WHO REGULATES THE REGULATORS?
America is Litigation Nation
One of the most insulting movies ever made was Oliver Stone’s “Wall Street.” In this movie, a young stockbroker played by Charlie Sheen cuts corners to achieve success. He becomes crooked. He is rightfully punished, and near the end of the movie lets his father know that he is about to begin a jail sentence. So far so good. Yet the father, played by the ever pious Martin Sheen, says something to his son that every financial professional should find deeply offensive. Rather than criticize the specific behavior of his son, he instead remarks that when his son gets out of jail, he should, “get a real job instead of living off of the buying and selling of others.”
Yes, in one fell swoop, an entire profession gets indicted, at least verbally.
In this warped view of the world, financial professionals are all thieves, crooks, and liars, while those that regulate them are pure white knights in shining armor. Yet the regulators are often more dangerous than the financial professionals. The financial professionals have to answer to the regulators.
Who regulates the regulators?
Financial firms are under attack from three different sources of regulation. The first source consists of fly by night operations in the form of “lawsuit firms” that operate outside the legal system. The second source consists of self regulatory agencies and government agencies. The third source consists of self aggrandizing politicians. All three of these entities have abused their public trust.
There was a time when the financial services industry needed to be cleaned up. Regulators came in, did their jobs effectively, and helped put crooked firms out of business. Yet at some point regulators became a victim of their own success. The firms that survived realized that they had to play by the rules to stay in business. So playing by the rules is exactly what most of them did. They hired Compliance Departments. They taught ethics. They helped combat money laundering. They fired their own bad apples to protect their reputations.
Most people would see this as positive. To regulators, this is a disaster. Regulators exist to get rid of the bad seeds. When too many of those bad seeds are removed, regulators then lack things to actually do. They become less necessary. Therefore, rather than fire themselves, they need to create problems that they can then solve.
Problems such as insider trading, churning, and unauthorized trading are simply less common among firms because they know that those infractions are potential death knells. Yet ask any Wall Street firm that is being harassed because one customer order might have three timestamps instead of four, or that a form is filled out with a fine point blue pen instead of a medium point black pen, and they will concede that the regulatory system is out of control.
The first group of unchecked regulators that are causing problems are firms specifically set up to sue financial services firms. A firm that my company regularly does business with has come under attack from the stockbrokerage equivalent of ambulance chasers.
I personally spoke to one of the employees of this “stockbrokerage recovery” firm. I asked him if he was an actual attorney. He said that did not matter. I asked him if he had a Series 7 stockbroker’s license. He said that was also immaterial, and became irritated with such probing questions. He made it clear that he wants to settle every single case. He has no desire to ever go to trial. He knows that big companies roll over (he used stronger language), and he freely admits targeting companies that have a history of paying.
This fellow criticizes organizations that engage in “cold-calling” to find clients. Yet the business model of this stockbrokerage recovery firm is cold-calling people. They buy leads, call people up, and actively try to solicit them into suing their stockbroker. The firm takes the case on contingency, and one client confessed to me that the firm receives 50% of any judgment. This is significantly higher than what most attorneys receive.
In speaking to this same employee, I pointed out that the statute of limitations on his case had already passed. I also pointed out that the firm he was suing had virtually nothing to do with the client, and that he was suing the wrong firm. I additionally pointed out that the client never purchased stocks in the account in question. He purchased options on commodities, which is a completely different financial product outside the jurisdiction of FINRA (formerly NASD). Therefore, he was trying to sue in the wrong court.
The employee seemed uninterested and uneducated as to how commodities worked, and made it clear that going after the stockbrokerage firm with deeper pockets in the hope of a settlement made more sense than going after the commodity brokerage firm that held the actual account. When I pointed out these facts to the client, their response was, “I am not paying any money for this service, so I don’t care.”
Lastly, this supposedly successful firm is located slightly away from Wall Street, in a place known as Coney Island. Now Coney Island is great if one wants to ride the Cyclone, walk on the Boardwalk, or eat a hot dog from the original Nathans. It is not a business district. The “office” of this stockbrokerage recovery firm was the equivalent of a shack. It had a paper sign on the door, which was partially obscured by the much larger sign of another company that apparently sells kitchenware.
Yet what is most troublesome about this firm is that they do not appear to answer to any professional organization. Attorneys and stockbrokers answer to the ABA and FINRA, respectively. Yet various stockbrokerage recovery firms such as this seem to have unchecked power.
The best way for firms to handle these firms is to refuse to negotiate with them. Once the person representing the firm filing the claim declines to state that they are an attorney, all conversation by the stockbrokerage firm being sued should cease.
If unlicensed stockbrokerage recovery firms are ants, then regulatory organizations are elephants. I have dealt with many regulatory agencies over the years, and they have truly become victims of their own success. Several examples of claims or suggestions that regulators have made are below.
1) My firm was told to have procedures in place for selling a specific type of financial product. Our firm explained that we do not transact in the type of financial product in question. We were told that this was still a “deficiency,” and that we had to have procedures in place so that we can regulate a financial product that we had never sold, and most likely would never sell. Imagine the reaction from the medical community if heart surgeons were told to have plastered on their office walls the solutions to all medical issues concerning podiatrists.
2) My firm was told that they overheard a broker discuss a goal of doubling the client’s money. The regulator then explained that they specifically heard the phrase “50%.” We explained that doubling is 100%, not 50%. As sheepish as the regulator was at this point, they included the error in their final report.
