Suing Your Broker After the Crash

When the stock market corrects again it will be the seventh or eighth time that it has since I began working on Wall Street in the mid-1970s. Corrections are always studied and talked about after they occur.  Corrections really need to be identified before they occur because they  always result in losses in accounts of smaller, retail investors. And they always result in a spike in litigation by those customers who wish to blame their brokers for their losses.

One of the reasons that the number of customer claims will go up is that in a rising market customers have fewer losses. That does not mean that the broker’s conduct was correct, just that it did not cost the customers money or that they could not see the losses or bad conduct until the market went down.

In the normal course, customers that have disputes with their stockbroker do not end up in court. Almost all of the cases are resolved by a panel of arbitrators at FINRA. It is a lot quicker and cheaper and in the vast majority of the cases, the customer walks away with a check for at least a portion of the amount lost.

Securities arbitration was the one consistent part of my professional practice. I worked on my first claim while still in law school. I represented mostly the brokerage industry for the first 15 years that I was in practice and mostly customers for the last 25 years. In all I represented a party or served as an arbitrator in almost 1500 cases. Some were unique and interesting; most were fairly mundane.

There are a few hundred lawyers around the country who specialize in securities arbitration representing customers.  Arbitration is intended to be simple enough that any customer can file and prosecute a claim themselves. But in every case the brokerage firm is going to be represented by a good lawyer and put on a competent defense. Even if you have the most mundane claim you need proper representation.

I have worked closely with about 2 dozen customer representatives over the years and like any other profession, some were better than others.  The best have all spent some time working in house for large brokerage firms.  They understand how the firms operate, what records the firms need to keep, how brokers are actually supervised and what defenses the firms are likely to have.

Do not be afraid to hire a representative that is not an attorney.  My fellow lawyers refuse to acknowledge that a retired branch office manager can often question the conduct of a broker better than anyone else.  For most of the claims that I handled I worked with a team that included both a lawyer and a non-lawyer who had worked in the industry for many years.  The latter was invaluable to every successful outcome.

Many lawyers think that securities arbitration is about the law, which it is not, nor has it ever been.  Arbitrators are not judges. They are not required to know the law, follow the law or to read legal briefs. Arbitrators are fact finders. They want to know who did what and why.  Too many lawyers approach securities arbitration as if they are presenting the case in court. It is the single biggest mistake and the single biggest reason why customers lose these claims.

Beginning in the late 1980s there began to be a lot of product related claims where the investment was itself defective.  Prudential Securities for example put out several billion dollars worth of public and private limited partnerships. Some were defective because the disclosures were not accurate or the due diligence was shoddy; others because the advertising and representations minimized the risks or projected returns that were unsupportable.

Over the years I have seen real estate funds where one appraisal of the property was sent to the bank and a second, higher appraisal went to the investors. I have seen “North American” bond funds full of bonds issued by South American companies and funds and ETFs full of derivatives that no investor could understand. Those claims are relatively easy to win. But it does help if you have a clear understanding of what the proper disclosures should have been.

There are always claims that stem from an individual broker’s bad conduct. Sometimes a broker will place an order without calling the customer for permission first. That is clearly against the rules and a customer is entitled to be compensated for any loss that occurs. If it happens it is easy to prove as the telephone records and the order are both time-stamped. Either the phone call preceded the order or it did not.

Sometimes a broker will help a customer trade an account or recommend a lot of buys and sells in a short period of time. Trading is not the same thing as investing.  Most traders, because they are making a lot of trades are concerned about how much commission they are paying on each one. That is why most traders gravitate to one of the low commission discount firms.  When you see a trader paying high commissions per trade and making a lot of trades it is usually a problem.

When the market comes down again, some of the losses will be the result of bad products and bad brokers.  However, most of the losses that the customers will suffer will be the result of staying in the market too long.  They will not be the victims of fraud but of simple negligence, as the claims will be based upon violations of the brokerage industry’s suitability rule.

The suitability rule is something that stockbrokers and their supervisors deal with every day. Notwithstanding, lawyers representing customers seem to have a hard time explaining it and how it is violated to arbitration panels.

