GET YOUR MONEY BACK!

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Re: GET YOUR MONEY BACK!

Postby admin » Thu Sep 17, 2009 2:32 pm

WHY YOUR FINANCIAL ADVISOR MAY BE RESPONSIBLE FOR CAUSING YOUR INVESTMENT LOSSES
from www.macgold.ca

Check to see if any of the things you feel your financial advisor did wrong is mentioned on this list. If it’s not listed (there are more to list) call us and let’s discuss it.

MacGold teaches you how to identify whether you have provable specific grounds for a successful investment loss recovery action against your financial advisor. Some of these specific grounds are:

1. the lack of suitability of your investments.
2. failure to ensure that an investment, originally suitable remained suitable.
3. your financial advisors failure to construct an investment portfolio that mirrors your investment objectives and risk tolerance levels.
4. failure to learn the essential facts about you.
5. inserting incorrect information into your account opening application form that is filled out when you open up an account with your brokerage house (This is known as the Know Your Client Form or the KYC Form). The KYC is the contract between you and your brokerage house.
6. failure to conduct periodical or more ideally, annual reviews of your KYC form.
7. failure to update your KYC Form with new information such as changes in your personal, social, family or business circumstances resulting in possible new investment objectives and risk tolerance levels. These include marriage, divorce, retirement, disability, additional children, supporting elderly parents etc.
8. over-concentration in single investments or in single industry sectors.
9. lack of diversification of your investments, over a number of different market sectors so as to limit your overall risk.
10. failure to monitor the performance of your portfolio and warn you of any possible dangers such as a potential market turndown, your investments about to tank and doing nothing to stop the slide, or letting you know of any changes both positive and negative in any of your securities i.e. giving you the bad news along with the good.
11. acting without your authority i.e. where your financial advisor has not been given any discretionary authority to make decisions on your behalf without first referring them to you for your approval.
12. failure to obtain annually a written renewal of your discretionary account.
13. failure to give effect to your instructions
14. failure to insure your investments against losses (Yes, you can insure your investments against losses ------ your financial advisor should know how. Investment insurance has been around for over 40 years and this option should have been offered to you to protect you against investment losses).
15. breach of trust.
16. breach of fiduciary duty.
17. breach of contract.
18. negligence.
19. negligent misrepresentation.
20. failure to manage your expectations.
21. failed in his/her duty of care to you.
22. failure to comply with statutory regulations, industry rules, and investment standards, as well the internal policies and procedures of your brokerage firm.
23. failure to consider and to act in your best interests.
24. failure to evaluate and assess your tolerance for risk in terms of affordability, reasonableness and ability to absorb and withstand declines in the value of your portfolio from risky investments.
25. failure to explain the risks and dangers of various investments recommended to you.
26. failure to act in good faith.
27. failure to exercise reasonable and proper care, skill and diligence as would be expected of those engaged in their profession.
28. failure to comply with their undertakings, or with their representations.
29. failure to provide conspicuous, full, and fair disclosure of all important facts.
30. recommending investments not commensurate with your financial needs (i.e. altering the accounts of seniors and other investors, requiring steady income, from dividend funds into riskier investments).
31. failure to explain to you the meaning of risk, which is “how much money are you prepared, or can afford to lose”
32. failure to ensure that you understood all the risks associated with any investment recommendation.
33. misrepresented the degree of risk involved in a recommended investment.
34. failure to exercise due diligence and thoroughness in making investment recommendations based on factors including your financial situation, investment knowledge, investment objectives and risk tolerance, as well as, having a reasonable and adequate basis, supported by appropriate research and investigation, for such recommendation.
35. relying solely on representations from issuers and promoters of investment products, and not doing any due diligence themselves.
36. failure to monitor product risk.
37. failure to understand the features and risks of the investment recommended to you i.e. a breach of the “Know Your Product” rule. (This is more common than you think!)
38. looking only at statistical factors of an investment without considering other factors such as liquidity, transparency, use of leverage etc.
39. describing you as a sophisticated investor in the KYC Form when this may not be in accordance with your investment experience and knowledge.
40. marking trades “unsolicited” when they were in fact “solicited” by your financial advisor (unsolicited means that you recommended the investment to your financial investor, and solicited means that your financial advisor recommended the investment to you).
41. putting your financial advisors’ own interests before yours by choosing investments with greater commissions, or by trading more frequently than necessary, solely for the purpose of generating commissions for themselves ( known as churning) .
42. failure to monitor the performance of your investment portfolio, by giving you both the good and the bad news about particular investments.
43. failure to give you a balanced disclosure by emphasizing all the positive factors about a recommended investment, and de-emphasizing the negative ones.
44. failure to ensure that the order you phoned in, was within the bounds of good business practice, i.e. it was suitable for, you taking into account your personal circumstances.
45. failure to get a risk disclosure document signed when trading options, and a strip bond disclosure document signed when buying strip bonds, for your portfolio.
46. failure to take into account your tax situation, when making investment recommendations, i.e. if lower taxes were one of your investment objectives, then your financial advisor should have ensured that maximum advantage was taken of the dividend tax credit.
47. failure to warn you of the dangers and features of a margin account.
48. failure to consider whether your degree of leverage in margining your account was appropriate, keeping in mind your financial circumstances and the state of the market.
49. engaged in manipulative, fraudulent, dishonest or unethical trading practices.
50. failure to caution you when you suggested an unsuitable investment
51. failure to undertake a thorough and detailed quantitative and qualitative analysis of the investment recommended ensuring its suitability.
52. failure to take into account your investment horizon.
53. effected trades in your account on the instructions of a third party without having first received a power of attorney from you in favour of such third party.
54. made an illegal representation to effect a trade.
55. used high pressure sales tactics in order to induce you to buy, sell or hold a security or other investment product (such tactics frequently feature an imparting of a sense of urgency in order not to miss out on an opportunity for profit i.e. buy now before its too late, veiled promises of significant and immediate returns, hints of insider information of upcoming deals or announcements from the company to be invested in.)
56. ( if applicable to you) taking advantage of your inability or incapacity to reasonably protect your interests because of some form of infirmity, ignorance, illiteracy, age or inability to understand the character, nature or language of any matter or inability to decide whether to buy, sell or hold a security or other investment product.
57. giving you a guarantee as to the future market price of a security, future payments of dividends or interest of a security, your ability to sell a security at a stated price in the future (other than in the case of a retractable or callable security) or the listing of a security on an exchange at a future date.
58. allowed you to deal in securities which were not qualified for sale in the province in which you reside (unless such securities fall within an exemption).
59. making a statement to you which your financial advisor reasonably knew or should have known was false or misleading with the express purpose of inducing you to buy, sell or hold a security or other investment product.
60. if your investment contained bonds, failure to constantly watch the credit rating of the bond issuer, the length of time until your bond matures, the bonds interest yield in relation to prevailing interest rates, and their yield to maturity.
61. failure to avoid all personal financial dealings and in particular borrowing money from you without permission from your financial advisors employer. This could be construed as a conflict of interest since if you still had the money you could have conceivably invested it profitably elsewhere.
62. replaced your existing investment with other investments. Replacement should only take place if it is based upon the belief that your interests would be better served by the proposed new investment. Your financial advisor must ensure that you are fully aware of all the financial implications and ramifications of such contemplated replacement.
63. leading you to believe that there was no risk or chance of you losing any money by purchasing a recommended investment.
64. telling you that a security will be listed on a stock exchange or that an application has been or will be made to list the security on a stock exchange – if this is not in fact true.
65. giving you an undertaking that he/she will at a later time, repurchase or refund any part of the purchase price of a security to you.
66. exceeding the trading limits laid down by your brokerage house for your investment account.
67. engaged in false advertising and misrepresentation. Your financial advisor must not use testimonials which include misleading statements about his/her other client’s investment experiences. Such testimonials must prominently disclose all the facts and circumstances as well as any compensation paid to the provider of the testimonial.
68. persuading you to buy stocks underwritten or specially promoted by your brokerage house, when they are not suitable for your portfolio.
69. switching and churning of mutual funds (very prevalent with DSC funds using the 10% annual redemption or when the penalty period expires.)
70. the failure of your financial advisor who took over your account from your previous financial advisor, to confirm the up-to-datedness of your previous KYC and /or to draw up a new KYC form reflecting your then current position.
71. failure to disclose all real and potential conflict of interests such as when your financial advisor or your brokerage house has a financial interest in a particular stock that is recommended to you.
72. failure to ensure that all orders executed on your behalf are within the bounds of good business practice.
73. failure to tell you what special features your bonds or preferred shares investment possesses i.e. whether you bonds are callable , extendable, retractable convertible etc. or whether your preferred shares are cumulative or not.
74. failure to inform you whether any rights have been declared on any of your investments and if so whether they should be exercised, whether there are any options or warrants about to expire or generally, any new corporate developments which may affect your investments.
75. failure to deliver, or to ensure that, a prospectus was delivered, when selling a mutual fund.
76. failure to inform you of your rights of withdrawal and rescission when buying mutual funds, for example: you have 48 hours after receiving a mutual fund prospectus to change your mind and ask for your money back. In essence this is a “cooling off period”. This is of importance to investors who were “talked into” buying mutual funds and want to get out quickly.
77. operating a “Ponzi” scheme
78. failure (where appropriate) to disclose whether your financial advisor would lose his/her commission if you sell an investment before the expiry of a certain period of time in circumstances where you wanted to sell the investment during such period and were talked out of it by your financial advisor, for those reasons.
79. engaging in fraudulent misrepresentation i.e., making a representation knowing it to be false or not caring whether it is true or false, and you act upon the truth of such representation to your financial disadvantage.
80. engage in concealment- your financial advisor must not conceal any information from you that is necessary to help you make an informed investment decision.
81. giving you an undertaking that the securities commission has approved the investment merits of certain securities.
82. failure to get the necessary licence or registration to transact certain types of investments in your account e.g. options and commodities trading.
83. issued false or misleading sales communications, advertisements with the sale of mutual funds to you.
84. represented that a mutual fund’s or an investment’s past performance is indicative of its future performance.
85. gave you unrealistic expectations of future individual investment returns.
86. allowed you to have unrealistic expectations of the returns, your investment portfolio as a whole would generate.
87. failure to make full disclosure of a personal interest in a recommended investment.
88. in selecting investment for your managed accounts your portfolio manager’s failure to get your written consent in circumstances where there may have been a conflict of interest between your brokerage house and the investment/s selected for your managed account. i.e. your portfolio manager invested in the securities offered for sale by your brokerage house, or the securities of an issuer, that is related or connected to your brokerage house.
89. your mutual fund advisor failed, at least annually in writing, to request you to notify them, if the contents of your KYC form previously provided to your mutual fund advisor, or your financial or personal circumstances, have materially changed.

