Bogleheads® on Investing Podcast 036 - Lisa Bragança, host Rick Ferri (audio only)

00:00:11.000 | Welcome everyone to Vogelheads on Investing, episode number 36.

00:00:15.000 | Today, our special guest is Lisa Braganza.

00:00:18.000 | For years, Lisa worked as a Securities and Exchange Commission Enforcement Branch Chief

00:00:23.000 | where she led investigations into security fraud, insider trading, market manipulation, and other illegal activity.

00:00:29.000 | [music]

00:00:38.000 | Hi everyone, my name is Rick Ferry, and I'm the host of Vogelheads on Investing.

00:00:42.000 | This episode, as with all episodes, is brought to you by the John C. Vogel Center for Financial Literacy,

00:00:48.000 | a 501(c)(3) nonprofit organization.

00:00:51.000 | You can find us at vogelcenter.net, and your tax-deductible contributions are greatly appreciated.

00:00:58.000 | Today, our special guest is Lisa Braganza.

00:01:00.000 | For years, Lisa worked as an SEC Enforcement Branch Chief

00:01:04.000 | where she led investigations into securities fraud, insider trading, market manipulation, and other illegal practices.

00:01:11.000 | Now, she aggressively fights for the rights of investors as an attorney and litigator,

00:01:16.000 | with a particular emphasis on elder abuse by financial advisors.

00:01:19.000 | So, with no further ado, I'm very happy to have as my guest today, Lisa Braganza.

00:01:25.000 | Welcome to the show, Lisa.

00:01:27.000 | Thank you. It's very nice to be here, Rick.

00:01:30.000 | Well, we've got a lot to go over today.

00:01:32.000 | There's so much information that you've written about,

00:01:36.000 | and so much that you have done in the industry to try to protect investors, and particularly seniors.

00:01:43.000 | But before we get to all that, I'd like to spend a few minutes, if you could,

00:01:48.000 | tell us a little bit about yourself, and how did you get to this point?

00:01:52.000 | I started off in college as an economics major, and I thought economics had all the answers.

00:02:00.000 | I went to University of Chicago and discovered that it just did not make sense.

00:02:04.000 | Economics was a model, but it didn't fit the way people actually behaved.

00:02:11.000 | But that was back in the '80s, before this whole area of behavioral decision-making came up.

00:02:18.000 | So, when I went to the economics department and said, "Hey, I want to study how people actually make decisions,"

00:02:24.000 | they said, "You know, you really don't belong in this department."

00:02:27.000 | So, I went to work. I didn't go on in economics.

00:02:30.000 | I just got my degree, and I went to work for Arthur Anderson.

00:02:34.000 | This is pre-Supreme Court case, pre-Enron, and I was a consultant with Arthur Anderson.

00:02:43.000 | I went to business school night, and at that point, when I was in business school,

00:02:48.000 | I was introduced to behavioral decision-making and that research, and that rang bells for me.

00:02:56.000 | That was really interesting information.

00:03:00.000 | But, you know, I kind of chugged along and ultimately decided to go to law school.

00:03:05.000 | And after law school, I spent many years litigating and then ultimately found my way to the Securities and Exchange Commission, the SEC, and it was heaven.

00:03:16.000 | I was awash in accounting fraud and, you know, it's like getting to peek under the hood of your car.

00:03:24.000 | Back in the old days, when I used to spend time with my dad, monkeying around with the engine, you know, I got to see how things worked, and it was very cool.

00:03:33.000 | And looking at the fact of how things were structured on the incentives, money drives what people do.

00:03:43.000 | So you're talking about advisors and brokers here. You're not talking about clients, obviously.

00:03:49.000 | Right. I focused on advisor incentives, but also the incentives of people working in corporations.

00:03:57.000 | You know, I'm sure that my business school cost accounting and financial accounting professors would be very surprised that I really took to this because those weren't subjects that I shined in in business school.

00:04:07.000 | But all of a sudden, the economics, the behavioral decision making, the accounting all came together, and I really felt like I was in the right place to be able to protect people and to try to create better systems.

00:04:27.000 | And I have to say, I believe after all these years of working in securities fraud, that most people can be drawn into doing something bad if the right circumstances are there. And I hate to say that.

00:04:44.000 | So, Lisa, that's interesting you say that because when I was working in the brokerage industry, there was a compensation method that as soon as you went in, you had to pass your exams and so forth before you could sell anything, before you could be an advisor.

00:05:01.000 | And the firm that I went to, which was Kidder Peabody, initially back in the late 1980s, paid me a salary for one year.

00:05:09.000 | But then in the second year, every month I got less and less money. My salary went to zero. And by the end of the second year, I had to be making it 100% on commissions.

00:05:19.000 | Now, I ended up able to do that, but I watched a few of my colleagues do some unethical and in some cases illegal things just to be able to bring some money home to their family and to make it in the industry.

00:05:34.000 | They didn't start out that way. It's not what they intended to do. However, they did eventually get caught up in some illegal activity. One person actually created his own mutual fund and had the client's fund, his mutual fund, which just went into his bank account.

00:05:48.000 | And then when he had $2 million in there, he left for Singapore before they caught him. Another broker was selling some Canadian penny stock and doing a pump and dump scheme. I mean, all these things were going on with these new brokers because they needed to feed their families after the first year.

00:06:05.000 | And they were getting desperate. And desperation, I noticed, I witnessed it, I watched it, causes people to do some things that I don't think they would ordinarily do.

00:06:15.000 | I agree. I have seen that so many times. I saw so many different types of ways that people went astray. And the thing that can pull you back is fear of being caught.

00:06:33.000 | So having really good compliance and supervisory provisions in place helps, but also the ethics of the environment that you're in. And even though I felt like business school was an epiphany for me, I was disappointed to see the lack of ethics teaching and the lack of emphasis on ethics when I was in business school.

