Wells Fargo Customer Wins $181,000 For Failure to Cash Out

July 25, 2016

BrokeAndBroker.com Blog publisher Bill Singer doesn't like today's reported FINRA Arbitration Decision involving a customer complaint. First, it's unclear whether the customer claims alleged misconduct that should have resulted in any award --but the rendering of the six-figure award may be entirely appropriate but for the fact that there is no meaningful content and context provided in the Decision and no rationale for the award. Second, we are confronted with the puzzling anomaly of how and why the customer complaint and Award appear on the BrokerCheck files of the FINRA member firm but not on the BrokerCheck files of the registered representative.

Case In Point

In a Financial Industry Regulatory Authority ("FINRA") Arbitration Statement of Claim filed in September 2014, Claimant Ann Oldfather alleged breach of fiduciary duty and failure to execute. In the Matter of the FINRA Arbitration Between Ann B. Oldfather, Individually, as Trustee of the Oldfather & Morris Profit Sharing Plan, and as owner of the IRA, f/b/o Ann B. Oldfather, Claimants, vs. Wachovia Securities, LLC; Wachovia Securities Financial Network, LLC; Wells Fargo Advisors, LLC; Wells Fargo Advisors Financial Network, LLC; and Jill Flick Bradley, Respondents (FINRA Arbitration 14-02953, July 18, 2016). Claimant sought at least $150,000 in compensatory damages, interest, costs, and attorneys' fees. As more fully set forth in the FINRA Arbitration Decision:

[C]laimants alleged that Ann B. Oldfather repeatedly contacted Jill Flick Bradley in September and October of 2008 and directed her to move all of the account assets to cash, but that Jill Flick Bradley discouraged Ann B. Oldfather from doing so. Claimants alleged that because their directions were not implemented in a timely manner, her losses were at least $150,000 due to the market downturn.

Respondents Wachovia, Wells Fargo, and Bradley generally denied the allegations and asserted various affirmative defenses.

The FINRA Arbitration Panel found Respondents jointly and severally liable to and ordered them to pay to Claimants $181,757.12 in compensatory damages plus 85 per annum post-award interest until the award is paid in full.

Bill Singer's Comment

Not much meat on the FINRA Arbitration Decision bones; moreover, the squib cited above raises a number of perplexing issues. Basing my analysis solely on the two sentences quoted above (and there is no further substantive presentation of the facts of the case in the Decision), we are told that Claimants "repeatedly contacted" registered representative Bradley and "directed her to move all of the account assets to cash . . ." Okay, that allegation strongly asserts that repeated directions were given to the servicing rep and that Bradley disregarded those directions. In my opinion, if those were indeed the facts, then Respondent Bradley engaged in misconduct that should properly resulted in a monetary award.

Discouraged

The problem with comfortably reaching the aforementioned conclusion is that the Decision qualifies the customer's allegation of having given repeated instructions that were disregarded. In fact, the Decision includes further commentary that the repeated directions to move assets to cash were "discouraged" by Respondent Bradley.  An interpretation of term "discouraged" (but by no means the only possible interpretation) is that the rep and her client discussed the client's strong conviction to move assets but that the client changed her mind after considering the rep's objections -- hence, Claimant was "discouraged" by Respondent.  Recall that these acts of instruction and discouragement were occurring during the onset of the Great Recession.  

SIDE BAR: What if the rep were correct and by remaining in cash the client would have quadrupled her account values? In my opinion, that is irrelevant. Here, the customer complaint is not resolved by hindsight analysis but by asking very simple question: Was a client instruction disregarded. Period.

Do registered rep have an obligation (legal or otherwise) to discuss and debate a customer's proposed account decisions? I would think so --and, to some extent, many of those discussions and debates may be engendered by FINRA's "Suitability Rule" (see below). In this case, however, there was no allegation of "unsuitability." Notwithstanding, legal, regulatory, or ethical considerations, once a given debate or discussion ends, either the registered rep carries out the client's final instructions or consistent with suitability obligations, the rep promptly informs the customer that their instructions appear unsuitable and the rep feels compelled to immediately contact a superior and arrange to have another rep or the firm enter and execute the purportedly unsuitable orders. In reality, such a lateral is virtually unheard.  

