TAG | churning
23
SEC Charges Former Sentinel Securities Rep Defrauded 9/11 Widow
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In an article on InvestmentNews.com, written by Lavonne Kukendal, March 23, 2011, she writes that James J. Konaxis, a former broker, has been charged with defrauding the widow of a victim of the Sept. 11, 2001, attack on the Pentagon of much of her victim compensation settlement money.
Ms. Kukendal writes that the (SEC) Securities and Exchange Commission said today that it charged the Beverly, Mass.-based rep with churning the victim’s accounts, which fell to about $1.6 million in value from $3.7 million between April 2008 and last May. During that time, Mr. Konaxis earned about $550,000 in commissions on the accounts of the victim, who was identified only as “S.T.”
The SEC said that it is conducting separate administrative proceedings against Mr. Konaxis in which he has consented to be barred from association with any broker-dealer, investment adviser, municipal-securities dealer or transfer agent. At the time of the fraud, Konaxis worked as a registered representative at broker-dealer Sentinel Securities Inc.
James J. Konaxis has consented to a partial judgment barring him from participating in any penny stock offering. The SEC also will seek disgorgement of the ill-gotten gains plus prejudgment interest and a monetary penalty.
According to the InvestmentNews article the phone calls to Sentinel Securities and to a phone number listed under James Konaxis in Beverly seeking comment weren’t immediately returned.
If you feel you have been an alleged victim of a fraudulent investment by James J. Konaxis, or Sentinel Securities, Inc., call a Securities Arbitration Lawyer for a free consultation on how to recover your losses. To speak with an attorney, call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC., representing investors nationwide before FINRA the Financial Industry Regulatory Authority.
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25
Chanse Keith Menendez, Sr., Barred by FINRA and Ordered to Pay Restitution
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Chanse Keith Menendez Sr. (CRD #2448467 Registered Representative, Hauppauge, NY) was barred from association with any FINRA member in any capacity and ordered to pay $44,930.03 in restitution, plus interest, to customers. The sanctions were based on findings that Menendez engaged in excessive and unsuitable trading in customers’ accounts when he did not have reasonable basis for believing that the volume of transactions he recommended and effected was suitable for the customers in light of the information he knew about the customers’ financial circumstances, investment objectives and needs. The finding stated that Menendez purchased and sold securities for customers’ accounts without regard for the customers’ investment interest for the purpose of generating commissions; therefore, his misconduct amounted to churning. The findings also stated that Menendez mischaracterized solicited trades as “unsolicited” in customers’ accounts, and caused his member firm’s books and records to be inaccurate. The findings also included that Menendez failed to appear for FINRA on-the-record-interviews. (FINRA Case #2007007400505)
This appeared on the FINRA website’s Disciplinary Actions for January, 2011.
If you have been a victim of the alleged fraudulent schemes of Chanse Keith Menendez or a similar situation, call a Securities Arbitration Lawyer for a free consultation on how to recover your losses. To speak with an attorney, call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC., representing investors nationwide before FINRA the Financial Industry Regulatory Authority.
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The United States Securities and Exchange Commission (SEC), September 22, 2008, filed a civil complaint in the United States District Court for the Southern District of Florida, against former Axiom Capital Management, Inc. (Axiom) registered representative, Gary J. Gross The Complaint alleged that from early 2004 through approximately September 2006, Gross defrauded several of his customers by
- making material misrepresentations and omissions about the risks and suitability of securities he bought for them,
- churning customer accounts, and
- fabricating customer account values.
When Gross reaped more than $700,000 in ill-gotten gains, his customers lost more than $2.7 million. Many of Gross’ customers often were elderly, unsophisticated investors, who wanted only to preserve their principal and grow their portfolio while investing with minimal risk.
Among the allegations, the SEC particularly focused on Gross’ playing up the profit potential of various private placements and investments known as PIPEs (private investments in public equities) to his customers. Gross told his customers the private placements and PIPEs were riskless and the issuers were high-quality companies. Gross promised some customers they would be able to sell these investments within months and reap large profits. Gross failed to disclose the risks accompanying these investments.