00:06:56.000 | I'm glad that things have changed. And that is much more of a part of the curriculum now to me. And ultimately, that's what led me to shift from business school to law school, was I just felt like the rules are important and we shouldn't just be trying to get around the rules or get as close to the edge as possible.

00:07:16.000 | How do we create a system for enforcing the rules? But I wanted to go beyond that and create incentives for people to comply with the rules.

00:07:28.000 | When we're talking about the people, the advisors, we're really broken down into two different types, right? There are the broker-dealers and then the investment advisors. How does the SEC sort of differentiate between these two?

00:07:41.000 | Well, broker-dealers, or we generally refer to them as brokers, are historically just salesmen. That was in the old days. You just called your broker or your broker called you and it was just like a car salesman.

00:07:58.000 | So the broker just had to have a reasonable basis for believing that a recommended stock or strategy or mutual fund was appropriate or suitable for a customer. Whereas an investment advisor is somebody who's a fiduciary.

00:08:16.000 | That's somebody who provides advice and it has to be in the best interest of the customer. The investment advisor puts the interests of the customer ahead of his own.

00:08:29.000 | But do they? I mean, sir, you have examined a lot of investment advisors who are fiduciaries. And I was an investment advisor. I was a broker for 10 years and then I was an investment advisor for 17 years.

00:08:43.000 | And yes, there was situations like I described where the brokers didn't put their clients' best interests first. But I've seen a lot of situations where the only investment advisors who were fiduciaries also didn't put their own clients' best interests first.

00:08:57.000 | You know, as far as what to do with money. Should you pay off your house? Should you roll this 401(k) back into another 401(k) or put it in an IRA? You know, the AUM or assets under management incentive for the investment advisor who wants to get more and more and more AUM under management.

00:09:16.000 | I've seen some advisors give some pretty bad advice.

00:09:20.000 | Oh, I absolutely agree. This is the legal structure that exists, but that doesn't mean that everybody complies with the law and rules that they are required to comply with.

00:09:34.000 | And so that's why the examination process that the SEC has for investment advisors is so important. And it's good that the SEC is getting more resources to be able to do more regular exams of investment advisors so that those investment advisors know that the SEC is going to show up regularly and will be, I hope, more likely to comply with the rules.

00:10:03.000 | Could you explain, if you will, what responsibility FINRA has and who is FINRA and what responsibility do they have to protect investors, which is different from the Security Exchange Commission? So how do those two work together?

00:10:19.000 | FINRA is a self-regulatory organization. And that's sort of a weird hybrid. It's of government and private.

00:10:31.000 | FINRA operates under the supervision of the Securities and Exchange Commission, but it is a private organization that is run by the industry, by brokerage firms.

00:10:46.000 | And that's kind of, you know, to my mind, the fox guarding the henhouse. FINRA has two main parts to its process. One is its enforcement and regulatory arm, where it creates the rules for the brokerage industry.

00:11:05.000 | And it has to get the SEC's approval for those rules, but it creates the rules. And on the other side, it runs an arbitration forum for disputes between brokerage participants, brokerage industry participants, but also for customers.

00:11:23.000 | Almost every customer has to go through that process if that person has a dispute with a brokerage firm. Yeah, so that's very different from the government agency, the Securities and Exchange Commission, that has primary responsibility for regulating and supervising investment advisors.

00:11:46.000 | So FINRA, if you're a broker, FINRA is going to come and do compliance examinations of your business, and FINRA enforcement is possibly going to call you to investigate you.

00:12:02.000 | Whereas if you're an investment advisor and not also a broker, you're not going to hear from FINRA. You will hear from the SEC or other securities industry regulators.

00:12:15.000 | The SEC obviously has authority to bring action against investment advisors, but does FINRA, outside of arbitration, have any authority?

00:12:27.000 | FINRA does have authority to bring regulatory actions. The first thing that FINRA does is files a charge against, let's say, a financial advisor.

00:12:39.000 | And there's a hearing process that takes place where the FINRA enforcement attorneys present evidence, and that financial advisor presents contrary evidence, and a hearing officer makes a determination.

00:12:55.000 | That then can be appealed to one level at FINRA and then on to the Securities and Exchange Commission and into the courts then.

00:13:05.000 | So it is a robust process, and FINRA enforcement does conduct a significant number of investigations.

00:13:15.000 | I will say personally that in my dealings on the customer side with FINRA enforcement, I think too often they accept sort of facile, simplistic explanations from the brokerage industry about why something happened.

00:13:31.000 | So I don't trust them nearly as much as I do other securities regulators. That's not a surprise. They're run by the brokerage industry.

00:13:41.000 | And just to clarify, you're no longer working for the SEC. You have your own private practice.

00:13:46.000 | That's right. I have my own firm. I have not been at the SEC for many years.

00:13:50.000 | Okay. So if somebody had a complaint either against a broker who works for Wells Fargo or Merrill Lynch or whomever brokerage firm, we used to call them wire houses. I don't know if that term is still being used anymore.

00:14:05.000 | Or somebody had a complaint against an investment advisor who is registered either with the state that they're in, depending on how much money they have under management, or the Securities and Exchange Commission.

00:14:18.000 | Do they have to go to different entities to file a complaint, or is it all done in the same place?

00:14:24.000 | You have pointed out exactly the major complaint that I have with this industry, with regulation in this industry.

00:14:35.000 | It's too confusing. You do have to go to different places. And it's ridiculous that a customer should have to figure out when they're dealing with an investment professional, am I supposed to call an insurance regulator because I might have invested in indexed annuities?

00:14:57.000 | Or am I supposed to call the SEC because it's an investment advisor? Or am I supposed to call FINRA because this is a broker? And what about if it's somebody who's dual licensed, which a lot of financial advisors, a lot of investment advice providers are dual registrants.

00:15:17.000 | And it makes a big difference because the robustness of an investigation that you are going to get, if you call FINRA versus calling the SEC versus calling a state regulator, it makes a difference.

