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1. FAIR DEALING – A stockbroker has a fundamental responsibility for fair dealing. The securities industry requires a stockbroker to treat his customer in a fair and honest manner. Stockbrokers are also subject to the rules of self-regulatory organizations such as the National Association of Securities Dealers (NASD). For example, the NASD Rules of Fair Practice impose the following standard upon brokers: “A member, in the conduct of his business shall observe high standards of commercial honor and just and equitable principles of trade.” This standard, along with other NASD rules is legally enforceable as the standard to which investors are entitled to depend.  The cornerstone of this ethics rule is Rule 2110.  The basis of this rule is nothing less than Section 15A of the Securities Exchange Act of 1934 which requires the NASD, as a registered securities association, to have and enforce rules that “promote just and equitable principles of trade”.  One court has suggested that Rule 2110 is to ensure “professionalism”. The SEC has commented that the rule gives the NASD authority to impose sanctions for “moral standards” even if there is no “unlawful” conduct.  The NASD itself has stated that it applies when there is “bad faith”.  Rule 2110 is/has been applied to numerous types of securities related activities, whether or not there is a violation of a more specific, companion provision of the NASD rules.  For example, in one decision, Alaska securities regulators found that the broker had violated the rule by 1) having a customer sign and date a blank new account form; 2) delaying (for three weeks) the execution of the investment program to which the customers had agreed; 4) failing to return phone calls of the customer promptly to discuss concerns of the customer; and 5) failing to promptly notify the firm’s compliance department and keep it informed.  Brokers also have violated Rule 2110 when they have:  Sold securities that were neither registered nor exempt from registration: Sold securities pursuant to private placement memoranda that contained material misrepresentations and omissions; Improperly withheld customer funds and “deliberately” took advantage of an unsophisticated customer; Recommended purchase of speculative warrants; Failed to disclose the solicitation of outside business activities; Induced an elderly customer to make a large, unsecured loan; Delayed refunding customer funds to customers; Forged signatures on documents; and Used customer funds for personal benefit rather than the customer’s benefit.  Obviously, Rule 2110 does have a significant reach.

     Another example of bad faith is fraudulent concealment. The elements of fraudulent concealment are: (1) the respondent must have concealed or suppressed a material fact; (2) the respondent must have been under a duty to disclose the fact to the claimant; (3) the respondent must have intentionally concealed or suppressed the fact with the intent to defraud the claimant; (4) the claimant must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) the claimant must have sustained damages as a result of the concealment or suppression of the material fact.  See Marketing West, Inc. v. Sanyo Fisher (USA Corp. 6 Cal. App. 4th 603, 612-13 (1992).

     In California, there are four circumstances in which non-disclosure or concealment may constitute actionable fraud: (1) when the respondent is in a fiduciary relationship with the claimant (2) when the respondent has exclusive knowledge of material facts not known to the claimant; (3) when the respondent actively conceals a material fact from the claimant; and (4) when the respondent makes partial representations but also suppresses some material facts. LiMandri v. Judkins, 52 Cal. App. 4th 326,336 (1997).

2. FIDUCIARY DUTY – THE DUTY OF LOYALTY – Fiduciary Duty is the responsibility of care, disclosure and loyalty that a broker/brokerage firm has the obligation to provide to its customers.  Brokerage firms and brokers then owe this fiduciary duty to their customers. See Duffy v. Cavalier (1989) 215 Cal. App. 3d 1517 at p. 1533, 264 Cal. Reptr. 740,751; Hobbs v. Bateman Eichler, Hill Richards, Inc. (1985) 164Cal. App. 3d 174, 201-202, 210 Cal. Reptr. 387, 403-404.  See also, e.g. , Conway v. Icahn & Co.,  1616 F. 3d 504 (2nd Cir. 1994)  (finding that the relationship between a stockbroker and the customer is that of principal and agent and is fiduciary in nature).  See, also, Paine, Webber, Jackson & Curtis, Inc. v. Adams, 718 P. 2d 508 (Colo. 1986).  A  fiduciary relationship exists when one person is under a duty to act for or give advice for the benefit of another upon matters within the scope of the relationship.  See Wolf v. Superior Court (2003), 107 Cal.App.4th, 25, 29:  “A fiduciary relationship is ‘any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party.  Such a relation ordinarily arises where confidence is reposed by one person in the integrity of another, and in such a relation the party in whom confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent…….’ ”   A fiduciary relationship can arise when one party occupies a superior professional, business, or personal relationship.  Moses v. Diocese of Colorado,  863 P.2d 310 (Colo. 1993).  “The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach.”  (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal. App.4th 1022, 1044: Stanley v. Richmond (1995) 35 Cal. App.4th 1070, 1086).  See City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 68 Cal. App. 4th 445, 483 (1998).  To be charged with a fiduciary obligation, a person must knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.  See City of Hope Nat. Medical Center v. Genentech, Inc., 43 Cal. 4th 375, 385 (2008).  Although a fiduciary relationship may not exist based upon the legal relationship, one may exist based on the factual circumstances of their relationship.  See Persson v. Smart Inventions, Inc. 125 Cal. App. 4th 1141, 1159-62 (2005).  Because stockbrokers make their money through commissions, an inherent conflict can exist between the broker’s interests and those of the customers. However, the brokers must always place the interests of the customer first. This fiduciary duty to the customer must be paramount. For instance, trading frequently can become an issue. The broker should only recommend trades that meet the needs of the customer, not merely those that generate commissions for himself. Excessive trading by a broker for the sake of increasing commissions is known as “churning” and is illegal.  This obligation to refrain from acquiring any interest adverse to that of a principal precludes the agent from personally benefiting from secret profits, competing with the principal or obtaining an advantage from the agency for personal benefit of any kind.  The broker must treat the client with utmost care.  The agent is bound to the higher standard of a professional in the field which extends the standard of duty to investigate within the profession, to ensure the maximum protection and information be provided to the principal.  The agent must act with integrity.  That is he must display soundness of moral principle and character and demonstrate fidelity and good faith.  This duty  includes total truthfulness and prohibits any advantage over the principal obtained by the slightest misrepresentation, concealment, threat or adverse pressure of any kind.  This would be especially true with respect to recommending the sale of proprietary products to customers i.e. securities sold out of the inventory of, and or manufactured by the broker’s securities firm.  The above obligations define the most important responsibility of a broker to his client…fiduciary duty.  In Moak v. Sloy, a private arbitration in Oregon on 9-26-02, concerning a sophisticated investor’s non-discretionary concentrated technology portfolio, the arbitrators unanimously awarded the claimant multi-million dollar damages against the broker/CFP.  The panel stated in its 13 page opinion “Mr. Sloy was a certified financial planner who worked exclusively for high net worth clients.  Mr. Sloy earned substantial compensation from Moak and others in exchange for the benefit of his training and financial acumen.  Mr. Sloy was, in short, well paid to be a gatekeeper, not a cheerleader for prevailing market sentiment or foolhardy strategies proposed by his clients”.  The (broker’s fiduciary duty is to “manage the account as dictated by the customer’s needs and objectives, to inform of risks in particular investments, to refrain from self-dealing, to follow order instructions, to disclose self-interests and to stay ahead of market changes”)  PaineWebber, Inc. v. Vorhees, 891 S.W. 2d, 126,130 (MO 1995).  Should there be any doubt of the brokers fiduciary duty in all cases, consider the following;  in the matter of Lawrence R. Leeby, Exchange Release No. 3450, 13 SEC 499, 1943 WL 29813 (1942).  While the cases that discuss and found the fiduciary relationship to exist may have arisen under factual circumstances involving churning, nondisclosure and improper advise, among others, whereas only a failure to follow a customer’s instructions is present herein, it is submitted that the nature of the fiduciary relationship is nevertheless unchanged and applicable, and that only the scope of the fiduciary duty may be affected.  In August, 2003,  an administrative complaint was filed by the Massachusetts Securities Division against Morgan Stanley DW, Inc. (No. E-2003-53) for placing pressure on brokers and managers to push proprietary mutual funds (Partnered and Van Kampen) on a basis that “amounted to extortion”. In addition to the 12b-1 fees, an extra 10% was paid for the sale of these funds, plus additional bonuses and not disclosed to clients. This relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another.  A fiduciary relationship requires one to exercise the utmost good faith and fair dealing when acting on another’s behalf.  See Leboce v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 709 F.2d. 605,607 (1983), Vulcinich v. Paine, Webber, Jackson & Curtis, Inc., supra, Duffy v. Cavalier, 215 Cal. App. 3d 1517 (1989), Mars v. Wedbush Morgan Securities, Inc., 231 Cal. App. 3d 1608 (1991), Pedott v. Goldinger, 1998 U.S. Dist. LEXIS 4259 (1998).  The Wall Street Journal put it succinctly on January 9, 2004 when it stated, “Under securities laws, brokers are held to the high standard of trusted financial advisors, not just salespeople, and must either offer objective advice or properly disclose any serious conflicts”.  The statute of limitations for breach of fiduciary duty is four years.  (Code of Civil Procedure # 242;David Welch Co., v. Erskine & Tulley (1988) 203 Cal. App. 3d 884,893 (“[W]here a cause of actions is based on a defendant’s breach of fiduciary duties, the four-year catchall statute set forth in code of Civil Procedure, section 343 applies.”)  Where a fiduciary obligation is present, the courts have recognized a postponement of the accrual of the cause of action until the beneficiary has knowledge or notice of the act constituting a breach of fidelity.  (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1Cal.3d 586, 596; Sherman v. Lloyd (1986 181 Cal. App.3d 693,698; Schneider v. Union Oil Co. (1970) 6 Cal. App.3d 987, 994).  The existence of a trust relationship limits the duty of inquiry.  “Thus, when a potential plaintiff is in a fiduciary relationship with another individual, that plaintiff’s burden of discovery is reduced and he is entitled to rely on the statements and advice provided by the fiduciary.” (181 Cal. App.3d at p. 699, and “[s]ince [plaintiff] was in a fiduciary relationship with [defendant], he was entitles to rely on [defendant’s] statements concerning the propriety of the investment structure.  As such, [plaintiff’s] cause of action did not accrue until he learned that the investment structure may have been improperly created.” (Hobbs v. Bateman Eichler, Hill Richards, Inc. (1985) 164 Cal. App.3d 174Id at pp. 201-202).  Where the plaintiff is not under such duty to inquire, the limitations period doesnot begin to run until plaintiff actually discovers the facts constituting the cause of action, even though the means for obtaining the information are available. (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 438)   The distinction between the rules excusing a late discovery of fraud and those allowing late discovery in cases “in the confidential relationship category is that in the latter situation the duty to investigate may arise later by reason of the fact that the plaintiff is entitled to rely upon the assumption that his fiduciary is acting in his behalf” Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 131); also see Eisenbaum v. Western Energy Resources, Inc. (1990) 218 Cal. App.3d 314. In PaineWebber, Inc. v. Voorhees, 891 S.W.2d 126, 130 (MO 1995) The Supreme Court of Missouri unanimously ruled that, ” stockbrokers owe customers a fiduciary duty.  The Court said that this fiduciary duty includes at least these obligations:  to manage the account as dictated by the customer’s needs and objectives; to inform of risks in particular investments; to refrain from self-dealing; to follow order instructions; to disclose any self-interest; to stay abreast of market changes; and to explain strategies”.  See also these cites indicating that in making recommendations, brokers occupy a fiduciary status – Robert Joseph Kernweis, 2000 WL 33299605 at FN 82 (N.A.S.D.R.2000); John M. Reynolds,50 SEC Docket 624, 630 (Dec. 4, 1991); Dale E. Frey, 79 W.E.C. 1727, 2003 WL 245560 at *23 (2003).

     Brokers are professionals, not just salesmen.  Hermann v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 17 Wash. App. 626,630,564 P.2d 817 (1977)

     A broker/dealer owes a fiduciary to a retail customer “[T]he duties of a securities broker are, if anything, more stringent than those imposed by general agency law.  All that is necessary [to show fraud based on those duties] is to hold defendant to standards that would govern an agent for the sale of potatoes.”

     The prospectus defense does not apply to defeat a claim for a breach of fiduciary duty cause of action because this action does not require reliance as an element.  The elements of a cause of action for breach of fiduciary duty are (1) the existence of a fiduciary duty; (2) the breach of the fiduciary duty; and (3) damage proximately caused by the breach.  Stanley v. Riicmond, 41 Cal Rptr. 2d 768,776 (Ct. App. 1995); see also Brown v. Brewer, 2009 U.S. Dist.LEXIS 47535 at #7-8(C.D. Cal. May 29, 2009); Malone v. Briincat, 722 A.2d5,12 (Del. 1993) (stating that causation is not an element of an action for breach of the fiduciary duty of disclosure).

     Regarding the lack of reliance required in a fiduciary obligation, one noted commentator has explained:

         This missing element of reliance is perhaps one of the more interesting and often misunderstood aspects of the fiduciary obligation.  Although many cases discuss the question of whether such reliance was reasonable under the circumstances, the fiduciary relation does not require reliance, reasonable or otherwise.  one scholar expressed this point quite clearly when he wrote, “the law entitles the entrustor to rely on the fiduciary’s trustworthiness.  The entrustor is therefore not required to show that he actually relied on the fiduciary and the fiduciary has the burden of justifying self-dealing transactions.  Cecil j. Hunt, II, The Price of Trust: An Examination of Fiduciary Duty and the Lender-Borrower Relationship, 29 WAKE FOREST L. REV. 719, 731 (1994) (citing Tamar Frankel, Fiduciary Law, 71 CAL. L. REV. 795, 824-25(1983) (emphasis added).  And Professor Joseph Long, a leading commentator on blue-sky laws, explained:  “The investor has no due diligence obligation to make any investigation concerning the investment or to verify any information.  The Securities Act was intended to reverse the age-old concept of caveat emptor and replace it with the concept of caveat venditor (or seller beware).  Therefore, the investor is not charged with information which he might have acquired or with constructive knowledge.  In construing California’s Blue Sky Act (known as Corporate Securities Law section 25000, California courts have consistently concluded that reliance is not an element.  In Bowden v. Robinson, 136 Cal. Rptr. 871, the court stated that sections 25400 and 25500 :”conspicuously avoid the requirement of ‘actual reliance’.  The legislature is again expressing its intention to afford the victims of securities fraud with a remedy without the formidable task of proving common law fraud [which requires reliance].

