Securities Law FAQ

Victims of financial misconduct understandably have a lot of questions. At McCarthy, Lebit, Crystal & Liffman, we’ve got answers. Following are answers to some of the questions we hear most often. If, after reviewing this information, you would like to discuss your case with an experienced securities litigation attorney, please contact us today. From our office in Cleveland, Ohio, we represent clients throughout the country.

I lost a lot of money in my investment accounts. Is it my broker’s fault?

Maybe yes, maybe no. Brokers are not guarantors of profitable investing. Most investments involve some degree of risk and uncertainty, and no broker can guarantee that you’ll make money. In fact, if a broker promises you’ll make money in a particular stock or in the stock market, you should get another broker. Nevertheless, in dealing with you and your investments, your broker is required to comply with high standards of commercial honor and just and equitable principles of trade. If the broker breaches his or her duties to you, and you suffer a loss as a result, the broker and his or her employer may be made to compensate you for that loss.

What duties are owed by a broker?

Stockbrokers are fiduciaries and owe a duty of care and loyalty to their customers. Your broker was therefore obligated – at a minimum — to do the following in making recommendations to you:

  1. Study any recommended investment to become sufficiently informed about its nature, price, and financial prognosis;
  2. Inform you of the risks involved in any purchase or sale;
  3. Disclose any conflict of interest he or she had in recommending a security, and refrain from putting his or her self-interest ahead of your interest;
  4. Disclose or refrain from misrepresenting any fact that a reasonable customer might have found to be important to the investment decision;
  5. Refrain from transacting any purchase or sale until he or she obtained your express prior authorization; and
  6. Ensure that each recommendation is suitable.

If your broker violated any of the above-described duties, and the violation caused you to lose money, you have a valid claim for damages.

How do I find out whether my broker was at fault? 

All losses are in some way “caused by the market.” But there’s always more to the story, and often a broker who blames your losses on a bad market will be hiding the fact that your investments were not as safe as he or she represented to you. As to how you can find out, there are several ways. If you have changed stockbrokers, your new broker might detect wrongdoing by his or her predecessor. (We get many referrals from stockbrokers who make such discoveries.) Your accountant or tax-preparer also might notice problems in your accounts and alert you to possible wrongdoing. But eventually, you will need to have a qualified attorney review your investments. That’s where we come in.

Does it cost anything to consult with you about my case? 

In most cases, no. Until you retain us as your counsel, in writing, our in-house review of your documents and all telephone conversations and meetings are free of charge. So contact us today.

What happens if I have a valid claim?

First, we’ll ask you to provide us with detailed information about your personal and employment background, your investment history, and your dealings with the financial professional in question. Then we’ll describe the nature of any suspected wrongdoing, candidly and thoroughly detail the weaknesses and strengths of your case, and point out any important questions that remain unanswered.

While our attorneys have extensive knowledge about securities litigation, lawyers are not permitted to testify on behalf of their clients and must therefore present expert testimony in the arbitration or trial. Thus, before we agree to represent you, we may recommend that you authorize us to have your account documents reviewed by a damages expert who can employ specialized programs and databases to track the course of your investments and calculate your losses under various damage theories. In the event we believe such an expert review is warranted, we will advise you of that fact and obtain your approval before engaging the expert. The cost for the expert’s initial review will vary, depending on the complexity and duration of the trading history. That cost must be paid by the client, but will never be incurred without the client’s prior approval and the provision of a preliminary estimate.

How do you charge if you agree to take my case?

In most instances, clients who have suffered investment losses can’t afford or don’t wish to incur hourly fees. Thus, we generally provide our services in exchange for a contingent fee. The fee is “contingent” because we’re paid only if we’re successful in recovering money for you. If we don’t recover, you don’t pay us a penny for the time and effort our lawyers have expended on your case. If we do recover, our fee will be a prearranged percentage of the gross recovery. Regardless of the outcome, the expenses of the litigation generally are the client’s responsibility. These include filing and session fees assessed by the arbitration forum and costs incurred for experts, travel, court reporter services, copying, and delivery.