00:15:32.000 | So, in many ways, I think customers have to consult with a lawyer before they even know where to go. And that doesn't make sense. This is just a goofy system. It's way too complicated, but not surprisingly, that works to the advantage of the industry.

00:15:51.000 | People don't make complaints or they make complaints in the wrong way. And, you know, they may end up hurting their own case if they end up ultimately bringing an arbitration to be able to recover their losses.

00:16:05.000 | Then another thing to know is that when you bring a complaint to a regulator, that regulator doesn't represent you. FINRA doesn't represent you, you know, when they're bringing actions. The SEC does not represent you, the customer. State regulators do not.

00:16:22.000 | Their interest is in the system, in preserving the integrity of the industry. And while they do want to make sure that customers are protected, you know, if you want to make sure that you are recovering your losses, you really do have to have your own lawyer.

00:16:41.000 | Sometimes the SEC does get money back to customers, and sometimes FINRA does, and sometimes state regulators do, but not always, and not even most of the time. So it's important to know that before you go to a regulator.

00:16:59.000 | So unless you know what the jurisdiction is or who is responsible and you know how to fill out the paperwork and you know how to go, where to go to file a complaint against an advisor or insurance agent or whomever you feel that you've gotten some bad advice from.

00:17:16.000 | If you don't know any of this, you have to hire legal counsel, and that's not cheap. And so there are people then who maybe have had small losses, but to them they're huge losses, right?

00:17:32.000 | I mean, if you only have $200,000 to your name and you're retiring with $200,000 and someone puts you in a really inappropriate investment and you lost half your wealth, does it make financial sense for somebody to go and seek out an attorney versus trying to navigate the system themselves?

00:17:51.000 | That's a great question. And that's part of the reason, another reason that I think the system is so very broken, because losses to people with small accounts, lower net worth, are much more damaging.

00:18:07.000 | And yet, it is much harder to get legal representation for those types of claims. So one of the things, I handle a lot of phone calls from people who just are looking for representation for a particularly small amount.

00:18:23.000 | And I will refer them to either regulators to be able to try to help them. And sometimes those are folks who can get help from regulators. But another place I refer them to is securities or investment clinics that are at certain law schools.

00:18:40.000 | That doesn't cover everyone, but there are clinics in Nevada, in New York, in Georgia, in Florida, and they can represent people outside their states, but they are looking for smaller cases that they can use as a teaching mechanism for law students.

00:19:04.000 | And that could be a great way to be able to get representation for a small case.

00:19:10.000 | Let's go into problems that all investors face if they're going to decide that it's too complex, so they're going to hire an investment advisor.

00:19:23.000 | And if they go down that path of hiring an investment advisor, what are some of the problems that all investors face?

00:19:33.000 | Well, all investors face the issue of being influenced by their advisor.

00:19:42.000 | So, you know, your financial advisor is somebody who has a whole lot of information that you don't have, just like when you're talking to your doctor about surgery or you're talking to your lawyer about how to put together your estate plan.

00:19:58.000 | We have a real asymmetry here and unequal relationship in terms of information.

00:20:04.000 | So how do we deal with that? Well, I know when I go in and see my doctor, I tend not to quiz the doctor about all the different options for certain surgery, let's say.

00:20:17.000 | So we tend to have a relationship of trust, but that only works when you have a real fiduciary relationship.

00:20:28.000 | So that's one issue, is that there's a lot of trust. And you have to disclose a lot of personal details. So that, again, creates a relationship of trust.

00:20:41.000 | You then have complexity. So you have a whole world of options out there for investing, and you're really looking to your investment advisor or your financial advisor to narrow that down for you.

00:20:56.000 | You want the advisor to be talking to you, thinking about you, and then giving you some more limited options. You don't want to be looking at 99,000 options. You want to look at five or three.

00:21:10.000 | And so the choice of those is very important, and that is in the power of the advisor. And those could include indexed funds, you know, just straight out total market index fund or an S&P 500 index fund.

00:21:29.000 | But those aren't the kinds of funds that generate a whole lot of fees for the advisor. So there's a real tension there.

00:21:41.000 | You know, the advisor is obviously entitled to make a living wage and make an income. I mean, I don't expect people to work for me for free.

00:21:52.000 | But there's a tension there. And some of the research is very interesting in terms of disclosure of financial interests.

00:22:01.000 | So people who hear from, let's say, their advisor, "Oh, well, I'm going to get a commission for this sale," they will take that into account in their brains, but they won't take it into account enough.

00:22:18.000 | Because, you know, they generally aren't told the actual dollar amount that the advisor will get.

00:22:24.000 | So they'll discount the advice, you know, in their heads some amount, but not the full amount.

00:22:31.000 | So sometimes, you know, even knowing that there is a conflict of interest or a different financial incentive for your advisor might not be enough, might make things kind of worse.

00:22:43.000 | You know, it's interesting because I have this debate on Twitter all the time with financial advisors who are fiduciaries who are charging what I consider high fees.

00:22:53.000 | And there's this big debate that goes on. Everybody who knows me knows that I'm really against financial advisors who are charging 1%.

00:23:00.000 | Because when you break it down to a dollar amount, it's actually a lot more money to charge a client 1% per year every single year on their portfolio than it is to go out and buy, say, American funds.

00:23:12.000 | And pay a commission one time, and then the fees after that are relatively low.

00:23:17.000 | Brokers do have the opportunities to not gouge clients using commissions if they do it correctly.

00:23:23.000 | And a lot of times I hear the fee-only financial advisors who are fiduciaries saying, "Well, you know, commissions are bad. Don't pay commissions, incentives, incentives."

00:23:32.000 | And yet I look at how much money the 1% AUM advisor is taking in from their clients, and I look at the broker who put a client's 401(k) rollover into an IRA, a million dollars into American funds, let's say.

00:23:47.000 | And I'm not touting American funds. I'm just using it as an example.

00:23:50.000 | Pay no commission, and then the fund fees are maybe 0.6% or 60 basis points a year on American funds.

