Theories of Stockbroker and Brokerage Firm Liability
Jurisdiction | United States,Federal |
Citation | Vol. 9 No. 5 Pg. 0001 |
Pages | 0001 |
Publication year | 2004 |
GSB Vol. 9, No. 5, Pg. 1. Theories of Stockbroker and Brokerage Firm Liability
Georgia State Bar Journal
Vol. 9, No. 5, April 2004
Vol. 9, No. 5, April 2004
"Theories of Stockbroker and Brokerage Firm
Liability"
By Robert C. Port
Over a lifetime, even modest savings, contributions to an
IRA, or participation in an employee pension plan can result
in significant accumulations of wealth.1 However, many
individuals have neither the interest nor the desire to learn
about financial markets and investments, nor do they have the
time necessary to monitor their investments on an ongoing
basis. Their aversion to and confusion about financial
matters has been further accentuated by the "irrational
exuberance"2 of the "Internet bubble" of the
late 1990s, and subsequent significant decline in the value
of technology and telecommunications stock. As a result, many
individuals turn to stockbrokers, investment advisors
financial planners, insurance agents, and others claiming to
have the knowledge and experience to offer investment advice
Stockbrokers and other financial advisors are highly
motivated to cultivate their clients' trust and
allegiance, and clients who lack knowledge and sophistication
on financial matters have powerful incentives to believe that
such advisors are trustworthy and acting solely in the
customer's best interests.3 This trusting relationship
creates an opportunity for exploitation by the advisor, which
may form the basis for a variety of legal claims. Common fact
patterns associated with broker misconduct include
misrepresentation, churning, unsuitable recommendations
unauthorized trading, and failure to supervise. Outright
misrepresentation and fraud may also be practiced on the
unsuspecting and trusting client
Federal and state securities statutes and state common law
typically govern civil liability in connection with losses
arising from the purchase and sale of securities. The
self-regulatory rules of the National Association of
Securities Dealers and the New York Stock Exchange are also
relevant to the issue of whether a broker or financial
advisor owed or breached a duty to the customer. The
following is a brief overview of common legal theories of
liability that apply to broker misconduct.4
FRAUDULENT MISREPRESENTATIONS AND OMISSIONS
Material misrepresentations and omissions made in connection
with the purchase or sale of a security can violate federal
and state securities statutes. Such claims may also proceed
as common law fraud claims.
Section 10(b) of the Securities Exchange Act of 1934
and Rule 10b-5
Section 10 of the Securities Exchange Act of 1934,5 is an
anti-fraud provision prohibiting the use "in connection
with the purchase or sale of any security . . . any
manipulative or deceptive device or contrivance." Rule
10b-5 promulgated by the Securities Exchange Commission
amplifies these prohibitions by making it unlawful: (a) To
employ any device, scheme, or artifice to defraud, (b) To
make any untrue statement of a material fact or to omit to
state a material fact necessary in order to make the
statements made, in the light of the circumstances under
which they were made, not misleading, or (c) To engage in any
act, practice, or course of business which operates or would
operate as a fraud or deceit upon any person, in connection
with the purchase or sale of any security.6
The essential elements of a Rule 10b-5 claim are: (1) a
misstatement or omission; (2) of a material fact; (3) made
with scienter, (4) upon which the plaintiff relied; (5) that
proximately caused the plaintiff's loss.7
The standard for determining materiality is whether
"there is a substantial likelihood that a reasonable
shareholder would consider it important" or "a
substantial likelihood that the disclosure of the omitted
fact would have been viewed by the reasonable investor as
having significantly altered the 'total mix' of
information made available."8 "To constitute fraud,
a misrepresentation generally must relate to an existing or
pre-existing fact."9 A misrepresentation of future
profit generally cannot constitute fraud, as it is a type of
opinion and prediction of future events.10 "[O]utrageous
generalized statements, not making specific claims, that are
so exaggerated as to preclude reliance by consumers"
generally will be deemed "puffing" rather than
fraud.11 Furthermore, the "in connection with"
requirement in Rule 10b-5 is not satisfied by any
misrepresentations or omissions that occur after the claimant
purchases or sells the security in question.12
The Supreme Court has expressly left open the question of
whether the scienter requirement encompasses not only
intentional conduct, but also reckless conduct.13 The rule in
the 11th Circuit is that a showing of "severe
recklessness" satisfies the scienter requirement.14
