Postings For Investors - Investment, Planning and Regulatory Intelligence

May 16, 2008

Key Guidance On Hedge Fund Investing

On Tuesday, May 13th, I presented Key Guidance On Hedge Fund Investing, a webinar highlighting important information contained in the "Report of the Investors' Committee to the President's Working Group on Financial Markets, Principles and Best Practices for Hedge Fund Investors." 

This report was released last month and is comprised of the material prepared by two committees, the Asset Managers' Committee and the Investors' Committee.  Given the voluminous size of the report, I primarily focused on the key advice noted by the Investors' Committee, including the topics of hedge fund investments and allocations, investment policy, and best practices in due diligence, risk management, legal and regulatory concerns, valuation, fees and expenses, and reporting. 

We recorded the program.  You can replay the presentation or listen to the podcast using the buttons below or by clicking on their links in the left side bar.

May 15, 2008

Investors Should Avoid Exchange-Traded Notes

Investors need to avoid exchange-traded notes according to columnist John Waggoner of USA Today.  It's good advice. 

Wall Street has created a new generation of investments, called exchange-traded notes, or ETNs, and they go by names such as BOXES, LUNARS, MITTS, PERQS and PISTONS.  "Except for the plainest of plain-vanilla ETNs," Waggoner advises that investors should "handle them like XPLOSIVs."

"ETNs are a relatively new development.  The value of an ETN depends on the movements of a stock index or, sometimes, even an indiviudal stock.  And, as you might have guessed," according to Waggoner, "ETNs trade on the stock exchange - typically, the American Stock Exchange."

"In those respects, ETNs are fairly similar to their cousins, exchange-traded funds.  But ETNs have a big difference:  They are debt securities, not equity securities.  When you buy an exchange-traded fund, you're buying a slice of a diversified portfolio of stocks.  When you buy an ETN, you're buying a promise - specifically, the promise that the issuer will pay the note according to the terms laid out in the ETN's prospectus."

"Those terms can be simple or complex," according to Waggoner.  "Let's start with a simple one," he suggests:  The iPath Dow Jones-AIG Commodity Index Total Return ETN.  This trades under the ticker DJP.  "The note pays no interest, but the issuer, Barclays, will pay a cash payment at maturity equal to the gain on the Dow Jones-AIG Commodity Index total return.  The maturity date is June 12, 2036.  You can sell the note before it matures, at which point you'll get whatever other investors feel it's worth."  As of last week, its value was up 9.2% in 2008.

"Jeffrey Ptak, Morningstar's director of ETF research, likes DJP because it does a better job tracking the index than an ETF can.  A fund has to use futures and other investments to track the commodity index.  Because a note isn't a fund, it doesn't have to line up investments that mirror the index.  All it needs is the promise to pay according to the index's movements. 

As a way to get broad exposure to commodities, Ptak says, DJP isn't bad.  The index the note uses is well-diversified, and the overall cost to investors is decent.  However, the more complex ETNs can be complex indeed.  Consider the Capital Protected Notes based on the Morgan Stanley Capital International Europe, Austral-asia and Far East stock index.  The notes trade under the ticker EEC." 

According to Waggoner, "Here's the deal:  Like DJP, EEC pays no interest over its term, which began May 23, 2005.  Each note was issued at $10.  When the note matures on December 30, 2008, the underwriters will pay note holders $10 per note. This is where the 'capital protected' part comes in: If you hang on to the note, you'll get your money back." 

The trade-off is that you give up some of the potential capital gains from the EAFE index in return for the capital protection.  "In this case, you give up quite a bit.  The note takes the index level at four different dates and averages them together.  The percentage difference between the average of the four dates and the starting date is your return.  In a rising market, your gains from this ETN will be considerably lower than if you had simply bought an ETF that tracked the index.  (The average will be smaller than the differnce between the start and the end point.)  Given this snakebit market, you might think that the smaller returns are a good trade for preserving your capital.  Should the market soar, however, you'll probably feel considerable buyer's remorse."

According to Waggoner, ETNs have a few other considerations:

First, counterparty risk.  "An ETN is backed by a promise.  Although the issuers of these notes are large, financially strong firms, you should be aware that, at least until recently, everyone thought that investment back Bear Stearns was financially strong, too."