00:23:57.000 | And that's the whole total cost of the million dollars in an assortment of American funds.

00:24:02.000 | And yet it's the 1% advisor who is not only putting you in mutual funds, although you have to pay fees to the mutual funds, but on top of that charging you an extra 1%, $10,000 a year.

00:24:13.000 | I find it ironic.

00:24:16.000 | Right. And that's something that the SEC will be looking into.

00:24:21.000 | There's actually a term for it, reverse churning.

00:24:25.000 | How is it that we can have people who could be very well served by commission services then rolled into these 1% per year plans, programs, that end up costing them much more?

00:24:41.000 | So that's something that financial advisors have to consider, many of whom are dually licensed.

00:24:50.000 | So they could go either way.

00:24:52.000 | They could set up an account where they would be charging regular fees for assets under management, or they could set up a separate account kind of under the same roof.

00:25:02.000 | That's a brokerage account.

00:25:04.000 | But there are very different duties that go with both of those accounts.

00:25:10.000 | And just to step back again to this is such a confusing industry, I think many people who I've talked to have multiple accounts with the same financial advisor at one of the big wire houses.

00:25:24.000 | You could be a Merrill Lynch, a Wells Fargo, a Merriprise, anyone, and they believe that their broker owes them a fiduciary duty on all those accounts.

00:25:35.000 | And you get into litigation with the broker and you find out, oh, no, no, no, this particular account is a fiduciary account, but these other three accounts are not.

00:25:46.000 | And it's just mind boggling.

00:25:49.000 | They might collect them all together into a single consolidated report that that's what the broker discusses with the customer every year.

00:25:58.000 | But, oh, no, no, they're very different legal standards that apply.

00:26:02.000 | So we can -- we're fiduciary, but only to this small area.

00:26:07.000 | And that's just not -- that's not reasonable.

00:26:10.000 | That's not something that customers understand.

00:26:13.000 | It's wildly abused.

00:26:16.000 | Let me ask a question about these things called happiness calls or happiness letters.

00:26:22.000 | And basically, let me describe what I believe they are.

00:26:27.000 | The firms have a compliance department, and they're looking and reviewing the account, and they're seeing some -- maybe some irregularities or some issues in there.

00:26:37.000 | So they send a letter, and they say, are you happy with what we're doing?

00:26:42.000 | Are you satisfied?

00:26:43.000 | So tell me about happiness letters.

00:26:46.000 | Oh, these are the most insidious thing that firms use to undermine customer claims, potential claims against them.

00:26:56.000 | So that's exactly what happens.

00:26:58.000 | I mean, there is something that pops up for compliance as a red flag.

00:27:02.000 | It can -- oftentimes, it's over-concentration in particular types of investments, or it's investing in high-fee investments or switching, which triggers fees.

00:27:16.000 | And so that will be a red flag.

00:27:19.000 | It will pop up on someone's compliance report.

00:27:23.000 | And instead of the compliance people coming down on the financial advisor and saying, why are you doing this, and undo it, this is wrong, what happens is the compliance person will either call or send a letter to the investor and say, hey, you know what?

00:27:43.000 | We just want to check with you on your account and see if everything's going okay.

00:27:47.000 | Do you have any complaints?

00:27:48.000 | Is there anything that, you know, you're not satisfied with?

00:27:52.000 | And the investor very often has no idea why this has happened, and they may not even talk about the particular transaction that has prompted this call.

00:28:04.000 | But they record the call, or they send the letter, and they say -- if they send a letter, they say, if there's any problem, contact us.

00:28:15.000 | And then three years later, whenever, when I get the case, I see this, and the brokerage firm says, hey, you know what?

00:28:24.000 | We reached out, and there were no complaints.

00:28:27.000 | Look at this.

00:28:28.000 | Everything is good.

00:28:29.000 | Here you go.

00:28:30.000 | Oh, it's terrible.

00:28:31.000 | Oh, just awful.

00:28:33.000 | >> Let's get into particular issues for senior investors, elder abuse by financial advisors in the financial industry in the aggregate.

00:28:45.000 | What are some special issues facing seniors?

00:28:50.000 | >> Well, the first thing is that seniors are sitting on their nest egg.

00:28:57.000 | They have saved for their whole careers.

00:29:01.000 | They've done what they were supposed to do, and now have these savings that they are going to be living off of.

00:29:08.000 | And that is just a juicy, delicious-looking target for bad guys.

00:29:14.000 | Just like Willie Sutton used to say, you know, why did he rob banks?

00:29:18.000 | Well, that's where the money was.

00:29:20.000 | So they just are targets.

00:29:23.000 | And there's nothing you can do about that.

00:29:25.000 | It just is.

00:29:26.000 | And many of them grew up when people were a little more polite than they are today, a little more trusting.

00:29:33.000 | And they might end up not wanting to cross-examine their financial advisor on something.

00:29:42.000 | I think another thing that is very important for seniors is that most of us -- and I'll put myself in that category.

00:29:50.000 | I'm 58 years old.

00:29:52.000 | None of us want to recognize a decline in our cognitive abilities.

00:29:57.000 | We like the view of older person, 87 years old, and running marathons and competing with Watson to play chess.

00:30:07.000 | You know, we love that idea.

00:30:09.000 | But we all are subject to some kinds of changes in our cognitive abilities as we grow older.

00:30:17.000 | And it makes sense to plan for that and to be somewhat accepting of it.

00:30:23.000 | And it doesn't fit the way that most of us want to view ourselves in retirement.

00:30:31.000 | We want to be robo-warriors out there, you know, able to do everything.

00:30:37.000 | Another thing that I think many seniors face is there's a fierce desire to be independent and want to maintain privacy and independence over all of their financial doings.

00:30:55.000 | And I can use my mother as an example, perfect example.

00:31:01.000 | I am in this business.

00:31:02.000 | I know about all of the ways that things can go wrong.

00:31:05.000 | So, of course, I talk with my family.

00:31:08.000 | In particular, I talk with my mother about this.

