, among other things, that the well was unproductive and that Defendants had been approached by a possible purchaser of the partnership’s interest. The Commission alleges that Defendants never disclosed that the investors’ funds had been spent elsewhere and that Defendants had been unable to actually obtain an interest in the drilling project they sold.

The complaint alleges that Mullins, Guardian, and GONG violated Section 17(a) of the Securities Act of 1933 (Securities Act), and Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5 thereunder. The complaint seeks permanent injunctions and disgorgement of ill-gotten gains plus prejudgment interest against all Defendants, and civil penalties against Mullins.

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Stop Limit Order – Special Order and/or Trading Instruction – South Florida Broker/Dealer, Investment Advisor, Account Executive Breach of Fiduciary Duty, Breach of Contract, Mismanagement, Negligence and Negligent Supervision FINRA Arbitration Attorney

Russell L. Forkey — Sun, 20 Apr 2014 22:34:16 GMT

Special Orders and Trading Instructions – South Florida Broker/Dealer, Investment Advisor and Account Executive Breach of Fiduciary Duty, Breach of Contract, Mismanagement, Negligence and Negligent Supervision FINRA Arbitration and Litigation Attorney:

Special Orders and Trading Instructions:

In addition to market and limit orders, brokerage firms may allow investors to use special orders and trading instructions to buy and sell stocks. One common special order and trading instruction is the “stop-limit order.”

Stop-limit Order:

A stop-limit order is an order to buy or sell a stock that combines the features of a stop order and a limit order. Once the stop price is reached, a stop-limit order becomes a limit order that will be executed at a specified price (or better). The benefit of a stop-limit order is that the investor can control the price at which the order can be executed. Before using a stop-limit order, investors should consider the following: (a) as with all limit orders, a stop-limit order may not be executed if the stock’s price moves away from the specified limit price, which may occur in a fast-moving market, (b) short-term market fluctuations in a stock’s price can activate a stop-limit order, so stop and limit prices should be selected carefully, (c) the stop price and the limit price for a stop-limit order do not have to be the same price. For example, a sell stop limit order with a stop price of $3.00 may have a limit price of $2.50. Such an order would become an active limit order if market prices reach $3.00, although the order could only be executed at a price of $2.50 or better, (d) for certain types of stocks, some brokerage firms have different standards for determining whether the stop price of a stop-limit order has been reached. For these stocks, some brokerage firms use only last-sale prices to trigger a stop-limit order, while other firms use quotation prices. Investors should check with their brokerage firms to determine the specific rules that will apply to stop-limit orders.

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Timothy J. Coughlin, Oxford International Credit Union and Oxford International Cooperative Union – South Florida Internet Ponzi Scheme and Securities Fraud and Misrepresentation Litigation and Arbitration Attorney

Russell L. Forkey — Wed, 16 Apr 2014 09:50:04 GMT

South Florida Internet Ponzi Scheme and Securities Fraud and Misrepresentation FINRA Arbitration and Florida State and Federal Litigation Attorney:

Securities and Exchange Commission v. Timothy J. Coughlin, et al., Civil Action No. 1:14-cv-00562-WTL-MJD (S.D. Ind.)

SEC Charges Indiana Man for Defrauding Investors in “Credit Union” Ponzi Scheme

Recently, the Securities and Exchange Commission filed an action charging Indianapolis-based Timothy J. Coughlin, 63, and two entities that did business as “Oxford International Credit Union” or “Oxford International Cooperative Union” with conducting an Internet offering fraud in which investors lost millions of dollars by investing funds in a fictitious credit union. The complaint alleges that between June 2007 and December 2009, Coughlin and Oxford International Credit Union collected deposits from more than 5,000 investors exceeding $12.8 million dollars. Approximately 3,300 of the investors were U.S. residents, with victims residing in all 50 states and the District of Columbia. The SEC’s complaint alleges that Coughlin misappropriated investor money to pay personal expenses, fund unrelated business expenses, and make distributions to other investors in a classic Ponzi-scheme fashion.

