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Variable Annuity Switching, Subject of FINRA Crackdown, May Signal Broker Abuses

The Financial Industry Regulatory Authority (FINRA) has filed two recent enforcement actions that may signal a crackdown on variable annuity (VA) misconduct this year, continuing a 2016 trend of high fines related to VA sales in 2016.

In the first disciplinary proceeding, FINRA reportedly suspended broker Cecil E. Nivens for two years and ordered the broker disgorge nearly $186,000 in commissions for causing “considerable monetary harm” to customers related to VA exchanges.  According to FINRA filings, while working for New York Life, Mr. Nivens allegedly made unsuitable recommendations that several of his clients purchase variable universal life insurance policies, also known as VULs, using use the proceeds of annuities that they already owned.   According to the allegations, Mr. Nivens also failed to follow certain technical requirements of Section 1035 of the Internal Revenue Code (IRC) that allows people to transfer funds from one life insurance policy or annuity to a new policy without incurring a tax penalty, resulting in substantial negative tax implications for his customers.

In the second disciplinary proceeding, filed Oct. 6, FINRA charged former Legend Equities broker Walter Joseph Marino with recommending unsuitable variable annuity replacements that benefitted him to the tune of $60,000 in commissions while his customers—including a 78-year-old retired widow—suffered financial harm, including incurring surrender charges and tax liabilities, due to the unsuitable recommendations.  The FINRA complaint alleges that Marino recommended that two customers replace their non-qualified variable annuities (VAs) issued by Jackson National Life and The Variable Annuity Life Insurance Company, resulting in unnecessary surrender charges and commissions.   FINRA alleges that Marino also failed to utilize a 1035 exchange that would have saved his clients substantial taxes, and pocketed $60,000 in commissions while causing substantial financial harm to his customers.

Brokers typically recommend clients replace annuities under Section 1035 of the tax code. Switching VAs in this manner provides a tax-free transfer for the client, but also generates additional commission for the broker.  As such, 1035 exchanges are typically how abusive account churning occurs with annuity products and are a “red flag” that a broker or financial advisor may not be acting in the customer’s best interests. VAs are often very high commission products, so switching a customer from one VA to another may signal an attempt by the broker or financial advisor to “double dip” on sales commissions.

FINRA levied $30.3 million in fines among 30 variable annuity cases in 2016, and filed 12 cases involving variable annuities, generating $510,000 in fines, through the first half of 2017.  In May 2016, FINRA fined MetLife Securities $25 million for allegedly making misrepresentations and omissions of fact to customers in connection with VA replacement transactions.

If you have switched from one VA to another at the recommendation of a stockbroker or investment advisor, and you have suffered losses in connection with your investments, you may be able to recover your losses in FINRA arbitration.  To find out more about your legal rights and options, contact a securities arbitration lawyer at Law Office of Christopher J. Gray, P.C. at (866) 966-9598 or via email at for a no-cost, confidential consultation.

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