00:31:11.000 | And she will have no part of it.

00:31:14.000 | Even though you are you, she will have no part of it.

00:31:17.000 | Exactly.

00:31:18.000 | She listens.

00:31:20.000 | You know, I've gone so far as to take all of my estate planning documents and just, you know, give her drafts of all of them so she can look at it and she'll look.

00:31:28.000 | But she still likes doing the free dinners that, you know, somebody at Morgan Stanley offers.

00:31:35.000 | And she likes to manage all of her own investments.

00:31:40.000 | And I don't -- I have no knowledge whatsoever of where her accounts are.

00:31:45.000 | So, these are tough issues, you know, when the thing to do in my mind is to set up checks and balances early.

00:31:54.000 | But lots of people don't want to do that because that is a concession to aging.

00:32:04.000 | So, in some ways I feel like people should do it in their 40s or 30s, you know, before this is even an issue so that then by the time, you know, they become more fearful of it, you know, it's already done.

00:32:18.000 | I happen to live in an over 55 community.

00:32:21.000 | And we are just bombarded with free chicken dinners all the time.

00:32:26.000 | And I went to one.

00:32:28.000 | I'll tell you the story.

00:32:29.000 | You must not have been very welcome.

00:32:32.000 | I did not say one word.

00:32:34.000 | Okay.

00:32:35.000 | I didn't say one word.

00:32:36.000 | I just sat there and took notes.

00:32:38.000 | And I actually wrote a Forbes article about it.

00:32:41.000 | And the name of the article was "You May Never See Your Grandchildren Again."

00:32:45.000 | Wow.

00:32:46.000 | This financial advisor, who is a dual listed advisor, by the way, he was both a broker and an insurance agent and a money manager charged AUM.

00:32:56.000 | Anyway, the room is full of people who are 65 or so.

00:33:00.000 | I'm 63.

00:33:01.000 | My wife is there.

00:33:02.000 | She's a couple of years younger than me.

00:33:04.000 | And we all get a free dinner.

00:33:05.000 | And we're sitting there listening.

00:33:07.000 | He starts the whole thing out by saying, let me tell you a story about a woman who came into my office in 2008.

00:33:16.000 | And she had lost almost everything because her financial advisor had her 70% in stock.

00:33:23.000 | And we all know what happened in 2007 and 2008 when the stock market went down 60, 70%.

00:33:30.000 | She lost half of her money.

00:33:33.000 | And she was crying.

00:33:34.000 | And she says, I'm never going to see my grandchildren again.

00:33:38.000 | I can't afford to anymore because they live in a different state.

00:33:41.000 | And then he went on to talk about how he took this remaining money.

00:33:46.000 | And not only did he get all the money back, but he also added more on top of that and gave her a guaranteed income.

00:33:54.000 | And now she's happy.

00:33:56.000 | She calls him all the time because she can see her grandchildren all the time.

00:33:59.000 | And so then he came to the audience and he said, if you want to see your grandchildren again, you need to talk to me.

00:34:05.000 | Honest to God, that's how the whole thing started.

00:34:07.000 | I couldn't believe it.

00:34:08.000 | And he just kept on this story time and again, how if the woman in the room, and he was very sexist about it.

00:34:15.000 | Assuming the man was the one who was doing the money, which in my occupation, I know that's not true.

00:34:21.000 | It's probably 50/50 whether the woman does the money in the house or the man.

00:34:25.000 | But in this particular case, he was very sexist about it and said, if your husband dies, you had better come to see me or you're never going to see your grandchildren again.

00:34:33.000 | And honest to God, this is what the guy said.

00:34:35.000 | And I wrote a Forbes article about it.

00:34:37.000 | And I got a lot of feedback from that because there happened to be a couple of people who had been to that seminar and actually read the article and said they went for the second interview with him.

00:34:46.000 | And he tried to sell them some insurance product.

00:34:50.000 | And then he tried to take that insurance product and put it into a 1.5% AUM fee.

00:34:55.000 | I mean, it was just fees on top of fees on top of fees on top of fees.

00:34:59.000 | But it was all legal.

00:35:00.000 | I mean, it was legal, right?

00:35:02.000 | I mean, there was nothing illegal about it.

00:35:04.000 | I call it a soft fraud, soft fraud.

00:35:07.000 | And this is rampant in the over 55 community I live in.

00:35:11.000 | Every week we get bombarded with come to a free meal at this great restaurant.

00:35:16.000 | And people go and they give these people their money.

00:35:18.000 | And it's just terrible.

00:35:20.000 | But it happens.

00:35:21.000 | And they're just feeding frenzy.

00:35:23.000 | Right.

00:35:24.000 | And one of the things that they are feeding on is that first, people love free.

00:35:29.000 | Free is, you know, like the touchstone for everything.

00:35:34.000 | Like, oh, my God, free.

00:35:36.000 | To me, my reaction to free is always, you know, to recoil.

00:35:42.000 | But the other thing is, once you're given something, the way our brains are wired,

00:35:49.000 | we have this automatic thing that kicks in that's like a ledger.

00:35:55.000 | We have a little, you know, financial ledger in our brain.

00:35:57.000 | And when we get something --

00:35:58.000 | We keep score.

00:35:59.000 | We have to keep score.

00:36:00.000 | Yes.

00:36:01.000 | Then we owe something.

00:36:02.000 | So when you mention that some of these people went to this meeting, well, most people feel some level of obligation.

00:36:11.000 | Once they've gotten the free meal, then to sit down and have this meeting.

00:36:16.000 | And they might feel, once they're in that meeting, the obligation might go further for them then to give some amount of money to this person to invest.

00:36:28.000 | And the research on this is really compelling.

00:36:31.000 | I mean, it's down to researchers have gotten this kind of obligation to kick in by somebody getting a Coca-Cola that they didn't even request.

00:36:42.000 | That's why you get free stickers in the mail or you'll get free stamps in the mail, because it creates that obligation.

