Sample Case Descriptions

An independent registered investment advisor sued a trust with which he had no formal advisory contract. The advisor was consulted by the trustees and understood that he would be formally engaged to manage the assets as soon as certain matters concerning the settlement of the trust were resolved. The trust subsequently hired other advisors to manage the assets. The former advisor sent an invoice for the time he had spent working on behalf of the trust. The trustees refused to pay the invoice and the advisor filed suit claiming quantum meruit and breach of oral contract. The issue to be decided was whether the advisor was entitled to be paid for services performed in anticipation of being hired as an asset manager.

 

A woman who had won a large lottery jackpot successfully sued her business manager in state court for fraud, embezzlement, breach of fiduciary duty, and other causes. She recovered a substantial part of her loss from this action. She subsequently filed a FINRA arbitration against her brokerage firm and its registered representative (RR) claiming they were complicit in abetting the fraudulent actions of the business manager. The issues to be decided included: whether the RR circumvented firm policy in order to aid the business manager in his malfeasance; whether the RR had misused the firm’s portfolio lending platform to provide liquidity for the business manager while still managing the assets used for the loan; whether some of the portfolio recommendations were unsuitable and whether there was a failure to supervise the RR’s activities.

 

A woman sued her husband for divorce in Superior Court. One of her contentions was that, during the period prior to the divorce action, her husband had pilfered substantial amounts from their joint brokerage account and diverted the funds to other private investments in his name only. At the time of trial, his private investments were worthless. The issue to be decided was how much would the portfolio have been worth had it been left intact and what would have been the expected value of the portfolio using a hypothetical performance analysis for a well-managed account.

 

A registered representative left his brokerage firm to start an independent registered investment advisory firm. His old brokerage firm was very aggressive in its attempt to retain his clients. He filed a FINRA arbitration case claiming defamation, breach of contract, unfair business practices and intentional interference with prospective economic advantage. His contention was that, in attempting to retain his clients, the brokerage firm’s tactics violated the industry standard and besmirched his reputation to the point of damaging his ability to continue doing business. The issues to be decided were whether the actions of the brokerage firm constituted defamation and, if so, what was the extent of damages to the RR’s future earnings. These calculations required a study of the expected value of a client relationship, the growth trajectory of the RR’s business and the future earnings he might have expected if not for the actions of his old firm.

 

A woman sued her brother in Superior Court—Probate Division. She claimed he breached his fiduciary duty while appointed as authorized agent with power of attorney (POA) for their mother’s trust. The brother assumed his status as authorized agent and POA shortly after the mother had been declared incompetent due to dementia. The brother and sister were equal beneficiaries of the trust. The issues to be decided were whether the brother’s choice of investments and overall asset allocation were suitable, whether he diverted trust assets for his own benefit and whether his actions constituted financial elder abuse. The issue of damages also had to be addressed.

 

A man filed a complaint with FINRA against his financial advisor and broker-dealer for unauthorized trading, misrepresentation, breach of fiduciary duty, recommending unsuitable investments and failure to supervise. The claimant had recently sold his business and was referred to respondent to help manage the proceeds. The questions to be decided included the following: whether the advisor had exercised unauthorized discretion in trading the account; whether the client qualified as a sophisticated investor for two Regulation D private placement investments recommended by the advisor and whether the advisor had misinformed the client as to the nature of a portfolio lending facility and misused the facility once it was in place. Also in question was whether the management team at the broker-dealer failed to investigate and mitigate the alleged malfeasance. In addition, the matter of damages needed to be calculated and presented to the panel.

 

A woman sued her registered investment advisor (RIA) in Superior Court for breach of fiduciary duty, unsuitable investment recommendations and misrepresentation. The investment in contention was a Regulation D private placement. There were several questions to be decided. First was whether the RIA had performed sufficient due diligence on the investment being recommended. Second, whether the RIA had misrepresented the investment. Third, whether the client qualified as a sophisticated investor who could understand and undertake the risks involved in the recommended investment. Fourth, whether suitability is a relevant component in defining fiduciary duty. Finally, the determination and calculation of damages.

 

 

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