Second, tax risk.  "The IRS is reviewing the tax treatment of ETNs and may consider taxing ETN profits as interest, rather than at lower capital gains rates.  Already, the IRS has ruled that single-currency ETNs will be taxed at ordinary income rates."

Third, commissions and expenses.  "ETNs are generally cheaper than mutual funds, but you'll have to pay a commission.  Your broker may tell you that you can buy an ETN on its initial offering with no commission, but that's not entirely true:  The commission is part of the initial offering price."

Waggoner concludes that, "Generally speaking, the more complex the deal, the more you should avoid it."  That's good advice.

Source: USA Today

Investor Angst, Regulatory Probes And Litigation Intensify Over Auction Rate Securities

Investor angst concerning auction rate securities (ARS) continues, and indeed has worsened over the last few months. In May 2008, the New York Times reported that $300 billion worth of investors’ funds were “still locked up” and that 70% of all weekly auctions still were failing.  Additionally, ARS investors, especially those subject to class action filings, must be on guard to protect their rights.  Let’s discuss why.

Read article.

May 12, 2008

Securities Regulator Cautions Investors To Avoid Funds Investing In Catastrophe Bonds Or Other Event-Linked Securities

The Financial Industry Regulatory Authority (FINRA) has issued an Investor Alert warning investors about the risks of speculating on natural disasters with event-linked securities, such as catastrophe bonds or "cat bonds."  Cat bonds offer high yields but can quickly lose most or all of their value if a triggering event, such as a hurricane, earthquake or pandemic, occurs in specified geographical regions.

According to Mary Schapiro, FINRA CEO, "Event-linked securities are complex products that can lose their value if a triggering catastrophe occurs.  While they are typically marketed to institutional investors, retail investors should know that they could be vulnerable by virtue of owning shares in funds that invest in event-linked securities."

FINRA has issued a new Investor Alert entitled, "Catastrophe Bonds and Other Event-Linked Securities."  It describes how event-linked securities work and helps investors determine whether and to what extent the funds they hold invest in these securities.  The Alert explains that prices, yields and ratings of cat bonds rely almost exclusively on complex computer modeling techniques that determine the probabilities and the potential financial damage of natural disasters.  If a  catastrophic or "triggering" event occurs, holders could lose most or all of their principal.

Investors are encouraged to check their funds' prospectuses to see whether any fund is authorized to invest in event-linked securities - including collateralized debt obligations and derivatives.  And investors should make sure that if a fund is invested in event-linked securities, it is diversified in terms of type of risk and geographic location, and event-linked securities comprise only a limited portion of the portfolio.

That's good advice.

Source:  FINRA News Release

May 02, 2008

Securities Regulator Issues Warning Regarding Investors’ Use of Reverse Mortgages

For many individuals, their largest asset is their home, and it is their most precious source of retirement security.

Unfortunately, over the years financial advisers have convinced homeowners that they should tap into their home equity to purchase investments.  In 2004, the NASD (National Association of Securities Dealers), now known as FINRA (Financial Industry Regulatory Authority) issued an investor alert entitled, “Betting the Ranch: Risking Your Home to Buy Securities.”  That alert addressed the use of new mortgages, refinanced mortgages and lines of credit secured by the home.  The NASD expressed its concern that “investors who must rely on investment returns to make their mortgage payments could end up defaulting on their home loans if their investments decline and they are unable to meet their monthly mortgage payments.”

More recently, homeowners (over the age of 60) have been the target of those who wish to sell them a “reverse mortgage.”  While reverse mortgages may be appropriate in some circumstances (such as when homeowners cannot meet their monthly mortgage payments or cannot pay bills or meet unexpected expenses), FINRA has alerted investors to stay clear of reverse mortgages to finance a lifestyle that they otherwise cannot afford or to pay for investments.  FINRA warns in its recent alert entitled, “Reverse Mortgages: Avoiding a Reversal of Fortune”, that “as more Americans near retirement age, some financial institutions are aggressively marketing reverse mortgages as an easy, cost-free way for retirees to finance lifestyles – or to pay for risky investments – that can jeopardize their financial futures.”  Let’s examine FINRA’s guidance.