3. DISCLOSURE – A broker also has a duty to disclose all material information related to an investment recommendation. In California, this duty is valid, irrespective of the sophistication of the investor, Duffy v. Cavelier, 215 Cal. App. 3d 1517, 1533 (1989)! The California Supreme Court held that where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud.  See Neel v. Magana, Olney, Levy, Cartwright & Gelfand, 6 Cal. 3d 176, 188-89 (1971).  This means all information that may be reasonably relevant to an investor in making an informed investment decision. Also, a broker has an obligation to disclose the various risks of an investment recommendation. It is the settled law of California and elsewhere, that “[Where] there exists a relationship of trust and confidence, it is the duty of one in whom the confidence is reposed to make full disclosure of all material facts within his knowledge relating to the transaction in question and any concealment of material facts is a fraud.” Estate of Shay (1925) 196 Cal. 355,365; Martin v. Martin (1952) 110 Cal. App.2d 228, 233; Daily v. Superior Court (1935) 4 Cal. App.2d 127, 131-132) “Where there is [such] a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action.” (Stafford v. Schultz (1954) 42 Cal.2d 767,777; Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal. 2d 226, 235; and see Kruse v. Miller (1956) 143 Cal. App. 2d 656, 659-660).  California law defines deceit to include “the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact. “Cal. Civ. Code #1710.   In California, there are four circumstances in which non-disclosure or concealment may constitute actionable frand:  (1) when the defendant/respondent is in a fiduciary relationship with the claimant/plaintiff; (2) when the respondent/defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant/respondent  actively conceals a material fact from the plaintiff/claimant; and (4) when the defendant/respondent makes partial representations but also suppresses some material facts.  KuNabdru v, Hydjubsm 52 Cal. App. 4th 326 336 (1997).

     Brokers must be truthful in all communications with customers. Nothing material may be left out of these communications with investors.  A fact is material if  “a reasonable investor might have considered [it] important in the making of [his] decision.”  Affiliated Ute Ccitizens v. United States, 406 U.S. 128, 153-54 (1972).  Materiality is a fact-specific issue that is ordinarily left up to the trier of fact, see  in re Apple Computer Secs. litig., 886 F.2d 1109, 1113 (9th Cir. 1989) cert. denied, 496 U.S. 943 (1990).  Essentially, their communications should provide a sound basis for evaluating any recommended securities. Exaggerated, false or misleading statements are flatly prohibited.  When a registered representative recommends the purchase or sale of a stock to a customer, he or she must not only avoid affirmative misstatements, but must also disclose material adverse facts about which the salesperson is, or should be, aware.  Particular care should be taken with respect to the accuracy and completeness of information concerning low-priced, speculative securities.  In this connection, members should focus on the completeness of disclosure concerning securities issued by companies whose ability to operate as a going concern is subject to question or contingent on gaining additional financing.  This includes disclosure of any conflicts of interest that could influence the salesperson’s recommendations or the customer’s decision to purchase or sell the security. (NASD Notices to Members # 96-32 & # 96-60)  Additionally, brokers on occasion receive extra compensation for emphasizing certain products.  Examples would be the firm’s own proprietary products or certain mutual funds during IRA season!  Several mutual funds offer full dealer re-allowance to highlight a new fund or raise sales early in the year as investors beef up their IRA’s to reduce their tax bills.  Here is how re-allowance works:  Funds that use a broker to sell their shares usually add a sales charge, or “load”, either at the time of sale or later.  The majority of that money goes to the brokerage firm and the broker’s commission.  But a portion, usually between 0.25% and 0.50% of the money invested, goes to the fund company.  When the company offers full dealer re-allowance, however, it pays that money to the brokerage firm, which may share the windfall with its brokers.  Customers usually aren’t told about such added commissions unless they ask, whereby it can be argued that these incentives can tempt brokers to choose personal gains over a client’s best interest.  Since this re-allowance doesn’t result in an additional fee to the investor, many are unaware of this incentive.  It is usually only disclosed in the small print – securities regulators require that these deals be noted in a fund’s prospectus or statement of additional information.  In the Spring of 2002, mutual fund families offering such dealer incentives included MFS Investments, Oppenheimer Funds, and Zurich Scudder Investments.  Best practice brokers should always disclose these sales incentives to their customers to uphold their responsibilities of fair dealing.  An agent has a duty “to disclose to the principal all material facts fully and completely.  A fact is material…if it is one which the agent should realize would be likely to affect the judgment of the principal in giving his consent to the agent to enter into a particular transaction on the specified term “[Citation]” (Rattray v. Scudder (1946) 28 Cal.2d 214, 224; Jorgensen v. Geach ‘N’ Bay Realty, Inc. 1981 125 Cal.App.3d 155,162).

     The full extent of these disclosure duties and obligations are delineated by the broker/dealers’ industry organization, the Securities Industry Association (SIA) an association of over 600 member firms which states that its members are obligated to:

     *  inform customers of clear measures of risk for a specific time period;

     *  know the customer’s objectives and risk tolerances;

     *  apprise the customer of significant conflicts of interest identified in a financial relationship between an investor and his or her broker-dealer or account representative;

     *  provide the customer with professional assistance to help clarify investment goals and risk tolerance; and

     *  present reasonable investment alternatives designed to meet those expectations, and disclose the comparative risks, benefits, and costs*.

And that customers are entitled to:

     *costs and fees (and their effect) that are clearly stated;

     *  receive competent and courteous service and advice;

     *  be provided with responsible investment recommendations based on personal objectives, time horizon, risk tolerance, and other factors; and

     *  rely on the firm’s assistance in setting realistic expectations about the long-term performance and associated risks of various securities

*  See SIA Best Practices, Investor Rights (emphasis supplied).

4. CONTROL/TRADING AUTHORIZATIONS – In non-discretionary accounts, it is critical to determine who is in control of the trading in the account.  There are a number of factors that determine who is in control of the account, the broker or the client.  Direct Control – This may exist in a non-discretionary account where the broker has been servicing the customers account for a long period of time, actively advising, communicating frequently, and providing data and research reports concerning various companies and where the customer has regularly relied and acted upon the broker’s advice and information.  Indirect Control – The “naive” or inexperienced, unsophisticated investor does not have the ability to understand the difference between various available investment vehicles (e.g. common or preferred stocks, bonds, options, commodities, etc.) and has difficulty understanding the difference between various types of accounts, or is unable to comprehend investment advice, therefore making him dependent upon his broker.  This type of relationship often occurs in a situation where there exists a close personal or familiar relationship between the customer and his broker.  Effective control of an account can exist, then, without formal discretionary authority.  This can occur even if the client is consulted before every transaction, but, for whatever reason (e.g. lack of sophistication or heavy reliance on the broker’s judgment), almost always gives approval of proposed trades.  NASD – PUBLICATION, In the Matter of District Business Conduct Committee District No. 1 Complainant, v. Daniel Wright Sisson, Menlo Park, California, Respondent; BEFORE THE NATIONAL ADJUDICATORY COUNCIL.  NASD REGULATION, INC., (November 18, 1998),   “Sisson exercised de facto control over both KP’s and ED’s accounts during the periods in question.  As noted earlier, Sisson admitted that both customers habitually followed his recommendations and rarely took affirmative steps to direct the trading in their own accounts.  In fact, the evidence shows that neither KP nor ED was sophisticated or experienced enough to evaluate effectively Sisson’s complicated strategy of purchasing high-yield securities using margin.  The finding that Sisson controlled ED’s account is bolstered by the fact that the trading activity in the account changed little when RD, a sophisticated and active investor, died.”

The law imposes additional extra-contractual duties on brokers who take unfair advantage to their customers’ incapacity or simplicity.  Kwiatkowski, 306 F.3d at 1308.  These extra-contractual duties are imposed upon such brokers via the theory of de facto control.  De facto  control will be deemed to have occurred where, in reviewing the course of dealing between the parties, the circumstances are such as to effectively render the client dependent upon the broker.  Kwiatkowski, 306 F. at 1308.  These special circumstances exist where, for example the client has impaired faculties, or has a closer than arms-length relationship with the broker, or who is so lacking in sophistication that de facto control of the account is deemed to rest in the broker.  When de facto control is  exercised by the financial advisor, the broker clearly owes the customer not only a fiduciary duty with regard to each individual transaction but also owes a fiduciary duty, on an ongoing basis, to the total account, which includes all of the broad fiduciary duties that are owed by brokers handling discretionary accounts.  See Lieb v. Merrill Lynch, Pierce, Fenner & Smith, 461 F.Supp. 951, 954 (E.D. Mich. 1978); see also Kwiatkowski, 306 F.3d at 1308-9; Hecht v. Harris, 430 F. 2d 1202 (9th cir. 1970) Davis v. Merrill Lynch, Pierce, Fenner & Smith 906 F.2d 1206, 1216-17 (8th Cir. 1990).

In the matter of Saundra Logay, Administrative Proceeding, File No. 3-8969, Before the Securities & Exchange Commission; Initial Decision – Release No. 159 (January 28, 2000),  “A formal discretionary account is not needed to demonstrate control.  Mihara, 619 F.2d at 814; Newburger, Loeb & Co. v. Goss, 563 F.2d 1057, 1069-70 (2d Cir. 1977).  With respect to non-discretionary accounts, such as those discussed herein, factors establishing de facto control include whether the customer is able independently to evaluate the broker’s recommendations and exercise independent judgment.  Follansbee v. Davis, Skaggs & Co., Inc., 681  F.2d 673, 676-77 (9th cir. 1982) (citing Mihara, 619 F.2d at 814; Hecht v. Harris, Upham & Co., 283 F. Supp. 417 (N.D. Cal. 1968); Eugend J. Erdos, 47 S.E.C. 985, 989-90 (1983), aff’d, 742 F.2d 507 (9th Cir. 1984)); see also Carras v. Burns, 516 F.2d 251, 259 (4th Cir. 1975)  (“The issue is whether or not the customer, based on the information available to him and his ability to interpret it, can independently evaluate his broker’s suggestions.”).  Some additional factors to consider in determining whether or not a broker controlled an investor’s account include:  the investor’s sophistication; the investor’s prior securities experience; the trust and confidence the investor has in the broker; whether the broker initiates transactions or whether the investor relies on the recommendations of the broker; the amount of independent research conducted by the investor; and the truth and accuracy of information provided by the broker.  Stuart C. Goldberg, Fraudulent Broker-Dealer Practices, #2.8[b][1] (1978).  As Administrative Law judge Lillian a. McEwen noted, “I conclude that Zessinger (the broker) had de facto control over the accounts at issue.  Zessinger’s customers were unsophisticated investors with little or no prior securities experience.  They did not understand their account statements and, except on the rarest occasions, never initiated transactions in their own accounts.  Lastly, when the customers did raise questions about Zessinger’s trading, he told them that the account statements that caused them concern were inaccurate.  In short, the record clearly indicates that the reliance the investors placed in Zessinger, combined with their lack of understanding or experience in investment matters, resulted in his de facto control of their accounts.  See Mihara, 619 F2d at 821 (holding that control is established when the client routinely follows the recommendations of the broker); Hecht, 283 F. supp. at 433 (finding control can be inferred from evidence that the customer invariably relied on the dealer’s recommendations, especially when the customer is relatively naive and unsophisticated); Carras, 516 F.2d at 259; Follansbee, 681 F.2d at 676-77.

In non-discretionary accounts, no unauthorized trading is permitted.  .

 – A broker may not execute any transaction in a customer’s account unless the customer has approved and authorized the trade in advance, or has given the broker power of attorney to make trading decisions in the account.

5. SUITABLE RECOMMENDATIONS – One of the most important duties for brokers is that all investment recommendations must be consistent with the customer’s financial & tax status, investment objectives, level of understanding and risk tolerance. Under the “suitability rule” and the “know your customer rule”, a broker must reasonably believe that the recommendation is appropriate for that particular customer based upon his specific financial situation, understanding and needs. The stockbroker must create an up-to-date customer profile that matches the customer with the appropriate investment.  The investments selected do not determine investor suitability, the complete profile and risk tolerance of the customer does! (Notice to Members #96-60) See Resources – Suitability.

     A broker must refrain from making an unsuitable recommendation even if the customer expressed an interest in engaging in the inappropriate trade or asked the broker to make the recommendation.  See, e.g. ,Dane S. Faber, Exchange Act Release No. 49216, 2004 SEC LEXIS 277, at *23-24 (Feb. 10, 2004).

     On 12-02-02, in Washington, D.C., the NASD announced that it has censured and fined American Express Financial Advisors, Inc. for sales practice and supervision violations in connection with its sale of variable annuities and variable life products over a 30 month period, ending in 2000. NASD’s review focused on American Express’ sale of variable annuities into tax-qualified retirement plans and accounts.  The NASD fined American Express Financial Advisors $350,000 in connection with selling variable annuities into already-tax deferred retirement accounts such as IRA’s and 401(k) plans.  The NASD found that American Express, through certain registered representatives, omitted material facts when selling variable annuities into qualified plans.  In making some sales, registered representatives failed to disclose that variable annuities do not provide a tax benefit or advantage of tax-deferred earnings when they are purchased for such plans.  In general, tax deferral is one of the primary reasons for purchasing a variable annuity.  In the sale of a variable annuity, to an account that is already tax deferred, sales should only be made when other benefits of a variable annuity such as a death benefit or annuity payout options support the purchase.  Some American Express representatives failed to determine that customers had a need for a benefit offered by a variable annuity, other than tax deferral, when recommending the purchase of the product.  Such sales were in violation of NASD rules since the registered representatives lacked a reasonable basis for believing that their recommendations were suitable.  In addition, in certain instances, American Express representatives did not adequately explain to customers, the costs and features of variable annuities.  They also failed to compare and contrast variable annuities with mutual funds in those instances where the customer’s needs might have been better met through the purchase of mutual funds.  The NASD found that American Express had failed to address these issues adequately when it trained representatives and that certain disclosure documents omitted material facts regarding qualified annuities.  Mary L. Schapiro, NASD Vice Chairman and President of Regulatory Policy and Oversight stated that “We continue to see instances of abusive sales practices and suitability problems with variable annuities.  It is only through effective training and a comprehensive supervisory system that firms can ensure that customers receive important disclosures concerning these complex products and that they are sold only to customers for whom they are suitable.”  Department of Enforcement – NASD Letter of Acceptance, Waiver and Consent NO. CAF020057, pursuant to Rule 9216 of the NASD Code of Procedure.  Ms. Shapiro reported that in March, 2004, Prudential was ordered to pay customers $9.5 million and a $2 million fine for variable annuity sales and switches that violated NY State Insurance Dept. regulations.  Waddell and Reed and two of its senior executives were also charged for recommending 6,700 variable annuity exchanges to its customers without determining the suitability of the transactions, generating $37 million in commissions and costing their customers $10 million in surrender fees.  Finally, along with 75 annuity-related disciplinary actions in the last three years, she reported that a Louisiana broker was permanently barred from the securities industry for unsuitable variable annuity sales.