00:36:51.000 | Regardless of whether you think that it will, it's an automatic thing, because we've evolved this way.

00:36:59.000 | I mean, you've seen it all.

00:37:00.000 | You've seen the worst of it, I'm sure.

00:37:02.000 | What kind of warning signs should people be looking for, particularly seniors?

00:37:08.000 | Well, before we talk about warning signs, the first thing I would want to really make sure people know is that this can happen to anyone.

00:37:18.000 | And I think one of the biggest problems with financial abuse of folks who are older is an embarrassment, a sense of, oh, my God, I should have caught this.

00:37:31.000 | And it's my fault for not catching it.

00:37:35.000 | And so before I point out what possible red flags there may be or warning signs, I want to make sure that you're not blaming yourself, because there is a gigantic, multibillion-dollar industry out there that is designed to overcome your resistance.

00:37:55.000 | Once you learn these things, please understand that there's all kinds of effort to get you to ignore them anyway.

00:38:03.000 | And educating yourself about investments is not always the answer.

00:38:08.000 | You know, I'm a big fan of investment education, but you should beware thinking that you know more than you do.

00:38:18.000 | One of the books that's come out recently that I'm a huge fan of is How I Invest My Money, Finance Experts Reveal How They Save, and it's by Josh Brown and Brian Portnoy, and Christine Benz participated in it and a number of people.

00:38:33.000 | But it's about how these sophisticated investment professionals invest their own money, and I feel like I'm a fairly sophisticated investment, not professional, but certainly knowledgeable about the industry, and I'm an index fund investor.

00:38:51.000 | I have very boring investments.

00:38:54.000 | I think that's important to know that just because you see a TD Ameritrade ad that says, "Oh, Joe down the street is investing in options," you should be investing in options, too.

00:39:05.000 | Just because you learn about options doesn't mean you should be investing in options.

00:39:09.000 | How do you protect yourself from all of this?

00:39:12.000 | Some important things you can do to protect yourself include don't sign anything saying that you read a document if you didn't.

00:39:23.000 | Everybody I have has signed something that says they read a prospectus, not just that they received it, but that they read it and they understood it and they recognized all of these risks, and nobody reads these things.

00:39:38.000 | So, don't be signing those things.

00:39:41.000 | I mean, if I could do one thing in the world to protect investors, I would have convinced everybody, all customers, to stop signing those things.

00:39:52.000 | If you are being asked to sign something like that, you are probably investing in something complex, something that's not traded, something that's more complicated investment product than you need.

00:40:04.000 | So, if you take a look at that small print and it says in there that you read something and you understand it, take it home and read it and make sure you understand it before you sign.

00:40:16.000 | Yeah, that's difficult. I mean, I can tell you from years in the industry that, yes, people don't read things.

00:40:21.000 | I have to send out my ADV Part 2 because I have my website with all the disclosures on there.

00:40:28.000 | I have all this information and I'm just doing an hourly model and I have to have all these disclosures, but I know when somebody reads everything.

00:40:36.000 | And you know why I know? Because I'll get an email that said, "On page 37 of your ADV, at the bottom, you have a typo."

00:40:44.000 | You put the word, "It's IT apostrophe S," and you shouldn't have the apostrophe there.

00:40:49.000 | Okay, I know that they've read it, and I send them back an email saying, "Well, thank you for that. I appreciate it," and I fix it.

00:40:55.000 | But the point is that very few people read all of this, and I agree that they should, especially if you read the Arbitration Clause, which can be extremely complicated to read.

00:41:05.000 | But it's very important, I found out, to understand what your rights are if you end up going into arbitration.

00:41:11.000 | And a way to avoid having to read things. I mean, SEC commissioners have testified before Congress and said, "I don't read the prospectus for my investments," so they recognize nobody reads it.

00:41:29.000 | And I will freely admit, I don't read the prospectus for most of my investments, and I don't read the 10-Ks. I don't have time.

00:41:37.000 | I'm busy reading the 10-Ks and the prospectuses for my clients' investments.

00:41:43.000 | But I invest in fairly vanilla-type public investments, so that is a protection that I have.

00:41:54.000 | I do not invest in non-traded REITs or oil and gas, limited partnerships, or anything that's not publicly traded.

00:42:03.000 | And that's what those SEC commissioners are saying, too.

00:42:08.000 | Like, yes, they're not reading everything, but they are investing in public products, and so they're kind of relying on the market to take care of them.

00:42:18.000 | So that's my focus when I'm talking about those kinds of subscription agreements.

00:42:25.000 | Like, I don't have to sign a subscription agreement to invest in an index fund.

00:42:30.000 | I just buy it. I get a prospectus, or I can go online and look at the prospectus, but, you know, I just buy it.

00:42:37.000 | But if I'm going to invest in a non-traded REIT, oh, I have to sign some fancy paperwork.

00:42:43.000 | And I have to make a whole bunch of statements there saying that I've received things and that I've read things and that I meet certain criteria.

00:42:51.000 | And the vast majority of people who sign those things don't pay any attention. They just sign.

00:42:57.000 | And the advisor fills it out for them.

00:43:00.000 | So read everything.

00:43:01.000 | Read everything.

00:43:02.000 | At least reasonable, unless you're going to buy something generic like a total stock market index fund or something like that.

00:43:08.000 | But if you're going to buy anything exotic, make sure you understand it all.

00:43:11.000 | I've got to put insurance into this, like annuities.

00:43:13.000 | Oh, yes. Who has ever read an insurance policy other than me?

00:43:17.000 | The actuary who wrote it, maybe?

00:43:19.000 | Right. The lawyer actuaries who write it and me. And the lawyers who represent, you know, the issuer or the broker eventually.

00:43:29.000 | But, yes, they're ridiculously complicated.

00:43:33.000 | I have to hire an expert to figure out what the heck does this annuity really mean?

00:43:39.000 | It's ridiculous.

