Investment Losses from Broker Churning? The Churning Attorneys at The White Law Group can Help.

The churning attorneys at The White Law Group continue to file claims on behalf of investors who have been defrauded by their broker or financial advisor. 

Broker churning refers to a deceptive practice where a broker or financial advisor engages in excessive buying and selling of securities within a client’s account primarily to generate commissions for themselves, rather than serving the best interests of the client. It involves unnecessary and excessive trading activity that is not justified by the client’s investment objectives or financial situation. If you have suffered losses due to this illegal activity, you may need an experienced churning attorney. The primary goal of churning is to generate commissions or fees for the broker, rather than achieving investment gains for the client.

Broker churning typically involves the following: 

• Excessive trading: The broker is trading too much within a client’s account, often without a legitimate investment purpose. The frequency and turnover of transactions are far beyond what is necessary for the client’s investment goals. 
• Lack of legitimate investment strategy: The trades conducted by the broker are not based on the client’s investment objectives or financial needs. Instead, they are primarily driven by the desire to generate commissions or fees for the broker. 
• Negligence of the client’s best interests: The broker fails to act in the best interests of the client, disregarding their investment goals, risk tolerance, and financial circumstances. The excessive trading activity is not aligned with the client’s long-term investment strategy.
   

Churning is considered securities fraud because it violates various securities laws and regulations, including those established by regulatory agencies such as the Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC). It breaches the broker’s fiduciary duty to act in the best interests of their clients and involves deceptive practices to generate financial gain for themselves.

Investors who fall victim to account churning may suffer significant financial losses due to the excessive transaction costs, fees, and potential adverse effects on their investment performance.  

Examples of Broker Churning

Here are a few examples of how a broker may churn a customer’s account: 

• Excessive Trading: A broker consistently buys and sells securities within a client’s account, regardless of the client’s investment goals or financial situation. They may execute numerous trades in a short period, resulting in high transaction costs for the client. 
• Unauthorized Trading: A broker places trades without obtaining proper authorization from the client. They may excessively trade in the client’s account without their knowledge or consent, aiming to generate commissions or fees. 
• Frequent Switching: A broker frequently switches the client’s investments between different securities or investment products without a legitimate reason. This activity may occur even if the new investments are not suitable for the client’s financial objectives. 
• Inappropriate Investment Recommendations: A broker recommends unsuitable investments to the client, encouraging them to buy or sell securities that do not align with their investment goals or risk tolerance. This can lead to unnecessary trading within the account. 
• Ignoring Investment Objectives: A broker disregards the client’s stated investment objectives and instead focuses on generating commissions. They may engage in excessive trading to maximize their own compensation without considering the client’s long-term interests. 
• Failure to Diversify: A broker fails to diversify the client’s portfolio adequately and instead concentrates their investments in a few securities. Excessive concentration in a limited number of assets increases the risk exposure of the customer’s portfolio.

If you suspect your broker of churning, you should seek counsel from the experienced churning attorneys at The White Law Group. If your broker has churned your account, you may be able to recover your losses by filing a FINRA arbitration claim against your brokerage firm.

Regulators Sanction Merrill Lynch for Broker Churning

In 2020, Charles Kenahan, a former financial advisor with Merrill Lynch, faced accusations of churning, excessive commissions, and unauthorized trades. The New Hampshire Bureau of Securities Regulation reached a $26 million settlement with Merrill Lynch over its alleged failure to supervise Kenahan’s activities. As part of the settlement, Merrill Lynch was fined $1.75 million, and an additional $250,000 was imposed for its supervision failure.

Kenahan was reportedly barred from participating in the securities business in the state. The majority of the settlement, $24.25 million, goes to a high-net-worth Merrill Lynch client in New Hampshire, marking the state’s largest monetary sanction. Merrill Lynch had previously settled for $40 million in 2019 with another investor over similar allegations against Kenahan. According to FINRA BrokerCheck, Kenahan was registered with Merrill Lynch from 2007 until 2019 when he faced customer allegations of unauthorized and excessive trading and unsuitable investment recommendations.

How do I know if my Broker is Churning my Account?

