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As nontraded REIT sales sizzle, have firms learned from past mistakes?

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As nontraded REIT sales sizzle, have firms learned from past mistakes?

Disclosure, disclosure, disclosure key to avoiding plight of private placement sellers now defunct

By Bruce Kelly

Nov 30, 2013 @ 12:01 am (Updated 8:02 am) EST

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As the year comes to a close, it is evident that independent broker-dealers are racking up a bonanza of commission dollars and marketing cash from the sale of alternative investment products, namely nontraded real estate investment trusts.

As noted in this column two weeks ago, independent registered representatives have poured a mountain of client cash into nontraded REITs this year — an expected record $20 billion in sales.

Indeed, LPL Financial, with more than 13,000 independent registered reps and financial advisers, reported a booming increase in commissions in the third quarter for sales of nontraded REITs and other alternative investments, increasing 160.1% and reaching $81.2 million.

LPL, of course, isn't alone in this commission windfall from sales of nontraded REITs.

Smaller independent broker-dealers also are joining the festivities, including some firms that made serious errors in judgment when they approved private-placement alternative investments that turned out to be frauds in the four or five years before the market crash of 2008. Dozens of the broker-dealers that sold those products have gone out of business, unable to operate under the burden of client lawsuits and regulatory scrutiny.

Others, however, survived. And it looks like they are continuing to generate significant income and revenue from the sale of alternative investments.

Have those firms learned from their mistakes?

Capital Financial Services Inc., with 120 independent registered reps, is one such firm.

Its parent company, Capital Financial Holdings Inc., last month reported third-quarter earnings and noted a significant surge in income due to increased marketing dollars from alternative investment sponsors.

MARKETING INCOME UP

“Interest and other income for the nine-month period ended Sept. 30, 2013, was $430,534, an increase of 149% from $172,632 during the same period in 2012,” Capital Financial Holdings reported. “The increases were due to an increase in the marketing income received related to alternative investment products.”

Capital Financial Services has seen severe problems with alternative investments in the recent past. It was one of the leading sellers during the past decade of a series of private placements that failed and were later accused of being fraudulent by the Securities and Exchange Commission.

Capital Financial reps sold $60 million of Provident Royalties LLC preferred shares. In August 2011, Capital Financial and the Financial Industry Regulatory Authority Inc. reached a $200,000 settlement over the sale of the failed private deals.

The firm “failed to conduct adequate due diligence” on the series of offerings and failed to put in place a supervisory system to achieve compliance when selling the private placements, according to Finra's letter of acceptance, waiver and consent.

John Carlson, president of Capital Financial Services, declined to comment about the company's earnings report.

Meanwhile, Ladenburg Thalmann Financial Services Inc., which is the parent of three independent broker-dealers, last month reported a healthy boost of 20% in commission revenue for the nine-month period ended in September due, in part, to sales of alternative investments.

Ladenburg reported $283.5 million in commission revenue for the first nine months of the year, compared with $243.9 a year earlier.

“The increase in commission revenue resulted primarily from increased sales of alternative investments, mutual funds and variable annuities in the 2013 period as compared to the 2012 period,” the company reported.

One of Ladenburg Thalmann's broker-dealers is Securities America Inc., which was the leading seller of MedCap notes, with almost $700 million in sales. Its former owner, Ameriprise Financial Inc., along with Securities America, announced two settlements with MedCap in 2011, totaling $150 million, before the firm was sold that year to Ladenburg Thalmann.

Janine Wertheim, a spokeswoman for Securities America, and Emily Deissler, a spokeswoman for Ladenburg Thalmann, didn't return calls seeking comment.

To be clear, a broker-dealer selling fraudulent private placements isn't akin to selling nontraded REITs. Private placements offer scant disclosure to advisers and investors and are often shrouded in mystery reminiscent of hedge fund marketing.

Medical Capital and Provident promised annual returns of 12% to 17% and had no audited financial statements.

Nontraded REITs are designed to be “steady as she goes” investment products with yields of 5% to 7%.

And nontraded REITs are registered securities and have copious amount of disclosure from the product sponsor. The industry has taken serious strides to improve disclosure for the product, including working with regulators to promote the sustainability of dividends and create standards for valuation and account statement reporting.

Regardless, the commission bonanza that some firms are seeing from sales of alternative products must be taken seriously if the independent broker-dealer industry wants to avoid potential disasters from selling such investments.

The questions for those firms and the independent broker-dealer industry at large are:

As the year comes to a close and sales of nontraded REITs continue to sizzle, do broker-dealers have the systems and personnel in place to properly watch the sales of alternative investments such as nontraded REITs or business development companies?

As the independent broker-dealer industry enjoys the fruits of the commission revenue from these products, did it learn from the private placement debacle of the recent past?

Broker-dealers that sold MedCap notes and Provident preferred shares typically relied on outside due diligence analysts, often paid for by Medical Capital and Provident, to kick the tires on the product.

Have broker-dealers ditched this practice, performing their own in-house due diligence on products such as nontraded REITs? Some firms already do this, but all should, and in one way or another pay for the due-diligence analysis for the nontraded REITs or BDCs out of their own pockets.

History has a way of repeating itself. Let's hope that isn't the case for the independent broker-dealer industry and hot sales of alternative investments.

Bruce Kelly

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Bruce Kelly covers the securities industry, with a focus on independent broker-dealers; please contact him if you have news, information or industry scuttlebutt to discuss.

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