According to the SEC’s complaint, to further the fraud, the defendants posted false information to investors’ online accounts to create the appearance that their deposits in the fake credit union were earning substantial daily investment returns. The Oxford International Credit Union website (www.oxfordicu.com), for example, showed investors that their deposits were purportedly earning investment returns that averaged, during the January 2007 through December 2009 period, 0.471% each trading day, equating to an approximately 356% average annual rate of return. According to the complaint, however, the defendants did not actually make investments with the members’ deposits sufficient to generate the returns they boasted. Coughlin and Oxford International Credit Union also falsely claimed that member accounts were insured by a private insurance company. Then, beginning in December 2008, Coughlin began operating a successor to Oxford International Credit Union, called Oxford International Cooperative Union, which also boasted bogus investment returns on its website (www.oxfordprivacygroup.com) its inception in late 2008 through December 2011.

The SEC’s complaint alleges that Coughlin misappropriated at least $5.97 million and used investor money for illegitimate purposes, including $1.57 million used for personal expenditures and $4.4 million (or approximately 35%) to pay other investors who had requested withdrawals from their Oxford International Credit Union accounts . Coughlin also transferred money from Oxford International Credit Union’s accounts to bank accounts he controlled in the names of two relief defendants.

According to the SEC’s complaint, in late 2008 and 2009, Coughlin began to deny investors’ requests for withdrawals from their accounts. To explain his refusal to allow investors to access their funds, Coughlin falsely claimed that Internal Revenue Service and foreign tax authorities had frozen Oxford International Credit Union and Oxford International Cooperative Union’s accounts.

In a parallel action, the U.S. Attorney’s Office for the Eastern District of Virginia today unsealed a criminal complaint against Coughlin.

The SEC’s complaint charges Coughlin, OICU Ltd. and OICU Investments Corp. with violating Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder and seeks disgorgement of all ill-gotten gains with prejudgment interest, civil penalties, conduct-based injunctions, and an officer-and-director bar against Coughlin. The SEC also seeks disgorgement and prejudgment interest from relief defendants American Quality Cleaning Services, Inc. (d/b/a “Oxford Privacy Group”) and Avocalon LLC.

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Corporate and High Yield Bonds – South Florida Corporate and High Yield Bond Breach of Fiduciary Duty and Unsuitability FINRA Arbitration and Litigation Attorney

Russell L. Forkey — Fri, 21 Mar 2014 10:57:23 GMT

Corporate and Corporate High Yield Bond Breach of Fiduciary, Unsuitability, Churining and Unauthorized Purchase and Sale FINRA Arbitration, Litigation and Probate Attorney:

If you are considering or if your account executive or investment advisor is soliciting you to purchase, hold or sell a corporate bond, you may wish to read this post to refresh your understanding of corporate bonds or, if you are an unsophisticated invesotr, arm youself with questions to ask your investment professional.

What Are Corporate Bonds?

A bond is a debt obligation, like an iou. Investors who buy corporate bonds are lending money to the company issuing the bond. In return, the company makes a legal commitment to pay interest on the principal and, in most cases, to return the principal when the bond comes due, or matures. To understand bonds, it is helpful to compare them with stocks. When you buy a share of common stock, you own equity in the company and will receive any dividends declared and paid by the company. When you buy a corporate bond, you do not own equity in the company. You will receive only the interest and principal on the bond, no matter how profitable the company becomes or how high its stock price climbs. But if the company runs into financial difficulties, it still has a legal obligation to make timely payments of interest and principal. The company has no similar obligation to pay dividends to shareholders. In a bankruptcy, bond investors have priority over shareholders in claims on the company’s assets to be distributed, if any.

Like all investments, bonds carry risks. One key risk to a bondholder is that the company may fail to make timely payments of interest or principal. If that happens, the company will default on its bonds. This “default risk” makes the creditworthiness of the company-that is, its ability to pay its debt obligations on time-an important concern to bondholders. As set forth below, this default risk has an effect on bond prices.

What are the basic types of corporate bonds?

Corporate bonds issued by listed and non-listed companies make up one of the largest components of the U.S. bond market, which is considered the largest securities market in the world. Other components include U.S. Treasury Bonds, other U.S. government bonds, and municipal bonds.

Companies use the proceeds from bond sales for a wide variety of purposes, including buying new equipment, investing in research and development, buying back their own stock, paying shareholder dividends, refinancing debt, including other bond series, and financing mergers and acquisitions. Call dates on a particular series of bonds are partially designed to assist in the refunding process.