Contrary to Gross’s representations, the PIPEs transactions he was pushing involved start-up ventures in search of funding, with little or no track record. Gross also did not tell customers they would receive restricted stock they could not trade until the issuers’ registration statements were declared effective. Additionally, Gross did not tell his customers that the issuers’ registration statements could be delayed, and that customers would consequently be unable to convert their restricted shares into free-trading common stock within the time Gross promised.
When hiring Gross, Axiom established its first branch office in Boca Raton, Florida. The office was staffed primarily by Gross, his branch manager David A. Siegel, and a sales assistant. However, Gross arrived at Axiom in December 2002 as damaged goods, due to customer complaints about Gross at previous firms. In fact, the State of Florida required, among other things, that Axiom place Gross on strict supervision (under which he remained until terminated in January 2007).
In May 2003, Axiom hired Siegel as branch manager for its Boca Raton branch office and to supervise Gross. Siegel’s compensation was based on commissions he generated from his own customers and a two percent he received of the branch office’s net commissions.
The SEC alleges that Branch Manger Siegel failed reasonably to supervise Gross by failing to follow both Axiom’s written supervisory procedures manual and an internal Axiom memorandum entitled “Heightened Supervision of Gary Gross.” As a consequence, the SEC alleges that Siegel failed to notice on numerous occasions when several of Gross’ customers entered unsolicited orders to purchase or sell the same securities, often on the same day. Further alleged, is that Siegel also failed to regularly use the firm’s monthly Active Account Report, review monthly customer account statements, or take other reasonable action to monitor for churning by Gross. The SEC’s final shot is the allegation that Siegel profited from Gross’ violations of the federal securities laws in the form of commissions he received based on Gross’ commissions.
On November 25, 2008, the United States District Court for the Southern District of Florida entered a judgment by consent against former Axiom Capital Management, Inc. registered representative Gary J. Gross.
- permanently enjoining him from violations of Section 17(a) of the Securities Act of 1933 and Section 10(b) and Rule 10b-5 of the Exchange Act,
- ordering him to pay disgorgement and a civil penalty pursuant to Section 20(d) of the Securities Act and Section 21(d) of the Exchange Act, and
- barring him from participating in an offering of penny stock as defined by Exchange Act Rule 3a51-1.
Pursuant to an offer of settlement from Gross in which he was barred from association with any broker, dealer, or investment adviser, the Securities and Exchange Commission entered an Order Instituting Public Administrative Proceedings and Imposed Remedial Sanctions.
Besides going after Branch Manager Siegel, the SEC proposed to proceed against Axiom, citing the firm’s failure reasonably to supervise Gross in connection with his sale of private placement offerings and private issuances of public entities (PIPEs) (collectively “private placements”), from approximately January 2005 through at least September 2006. The SEC alleged that Axiom failed reasonably to supervise Gross because it failed to devise a reasonable system to implement the firm’s policies and procedures regarding review for suitability of private placement investments and review of subsequent transactions to determine suitability of the transaction in light of the customer’s current holdings.
Two years after Gross settled with the SEC, Axiom submitted an Offer of Settlement.
The SEC determined that Axiom’s written supervisory procedures manual (“WSP”) required the registered representative to determine whether a private placement was a suitable investment to recommend to a customer; however, it failed to provide a clear mechanism for supervisory oversight of these determinations. Elsewhere, the WSP provided that the supervisor was responsible for reviewing transactions for suitability “where appropriate,” but failed to define appropriate circumstances for this suitability review.
In settling with the SEC, Axiom agreed to several undertakings. The firm will retain an Independent Consultant to (i) review Axiom’s written supervisory policies and procedures concerning suitability review of private placements; and (ii) review Axiom’s systems to implement its written supervisory policies and procedures concerning suitability review of private placements and suitability reviews subsequent to the purchase of a private placement.The Independent Consultant is required upon concluding the review (or within 120 days at the most) to submit a report to Axiom and the SEC in which the supervisory issues noted are addressed through recommended changes or improvements to policies, procedures, and practices. It is anticipated that Axiom will adopt, implement, and maintain such recommendations or reach a mutual resolution of any disputes with the Independent Consultant. Finally, pursuant to Axiom’s Offer of Settlement, the SEC imposed a Censure and a $60,000 civil penalty.