Your mutual fund advisor in an advertisement, client or sales communication:
90. used unrepresentative statistics to suggest unwarranted or exaggerated conclusions.
91. failed to identify the material assumptions made in arriving at these conclusions
92. contained any opinion or forecast of future events, which is not clearly labelled as such.
93. in a client communication used an image, such as a photograph, sketch, logo or graph which conveyed a misleading or untrue impression.
94. was inconsistent or confusing with any other communication that you may previously have received.
95. omitted facts, which were necessary to keep the communication from being misleading.
96. portrayed past income, gain or growth of assets that was not justified.


97. you suffered early redemption penalties to exit unsuitable investments.
98. charged you interest charges for unnecessary margin or loans.
99. charged you excessive sales commissions.
100. charged you excessive fees.
101. charged you excessive and unnecessary currency conversions.
102. you suffered undue income tax liabilities as a result of churning or unsuitable investments.
103. your brokerage house unfairly attempted to reduce your claims by offsetting losses from unsuitable investments with gains from suitable investments.
104. your brokerage house, when you made a complaint failed to advise you of the availability of the OBSI dispute resolution service.
105. you were not advised of reduced sales commissions or discounts for large purchase/holdings.
106. unduly expensive funds were purchased without advising you of alternative equivalent, but lower MER funds.
107. your portfolio’s character and make-up was a significant departure from your historical, conservative investing pattern and/or risk tolerance.
108. made exaggerated or unsubstantiated claims about management skills, or techniques, characteristics of the fund or an investment security issued by such fund.