Red Flags of Broker Churning 

-If you notice a high frequency of trades in your account without a clear investment strategy or rationale, it could be a sign of churning.
-Observing a pattern of quick turnovers in your portfolio, where investments are sold shortly after being purchased, may indicate churning.
-If you see unusually high commissions or fees relative to the size and activity of your account, it could be a warning sign.
-Did your broker fail to provide clear explanations or justifications for trades made in your account? It may indicate an attempt to hide churning activity.
-If your broker seems to lack a clear and consistent approach to managing your investments, it may be a red flag.
-Is your account consistently underperforming relative to market benchmarks or similar investment strategies? It could be a result of churning.
-Did you find trades in your account that you did not authorize or were not aware of? This is a serious red flag that warrants immediate attention and investigation.  

These signs alone may not definitively prove churning, as some brokers may engage in legitimate active trading strategies. However, if you observe several of these red flags and have concerns about your broker’s activities, you should consider consulting with an experienced churning attorney. You may be able to recover your losses through FINRA Arbitration. 

FINRA Arbitration may be the Answer 

FINRA (Financial Industry Regulatory Authority) arbitration is a process that allows investors to seek resolution and potential compensation for claims related to securities fraud, including account churning. FINRA is a self-regulatory organization that oversees brokerage firms and their registered representatives in the United States. The churning attorneys at The White Law Group help investors recover money from broker misconduct and securities fraud through the FINRA arbitration process.

FINRA Arbitration: How does it work?

When you open an account with a brokerage firm, you typically sign an agreement that includes a mandatory arbitration clause. This means that any disputes between you and the brokerage firm must be resolved through arbitration rather than going to court.

To initiate the process, our experienced churning attorneys will help you file a Statement of Claim with FINRA, outlining the details of your case, including the alleged account churning and the losses you have suffered as a result. The claim will specify the amount of compensation you are seeking. FINRA will appoint a panel of arbitrators to hear your case. The panel typically consists of three arbitrators, including both public (non-industry) and industry arbitrators with experience and expertise in securities matters.

The arbitration hearing is similar to a trial, but with less formal procedures. Both parties present their evidence, including documents, testimonies from witnesses, and expert opinions. The arbitrators review the evidence presented and make a decision based on the facts and laws. The decision is known as an award. The award may include a monetary award that compensates you for your account churning losses, including any associated costs, fees, and interest. The decision of the arbitration panel is binding and enforceable.

FINRA arbitration provides an accessible and efficient forum for resolving disputes related to securities fraud, including account churning. It offers a streamlined process that often leads to faster resolutions compared to traditional court litigation. However, it’s important to consult with an experienced churning attorney to guide you through the process and ensure that your rights are protected. 

How Churning Attorneys can Prove a Claim  

There are three basic elements that must be proven by churning attorneys to win. Those elements are (1) control, (2) excessive trading, and (3) scienter (see, e.g. In re Al Rizek, Securities Exchange Act Release No. 41725, In re Joseph J. Barbato, Securities Exchange Act Release No. 41034), Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489 (6th Cir. 1990). 

(1)        Control 

In a FINRA arbitration case, if a financial advisor is to be found liable for churning or excessively trading an account, the arbitration panel must first find that the broker had either express or implied control over the account. For example, if the excessive trading was directed by the advisor and not the client. 

The easiest way to prove control is when the client gives the stockbroker or financial advisor discretionary authority to trade the account by signing a discretionary trading agreement. 

More typically, control is established by demonstrating that the broker had “de facto” control of the account through testimony evidence or course of conduct evidence.  For example, if it can be demonstrated that the client followed the broker’s recommendations in most transactions, this is generally held to be sufficient evidence to establish that the broker had “control” over the account.  See, e.g. District Business Conduct Committee v. Daniel Wright Sisson, NASD Decision, Complaint No.  C01960020 (De facto control of an account may be established where the client habitually followed the advice of the broker). 