00:43:40.000 | So, yeah, for that reason alone, I would tell people never invest in an annuity, any form of annuity.

00:43:48.000 | Because I don't know of a broker who sold one that can explain it.

00:43:56.000 | But another thing that I see often is customers who sign forms that are blank.

00:44:05.000 | That happens way, way too often.

00:44:09.000 | And it's absolutely verboten.

00:44:14.000 | It should never, never, never be happening.

00:44:17.000 | It continues to happen.

00:44:19.000 | And, you know, people trust their broker when the broker says, "Oh, I'm just going to fill this in later. Don't worry about it."

00:44:29.000 | So they sign.

00:44:31.000 | And your reaction to it, Rick, is exactly what I think the way people should react to it, and yet they don't.

00:44:40.000 | A lot of people find out about financial advisors through some organization that they might belong to.

00:44:48.000 | It might be the church, a religious organization or something, especially a church.

00:44:52.000 | Because we had this happen in my family where my in-laws were taken to the cleaners by an insurance agent who they met via the church.

00:45:02.000 | The church endorsed this insurance agent, believe it or not.

00:45:06.000 | Then he ended up taking my in-laws to the cleaners.

00:45:10.000 | We got their money back through the Texas Insurance Bureau by filing against them.

00:45:16.000 | But affinity fraud, I think, is what it's called, correct?

00:45:21.000 | Exactly. Affinity fraud is a very powerful area.

00:45:29.000 | Because we, again, this is preying on how our brains work.

00:45:35.000 | We need to trust, to some degree, as human beings.

00:45:40.000 | One example, when you are driving down the street, do you evaluate every single car coming in the opposite direction to ensure that that car is staying on the right?

00:45:49.000 | No, we trust that people driving with us will keep to the right and will stop at stoplights.

00:45:58.000 | Because if we didn't trust them, then we wouldn't be able to be out driving.

00:46:05.000 | We are always looking for ways that we can rely upon the people around us to help us to make decisions.

00:46:16.000 | Before I hire somebody to replace windows in my house, I check with the guy at my office who I know replaced windows in his house last year.

00:46:27.000 | And I go with his guy, because I don't want to put in all the time to do all the research to figure out who to hire.

00:46:37.000 | That's what affinity fraudsters are counting on.

00:46:41.000 | They are counting on the fact that there will be a bunch of people who all belong to a church or a temple or some organization.

00:46:48.000 | And they will be looking for those kinds of shortcuts.

00:46:52.000 | And there's nothing wrong in theory with the shortcut, except that you can really, really go wrong.

00:47:02.000 | And if my windows go wrong, that's one thing.

00:47:05.000 | If my entire nest egg is stolen, that's a whole different issue.

00:47:11.000 | So you need to be extra careful.

00:47:15.000 | And that includes, by the way, family members.

00:47:19.000 | There are family members who may start up as investment advisors.

00:47:24.000 | And you should be as careful with them as you would be with somebody who you had no connection with.

00:47:32.000 | I've seen that happen.

00:47:34.000 | And one way to do that is to set up a system to say, well, I'm just going to do this.

00:47:42.000 | This is my process.

00:47:43.000 | And then when you're asking that professional who's part of your church, when you're starting to work with that person, you ask for all of this documentation.

00:47:53.000 | And you say, oh, this is just something I keep for all my investments.

00:47:57.000 | So I have to have this.

00:47:59.000 | At least then you will have more than what most people have, which is nothing.

00:48:06.000 | They start investing with somebody who's at their church, and they don't check account statements or they don't look at the substance of the investment.

00:48:18.000 | They don't do any due diligence at all.

00:48:21.000 | And they lose everything.

00:48:24.000 | And it's really tragic.

00:48:27.000 | Let me ask a question for people who have older parents.

00:48:31.000 | My mother is 90.

00:48:32.000 | My father passed away a few years ago.

00:48:34.000 | She's very sharp still.

00:48:36.000 | But how would I know or anybody know the signs of financial exploitation?

00:48:45.000 | In other words, how do I pick up by going over to her apartment and talking with her, looking around, this and that?

00:48:51.000 | How do I start to pick up clues that things are not right?

00:48:55.000 | Well, one thing to look at is just how well is your family member taking care of other things in their lives?

00:49:05.000 | Are they keeping up with maintenance on the house?

00:49:08.000 | Or just are there lots of financial statements or other envelopes that aren't opened?

00:49:17.000 | That's something to be concerned about if they're just piles of mail.

00:49:22.000 | And what kinds of things is your mother or your family member talking about?

00:49:28.000 | Are you hearing about a particular friend who's becoming very influential?

00:49:35.000 | And maybe ask questions about that.

00:49:38.000 | I think an important thing that family members should do, and this can be so tough, is talking to older family members about what their plans are.

00:49:52.000 | And I know it sounds like you're a vulture, you know, swooping in.

00:49:56.000 | But I had many years of difficulty in getting my husband to finally do an estate plan.

00:50:03.000 | We are a dual lawyer family.

00:50:05.000 | But, you know, we had issues about who would have the kids if we, you know, something happened, we didn't agree on it.

00:50:11.000 | And so we just did nothing, which was absolute idiocy.

00:50:14.000 | But once we did it, the importance of it was not as much what's going to happen to our money after we die,

00:50:24.000 | but what guidance and assistance are we giving to our children for our older years should something happen to us?

00:50:35.000 | If we have strokes, if we are in a car accident and lose our cognitive abilities or they're significantly impaired,

00:50:44.000 | we have a manual now for our children so they know what to do.

00:50:49.000 | And that's a gift we are giving to them.

00:50:52.000 | And that's, I think, a conversation to have with parents to say, look, I don't care what you do with your money after you're dead.

00:51:00.000 | You can give it to whoever you want.

00:51:02.000 | But please give me guidance.

00:51:04.000 | Give your children guidance about what you want done during your life.

00:51:10.000 | We would like that.

00:51:12.000 | And there are lots of resources for that.