In a sales communication which made comparisons between funds, or between a fund and certain indicators such as the Consumer Price Index, stock , bond or other indexes guaranteed investments etc. the sales communications failed to:
109. include all fact which would materially alter the conclusions, a reader would draw from the comparisons.
110. present data from the same time period for each item being compared.
111. clearly, explain any factors necessary to make the comparison fair and not misleading.
112. made unwarranted or incompletely explained comparisons to other investment vehicles or indexes.
113. in the case of a benchmark used for comparison, used a benchmark that did not exist for all or part of the period under comparison.
114. acted as principal in effecting a trade when your financial advisor could have obtained a better price for you, as an agent.
115. recommended an investment of a speculative nature with limited liquidity or marketability, such as some limited partnerships, and did not disclose this fact to you, as well as the fact that it may be difficult to find a buyer, when you want to sell your investment.
116. failed to tell you that he/she have found themselves in a situation where there is an actual or potential conflict of interest situation (which might cause him/her to give you biased or tainted advice,) and failed to get your confirmation that you were fully informed of the conflict of interest, but are nevertheless prepared to continue dealing with your financial advisor as before.
117. failed to pre-determine whether your investment objectives would be compatible with the management style of the investment manager who was going to mange your portfolio.
118. failed to tell you that when you transferred shares or other securities into your RRSP, that you would have to pay a special capital gains tax on any increase in the value of such shares and securities at the time, they were transferred into your RRSP
119. failed to ensure that all your orders were executed at the best price available
120. taking instructions from one spouse in connection with the other spouses investment portfolio without having first obtained the direct instruction or a signed trading authorization of the other spouse.
121. failed to notify you that he/she may be engaging in transactions on a principal basis.
122. purchased a security not registered or listed on any recognized exchange without notifying you.
123. passing on insider information, a rumour or a tip to you about an event which he/she states will be profitable and on that basis persuading you to buy such security, to your detriment.
124. failed to tell you that he/she was using another financial advisor on your behalf, and that the other financial advisor was paying a referral fee and that this could result in a higher commission, payable by you, on the trade because of the referral arrangement.
125. failure to tell you that you may have paid a lower commission had your financial advisor not decided to use the services of the other financial advisor.
126. failure to tell you, that the price that the other financial advisor could get you, may be higher than the securities normal price i.e. the price obtained by the other financial advisor may not be competitive.
127. failure to disclose whether he/she was acting as principal or agent.
128. failure to tell you that you were not an accredited investor, when selling you an investment that could only be bought by an accredited investor ( an accredited investor has to earn at least $200,000 taxable income per year, in the previous two years).
129. failure to tell you that the trailer fee charged in a mutual fund investment, was not in respect of a management fee, but was a continuing commission.
130. failure to tell you the hidden costs of short selling i.e. any interest or dividend earned by the security while it was borrowed, had to be paid by you.
131. failed to tell you that if you sell your Canada Savings Bonds at any time during a month, you do not receive the interest for the remaining part of that month. The worst case is selling them on the last day of a month, because then you do not get any interest for the whole of that month.
132. failure to tell you that he/she was using the cash content of your investment portfolio, to trade for himself/herself, and you suffered losses as a result thereof.
133. failure to establish whether a day trading account is appropriate for you, prior to the account being opened.
134. failure to warn you of the risks of day trading.
135. by words and/or conduct, he/she deceived you as to the nature of any transaction or as to the price or value of a security.
136. Prevented, inhibited or intimidated you from doing what you have a right to do, including raising complaints, or filing a civil court action (while you still had time).
137. failure to tell you that he/she was not allowed to solicit a discretionary account from you.
138. failed to notify you of the specific risks of investing in: options, commodities, forex, leveraged ETFs, wraps, principal protected notes, strip bonds, income trusts, hedge funds, inverse funds and segregated funds.
139. persuading you to enter into a private deal and getting you to accept his/her guarantee, that he/she will personally reimburse you for any losses, caused by his/her mistakes or misconduct, or getting you to give an undertaking that you will not file a complaint with your brokerage house against your financial advisor. This could give rise to the defence of ratification against you, if you later decide to sue for the recovery of your investment losses.
140. failed to disclose market risk, currency risk and volatility (high standard deviations and betas are indicators of excessive risk).
141. failed to tell you that leveraged ETF’s should only be invested in by experienced investors who (A) want to use the funds on a short term basis, (B) understand the risks associated with leverage, (C) understand the consequences of seeking daily leveraged investment results, (D) understand the risks of selling short, (E) intend to actively monitor and manage their investment on a daily basis, (F) are aware that the prices of leveraged ETFs fluctuate much more widely than the prices of regular ETFs, (G) are aware that the MERs are much higher than regular ETFs (they could be almost 7 times as much.)
142. failed to return your numerous telephone messages, when you wanted to give instructions to buy or sell certain securities, and by the time he/she called back it was too late. The securities you wanted sold, had dropped in value, and/or the securities you wanted bought, had gone up in value.
143. failed to tell you that wrap accounts can cost you an extra level of commissions or service fees, since you are now paying for an extra level of management.

The following indiscretions by your financial advisor may be difficult to prove, but nevertheless are wrongful acts. They may have contributed to your investment losses.
144. created or attempted to create a false or misleading appearance of active public trading in a security.
145. entering or attempting to enter into any scheme or arrangement to sell and repurchase a security in an effort to manipulate the market.
146. causing the last sale or last bid or offer for the day in a security, to be higher or lower than warranted by the prevailing circumstances, with the intent to manipulate closing price quotations.
147. making a practice directly or indirectly, of taking the side of the market, opposite to the side taken by you.
148. scalping: undisclosed selling of a security and simultaneously recommending that you buy the security.
149. bucketing: confirming a transaction where no trade has been executed.
150. arranging for a personal order or for the order of another member of your brokerage house, to rank in front of your order for the same security, at the same time, at the same price.
151. wash trade: making a transaction in which there is really no real change of ownership, but creating a false impression of trading activity.
152. withholding: buying Initial Public Offerings securities and only offering them to you when the security’s price had risen.
153. front-running: trading ahead of you ( and pushing up the security’s price) when he/she knew that you were going to place a big buy order for the security.
154. bunch trading: where a money manager buys a large block of shares and allocates different prices for the same investment among different clients, and you pay more than you should.
155. secret profits: if your financial advisor puts themselves in a position where their self interest and their duty to you conflict, they could become liable to you to account for any secret profits made, regardless of whether you suffered any loss or not.
156. delaying the posting of trades i.e. your financial advisor buys securities in advance of an expected news release that he/she feels will positively affect the company’s share price, but does not document the trade till later. If, when the announcement is made, the stock’s price goes up, he/she allocates such trades to those discretionary accounts that he/she manages, which generate the most income and business referrals. (his/her most favoured clients). However if the announcement has a negative effect on the stock and its price goes down, he/she allocates the “losing” trades to his smaller discretionary clients, who generate less income and fewer business referrals. (his/her less favoured clients).
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Re: GET YOUR MONEY BACK!

Postby admin » Sat Aug 15, 2009 12:02 pm

Morally reprehensible!

Salesman.

Two words that should jump out at you from the previous story of the 91 year old who got his money back from Barclays.

U.K. Pensioner wins huge Barclays payout
Roger Williams, Mr Price's local Liberal MP, says: 'I'd like to congratulate Money Mail for
achieving such a great result for my constituent. I'm appalled that Barclays' salesmen are
targeting vulnerable people in this way and I will be writing to them to determine what their
policy is, as it obviously needs to change.'
Robert Reid, from financial adviser Syndaxi Financial Planning, says: 'Barclays appears
reluctant to settle any of these cases at an early stage which is putting savers, particularly the
elderly under unnecessary additional stress. This is morally reprehensible.'

Every investment salesperson in Canada (at least until July 2009) were licensed, hired, trained and paid as "salesperson", and this misrepresentation of the public by the financial "advice" industry is nearly a free ticket to getting your money back. (would you win a suit against someone who called themselves a doctor, but who did not hold a license to practice medicine?)

But.......there is a but. The morally reprehensible manner with which strong financial firms "beat" their victims nearly to death legally is the only holdup here in Canada. They victimize their prey twice, once when they financially abuse them, and a second time while they torture them legally when they demand their money back.

We deserve better and some of these guys deserve a jail term.
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Re: GET YOUR MONEY BACK!