There are a number of factors that you or your stockbroker in recommending the purchase or sale of a bond to you should take into consideration in determining whether a bond transaction is suitable for your investment objective and/or your asset mix. First, bonds can be classified according to their maturity, which is the date when the company has to pay back the principal to investors. Maturities can be short term (less than three years), medium term (four to 10 years), or long term (more than 10 years). Longer-term bonds usually offer higher interest rates, but may entail additional risks.

Second, bonds and the companies that issue them are also classified according to their credit quality. Credit rating agencies assign credit ratings based on their evaluation of the risk that the company may default on its bonds. Credit rating agencies periodically review their bond ratings and may revise them if conditions or expectations change. Based on their credit ratings, bonds can be either investment grade or non-investment grade. Investment-grade bonds are considered more likely than non-investment grade bonds to be paid on time. Non-investment grade bonds, which are also called high-yield or speculative bonds, generally offer higher interest rates to compensate investors for greater risk.

Third, bonds also differ according to the type of interest payments they offer. Many bonds pay a fixed rate of interest throughout their term. Interest payments are called coupon payments, and the interest rate is called the coupon rate. With a fixed coupon rate, the coupon payments stay the same regardless of changes in market interest rates. Other bonds offer floating rates that are reset periodically, such as every six months. These bonds adjust their interest payments to changes in market interest rates. Floating rates are based on a bond index or other bench-marks. For example, the floating rate may equal the interest rate on a certain type of Treasury Bond plus 1%. One type of bond makes no interest payments until the bond matures. These are called zero-coupon bonds, because they make no coupon payments. Instead, the bond makes a single payment at maturity that is higher than the initial purchase price. For example, an investor may pay $800 to purchase a five-year, zero-coupon bond with a face value of $1,000. The company pays no interest on the bond for the next five years, and then, at maturity, pays $1,000-equal to the purchase price of $800 plus interest, or original issue discount, of $200. Investors in zero-coupon bonds generally must pay taxes each year on a prorated share of the interest before the interest is actually paid at maturity.

What happens if a company goes into bankruptcy?

If a company defaults on its bonds and goes bankrupt, bondholders will have a claim on the company’s assets and cash flows. Consider what was just said. The bondholders will have a claim on and will not automatically receive the value of the bond. The bond’s terms determine the bond-holder’s place in line, or the priority of the claim. Priority will be based on whether the bond is, for example, a secured bond, a senior unsecured bond or a junior unsecured (or subordinated) bond. In the case of a secured bond, the company pledges specific collateral-such as property, equipment, or other assets that the company owns-as security for the bond. If the company defaults, holders of secured bonds will have a legal right to foreclose on the collateral to satisfy their claims, which collateral may or may not be sufficient to pay each bondholder in full. Bonds that have no collateral pledged to them are unsecured and may be called debentures. Debentures have a general claim on the company’s assets and cash flows. They may be classified as either senior or junior (subordinated) debentures. If the company defaults, holders of senior debentures will have a higher priority claim on the company’s assets and cash flows than holders of junior debentures. Bondholders, however, are usually not the company’s only creditors. The company may also owe money to banks, suppliers, customers, pensioners, and others, some of whom may have equal or higher claims than certain bondholders. Sorting through the competing claims of creditors is a complex process that unfolds in bankruptcy court.

What are the financial terms of a bond?

The basic financial terms of a corporate bond include its price, face value (also called par value), maturity, coupon rate, and yield to maturity. Yield to maturity is a widely used measure to compare bonds. This is the annual return on the bond if held to maturity taking into account when you bought the bond and what you paid for it.

A bond often trades at a premium or discount to its face value. This can happen when market interest rates rise or fall relative to the bond’s coupon rate. If the coupon rate is higher than market interest rates, for example, then the bond will likely trade at a premium.

What’s the relationship among bond prices, interest rates and yield?

It is important to remember that the price of a bond moves in the opposite direction than market interest rates-like opposing ends of a seesaw. When interest rates go up, the price of the bond goes down. And when interest rates go down, the bond’s price goes up. A bond’s yield also moves inversely with the bond’s price. For example, let’s say a bond offers 3% interest, and a year later market interest rates fall to 2%. The bond will still pay 3% interest, making it more valuable than newly issued bonds paying just 2% interest. If you sell the 3% bond, you will probably find that its price is higher than a year ago. Along with the rise in price, however, the yield to maturity for any new buyer of the bond will go down. Now suppose market interest rates rise from 3% to 4%. If you sell the 3% bond, it will be competing with new bonds that offer 4% interest. The price of the 3% bond may be more likely to fall. The yield to maturity for any new buyer, however, will rise as the price falls. It’s important to keep in mind that despite swings in trading price with a bond investment, if you hold the bond until maturity, the bond will continue to pay the stated rate of interest as well as its face value upon maturity, subject to default risk.