Other factors in determining control are the client’s ability to understand and evaluate whether the financial advisor’s recommendations are appropriate.  Factors that panels generally look at in determining whether the client had this ability include sophistication, formal education and occupation, prior or contemporaneous securities investment experience, the customer’s reading habits, the wealth of a customer relative to the size of the account and the client’s reliance/dependence on the broker’s advice.  See, e.g., Carras v. Burns, 516 F.2d 251, 258 (4th Cir. 1975) (“[A] customer retains control of his account if he has sufficient financial acumen to determine his own best interests and he acquiesces in the broker’s management”). 

If, however, it can be demonstrated that the investor lacked the sophistication to trade their own account and was therefore relying entirely on the advice of the financial advisor, this is generally sufficient to establish that the financial advisor had “de facto” control over the account. 

(2)        Excessive Trading 

The second element of a churning claim is demonstrating that the account was actually excessively traded (or churned).  Determining whether there is excessive trading in an account depends entirely on the type of account, the investor involved, and the investment objectives of the account.  For example, the volume of trading necessary to prove that an aggressive day trader’s account was churned (versus a retired investor living on a monthly budget) is considerably higher.  Case law generally establishes that excessive trading may only be gauged considering the nature of the account, the dominant element of which is the investment objective of the client.   For example, FINRA Rule 2111 regarding suitability states that churning may be evident if trading occurred that was not consistent with the client’s financial goals, risk tolerance, and knowledge of investment strategies. 

Once a determination of the risk tolerance and general nature of the account is made, a quantitative analysis of the trading in the account is conducted to determine whether the account was excessively traded. 

Turnover Ratio – Level of Churning

To determine whether the trading in a particular account rises to the level of churning, an analysis often used is the calculation of a “turnover ratio”. A turnover ratio is the total number of purchases made in the account, divided by the average monthly equity in the account. That ratio is then annualized (by dividing the result by the number of months involved to get a per month ratio, and then multiplying that result by 12). Courts have often recognized that in a normal retail account a turnover ratio of more than 6 can be considered excessive trading.   See, e.g. Arceneaux, 767 F.2d at 1502 (“The courts which have addressed this issue have indicated that an annual turnover rate in excess of six reflects excessive trading.”). 

Courts have also found that in retail securities accounts, for a conservative investor, an annualized turnover rate of two is suggestive, of four is presumptive, and, of six or more, is conclusive of excessive trading.  See, e.g. 68 N.C.L. Rev. 327, 339-40 (1990), noting the “six” rule and the “2-4-6? rule. 

An alternative method is the C/E Ratio, or commission to equity ratio. The C/E Ratio is calculated by dividing the total commissions in the account by the average equity in the account and then annualizing the number. 

Both methods are intended to establish the same basic principle – that the trading in the account was clearly intended to benefit the broker through the creation of commissions and the trading strategy implemented was not in the best interests of the client. 

(3)        Scienter (Specific Intent to Defraud)

Finally, to win an account churning claim, you must establish scienter, or intent.  Your churning attorneys must also demonstrate that the financial advisor excessively traded the account with the specific intent to defraud, or at least with reckless disregard of the interests of the client.  Churning involves a conflict of interest in which a broker or dealer seeks to maximize his or her commissions in disregard of the interests of the customer. 

If the level of trading is egregious, that may be enough satisfy the element of scienter.  Scienter separates churning from excessive trading.  See, e.g. In re Donald A. Roche, Securities Exchange Act Release No. 38742.  See, also, Franks v. Cavanaugh, 711 F. Supp. 1186 (S.D.N.Y. 1989) (the mere fact that the account was churned is typically sufficient to a scheme or artifice to defraud within the meaning of 10b-5). 

It can be more difficult to establish scienter with excessive trading rather than account churning, however, arbitration panels can often recognize when an unscrupulous financial advisor is trading for the express purpose of maximizing commissions.  This is usually established by discussing the financial advisor’s industry track record (FINRA BrokerReport, or CRD).  For example, if a financial advisor has previously been sued for churning or excessive trading, it is not difficult for an arbitration panel to determine that the broker was again acting with scienter in excessively trading the account now at issue. 

FINRA Rules for Churning Claims 

The primary FINRA Rule used at arbitration hearings when discussing account churning is FINRA Rule 2111 regarding suitability. 