Read article.

April 25, 2008

Securities Regulator Issues Tips to Protect Financial Information

FINRA (the Financial Industry Regulatory Authority) has published, “Keeping Your Account Secure: Tips for Protecting Your Financial Information."

According to FINRA, identity theft has advanced well beyond “dumpster diving” to recover discarded account statements or other records that have not been shredded, though this old-fashioned method still is a threat.  In addition, some identity thieves “use keystroke-logging software to capture usernames and passwords, disseminating these programs through instant messages, emails, or freeware.”  Likewise, “others ‘phish’ for sensitive information by sending phony emails that purport to come from a legitimate financial institution but which ask for information your firm would never request through email – such as confirmation of an account number, password, credit card number, or Social Security number.”

The FINRA publication discusses a dozen steps that investors can take to secure their brokerage accounts as well as other personal financial information.  Let’s examine those steps.

Read article.

April 15, 2008

ARS Woes Continue As Companies Join In Lawsuits To Recover Damages And Liquidate Securities

Auction-rate securities continue to be in the news.  To date, most of the suits against broker-dealers that sold ARS have been brought by individual investors.  But two companies, Miami-based Astar Air Cargo and Dallas-based MetroPCS Comunications, have each filed claims against Merrill Lynch. 

Last month, Astar, a privately held cargo airline, filed a Financial Industry Regulatory Authority arbitration claim against Merrill.  The firm said it has $9.125 million in frozen auction-rate preferred securities and is seeking compensatory damages of that amount.  Astar is also seeking $27.375 million in punitive damages. 

In the claim, Astar said it instructed Merrill to invest its cash reserves in products that would provide "complete safety of principal and complete liquidity."  Merrill put the money in ARS.  MetroPCS, the largest pay-as-you-go mobile phone service provider in the U.S., filed suit against Merrill in a Texas state court, charging that the company had invested $134 million in 10 ARS backed by CDOs.

Individual investors have filed ARS lawsuits against brokers including Morgan Stanley, UBS, TD Ameritrade and Wachovia.  However, those actions have been class actions and SNSFE attorneys would advise individual investors, especially those with large claims, to seek independent counsel before committing to a class action where the recovery may not be as great as individual actions.

On a related note, it appears that Goldman Sachs knew about the problems with auction-rate securities as early as 1992.  In 1992, a group of investors had bought auction-rate securities but they failed four times in a row at the auction and they ultimately became illiquid.  The investors filed an arbitation claim with the New York Stock Exchange which awarded the group $2.8 million and it awarded them recission. 

SNSFE continues to investigate ARS cases for their suitability or lack there-of.

Sources:  FinancialWeek, Dow Jones Newswires

April 04, 2008

Auction Rate Securities Present A "Hotel California" Nightmare For Investors

Investors have discovered Wall Street’s version of the Hotel California: they have “checked in” to an investment that they cannot leave.  Since mid-February, a significant number of auctions (70% according to Thestreet.com) in “auction rate securities” have failed, leaving the $330 billion market in disarray. 

At least one state securities regulator has commenced an investigation, and FINRA (the Financial Industry Regulatory Authority) has issued guidance for investors (“Auction Rate Securities: What Happens When Auctions Fail”).  Additionally, UBS and Goldman Sachs are among the financial services firms which have decided to markdown the value of these securities on client statements, with most markdowns between 3% and 5% but some as high as 20%.  Moreover, one secondary market provider has reported transactions completed recently with 30% discounts!

Let’s examine the problem and explore the recourse that investors may have...

Read article.

January 22, 2008

Exercise Caution In Purchasing Structured Investments, The Latest Hot Product From Wall Street

Two seminars that I recently attended both shared the common element of having a speaker discuss the virtues of "structured investments", or "structured products" as they sometimes are called.  A financial publication recently ran a story entitled, "The Next Big Thing; Structured Products May Be Difficult to Define, Explain and Track - Yet They're Touted As the Next 12 Figure Asset Class."  Indeed, both seminar speakers claimed that, in Europe, structured products are so popular that investors can buy them at the post office!  Hype or reality?  No one can be sure, but we know that for 2007, analysts predict that investors will purchase $100 billion of them.