     Not unlike variable annuities, the sale of Class “B” mutual funds have caused severe suitability problems.  On 2-12-04, Linsco/Private Ledger Corp. (SEC case # 3-11401) was sanctioned with a monetary fine of $1,116,402.50 as follows  “Respondent has submitted an offer of settlement without admitting or denying the findings, except as to the SEC’s jurisdiction, and consented to the entry of this order.  The respondent sold shares issued by mutual funds without providing certain customers with reductions in front-end loads, or sales charges, also known as “breakpoint” discounts, described in the prospectuses of the funds.  According to data submitted to the NASD by respondent, respondent is estimated to have failed to give certain customers breakpoint discounts totaling approximately $2,232,805 during the relevant period.  By failing to disclose to certain customers that they were not receiving the benefit of applicable breakpoint discounts, respondent willfully violated Section 17(A)(2) of the Securities Act. Further, because respondent did not charge these customers the correct sales loads as set forth in the mutual funds’ prospectuses, and also did not disclose in confirmations the remuneration respondent received from the sales loads charged to these customers, respondent willfully violated Rule 10B-10 under the Exchange Act”.  On the same date, the NASD ( Case # CAF040005) obtained an Acceptance, Waiver & Consent from Linsco/Private Ledger Corp. and a  Monetary/Fine,Censure in the amount of $2,232,805.  The NASD sighted NASD Conduct rule 2110 – Respondent member sold shares issued by mutual funds without providing certain customers with the reduction in the front-end loads, or sales charges described in the prospectuses of the funds; failed to give its customers breakpoint discounts in 35.64% of eligible mutual fund transactions in 2001 and 2002, that resulted in missed breakpoints that would have reduced customers charges by approximately $2,232,805 on their purchases of mutual fund shares with front-end loads during the relevant period.

6.  DUTY TO DIVERSIFY – The Prudent Investor Principle – Diversification is essential to prudent investing.  One of the time honored investment maxims is that risk can be reduced by diversification.  The Nobel Prize in Economics was awarded to Harry Markowitz in 1990 for a rigorous explanation of this principle.  There is general agreement that a portfolio of investments is truly diversified only when it is made up of distinctly separate & broadly different asset classes (see  Diversification Chart – Suitability Defined & Explained)  It takes at least 50 stocks, spread among 5, usually 6 non-correlated asset classes to achieve adequate diversification and thereby reduce non-systemic risk.  This is firm-specific risk – the risk of one company causing a significant move, either up or down, in a portfolio (Modern Portfolio Theory – Edward Elton & Martin Gruber – 1987).  Even index funds alone do not assure that the diversification requirement is met.  In recent years a handful of stocks have moved the S&P 500, and, even more, the NASDAQ Composite Index.  In 1998 the top five stocks contributed 25% of the S&P 500 performance and 70% of the NASDAQ; the top ten stocks contributed 41% and 82% respectively!  These are not broad cross-sections of American industry, as was the case as recently as 1995, when the top ten in the S&P 500 only contributed 13% of the performance.  For real diversification today, international assets along with the Russell 2000 should be considered as well.  For diversification internationally, one need not look to foreign stocks alone.  American companies, as of year-end 2000, with their percentages of foreign earnings include; AIG (53%), Coca-Cola (82%), Gillette (63%), Intel (58%), Microsoft (37%) and Pfizer (49%).  As of February 2006, as reported in the Wall Street Journal, Morningstar reported that more than 100 mutual funds classified as U.S. stock funds now have more than 20% of their portfolios in non U.S.securities.

      William Sharpe, another Nobel Prize winner from Stanford University and creator of the Sharpe Ratio wrote in 1978,” Diversification does reduce risk, and the reduction can be greater, the wider the range of possible investments”.  The duties increase for the broker as fiduciary!  A fiduciary may invest in many things but he should not gamble.  Gambling may be defined as buying an asset without an  inherent, ascertainable underlying buildup of value through earnings or interest.  It is clear that a fiduciary must diversify unless it is clearly “prudent” not to!  In the absence of specific authorization to do otherwise, a conscious concentration and lack of diversification would constitute a serious breach of fiduciary obligation.  Further, breach of the duty to diversify constitutes an independent basis of liability, separate from a breach of the general duty of prudence (Liss v Smith, 991, F. Supp. 278,301 (SDNY, 1998)).  Diversification is uniformly acknowledged to be a pre-requisite of a well managed account.  Anything that deviates from that expected treatment of a customer must be justified by the broker.  The decision to concentrate a portfolio in only one asset class, and not diversify, must be fully grounded in the broker’s research, into (a) the portfolio design and (b) the specific securities selected.  It is not sufficient simply to have a reasonable basis for recommending a concentration of securities in only one asset class, rather the broker/fiduciary must also have reasonable grounds for deviating from the norm of prudent investing!  If a broker/fiduciary chooses to sell securities where there is a conflict with his own firm i.e. proprietary products, the required justification is even greater.  The broker must make a reasonable determination that because of “special circumstances” it is more prudent not to diversify.  Note that the test is prudence, not whether the broker thinks he can make more profits by not diversifying, but whether it is more prudent to forego the protection and risk diminution afforded by diversification.  Note also, that the language “reasonable determination” implies an objective standard, not just the subjective opinion of the broker.  For a fiduciary then, the threshold is even higher.  A fiduciary must have a compelling reason not to diversify i.e. it must be “clearly prudent not to do so”.  Furthermore, prudent management is evaluated on an ongoing basis.  Even if the broker may have had reasonable grounds at the outset, retaining the investments & increasing the concentration may become imprudent later.  True diversification does not promise that the portfolio will outperform the market, only that it will be intelligently designed for the investor’s financial circumstances.  According to the Management of Investment Decisions (1996), breaches of fiduciary duty due to lack of diversification generally fall within 3 general areas:  1) geography; 2)capital markets; and 3) industry.  The authors also state that while no specific percentage is established as to what constitutes lack of diversification (because breach depends upon the facts and circumstances of each case), the Department of Labor has adopted twenty percent as the threshold concentration in a particular asset for ERISA plans.

     See Stephen Torlief Rangen 52 S.E.C. 1304, 1308 (1997) (finding that broker’s recommendations were unsuitable, where they resulted in 80% of the equity in customers’ accounts being concentrated in one stock – “by concentrating so much of their equity in particular securities, [the broker] increased the risk of loss for these individuals beyond what is consistent with the objective of save, non=speculative investing”).

7. DUE DILIGENCE – Conducting pre-sale due diligence is the most critical aspect of recommending any security.  Due diligence seeks to protect both the customer and the broker-dealer by ensuring the quality of the security before it is sold.  Due diligence requires sufficient investigation into an investment product to provide “reasonable” grounds to believe that the product is an appropriate investment for the customer. Craig E. Chapman and Katherine Hudson Zrike, Conducting Due Diligence, 278 Practising Law Institute, Corporate Law & Practice Course Handbook, Series B-1304 (2002).  It is an affirmative duty to check and verify the accuracy of certain statements and not rely totally on the unverified words of the issuer or its agent.  In Hanley v. the Securities Exchange Commission,415 F.2d 589, 595-96 (2d Cir. 1969), the Second Circuit Court of Appeals held, “Brokers and salesmen are under a duty to investigate, and their violation of that duty brings them within the term willful in the Exchange Act.  Thus, a salesman cannot deliberately ignore that which he has a duty to know and recklessly state facts about matters of which he is ignorant.  He must analyze sales literature and must not blindly accept recommendations made therein.  The fact that his customers may be sophisticated and knowledgeable does not warrant a less stringent standard.”  The Hanly holding was echoed by the recent ninth circuit decision in Securities and Exchange Commission v. GLT Dain Rauscher, Inc. which held that…..”a securities professional has the duty to make an investigation that would provide him with a reasonable basis belief that the  key representations in statements made to investors were truthful and complete”.

     Two years after the GLT Dain Rauscher, Inc. decision, the NASD issued Notice to Members 03-07 which states: “members must perform substantial due diligence in order to satisfy the reasonable requirements for recommendations to investors.”  The NASD requirement of a heightened level of due diligence cannot be discharged by relying on the issuer’s opinion without verification.  The brokerage firm is obligated to conduct reasonable due diligence into the background of the issuer and manager of a securities offering, the examination of the offering documents, subscription agreements and a review of the performance of the security.  These should be carefully scrutinized to see of they conform to both the sales presentation and the ongoing representations.  Without such investigation, the broker-dealer is merely repeating information disseminated by the issuer/manager to the customer that may be misleading or untrue.  The promise of conducting continuing due diligence by the firm is usually a selling point in recommending any security to the customer.

     Even in an unregistered hedge fund, the NASD requires bare minimum due diligence which includes:

          a.  “An investigation into the background of the hedge fund manager;

          b.  Review of the offering memorandum;

          c.  Review of the the subscribing agreements;

          d.  Examination of the references; and

          e.  Examination of the relative performance of the fund.”

     In performing due diligence, a broker-dealer wants be sure that the hedge fund is the right (i.e. suitable) hedge fund product for its customer’s investment objectives and needs.  Private placements like hedge funds are exempt from registration, not full disclosure!

     It is well-settled then, that a securities salesperson : … cannot recommend a security unless there is an adequate and reasonable basis for such recommendation.  He must disclose facts which he knows and those which are reasonably ascertainable.  By his recommendation, he implies that a reasonable investigation has been made and that his recommendation rests on the conclusions based on such investigation.  Where the salesman lacks essential information about a security, he should disclose this as well as the risks which arise from this lack of information.  Hanley v. SEC, 415 F.2d 589, 597 (2nd Cir. 1969).  Every broker and brokerage firm is under the legal obligation to perform “due diligence” on every trade. This means that the broker must have a reasonable basis founded upon careful investigation before making any recommendation to a customer. This is especially true of proprietary products of the firm the broker represents or products in which the firm makes a market and/or is acting as principal in the transaction. Since there is often increased compensation on these types of products to the broker, the broker must have diligently performed an objective and independent investigation of such products before making recommendations to customers.  That duty, specifically to know your product is set forth in Leib v. Merrill Lynch, Pierce, Fenner & Smith, 461 F. Supp. 951 (E.D. Mich. 1978), aff’d without opinion,647 F,2d 165 (6th Cir. 1981), the court enumerated the duties owed by brokers to customers who maintain non-discretionary accounts:

     (1)  the duty to recommend a stock only after studying it sufficiently to become informed as to its nature, price and financial prognosis; (2) the duty to carry out the customer’s orders promptly in a manner best suited to serve the customer’s interests; (3) the duty to inform the customer of the risks involved in purchasing or selling a particular security; (4) the duty to refrain from self-dealing or refusing to disclose any personal interest the broker may have in a particular recommended security; (5) the duty not to misrepresent any fact material to the transaction; and (6) the duty to transact business only after receiving prior authorization from the customer. Leib, 461 F. Supp. at 953;see also Gochanauer v. A.G. Edwards & Sons, Inc., 810 F. 2d 1042, 1049 (11th Cir. 1987) (endorsing the Leib court’s list of duties owed by a broker to a non-discretionary account).

       Section 11 of the Securities Act of 1933 underscores this obligation when it states, “no person, other than the issuer, shall be liable…,who shall sustain the burden of proof…that he had, after reasonable investigation, reasonable grounds to believe and did believe, at the time such part of the registration statement became effective, that the statements therein were true, and that there was no omission to state a material fact required to be stated therein….”  Every registered representative is obligated then, to fully understand the nature of the investment, its costs, internal features such as deferred sales charges, internal operating costs and/or back end sales loads, historical performance of the investment, terms and conditions of the prospectus, if relevant, appropriate asset classification and any and all other relevant security features.

8.  FRAUD – In the securities industry, fraud occurs when a broker recklessly disregards the investment objectives  and risk tolerance of his or her client.  Examples are churning, over-concentration, over-reaching, material omission and material misrepresentation.  These are known as constructive fraud.  The difference between actual fraud and constructive fraud is primarily in the type of conduct which may be treated as fraudulent, such as a failure to disclose material facts within the knowledge of the fiduciary.  Further, the reliance element is relaxed in constructive fraud to the extent we may presume reasonable reliance upon the misrepresentation or nondisclosure of the fiduciary, absent direct evidence of a lack of reliance.  As explained in Estate of Gump (1991) 1 Cal. App. 4th 582,601, “constructive fraud allows conduct insufficient to constitute actual fraud to be treated as such where the parties stand in a fiduciary relationship.  Further, the cause of action for constructive fraud involves overlapping elements of proof.  In general, “constructive fraud arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.” Odorizze v. Bloomfield School Dist. (1966) 246 Cal. App.2d 123,129; see also Ford v. Shearson Lehman American Express, Inc. (1986) 180 Cal. App.3d 1011,1020, Civ. Code, #1573).  the theory of constructive fraud “presumes the element of reliance absent substantial evidence to the contrary.”  (Edmunds v. Valley Circle Estates 1993) 16 Cal. Appp.4th 1290, 1302; Toedter v. Bradshaw 1958) 164 Cal. App.2d 200, 208).  Civil Code section 1573 states: “Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him;…”  “[This] section states the rule applicable in confidential relations…. ‘Constructive fraud …is presumed from the relation of the parties to a transaction, or the circumstances under which it takes place…. Constructive fraud often exists where the parties to a contract have a special confidential or fiduciary relationship, which affords the power and means to one to take undue advantage of, or exercise undue influence over the other. “(Mary Pickford Co. v. Bayly Bros., Inc. (1939) 12 Cal.2d 501, 525; and see Boyd v. Bevilacqua (1966) 247 Cal. App.2d 272, 290; Goodwin v. Wolpe (1966) 240 Cal. App.2d 874,878; Crocker-Anglo Nat. Bank v. Kuchman (1964) 224  Cal.App.2d 103,106; Cullen v. Spremo (1956) 142 Cal. App.2d 225,231; Estate of Mallory (1929) 99 Cal.App. 96, 102).  The Sarbanes-Oxley Act of 2002 extended the Statute of Limitations for Securities Fraud by amending Section 1658 of title 28, of the United States Code to read, “A private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement concerning the securities laws, as defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47)), may be brought not later than the earlier of “(1) 2 years after the discovery of the facts constituting the violation; or “(2) 5 years after such violation.”.”  The limitations period provided by section 1658(b) of title 28, United States code, as added by this section, shall apply to all proceedings addressed by this section that are commenced on or after the date of enactment of this Act (July 30, 2002, 107 P.L.204, title VIII, #804, 116 Stat.745).  Both intentional and negligent misrepresentation are actionable in California as fraud.  California Civil Code section 1710 defines fraud as:

     1.  The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

     2.  The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

     3.  The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,

     4.  A promise, made without any intention of performing it.

Negligent Misrepresentation requires (1) misrepresentation of past or existing material fact; (2) without reasonable ground for believing it to be true; (3) intent to induce another’s reliance on that misrepresentation; (4) ignorance of the truth and justifiable reliance on misrepresentation by party to whom it was directed; and (5) resulting damage.  Glenn K. Jackson, Inc. v. Roe, 273 F.3d 1192,1201 n.2 (9th Cir. 2001).

