The Securities and Exchange Commission (“SEC”) recently imposed a cease and desist order against Merrill Lynch, Pierce, Fenner & Smith in which the Commission found that Merrill Lynch failed to adequately disclose certain fixed costs in a proprietary volatility index linked to structured notes known as Strategic Return Notes (“SRN”) of Bank of America Corporation (“BAC”). Merrill Lynch offered and sold approximately $150 million of these volatility notes to approximately 4,000 retail investor accounts in 2010 and 2011. The SEC found that the disclosures made it appear as if the volatility product had relatively low fixed costs. The offering materials emphasized that investors would be subject to a 2% sales commission and a 0.75% annual fee. The offering materials failed to adequately disclose a third fixed, regularly occurring cost included in its proprietary volatility index known as the “Execution Factor”. As a result, the disclosures in the offering materials of the fixed costs associated with the Strategic Return Notes were materially misleading.
The SEC found that as an issuer of securities, BAC had a duty to disclose all material information necessary to make statements contained in the retail pricing supplements, in light of the circumstances under which they were made, not misleading. BAC delegated to Merrill Lynch principal responsibility for drafting and reviewing the retail pricing supplements. The SEC found that Merrill Lynch violated Section 17(a)(2) of the Securities Act which prohibits obtaining money or property by means of material misstatements and omissions in the offer or sale of securities.
The SEC deemed it appropriate to impose sanctions against Merrill Lynch, including a civil monetary penalty in the amount of $10 million.
If you have suffered investment losses as a result of your broker’s or brokerage firm’s misconduct, contact the Law Offices of Place & Hanley, LLC to discuss your legal options. The Law Offices of Place & Hanley, LLC is dedicated to helping investors nationwide. If you have lost money as a result of investing in Strategic Return Notes at Merrill Lynch, you may be entitled to recover your investment losses. Contact our office toll free at (866) 318-4725 for a complimentary initial consultation.