What are some of the risks of corporate bonds?

Credit or default risk:

Credit or default risk is the risk that a company will fail to timely make interest or principal payments and thus default on its bonds. Credit ratings try to estimate the relative credit risk of a bond based on the company’s ability to pay. Credit rating agencies periodically review their bond ratings and may revise them if conditions or expectations change.

The corporate bond contract (called an indenture) often includes terms called covenants designed to limit credit risk. For instance, the terms may limit the amount of debt the company can take on, or may require it to maintain certain financial ratios. Violating the terms of a bond may constitute a default. The bond trustee monitors the company’s compliance with the terms of its indenture. The trustee acts on behalf of the bondholders and pursues remedies if the bond covenants are violated.

Interest rate risk:

As discussed above, the price of a bond will fall if market interest rates rise. This presents investors with interest rate risk, which is common to all bonds, even U.S. Treasury Bonds. A bond’s maturity and coupon rate generally affect its sensitivity to changes in market interest rates. The longer the bond’s maturity, the more time there is for rates to change and, as a result, affect the price of the bond. Therefore, bonds with longer maturities generally present greater interest rate risk than bonds of similar credit quality that have shorter maturities. To compensate investors for this interest rate risk, long-term bonds generally offer higher interest rates than short-term bonds of the same credit quality. If two bonds offer different coupon rates while all of their other characteristics are the same, the bond with the lower coupon rate will generally be more sensitive to changes in market interest rates. For example, imagine one bond that has a coupon rate of 2% while another bond has a coupon rate of 4%. All other features of the two bonds-when they mature, their level of credit risk, and so on-are the same. If market interest rates rise, then the price of the bond with the 2% coupon rate will fall by a greater percentage than that of the bond with the 4% coupon rate. This makes it particularly important for investors to consider interest rate risk when they purchase bonds in a low-interest rate environment.

Inflation risk:

Inflation is a general rise in the prices of goods and services, which causes a decline in purchasing power. With inflation over time, the amount of money received on the bond’s interest and principal payments will purchase fewer goods and services than before.

Liquidity risk:

Liquidity is the ability to sell an asset, such as a bond, for cash when the owner chooses. Bonds that are traded frequently and at high volumes may have stronger liquidity than bonds that trade less frequently. Liquidity risk is the risk that investors seeking to sell their bonds may not receive a price that reflects the true value of the bonds (based on the bond’s interest rate and credit- worthiness of the company). If you own a bond that is not traded on an exchange, you may have to go to a broker when you want to sell it. In addition, the bond market does not have the same pricing transparency as the equity market, as the dissemination of pricing information is more limited for corporate bonds in comparison to equity securities such as common stock.

Call risk:

The terms of some bonds give the company the right to buy back the bond before the maturity date. This is known as calling the bond, and it represents “call risk” to bondholders. For example, a bond with a maturity of 10 years may have terms allowing the company to call the bond any time after the first five years. If it calls the bond, the company will pay back the principal (and possibly an additional premium depending on when the call occurs). One reason the company may call the bond back is if market interest rates have fallen relative to the coupon rate on the bond. That same decline in market interest rates would likely make the bond more valuable to bondholders. Thus, what is financially advantageous to the company is likely to be financially disadvantageous to the bondholder. Bondholders may be unable to reinvest at a comparable interest rate for the same level of risk. Investors should check the terms of the bond for any call provisions or other terms allowing for prepayment.

How can investors reduce their risks?

Investors can reduce their overall investment risks by diversifying their assets, if they so choose. Bonds are one type of asset, along with shares of stock (or equity), cash, and other investments. Investors also can diversify the types of bonds they hold. For example, investors could buy bonds of different maturities-balancing short-term, intermediate, and long- term bonds-or diversify the mix of their bond holdings by combining corporate, treasury, or municipal bonds. Investors with a greater risk tolerance may decide to buy bonds of lower credit quality, accepting higher risks in pursuit of higher yields. More conservative investors, however, may prefer to limit their bond holdings solely to high-quality bonds, avoiding riskier or more speculative bonds. Instead of holding bonds directly, investors can invest in mutual funds or exchange-traded funds (ETFs) with a focus on bonds. Investors should base their decisions on their individual circumstances.