     Under California law, Claimant’s/Plaintiff’s reliance must be justified.  See Anderson, 56 Cal. App.4th at 1474; see also Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226, 1239 (1995) (holding that justifiable reliance is an essential element of intentional misrepresentation and negligent misrepresentation).  Justifiable reliance is ordinarily a jury question but “may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts.” Id. at 1240.

9. SPECIAL SITUATIONS – RISK AND CONTROL.  Some investments are riskier than others and may therefore require additional duties of the broker. For example, trading with money borrowed from the brokerage firm, known as trading on margin, is a carefully regulated activity. There are new regulations requiring full disclosure of the risks in this area.  Brokers also have special responsibilities in connection with options trading, low-priced speculative securities and private placement limited partnerships, along with other unique forms of investments.  Further, the broker, as a fiduciary, has a duty to disclose all material facts of every recommendation, regardless of the sophistication of the investor.  Another special area is in the sale of derivatives.  These are financial contracts whose values are tied to an underlying security, commodity, interest rate or currency.  These speculative investment vehicles have special risks that must be disclosed.  Another special situation occurs with the emphasis and sale of B-share mutual funds to investors.  One cannot overlook all of the heat that regulators and the press are placing on Morgan Stanley Dean Witter for its rampant sales of B-share (back-end load) mutual funds instead of other, often less expensive alternatives.  As reported in the April 1st edition of the Wall Street Journal, the SEC and the NASD are asking why 90% of all mutual funds sold by MSDW are B-shares.  Mutual fund A-shares (front-end load) might have been less expensive, especially with large purchases.  It is often a misconception that brokers in a non-discretionary account owe no fiduciary duty to the investor.  Courts have rejected this theory.  Davis v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 906 F.2d 1206 (8th Cir. 1990) (court rejected defendant’s position that non-discretionary accounts can never give rise to a fiduciary relationship, in favor of a more flexible approach focusing on who exercises control over the account). Leib v. Merrill Lynch, Pierce fenner & Smith, Inc., 461 F. Supp. 951  (E.D. Mich. 1978) aff’d. without opinion,  647 F.2d 165 (6th Cir. 1981).  The Lieb opinion states that, “Between the purely non-discretionary account and the purely discretionary account there is a hybrid-type account.  Such an account is one in which the broker has usurped actual control over a technically non-discretionary account.  In such cases the courts have held that the broker owes his customer the same fiduciary duties as he would have had the account been discretionary from the moment of its creation.  Id. at 954.  The Leib court cites Hecht v. Harris, Upham & Co., 430 F.2d 1202 (9th Cir. 1970), and other cases for the long-established rule that fiduciary duties, beyond simply executing trades in accordance with a customer’s instructions, exist where a broker has effective control over the customer’s account.  In determining whether a broker has assumed control of a non-discretionary account, the courts weigh several factors.  First, the courts examine the age, education, intelligence and investment experience of the customer.  Where the customer is particularly young, Kravitz v. Pressman, Frohlich and Frost, 447 F. Supp. 203 (D.Mass.1978) , old, Hecht v. Harris, supra or naive with regard to financial matters, Marshak v. Blyth Eastman Dillon & Co. Inc., 413 F. Supp. 377 (N.D. Okla. 1975), the courts are likely to find that the broker assumed control over the account.  Second, if the broker is socially or personally involved with the customer, the courts are likely to conclude that the customer relinquished control because of the relationship of trust and confidence.  Kravitz v. Pressman, supra;  Hecht v. Harris, supra.  The Colorado Supreme court has held that a broker may have continuing fiduciary duties with respect to a customer’s account despite the fact that it is technically non-discretionary.  In Paine Webber Jackson & Curtis, Inc. v. Adams, 718 P.2d 508,516-17 (Colo. 1986), the court stated, “in assessing the existence of control by a broker, courts have not limited the scope of their vision to the documentation pursuant to which a customer’s account is maintained, but instead have examined how account transactions have actually been conducted.  Thus, it has been held that a broker could usurp control over a technically non-discretionary account, rendering that broker subject to the same fiduciary duties as if the account had been discretionary from its creation.  Leib, 461 F. Supp. at 954.  The closely related criterion of a broker’s ‘involvement` in transactions in a customer’s account also has been considered material in resolving the factual question of the existence of a fiduciary duty.  Kaufman, 464 F. Supp. at 536.  If a broker has acted as an investment advisor, and particularly if the customer has almost invariably followed the broker’s advice, this in an indication that the broker exercises functional control of the account the that the broker-customer relationship is fiduciary.  See Leboce, 709 F.2d at 607–8; Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 337 F. Supp. 107 (N.D. Ala. 1971); Hecht v. Harris, Upham & Co. , 283 F. Supp. 417, 433 (N.D. Cal. 1968), Twomey v. Mitchum, Jones & Templeton, Inc., 262 Cal. App. 2d 690 Cal. Rptr. 222 (1968),  On the other hand, a broker who merely receives and executes a customer’s orders does not exercise a degree of control that suggests the recognition of a fiduciary relationship with the customer.  Leboce, 709 F.2d at 607-08; Robinson, 337 F.Supp. 107; Berki, 560 P.2d at 286.

     Be careful of placing customers in non-discretionary fee-based accounts when there is little or no trading activity.  You may be charged by the NASD for “reverse churning”.  The lack of activity could render the client being better off in a commission based account as a “buy and hold” investor. The NASD is specifically looking for brokers who place a substantial number of their clients in fee based accounts and do little or nothing to advise, monitor and rebalance the accounts.  It is essential to carefully note the file with these accounts to justify the advice you do give.  The NASD has recently issued sanctions against at least two major firms.  Raymond James Financial’s employee and independent broker-dealer units were censured and fined $750,000 combined in April 2005 for violations relating to their fee-based accounts.  In addition, the firm had to pay $138,000 in restitution to clients.  In August 2005, Morgan Stanley was fined $1.5 million and ordered to pay more than $4.6 million in restitution for failing to adequately supervise its fee-based brokerage business.

10. SUPERVISION AND DUTY OF GOOD FAITH – A brokerage firm has a responsibility to supervise the activities of its brokers. Many customers follow the advice of their broker based upon the reputation of the firm standing behind the broker. It is not sufficient therefore, for a firm to have supervisory methods and guidelines in place to measure overall performance and somehow earn a hypothetical passing grade.  The SEC has stated that the test is whether supervision is reasonably designed to prevent violations in particular cases.  Both the stockbroker and brokerage firm have the responsibility to conduct themselves in good faith with customers. Customers automatically trust and rely upon the broker and the brokerage firms to operate under the high standards imposed upon the securities profession.  In the compliance manual of MSDW, it states, “The Branch Manager must review account information and discuss it with the Financial Advisor.  If necessary, before approving a new account, the Manager must contact the client directly if questions of suitability remain.  The Branch Manager will examine the suitability of transactions and/or investments recommendations based upon the information supplied by the client in the client profile section of the New Account form. The Branch Manager should review and compare the client’s stated investment objective(s) with the information that is presented elsewhere on the New Account form and in any supplementary documentation that may be required (e.g. information on the New Account form should coincide with information provided on the client’s Option Agreement”. The Securities Industry Association (“SIA”) Compliance and Legal Division Seminar of 2000 supplied materials on Written Supervisory Procedures which provided that “any supervisor who learns of an indication of impropriety (a “red flag”) must investigate with reasonable diligence and must pursue the matter to closure.  Inadequate investigation and follow-up is an invitation to enforcement action.”  In Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1573 (9th Cir. 1990) cert. denied, 499 U.S. 976, 111 S. Ct.1621, 113 L. Ed. 2d 719 (1991), the Ninth circuit held that as a matter of law, a broker-dealer is a controlling person with respect to its registered representatives.  The Court reasoned that the securities laws impose on broker-dealers a duty to supervise their registered representatives, and the representatives need the dealers to gain access to the securities markets.  The Court recognized no basis for a distinction between employees or other agents and independent contractors.  PaineWebber, Inc. v. Hofmann, 984 F.2d 1380 (3d Cir. 1993,  the court stated, “Consider Hofmann’s claim that PaineWebber sctively concealed Faragalli’s wrongdoing.  This can be viewed as an independent cause of action based on a duty owed by PaineWebber to its customers to inform them of a broker’s wrongdoing or of the unsuitably speculative nature of their investments”.  In 1995, the SEC issued “rogue broker” pronouncements which focused on the necessity for close supervision for certain representatives with regulatory or complaint histories with the need to implement heightened supervisory procedures for these brokers.  Excerpts include:  “In addition to the normal requirements for opening a new account set out in NASD Rule 3110, the manager might choose to speak with all or selected new account holders or to independently verify the customer information on the new account form on a random of consistent basis, depending on the situation.  If the firm deemed it prudent in view of prior activities, it might prohibit any trading until the account information or the order information could be independently verified with the customer.  This logical extension of a broker-dealer’s duty of supervision would have to be adhered to in order to show full compliance”.  “When reviewing conduct to determine whether heightened supervision is warranted, firms should focus on whether a specific type of transaction was involved in prior problems, and should consider prohibiting like transactions, or requiring supervisory approval of all such transactions in advance of execution, as is routinely required in many firms in the case of low-priced securities, options and discretionary trades”.  “Problem brokers should be closely monitored in order to assure that they do not repeat improper sales activities which his or her firm has actual notice of”.  “The firm should consider meeting with the registered rep. and the person who is or will be his or her supervisor, during which the supervisor’s understanding of the prior conduct of the registered rep. and willingness to accept responsibility of his or her supervision can be confirmed”.  “A firm that hires one or more registered representatives with a history of customer complaints, disciplinary actions, or arbitrations, should recognize that it has heightened supervisory responsibilities that will require it, at a minimum, to examine the circumstances at each such case and make a reasonable determination whether it’s standard supervisory and educational programs are adequate to address the issues raised by the record of any such registered rep.”.  (See also NASD Notice to Members #96-60).

11.  DUTY TO MAINTAIN CLIENT CONTACT MANAGEMENT – The Branch Manager monitors the registered representatives in the branch to verify each account executive’s responsibility to keep client contact management current, organized and complete.  The standard of care in the securities industry requires each representative to record a systematic chronology of client contact in one of the following:

     a. Day Timer

     b. Acceptable software program such as ACT or Microsoft Outlook

     c.  Maintenance of contemporaneous notes in a diary or spiral notebook

On a monthly basis, or more often if needed, it is custom and practice in the securities field for a Branch Manager to verify that the registered representatives within the branch are recording, at a minimum:

     a.  Differences with clients

     b.  Warnings to clients

     c.  Client actions which are out of the ordinary i.e. a significantly large number of unsolicited trades

     d.  Trade disputes

     e.  Client refusal to take the broker’s advice.

          In its 2000 Branch Office Policy Manual, Merrill Lynch writes, “Documentation and Record Maintenance – While account review records are to maintained electronically, to properly supervise, and demonstrate such supervision, the branch office activity review files must contain:

          *  manually prepared P&L of equity change analysis (if applicable),

          *  copies of written communications with the client or notations documenting client contacts, and

          *  correspondence with the Compliance Department regarding the account

these items are to be retained for a period of no less than six (6) years”.

     As Smith Barney instructs its managers,” The most comprehensive and proactive response to client account activity and accounts with material risk exposure is personal client contact by the Branch Manager which is documented in a letter summarizing the contact.  Prior to contacting the client, the Branch Manager should speak with the FC and review the activity and positions in the account.  The Branch Manager should be particularly sensitive to:  -the types of securities traded (e.g. low priced stocks, below investment grade bonds, derivatives, etc.) -Any large positions (i.e. the FC building a position in many accounts) -Margin balance – Volume of trading-Holding periods.

