Meyer Wilson

Recovering Losses Caused By Investment Misconduct

REITs Losses Attract Attention from FINRA

Non-traded REITs Land in FINRA’s Cross Hairs

Today’s economic climate, while improving over that of recent years, continues to yield returns that are lower than what many investors need or want. Unfortunately, this has caused a significant number of investors to consider alternative investments – like risky non-traded real estate investment trusts (REITs) – that they likely would never consider otherwise.

Even more unfortunate, however, is the eagerness of broker-dealer firms to satisfy investors’ demands for higher yields by selling complicated products without first discussing or even understanding the products’ inherent risks.

This has, as we’ve seen from a variety of non-traded REIT complaints and securities arbitration cases like those involving the Apple Non-traded REITs sold by David Lerner Associates, led to a significant loss of principal for many investors – losses that are attracting the Financial Industry Regulatory Authority’s attention.

In a speech given late last month, Susan Axelrod, executive vice president of member regulation sales practices at FINRA, discussed the dangers of non-traded REITs and acknowledged that the organization “has a number of open investigations” related to the sale of the products.

“In several instances, FINRA examiners have found that firms selling these products failed to conduct reasonable diligence before selling a product and failed to make a determination that the product was suitable for investors,” said Axelrod in the speech. “FINRA examiners [also] have noted that—in the instances of REITs that have experienced financial difficulties—red flags existed and should have been considered by firms prior to the product being offered to firm clients.”

According to Axelrod, to avoid enforcement actions and litigation, broker-dealers who sell non-traded REITs must make sure they conduct their due diligence, train their brokers to understand the products, and ensure they are suitable for their clients for recommending them.

Firms and brokers also should make sure they fully understand – and advise their clients of – three of the products’ biggest limitations:

Lack of liquidity.

“There is a very limited or no secondary market for shares. Thus, investors in these products have very few alternatives should they decide they need to liquidate their positions,” she said. In short, “Non-traded REITs are rarely suitable for investors with short time horizons.”

Problems with valuation.

“REIT offerings normally last several years, and during the offering period, broker-dealers selling them reflect an estimated per-share price on customer statements—typically the public offering price. This is sometimes the case for years after the customer's initial purchase. Unfortunately, we have recently seen several high-profile instances of REITs re-pricing their per-share estimated values at substantially less than the offering price—with little or no advance notice to investors.”

Unclear distributions.

“Non-traded REITs may also borrow funds to make distributions if operating cash flow is insufficient. And excessive borrowing may increase the risk of default or devaluation. In addition, non-traded REIT distributions may actually be a return of principal. For these reasons, brokers must use caution when discussing distributions with investors, particularly when making comparisons to other dividend-paying investments.”

Based on Ms. Axelrod’s remarks, it seems likely that we’ll see a number of new enforcement actions filed in the coming months against broker-dealers for actions related to the sale and recommendation of non-traded REITs. These claims will likely involve misrepresentations, lack of due diligence, and unsuitable recommendations. Investor claims based on such misconduct likely will rise as well.

For more information about non-traded REITs and to find out why they’re generally considered too risky for the average investor, click here. If you believe you have suffered losses in a non-traded REIT due to a broker’s misconduct, contact us to discuss your case or complete the online form on the top of this page and we will respond promptly.

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