00:51:14.000 | But one of the most important and the way that I went about finally convincing my husband to do this is working with NALA attorney.

00:51:23.000 | It's N-A-E-L-A.

00:51:25.000 | It's the National Association of Elder Law Attorneys.

00:51:28.000 | And they have a high ethical standard.

00:51:31.000 | And I have worked with many in that group.

00:51:34.000 | And that's where I would start.

00:51:36.000 | There are situations where people, you know, older folks have a full estate plan that has been done.

00:51:44.000 | But they're very private and they don't provide those documents to their family members.

00:51:51.000 | And in particular, if you have a living trust and you have successor trustees, should you become disabled, you really should let those successor trustees know and give them a copy of that document.

00:52:05.000 | I had a very tragic case.

00:52:09.000 | A woman who was older, had no children herself, had never been married, but had a loving family, extended family.

00:52:18.000 | And she lived some distance from her family, though.

00:52:22.000 | And she developed dementia and other physical problems.

00:52:25.000 | She had been befriended by her financial advisor's family.

00:52:30.000 | This was kind of a family business, you know, the financial advisor.

00:52:34.000 | So when she developed dementia, she signed a power of attorney to the wife of the financial advisor.

00:52:40.000 | And the wife and family took over her life and blocked her family, prevented her family from coming and having contact with her, and threatened the family when they said that they were thinking about establishing guardianship.

00:52:59.000 | And it was terrible. But the thing that the family did not know for another eight years until D, this person, died was that a number of them were the successor trustees.

00:53:13.000 | And this financial advisor knew that because the financial advisor had a copy of the trust documents because accounts were in the name of the trust.

00:53:22.000 | So this person had done what she needed to do, but her desperate desire for independence and privacy undercut the entire plan.

00:53:35.000 | And one other thing that I think is very useful, I received a call about a week ago from somebody who was just talking about setting up new accounts and just was asking for advice as an older investor.

00:53:48.000 | And the biggest thing that I think everyone should have is checks and balances.

00:53:54.000 | If you are an older person who doesn't have family or friends that you feel comfortable having knowledge of your finances, or maybe you just don't have family, set up a system with an accountant or a lawyer or a service to receive your bank statements and your investment accounts and make sure that you've got at least two who are not connected.

00:54:20.000 | And then those people or entities can be just kind of keeping an eye out. Are you paying your mortgage? Are you keeping up with the electric bill and other bills? And are you suddenly investing in some crazy ass things? Or are you kind of chugging along the way you should be?

00:54:42.000 | Final question. This is a real topic of discussion at the SEC and FINRA, elder abuse. And there have been some new rules and some new laws that have been enacted. Can you briefly talk about some of the new rules and laws?

00:54:58.000 | Some of the most important things from the industry side and that the SEC is dealing with is how do we balance? What do we do as an industry when there are signs of financial exploitation of someone who's older?

00:55:16.000 | There are privacy provisions in the securities laws. So brokerage firms can't just go out and call a family member or report these issues because there are laws in place that protect the privacy of our financial accounts.

00:55:32.000 | So the SEC and Congress addressed some of this and in a number of different ways. One way is that you can now designate somebody and you should be asked on all of your accounts to designate a trusted contact person.

00:55:49.000 | And that is somebody who you consent to your brokerage firm or your investment advisory firm contacting in case anything fishy happens. If you start calling, for example, and like a great aunt of mine did and start transferring money to the Nigerian prince because you're getting calls from this nice person over and over again.

00:56:14.000 | The firm then could call this trusted contact about and say, hey, we just want to let you know that this is happening.

00:56:22.000 | You know, that didn't happen with my great aunt. And unfortunately, a lot of money went to the Nigerian prince before we had any idea that this was happening.

00:56:34.000 | Now, this is a FINRA amendment.

00:56:36.000 | That is right. So it is just for brokerage firms that that would apply. So that's an important factor. There are other things that are being looked into in terms of permitting brokerage firms to be able to put holds on accounts.

00:56:51.000 | We are struggling here with the rights of older investors who may develop disabilities. They have a right to make bad decisions, to be able to maintain their autonomy and do things maybe that that somebody else might question.

00:57:13.000 | But this is a really tough situation to be in. And it's tough for anybody. It's tough for lawyers to be struggling with somebody who is showing signs of having cognitive impairments.

00:57:28.000 | The Americans with Disabilities Act protects people with disabilities and folks have the right to as much autonomy as they can handle. And they can't be discriminated against because of that disability.

00:57:43.000 | On the flip side, we have trillions of dollars in the hands of older folks who've saved it up their whole lives. And it's a tempting target for fraudsters.

00:57:55.000 | So I'm going to just sum things up here a little bit. The way to prevent this is to prevent it before going in. In other words, prevent it from happening as opposed to trying to unwind it after it happens.

00:58:09.000 | Because after it happens, it can be, number one, devastating to seniors. And number two, it could take years to unwind it. That's even if you have an attorney. So the idea is prevention.

00:58:24.000 | Absolutely. That's why I do what I do. It is very tough to have to talk to lots and lots and lots of people who call. And I can't help them.

00:58:37.000 | And that breaks my heart. And so that's why I go to Washington. And that's why I talk with you. And that's why I publish things, because I want that to happen less.

00:58:47.000 | Well, Lisa, it's been really a wonderful conversation. Thank you so much for giving us your time today. Best of luck with your campaign to try to protect investors.

00:58:56.000 | Thank you so much, Rick. It's been great talking with you.

00:58:59.000 | This concludes this episode of Bogleheads on Investing.

00:59:02.000 | Join us each month as we have a new guest. In the meantime, visit Bogleheads.org, BogleCenter.net, the Bogleheads Wiki, get involved in your local Bogleheads chapter or a virtual community, and tell others about it. Thanks for listening.

00:59:19.000 | [Music]

00:59:28.000 | (upbeat music)

Bogleheads® on Investing Podcast 036 - Lisa Bragança, host Rick Ferri (audio only)

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