"Severe recklessness is limited to those highly
unreasonable omissions or misrepresentations that involve not
merely simple or even inexcusable negligence, but an extreme
departure from the standards of ordinary care, and that
present a danger of misleading buyers or sellers which is
either known to the defendant or is so obvious that the
defendant must have been aware of it."15
The plaintiff's reliance must have been reasonable or
justified.16 Relevant factors include: (1) the sophistication
and expertise of the plaintiff in financial and security
matters; (2) the existence of long standing business or
personal relationships between the plaintiff and the
defendant; (3) the plaintiff's access to relevant
information; (4) the existence of a fiduciary relationship
owed by the defendant to the plaintiff, (5) concealment of
fraud by the defendant; (6) whether the plaintiff initiated
the stock transaction or sought to expedite the transaction;
and (8) the generality or specificity of the
misrepresentations.17
To prove the causation element, a plaintiff must prove both
"transaction causation" and "loss
causation."18 Transaction causation is a synonym for
reliance, and is established when the misrepresentations or
omissions cause the plaintiff "to engage in the
transaction in question."19 Loss causation is more
difficult to prove: the misrepresentation must have caused
the loss suffered by the claimant. Loss causation is
satisfied "only if the misrepresentation touches upon
the reasons for the investment's decline in
value."20 Proof of loss causation is a statutory
requirement.21
Section 12(2) of the Securities Act of 1933
Section 12(2) of the Securities Exchange Act of 1933 provides
that any person who offers or sells a security by use of an
oral or written communication that contains an untrue
statement of material fact or omits to state a material fact
necessary in order to make the statement not misleading is
liable to the purchaser, unless the seller can show that he
did not know and in the exercise of reasonable care could not
have known of the untruth or omission.22 Scienter is not an
element of a Section 12(2) claim.Although the scope of
liability under Section 12(2) is potentially broad, its reach
for broker misconduct nonetheless is limited by four factors.
First, the claimant is limited to rescission or rescessionary
damages (the purchase price of the security, plus interest,
less income received thereon) and must tender the security
back to the seller. If the claimant no longer owns the
security, he may seek damages representing the difference in
the purchase price and the sale price. Second, only
purchasers may assert claims under Section 12(2), and they
may assert them only against sellers and persons who control
them. A "seller" is one who either transfers title
to the security or who solicits the sale and receives a
benefit from doing so or acts with the intent to benefit the
owner of the security.23 Third, the statute of limitations is
a substantive element of the claim and compliance must be
affirmatively pled. Fourth, Section 12(2) applies only to
initial public offerings by means of a formal offering
document (not private placements or secondary market
transactions).24
Georgia Securities Act
The Georgia Securities Act provides a cause of action against
a seller of securities for making "an untrue statement
of a material fact or omit[ing] to state a material fact
necessary in order to make the statements made, in the light
of the circumstances under which they are made, not
misleading."25 Liability will not be found however, if
"(1)[t]he purchaser knew of the untrue statement of a
material fact or omission of a statement of a material fact;
or (2)[t]he seller did not know and in the exercise of
reasonable care could not have known of the untrue statement
or misleading omission."26
The remedies provided under the Georgia Act are available
only to a buyer of securities.27 Because there is very little
case law construing the Georgia Securities Act, the courts
often look to analogous federal statutes for interpretive
assistance. For example, although the language of the Georgia
statute does not appear to require scienter, courts have
construed the section in accordance with Rule 10b-5 as
requiring proof of scienter.28 One of the advantages of a
claimant proceeding under the Georgia Act, however, is
provision for recovery of attorney's fees, interest, and
court costs.29
Common Law Fraud
Under Georgia law, fraud is shown when (i) a representation
of material fact is made (or there is a failure to disclose a
material fact); (ii) that was known or should have been known
to be false (or should have been disclosed); (iii) that was
made (or omitted) for the purpose of being relied upon by
another; (iv) that was in fact relied upon; (v) that caused
damage.30 Under Georgia law, a "promise to perform some...
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