FINRA Rule 2111 requires that a broker-dealer or associated person “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 [firm] or associated person to ascertain the customer’s investment profile.”  In general, a customer’s investment profile would include the customer’s age, other investments, financial situation and needs, tax status, investment objectives, investment experience, investment time horizon, liquidity needs and risk tolerance. 

For excessive trading cases, FINRA Rule 2111 also has a quantitative suitability standard that applies.  Quantitative suitability requires a broker who has actual or de facto control over a customer account to have a reasonable basis for believing that, considering the customer’s investment profile, a series of recommended transactions, even if suitable when viewed in isolation, are not excessive and unsuitable for the customer. Factors such as turnover rate, cost-to-equity ratio, and use of in-and-out trading in a customer’s account may provide a basis for finding that the activity at issue was excessive. 

Churning is a fairly obvious violation of Rule 2111 because account churning if proven, can never be suitable. 

What Kind of Damages can I expect to Recover? 

Typically, the damages in a broker churning case are any excessive commissions or expenses the client paid and any actual losses to the client’s portfolio caused by the churning. See, e.g. Securities Regulation & Law Report, Volume 35, Number 10, ISSN 1522-8797.  In an upward moving market, an investor may also be entitled to the market gain that should have been experienced had the account been appropriately invested. 

Because of the number of trades involved in a typical account churning case, damages are usually best proven by churning attorneys through expert reports that analyze the gains, losses, and commissions of every trade and breakdown the results in a format that is easy for the FINRA arbitration panel to understand.  These reports vary in cost depending on the expert and the number of trades involved but churning cases are virtually impossible to prove without them. 

Common Brokerage Firm Churning Defenses – Who controlled the Account? 

Although the parties are likely to agree on the approximate amount of damages and the respective turnover ratio or P/E ratio, brokerage firm usually defend these cases by fighting the “control” element of the claim. 

For example, brokerage firms often attempt to argue that the investor was directing the account and the firm was simply following the client’s instructions.  Once again, this is where the client’s background is important because obviously it is more difficult for a FINRA arbitrator to believe that an 80-year-old retiree was day trading their own account as opposed to a 40-year-old high income executive. 

Brokerage firms will often attempt to paint the client as extremely sophisticated and clearly capable of both understanding the trading involved and exercising control over the account.  See, e.g. Follansbee v. Davis, Skaggs & Co., 681 F.2d 673, 677-78 (9th Cir. 1982) (no control by broker where customer had degree in economics, read and understood corporate financial reports, and regularly read investment literature), and Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1070 (2d Cir. 1977), cert. denied, 434 U.S. 1035 (1978) (no control by broker where customer had post-graduate degree, years of experience in the market, and subscribed to investment services). 

The Second Typical Defense

If a brokerage firm is unable to establish that the client had control of the account, the second typical defense seen in these cases is the affirmative defenses of ratification, waiver, and estoppel.  These legal theories basically state that a customer cannot wait to see whether an investment proves to be profitable or unprofitable before he complains that the transaction was unauthorized, or that the trading was excessive.  

A customer who receives trade confirmation slips, monthly account statements, or other information reflecting that transactions have occurred and the nature and frequency of those transactions, and who fails to complain in a timely fashion, may have his claims barred under the doctrines of ratification, waiver, and estoppels.  See, e.g., Brophy v. Redivo, 725 F.2d 1218 (9th Cir. 1984) (If the customer receives confirming documents and does not object, by his silence he has ratified the trades, or waived his claim). 

At the hearing, brokerage firms will typically examine the investor by going through the confirmation slips that were provided and asking why the investor did not immediately complain if they knew that the trading strategy implemented was not what they wanted.  The counter to this argument is the ruling of the Court in Hecht v. Harris Upham, which stated, “that while confirmation slips were sufficient to inform plaintiff of the specific transactions made, they were not sufficient to put her on notice that the trading of her account was excessive.”  Hecht v. Harris Upham & Co., N.D. Cal. 1968.  