Postby admin » Sat Aug 15, 2009 11:55 am

priceMM_203x150.jpg
priceMM_203x150.jpg (20.18 KiB) Viewed 30453 times


http://www.thisismoney.co.uk/investing/ ... topstories

(Advocate says.....I cant wait for a Canadian abused investor to stand up like this 91 year old and demand "honest services". It will change our country)
Home Investing
Pensioner wins huge Barclays payout
James Salmon, Money Mail
22 July 2009, 10:29am

A man aged 91 has won almost £200,000 from Barclays after the bank admitted advising him to gamble his life savings on the stock market.

Isaac Price had held all of his money in savings accounts until he was visited in his care home in Llanrindod Wells, Wales, by a Barclays salesman in November 2007.
The decision to pay up represents a humiliating U-turn for the bank, which rejected Mr Price's complaint only months previously.

And it marks another stunning victory for Money Mail's campaign against the High Street giant which has sold adventurous funds to potentially thousands of elderly investors.

Mr Price was 89 when the Barclays salesman visited him. He was looking to boost his income to help pay for his care home fees, but did not want to put his capital at risk.

His nephew, Walter Rogers - like Mr Price, a retired farmer - was present at the meeting. Neither had any investment experience, but, having banked with Barclays for more than 70 years, Mr Price assumed he could trust the bank's advice.

The salesman advised him to put half of his money into Aviva Global Cautious Income and the remainder into Aviva Global Balanced Income.

The latter fund had been reclassified four months previously, in July 2007, by Barclays as 'adventurous' - or high risk - but it failed to tell investors.

This advice proved disastrous. By November 28, 2008, Mr Price's savings were worth just £125,000 — a drop of £75,000 in just a year — although they recovered to £140,215 by 12 June.

This so-called balanced fund was almost two-thirds invested in shares, leaving Mr Price's life savings vulnerable to stock market falls.

Even the so-called 'cautious' fund was heavily invested in the stock market, and is branded 'aggressive balanced' by investment analyst Morningstar.

Despite Mr Price's age, lack of investment experience and the fact that he'd clearly been misled about risk, Barclays rejected his initial complaint.

A letter that was signed by a senior customer relations officer and dated February 25, stated: 'Having considered the documentation that was completed at the time of the sale, I'm satisfied that these investments were wholly suitable in the first instance. You were made aware of the risks involved by investing, and the investment in the Global Balanced and Global Cautious funds was appropriate.'

But when Money Mail forwarded Mr Price's complaint to Barclays as part of a dossier sent to chief executive John Varley, the bank made an astonishing volte-face.

Mr Price has accepted the bank's offer of £193,865, which includes £53,650 to cover his losses and lost interest, but has deducted the £15,000 income already paid.

He says: 'I've banked with them all my life and my father was with Barclays before me. It's a big hassle at my time of life to switch banks, but I'm not sure I can stay with them after what they've done. This is money I have saved over years of hard graft and I thought I was in good hands when the adviser visited me. I am so grateful to Money Mail for your help.'
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Re: letter templates, make yourself heard

Postby admin » Mon Aug 03, 2009 10:18 am

Part of the reason for the letter templates, is to assist those who are abused to "think outside the box". They may be feeling lost and vulnerable, and it is my experience that if you go directly to the "industry sponsored" avenues of recourse, you will be abused once again.

Industry sponsored groups are hired, paid and loyal to the investment industry. I do not feel that they are objective, or that you will receive an honest assessment of your case. They are "referees" who are bought so to speak.

This is one of the failures of the financial industry, and of the government, to have no independent agents to oversee fairness and honesty in financials. The USA is better prepared and more aware of this, and taking steps. Canada is still happy with the status quo, and until you make some noise, we learn nothing, we change nothing.

Best of luck and let me know if I can help you.
advocate
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Re: letter templates, make yourself heard

Postby admin » Mon Aug 03, 2009 10:14 am

Letter outline to send in attempt to force a refund of money lost to a predatory and misleading financial relationship:

change this as you see fit.

Date____________

To: Various destinations suggested below**

From:_____________

Dear Sir,

I write in regards to money lost in my investment account, due to what I believe to be misleading and misrepresentative marketing practices. I would like your help in obtaining a full refund of my money lost due to these misrepresented practices. I ask you to immediately prevent such practices, which I believe to be illegal under our Canadian criminal code and also under the misleading marketing terms of our Competition Act of Canada, and to cause those responsible to be held responsible and accountable for such practices.

I specifically state that after learning that my investment person was legally licensed, registered, and paid in the capacity of a "salesperson" which is a legally defined license and registration category, I now realize that this information was not conveyed to me accurately. It was in fact witheld, concealed or misrepresented, and I was led to believethat my investment person was in fact an "advisor" (another separate and totally distinct license that my person did NOT hold) and that they were acting in my interests. I refer to their marketing materials, advertising, and the marketing and advertising promises of the investment firm that they sold for.
I was not made aware that I was in a relationship with a "salesperson", but rather led to believe it was with that of a trusted professional. This is clearly not the case.
I ask your immediate help to stop this misrepresentation to the public, and to compensate myself and others for the losses and damages suffered as a result. It is possible that the investment salesperson, the firm, their self regulatory bodies, as well as the provincial securities commissions have all participated in this misrepresentation. All may thus be liable, up to an including our provincial government which oversees, regulates and should protect us from such industry behavior.

I understand the many options for remedy might include industry complaint, criminal complaint, civil action, competition act complaint and possible class action. I ask you to work with me in those areas which you are empowered to do so, in obtaining my full refund of moneys lost due to misrepresentation, and I ask that you act to protect the public interest from these types of misrepresentation in future.

I look forward to your help and response and I thank you for your time.

Best Regards.


____________

PS. Enclosed are three criminal code sections which may apply to the type of misrepresentations or deceits involved:


Fraudulent concealment
341. Every one who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (applies to the financial scheme to take advantage of clients interests as well as the resulting legal manipulations)
False Pretences
(1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.
Negligent Misrepresentation
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letter templates, make yourself heard

Postby admin » Mon Aug 03, 2009 9:56 am

This template is intended to be sent to a provincial MLA, but could also go to your federal politician. The feds have managed to dodge involvement, when push comes to shove, by claiming that finances are a "provincial" responsibility, and they may be correct, but I see no reason why they should so easily avoid the issue. Those that are in power should act like it, or perhaps they should not be in power. Send it where and to whom you think it will find an audience. Media, whomever.

Also of note is that this letter may or may not reflect your exact violation, and your exact concern, but I ask you to consider this:
If each and every one of us takes our individual concerns, or our individual case to authorities in this manner, it is likely that none of us will find an ear. However, by concentrating on the largest, most abusive cases (of which these two qualify) and if we combine efforts to have them heard, we may get an action that will benefit us all. (I have no personal connection with either of the two case studies presented, they are just the best examples of what I am opposed to, and the best documented I have seen in thirty years. United we stand, divided we fall. Lets get united behind something and get it done.

Date _____________


To: Your provincial MLA

Re: Financial abuse, misrepresentation fraud, negligence, breach of trust

I am writing to request a public inquiry under the Provincial Inquiries Act. Specifically, an inquiry into two well known and well documented abuses of the public interest and abuses of the economic health of every citizen.