All of which returns us to what I view as the key issue in the arbitration: Did Respondents willfully disregard Claimants's instructions to move assets to cash; or, in contradistinction, did Respondents discuss Claimants's instructions and succeeded in "discouraging" her from making what Respondents may have deemed a hasty move?

To be clear -- to be very clear -- I am NOT even remotely suggesting that Claimants have not satisfactorily alleged their grievances and, thereafter, fully carried their burden of proof. What I am arguing is that the brevity of this FINRA Arbitration Decision renders a disservice to the Claimants through a somewhat flip presentation of the charges and verdict; and also renders a disservice to the Respondents by not fleshing out whatever defenses they may have raised. Keep in mind that Claimants did not allege fraud or unsuitability but only that there was a breach of fiduciary duty and a failure to execute their demanded asset liquidations into cash.

BrokerCheck Disclosures

Then there's another aspect of this arbitration that raises questions. According to online FINRA BrokerCheck records as of July 25, 2016, Respondent Bradley has been registered since 1980, and by 1999 was associated with Wells Fargo Advisors, LLC.  Notably, after a 36-year career on Wall Street, there are no regulatory or customer-complaint disclosures on her BrokerCheck record. Now, mind you, I'm a bit puzzled by that because the FINRA Arbitration Decision that is reported in today's blog indicates that the Statement of Claim was filed about two years ago in September 2014 and you would sort of think that there would have been a reference to that in registered representative Bradley's BrokerCheck file but, hey, I've never quite figured out the mysteries of what does and doesn't get posted on BrokerCheck and how FINRA-the-regulator would not have the ability to discern that an ongoing customer complaint in its arbitration forum was not disclosed in its BrokerCheck file.

Maybe the Oldfather customer complaint didn't need to be disclosed? It didn't allege any fraud or theft of customer funds/securities by Respondent Bradley. On the other hand, the damages sought were at least $150,000 pursuant to a formal, written FINRA Arbitration Statement of Claim. More puzzling is when you go to Wells Fargo's BrokerCheck file, you find the following disclosure:


FINRA Rule 2111. Suitability

(a) A member or an associated person must have a reasonable basis to believe that a recommended transaction or investment strategy involving a security or securities is suitable for the customer, based on the information obtained through the reasonable diligence of the member or associated person to ascertain the customer's investment profile. A customer's investment profile includes, but is not limited to, the customer's age, other investments, financial situation and needs, tax status, investment objectives, investment experience, investment time horizon, liquidity needs, risk tolerance, and any other information the customer may disclose to the member or associated person in connection with such recommendation.

(b) A member or associated person fulfills the customer-specific suitability obligation for an institutional account, as defined in Rule 4512(c), if (1) the member or associated person has a reasonable basis to believe that the institutional customer is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies involving a security or securities and (2) the institutional customer affirmatively indicates that it is exercising independent judgment in evaluating the member's or associated person's recommendations. Where an institutional customer has delegated decisionmaking authority to an agent, such as an investment adviser or a bank trust department, these factors shall be applied to the agent.

* * * Supplementary Material * * *

.01 General Principles. Implicit in all member and associated person relationships with customers and others is the fundamental responsibility for fair dealing. Sales efforts must therefore be undertaken only on a basis that can be judged as being within the ethical standards of FINRA rules, with particular emphasis on the requirement to deal fairly with the public. The suitability rule is fundamental to fair dealing and is intended to promote ethical sales practices and high standards of professional conduct.

.02 Disclaimers. A member or associated person cannot disclaim any responsibilities under the suitability rule.