The mere fact that confirmation slips were provided to the client is not determinative.  A ratification or waiver defense can fail if the customer proves that he did not have all the material facts relating to the trade at issue. See, e.g., Davis v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 906 F.2d 1206, 1213 (8th Cir. 1990).  However, the longer that the churning of an account is allowed to go on by the investor the more difficult it is to counter the ratification argument or to demonstrate that the broker hid the true nature of the trading strategy. 

Brokerage firms will also attempt to argue against the control of the account if the confirmation slips are marked as “unsolicited” –meaning that the customer allegedly ordered many of the transactions without ever having had the securities called to his or her attention by the stockbroker.  Whether the confirmation slips were the customer’s idea is often a credibility battle as the client will likely testify that the trades were the broker’s idea and the broker will claim that the trades were the client’s idea. 

Documents Needed to Prove Churning Claims 

For broker churning claims the following documents are needed, in addition to typical FINRA Arbitration claim documents: 

1) All commission runs relating to the customer’s account(s) at issue or, in the alternative, a consolidated commission report relating to the customer’s account(s) at issue. 

2) All documents reflecting compensation of any kind, including commissions, from all sources generated by the Associated Person(s) assigned to the customer’s account(s) for the two months preceding through the two months following the transaction(s) at issue, or up to 12 months, whichever is longer.  

3) Documents sufficient to describe or set forth the basis upon which the Associated Person(s) was compensated during the years in which the transaction(s) or occurrence(s) in question occurred, including: a) any bonus or incentive program; and b) all compensation and commission schedules showing compensation received or to be received based upon volume, type of product sold, nature of trade (e.g.,agency v. principal), etc. 

4) All confirmations for the customer’s transaction(s) at issue. 

5) All agreements with the customer, including, but not limited to, account opening documents, cash, margin, and option agreements, trading authorizations, powers of attorney, or discretionary authorization agreements, and new account forms. 

6) All account statements for the customer’s account(s) during the time period and/or relating to the transaction(s) at issue. 

Additional Case Law / Authority for Broker Churning Claims 

• In reDaniel L Zessinger, Initial Decision Release No. 94 (Aug. 2, 1996) – For conservative investors, a turnover rate of two [on an annual basis] suggests excessive trading; four is presumptively excessive trading; and six is conclusive of excessive trading. 

• In re Application of Rafael Pinchas, Review of Disciplinary Action Taken by the NASD, Securities and Exchange Act Release No. 41816 (Sept. 1, 1999) – In and out trading is a practice extremely difficult for a broker to justify and can, by itself, provide a basis for finding excessive trading. 

• In re Wayne Miller, Securities Exchange Act Release No. 25520 – A broker has de facto control over a customer’s account if the customer is unable to evaluate the broker’s recommendation and to exercise independent judgment. 

• In re Joseph J. Barbato, Securities Exchange Act Release No. 41034 – Churning occurs when a broker enters into transactions and manages a client’s account for the purpose of generating commissions rather than furthering his client’s interests. 

• In re application of David Wong, Securities Exchange Act Release No. 45426 – The scienter element of churning may be inferred from the amount of commissions charged by the registered representative. 

• Carras v. Burns, 516 F.2d 251, 258, 259 (4th Cir. 1975) – In the absence of an express agreement, control may be inferred from the broker-customer relationship when the customer lacks the ability to manage the account and must take the broker’s word for what is happening 

• Hecht v. Harris Upham & Co., N.D. Cal. 1968 – The requisite degree of control is met when the client routinely follows the recommendations of the broker. 

• Hotmar v. Lowell H. Listrom & Co., 808 F.2d 1384 (10th Cir. 1987) (no control by the broker where evidence showed customer owned several businesses and rental property, spoke with broker almost daily, knew how to use broker’s computer, and occasionally rejected broker’s recommendations). 

National Churning Attorneys 

Broker churning claims can be complex and sometimes difficult to prove.  Brokerage firms almost always hire experienced securities defense firms to defend them in these claims. 

If you believe that you are the victim of account churning by your brokerage firm or financial advisor, please contact the experienced churning attorneys at The White Law Group at 888-637-5510. 

 

Tags: broker churning Last modified: March 6, 2024