Case Study #1 refers to the nearly twenty times that provincial laws were knowingly violated in order to assist financial firms to sell substandard and toxic investments, sometimes referred to as “asset backed commercial paper”.

Case Study #2 refers to the permitted violations of the “commission rebating” laws of the provincial Securities Act, which allowed an investment firm the ability to profit to the extent of $800 million at the expense of each and every client affected.
Both case studies are discussed at www.investoradvocates.ca and further information can be obtained there.

Thousands of other examples exists, of our financial firms and our regulators knowingly co-operating to violate our provincial laws. This co-operation was done in each case without public ability to have a voice, further without public notice in any way. Billions upon billions of dollars have thus been “harvested” from our economy in this manner, unbeknownst to the average citizen. We are now able to demand that this matter be looked into.

Criminal charges such as Fraud, Breach of Trust, Negligence, Negligent Misrepresentation as well as a violation of the principles of “honest services”, are but a few of the possible discoveries to be expected to come from such an inquiry.

Beyond the two case studies above, beyond the thousands of legal tricks played upon the public using legal exemptions, are the ordinary victims, their abuse, their stories, their financial health and the health of our economy.

You are in a position of authority in this matter, and we are asking you to exercise this authority now to make this matter come forward into public view. We ask you to immediately call for a public inquiry into well documented crimes against the public interest.


Regards

copy to
MLA
MP
MPP
Letter to Editor
Media
etc
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Re: GET YOUR MONEY BACK!

Postby admin » Mon Jul 20, 2009 4:55 pm

After some discussion with a financially abused client who has started to figure out how he was misled and is off to see a lawyer, I decided to search the recent CSA (Canadian Securities Administrators) most recent changes to registration categories.

What I found was a shocking move by people who are supposed to protect the public, people who have failed badly in this effort, and let the industry "own" their ethics and their opinions, changing the securities rules in order to protect the industry further.

Pasted below were some comments and thoughts (disjointed yes, sorry) as I skimmed their recent amendments and found what I was afraid of, namely a change that removes the word "saleperson" from securities categories and replaces it with something that is less difficult to show that the public is being misled and misinformed. No change to the qualifications, nor the job description, just a word to protect the industry legally. Sad.

For M & C, copied to http://www.investorvoice.ca

I checked into the recent announcement by the CSA on changes to registration and found what I feel to be devious alterations to protect and further misrepresentation of the public, please take a look at some of the changes and shoot me a note

The first several apply to the codes of conduct violated for your case Mike, and the final one of changing the word "salesperson" is indicative that they have been misleading you and another several hundred thousand others. read on

tricks of the trade lesson 900

If you find that you have done wrong for the investing public........change the rules to make it look legal

see the new rules and changes by the CSA (Canadian Securities Regulators) and spot the legal tricks they have applied to cover misrepresentations, and misleading of the public. They apply to your case, and to your investments.

http://www.albertasecurities.com/securi ... ly_8_CM%20[+%20attachments%201%20-%208].pdf

Conflicts of Interest

Firms must identify and respond to existing and potential conflicts of interest by avoiding, controlling or disclosing them. (Larry says, "your sales firm did not disclose to you the conflict that they had in encouraging you to buy DSC funds, and earn them a higher commission........")



Relationship Disclosure

An outcome-based provision in the Rule requires a registered firm to provide clients, other than permitted clients, with all information that a reasonable investor would consider important about their relationship with the firm. (Larry comments "your firm did not disclose to you all the information that a reasonable investor would consider important..........such as the "salesman" license that your "advisor" posessed")



Know your Client (KYC) and Suitability

The obligations to "know your client" and to determine whether an investment is suitable are fundamental to investor protection. (Larry comments "Your salesman failed to comply with the "suitability" requirements of his industry (as did the investment firm) by selling you mutual funds at the highest possible commission when an identical, but lower cost to you option for the same fund was available..."



General Principles

Dealers and advisers must deal fairly, honestly and in good faith with their clients. (larry comments.........they took advantage of you instead of helping you.......they helped themselves in all manners of the process.......DSC......leverage, etc)



Integrity

Registered individuals and firms should conduct themselves with integrity and in an honest manner. (larry comments ....."ditto")



On page 84 (out of 109) I see part of the motherlode that I am looking for........."a change from the existing category of "salesperson" as an official license and registration category, to a new title called "Advising Representative". Thus with the stroke of a pen, the CSA, which is supposed to protect the public, has tried to indemnify all licensed salespersons who have for years now been misrepresenting themselves as "advisors". They have succeeded in tricking us all into accepting a guy with a 90 day securities course and a license to sell, tricking the public into believing that this person (who is paid by sales commissions) is going to be a trusted advisor.

http://www.albertasecurities.com/securi ... ly_8_CM%20[+%20attachments%201%20-%208].pdf

Alberta
Section 13.5(2)(b) of National Instrument 31-103 Registration Requirements and Exemptions



I would like to do some further research into this section when I have more time (Larry)



from pages 109/110 the following changes designed to protect the insdustry and further enhance the misrepresentation of the public:

14. Section 71.1 is amended

(a) by repealing clause (1); #3240830.5 9

(b) in clause (2) by striking out "salesman" and substituting "representative";

(c) by repealing clauses (3) to (8);

(d) in clause (9) by

(i) striking out "(1)(d) and (h), and", and

(ii) striking out "salesman" wherever it occurs and substituting "representative"; and


(larry.........this is the most flagrant example of self protection while misleading the public that I have put onto this site so far.........if this does not display an arrogance and a predatory treatment towards the investing public by this group of securities commission people............they are proving that they are not in any way qualified to call themselves protective of the public. They are bought and paid for by the industry.)
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Re: GET YOUR MONEY BACK!

Postby admin » Sat Jul 18, 2009 5:51 pm

Sorry Larry, Ive discovered the literature Im after on your site. I am also researching an article on fiduciary duty in court called http://www.classaction.ca/pdf/publicati ... Common.pdf

I dont know if it will help me understand much but have you seen this document, what do you extract from it?

further discussion re statement of claim against an investment person for negligent misrepresentation (basically lying to the public by salesmen and saleswomen who mislead the public into belief and trust that they are professional advisors)
http://www.classaction.ca/pdf/publicati ... Common.pdf
In addition to this above document:

I have a fair amount of info on fiduciary duty, and duty of care. I also have some of the industry training manuals used to help us get our license's, that deal with the matter. Basically they go like this. Everything they tell us (employees of the industry) is that we have a duty to care for our clients, and they describe fiduciary duty as it applies to the relationship. But when push comes to shove, they go into court and sing an entirely different tune, which is pretty much a lie. I think a good lawyer can use this two faced approach to easily show that they are acting in bad faith.

(see Patricial cosgrove vs RBC case on www.investorvoice.ca under "cases". RBC told a 92 year old lady that they did not owe here a fiduciary duty since she did not sign away "deiscretionary authority" over her account to RBC. That argument would mean that 90% of RBC clients are NOT owed a fiduciary duty. That would also negate hundreds of millions of dollars of industry advertising which basically says, "trust us, we are your expert".