If you feel you are a victim of these alleged fraudulent schemes of Gary J. Gross and/or Axiom Capital Mangement, Inc., call a Securities arbitration lawyer for a free consultation on how to recover your losses. To speak with an attorney, call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC., representing investors nationwide before FINRA the Financial Industry Regulatory Authority.
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J.P. Turner & Company is a relatively new firm. It was founded in 1997 by Tim McAfee and Bill Mello. It has 160 independent branch offices and more than 530 financial advisors throughout the country.
In FINRA’s broker reports, J.P. Turner & Company has been named in numerous regulatory and customer complaints. Through August 12, 2009, J.P. Turner & Company had been named in 21 arbitrations and was the subject of 15 “regulatory events.” As an example, in June 2009, they had a fine of $525,000 and findings that J.P. Turner & Company failed to establish and implement policies and procedures reasonable designed to detect and cause the reporting of suspicious activity as if related to the activities of one former broker. It also found that J.P. Turner & Company failed to obtain required customer information.
Customer complaints against J.P. Turner & Company vary but they include alledged allegations of securities fraud regarding claims of unsuitability, churning, margin, negligence, and breach of fiduciary duty.
Many of these investments were sold by stock brokers and financial advisors around the country. This allows us to pursue a claim on your behalf before the Financial Industry Regulatory Authority nationwide. Call now for a free consultation.
If you feel you are a victim of these alleged fraudulent schemes of J.P. Turner & Company LLC, call a Securities arbitration lawyer for a free consultation on how to recover your losses. To speak with an attorney, call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC., representing investors nationwide before FINRA and the Financial Industry Regulatory Authority.
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30
First Allied Securities, Inc, a San Diego Brokerage Firm Charged by SEC with Failing to Supervise Broker Who Defrauded Two Florida Municipalities
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Washington, D.C.,— The Securities and Exchange Commission (SEC) charged a San Diego-based broker-dealer in March, 2010, with failing to reasonably supervise one of its registered representatives who engaged in unauthorized fraudulent trading in the accounts of two Florida municipalities.
It was noted that First Allied Securities, Inc., has agreed to settle the SEC’s findings by paying $1.95 million. The SEC charged the firm’s former broker, Harold H. Jaschke, with fraud last year.
“Supervising registered representatives is a job that must be taken seriously by broker-dealers,” said Rosalind Tyson, Director of the SEC’s Los Angeles Office. “By failing to establish reasonable systems to prevent Jaschke’s misconduct, First Allied did not fulfill its obligation to reasonably supervise its registered representatives.”
SEC’s administrative order instituting the settled proceedings against First Allied finds that between May 2006 and March 2008, Jaschke executed numerous unauthorized transactions, made unsuitable recommendations, and churned the accounts of the City of Kissimmee, Fla., and the Tohopekaliga Water Authority. The SEC finds that First Allied failed reasonably to supervise Jaschke because it did not establish reasonable systems to direct follow-up action in response to red flags regarding churning and suitability.
The SEC’s order, First Allied waited nine months before contacting the municipalities through self-described “annual review” letters that, in actuality, did not relate to annual reviews. The letters failed to alert them about the suspicious trading activity occurring in their accounts. Additionally, the order finds that First Allied had no system in place to monitor compliance with its rule prohibiting its brokers from using personal e-mail accounts to conduct business. This enabled Jaschke to use his personal e-mail account to send and receive business-related e-mails that were neither reviewed nor retained by the firm. The SEC’s order finds that First Allied failed to retain certain business-related e-mails sent to and from its employees, as required under law.