What are structured products?  According to a website promoting them, structured products "create an investment product that combines some of the best features of equity and fixed income - namely upside potential with downside protection."  As the website recognizes, it is the "mix of investments in the basket" that determines risk and return, and it can vary dramatically.  Indeed, in 2005 the National Association of Securities Dealers (now FINRA), issued a notice to member financial services firms that based upon its review, "NASD staff is concerned that members may not be fulfilling their sales practice obligations when selling these instruments, especially to retail customers."

Let's examine the NASD's notice to members to highlight the characteristics and risks of structured products.

Read entire article.

December 05, 2007

Securities Regulator Makes Protection Of Senior/Retiree Investors A High Priority

Senior investors, as well as Baby Boomers who are retired or who are approaching retirement, should take some comfort from a recent notice to financial services firms, Regulatory Notice 07-43.  The Financial Industry Regulatory Authority (FINRA) states that the purpose of the notice is "to urge firms to review and, when appropriate, enhance their policies and procedures for complying with FINRA sales practice rules, as well as other applicable laws, regulations and ethical principles, in light of the special issues that are common to many senior investors."

Why is FINRA concerned?  The concern stems from demographics - by 2030, almost 1 out of every 5 Americans will be 65 years old or older.  Additionally, the concern is that retirees will live longer, yet fewer and fewer of them will be able to rely on traditional corporate pension plans to fund their retirement.  Therefore, FINRA states that  "the financial decisions made by those who are at or nearing retirement are more important than ever before."

Moreover, FINRA emphasizes that although it does not have "special rules" in place for seniors/retirees, financial services firms especially must be careful when dealing with seniors/retirees.  In executing their duties, the notice provides that "age and life stage (whether pre-retired, semi-retired or retired) can be important factors, and firms should make sure that the procedures they have in place take these considerations into account where appropriate."  Suitability of recommendations and communications aimed at older investors are "of particular concern."  Let's examine FINRA's guidance regarding suitability of investment recommendations...

Read entire article.

November 21, 2007

Protecting Yourself In Bull And Bear Markets

Ronald M. Amato, an associate attorney in the securities group at SNSFE, presented the webinar, "Protecting Yourself In Bull And Bear Markets:  What Investors, Their Accountants and Advisors Should Know About Investment Product Suitability and Investment Abuse" in November 2006.  If you didn't get the chance to attend the live event, or are interested in a 'refresher', you can play the recorded webinar presentation or listen to the podcast now:

   

November 16, 2007

The Court's Rejection Of The Broker-Dealer Exemption Rule (The So-Called "Merrill-Lynch Rule")

On July 11, 2007, SNSFE securities associate attorney Ronald M. Amato presented a webinar for investors and financial advisers on the implications of the U.S. Court of Appeals D.C. Circuit Court's decision to vacate SEC Rule 202(a)(11).  In his 30-minute presentation, Ron gives a historical perspective of the Investment Adviser Act, the practical impact of the Rule and its challenge by the Financial Planning Association, and what the Court's rejection of the Rule means for investors and financial advisers.  Press play to watch the recorded presentation or press listen to hear the podcast.

   

November 05, 2007

Brokerage Firms Continue To Run Afoul Of Longstanding Requirements For Fee-Based Accounts

Fee-based accounts have existed for more than a decade as an alternative to paying commissions for buying and selling securities.  They have been popular and profitable, but soon will become subject to more stringent regulatory requirements as a result of a 2007 court decision that effectively makes such accounts investment advisory (fiduciary) accounts instead of (arguable more limited duty) brokerage accounts.  As we wait to see whether brokerage firms will choose to continue to offer fee-based programs in this fiduciary context, we must be mindful of how poorly several brokerage firms have complied with the longstanding regulatory requirements for fee-based accounts.  Let's review what brokerage firms have continued to do wrong, as reflected in several regulatory actions and pronouncements.

Read the article.

October 23, 2007

SEC Approves Rule Increasing Protection For Deferred Variable Annuity Investors

The Securities and Exchange Commission (SEC) recently approved a controversial rule proposal that will add significant protections for investors purchasing or exchanging deferred variable annuities.  The rule imposes new requirements on financial services firms in four areas:  suitability; review and approval by a principal of the financial services firm; supervisory and compliance procedures; and training of financial advisers.  Let's highlight the key features of new Rule 2821 as they relate to suitability.

