It is easy to determine how a broker will respond to a crisis, quite easy. He will blame his customer. The broker will say “yes my advice was bad, but the customer is at fault for being such a schmuck as to follow my bad advice.” This is called “passing the buck,” or “blaming the victim,” and it is the standard response of the guilty party. If you doubt this, just look at children and study their reactions when accused of misbehavior. Better yet, talk to inmates at the local penitentiary.

Are brokers any different? Yes, they are smarter. They have taken the “pass-the-buck and blame-the-victim” approach, and they have tried to turn it into law. Essentially, they have legalized the child’s standard response to accusations, replacing excuses with technical jargon. They use terms like discretionary and non-discretionary, and solicited and unsolicited. What do these mean?

There are two general types of investments accounts: non-discretionary and discretionary. A non-discretionary account requires the broker to obtain authorization before it makes any investment decisions. A discretionary account allows an investment broker to make account transactions without the client’s prior approval. The problem is twofold: (1) brokers often treat non-discretionary accounts as if they were discretionary, and (2) brokers do not adequately explain the difference between the two accounts to the customer.

Suppose you, the average investor, open an account with a brokerage firm. Chances are you will do so without knowing whether the account is discretionary or non-discretionary. Down the road, the broker messes up, defrauds you, and makes grossly unsuitable investments. You want to take legal action, but you are uncertain. What will be the broker’s defense? He will say the account was non-discretionary and deny responsibility. In other words, he will blame you. He will say you were in control of the account, not him. No doubt, this is news to you. After all, the broker acted like he was in control. There was implicit understanding that he was in control. The only basis the broker has for saying that he was not in control is the non-discretionary status of the account. This is called “getting off on a technicality.”

How do you overcome this defense? How do you prove that the broker was in control, even though the account was non-discretionary? Answer: You have to prove the broker “assumed” or “usurped” control of your account.

A broker is not insulated from a charge of unsuitable trading merely because the customer did not vest the broker with formal written discretionary authority. Rather, where it can be shown that the customer-broker relationship is such that the broker in fact manages the trading in the account, control will be found. In re Thomas McKinnon Secs., CCH Fed Secur L Rep ¶ 99104 (1996, SDNY). Typically, this occurs when the customer evinces such trust and confidence in his or her broker that the customer invariably follows the broker’s advice and recommendations. See Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2nd Cir. 1977); Mihara v. Dean Witter & Co., 619 F.2d 814 (9th Cir. 1980).

The question is whether the customer has sufficient understanding and financial acumen to evaluate the broker’s recommendations and reject them when the customer thinks it inappropriate. See Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2nd Cir. 1977); Carras v. Burns, 516 F.2d 251 (4th Cir. 1975); Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2nd Cir. 1977).

Where the customer is relatively naive and unsophisticated, and the customer routinely follows the broker’s advice, control will generally be found. Mihara v. Dean Witter & Co., 619 F.2d 814 (9th Cir. 1980); Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (9th Cir. 1980). While an otherwise intelligent customer will not be allowed to hide behind a mask of ignorance, the customer’s sophistication and success in one area of life will not necessarily mean that he or she will be found sophisticated enough to understand all the risks of a particular investment or trading strategy, so as to protect the broker from a finding that the broker controlled an account. Clark v. John Lamula Investors, Inc., 583 F.2d 594 (2nd Cir. 1978); Cruse v. Equitable Sec. of New York, Inc. 678 F.Supp.1023 (SDNY 1987).

Whether or not a broker controls the trading in his or her customer’s account is a question of fact. Control may exist as a result of an express written agreement between the broker and the customer, or may be inferred from their particular relationship. Fey v Walston & Co. 493 F2d 1036, CCH Fed Secur L Rep ¶94437, 18 FR Serv 2d 835 (7th Cir. 1974); Newburger, Loeb & Co. v Gross (1977, CA2 NY) 563 F2d 1057, CCH Fed Secur L Rep ¶96148, 1977-2 CCH Trade Cases ¶61604, 24 FR Serv 2d 42 (2nd Cir. 1977), cert denied 434 US 1035, 54 L Ed 2d 782, 98 S Ct 769, appeal after remand (CA2 NY) 611 F2d 423, 28 FR Serv 2d 602.

To determine whether a broker exercised de facto control over trading in a non-discretionary account, courts look to several factors. Zaretsky v. E.F. Hutton & Co., 509 F.Supp. 68 (SDNY 1981); In re Thomas McKinnon Secs., CCH Fed Secur L Rep 99104 (SDNY 1996). Of critical importance are the personal characteristics of the customer, such as his or her age, education, general intelligence, and business and investment experience. Control is likely to be found where the customer is particularly old, young, lacking in education, or was inexperienced in the stock market or lacked financial sophistication Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (9th Cir. 1980) (finding control when customer was particularly old); Kravitz v Pressman, Frohlich & Frost, Inc., 447 F.Supp.203 (Mass. Dist. Ct. 1978) (finding control when customer was particularly young); Leib v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (E.D. Mich. 1978) (finding control when customer lacks education); Carras v. Burns, 516 F.2d. 251 (4th Cir. 1975) (finding control when customer lacks education or is inexperienced in the stock market or is lacking financial sophistication).

Another factor closely examined by the courts is the relationship between the broker and customer, whether it was an arm’s length business relationship or a combination of business and friendship.

Also significant are the reliance placed on the broker by the customer. Fey v. Walston & Co., 493 F.2d 1036 (7th Cir. 1974); Petrites v. J.C. Bradford & Co., 646 F.2d 1033 (Fla. 5th DCA); Marshak v. Blyth Eastman Dillon & Co., 413 F.Supp. 377 (ND Okla 1975). If a broker has acted as an investment advisor, and particularly if the customer has almost invariably followed the broker’s advice, the fact finder may consider this as evidence that the relationship is discretionary and that the broker owes a fiduciary duty to the customer. Patsos v. First Albany Corp., 433 Mass. 323, 741 N.E.2d 841 (Mass. 2001).

A course of dealing in which a broker executes trades without client’s prior approval suggests that the account is discretionary for purposes of broker’s fiduciary duties; similarly, if a broker has acted as an investment advisor and client has frequently relied on that advice, there is a strong indication that the account is discretionary. In re Murphy, 297 B.R. 332, 41 Bankr. Ct. Dec. (CRR) 226 (Bankr. D. Mass. 2003).

Past evidence of following broker’s advice will establish control. If a broker has acted as an investment advisor, and particularly if the customer has almost invariably followed the broker’s advice, the fact finder may consider this as evidence that the relationship is discretionary and that the broker owes a fiduciary duty to the customer. Patsos v. First Albany Corp., 433 Mass. 323, 741 N.E.2d 841 (Mass. 2001).

As noted by the Second Circuit, a broader duty may be recognized in a non-discretionary account in the following circumstances:

(1) if the broker has engaged in unauthorized transactions or has otherwise effectively taken over the handling of an account even though it is labeled as a self-directed account;

(2) if the client is prevented by “impaired faculties” or extreme lack of sophistication from understanding the basics of trading and thus simply lacks the capacity to handle such an account;

(3) if the broker “has a closer than arm’s length relationship” with the client;

(4) if the broker violates legal or industry requirements concerning risk disclosure when opening an account; or

(5) if the broker offers advice on a specific transaction that was “unsound, reckless, ill-formed, or otherwise defective.”