Wall Street Wants to Protect Older Investors -- to a Point - TheStreet

SAN JUAN, Puerto Rico (TheStreet Foundation) -- The securities industry and its regulators are tripping over themselves trying to make things safer for elderly investors.

This, on its face, is of course a good thing. Aging baby boomers will be turning 65 at a rate of 10,000 a day for the next 15 years, according to Pew Research Center.

And as they age, they increasingly will be at risk of Alzheimer's disease and other dementias. The Alzheimer's Association says that by 2025, 7.1 million people age 65 and older will have the disease, up from 5.1 million this year.

It doesn't take a rocket scientist to grasp that the ballooning ranks of retirees will be irresistible prey for sleazy operators who target the vulnerable.

But what to do about it?

State securities regulators unveiled a plan at their annual meeting last week, zeroing in on the role stockbrokers can play in sounding the alarm that a senior is at risk of being ripped off.

Before you collapse on the floor guffawing at the notion that brokers might be entrusted with an investor-protection role, consider that the criminals who don't work in the securities industry sometimes need to persuade their victims to take money out of an account so they can put it in their own pocket. And sometimes those accounts are at Wall Street firms.

So the North American Securities Administrators Association, known as NASAA, floated a model state law on Sept. 29 that would make it easier for brokers to get the word out to regulators and senior services authorities that a scam might be in the making. Other state or regulatory authorities have proposed or passed similar plans.

The way things stand, brokers in most states risk violating privacy laws if they call family members or outside authorities to share information about a client who wants to withdraw money for a scam investment. Brokers also are required to execute any transaction a customer requests, whether it's a disbursement for a down payment to get the carpets replaced or a wire transfer to some guy who says he's a Nigerian prince.

Nasaa's proposed model legislation, "An Act to Protect Vulnerable Adults From Financial Exploitation," would give brokers immunity from any liability connected with informing authorities that something fishy might be going on related to the transaction a client has requested. It also allows them to delay paying out funds for as many as 10 days, if they suspect financial exploitation.

Wall Street and its overseers are enjoying an extended kumbaya moment, addressing the important topic of protecting seniors. Abetting the industry-regulatory truce is that the conversation mostly has been focused on perpetrators who work outside of the securities industry.

The spotlight is on trickery by would-be Nigerian princes and duplicitous caregivers, not Finra-registered brokers who might be peddling illiquid real-estate investment trusts to octogenarians. And, with the exception of the Nasaa plan, the solutions mostly demand little of brokers, who can choose to follow up when they suspect their client is being fleeced, or look the other way.

In June, after Missouri passed a new "Senior Savings Protection Act" that included many of the provisions that are in the Nasaa proposal, Wall Street's main lobbying group gushed over the new law. "Sifma applauds Missouri's leadership," said Kim Chamberlain, a Sifma Managing Director and associate general counsel, in a press release. (Delaware and Washington state have similar laws.)

When all is said and done, though, the Nasaa proposal could wind up exposing that Wall Street is only willing to take its munificent stance toward seniors so far.

Judith Shaw, Maine's Securities Administrator and the president of Nasaa, told me that, under Nasaa's proposal, it is not optional for the broker or adviser to come forward if he or she has a reasonable belief that a person over 60 has been exploited financially - or that exploitation is being attempted.

Nasaa doesn't want cases to slip through the cracks, she said, so brokers under the proposed law are expected to report suspicious cases or risk enforcement actions if they don't.

I asked Sifma spokeswoman Carol Danko three times via email if the Wall Street lobbying group would support the idea that brokers be required to report suspected financial abuse. I'm guessing she didn't want to answer the question, because all I got was this: "We appreciate NASAA's engagement in this space and look forward to working with them on a proposal that will protect seniors."

If that non-answer doesn't shed enough light on Wall Street's position, Missouri's experience might.

The new law in that state has no requirement that brokers report suspected abuse, and I asked Missouri's Commissioner of Securities, Andrew Hartnett, why that was.

"I don't think we could have passed that in Missouri," he said. The state had "engaged with the industry" in developing its law, said Hartnett, and the legislature looked approvingly on the senior protection proposal in part because a regulator and the brokerage community had agreed on its terms.

So if you're a betting person, the smart wager is that Wall Street will balk at NASAA's requirement that brokers speak up when they suspect financial abuse of an elderly client.

On Sept. 17, Wall Street's self-regulatory organization, Finra, said it will be coming out with its own proposal to shield brokers who want to put a hold on disbursing funds if they suspect financial exploitation. Like Missouri, Finra said the new rule "would not create a duty" for its members to report possible problems.

Did I mention that Finra is bankrolled by its Wall Street members?

At NASAA, where no one from Wall Street is signing the paychecks, Shaw says regulators and brokers shouldn't be "half in" on such an important issue. Brokers "need to take some risk and responsibility here," she said. "We are concerned that cases could exist and we won't get the information." Thus, she says, brokers should not have the option of keeping it to themselves if they suspect an elderly client is being exploited.

Amid all the action to make the world safer for the ballooning population of elderly investors, it's worth mentioning that the same stockbrokers who stand to take on a new role protecting investors from "ne'er do wells" have been known to fleece a few seniors themselves.

When the Securities and Exchange Commission and Finra examined 44 brokerage firms in 2013 to see how firms conducted business with seniors, the results didn't inspire a lot of confidence.

In a report released in April, the two regulators said that a third of the firms made one or more potentially unsuitable recommendations of variable annuities to seniors.

Fourteen percent made potentially unsuitable recommendations to the elderly to buy alternative investments, which often lack liquidity and can be difficult to value. The regulators found one instance where a firm sold an alternative investment to a 90-year-old.

There also was the 87-year-old whose only investment experience was with mutual funds. The market-linked CD that he was sold, which regulators said "tied up a significant percentage" of his assets, would not become liquid until he was 94.

There is more, but you get the idea.

The movement to make it easier for stockbrokers to raise a red flag when they suspect exploitation of the elderly is a constructive one. But it's hard not to wonder whether we'll ever see a parallel plan to better scrutinize the same brokers we're designating as our seniors'  protectors. Years of regulatory actions and customer arbitrations make it clear that stockbrokers are fleecing our vulnerable elders, too.