I'm not particularly thrilled with FINRA's write-up of this case.  If FINRA meant to imply that selling a closed-end fund purchased via an IPO after six months is, somehow, patently unsuitable -- well, that doesn't work for me.  There could me many explanations for the sale, not the least of which are cutting losses, profit taking, customer's need for funds, etc.  Further, FINRA seems to suggest that the fact that a customer lost $350,000 is also indicative of unsuitability if the customer's objectives were "conservative to moderate."  Again, that's too slick for me. It suggests that it's never appropriate to lose money for a client who seeks conservative or moderate objectives.

What I suspect FINRA meant to say was that it was troubled by an account where the broker generated $100,000 in commissions on sales that resulted in $350,000 in customer losses. Not sure that I would concur with the regulator that such a scenario is a "suitability" issue.  There may be other violations inherent in those facts -- excessive commissions, mark-up/down concerns, etc.  Clearly, this monthly explanation needed a bit more fleshing out to make sense.

Okay, so let's see...

• FINRA had him dead to rights.
• He had one foot in the grave.
• He dug his own grave.
• This was the last nail in the coffin.
• He made a grave mistake.
• [Write your own]

The United States Court of Appeals for the DC Circuit imposed the sanctions following appeal of an SEC decision affirming a FINRA National Adjudicatory Council decision.

I commend the DC Circuit decision to your review because it states some of the most damning language that has yet to surface in a federal court's review of NASD/FINRA and SEC conduct.  Frankly, the language is startling in its pointed criticism.

Note this language in the DC Circuit Decision:

In his petition for review to this court, Siegel’s principal argument is that, because the SEC failed to properly assess the “cause” of the losses suffered by the Landrys and Downers, the agency’s decision to uphold NASD’s awards of restitution was an abuse of discretion. We agree. NASD General Principle No. 5, which the SEC purported to apply in this case, describes restitution as a “traditional remedy used to restore the status quo ante where a victim otherwise would unjustly suffer loss”; and it states that restitution may be ordered when a party “has suffered a quantifiable loss as a result of a respondent’s misconduct.” General Principle No. 5, FINRA Sanction Guidelines at 4 (“Principle 5”). The SEC completely failed to articulate any meaningful standards governing the level of causation required under Principle 5.

This case involves wealthy and sophisticated customers who were under no press of time to decide whether to invest; customers who invested specifically in furtherance of a desire to speculate; and a broker who did not profit from his wrongdoing and who has been fined and suspended for his violations. There is nothing in the SEC’s decision to indicate why, in these circumstances, awards of restitution are appropriate under Principle 5. Indeed, the SEC’s decision is incomprehensible insofar as it attempts to amplify any meaningful causal connection between Siegel’s putative bad acts and the Downers’ and Landrys’ losses. And the SEC has cited no precedent, and we have found none, supporting restitution in a case of this sort. The SEC’s judgment is fatally flawed for two reasons: First, the SEC’s judgment is not supported by reasoned decisionmaking. Second, the SEC cites to no controlling precedent that includes reasoned decisionmaking supporting restitution under Principle 5 in a case of this sort. We therefore vacate the restitution order.

We reject Siegel’s remaining challenges. Substantial evidence supports the SEC’s findings that Siegel violated NASD’s rules barring selling away and unsuitable recommendations. And the SEC did not abuse its discretion in imposing fines and consecutive six-month suspensions for Siegel’s separate violations of Rules 3040/2110 and Rules 2310/2110.

. . .

In failing to articulate a comprehensible principle governing the level of causation required by Principle 5, the SEC decision borders on whimsical or rests on notions of strict liability. In either event, the decision offers no reasonable construction of the causation requirement under Principle 5. This is far short of reasoned decisionmaking. As the Supreme Court has explained, the “evil of a decision” of this sort is that it “prevent[s] both consistent application of the law by subordinate agency personnel . . . and effective review of the law by the courts.” Allentown Mack, 522 U.S. at 375. The SEC’s decision in this case clearly fails for want of reasoned decisionmaking.

Principle 5 states, in relevant part (emphasis added):

Where appropriate to remediate misconduct, Adjudicators should order restitution and/or rescission. Restitution is a traditional remedy used to restore the status quo ante where a victim otherwise would unjustly suffer loss. Adjudicators may determine that restitution is an appropriate sanction where necessary to remediate misconduct. Adjudicators may order restitution when an identifiable person, member firm[,] or other party has suffered a quantifiable loss as a result of a respondent’s misconduct, particularly where a respondent has benefitted from the misconduct.

Adjudicators should calculate orders of restitution based on the actual amount of the loss sustained by a person . . . as demonstrated by the evidence. Orders of restitution may exceed the amount of the respondent’s ill-gotten gain. Restitution orders must include a description of the Adjudicator’s method of calculation.

See:

http://www.sec.gov/litigation/opinions/2010/34-62324.pdf (SEC Order Setting Aside Restitution, June 18, 2010)

http://www.sec.gov/litigation/opinions/2008/34-58737_appeal.pdf (DC Circuit Opinion, January 12, 2010)

Jarkas caused the execution of approximately 2,400 transactions in the customer’s account and received commissions of approximately $240,000. 

Wow!!! Is there some award that we could create to give the esteemed Mr. Jarkas?  Of course, what I'm trying to figure out is what exactly does it take these days to get yourself barred from the industry. Apparently, not $240,000 worth of commissions derived from some 2,400 allegedly unsuitable trades.