The decision to deny all of the claims that sought more than $7.56 million in compensatory damages plus unspecified punitive damages, attorneys' fees, interest and other relief was made by a Financial Industry Regulatory Authority arbitration panel on Sept. 6.
But the decision was not unanimous. One arbitrator on the three-person panel dissented the decision to deny all of the claimants' claims. More details on that decision was not made public.
"We are always deeply disappointed with that kind of result," said a lawyer for the claimants, Dale Ledbetter, who is based out of Fort Lauderdale, Fla.-based law firm Ledbetter & Associates.
The claimants include David and Rachel DeBerry, who had set up IRA retirement accounts for themselves, as well as six trusts for their children. Their portfolio was more than 50% concentrated in various RMK funds sold by Morgan Keegan. In their claim, the DeBerry family alleges fraud and negligent misprepresentation, failure to supervise, breach of contract and fiduciary duty and negligence.
Morgan Keegan's RMK funds named in the claim have been subject to regulatory scrutiny, which culminated in a $200 million consent order between the firm and FINRA, the Securities and Exchange Commission and various states last year. But Morgan Keegan has vigorously fought individual arbitration claims tied to the funds that were linked to subprime mortgage-backed securities. And some of those cases have proven difficult to win.
That is due in part to the fact that the consent order between Morgan Keegan and the regulators is not always part of the arbitration process, Ledbetter says. Some panels refuse to consider it, while other panels either allow it to be considered or allow the arbitrators to read the decision while not permitting it to be mentioned in hearings.
One other key influence that has changed the tide in the outcome of these arbitrations, Ledbetter said, is a decision made by FINRA about two years ago that required an arbitrator to sit on no more than one case tied to Morgan Keegan's funds. Instead of drawing from a local pool of arbitrators, the cases now must solicit arbitrators nationally. Some of those panels are "more sensitive to giving large awards," Ledbetter said. To date, Ledbetter's practice has represented 200 claimants tied to Morgan Keegan's RMK funds and has about 30 cases currently.
"In the early days of these cases, Morgan Keegan was losing a very high percentage of the cases," Ledbetter said. "That's changed as the structures of the panel have changed."
Last month, another FINRA arbitration panel also shot down another investor's claims for more than $1 million after he said his broker misled him about his investments in Morgan Keegan's funds. That investor still had the responsibility to do his own due diligence, the panel ruled. But there have been large awards for claimants in these cases, including one for $9.2 million on behalf of 43 investors in October 2010.
To date, 209 arbitration cases associated with the RMK funds have been tried, according to Morgan Keegan. In 50% of those cases, no awards were given to claimants. Overall, less than 15% of the money sought by claimants has awarded to them in arbitration.
The fact that one arbitration panel member dissented in this case could support efforts to appeal the FINRA panel's decision. Ledbetter declined to comment as to whether his clients will pursue that route.
Morgan Keegan declined to comment on the arbitration panel's decision.