The stuff on negligent misrepresentation (page one of the PDF above) has a good deal of useful info. You have the five elements that need to be met to have a claim for misrepresentation as per The Queen vs Cognos. You also have the five or so elements that can be used by many courts to determine if a fiduciary relationship exists. Did I read somewhere that the regulators claimed that you were a sophisticated enough investor to not be vulnerable or some such argument. Basically that means they are claiming that you were too smart and thus it would be fine and well to mislead you???

The comments about rule 10b-5 about manipulative and deceptive devices (page 3 of the PDF above) certainly include three examples that have been applied to you to gain your trust and more of your money for commission purposes, not for investment purposes. You have a perfect argument to demonstrate that at NO TIME did the employee or his firm bother to tell you that you were dealing with a person who is only licensed as a "salesperson".. This is a clear and material "ommission" of a material fact. Again, the analogy would be for to "forget" to tell my passengers that I were not licensed as a pilot. Convenient for me, but probably a fairly material omission for them.

The web site of this firm claims another two faced approach. to the clients they make public representation that they are there to work in your interests...........to the sales recruitment side of their site they clearly make public representation of a sales capacity. Which one is it? Is it a sales role, paid in a sales capacity? or is it investment advice, centered not on sales but on what is best for the client.

The industry is all powerful and has been getting away with both sides of this argument for a couple of decades now. It is time for a good lawyer to point this out, while they calmly ask for all of your money back.

Section138.3 (1) on page 12, suggests that securities commission rules forbid the release of a document which contains a misrepresentation.............and this appears to apply to allowing salespersons to advertise and promote themselves as something they are not licensed as.

Securites Act in each province will provide you with the license requirements to call oneself an "advisor". Another item that the industry has been getting away with by default, but perhaps needs to be help accountable when this deceit causes damage to the public.

Page 13 about section 138.3 (4) discuses a right of action for failure to disclose a material fact...........which is apparent in your case (I assume your guy never informed you that he was only licensed as a "salesperson"?)
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Re: GET YOUR MONEY BACK!

Postby admin » Thu Jul 16, 2009 10:17 am

Below is a rough outline of a something that could be turned into a statement of claim by a lawyer. It was written for a specific case where I felt the clients were knowingly misled and misrepresented. The same might apply to tens of thousands of investors in Canada, due to our self protective, self enriching, self regulatory financial system in Canada.


This claim is for damages suffered as a result of being financially taken advantage of by someone purporting to be a trusted professional investment advisor.  Specifically this company and it's salesperson failed to accurately represent their relationship to ourselves as one of commission salesperson, and instead repeatedly and constantly led us to believe they were acting in our best interests in financial matters.

Specific misrepresentation involved misinforming the plaintiff as to the qualifications and the license and registration of the defendant, namely that of "salesperson", under the provincial securities act, such representation is a violation of the securities act, the self regulatory rules of the MFDA, and the criminal provisions of the Competition Act of Canada on misrepresentation.  

Specific failures to act in the best interests of the plaintiff, and provide investment recommendations that meet the test of "suitability" for the plaintiffs is the example of both encouraging the plaintiffs to leverage their investments to the maximum, which has the effect of maximizing the compensation to the defendant, while not being in the best interests, nor being a matter of "best practices" by an investment professional.  Further, that each and every investment thus purchased by the defendant was purchased using the highest choice of compensation to the defendant, the DSC (deferred sales charge) which places a long term commission penalty for redemption on the plaintiff.  This unsuitable choice of compensation to the defendant is further evidence of a taking advantage of the trust and the vulnerability of the plaintiff, while maximizing the revenue to the defendant.

From the web site advertising of the defendant: 
OUR COMPANY
XXXXXXXXX is a young and dynamically growing Mutual Fund Dealership, committed to providing its Sales Representatives a broad range of products services, and support needed to expand an advisor's practice.
At no time did the defendant inform the plaintiff that its employee was a sales representative.  Instead all efforts were made to misrepresent this relationship as one of trust and professional advice for the benefit of the plaintiff.
From the license and registration section of a provincial securities commission:

Broker name removed -Mutual Fund Dealer, Limited Market Dealer, & Scholarship Plan Dealer ==> SalespersonAt no time did the defendant make efforts to inform the plaintiffs of the license category of the defendant, and instead took extensive efforts to mislead and misinform the plaintiffs in order to maximize the trust of the plaintiffs and to misuse this trust to maximize the commission revenue available to the defendants.

From the defendant web site:

As a XXXX representative, you are essential in helping clients find the right solution to their growing financial needs-today and in the future.

This "right solution" was not provided to the plaintiffs, under the promise and the suitability requirement of the industry, when highest cost and highest compensation investment products were chosen in each and every instance.  And in each instance an identical version of the same mutual fund investment was available at lower cost and greater benefit to the plaintiffs.

Also from the defendant web site:
XXXXXX is a dynamic financial services firm shaping the financial future of Canadians. As part of the XXXXX team, you can help offer Canadians an array of financial solutions to meet their needs including education savings plans, life and disability insurance, mutual funds, stocks, bonds and other investments."   At no time did the defendants properly inform the defendants that they were acting as commission sales persons, and instead made every effort to mislead the plaintiffs as evidenced by the foregoing.

From the defendants web site:

XXXXX offers:
Opportunities to grow and manage your own future
On-going training and development
State-of-the-art technology
Back-office service and support
Superior integrated compensation grid
Sales incentives and exotic trips
The above "sales incentives and exotic trips" is indicative of the culture of commission driven sales rewards of the defendant, and further illustrates a failure to inform and properly represent this to the trusting clients of the firm, namely the plaintiffs.  The plaintiff intend to call upon documents from the defendant to illustrate the compensation grid, the training and to show a clear bent towards commission sales and away from best practices in financial advice.

The plaintiffs claim damages in the amount of $$$$$$, for financial loss suffered by financial abuse by someone claiming to be a trusted professional financial advisor, pus legal costs incurred by the plaintiff to effect this claim.  In addition the plaintiffs claim $1,000,000.00 for the pain and suffering, mental stresses of being victimized financially by someone they trusted, and then having to engage in costly, timely and stressful litigation with the defendant in order to be fairly compensated by the defendant.

(if you wanted to make this into more of a newsworthy case (your only help at this point is the media and the law, the investment industry will be no help to you at all), you could also name the provincial securities commission and the MFDA for knowingly allowing this misrepresentation to go on with their knowledge (negligence?).  their web sites also say how their mandate is to protect the public........this depends on how creative, expensive and aggressive your lawyer would like to be.

I myself would find a small town lawyer who understands right and wrong better than he/she understands billable hours, in other words, one who will not take advantage of your situation like the last guy did.  Talk with a few of them and get a feel for how they understand your case, learn something new from each one, and use it to move forward with one who will give you some estimates and assurances of cost.  If they bullshit their way through the costs discussion, you might want to avoid them.  tell them you are claiming financial abuse, and you want to be very clear up front, that you want a legal rep who understands and respects this.