How do I research my bond or bond fund investment?

A prospectus is the offering document filed with the SEC by a company that issues bonds for sale to the public in a registered transaction. Among other things, the prospectus relating to a corporate bond issuance describes the terms of the bond, significant risks of investing in the offering, the financial condition of the company issuing the bond, and how the company plans to use the proceeds from the bond sale. Similarly, if you are investing in a bond-focused mutual fund or ETF, these funds also prepare prospectuses detailing important information about the fund. Investors can ask their broker-dealer for the prospectus of any bond or bond fund in which they are interested. Prospectuses also are available to the public without charge on the SEC’s Edgar website. You can also find a bond fund’s prospectus at the bond fund’s website. Additionally, if you are considering purchasing a private company bond, you should make sure that you receive the same type of information that you are entitled to receive in a registered offering.

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Exchange Traded Funds (ETFs) – Florida Elder, Senior and Retirement Financial Abuse and Exploitation Unsuitability, Excessive Trading (Churning), Fraud, Misrepresentation and Breach of Fiduciary Duty FINRA Arbitration, Litigation and Probate Attorney

Russell L. Forkey — Fri, 21 Mar 2014 00:21:44 GMT

Exchange-Traded Funds (ETFs) – Florida Elder, Senior and Retirement Financial Abuse and Exploitation Unsuitability, Excessive Trading (Churning), Fraud, Misrepresentation and Breach of Fiduciary Duty FINRA Arbitration, Litigation and Probate Estate Attorney:

Exchange-Traded Funds (ETFs):

The solicitation of ETFs by brokerage firms and their account executives seeking to convince their clients to purchase and sell EFTs has recently been on the rise. Thus, claims of unsuitability, excessive trading (churning), fraud and misrepresentation relating to this activity has likewise been increasing. The active purchase and sale of ETFs has become a target rich environment for increased commissions. Because ETFs are offered by prospectus, it is important for the investor to make sure that he or she fully understands all of the terms the particular ETF, the ramifications of investing therein and the costs associated therewith, especially if actively traded.

This post only discusses Exchange-Traded Funds (ETFs) that are registered as open-end investment companies or unit investment trusts under the Investment Company Act of 1940 (the “1940 Act”). It does not address other types of exchange-traded products that are not registered under the 1940 Act, such as exchange traded commodity funds or exchange-traded notes.

Please keep in mind that the following information is general in nature and is not intended to address the specifics of your financial situation. Thus, it should not be considered legal or investment advice. When considering an investment, make sure you understand the particular investment product fully before making an investment decision.

What is an ETF?

ETFs are a type of exchange-traded investment product that must register with the SEC under the 1940 Act as either an open-end investment company (generally known as “funds”) or a unit investment trust. Since the first domestically offered ETF was created in the 1990s, ETFs have become increasingly popular as investment vehicles for both retail and institutional investors. Like mutual funds, ETFs offer investors a way to pool their money in a fund that makes investments in stocks, bonds, or other assets and, in return, to receive an interest in that investment pool. Unlike mutual funds, however, ETF shares are traded on a national stock exchange and at market prices that may or may not be the same as the net asset value (“NAV”) of the shares, that is, the value of the ETF’s assets minus its liabilities divided by the number of shares outstanding.

Initially, ETFs were all designed to track the performance of specific U.S. equity indexes; those types of index-based ETFs continue to be the predominant type of ETF offered and sold in the United States. Newer ETFs, however, also seek to track indexes of fixed-income instruments and foreign securities. In addition, newer ETFs include ETFs that are actively managed – that is, they do not merely seek to passively track an index; instead, they seek to achieve a specified investment objective using an active investment strategy. Certain ETFs can be relatively easy to understand. Other ETFs may have unusual investment objectives or use complex investment strategies that may be more difficult to understand and fit into an investor’s investment portfolio. For example, “leveraged ETFs” seek to achieve performance equal to a multiple of an index after fees and expenses. These ETFs seek to achieve their investment objective on a daily basis only, potentially making them unsuitable for long-term.

