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Protection For Florida Residents Investments

by | Jun 20, 2023 | Firm News |

Investors often blame their broker for losses in the stock market. Sometimes the losses are caused by improper handling of the account and not just market fluctuations. You can obtain a free report regarding your broker from the Financial Industry Regulatory Authority (“FINRA”) at www.brokercheck.finra.org. The free report provides background information, registrations, and some information regarding prior claims. Brokers are self-regulating and FINRA has enacted various rules to regulate them.

For Florida investors, the Florida legislature enacted Chapter 517 of the Florida statutes to provide its citizens with even greater protection. In enacting the chapter, the legislature placed restrictions on brokers selling to Florida residents and provided better remedies than available under Federal law.

Chapter 517 is commonly known as the Security Investor Protection Act (“Act”). The Act imposes various requirements, including registering, disclosing background information, and restricting the types of representations a broker may make to customers.

The most common type of claim under the Act and against a broker in general is for a misrepresentation of fact. Under the Act a broker is required to inform a customer of relevant information concerning the securities and investments recommended by the broker. This duty goes beyond prohibiting false representations and includes an affirmative duty to speak. Typically, a broker recommending a security only discusses the good aspects of the security. The Act requires a broker to provide more than the high points of a security. Specifically, it states it shall be unlawful and a violation for a person to omit to state a material fact when considering the circumstances under which the statements were made the omission is misleading.

A typical example of this breach of the duty to speak occurs when a broker recommends an unsuitable security. The doctrine of suitability incorporates many of the basic aspects of investing. In making a recommendation to purchase or sell a security, a broker must consider the investor’s age, income level, assets, and sophistication. This is commonly known as the “Know Your Customer Rule.

The Act does not expressly discuss suitability. However, the courts have determined that the Act includes these types of violations. Under the rules and the Act and FINRA, a broker who recommends a security that is not suitable has committed fraud under the Act. Placing a large portion of a retiree’s liquid assets in high-tech stocks is unsuitable because although the quality of the stock might be considered acceptable, the volatility is simply inappropriate for someone living off their investments. The prices of these stocks vary widely from day to day. A retiree might need to sell the stock to pay expenses. If this were to occur on an off day, the loss would be realized. Similarly, placing a large portion of the liquid assets in an illiquid investment would also be unsuitable.

Unlike the typical fraud case, the misstatements or failure to speak need not cause the loss. In a typical 10b‑5 case (Federal Securities Fraud) the investor must show that the information that was withheld had an effect on the stock price and in essence caused the damage. This is not the case with actions brought under the Act. Under Florida law, all a Florida investor need show is that, but for the misstatement or missing information, the security would never have been purchased. This makes a violation of the Act an easy claim to prove.

In selling a security, brokers often make claims as to the safety of the security and their own infallibility. Recognizing that certain words are inherently deceptive, the legislature has limited the sales pitch a broker may employ when discussing himself or a specific security. The use of these words appears to pose a type of strict liability on the broker. They include misrepresenting that a company or broker has been guaranteed, sponsored, recommended, or approved by a governmental entity.

Once a violation is shown, the Act contains a specific method of computing damages. The statute contains a formula for recessionary damages and compensatory damages. The investor takes the amount paid for the security and adds interest at the legal rate. From this sum, distributions from the security are subtracted along with the value of the security on the date of recession or the date of sale. Thus, if a security is purchased for $100 and sold one year later for $50, the damages would be $100 (amount paid) plus $10 (interest) minus $50 (value on date of sale) equals $60. The damage calculation is mathematical in nature. The court can do the math post-trial if the jury makes an error.  In addition to the statutory damages, the Act provides for attorneys’ fees to the successful investor.