3) One branch office of my firm was told that we were in violation because we did not have a manager or supervisor on site. Employees must be monitored. We explained that the manager was in the bathroom. The regulators acknowledged this, and yet included it in their report as another deficiency.
4) One regulator asked loaded questions of our employees in an attempt to deliberately trick them into incriminating themselves and the firm. English was not the first language of the employee, and they were quite scared at being taken into a conference room with no windows. The broker was asked if they had ever been “disciplined,” meaning had they ever been found guilty of a regulatory violation. The broker answered in the affirmative. The regulators then tried to go onto the next question, but I intervened in the conversation. I explained to the broker that only compliance and regulatory issues mattered, not human resources sanctions. The broker then explained that they had been disciplined by the firm for tardiness, which is not a regulatory or compliance violation of any kind.
5) One client wrote a check to our firm that bounced. This caused the broker’s commissions to be taken away. The stereotype of wealthy stockbrokers with golf clubs and putting greens in their office taking advantage of poor elderly people on Social Security is not always the true picture. Often it is multimillion dollar clients on their own private golf courses trying to cheat rookie stockbrokers who are trying to survive on less than $24,000 per year. The particular wealthy aforementioned client kept promising to pay, and kept reneging. My firm sued in small claims court, and won a judgment. Only after this fact did the client then retaliate by going to regulators and claiming malfeasance by the firm. The regulators were aware of the facts in front of them, yet the case was allowed to proceed. Facts did not matter.
6) Some clients in the financial services industry have been actively solicited by regulators to file complaints. On more than one occasion, a client has informed me that they only filed a complaint because a regulator called them, and told them that they should. As an inducement, the client was given information regarding the company that was false. A thirty second trip to the internet would have verified this. As for why regulators do this, complaints require both sides to pay filing fees. These fees go in the pockets of the regulatory agencies. The regulatory agencies have a direct financial incentive to have more complaints. Lastly, the client was given information by the regulators regarding other clients, which is at best irregular, and possibly illegal. Firms know never to discuss a client account with another client without written permission. Regulators especially should respect this privacy issue.
I could write hundreds of pages alone on the examples listed above. When my firm needs help from the regulators, such as reviewing a one page document to make sure that it is in compliance, this can take several weeks. When the regulators have a document request from us, they demand an answer in 72 hours. This can be crippling to a financial institution from a productivity standpoint.
People who work on Wall Street should be trembling in fear at this. It is the equivalent of a slow bleed strategy, death by a thousand cuts. Some would say that FINRA (not the agency I am referring to, I am using them as an example) is regulated by the Securities and Exchange Commission (SEC), but this oversight is minimal. The SEC does answer to Congress, but firms will not bring a claim before Congress out of fear. Regulators are the good guys, corporations are the evil bad guys, and if the claim against the regulatory agency is unsuccessful, then the regulators will come back even more determined. This is analogous to trying to “kill the king.” If you only wound the king, he will come back after you with his entire regulatory army.
Yet if regulatory agencies are elephants, then crusading politicians are the equivalent of Godzilla. One example of this would be the former Governor of New York, Eliot Spitzer.
Mr. Spitzer wreaked havoc on Wall Street when he was the Attorney General of New York. He rode in on his stallion and built his career around the evil enemy of Wall Street. Yes, there was some corruption. Yes, Wall Street like any other organization had bad apples, as previously mentioned. However, those regulating and enforcing laws must stay within the confines of those very laws themselves.
Mr. Spitzer was alleged to have threatened Wall Street executives over the telephone. Either they “played ball,” or he would sue them. Finally, one CEO of a large insurance company had had enough of Mr. Spitzer’s bullying. He went public to the newspapers regarding Mr. Spitzer’s heavy handed tactics. His company stayed intact.
Yet how many companies roll over because they are scared to death of a Governor who is using his crucifixion of them to become President of the United States? The fact that Mr. Spitzer was brought down by a financial scandal (it was not about sex, it was about possible money laundering) does not change the fact that for too long he was unregulated, unchecked, and unrestrained. On a Federal level, the United States Government harassed IBM and Microsoft, and both companies caved. Only when Intel fought back hard did Attorney General Janet Reno back down.
Wall Street must start fighting back. The regulatory climate in the financial services industry has gotten out of control. I am not arguing that we stop regulating the industry. Regulation is necessary. I am advocating that more oversight be given to those providing the initial oversight.
The regulators must be more regulated themselves.
After all, financial services firms actually produce goods and provide services. They are the economic engine that drives America.
Stockbrokerage recovery firms, regulatory agencies, and Government officials do not produce anything. They exist solely because corporate America exists. They play an important role in society, but without corporations, there are no regulators. Destroying corporate America would destroy America itself. Productive people understand this. In tough economic times, corporations have to lay off employees. It is unfortunate, but a necessary evil of the business cycle. Regulators should be required to do the same. They should not be allowed to have bloated budgets pursuing frivolous and open ended investigations about non-matters just to stay employed.
In short, to paraphrase Oliver Stone, many of these regulatory employees need to get real jobs in the private sector learning how business benefits society, instead of living off of the buying and selling of others.
Guilty firms can and should be punished. No innocent person should ever be put in prison, and no falsely accused corporation should ever be put out of business. Firms that are innocent of accusations trumped up against them should fight back tooth and nail.
Otherwise, firms can roll over and continue to end up black and blue because they filled out a form in blue when it should have been filled out in black.
eric