The Wall Street Journal
THE INTELLIGENT INVESTOR APRIL 11, 2009
Investors Face Tough Duel When Fighting Brokers
By JASON ZWEIG

As my Aunt Betty once told me, it's only when the rinse cycle begins that you see how dirty the laundry really was.

With the market still off more than 40% from its peak in 2007, investors are examining how their portfolios ended up so filthy -- and blaming brokers. Through March 31, investors filed 1,264 arbitration cases with the Financial Industry Regulatory Authority, or Finra, up 114% from the year-earlier period.

Many will walk away disappointed.

With rare exceptions, when you sign a brokerage-account application you also sign away your rights to sue the broker or the firm for any bad advice they might give you. Instead, you must settle any dispute through the arbitration system run by Finra, which is funded by the brokerage industry.

Losses alone aren't enough. "Everyone has lost money," says David Robbins, an arbitration specialist at Kaufmann Gildin Robbins & Oppenheim in New York. "Even the arbitrators have lost money." In general, you must demonstrate that your broker put you into investments that violated your stated instructions, financial objectives or risk tolerance.

Consider Edward and Jean Marnell of Pleasanton, Calif. In 2005, at age 82, they had no investment experience; Mrs. Marnell had been diagnosed with Alzheimer's disease a year earlier. That February, the Marnells gave $100,000 to a broker at Morgan Stanley.

According to Christopher Ulrich, a law student who represents the couple through the securities arbitration clinic at the University of San Francisco, the Marnells instructed the broker that they needed steady income and had a low tolerance for risk.

The Marnells contend the broker put all their money into only four securities issued by Ford Motor, General Motors, GMAC and Sears Roebuck Acceptance; they quickly fell. By December 2005, when the Marnells finally sold the securities and closed their account, they had lost more than $20,000.

"Morgan Stanley denies the allegations," a spokesman stated by email, "and intends to contest them."

Compelling as their case might sound, the odds of getting most of their money back aren't in the Marnells' favor. At least 60% of cases that are filed for arbitration end up being settled before a hearing. In arbitration hearings, investors win at least something in about 42% of cases, down from more than 60% in the 1990s. Richard Ryder of Securities Arbitration Commentator estimates that the typical investor recovers about 40 cents on the dollar.

Finra has had an effective monopoly over arbitrations since 2007, when it absorbed the regulatory operations of the New York Stock Exchange. An industry member -- someone from within the brokerage industry -- is often required in arbitration panels.

"Other alternatives [to Finra's system] would be too expensive for customers," says Linda Fienberg, president of dispute resolution for Finra. "Also, if a broker doesn't pay an award, Finra suspends the broker or firm until they do pay. So I think Finra's forum is at least as fair and beneficial as any outside forum."

Here are some steps you can take to improve your odds.

Keep good records. Incomplete or sloppy documentation works against you.

Ask what happened. Write to your broker explaining why you feel your account was mismanaged. Be polite but specific, detailing what you told the broker about your level of experience, investment objectives and risk tolerance. Ask your broker to explain what went wrong.

Lock in the loss. Get a second opinion from another broker and your accountant, then dump whatever you should never have owned in the first place. You can't usually make a convincing claim without a realized loss.

Get help. To learn more about whether to arbitrate, try finra.org/ArbitrationMediation. To find an attorney: piaba.org. If your losses are under $100,000 or you are on a spartan budget, law clinics are at sec.gov/answers/arbclin.htm.

Don't "go on the papers." You might be offered an all-paper arbitration, in which neither side appears in person. If you "go on the papers," you release the brokerage firm from its obligation to send people to a hearing, thus reducing its incentive to settle with you.

Pick your panel. You can choose who will arbitrate your case, and you are free to ask Finra for more information on any potential arbitrator. You can research an arbitrator's past decisions at www.arbchek.com. Exercise your right to veto anyone who seems hostile to investors.

Terry,

You have no idea what you're talking about. You're on a finance website - and I'm assuming you have some sort of interest in finance - but obviously, you don't have a damn clue about the real nature. You think "cursing" is bad? This isn't an industry for mommy and daddy to go around nurturing people's language.

No one respectable would ever send out an email like that... HA HA, yes, you are an amateur.

Cut with the BS talk, this isn't a classroom, this isn't high school, and this isn't school of any form. If you aren't comfortable with people who cuss and you like to surround yourself with people with "English language knowledge," then go work for a college. It ridiculous to me how "corporate talk" or "educated talk" gets in the way of things.

It's kind of odd that you are even talking about Tim in a positive aspect because a lot of Tim's posts goes against what you consider to be a "lack of knowledge of the English language."

Cursing has its place in society...yeah it does, in the REAL fucking WORLD.

Best of luck.

Hey Tim, this is soo true. A lot of people don't like penny stocks, well I do, specially when I make 250% on one investment.

I really like what you are doing Tim, but to post a testimonial / comment like this...ehhhhh...

First and foremost, the guy doesn't seem like he has better than an 8th grade education and is probably a desk clerk for a small small boutique firm.

On top of his grammar being equal to that of an infant, he uses profanity constantly to try and make up for his lack of knowledge of the English language.

Cursing has its place in society, but if anyone wants to be taken seriously, my suggestion would be to leave it out of any email or comment section on a website.

No one respectable would ever send out an email like that.

Keep up your good work Tim! I enjoy your blog posts!