A "lost gains" case is one in which the claimant is asking for gains they believe they should have earned but did not. These cases are different from the traditional securities litigation, where the claimant is asking for actual losses that have been incurred.
Because the damage theory involves foregone gains instead of out-of-pocket losses, lost gains cases are generally considered to have a higher degree of difficulty.
On the face of it, this is common sense. If an investor puts $10 million into an account and it declines to $5 million. Most arbitrators can understand how the client has been damaged. However, if the same investor puts $10 million into an account and six years later it's still worth $10 million, this is likely to generate less sympathy.
However, in my experience, lost gains cases can represent some of the most abusive fact patterns.
In the lost gains cases I have been involved with, the client’s accounts were essentially treated as an ATM for the Registered Representative. These fact patterns involved extremely high fees charged for products that were churned into and out of the accounts at issue (as well as account-level fees). The results were that the Registered Representative appropriated the growth of the accounts.
What growth wasn't appropriated was lost to the short-term holding of the investments. That is, the investments were never invested as intended and allowed the time needed to generate returns.
In these cases, the clients were invested during strong bull markets but did not participate because of the abusive nature of the trading in their accounts.
Six years later, they had experienced no growth while their Registered Representatives had made millions (literally). In a bear market, such a pattern would exacerbate the decline in the accounts due to market forces and be discovered much sooner. Bull markets hide these kinds of abuses, and the current historic bull market will surely be no exception.
However, what is different this time is the SEC’s pending Regulation Best Interest (“RBI”), which could be made law before the market declines.
Lost Gains Cases Under Regulation Best Interest
Under SEC Regulation Best Interest, lost gains cases should be easy.
This is because the burden of proof will be on the respondents to show their strategy was in the client's best interest and, as I've discussed in my RBI blog post series, they will need to produce contemporaneous evidence of their analyses showing how they came to that conclusion.
In the fact pattern discussed above, this will be impossible. Furthermore, a key defense will be removed.
Long-Term Time Horizons and the Risks of “Time Diversification”
In many securities litigations, a client's long-term time horizon is used as a defense to justify aggressive investments. The logic is that the longer an investment is held, the less likely it is to generate a loss. This is known as “time diversification”. The problem with time diversification is that it is, at best, only partially correct, at worst it is a setup for disastrous portfolio decisions.
The paradox of time diversification is that in order to benefit from higher returns (in equities usually) the client must increase their risk of interim declines in order to reduce their risk of a terminal loss.
If RBI becomes law, the long-term time horizon will take on a different implication.
Time Horizon, Fees, and Taxes under Regulation Best Interest
It has always been true that the longer a client's time horizon, the more important minimizing fees and avoiding taxes become. This is not a matter of debate. This is not something that reasonable minds can differ upon. This is a 100 percent mathematical certainty.
Under RBI, this will become a key focal point.
If a client with a long-term time horizon is put into high fee products, charged high account-level fees, and/or churned into and out of commission product on a short-term basis, there is no way to argue it is in their best interest.
For instance, if fees can be reduced by one full percentage point per year, in 30 years time, the difference in terminal values will be about 30 percent.
For taxable accounts, the difference can be even more stark. Annual after-tax returns of mutual funds often fall between one and two full percentage points compared to their pre-tax returns (the ones that are advertised).
When combined, high expenses and tax-inefficient investing destroy investor returns. In such a scenario, the broker, investment manager, and government all get paid before the investor, who is taking all the risk.
Furthermore, the deleterious effects of high fees and taxes are completely return agnostic. The return-destroying math holds true through all markets, good, bad, or sideways and compounds over time, to the investors disadvantage.
Costs Under Regulation Best Interest
While cost is not the only factor when evaluating an investment or investment strategy, it is one of the most important, if not the most important. The customers tax status is also critical, which is why it is part of the profiling required under FINRA Rule 2111 and under RBI.
RBI requires the Registered Representative undertake a fact specific analysis before the recommendation is made. As mentioned above, this analysis will need to show why the recommended investment or strategy is in the best interest of the client compared to other investments offered by the firm.
Any firm that can effectuate stock transactions for a client can purchase index ETFs for the same client (and most will have selling agreements with index mutual fund providers). Thus, virtually every Broker-Dealer will be required to show why their investment or strategy recommendation is better over the long-term than an index ETF or mutual fund on a net after-fee, after-tax basis (for their long-term investors).
This will present a significant hurdle for BDs because almost all equity investors are categorized as long-term investors, which is as it should be.
Thus, all client accounts with a long-term time horizon will require an analysis that justifies the fees charged and taxes generated compared to low-fee, low-tax alternatives such as index ETFs and mutual funds. In my opinion, this analysis will have to be rigorous, mathematical in nature, and be based on conservative assumptions.
Supervision to Avoid Lost Gains Cases
Supervisors will need to insure their Registered Representatives have undertaken a fact specific analysis for all their clients. For those clients with a long-term time horizon, supervisors will need to insure the analyses comport to industry standards, reflect the client’s best interest given their particular facts and circumstances, and that the findings are reflected in the client’s portfolio.
 Regulation Best Interest; Jack Duval; Available at: http://blog.accelerant.biz/blog/topic/regulation-best-interest; Accessed October 4, 2018.
 “The Myth of Time Diversification: Analysis, Application, and Incorrect New Account Forms”; Jack Duval; PIABA Bar Journal; Spring 2006; Available at: http://blog.accelerant.biz/myth-of-time-diversification-whitepaper-0; Accessed October 4, 2018.
 Statistically, the risk of interim declines is known as “first passage time probability”.
 Reducing Attorney Fees (Investment Fees, that is); Jack Duval; Available at: https://blog.bant.am/index.php/2018/04/03/reducing-attorney-fees-investment-fees/; Accessed October 4, 2018.
 Taxes – Another Killer of Attorney Returns; Jack Duval; Available at: https://blog.bant.am/index.php/2018/06/04/taxes-another-killer-of-attorney-returns/; Accessed October 4, 2018.
 Wealth Confiscation by Your Three Investment “Partners”; Jack Duval; Available at: https://blog.bant.am/index.php/2018/09/07/wealth-confiscation-by-your-three-investment-partners/; Accessed October 4, 2018.
 SEC Regulation Best Interest – Reasonable Care; Jack Duval; Available at: http://blog.accelerant.biz/blog/sec-regulation-best-interest-reasonable-care; Accessed October 4, 2018.
 Under RBI, the Retail Customer Investment Profile includes “tax status”; SEC Regulation Best Interest; Release No. 34-83062; File No. S7-07-18; 406. Available at: https://www.sec.gov/rules/proposed/2018/34-83062.pdf; Accessed October 4, 2018.
 A separate issue is investments not offered by the firm. This will likely come up for advisors who only sell one type of product such as insurance. This is a key difference between RBI and the fiduciary duty imposed upon Registered Investment Advisors. An Investment Advisor's duties are not limited to the products their firm sells. This is a non-trivial difference and a significant shortfall in RBI.
 Short-term investors should not be invested in equities. The received view is that only funds which can be held for five years or more should be invested in equities, although some authors suggest avoiding equities unless having a 12-year time horizon.
To learn more about fiduciary expert Jack Duval, click here.