Simply stated the suitability rule requires that a broker have a reasonable basis every time they make a recommendation to a customer to either, buy, sell or hold onto a security.   As it is written the rule sets forth a course of conduct for stockbrokers and requires them to get pertinent information about the client’s financial situation and tolerance for risk.

The typical defense is that the customer checked the box on the new account form that said he was willing to accept some risk or was willing to accept something other than conservative, income producing investments. This customer-centric view gives defense lawyers a lot of latitude to confuse arbitrators and will befuddle a lot of claimants when they file claims after the next crash. The proper way to view the suitability rule is to focus on the investment and the recommendation, not the customer.

In the normal course the only reason for a broker to recommend that a customer purchase any security is because the broker believes that the price of that security will appreciate in value. When they think the price will appreciate no further, they should recommend that the customer sell the position and move on to something else. The broker does not have to be correct, but he must have a reasonable basis for his belief.

Brokers and investors all over the world have for decades used the same methods to determine which securities will appreciate and which will not. It is called fundamental securities analysis and it is taught in every major business school.  Most of the large firms have cadres of analysts who write research reports based upon this type of analysis. Most of those reports set forth the analysts’ opinion of a target price for the security they are reviewing.

Deviating from that analysis will always get the brokerage firms in trouble.

That is what happened in the aftermath of the crash in 2000-2001.  Many of the claims from that era were the result of conflicted research reports. The firms were competing to fund tech companies and were funding companies that had few assets other than intellectual property and fewer customers if any.

I had several prominent research analysts on the witness stand who basically explained to arbitrators that they had to make up new ways of analysis because the internet was so new. That was BS, of course, and those “new” formulas were never disclosed to the investors or for that matter, never the subject of an article in any peer-reviewed journal.

Markets never go straight up for as long as this one has without a correction. I think that a lot of people seriously believe that a market correction or a crash is coming sooner rather than later. It may happen next week, next month or next year but it will happen.  I can say that because there is a lot of empirical data to support that position.

For example: 1) price/earnings ratios of many large cap stocks are at the high end of their ranges and when that happens prices come down until they are closer to the middle of the range; 2) employment is very high meaning wages should go up impacting the profits of many companies; 3) interest rates are rising which will cause people to take the profits that they have made in stocks over the last few years and convert them to safer, interest paying instruments; 4) rising interest rates also curtail borrowing, spending and growth; 5) an international tariff/trade war came on the markets suddenly and its impact has yet to be shown; 6) the global economy is not that good which should decrease consumption and prices; 7) oil prices keep rising and gas prices along with it because of international political uncertainty which adds to the cost of everything that moves by truck, which is virtually everything; 8) there is a lot of bad debt in the marketplace (again) including student debt, sub-prime auto loans and no-income verification HELOCs; 9) real estate prices are very high in a lot of markets and in many markets the “time on the market” for home sales is getting longer; and, 10) the increased volatility of late is itself never a good sign for the market because investors like certainty and stability.

None of this means that the market will necessarily go down but all of it needs to be considered. And that is really the point.  Many so-called market professionals urge people to just stay in the market no matter what. They claim that they cannot be expected to call the top of the market. They argue that the market will always come back, so what does it matter if you take some losses now.

Any investor who has made money during this long bull market should want to protect those gains. Any broker who is smart enough to advise clients when to buy a security, should be smart enough to tell them when to sell it.  Any advisor who keeps their clients fully invested when there are indications that a correction may be imminent is going to get sued and frankly deserves it.

The brokerage industry has always had a prejudice that suggests that customer should always be fully invested.  Brokers who work on a commission basis are always instructed that any customer with cash to invest should invest. Likewise, as the industry has morphed away from commissioned brokers to fee-based investment advisors, those advisors want to justify those fees by having a portfolio to manage not just an account holding a lot of cash.

Registered investment advisors are likely to be especially targeted by customers seeking to recover losses they suffer for a number of reasons. Many are small shops that do not employ a large stable of research analysts.  Many advisors just buy funds and ETFs and allocate them in a haphazard way because they really do not understand how asset allocation actually works. This is especially true of robo-advisors that are not programmed to do any analysis at all or to ever hold a significant amount of cash in their customers’ accounts.