Things to Consider before Investing in ETFs:

ETFs are not mutual funds. Generally, ETFs combine features of a mutual fund, which can be purchased or redeemed at the end of each trading day at its NAV per share, with the intraday trading feature of a closed end fund, whose shares trade throughout the trading day at market prices. Intraday trading is described in greater detail below in the section on NAV and Intraday Value. Unlike with mutual fund shares, retail investors can only purchase and sell ETF shares in market transactions. That is, unlike mutual funds, ETFs do not sell individual shares directly to, or redeem their individual shares directly from, retail investors. Instead, ETF sponsors enter into contractual relationships with one or more financial institutions known as “Authorized Participants.” Authorized Participants typically are large broker-dealers. Only Authorized Participants are permitted to purchase and redeem shares directly from the ETF, and they can do so only in large aggregations or blocks (e.g., 50,000 ETF shares) commonly called “Creation Units.” To purchase shares from an ETF, an Authorized Participant assembles and deposits a designated basket of securities and cash with the fund in exchange for which it receives ETF shares. Once the Authorized Participant receives the ETF shares, the Authorized Participant is free to sell the ETF shares in the secondary market to individual investors, institutions, or market makers in the ETF.

The redemption process is the reverse of the creation process. An Authorized Participant buys a large block of ETF shares on the open market and delivers those shares to the fund. In return, the Authorized Participant receives a pre-defined basket of individual securities, or the cash equivalent.

Other investors purchase and sell ETF shares in market transactions at market prices. An ETF’s market price typically will be more or less than the fund’s NAV per share. This is because the ETF’s market price fluctuates during the trading day as a result of a variety of factors, including the underlying prices of the ETF’s assets and the demand for the ETF, while the ETF’s NAV is the value of the ETF’s assets minus its liabilities, as calculated by the ETF at the end of each business day. An ETF’s market price is generally kept close to the ETF’s end-of-day NAV because of the arbitrage function inherent to the structure of the ETF. This is described in greater detail below in the section on Arbitrage.

Some Differences between ETFs and Mutual Funds:

Some differences between ETFs and mutual funds include:

Because of differences in distribution and often lower transaction costs, total operating expense ratios for ETFs often have been historically less than those for corresponding mutual funds.

Many ETFs will disclose to the public their holdings every day, in addition to the quarterly disclosure required for all mutual funds.

ETFs can be more tax efficient than mutual funds because ETF shares generally are redeemable “in-kind.” This means that an ETF may deliver specified portfolio securities to Authorized Participants who are redeeming Creation Units instead of selling portfolio securities to meet redemption demands, which could otherwise result in taxable gains to the ETF. Typically, such taxable gains (if not otherwise offset by the ETF) would be passed through to the retail investor. Very generally, the federal income tax consequences of investing in ETFs and mutual funds are comparable.

Certain Regulatory Requirements:

Regulatory requirements include:

As investment companies, ETFs are subject to the regulatory requirements of the federal securities laws as well as certain exemptions that are necessary for ETFs to operate under those laws. Together, the federal securities laws and the relevant exemptions apply requirements that are designed to protect investors from various risks and conflicts associated with investing in ETFs.

For example, ETFs, like mutual funds, are subject to statutory limitations on their use of leverage and transactions with affiliates. ETFs also are subject to specific reporting requirements and disclosure obligations relating to investment objectives, risks, expenses, and other information in their registration statements and periodic reports. In addition, ETFs are subject to oversight by boards of directors.

NAV and Intraday Value:

An ETF (like a mutual fund) must calculate its NAV (the value of all its assets minus all its liabilities) every business day, which is done typically at the close of the New York Stock Exchange.

Approximately every 15 seconds throughout the business day, an ETF’s estimated NAV is calculated and distributed through quote services. This estimated NAV (called the IIV – for intraday indicative value – or IOPV – for intraday operative value – depending on the exchange on which the ETF lists) is unique to ETFs and is based on the estimated value of the ETF’s holdings (minus its liabilities) throughout the trading day.

You can find an ETF’s intraday value on various financial services websites, many of which are familiar to the general public. Often an ETF’s intraday value may be found by searching the ETF’s ticker symbol followed by “.IV”; however this will vary depending on the service used. You should check with the financial service to find out how it makes an ETF’s intraday value available.