It’s our standard practice to always describe the contingent fee and expense reimbursement arrangements in a written fee agreement to ensure that the client is fully informed before he or she retains us.

Please note that you’re not required to hire us on a contingent fee basis. If you would rather have us charge you by the hour, we will consider doing so. We also are willing to discuss hybrid arrangements in which a reduced hourly rate is combined with a reduced contingent fee. Feel free to ask about these alternatives if you’re interested.

What if I can’t afford the risk of incurring expenses?

In some circumstances, if we think a client has a sufficiently strong case but the client truly can’t or is unwilling to agree in advance to be responsible for expenses, we may consider a special arrangement in which we agree to forgo reimbursement of such expenses in the event there is no recovery. However, because such an agreement increases our own degree of risk, we usually will require that our contingent fee be increased.

How long will it take before my case is resolved?

Unfortunately, because courts and the arbitration forums have extensive backlogs, securities cases do not move quickly. Whether we file in court or in an arbitration forum, you should be prepared to exercise patience. The minimum time from filing to a hearing is probably one year, but 15 to 18 months is not unusual. Of course, many cases settle prior to the hearing, but that usually doesn’t occur until the hearing date is near.

What are the chances that I will recover some or all of my losses?

In the vast majority of our cases over the years, meaning well over 90%, our clients have recovered money. Of course, those past results aren’t a guaranty that you will recover anything, and no ethical lawyer can promise you a successful outcome. But bear in mind that in most cases we handle, we only make money if we obtain a recovery for our client. Thus, we have a strong incentive to carefully assess the likelihood of recovery in your case before we agree to take it. We will not agree to handle your case unless we believe that it has merit and that you have a good chance of recovering.

Will regulatory authorities help me to recover my losses? 

Very rarely. Government agencies and regulatory authorities generally don’t help individual investors to recover their losses. Occasionally, misconduct will be so pervasive that regulators will ask courts to order compensation to the victims or will make compensation to victims a condition of settlement. However, this is not a common occurrence. Your best option is to actively pursue recovery on your own with the help of a competent investment attorney.

Why do I need a lawyer? Won’t the broker or brokerage firm voluntarily reimburse me for my losses? 

Your chances of persuading a brokerage firm to voluntarily refund your losses are virtually non-existent. The firm will almost always explain that the losses were your fault or the fault of market conditions beyond its control. They will tell you this whether or not it’s true. The strategy of most brokerage firms faced with complaining customers is to brush them off and hope they give up without a fight. Brokerage firms follow this approach because, unfortunately, the vast majority of customers do give up without a fight.

Is there a limit to the size of cases you’ll take? 

Yes and no. We make the decision based on the particular circumstances of each case. While obviously there is no upper damage limit on the cases we accept, the expense and labor-intensive nature of the arbitration or litigation process makes some losses too small for us to pursue. Such cases usually are those in which the damages are less than $75,000-$100,000. But we will consider taking a case of $50,000 or less, and have done so in the past, when the wrongdoing is undeniable or when the broker’s misconduct is so egregious and offensive that we feel compelled to make an exception. We also will handle small loss claims in a group matter – i.e., when multiple clients can be grouped in one case involving the same broker or the same investment.

How long can I wait to file a claim?

That depends upon the type of claim at issue and the state in which the events occurred. Statutes of limitation apply to all securities-related claims brought in court, and depending on which state’s law applies, they can bar claims in arbitration as well. Respondents’ lawyers and claimants’ lawyers disagree as to whether statutes of limitation apply in arbitration in all states or in just a few. For example, we strongly contend that they do not apply in our home state of Ohio.

Your safest bet is to assume that short time limits will apply and to seek legal assistance as quickly as possible.  You also should bear in mind that whether or not statutes of limitation apply to your claims, FINRA will not hear a case if six years have elapsed from the occurrence or event giving rise to the claim. Once that time limit has run, your claim may be gone for good.

We often are forced to break the news to investors who have otherwise valid cases that their claims are gone because they allowed the maximum time limitation to run. Thus, the smartest thing you can do is to seek competent legal advice as soon as you suspect that there may have been wrongdoing in your investment account.