.03 Recommended Strategies. The phrase "investment strategy involving a security or securities" used in this Rule is to be interpreted broadly and would include, among other things, an explicit recommendation to hold a security or securities. However, the following communications are excluded from the coverage of Rule 2111 as long as they do not include (standing alone or in combination with other communications) a recommendation of a particular security or securities:

(a) General financial and investment information, including (i) basic investment concepts, such as risk and return, diversification, dollar cost averaging, compounded return, and tax deferred investment, (ii) historic differences in the return of asset classes (e.g., equities, bonds, or cash) based on standard market indices, (iii) effects of inflation, (iv) estimates of future retirement income needs, and (v) assessment of a customer's investment profile;
(b) Descriptive information about an employer-sponsored retirement or benefit plan, participation in the plan, the benefits of plan participation, and the investment options available under the plan;
(c) Asset allocation models that are (i) based on generally accepted investment theory, (ii) accompanied by disclosures of all material facts and assumptions that may affect a reasonable investor's assessment of the asset allocation model or any report generated by such model, and (iii) in compliance with Rule 2214 (Requirements for the Use of Investment Analysis Tools) if the asset allocation model is an "investment analysis tool" covered by Rule 2214; and
(d) Interactive investment materials that incorporate the above.

.04 Customer's Investment Profile. A member or associated person shall make a recommendation covered by this Rule only if, among other things, the member or associated person has sufficient information about the customer to have a reasonable basis to believe that the recommendation is suitable for that customer. The factors delineated in Rule 2111(a) regarding a customer's investment profile generally are relevant to a determination regarding whether a recommendation is suitable for a particular customer, although the level of importance of each factor may vary depending on the facts and circumstances of the particular case. A member or associated person shall use reasonable diligence to obtain and analyze all of the factors delineated in Rule 2111(a) unless the member or associated person has a reasonable basis to believe, documented with specificity, that one or more of the factors are not relevant components of a customer's investment profile in light of the facts and circumstances of the particular case.

.05 Components of Suitability Obligations. Rule 2111 is composed of three main obligations: reasonable-basis suitability, customer-specific suitability, and quantitative suitability.

(a) The reasonable-basis obligation requires a member or associated person to have a reasonable basis to believe, based on reasonable diligence, that the recommendation is suitable for at least some investors. In general, what constitutes reasonable diligence will vary depending on, among other things, the complexity of and risks associated with the security or investment strategy and the member's or associated person's familiarity with the security or investment strategy. A member's or associated person's reasonable diligence must provide the member or associated person with an understanding of the potential risks and rewards associated with the recommended security or strategy. The lack of such an understanding when recommending a security or strategy violates the suitability rule.
(b) The customer-specific obligation requires that a member or associated person have a reasonable basis to believe that the recommendation is suitable for a particular customer based on that customer's investment profile, as delineated in Rule 2111(a).
(c) Quantitative suitability requires a member or associated person who has actual or de facto control over a customer account to have a reasonable basis for believing that a series of recommended transactions, even if suitable when viewed in isolation, are not excessive and unsuitable for the customer when taken together in light of the customer's investment profile, as delineated in Rule 2111(a). No single test defines excessive activity, but factors such as the turnover rate, the cost-equity ratio, and the use of in-and-out trading in a customer's account may provide a basis for a finding that a member or associated person has violated the quantitative suitability obligation.

.06 Customer's Financial Ability. Rule 2111 prohibits a member or associated person from recommending a transaction or investment strategy involving a security or securities or the continuing purchase of a security or securities or use of an investment strategy involving a security or securities unless the member or associated person has a reasonable basis to believe that the customer has the financial ability to meet such a commitment.

.07 Institutional Investor Exemption. Rule 2111(b) provides an exemption to customer-specific suitability regarding institutional investors if the conditions delineated in that paragraph are satisfied. With respect to having to indicate affirmatively that it is exercising independent judgment in evaluating the member's or associated person's recommendations, an institutional customer may indicate that it is exercising independent judgment on a trade-by-trade basis, on an asset-class-by-asset-class basis, or in terms of all potential transactions for its account.