Premiums and Discounts:

For a variety of reasons, an ETF’s market price may trade at a premium or a discount to its underlying value. When an Authorized Participant identifies that an ETF’s shares are trading at either a premium or discount to their estimated net asset value, it may engage in trading strategies that are expected to result in the market price of an ETF’s shares moving back in line with its underlying value. As noted below in more detail, these actions by Authorized Participants, commonly described as “arbitrage opportunities,” are designed to keep the market-determined price of an ETF’s shares close to its underlying value. The premiums and discounts for specific ETFs may vary over time. Information about an ETF’s historical premiums and discounts can be found either in the ETF’s full prospectus or on its website.

Arbitrage:

Arbitrage is the practice of taking advantage of a price differential between two or more markets. An arbitrage opportunity is inherent in the ETF structure because the ETF’s intraday market price fluctuates during the trading day. Due to this fluctuation, the ETF’s intraday market price may not equal the ETF’s end-of-day NAV. Authorized Participants can arbitrage this difference (and make a profit) because they can trade directly with the ETF at NAV as well as on the market. The expected result of the arbitrage activity is that the market value of the ETF moves back in line with the ETF’s NAV per share and investors are able to buy ETF shares on an exchange at a price that is close to the ETF’s NAV per share.

Types of ETFs:

Index-Based ETFs:

Most ETFs trading in the marketplace are index-based ETFs. These ETFs seek to track a securities index like the S&P 500 stock index and generally invest primarily in the component securities of the index. For example, the SPDR, or “spider” ETF, which seeks to track the S&P 500 stock index, invests in most or all of the equity securities contained in the S&P 500 stock index. Some, but not all, ETFs may post their holdings on their websites on a daily basis.

Increasingly, ETFs are based on indexes that are designed to track specific market sectors. Thus, an ETF may be based on an index specifically designed to meet the ETF sponsor’s customers’ interests. Generally, although some information about the index (including, for some, the methodology used to determine what securities will be included in the index) is available, the specific component securities making up the index may or may not be.

Leveraged, inverse, and inverse leveraged ETFs may be considered by some to be index-based ETFs because they seek to deliver daily returns that are multiples (or inverse multiples) of the performance of the index or benchmark they track.

In addition, like index-based mutual funds, ETFs with seemingly similar benchmarks can actually be quite different and can deliver very different returns. For example, the S&P 500 is capitalization weighted, meaning the larger companies make up a much higher percentage of the index than the smaller companies. However, some ETFs will track an S&P 500-styled index that is equal-weighted, meaning all the companies have equal representation on the index, irrespective of the size of the company. Although these two benchmarks may seem similar, they provide very different returns.

Actively Managed ETFs:

Actively managed ETFs are not based on an index. Instead, they seek to achieve a stated investment objective by investing in a portfolio of stocks, bonds, and other assets. Unlike with an index-based ETF, an adviser of an actively managed ETF may actively buy or sell components in the portfolio on a daily basis without regard to conformity with an index.

Actively managed ETFs are required to publish their holdings daily. Because there is no index that can serve as a point of reference for an actively managed fund’s holdings, publishing the specific holdings allows the arbitrage mechanism to function. As explained above in the section on Arbitrage, this arbitrage mechanism generally keeps the market price of the ETF shares close to their NAV.

Final thoughts that you should consider before making an EFT investment:

Before investing in an ETF, you should read both its summary prospectus and its full prospectus, which provide detailed information on the ETF’s investment objective, principal investment strategies, risks, costs, and historical performance (if any). The SEC’s EDGAR system, as well as Internet search engines, can help you locate a specific ETF prospectus. You can also find prospectuses on the websites of the financial firms that sponsor a particular ETF, as well as through your broker.

Be sure to do your research before purchasing an ETF. Before purchasing an ETF, you may wish to think about:

•· How the ETF achieves its stated objectives and whether those objectives are consistent with your goals.

•· Whether the risks associated with a particular ETF are within your tolerance for risk.

•· The amount of brokerage commissions you may pay when buying and selling ETF shares.

•· The other costs of owning an ETF, such as annual operating fees and expenses, and to what extent those fees have historically affected, and may affect, the ETF’s performance.

•· Whether your investment needs are better served by investing in an ETF or in a corresponding mutual fund.

•· Do not invest in something that you do not understand. If you cannot explain the investment opportunity in a few words and in an understandable way, you may need to reconsider the potential investment.

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