For filing a statement of claim and getting a ways into this, I would estimate a legal cost to you of $25,000 (and it should be less from my small town experience) and another $25,000 to take it to court.  that is simply a guesstimate, and may be off by thousands and thousands, but I would hope it not be off by tens and tens of thousands.  You have to decide whether your case of wrongdoing is strong enough to "bet" this much money in an effort to get it back. I personally think it is a better investment than your last one, but I am very biased. (that is disclosure)  Your mutual fund dealer is likely to go broke over this, and you might have difficulty collecting.  You should also name the owner and the salesperson personally so that you can collect from them.  (The company looks very low class and low capital from the site)

Efforts like this (in addition to a formal complaint of misrepresentation to the Competition Bureau and perhaps to the police for fraud (if you want to be rejected one more time), will be ground breaking steps which a client in Canada has never used in my experience.  Or if they have, they have received settlement out of court and signed a confidentiality agreement not to disclose the settlement.  You will be testing the morality and the ethics of the investment industry in a public venue, and asking if they can be held accountable and responsible for everything they do.  So far, your experience with MFDA and OBSI probably tells you that they can now get away with just about anything within their own cozy system.  Your job, if you take it on is to change that and make a positive change for those who follow your example.

I will be happy to be of any help I can be with this, including finding you the investment industry experts who can and will speak to the abusive, commission driven tactics that were used on you.  They will likely not charge you to speak of what they know and believe, nor will I.

In a fair world, your case is strong and you will win it.  Unfortunately, this in not a fair world, and I cant speak to the knowledge or the integrity of the judicial system.  They are pretty damn close to the financial guys.  Last advice is to ask in your statement of claim to have this trial heard in from of a jury, so that you have everyday folks making the call instead of one lone single judge.

all of the above includes spelling errors, grammar, and missing quotation marks.  i hope you can digest it, clean it up and add to it, and run it past at least three lawyers for thoughts.  then i hope to hear from you
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Re: GET YOUR MONEY BACK!

Postby admin » Wed Jun 10, 2009 8:32 am

As I look at avenues for clients to recover money lost to predators, posing as professionals. To salesmen posing as supporters. I see the following.

If you work "within" the system, you will be turning your fate over to what I see as a very incestuous and well designed system that will not treat you fairly. You will be baring your soul and sharing your case to people who are in my opinion bought and paid for by the investment industry. Look at the record, look at the research. Check out www.investorvoice.ca .

Your salesman, his manger, his regional manager, his national manager etc., etc are not motivated to help you either get your money back, or admit wrongdoing within their company. Neither is their compliance officer. The compliance officer is hired and paid to protect the company first and foremost, and secondly the client.
The self regulators are nothing but a loose knit association of industry members, who also have no motivation to truly reveal rot from within, so they will be referees on the take, so to speak.
The provincial regulator, (the securities commissions) are government agencies in the worst possible way. They have delegated far too much work down to self regulators and they will go to any lengths to support this action, rightly or wrongly. They are the greatest dissapointment in the bunch, since they, at least, should have some motivation to protect the public. Unfortunately protecting themselves is a far stronger motivation, and you will be sadly disappointed if you rely on them for help.
Ombudsmen, industry mediation services, etc., etc are an extension of the "referee on the take" as they are all industry paid and sponsored.
There is very little hope of finding independent thought or judgement within any of these organizations. A customer of the financial services industry is entirely at the mercy of this "system". Even the police defer their involvement to this financial system of self regulation. The financial industry has succeeded in telling us that they are capable of policing themselves and they have put in place a support system to get away with it. To get away with fraud, forgery, negligence, misrepresentation, nearly anything that is typically criminal. They get to deal with it "in house", meaning they get away with it. Until this system is altered to something fair and honest, we continue our economic decline. It is like having termites eating away at the very foundation of our economy. No matter what economic condition we experience, good or bad, those feeding in the dark, on the very foundation will always win and we will always lose.
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Re: GET YOUR MONEY BACK!

Postby admin » Mon May 25, 2009 12:00 pm

various destinations** for the previously posted letter intended to get ones money back

Take it personally to your local member of parliament, your provincially elected member of the legislature, and your opposition members. Speak to their staff about the issues, the problems, the abuse.

Local Police Detachment. They are being coached by the financial industry to allow the industry to "police itself". Do not allow criminal violations to be swept under the carpet. Speak to your local police commission, attend a police commission board meeting and have your voice heard.

RCMP is a broken organization, but it needs to be in the loop none-the-less.

Provincial Securities Commission

Investment Firm Involved

Competition Bureau of Canada (if they receive 6 letters of similar complaint they are obligated to report back to you the status of the investigation, otherwise they blow a person off claiming confidentiality)

Local press

national press

local talk radio (and call them and talk to them. believe me, they understand the problem, they just have never met a Canadian who will stand and complain very loudly)

three reputable class action law firms (imagine them getting thousands of such letters.......)

myself (investoradvocate@shaw.ca)

public internet forums/bloggs/floggs/start your own, they are free after all
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Re: GET YOUR MONEY BACK!

Postby admin » Mon May 25, 2009 11:55 am

letter outline to send in attempt to force a refund of money lost to a predatory and misleading financial relationship:

change this as you see fit.

Date____________

To: Various destinations suggested below**

From:_____________

Dear Sir,

I write in regards to money lost in my investment account, due to what I believe to be misleading and misrepresentative marketing practices. I would like your help in obtaining a full refund of my money lost due to these misrepresented practices. I ask you to immediately prevent such practices, which I believe to be illegal under our Canadian criminal code and also under the misleading marketing terms of our Competition Act of Canada, and to cause those responsible to be held responsible and accountable for such practices.

I specifically state that after learning that my investment person was legally licensed, registered, and paid in the capacity of a "salesperson" which is a legally defined license and registration category, I now realize that this information was not conveyed to me accurately. It was in fact witheld, concealed or misrepresented, and I was led to believethat my investment person was in fact an "advisor" (another separate and totally distinct license that my person did NOT hold) and that they were acting in my interests. I refer to their marketing materials, advertising, and the marketing and advertising promises of the investment firm that they sold for.
I was not made aware that I was in a relationship with a "salesperson", but rather led to believe it was with that of a trusted professional. This is clearly not the case.
I ask your immediate help to stop this misrepresentation to the public, and to compensate myself and others for the losses and damages suffered as a result. It is possible that the investment salesperson, the firm, their self regulatory bodies, as well as the provincial securities commissions have all participated in this misrepresentation. All may thus be liable, up to an including our provincial government which oversees, regulates and should protect us from such industry behavior.

I understand the many options for remedy might include industry complaint, criminal complaint, civil action, competition act complaint and possible class action. I ask you to work with me in those areas which you are empowered to do so, in obtaining my full refund of moneys lost due to misrepresentation, and I ask that you act to protect the public interest from these types of misrepresentation in future.