12.  DUTY TO PREVENT “FINANCIAL SUICIDE” – In the NASD Rules of Fair Practice – Rule 2310-2 (5) it states that, “recommending the purchase of securities or the continuing purchase of securities in amounts which are inconsistent with the reasonable expectation that the customer has the financial ability to meet such a commitment, exceeds the reasonable grounds of fair dealing”.  Further, a brokers responsibility goes beyond mechanical obedience to all customer demands  As the S.E.C. stated in Clyde J. Bruff, 50 S.E.C. 1266, 1269 (1992) [h]aving undertaken to act as an investment counselor for the Pattersons, Bruff was required to make only such recommendations as were in their best interests.  Thus, even if the Pattersons wished to engage in aggressive and speculative options trading, Bruff was obliged to counsel them in a manner consistent with their financial situation.  (citations omitted).  See Charles W. Eye, 50 S.E.C.655, 658 (1991) (“Her request for a plan to increase that income was not a warrant to escalate risks unduly.  If the only approach capable of producing the desired income involved significant dangers, Eye should have advised against it”); Eugene J. Erdos, 47 S.E.C. 985, 988 (1983), aff’d, Erdos v. S.E.C.742 F.2d 507 (9th Cir. 1984) (“Even though Mrs. C. may have desired ‘quick profits’, that did not entitle Erdos to ignore her individual situation and place her limited assets in risky investments”); and District Business Conduct committee v. Michael R. Euripedes, No. C9B950014, 1997 NASD Discip. LEXIS 45 at *13(NBCC, July 28, 1997) (representative has consultative duty when customers wish to engage in trading that is inconsistent with their financial situation).  In re John M. Reynolds, Rel. No. 34-30036, 1991:  As a fiduciary, a broker is charged with making recommendation in the best interests of his customer even when such recommendations contradict the customer’s wishes.  Thus, even if the committee suggested that Reynolds engage in aggressive and speculative trading, Reynolds was obligated to counsel them in a manner consistent with their financial situation. Duffy v. King Cavalier (1989) 215 Cal. App. 3d 1517, defines a stockbroker’s fiduciary duty as prohibiting the recommendations of unsuitable securities even if the customer requests the recommendations.  See also Gordon Scott Venters, 51 S.E.C.292,294-5 (1993) (notwithstanding client’s interest in investing in speculative securities, broker had duty to refrain from recommending such investments when he learned about his customer’s age and financial situation); F.J.Kaufman and Company of Virginia, 50 S.E.C. 164,168 (1989) (“[t]he suitability rule…requires a broker to make a customer-specific determination of suitability and to tailor his recommendations to the customer’s financial profile and investment objectives”); and as stated in James B. Chase, 2001 WL 9637888 (NASDR 2001); [The broker] argued that his recommendations of FHC, which he admitted was a speculative stock, were suitable in light of [the customer’s] change in her stated investment objectives from “income” to “growth” and “speculation”.  A customer’s investment objectives, however, are but one factor to consider in determining whether the broker’s recommendations were suitable for the customer.  Furthermore, a broker cannot rely upon a customer’s investment objectives to justify a series of unsuitable recommendations that may comport with the customer’s stated investment objectives but are nonetheless not suitable for the customer, given the customer’s financial profile.  Thus, even where a customer affirmatively seeks to engage in highly speculative or otherwise aggressive trading, a broker has a duty to refrain from making recommendations that are incompatible with the customer’s financial situation and needs.  See e.g., Paul F. Wickswat, 50 S.E.C. 785, 786-87 (1991) (“The proper inquiry is not whether [the customer’] viewed [the broker’s] recommendations as suitable, but whether [the broker] fulfilled his obligation to his client.”).  Even in cases in which a customer affirmatively seeks to engage in highly speculative or otherwise aggressive trading, a representative is under a duty to refrain from making recommendations that are incompatible with the customer’s financial profile.[FN14]. Danile Richard Howard, Exchange Act Rel. No. 46269 (July 26, 2002), 78 SEC Docket 427,429-30; See also Pinchas, 70 SEC Docket at 1526 (customer’s desire to “double her money” does not relieve registered representative of duty to recommend only suitable investments); and William C. Pointek, 81 S.E.C. 2451, 2003 WL 22926821 at *7(2003).

     Even though a customer may desire, and even need, more income, a broker may not recommend investing in higher risk investments to meet this customer request.  As the NASD has stated,”(The broker) contented that the [customers[ were willing to accept increased risk for a better yield, but we do not believe that the [customers] understood the nature of the risks involved.  In any event, a customer’s desire for income does not warrant an undue escalation of risk.  Similarly, a customer’s desire to participate in a booming market by becoming more aggressive must be rejected by the broker and the firm.  The same is true even when the customer who can afford to do so, desires to speculate.  so rigorous is the obligation imposed on brokers and their firms that the SEC has ruled:….assuming that [the customers] did want to invest in speculative securities, that did not affect [the broker’s] responsibility t recommend suitable investments.  The test for whether [the broker’s] recommendations were suitable is not whether [the customers] acquiesced in them, but whether his recommendations were consistent with their respective financial situations and needs.  Mathew C. Pointek, 81 S.E.C. 2451, 2003 WL 22926821 at *7 (2003) (footnote omitted) (emphasis and parentheticals supplied).

     Unfortunately, certain brokers and certain firms do not adhere to the standards imposed upon them by their peers and the regulatory and self-regulatory bodies.  when faced with the failure to adhere to these self-imposed and legally required standards, brokers and firms all to frequently attempt to blame the customer for “agreeing with or approving the strategy, “wanting too much,” “being greedy” or  not mentioning the winners.” Clinton Hugh Holland, Jr. 60 S.E.C. 25071995 WL 757806 at *3 (1995) (“Even if we conclude that (the customer) understood [the broker’s] recommendations and decided to follow them, that does not relieve [the broker] of his obligation to make reasonable recommendations.”)(emphasis supplied); William C. Pointek, 81 S.E.C. 2451 WL 22926821 at *7 (2003).  The fact that some of the investments may have been profitable does not change the fact that the recommendations on the whole were unsuitable.  See Clinton Hugh Holland, Jr. 60 S.E.C. 2507, 1995 WL 757806 at n. 17 (1995).  Furthermore, these suitability requirements apply even to unsolicited orders.  As Morgan Stanley informs its brokers:  A financial Adviser should be aware that if a client initiates an order for a transaction that appears unsuitable or is inconsistent with the client’s stated objectives, the financial Adviser is    not required to accept that order.  However, in such a situation, the Financial Adviser should advise the client of the basis for believing that the transaction is unsuitable or change the priority of objective codes and record any pertinent facts/conversations in his or her daytimer and obtain a No Solicitation letter as evidence.

     Further, prior investment history is not justification for exceeding the client’s current risk tolerance, financial situation and need.  FN7 F.J. Kaufman and Company of Virginia, Securities Exchange Act Release no. 27535 (December 13, 1989) 45 SEC Docket 120, 125-126. In our view, [the customer’s] prior trades are irrelevant.  A broker must “make a customer-specific determination of suitability and …tailor his recommendations to the customer’s financial profile and investment objectives.” [FN7]

     As the SEC reminds us:  Determining, however, that the client may have a firm grasp of the market, be “happy” or wish to continue with a high risk trading strategy is not equivalent to an appropriate suitability determination.  A suitability determination is not predicated on what a customer may want.  Rather, NASD Conduct Rule 2310 requires that the determination be made on the basis of the customer’s other investments and his financial situation and needs.

13.  A BROKER’S CONDUCT IS MEASURED BY THE SECURITIES INDUSTRY RULES – Once the nature and scope of the broker’s duties have been determined, it is then necessary to determine whether the broker’s conduct constitutes a breach of those duties.  In so doing, it is instructive to review the rules and regulations of the securities industry.  See Miley v. Opptnheimer & Co., Inc. 637 F.2d 318,333 (5th Cir. 1981) (“NYSE and NASD rules are excellent tools against which to assess in part the reasonableness or excessiveness or a broker’s handling of an investor’s accounts”), citing Mihara v. Dean Witter & Co., Inc. 619 F.2d 814, 824 (C.A. Cal. 1980)(“The admission of testimony relating to {NYSE and NASD rules] was proper precisely because the rules reflect the standard to which all brokers are held); see also Jolley v. Welch, 904 F.2d 988,993 (5th cir. 1990)(noting that it was appropriated for the jury to consider NYSE and NASD rules in determining whether the plaintiff’s account had been excessively traded); Lange v. H. Hentz & Company, 418 F. Supp. 13776, 1383-84 (N.D. Tex. 1976)(“NASD rules are admissible on the issue of what fiduciary duties are owed by a broker to an investor”).  What these courts are acknowledging is the propriety of reviewing securities industry rules (also known as “SRO Rules”) in determining liability in suitability claims.  The role of the trier-of-fact is to properly determine the applicable standard that determines liability and the brokers obligations typically stem from SRO Rules, Interpretative Materials and Notices to Members.

     It is interesting that most brokerage houses agree and promise through a standard clause appearing in all account agreements to obey industry rules and customs (as well as the law) in handling customer accounts:  “All transactions under this agreement shall be in accordance with the rules and customs of the exchange or market and its clearing house, if any, where the transactions are executed and in conformity with applicable law and regulations of governmental authorities and future amendments or supplements thereto”

     Respondent’s will argue that “any attempt to base a claim on the alleged violation of Rule 405 of the NYSE and other similar industry rules is precluded under the law.  No private right of action exists for violations of industry rules”  This is a disingenuous argument.  The cases cited above state only that industry rules in and of themselves do not create new and independent causes of action.  These authorities do not even remotely suggest that industry rules are in any way irrelevant in an analysis of recognized causes of action such as fiduciary duty, let alone that their use in such an analysis is precluded by law.  It is in fact well-settled that industry rules are highly relevant in determining whether the conduct of a broker is unlawful.  See, e.g. Miley, 637 F.2d at 333 (“NYSE and NASD rules are excellent tools against which to assess in pasrt the reasonableness or excessiveness of a broker’s handling of an investor’s account”)  see also Lange v. H. Hentz & Company, 418 F.Supp. 1376, 1383-84 (N.D. Tex. 1976)(“NASD rules are admissible on the issue of what fiduciary duties are owed by a broker to an investor”).

     There are a number of duties that a broker owes to a customer in servicing a non-discretionary account  One such duty is that of faithfully executing the customer’s instructions.  According to the Second Circuit, another duty is that of reasonable care.  Kwiatkowki, 306 F.3d at 1305.  There are also the general fiduciary duties for non-discretionary accounts in California as identified above in that section.  However, states like Texas spell out general fiduciary duties in Texas case law on fiduciary relationships, such as:

     (1)  The duty of loyalty and utmost good faith.  See Kinzbach Tool Co. v. Corbett-Wallace corp., 160 S.W. 2d 509, 512 (Tex. 1942); see also Hawthorne v. Guenther, 917 S.W. 2d 924, 934 (Tex. App.-Beaumont 1996, writ denied).

     (2)  The duty to act with integrity of the strictest kind.  Hartford Cas. Ins. Co. v. Walker Cty. Agency, 808 S.W.2d 681, 687-88 (Tex. App.- Corpus Christi 1991, no writ).

     (3)  The duty of fair and honest dealing.  See Kinsbach Tool, 160 S.W. 2d at 512.

     (4)  The duty of candor.  Welder v. Green, 985 S.W. 2d 170, 175 (Tex. App. – Corpus Christi 1998, pet. denied).

     (5)  The duty of full disclosure.  See Johnson v. Peckham, 120 S.W. 2d 786,788 (Tex.1938); Welder, 985 S.W.2d at 175.

     (6)  The duty to refrain from self-dealing.  Dearing, Inc. v. Spiller, 824 S.W. 2d 728, 733 (Tex. App. – Fort Worth 1992, writ denied).

14.  DUTY OF DILIGENCE IN RECRUITING AND HIRING OF REGISTERED REPRESENTATIVES –  Supervising a quality branch in the securities industry begins with hiring practices.  An extensive background check is essential when recruiting existing registered representatives from other member firms.  A best practices review would include the following:

     …A careful examination of an applicant’s Forms U-4, U-5 and Central Registration Depository (CRD) files.  These documents disclose previous client complaints, regulatory violations and reasons for terminations;

     …A call to the NASD hotline for further inquiry;

     …A telephone interview with previous supervisors;

     …An outside-the-firm professional background investigation.  The firms that do this work report credit history and inconsistencies in an applicant’s U-4.  Additionally, it is important to know about any undisclosed bankruptcy and arrest records.

These supervisory methods of best practice firms are easily accomplished and help greatly to prevent abuses.

15.  SECURITIES LICENSING AND REGISTRATION – According to the NASD Rules of Fair Practice, individuals who engage in any of the following activities must be registered and securities licensed:

     1.  Soliciting orders from customers in securities

     2.  Making investment recommendations in securities

     3.  Sharing in securities commissions

     4.  Soliciting new accounts in securities

Securities license and registration are also required if any individual is engaged in any of the following activities:

     1.  Sales of securities

     2.  Trading in securities

     3.  Solicitation of customers for securities

     4.  Underwriting of private placements

                       It has long been established hat only duly approved, licensed and registered professionals (who expect either direct or indirect compensation for a particular transaction can give investment advice, that is, to recommend a security to a customer.   And if a non-approved, unlicensed, and unregistered person does give investment advice, and by virtue of that advice is directly or indirectly compensated, he or she can be charged (in most states, it constitutes a third degree or equivalent felony) with “giving investment advice without a license.”

                            SIA BEST PRACTICES, INVESTOR RIGHTS (emphasis supplied)

The Securities Industry Association (SIA) recently set forth 9 industry standard customs and practices to be employed by its 600 member firms:

     1.  Inform customers of clear measures of risk for a specific time period;

     2.  Provide customers with clearly stated costs and fees (and their effect);

     3.  Brokers must know the customer’s objectives and risk tolerances;

     4.  Provide customers with competent and courteous service and advice;

     5.  Provide customers with responsible investment recommendations based on personal objectives, time horizon, risk tolerance, and other factors;

     6.  Apprise customers of significant conflicts of interest identified in a financial relationship between an investor and his or her broker-dealer or account representative;

     7.  Provide professional assistance to help clarify investment goals and risk tolerance; and

     8.  Provide reliable assistance also in setting realistic expectations about the long-term performance and associated risks of various securities; and

     9.  Present reasonable investment alternatives designed to meet those expectations, and disclose the comparative risks, benefits and costs.


    Because of endless sales abuses, the nation’s securities cops have proposed tightening the rules regulating annuity sales.  According to the NASD as of July 31, 2006, variable annuity cases are consistently the third most  common type of securities arbitration claim, behind stock and mutual funds.  But you can’t expect the industry to clean up its act without a fight. The insurance lobby will keep this popular vehicle alive and breathing at all costs.  At the end of last year, variable annuities held $1.2 trillion of assets, nationally.  Annual variable annuity sales have more than doubled in the past 10 years, with $133.4 billion sold last year, according to Morningstar.  The commissions that insurance agents and securities brokers receive for selling these vehicles are just to wonderful to resist.  The commission received on the sale of a variable annuity is likened to the length of the surrender period.  In other words, if the surrender period is 7  years (the average) the commission paid is approximately 6 -7%.  The commission ranges between 4 and 8%, typically.  In October, 2004, Jonathan Clements of  the Wall Street Journal reported,” Variable annuities are a favorite with unscrupulous investment advisers, who can collect ridiculously high commissions by foisting these turkeys onto unsuspecting investors.”