Read the article. 

September 24, 2007

SEC Details Efforts To Protect Seniors From Investment Fraud

The Chairman for the Securities and Exchange Commission (SEC) is making protection of senior investors one of his "highest priorities."  Recently, Chairman Christopher Cox spoke to the United States Senate Special Committee on Aging.  Let's review how the SEC plans to protect seniors from investment fraud.

Read the article.

September 18, 2007

Hedge Fund Due Diligence; A Must Before You Or Your Adviser Invests Your Money

Hedge fund investments are popular, but also can be dangerous.  One study suggests that nearly one-half of all hedge fund failures are caused by such issues as misrepresentation of fund investments, misappropriation of funds, or unauthorized trading.  Investors owe it to themselves to conduct due diligence before investing in hedge funds or funds of funds.  And investors who are paying advisers should expect them to do so in order to comply with their legal obligation -- or else face liability for their failure to do so.

Read the entire article.

August 23, 2007

Securities Regulator Calls For Significant Improvements In The Protection Afforded To Investors Purchasing Municipal Securities

Securities and Exchange Commission (SEC) Chairman Christopher Cox recently delivered an SEC staff "white paper" to Congress that calls for significant improvements in disclosure and accounting in the municipal securities market to better protect investors.

Chairman Cox is not sugar-coating his belief that investors purchasing municipal bonds, notes, and other debt securities suffer from inferior legal protection compared to that afforded to other investors purchasing corporate bonds or equities.  Mr. Cox observed that the disclosure obligations and protection afforded to municipal securities investors is "not even close", despite the fact that investors (as well as analysts, investment advisers and brokerage firms) "deserve the same level" of disclosure and protection.  Let's examine why Chairman Cox is so concerned, and what he has proposed to better protect municipal securities investors.

Read the article.

August 20, 2007

Recovering Your Losses From Misguided Real Estate Investments And Recognizing Red Flags Before You Invest

This 25-minute podcast originally was presented as a webinar on 2/21/06.  It covers real estate offerings/investments, typical entity structures, securities law issues, due diligence, duties of loyalty and care, causes of action, remedies, and limitations. 

View this webinar and other SNSFE webinar presentations.

August 16, 2007

Securities Regulator Issues Warnings Regarding Exchange Traded Funds (ETFs)

The New York Stock Exchange (NYSE) has issued an Informed Investor Publication entitled, What You Should Know About Exchange Traded Funds.  While many ETFs are passive managed funds that track U.S. equity indexes, new ETFs may entail greater risks.  Let's examine the NYSE's caution to investors.

Read the article.

August 03, 2007

Seniors Beware: Securities Regulator Details Investment Frauds

The head of the state securities regulators' association, Patty Struck, recently testified before the United States Senate.  Her testimony, entitled,"Protecting Senior Citizens Against Investment Fraud", noted how widespread investment fraud against seniors has become.  With the problem likely to become worse, Ms. Struck cautions seniors to be wary of three disturbing trends.

Read the article.

July 25, 2007

"Selling Away" - A Primer For Investors And Their Attorneys

Brokerage firm clients sometimes lose money in investments that have been "sold away" from their brokerage firm.  That is, while the brokerage firm adviser indeed has sold the investment to the client, the brokerage firm has not sold it, has not approved of the sale, and likely does not even know of the sale.  Such "outside" investments often are the most egregious frauds and schemes.

The question arises whether a brokerage firm nonetheless can be held responsible for a client's losses.  Let's examine a brokerage firm's responsibility for what has become known as "selling away."

Read the article.

July 16, 2007

A Primer On Alternative Investments And Managed Futures In Particular

"Alternative Investments" is a term used to describe numerous investment alternatives to stocks, bonds and real estate investment trusts (REITS).  Let's explore the characteristics of these new menu items, especially one in particular, managed futures.

Read the article.

June 29, 2007

Securities Regulators Issue New Round Of Warnings Regarding Hedge Funds

The New York Stock Exchange (NYSE) recently published, "Hedge Fund Investing -Is It a Suitable Investment For You?"  That publication, available on the NYSE's website, is one of several pronouncements that securities regulators have made regarding hedge funds. 