Also, in addition to requiring payment of $1.95 million in disgorgement, prejudgment interest and monetary penalties, the SEC’s order censures First Allied and requires the firm to cease and desist from committing or causing any future violations of certain books and records provisions. First Allied also agreed to certain undertakings, including the hiring of an independent consultant to review its policies and procedures as well as its system for implementing its policies and procedures. First Allied consented to the issuance of the order without admitting or denying the SEC’s findings.
This information was obtained from the SEC’s website.
If you feel you are a victim of the alleged fraudulent schemes of First Allied Securities or any of the brokers involved, call a Securities arbitration lawyer for a free consultation on how to recover your losses. To speak with an attorney, call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC., representing investors nationwide before FINRA and the Financial Industry Regulatory Authority.
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It is noted that ViewTrade Securities, Inc. (CRD #46987, Boca Raton, Florida) received a censure and fine of $10,000. The firm failed, within 90 seconds of execution, to transmit through ACT last-sale reports of transactions in NNM, NASDAQ SmallCapSM (SCSM), and OTC Equity securities. Also, the firm failed to designate through ACT OTC Equity securities last-sale reports as late. The firm accepted the fine and censure but did not admit or deny the accusations.
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Aura Financial Services and six stock brokers received large commissions while alledgedly cheating customers through high-pressure tactics, churning and other unethical practices for years, according to a lawsuit filed by the U.S. Securities and Exchange Commission.
Aura, an Alabama corporation headquartered in Birmingham, Alabama, and six of its current and former registered representatives, Ronald E. Hardy, Jr. (Hardy), Peter C. Dunne (Dunne), Qais R. Bhavnagari (Bhavnagari), Sandeep Singh (Singh), and Raymond Rapaglia (Rapaglia) were named in the suit.
”Aura and the six brokers treated the accounts of certain customers as their personal gravy train,” said Katherine Addleman, director of the SEC’s regional Atlanta office.
This Complaint alleges that, from approximately October 2005 through at least April 2009, the Defendants used fraudulent sales practices to induce customers to open and fund Aura brokerage accounts. The Complaint also alleges that the Defendants rampantly “churned” these accounts of at least fifteen customers by causing numerous trades to be executed which enriched Defendants through brokerage commissions and, in some cases, mark-ups, while depleting the customers’ balances through trading losses and excessive transaction costs. In addition, the Complaint alleges that many of the trades effected by Defendants were unauthorized by the customers. The Complaint alleges that during 2008, Defendants’ churning generated total gross commissions of over $1 million, while the accounts of the fifteen customers suffered a combined loss of over $3.5 million.
The Complaint alleges that the Defendants have violated the antifraud provisions of the federal securities laws, Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 thereunder. The Complaint seeks (1) preliminary injunctions against Aura and the four individual defendants still affiliated with it as registered representatives, Hardy, Bhavnagari, and Singh; (2) permanent injunctions against future violations; (3) disgorgement of ill-gotten gains with prejudgment interest; and (4) imposition of civil penalties.
The SEC, which was joined in the lawsuit by the Alabama Securities Commission, is seeking fines and repayment of what it alleges are ill-gotten gains.
The company is based in Birmingham, Ala., with offices in Miami and Islandia, N.Y., and formerly had an office in Pembroke Pines.
Four of the brokers named in the lawsuit are from South Florida and two from New York.
If you are a victim of the alleged fraudulent schemes of Aura Finanical Services, or the brokers involved, call a Securities arbitration lawyer for a free consultation on how to recover your losses. To speak with an attorney, call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC., representing investors nationwide before FINRA and the NFA.
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Recently, in an article written by Jason Zweig for the Wall Street Journal, he asks us whether a financial adviser—which nowadays means anybody from a stockbroker or insurance agent to a financial planner or “wealth manager”—should be held to higher standards of conduct?
Insurance agents and brokers are obligated only to have reasonable grounds for believing that any investment they recommend is “suitable” for you. They need not inform you of conflicts of interest that might bias their judgment; you might never find out, that they sold you a particular fund primarily because it paid them a fatter commission than others would have.