     You need to understand the moving parts of the variable annuity to protect yourself from purchasing this popular product when its unnecessary.  A variable annuity is, in many cases, an “uninsured” securities/insurance product that provides investment options,  much like mutual funds, for long term investors who want an extra way to save for retirement.  Further, these investment options (sub-accounts) are packaged within a variable annuity on a tax-deferred basis.

     Variable annuities are strictly supplemental retirement investments.  You should never buy one unless you can answer “yes” to these three questions”

     1.  Do you max out your 401-K or other workplace retirement plan every year?

     2.  Do you contribute the maximum each year to an Individual Retirement Account (IRA)?

     3.  If married, does your spouse take full advantage of items one and two, above?

A married couple in their 50’s with his-and-her IRA’s and 401-K’s could theoretically put up to $39,000 into their retirement accounts this year without ever needing a variable annuity.  And even then, tax efficient mutual funds would be a far better place for our financial over-achievers to accumulate their overflow of cash.

     Variable annuities simply cost too much.  Because annuities are primarily insurance products, their fees typically dwarf those charged by mutual funds.  This is simple to understand when you realize there are two players involved instead of one…..the insurance company and the mutual fund company.  According to Morningstar, the average variable annuity passes along expenses of 2.6 percent of the assets per year (In the fourth quarter of 2008, the total average expense for variable annuity contracts without living benefit guarantees was 2.57% per $25,000 investment, according to Morningstar.  This percentage probably won’t mean much to you unless you realize how such a large fee can drain the momentum out or a portfolio.  Lets suppose, for example, that you invested $3,000 a year in a typical variable annuity that generates a yearly 8 percent return before expenses.  At the end of a 25-year period, your annuity would have grown to $168,012.  But guess what happened if you had put that money into tax-efficient index mutual funds, charging between a low of 0.20 percent and a high of .50% in yearly expenses.  You’d have every right to look smug.  The index fund at 0.20% would be worth $230,172.  That’s a difference of $69,160!

     Variable annuities can be taxing.  Salesmen love to boast that you won’t pay taxes on the money that’s growing inside an annuity, because its “tax deferred”.  That’s true, but its only half the story.  You’ll owe ordinary income taxes on every dollar of annuity withdrawals.  That’s right!  You effectively convert capital gains to ordinary income in a variable annuity.  This might not seem so bad until you appreciate what would happen if you had invested the same money in stocks or mutual funds in a plain old taxable account.  These withdrawals would be taxed at long-term capital gains rates, which is only 15%.  So lets say you’re in a 35% ordinary income tax bracket and you’ve got a variable annuity.  You’d pay $350 in taxes for every $1,000 you pull out.  In contrast, if you’d kept this money in a taxable account, you’d pay no more than $150 for every $1.000 withdrawal.  Extending this a bit, an investor cashing out a $100,000 annuity would pay $35,000 in taxes vs. $15,000 in a taxable account.  So it is likely that investors buying variable annuities will actually end up paying more in taxes and having less after-tax wealth at retirement.  In fact, the tax deferral feature of annuities actually harms investors who hold mostly equities in their sub-accounts.  If these investors are not told that they are being tax-disadvantaged by this tax deferral feature, then their brokers are making material misrepresentations and omissions.

     However, for aggressive traders, especially in combination with market timing, the ability to move often among the various sub-accounts without any current taxation may somewhat soften the tax disadvantage.

     But remember, the tax disadvantage won’t die when you do.  It can hurt your heirs.  That’s because your beneficiaries will be saddled with paying capital-gains tax on any profit your annuity generated.  If your original $50,000 annuity grew to $75,000, your heirs would owe tax on the $25,000 profit.  In contrast, if you had placed your money in taxable mutual funds, because of the step-up in basis, your kids would get that $25,000 tax free.

     The death benefit of the variable annuity is always the sounding cry of those that believe wholeheartedly in this questionable product.  This death benefit becomes their crutch when all other arguments fall.  Here is one of the insurance industry’s dirtiest secrets:  The variable annuity’s death benefit is often pointless or superfluous.  It’s the death benefit, however, that promoters love to stress to conservative investors.  With a variable annuity, an insurer guarantees that heirs will receive at least the contributions made into the annuity, less any withdrawals, even if the account later drops in value.  So, if you invest $100,000 in an annuity and the account is worth only $80,000 when you die, your heirs still receive $100,000.  But remember that this variable annuity is supposed to be a long term investment.  What is the likelihood of an annuity with diversified sub-accounts that you start in 2006 being worth less, 10 – 20 years later?  And if you aren’t willing to make that kind of lengthy time commitment, don’t even think about a variable annuity.  There is extensive scientific literature which values the guaranteed minimum death benefit (GMDB) based on the expected returns and variances of alternative sub-accounts and on actuarial estimates of remaining life expectancy.  This literature establishes the value of the GMDB at only five or ten basis points per year. (the higher value of 10 basis points occurs when the GMDB guarantees to pay the net investment increased by a fixed percent per year with the guarantee capped at twice the value of the net investment).  In the book, “The Titanic Option; Valuation of the Guaranteed Minimum Death Benefit in Variable Annuities and Mutual Funds”, by Milevsky, Moshe and Steven Posner, as published in the Journal of Risk and Insurance, 2001, Vol. 68. No. 1, 91-126, Professor Milevsky thoroughly demonstrates the cost solely associated with the mortality guarantee (GMDB) is typically less than 15 basis points.  Therefore, while the GMDB is worth only 15 basis points or less, the Mortality and Expense charged by the insurance company (M&E) is usually greater than one hundred basis points and is invariant to factors which affect mortality risk.  The M&E charge is equivalent to the 12b-1 fees of 1.00% assessed in Class “B” mutual fund companies used to fund substantial upfront commissions paid to brokers who sell the investments. (See comparison of variable annuities to Class “B” mutual funds below).

     This dubious insurance death benefit is costing people big dollars.  Clearly, the insurance industry many times is charging 5 – 10 times the economic value of the guarantee.  According to Morningstar, as of December 31, 2005, the average insurance company charge is 1.35%.  On $1.2 trillion of business, that’s a whopping $15 billion each year.  A study by researchers at York University in Canada and Goldman Sachs a few years age suggested that the insurance fee that’s embedded in variable annuities is way out of proportion with what it’s worth.  A typical life insurance charge can run as high as 1.60%, which would work out to a cost of $3,125.00 per year for a $250,000 variable annuity.  Using the study’s conclusions, a fair and normal death benefit charge for $250,000 of term life insurance would be only $570.00 annually (20 years) for a male age 50 and $398.00 per year for a female the same age and term.  At older ages, however, the situation reverses itself as follows.  A husband age 65 and a wife age 62, each with a $250,000 variable annuity would have a combined death benefit cost of approximately $6,250 annually.   That same family, with the husband and wife each buying a 20 year term policy (necessary to maintain coverage to near life expectancy), would pay a combined cost of approximately $6,863 (standard rates from 4 companies, currently) for the same coverage.  The only condition here is that the individuals can both qualify for standard rates.  This is harder to do at the older ages and true and realistic comparisons must be made.  If standard, the family would enjoy an annual saving of $613 with the variable annuity.  Many brokers sell variable annuities to  families in part based on a claimed death benefit.  This benefit could be miniscule or non-existent and so any such sales claims which are not tempered with realistic assessments of the true value of the death benefit are materially misleading.  And always remember, this death benefit disappears i.e is eliminated upon annuitization.  This feature should always be disclosed.

     But you can bail out.  If you’re trapped in a poorly performing variable annuity, look for the escape hatch.  Its possible to transfer your money directly to another annuity company without triggering taxes through a vehicle called a 1035 tax-free exchange.  You may, however, have to pay surrender charges.  But beware of brokers and insurance agents eager to switch your cash from one annuity to another.  Investors get transferred from one mediocre variable annuity to another many times because brokers receive those healthy commissions every time they persuade someone to switch.

      Finally, run, that’s right run, if anybody approaches you and offers a variable annuity in one of the following manners:

               1.  Put a variable annuity in your IRA.  Remember, your IRA is already tax sheltered.  The variable annuity’s tax advantages are wasted within an IRA.  A mutual fund is much more liquid and cost effective without any of the disadvantages stated above.  If you need life insurance, pure term insurance may be a much cheaper bet and can easily be paid for out of the cost savings of a mutual fund over the variable annuity, often at least 1.20%, annually (V/A – 2.20%  v. M/F – 1.00%).  If the V/A in a traditional IRA (rather than a Roth), you’ll be required to start taking mandatory distributions when you turn 70 1/2, even if the the annuity imposes surrender charges.  And be careful of being taken in by the broker’s promise of guaranteed minimum income: fees and commissions are likely to reduce that income to levels below the amount you could generate be investing your IRA in a more cost effective diversified mutual fund portfolio.

              2.  Take out a mortgage or equity loan on your residence to buy a variable annuity.  Plenty of gullible people have done just that – which is one reason regulators are once again wagging their fingers at the dishonest salespeople who insist on peddling variable annuities to the unsuspecting.

              3.  You are solicited with a variable annuity that contains a bonus for you to come aboard and replace now, often to offset the surrender charges of an existing annuity.  Don’t be fooled!  That bonus will cost you in terms of higher annual costs and/or a lengthened surrender period.  And of course, that increases the commissions paid to the broker who sells it to you.  Some contracts even cause the owner to forfeit the bonus, after receiving it, if withdrawals are taken in the first few years of the policy.  Be especially aware of this onerous provision!

              4.  You are approached by the aggressive salesperson that offers a “new” kind of variable annuity that contains a stepped-up death benefit or a guaranteed income benefit.  That stepped-up death benefit is an additional rider and usually costs more than it’s worth for a long term investment vehicle.  In the older contracts, the guaranteed income benefit is usually only available if you annuitize the insurance contract, i.e. surrender it to the insurance company in exchange for a stream of lifetime income payments.  Historically, about 2% of variable annuities are annuitized.  Losing control of your money is never a good idea and if that’s the only way you can get a guaranteed income benefit, that’s a bad idea!  This is because by the time you need those income payments, you won’t live long enough to use that portion of income that was guaranteed.  Rather, buy a tax-efficient mutual mutual fund and take regular systematic withdrawals, while you keep the asset under your own “control” at all times.

              5.  Someone approaches you on the basis that the variable annuity is a “no load” product.  While it is true that the insurance  company “advances” the commission to the salesperson soliciting you, you pay dearly for that feature.  If you cash in early, the insurance company is reimbursed by charging you a lengthy surrender charge of up to 7%.  It declines each year, reducing their exposure because of the time value of money.  If you hold and get out later, the insurance company is reimbursed for their commission advance by charging you an extra 1.35% (average) each year in expenses.  Either way, you can be sure that they get it back and you face illiquidity and are charged exorbitantly  for the “privilege” of owning this product, structured much like a tax-deferred Class “B” mutual fund in disguise.  (See the chart below for a true comparison).

                6.  Your under 59 1/2 and retire early or get laid off by your employer, and you transfer your 401-K into a Rollover IRA.  The salesperson tells you all you have to do is buy a variable annuity and you can take systematic regular withdrawals from your IRA on a monthly basis without federal or state early withdrawal penalties.  You see, the Internal Revenue Code generally provides that early withdrawals (if they are “substantially equal periodic payments”) from an IRA prior to age 59 1/2 will avoid a 10% tax penalty (and the state penalty) if the early withdrawals are calculated under one of three formulas allowed by the Internal Revenue Service IRC #72 (t) (2)(A)(iv): Notice 89-25, 1989-1 C.B. 662, Q&A 12.

     Most salespeople refer to this procedure as 72-T!  Note the difference between a tax penalty and tax on withdrawals.  While the penalties are eliminated, ordinary income tax on the IRA withdrawals are not.  One of these three methods is known as the “annuitization method,” which allows for computing the withdrawals by dividing the account balance by an annuity factor and using an interest rate “that does not exceed a reasonable interest rate on the date payments commence.”  Notice 89-25, Q&A 12.  This method allows for the largest of the three methods of withdrawal and essentially the method will calculate substantially equal payments over the participant’s life expectancy, taking into account a rate of return not to exceed a reasonable interest rate.  The IRC requires that substantially equal payments must continue for a period of at least 5 years or until the participant attains the age of 59 1/2, whichever is longer.  IRC 72 (t)(4).  However, this warning appears in Tax Management Portfolios U.S. Income Series Compensation Planning series 355-5th; IRA’s, Sep’s and Simple’s at III.D.2.b.3. “The use of the fixed amortization or fixed annuitization methods described above results in a fixed amount that must be distributed and may result in premature depletion of the taxpayer’s account due to a decline in the market value of assets in the account.”

     The big question is this!  Did you need a variable annuity to accomplish these withdrawals without tax penalty!  Not at all.  You already had an IRA so a simple mutual fund would work perfectly at substantially less cost.  Nothing in the tax code even mentions a variable annuity as a means of accomplishing this!  Only the salesperson does.  Further, to make it worse, many salespeople will stretch the limit of the “reasonable” withdrawal by making it so high that it could put your entire IRA into jeopardy.  These practices represent both a material omission as well as a material misrepresentation which to my mind, become fraudulent acts in the securities industry.

     Finally, after all is said and done, one of the the only real “guarantees” the variable annuity offers you, is one you have to die to get.  One would be smart to usually avoid this unfortunate “uninsured” product at all costs.  However, if you and your spouse have maxed out on your 401-K’s and fully contributed to both IRA’s and still need some tax deferral, explore variable annuities offered directly by firms such as Charles Schwab (M&E charge – .75 basis points or .75% annually), T. Rowe Price (M&E charge – .55 basis points or .55% annually), Vanguard and now Fidelity (M&E charge – 25 basis points or .25% annually) and TIAA-CREF (M&E charge – 7 basis points annually)  These companies try to keep the costs down to a more affordable level and will allow you to move your sub-accounts between fund families without cost, unlike traditional mutual funds.  Low-cost annuities, however, represent a mere 3.5% of overall variable annuity sales.