I look forward to your help and response and I thank you for your time.

Best Regards.


____________

PS. Enclosed are three criminal code sections which may apply to the type of misrepresentations or deceits involved:


Fraudulent concealment
341. Every one who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (applies to the financial scheme to take advantage of clients interests as well as the resulting legal manipulations)
False Pretences
(1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.
Negligent Misrepresentation
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Re: GET YOUR MONEY BACK!

Postby admin » Mon May 25, 2009 11:39 am

it may be nothing,l but I have started to notice a change in the advertising and presentation of the investment industry:

1. I no longer see the RBC YOUR FIRST!! ads that were so prevalent a few years back. I believe it to be due to the lawsuit potential of an advertising promise saying the client comes first, without adequate fiduciary backup to this promise by investment salespeople.

2. The radio commentators who come on at news time to tells us what the market it doing, are strangely no longer referring to themselves as advisors, but as financial consultants, financial planners etc., etc. Another legal issue I believe.

Go back a few years, and look at all correspondence, advertising, promises and business cards for your investment salesperson. Keep these, and compare the promises or impressions they conveyed with the license category of your salesperson (see securities commission web such as www.osc.gov.on.ca and look up their license there) I think you will find them misrepresenting their license which I feel makes them civilly liable for the misrepresentaion.

Fight it, and get your money back.

on following posts I will put up sample letter outlines to get you started down the road of getting your funds returned to you from a misleading and predatory financial relationship.
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Re: GET YOUR MONEY BACK!

Postby admin » Mon May 25, 2009 11:12 am

Lawsuits against Fisher Investments may lead to other
adviser litigation
<http://www.investmentnews.com/apps/pbcs.dll/article?AID=/20090517/REG/30517
9967>

Meanwhile, firm's founder says cases "will run into a
concrete wall'

By Bruce Kelly
<http://www.investmentnews.com/apps/pbcs.dll/personalia?ID=BKELLY>
May 17, 2009
If legal action against Fisher Investments is any
indication, financial advisers increasingly will face lawsuits and
arbitration claims from clients who are angry about investment losses.
This month, two sets of former clients of Fisher
Investments, whose founder and chief executive, Ken Fisher, is known for his
redoubtable marketing skills, have sued the firm, both alleging that it
failed to live up to its fiduciary duty during the recent calamitous market
meltdown.
There will be "more claims versus advisers in this type of
environment," said Theodore Eppenstein, senior partner at Eppenstein &
Eppenstein in New York, which represents investors. "I think advisers could
expect" more lawsuits and arbitration claims, he said.
After past market free falls, such as the bear market
following the bursting of the technology stock bubble, stockbrokers and
broker-dealers have been by far the most common target of arbitration claims
by stunned investors looking to recoup losses, industry observers said.
But the historic severity of the recent market fall, coupled
with investors' making little or no distinction between stockbrokers and
investment advisers, make the latter increasingly vulnerable to such claims,
some attorneys and industry observers said.
Mr. Fisher, for his part, brushes off both claims, one a
lawsuit filed this month in federal court in Houston and the other an
arbitration filed this month in Atlanta.

Tom Iannuzzi

Ken Fisher: "The person who will be sorry in
the end is the client, who will wind up spending money on lawyers and
getting nothing."
'INCOMPETENT' LAWYERS
In an interview Thursday, he stressed the mere handful of
legal claims by investors Fisher Investments has faced, and said that the
lawyers who are representing the clients in both matters are "similarly
incompetent."
Both cases "will run into a concrete wall," Mr. Fisher said.

"The person who will be sorry in the end is the client, who
will wind up spending money on lawyers and getting nothing," he said.
Mr. Fisher, discussing one of the plaintiff's lawyers in the
arbitration claim, Andrew Stoltmann of the Stoltmann Law Offices PC in
Chicago, said he wanted to teach Mr. Stoltmann "a lesson he won't forget."
When told of Mr. Fisher's comments, Mr. Stoltmann,
co-counsel in the claim, said: "Bring it on, bring it on."
Mr. Fisher, however, acknowledged that the financial
services industry as a whole is likely to face an increasing number of legal
claims.
During a presentation he made last month at an industry
meeting in New York, he pointed out that in the aftermath of every bear
market, there is a pickup in arbitration claims and litigation.
Both the lawsuit and the arbitration claim allege that
Fisher Investments of Woodside, Calif., failed to protect the clients' money
before last year's stock market collapse, because the firm invested their
portfolios almost exclusively in stocks.
InvestmentNews.com on Tuesday reported one legal action
against Mr. Fisher, a $1.2 million arbitration claim.
A lawsuit making a similar allegation was filed by an
investor this month in federal court in Houston. In that suit, the investor,
Maurine Ford, claims that Fisher Investments caused "significant losses" to
a living trust that the firm started to manage in June 2008.
Prior to that, her trust was managed by Lighthouse Capital
Management LP of Houston, from which Fisher Investments bought the client
assets last year.
"Upon the transfer of the trust's investment account from
Lighthouse to Fisher Investments, the asset allocation in the trust's
account was as follows: cash 27%, fixed income 32% and equities 41%," the
lawsuit states. "Fisher Investments recommended that [Ms. Ford] reallocate
the trust's portfolio to invest 100% in equities," the suit states.
The arbitration statement of claim, which was filed May 5 in
Atlanta, alleges that Fisher Investments invested too much of a retired
doctor and his wife's $2.5 million portfolio in stocks, even with the market
in free fall last year.
FULLY INVESTED
"As the market continued to plunge throughout 2008, there
was one common theme from Fisher Investments:
* blind optimism and staying fully invested in equities," the
arbitration claim states.
"Despite overwhelming evidence of a bear market, Fisher
Investments kept its elderly and retired clients almost 100% in equities,"
according to the arbitration claim, which was filed with Jams, an Irvine,
Calif.-based private provider of alternative dispute resolution services.
The claim was filed by Brent and Michelle Murphy of
Savannah, Ga. Mr. Murphy is 61, and his wife is 60.
Mr. Stoltmann said he expects to file more claims against
Fisher Investments in the coming weeks.
Mr. Fisher declined to comment about either the arbitration
or the lawsuit, because that would violate the privacy of the clients, he
said.
However, he emphasized that Fisher Investments, which is one
of the most noted investment advisory firms in the country, has a rigorous
process of vetting clients and gathering information to review their goals
and needs when they invest with the firm.
"We are over-the-top careful in this process," he said.
Fisher Investments has $28 billion in client assets and
37,648 accounts, making it one of the largest registered investment advisory
firms in the United States.
E-mail Bruce Kelly at bkelly@investmentnews.com.
admin
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Re: GET YOUR MONEY BACK!

Postby admin » Sun May 24, 2009 1:46 pm

For more info related to this topic, see also, "class actions", and "solutions, self defense" topics

there are also some communications with the Competition Bureau of Canada on the matter, to show you how difficult it can be to get bureaucrats to step up and do their jobs, when their jobs become difficult.

good luck
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