Zweig goes on to say that other financial pros, however, bear a “fiduciary duty,” meaning that they must put their clients’ interests ahead of their own and disclose potential conflicts. After the rolling calamities of the past decade, wouldn’t this be an improvement over business as usual?
According to a recent investigation by The Wall Street Journal, Congress may not be in a very good position to tell the difference between suitable and unsuitable financial advice.
In the Senate’s earlier reform bill a measure would have imposed a fiduciary duty on all financial advisers. It has been superseded by one that would merely study whether the current standards are adequate. An amendment introduced last week would exempt many insurance agents, and brokers selling their firms’ own products, from being fiduciaries.
It was reported that some members of Congress permit brokers to trade their accounts hundreds of times a year; others trade too much themselves. The accounts of 38 members of Congress or their spouses showed at least 100 trades apiece in 2008, according to public records; 15 had more than 300 trades each.
This activity is just what long-term investors try to avoid. Regulations have long sought to protect small investors from “churning,” or excessive trading.
In a recent interview with the Journal’s Brody Mullins, Sen. Tom Coburn (R., Okla.)said that most of his money is managed by a professional adviser. The senator explained that his portfolio is heavy on oil and natural-gas stocks because energy is big business in his home state of Oklahoma.
Sen.Coburn added that he has his own account at TDAmeritrade, valued atabout $70,000. He said he trades actively based on tips he gleans from Jim Cramer’s “Mad Money” show on CNBC.
In 2008, Sen. Coburn traded Transocean four times in less than a month on Mr. Cramer’s advice. “I lost my shirt,” the senator said. He fared better with Tyson Foods,which he bought on Nov. 20, 2008, and sold less than three weeks later.”I bought it and got out because it went up,” Sen. Coburn said. He added that he regretted selling Tyson so quickly, because its price kept rising after he sold.
While it’s far from clear that Congress has the courage and knowledge needed for reform, it’s quite clear what shape the reform should take.
A professor at Rutgers School of Law-Camden and a former assistant general counsel at the Securities and Exchange Commission, Arthur Laby, points out that securities sales people are usually exempted from a fiduciary duty if their advice is “solely incidental” to their brokerage services and if they receive “no special compensation” for providing advice.
Mr. Laby says that exemption is “an antiquated concept embedded in an antiquated statute.” When the law was enacted, in 1940, many brokers acted as custodians for cash or securities, and trading was much more cumbersome than it is now. “Today, advice is the main dish,” points out Mr. Laby, “and it’s brokerage that’s become ‘solely incidental’ to advice.” Therefore, he says, anyone providing individualized investment advice should bear a fiduciary duty toward his clients—putting their interests first and disclosing any conflicts of interest.
Mr. Laby goes on to suggest that Congress could require investment banks to bear a fiduciary duty toward anyone who buys the stocks or bonds they underwrite. Instead of having a primary duty toward the issuers of the securities, Wall Street would first have to do right by the purchasers.
In the Wall Street Journal article, Zweig feels that while that might not completely prevent underwriters from generating the kind of toxic waste that poisoned investors over the past decade, it might well cut back on the volume of sewage. It’s a reform well worth considering.
Call a FINRA Securities arbitration lawyer for a free consultation on how to recover stock losses and securities losses. Call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC. Representing investors nationwide before FINRA and the NFA.
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Broker-client disputes typically involve allegations that a brokerage firm and its registered representative churned or excessively traded a client’s portfolio in order to generate income for the broker and the firm and/or that the client was sold investments which were not suitable given the client’s investment objectives. At the root of churning cases is the question, “Was there a reasonable probability that the securities trading would be sufficiently profitable to cover its cost?”
Economists and securities industry professionals are often called as expert witnesses to assist arbitration panels in determining whether an account has been churned and, if so, what damages have been suffered by the client. Simple ratios and rules of thumb have long served as traditional economic analyses of liability and damages issues in churning cases. However, advances in computer technology and in our understanding of financial economics now allow for more thorough analyses.