     Further, if you can’t get insurance any other way due to health problems, and have maxed out as described above, then a low cost variable annuity may be appropriate.  Be sure the annuity offers nursing home and terminal illness riders at low cost as well.  Try to select the newer type variable annuity that includes living benefits* like guaranteed accumulation benefits and guaranteed withdrawal benefits (from 14.2  to 20 years), without having to annuitize and losing control of your annuity.  Guaranteed accumulation benefits promise that at a certain future point, the accumulation value will equal the original purchase price, even in a down market.  Of course, these benefits would be stepped up in an up market and locked in automatically to increase the original purchase price.  Guaranteed withdrawal benefits, often in the 6% to 7% range, promise a stated percentage level of withdrawals for a specific number of years, irrespective of market conditions.  The cost for such lifetime income riders averages 1.03% per year, according to Morningstar.  That brings the total cost of newer variable annuities into the 3.50% – 3.60%  range, according to Morningstar.  Additionally, search for variable annuities that offer no longer than a three year surrender period, irrespective of deposit additions during that 3 year period.  Also remember that a variable annuity should have less turnover than a traditional mutual fund and tends to be fully invested in its sub-accounts, unlike a mutual fund that typically keeps 10 to 15% in cash to meet redemption requests.  Then, unlike a group of diversified mutual funds where there would be a transfer charge for going from one family to another, trading into sub-accounts across fund families within a variable annuity does not incur any fees.  Further, look for some of the newer variable annuities that use Exchange Traded Funds (ETF’s) for the sub-accounts (Integrity Life Insurance Company of Cincinnati, OH) instead of cloned mutual funds to dramatically lower management costs.  Finally, always consider using a laddering strategy for annuity sales over $100,000.  By combining different insurance companies and different types of annuities i.e. fixed and equity index (see article that follows) (principal is guaranteed in these products), this strategy can provide clients with the flexibility of both income distribution and asset accumulation (be sure the contract can be annuitized, free of surrender charges, after one year).

     However, even with low cost variable annuities, one must compare the possibility of investment losses to a low cost mutual fund, short of a significant need for life insurance.  The fact is, the possibility of investment loss endows the holder of the mutual fund with a real tax option to harvest those losses.  A 2008 study by First Quadrant, an investment-management firm based in Pasadena, CA, found that investors who harvested their losses over 25 years added a median cumulative gain of 20% to their after-tax returns.  The study compared regular harvesters with a buy-and-hold investors in the 35% tax bracket.  The strategic investor can re-establish a similar position at a lower tax-basis, and deduct any current losses against comparable gains.  De facto, this creates a tax refund, which supplements the return from the mutual fund.  Indeed the recent market decline during the 2000-2001 period has generated much tax-loss selling activity.  This type of strategy cannot be easily employed within a variable annuity.  Since, despite the favorable ordinary income treatment on losses, which can be netted against ordinary interest gains, lapsing or selling, the variable annuity will most likely induce surrender charges on the order of 4-7%.  How does the low cost mutual fund (with the real tax option) compare to the low cost variable annuity?   It can take as long as 35 years for the investment in the variable annuity to outperform the investment in the mutual fund when the real tax option is utilized.  If we compare the two after taxes, the investment horizon needed for the mean of after-tax wealth from the variable annuity to be greater than the mutual fund with the real tax option to be at least 14 years.  Even with low-cost variable annuities, with insurance expenses lower than 10 basis points, it still takes 10 years for that variable annuity to outpace the results of a low cost mutual fund.  What if we compare the two on a risk-adjusted basis?  With the average cost variable annuity with 125 basis points of insurance expenses, the risk-adjusted break-even horizon can be as high as 30 years (the higher the standard deviation of the gross return, the longer the horizon needed for the variable annuity to outperform the mutual fund).

     Further, a new Treasury Department rule, effective on January 1, 2006, will impact calculations of required minimum distributions (RMD’s) for IRA’s and 403B’s that are invested in variable annuity contracts.  In order to determine an account holder’s RMD amount, the “entire interest” under the contract will have to be used in the new calculation.  This new regulation defines the entire interest under the contract as the 12/31 account value of the prior calendar year plus the actuarial value of any additional benefits provided under the contract.  This new calculation mainly impacts contracts issued with a rider benefit such as the Guaranteed Minimum Death Benefit (GMDB) or Guaranteed Living Benefit (GLB).  The actuarial present value of these additional benefits will be included to determine RMD’s beginning in 2006.  While this new rule stresses the importance of these additional rider benefits, it would also seem to indicate that the RMD would have to be based on the death benefit or stepped up basis rather than the surrender value of the contract.  The same would be true for the living benefit.  This could be a major problem for those with big losses in their existing variable annuity.

     Finally, FINRA has proposed long overdue rule changes for the $1.2 trillion variable annuity industry and brokers and advisers that market the product.  The changes proposed include specific requirements for sales practices including new suitability, disclosure and supervision provisions along with enhanced sales force training.  FINRA cited the 80 variable annuity sales practice disciplinary actions over the last two years as the impetus for this increased investor protection warranted.  From January 2000 through November 2008, the FINRA took 286 enforcement actions against firms and individuals for variable annuities infractions.

     A Spring 2002 NASD Regulation, Inc. Regulatory & Compliance Alert stated, “Members also should carefully consider the impact that a proposed transaction might have on an investor’s financial status before recommending the transaction.  In this regard, the recent stock market drop has had a negative effect on many variable annuity contract values and variable annuity death benefits.  A recommendation that an investor replace his or her existing variable annuity contract with another contract could result in the new variable contract having a smaller value and death benefit than the original contract.  In addition, members must keep in mind that the suitability rule applies to any recommendation to sell a variable annuity regardless of the use of the proceeds, including situations where the member recommends using the proceeds to purchase an unregistered product such as an equity-index annuity.  Any recommendation to sell the variable annuity must be based upon the financial situation, objectives and needs of the particular investor”.

      In one of the most most recent settlements, Waddell & Reed agreed to pay a $5 million fine and up to $11 million in restitution to more than 5,000 customers whose annuities were exchanged by the firm.  Sales representatives are responsible to make sure their recommendations of V/A sub-accounts are suitable and consistent with the investor’s investment objective and risk tolerance.  Further, as changes are made by the representative with a letter of authorization (LOA) from the client, it is essential that these changes of sub-accounts continue to be suitable.   Supervisory review is essential in this regard since the brokerage firm receives variable annuity account statements from the insurance company who issues the annuity contract.

     The SEC has just passed Rule 2821, a controversial new rule regarding variable annuities.  This rule imposes new requirements on financial services firms in four areas.  The areas are: suitability; review and approval by a principal of the financial services firm; supervisory and compliance procedures; and training of financial advisers.

     First, the suitability rule requires advisers to have a “reasonable basis” for believing the purchase or exchange of a deferred variable annuity to be suitable.  Specifically, in the case of a purchase, the new rule requires that: (1) the investor has been informed generally about the features of deferred variable annuities (such as surrender charges, taxation, tax penalties and market risk); (2) the investor will benefit from certain features of the deferred variable annuities (such as deferred growth, annuitization, or death or living benefits; and (3) the annuity as a whole, the initial sub-account allocations, riders and similar product enhancements, if any, are suitable for the investor.  Further, in determining whether an annuity exchange is suitable, financial advisers must take into consideration whether: (1) the customer will incur a surrender charge, be subject to a new surrender period commencing, lose existing benefits (such as death, living or other contractual benefits), be subject to increased fees or charges such as mortality and expense fees, investment advisory fees or charges for riders and similar product enhancements; (2) the customer will benefit from product enhancements and improvements; and (3) the customer’s account has had another deferred variable annuity exchange within the preceding 36 months.

     Second, Rule 2821 requires that, prior to recommending a variable annuity, the financial adviser must make reasonable efforts to obtain a host of personal and financial information related to the investor.  At a minimum, the rule requires making reasonable efforts to obtain information concerning the investor’s age, annual income, financial situation and needs, investment experience, investment objectives, investment time horizon, existing assets (including investment and life insurance holdings), liquidity needs, liquid net worth, risk tolerance and tax status.  The rule also requires something unique: the financial advisor must make reasonable efforts to determine the customer’s “intended use of the deferred variable annuity”.

     Third, in the SEC’s release approving Rule 2821, a footnote states, that: “The general suitability obligation requires a [financial services firm] to consider its customer’s ability to understand the security being recommended, including changes in the customer’s ability to understand, monitor, and make further decisions regarding securities over time”.

     New Rule 2821 also imposes significant requirements relating to the review and approval of deferred variable annuity transactions.  First, a principal at the financial services firm must review and approve the purchase or exchange not only in writing but also in advance of the transaction.  Moreover, if by this review the principal determines that the transaction is unsuitable – whether or not the financial adviser is recommending the transaction – the transaction cannot be consummated, unless the customer nevertheless affirms that he or she wishes to proceed with the transaction (despite being informed that the financial adviser’s supervisor has not approved the transaction and the reason(s) why).

     Clearly, a new and heightened standard of suitability, review and approval now exists to better protect investors purchasing or exchanging deferred variable annuities.  This is welcome news given what securities regulators have identified as “numerous instances of questionable sales practices!”

     *  GMIB – A guaranteed minimum income benefit guarantees that when a contract is annuitized (converted into retirement income payments), the income payments will be based on the greater of the actual contract value or a minimum payout base.  This base typically is equal to the amount invested credited with a competitive rate of interest (5% is common).   These were available in 45.3% of contracts in 2005, down from 52.6% in 2003.  With this benefit, you have to annuitize.

        GMAB – A guaranteed minimum accumulation benefit guarantees that the variable annuity contract value will be a least equal to a certain minimum amount (typically, the premium amount) after a specified number of years, regardless of account actual performance.  These were available in 36.8% of contracts in 2005, up from 20.1% in 2003.

        GMWB – A guaranteed minimum withdrawal benefit guarantees that a fixed percentage (generally 5% to 7%) of the annuity premiums can be withdrawn annually for a specified period of time until the entire amount of paid premiums has been withdrawn, regardless of market performance.  This feature typically does not require policy annuitization.  A GMWB-for-life guarantees an income payment for life at a reduced percentage.  These were available in 79.8% of V/A contracts in 2005, up from 44.4% in 2003.

         GLWB – A guaranteed lifetime withdrawal benefit allows the option to receive income payments at a fixed percentage for life, thus protecting against outliving this particular income stream.  This rider is costly and does not offer an inflation-adjusted income.

           GLIB – A Guaranteed Lifetime Income Benefit, which combines a guaranteed growth rate with a guaranteed withdrawal rate.  The guarantees are applied to an income base and not to the account value, which fluctuates over time.  For example, a GLIB VA purchased at age 55 with a 5% guaranteed growth rate and a 5% lifetime income amount starting in 15 years (age 70) represents only a 0.88% cash-equivalent yield.  If the guaranteed growth is 5% but the lifetime income benefit is 6%, the cash-equivalent yield is just 2.12%.   Alternatively, a GLIB VA purchased at age 55 with a 6% guaranteed growth rate and a 6% lifetime income amount starting in 15 years (age 70) represents only a 3.09% cash-equivalent yield.  On a time value of money basis, these actual cash-equivalent returns make no sense whatsoever!

     Obviously, these riders do not come free.  Typically, they cost on the average, 0.70% additional per year.  Added to the average cost, that increases the total variable annuity expense burden from 2.57% to 3.27% per year.  Assuming then, an inflation factor of 3%, the investment would have to earn 6.27% just to break even.  The difference in the guaranteed lifetime withdrawal benefit and the guaranteed minimum withdrawal benefit is the latter does not guarantee payments for life but only until the “benefit base” falls to zero.  In the guaranteed lifetime withdrawal benefit program, the investor can “step-up” the withdrawal amount if the account balance exceeds the benefit base.  In order to allow income to step up on a regular basis after withdrawals start, the annual return would need to be 11.27%, due to the 5% annual withdrawal.  However, some annuity issuers increase the rider cost for the step-up exercise from 0.70% to 1.4%.  That would mean that earnings would need to approach 12% to be profitable.

     Often, but not always, living benefit guarantees require the owner to elect and adhere to an asset allocation model i.e.30% in bonds, or full investment in a fund-of-funds.  Where these options aren’t required, investors may be prohibited from buying very aggressive, high beta investments.  Insurers use such investment allocation practices to manage the risk of providing these guarantees.  Further, with some companies, there may be a waiting period of 5 – 7 years for these income and withdrawal benefits.  This is of course necessary to cover the 5 -7 % commission advanced by the insurance company.  Further, be certain that the guaranteed death benefit is not sacrificed when any of these income benefits are taken.  Finally, remember, guaranteed living benefits are not without risk.  Citigroup Smith Barney did a study of  “The New Variable Annuity” in September 2004.  This study points out that guaranteed living benefits are more risky than the variable annuities with death-benefit guarantees that caused havoc at Allmerica Financial and American Skandia in 2002. Finally, an insurance company promising these guarantees (upside with no downside) could face reserve-strengthening requirements that could exceed their free surplus — the definition of insolvency.  A possible result could be that many investors would be left with the actual market values in their variable annuity sub-accounts, without the income guarantees.  In the Wall Street Journal, November 5, 2008, Colin Devine, an analyst at Citigroup Global Markets stated, “Some of the new guarantees are potentially the riskiest liabilities the industry has ever underwritten”.  Amid the bear market of November 2008, insurers’ shareholders fled the stocks, concerned about the mounting costs of making good on the guarantees, many of which are complex and difficult for consumers and investors alike to decipher.  Analysts also are worried about the hedging strategies insurers adopted to protect themselves against the cost of those guarantees.  Milliman, Inc., a Chicago consulting firm that advises some insurers on hedging programs, calculates an 80% increase in the hedging cost of a commonly sold, lifetime guaranteed-minimum withdrawal benefit for the 12 months through October 31, 2008.  Hartford is already re-pricing its annuity guarantees due to losses due to guarantees’ liability outpacing its hedging gains and AXA Equitable has eliminated its 6.5% option with only the 6% option remaining at a bumped-up price.  As of May 2009, a number of carriers have stopped making appointments and taking new applications due to cash flow and reserve concerns related to these guaranteed benefits.  While this situation improved in 2010, a number of carriers have closed many sub-accounts, making them unavailable to existing investors and limiting rebalancing options.  Further, one major carrier, communicated to existing policyholders offering the replacement of their new contract by surrendering the old one.  The brokers who had sold these original contracts were not sent this communication in advance of their client’s receiving it!  Upon review of the new insurance contract being offered, many brokers felt that not only were they blindsided, but that the company was really offering the new contract due to the fact that it was unable to meet the contractual obligations of the living benefit guarantees in the original contract.  This became obvious when they were absent from the new contract being offered in exchange to the broker’s customers.

     It is important to note that these guarantees literally make the variable annuity a “derivative” product when you consider the speculative elements of these guaranteed features promised in the distant future!

