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The U.S. Department of Labor has sounded a warning regarding 401(k) plan investments in cryptocurrencies. In Compliance Assistance Release No. 2022-01 (issued March 10, 2022), 401(k) plan fiduciaries are urged to “exercise extreme care before they consider adding a cryptocurrency option to a 401(k) plan’s investment menu for plan participants.” Because of the risks and uncertainties associated with cryptocurrencies, the guidance document raises “serious concerns about the prudence of a fiduciary’s decision to expose a 401(k) plan’s participants to direct invest in cryptocurrencies or other products whose value is tied cryptocurrencies.”

Under federal laws governing retirement plans (commonly known as ERISA), the investment manager of a 401(k) plan is considered a fiduciary, who must act solely in the financial interests of the plan participants.  Courts hold fiduciaries to very high standards of professional care and prudence.  When these standards are breached, the asset manager can be held personally liable for the losses resulting from the breach. For 401(k) plans, the fiduciary is obligated to evaluate independently which investments are suitable to include in the investment options from which plan participants may choose.  Offering imprudent investment options to participants is considered a breach of duty.

The Department of Labor identified several areas of concern that make cryptocurrencies and cryptocurrency-tied products exceptionally risky investments for 401(k) participants.

Greco & Greco represented a retired Northern Virginia couple in a NASD arbitration seeking the recovery of savings lost by their stockbroker which they had intended to use to buy a new house. The broker had invested all of their life savings and house sale proceeds in the stock market through the use of a money manager. The arbitration panel awarded the couple $195,000 in damages (an amount higher than their out-of-pocket losses), $65,000 in attorneys’ fees, and interest from July, 2003. Read the NASD award.

Greco & Greco’s client was awarded her entire investment ($100,000) plus interest and 1/3 attorney’s fees by a Washington, D.C. FINRA arbitration panel. The award was entered jointly against the brokerage firm, despite its claims that it was unaware of its representative’s sale of the non-approved security, and its claim that a release barred the recovery. Read the FINRA award.

An NASD arbitration panel in Richmond recently awarded a disabled Charlottesville, Virginia woman represented by Greco & Greco all of her losses in her investment account ($60,530) plus interest. Her brokerage firm had unsuitably invested her account aggressively in growth stocks despite the woman’s need for income from the account for living expenses for the rest of her life. Read the NASD award.

Greco & Greco is pleased to report the first FINRA Arbitration Award against UBS Financial Services of Puerto Rico relating to the crash of UBS closed-end bond funds in 2013 which were sold to Puerto Rico residents. W. Scott Greco represented the Claimant customer in the case of Bauza v. UBS Financial Services of Puerto Rico, et al. The arbitration panel awarded $200,000 in damages to the Claimant, despite claims by UBS that Claimant’s net out of pocket losses were less than $10,000.

The case involved a heavy over-concentration of the Claimant’s UBS account in proprietary UBS closed-end bond funds pursuant to UBS’s recommendations. The funds invested heavily in Puerto Rico bonds using leverage (a speculative investment technique) and had significant geographic concentration risk.

Read about the arbitration award in this Reuters article.

This case involved Trust and IRA accounts relied upon by a retiree to pay living expenses. The broker and firm were advised that the accounts were not to be invested in the stock market or other risky investments. Despite the conservative objectives for the accounts, the brokerage firm unsuitably invested the accounts primarily in stock/equities, and aggressively daytraded the accounts in initial public offerings and high risk investments. The FINRA arbitration panel awarded $124,156.00 in damages plus interest since January, 2009. See the award here.

A Norfolk, Virginia NASD arbitration panel found a brokerage firm liable for $75,000 in savings paid out of a disabled woman’s brokerage account to an alleged business venture of her stock broker on the last day of employment at the firm by her broker. The firm had taken the position that it was not responsible for the “investment” made outside of the firm. Read the NASD award

Greco & Greco’s client in this case was a Norfolk, Virginia broker who had agreed with his partner to set up introductory meetings with institutional clients and to subsequently split the fees earned from these clients. An NASD arbitration was filed seeking the broker’s share commissions which were not correctly split and paid. The arbitration panel awarded $509,732 in back commissions and interest to Greco & Greco’s client. Read the NASD award.

Million Dollar Plus Awards for Family sold unsuitable risky limited partnerships.  Greco & Greco represented a Chicago, Illinois family against a Virginia based brokerage firm and received an award for $1.2 million in damages and $400,000 in attorneys fees.  A second arbitration was then successfully prosecuted against the control persons of the firm for failure to honor the award. The awards can be found here and here.

Greco & Greco recently obtained a 3.24 million dollar arbitration award on behalf of a retired Northern Virginia man against his stockbroker and brokerage firm. The case involved churning, unauthorized margin trading, unsuitable recommendations, and securities fraud. In addition to $1,003,725 in compensatory damages, the arbitration panel awarded $1,300,000 in punitive damages, $774,863 in attorneys fees, and pre-award interest. Read the NASD award or read the Virginia Lawyers Weekly article about the case.

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