The concern is that retail investors (as distinguished from "institutional" investors) should not invest in hedge funds.  Indeed, SEC Chairman Christopher Cox recently testified before the U.S. Senate Committee on Banking, Housing and Urban Affairs that hedge funds "are not investments for Mom and Pop."  Chairman Cox opined that they "are generally risky ventures that simply don't make sense for most retail investors."

What makes hedge funds unsuitable for most retail investors?  Let's examine the recent NYSE publication.

Read the article.

June 06, 2007

NASD's Hot Topics For Protecting Investors

Periodically, the National Association of Securities Dealers (NASD) publishes its "Examination Priorities" and "Frequently Found Violations" in a document entitled, "Improving Examination Results."  The publication is helpful as a roadmap to determine what NASD believes to be the hot topics for protecting investors.  Let's explore some of those hot topics recently revealed.

Read the article.

May 04, 2007

Recent Interviews On First Business Morning News Show

In a recent televised interview on First Business Morning News, I discussed one of the latest stock scams - putting "China" in a company name hoping to attract investors.  Watch Spotting China Stock Scams.
For the show's Internet audience, I'm featured in another interview discussing the difference between a stock broker and an investment advisor.  Watch Brokers Vs. Investment Advisors - The Differences You Need To Know!

April 17, 2007

Beware Of Financial Advisers Changing Firms As Investors May Pay The Price

Many individuals change jobs.  But financial advisers are doing so in growing numbers, and there is a concern that this may drive up costs for some of their clients.  In fact, recently the New York Stock Exchange (NYSE) issued an Informed Investor publication entitled, "If Your Broker Changes Firms, What Do You Do?"

Read the article.

April 10, 2007

Court Rules That Stockbrokers Must Register As Investment Advisers When Paid Asset-Based Fees And Not Commissions

Recently the U.S. Court of Appeals for the District of Columbia Circuit issued a decision that represents a landmark victory for registered investment advisers and a defeat for major brokerage firms (such as Merrill Lynch, Smith Barney, Wachovia Securities and Morgan Stanley).  The Financial Planning Association (FPA) filed the lawsuit against the Securities and Exchange Commission (SEC) arguing that the SEC had exceeded its authority in creating an exemption from investment adviser registration under the Investment Advisers Act for stockbrokers who charge asset-based fees for their services.  Let's examine three key questions relating to the court decision in FPA v. SEC striking down the so-called "Merrill Lynch Rule."

Read the article.

March 23, 2007

Employees Warned Of Early Retirement Investment Pitches That Promise Too Much

A securities regulator, the National Association of Securities Dealers (NASD), has issued an investor alert to employees contemplating early retirement in reliance upon early retirement investment pitches.  These pitches have been "flawed, even fraudulent", and have caused retirees great financial harm.  Let's examine the NASD's Investor Alert.

Read the article.

March 21, 2007

Beware Of The Exchange Of Life Insurance Policies And Annuity Products

The NASD has issued investor alerts cautioning against exchanging or replacing one life insurance policy for another and exchanging or replacing one annuity for another.  Let's examine this alert to learn why investors should be wary.

Read the article.

February 27, 2007

Invest Carefully In Private Equity Funds

Investors must guard against taking on too much risk through investing in private equity funds, given their wide disparity of returns and difficulty in measurement, lack of liquidity and substantial fees.  Though they are popular and available, private equity funds are not suitable for everyone.  Advisors who recommend such investments are required to determine that they are suitable for the particular investor.

Read the article.

February 26, 2007

Investor Fraud Study Reveals Why Investors Are Susceptible

A study conducted by NASD Investor Education Foundation, WISE Senior Services and AARP Foundation has examined why some investors, particularly the elderly, are more susceptible to investment fraud than others.

Read this article.

February 22, 2007

Fee Based Accounts Draw Scrutiny: UBS' InsightOne Account Already Subject To Regulatory Action

Securities regulators have focused their attention on brokerage accounts for which customers pay fees calculated as a percentage of the assets, as opposed to commissions per trade.  While this fee-based arrangement appears innocuous on its face, regulators have concerns that it harms customers.

Read this article.

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