The two common indicators of alleged excessive trading in churning cases: 1) turnover ratios and 2) cost-to-equity ratios. Turnover ratios measure how often, on average, the securities in a client’s portfolio are traded in a year. Cost-to-equity ratios measure the annual cost of the trading as a percentage of the client’s investments.
There are three common measures of damages in churning and suitability cases: 1) out-of pocket loss, 2) benchmark portfolio, or well-managed account, damages, and 3) trading costs. Out-of-pocket loss is the change in a client’s equity less any net deposits made during the period. Out-of-pocket loss is an inappropriate measure of damages because it ignores the opportunity cost of invested funds. Also, general market movements that are unrelated to the alleged fraud significantly affect the out-of-pocket measure.
The benchmark portfolio measure of damages corrects the deficiencies in the out-of-pocket loss measure. The benchmark portfolio measure of damages is the difference between what the client’s equity would have been had the portfolio been appropriately managed and the client’s actual equity at the end of the disputed period. The benchmark portfolio measure of damages is most widely used in cases where the primary allegation is that unsuitable securities were purchased for the client.
Trading costs (commissions, bid-ask spreads, mark-ups and markdowns, margin interest, and fees incurred by the client) are a widely used measure of damages in churning cases. Although not generally understood, the simple trading cost measure suffers the same flaws as the out-of-pocket loss because, like out-of pocket losses, it ignores the opportunity cost of invested funds. Fortunately, the adjustment necessary to correct the simple trading cost measure is straightforward and closely related to the benchmark portfolio measure of damages.
If you believe your broker has churned or excessively traded your account or engaged in another sales practice abuse, please call a FINRA Securities arbitration lawyer for a free consultation on how to recover stock losses and securities losses. Call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC. Representing investors nationwide before FINRA and the NFA.
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Churning is the practice of executing trades for an investment account by a broker in order to generate commission from the account. It is a breach of securities law, and it is generally the account holder is responsible for the return of the commissions paid, and any losses occasioned by the broker’s choice of stocks.
Attorney Lars Soreide said recently, “Some brokers may be tempted to churn accounts because their income is directly related to the volume of trading by their clients. Churning is illegal and should be reported immediately.”
Courts generally look at the turnover of an investment account, also known as turnover ratio, or the number of times the investment capital has been re-invested during a year. For example, for an actively traded mutual fund, the entire assets of the fund will be involved in buying and selling transactions once every six to twenty-four months. In churning cases, the entire assets of the investor are often traded once a month, or even more frequently. As a commission is paid on each trade, the commissions can substantially destroy the value of an investment account in a very short period of time.
Two measures of churning are an account’s turnover ratio and its cost-to-equity ratio. The turnover ratio is calculated by dividing the total purchases in the account by its average equity and annualizing the number. For equity accounts, an annualized ratio greater than two suggests active trading, and “an annual turnover rate of six reflects excessive trading.” See Mihara v. Dean Witter & Co., 619 F.2d 814, 821 (9th Cir. 1980); 1 Stuart Goldberg, Fraudulent Broker-Dealer Practices, § 2.9[b][1] at 2-43 to 49 (1978). The cost-to-equity ratio is calculated by dividing total expenses by average monthly equity. A cost-to-equity factor of 36 means that an account would have to appreciate 36 percent just to break even. See In the Matter of the Application of Peter C. Bucchieri, Exchange Act Rel. No. 37218 (May 14, 1996).
Critics of the practice of paying brokers commissions for managing investment accounts point to churning as one of the indicators that the brokerage system indirectly encourages such behavior by brokers to the detriment of the investors. Accounts invested in securities with steady returns and little price fluctuation generate no commissions, and brokers are not encouraged to invest their client’s money in such investments.
If you feel your account has been churned, with a large portion of your profit going to the broker, call a FINRA Securities arbitration lawyer for a free consultation on how to recover stock losses and securities losses. Call 888-760-6552, or visit www.stockmarketlawsuit.com. Soreide Law Group, PLLC. Representing investors nationwide before FINRA and the NFA.
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