     Of redesigned products now hitting the market, “Retirement Cornerstone” from AXA Equitable Life Insurance Co. incorporates market gains into customers’ benefit bases just once every three years.  But a big selling point is expected to be its use of a floating rate to determine minimum rises to those bases and the size of annual checks ultimately pegged to them, rather than the static 5% in most rival products.  Should interest rates rise as many economists expect, the floating rate would put more money in the pockets of buyers who use the safety net.  The rate will be set annually at one percentage point above the 10-year treasury, ranging from 4% to 8%.  So how is this benefit base calculated?  Under contracts that got many insurers into trouble, it is “reset” at least annually to incorporate gains from the owner’s funds and many contracts promise minimum annual boosts of 7%.  Since the crisis, new contracts typically give 5% boosts.  So owners in their mid-to late-60’s are eligible for annual income of 5% of the base, with interest rate adjustments that will appeal to many baby boomers who are worried about inflation.

     Unfortunately, many of these guarantees also possess small print in the insurance company contracts that virtually render them useless!  Under some provisions, the insurance company that issued the contractual guarantee can cancel it or sharply reduce its annual payout.  This is critically important since now, tens of billions of dollars of contracts with these illusory provisions are in the hands of consumers, and the market’s nose dive makes those guarantees much more important to investors.  Many investors are counting on their guarantees to make up for the the losses in their underlying sub-accounts.  There are two large types of dangers that could leave the investor without a guarantee.  One affects certain contracts sold from the late 1990’s until as late as about 2006.  Newer contracts often contain safeguards to protect investors from inadvertently losing their living benefit payments under the guarantee provision.  But the new contracts contain a different provision that could lead to problems.

     Lets look at the older provision first.  This affects contracts that typically require a waiting period  – often about 10 years after the variable annuity is purchased – before the owner can begin collecting annual income checks.  In these contracts, insurers say they have the right to terminate the guarantee if the underlying investment accounts don’t contain enough money at any point during the waiting period to cover the annuity’s yearly fees.  These often run between 2.5% – 3.0% annually.  Investment losses alone wouldn’t likely cause an account balance to go to zero, because many of the fees are based on the percentage of the account market value; and as the values shrink, so do the fees.  The problem comes about when investors are exercising their right to make penalty free withdrawals during the waiting period – something that lots of people may need to do as the economy staggers along.  If investors don’t leave enough in their already-shrunken accounts to cover the annual fees, the guarantee unwittingly could be lost.  So withdrawals and losses together could combine to deplete the account during the waiting period and render the guarantee worthless.  Investors opting for an automatic withdrawal program under IRS 72(t) would be especially vulnerable when account losses are added to scheduled withdrawals.

     Lets explore that second provision.  Insurers began to redesign these initial offerings as the bear market of 2000-02 ground on.  By about 2003, they were beginning to add  what is commonly known as a no-lapse-guarantee feature: Customers whose fund balances go to zero during the waiting period are allowed to immediately start their lifetime stream of guaranteed-minimum income payments, albeit at a potentially lower annual amount that if they had waited.  However, even if you have the no-lapse-guarantee provision (AXA Equitable Life Insurance Co. has offered it since January, 2005), you can unwittingly take steps that terminate this feature.  In some contracts, this no lapse guarantee is terminated if the customer makes an “excess withdrawal”.  All it takes is one excess withdrawal for that

to disappear!  Surrender free, permitted withdrawals typically range from 6% to 10% or $6,000 to $10,000 per $100,000 contract.  In those cases, withdrawals of $6,001 or $10,001 would contractually be considered “excess” if taken in any single year would forfeit the no lapse guarantee.  Insurance carriers are remiss to notify customers when an excess withdrawal is requested since they claim they are obligated to do what the client wants.  Typical insurance company brochure language typically states something like, “If you make an excess withdrawal, you could reduce the amount of future withdrawals – see the prospectus for details”.  Clearly this not full and fair disclosure.  One company, AXA Equitable firmly disagreed with the assertion that the contracts are in any way misleading.  It  responded that the possibility of a contract termination is “inherent and does not need to be expressly stated.  When the charge for insurance coverage is unpaid, the insurance terminates”.  To make it worse, some insurer’s computer systems can’t even recognize that it is an excess withdrawal when they process it.  Two insurers have been trying to do a better job in notifying both investors and their advisors when excess withdrawals could jeopardize the guarantee.  They are MetLife Inc. and Ohio National Financial Services, Inc., as reported in the Wall Street Journal on June 1, 2009.  However, the problem continues to persist when the customer requests the excess withdrawal by mail, without actually talking with the insurance company or his adviser.  The result – an automatic voidance of the no-lapse feature or with some companies, a reduction of the benefit base.  One insurance carrier expressed the helpful thought that not taking withdrawals would help preserve account value.


     Clearly, insurers need to do a much better job of spelling out these potential dangers to customers.  This type of written notification is critically needed since investors may unknowingly be putting extra pressure on their annuity contracts by withdrawing needed funds to live on, or investing in overly aggressive equity choices that are most vulnerable to market value declines.

     Some V/A insurance carriers are modifying the living guaranteed benefits they offer.  Since the beginning of 2009, 90% of the top 20 insurers that sell variable annuities have altered their guarantees, says Gerry Murtagh, manager of Ernst & Young’s  Retirement Knowledge Bank.   MetLife, a leader in the guaranteed minimum income benefit (GMIB) area, raised fees on its GMIB rider in February from 80 basis points to 100 basis points, and hiked fees on its limited withdrawal guarantee from 65 basis points to 125 bps – with additional changes to withdrawal guarantees scheduled for mid-year.  AXA Equitable cut its GMIB rate from 6.5% to 6% in November and then down to 5% in February.  Meanwhile, some companies are cutting benefit riders altogether.  In March, MassMutual suspended the sale of its GMIB riders, as well as Guaranteed Withdrawal benefits on some of its V/A contracts.  Further, credit rating agencies are taking a harder look at insurance carriers heavily exposed to variable annuities and whose investment portfolios have taken a big hit.  Already, the sector has been the target of numerous downgrades.  Hartford Financial Services, Group, Lincoln National, Metlife, Protective Life and Prudential Financial are just some of the companies whose ratings have been cut this year.  In 2008, there were 31 downgrades in the life insurance sector, versus just eight upgrades.  Before the crisis, annual V/A costs often topped 3% of the account, and they now often hit 3.5%.  Meanwhile, some contracts now cap a 65-year-old’s withdrawals at 4% among other cutbacks.  And in another move to reduce risk, many insurers require buyers to hold at least 30% of their money in bonds.

     Here is an interesting statistic:

          95% of all contracts had at least one living benefit in 2009, up from 86% in 2005.

     The whole withdrawal concept is further strained by the method by which the insurance company calculates the remaining death benefit after a market decline.  It is essential to analyze the withdrawal method at this time since investors need withdrawals more during a market correction.  Consider the following example.  If an investor invested $100,000 and the market value dropped to $50,000 and further, the investor withdrew $48,000, consider the following comparison.  In the “dollar-for-dollar” calculation, the accumulation value of the contract would be only $2,000 but the remaining death benefit would be $52,000 ($100,000 minus $48,000).  However, in the “pro-rata” calculation, the results are quite different.  The percentage is now $48,000 divided by $50,000.  The calculation would now be $100,000 minus the 48/50 of $100,000 (96%), yielding a death benefit of only $4,000.  In this situation, the investor has an accumulation value of $2,000 with a death benefit of only $4,000.  Of the leading companies, only one, Hartford utilizes the “dollar-for-dollar” calculation method for establishing the remaining death benefit after withdrawals.  With most of the leading insurance carriers using the “pro-rata” method of calculating the remaining death benefit, one can see how superfluous these Guaranteed Withdrawal Benefits really are in a declining market..  The death benefit virtually disappears under the “pro-rata” method at a time when investors need these withdrawals the most.

     In March, 2008, FINRA, as part of its ongoing efforts to curb abuses in the sale of variable annuities, has fined Banc One Securities Corporation (BOSC) of Chicago, IL (in 2006, BOSC merged with J.P. Morgan Securities, Inc.) $225,000 for making unsuitable sales of deferred variable annuities to 23 customers and for having inadequate systems and procedures governing annuity exchanges.  Twenty-one of the 23 customers were over 70 years old.

     In addition to the fine, FINRA is requiring the firm to allow each of the 23 customers to sell their variable annuities without penalty.  Ordinarily, these variable annuities would have been subject to a six-year “surrender period” during which time the customers would have been required to pay surrender charges as high as 7% of the amount invested if they were sold in the first two years.  The firm, consenting to the findings without admitting or denying the charges, will also pay restitution of about $6,500 to two customers who incurred surrender charges when exchanging annuities.

     “The exchanges at issue in this case appeared to have no real benefits to the customers, while subjecting them to new sales charges and locking up their money for a new, six-year surrender period.”  FINRA found that in each of the 23 transactions between January 1, 2004 , and June 30, 2005, BOSC representatives recommended that the customers exchange their fixed annuities then paying a minimum return of 3%, for variable annuities.  Following the exchange, the customers placed 100% of their assets into the fixed rate feature of the variable annuity, which paid a maximum return of 3% – as recommended by BOSC representatives.  All but one of the fixed annuities were beyond the surrender period – that is, the customers were not subject to any financial penalties if they withdrew any of their funds from the fixed annuity.  Each of the newly purchased variable annuities was subject to a six-year surrender period requiring the customers to pay a penalty if they withdrew more than the sum of their earnings and 10% of their principal.  FINRA found that each of these 23 recommendations was unsuitable given the customers age, investment objective, financial situation and income needs.

     FINRA further found that BOSC failed to adequately supervise these transactions and that the firm’s supervisory system and procedures failed to require firm supervisors to obtain or consider certain critical information, such as the costs and benefits of features of the new and exchanged product, which are necessary for conducting the required suitability review of a variable annuity exchange.

     Western and Southern Financial Group Inc.’s decision to base its V/A investment sub-accounts on exchange traded funds (ETF’s) is a positive, allowing the insurance Co. to better manage risk, according to Moody’s Investors Service.  The V/A called Varoom, is available exclusively for rollovers and gives investors access to 18 fixed-income funds and equity ETF’s from Vanguard and iShares, plus a handful of international and alternative funds, such as the iShares S&P/Citigroup International Treasury Bond Fund.  Moody’s applauded the insurance company’s improved ability to hedge as a credit positive.  Some insurers suffered when their hedging programs failed to protect their actively managed funds from the market tumult in 2008 through early 2009.  Lincoln National Corp., for instance, lost $336 million in the third quarter of 2008 due to B/A hedging “breakage”.  Hartford Financial Services, Inc., had a V/A hedging loss of $384 million during the fourth quarter of 2008.

     As a result of these hedging losses, a number of insurers have raised costs and reduced living benefits in 2010.  In 2008, many insurers struggled with books of V/A business that either had been mispriced or poorly hedged, leaving them vulnerable to low interest rates and high volatility in the equity markets.  For example, Prudential Financial, Inc. reduced the compounded growth on the protected value  in its V/A’s to 5%, from 6%.  Met Life will also reduce the annuitization rates in its income benefit for new sales as of Feb. 28, 2011.

Source:  VARDS Products, Morningstar, National Association for Variable Annuities, INvestment News and SEC Law.com.

This article was taken from an exclusive interview with infofaq..



  Securities regulators in Massachusetts are questioning fifteen financial firms, including some of the largest brokerage firms, regarding the suitability of variable annuities for clients age 75 and older.  These individuals are known as super seniors.  Other regulators also have placed a spotlight on the sale of variable annuities.  A joint report that the SEC and the NASD issued in 2004 highlighted numerous abuses, such as excessive switching of policies, failure to disclose material facts and unsuitable sales.


     But the Massachusetts inquiry is notable because of its bright-line test – sales to anyone age 75 or older.  Massachusetts Secretary of State Galvin has identified “unethical or dishonest conduct” for “systematically targeting” senior citizens, particularly as their CD’s mature.  Galvin correctly has said, “This is a form of elder abuse if I ever saw it.  “Variable annuities are uninsured (no guarantee of principal), bear market risk, carry high fees and impose surrender charges as high as 7% for early withdrawals”.


     The investigation is “snowballing”, and now includes large brokerage firms such as Morgan Stanley, UBS, Merrill Lynch, Wachovia Securities and American Express.  Banking firms include Citizens Financial Group, Sovereign Bancorp and FleetBoston Financial Corp., now owned by Bank of America Corp.


     Then, the underbelly of variable annuity sales again was exposed, this time by Waddell & Reed’s $16 million fine for wrongfully switching its customers’ variable annuities.  Quite simply, Waddell & Reed placed its financial interests ahead of its customers’ well-being when, in 2001 and 2002, it switched about 5000 customers out of their United Investors Life Insurance contracts and into Nationwide Insurance Company contracts.  Why?


     Nationwide Insurance Company had agreed to pay Waddell & Reed fees in a fee-sharing agreement that would benefit the company’s brokers and its bottom line.  As Mary Schapiro formerly head of the NASD stated, “What was most troubling about the case is what a concerted effort and aggressive campaign it was on the part of the company.  There was little regard given to whether this was good for investors.”


     Despite proclaiming its innocence months ago and promising a vigorous defense, Waddell & Reed now has agreed to pay as much as $11 million in restitution to customers.  The firm also will pay a $5 million fine to  FINRA and a $2 million fine to state regulators.  The variable annuity switches cost Waddell’s customers almost $10 million in surrender charges (fees paid to exit a variable annuity early).  Thankfully, FINRA also sent a message to executives.  Waddell & Reed’s former president, Robert Hecher, was suspended for six months and fined $150,000.  Waddell’s former national sales manager (now senior vice president for public affairs), Robert Williams received the same sanction.


     In the Joint SEC/NASD Report on Examination Findings Regarding Broker-Dealer Sales of Variable Insurance Products (Annuities) (June 2004) at page 8 (emphasis added), it stated, “As part of this obligation of fair dealing, broker-dealers must have a reasonable basis for believing that their securities recommendations are suitable for the customer in light of the customer’s financial needs, objectives and circumstances.  In addition, broker-dealers must have a reasonable basis for believing that the particular security being recommended is appropriate.  Under FINRA Rule 2310 and IM 2310-2, when a broker-dealer recommends a security to a customer, it must determine that the security is suitable for that customer in light of that customer’s particular age, financial situation, risk tolerance, and investment objectives”.

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