All investment advisors including robo-advisors are held to the highest standard of care, that of a fiduciary. Any fiduciary’s first duty is to protect the assets that have been entrusted to their care. Any customer of a stockbroker or investment advisor should have a reasonable expectation that the profits they have earned will be protected.

I am posting this article on the evening before the US mid-term elections and on the day that the US re-imposed economic sanctions on Iran. Both may have significant effects on what will happen in the stock market in the next few months and beyond. Analysts may differ on what they believe those effects will be. But that is not an excuse to do no analysis at all.

The markets are driven by numbers and any broker or advisor who believes that they can offer advice without looking at those numbers has no business calling themselves a professional.  To the contrary, any advisor who tells you to stay in the market because no one can know when it will stop going up or that it will come back if it goes down is just playing you for a fool.

 

 

Defining Investors’ Best Interests

In the spring of 2016 the US Department of Labor (DOL) issued new rules which sought to change the landscape for investments held in retirement accounts.  The DOL sought to extend the rules governing how large pension plans and 401(k) accounts were managed to every IRA account held by individuals.

The regulations were a thousand pages long, the result of 6 years of discussion and millions of dollars of lobbying by various players in the financial services industry.  To no one’s surprise that lobbying paid off and the final rule was a watered down version of prior drafts that had actually excluded some of the riskiest investments from all retirement accounts.

The final rules also allowed brokerage firms to create exemptions if the rules did not fit specific individual accounts that were called “best interest of the investor” exemptions. The current administration in Washington and several courts have stopped these rules from being implemented.  The discussion of what investments and investment strategies are in the “best interest of investors” continues.

At no point along the way did the regulators, industry or consumer groups ask investors what they thought would be in the best interest of their retirement accounts. Had anyone done so, they would have been told that investors would be very happy if their retirement account was worth more today than it was a year ago and worth more in one year than it is today.

Before you scream “impossible” I think you should consider that even though no one can win every year, it is important that you at least try.  If you clear your head of all the BS that you hear about the stock market and investment advice and start at the basics, you will see it is not as difficult as many people think.

The primary reason that anyone ever buys a stock is because they believe that the price of that stock will go up.  When the price does go up to where you think it will go no higher you sell the shares.  You may not be right every time but you can certainly be right most of the time and you should be happy with that.

Selecting investments takes time, effort and skill.  The large brokerage firms and investments banks will usually have a fairly large research department and the best ones seek out and hire the best analysts in each industry. In order to “cover the market” a firm may have analysts that will be analyzing companies from 15 different industries if not more.  An analyst with expertise in the automotive industry might not understand the banking industry and neither might be able to understand the value of drugs that the large pharmaceutical companies have in the development pipeline.

The truth is that no one firm has the best analysts in every industry.  That is one reason large institutions frequently deal with multiple firms so they have access to research reports prepared by the analysts they think are the best in each industry.

Beginning in the mid-1990s a lot of stockbrokers began to abandon the traditional business model and the large firms and transformed themselves into self employed Registered Investment Advisors. This was a result of their commission income being under attack from discount brokerage firms that charged much less. It was not unusual for a customer to have an account at one of the wire houses to get access to the research, buy 100 shares through that firm and 900 shares of that stock through their account at a discount firm.

After the tech wreck in 2001 it became clear than many of the “best” analysts covering the tech industry were conflicted.  They were following companies that were grossly overpriced but which were bringing in large underwriting and investment banking fees, so the firms found ways to “value” companies with no revenue claiming it was appropriate for them to do so.

The result is that many of the newly minted investment advisors were willing to leave the research analysts behind. They convinced themselves and their customers that they could be portfolio managers even though they lacked the most basic tools to do so.

This led to the rise of asset allocation using mutual funds and ETFs. The argument was that the losses from the tech crash arose because people had too much of their portfolio in tech stocks. Diversify your portfolio became the new mantra of the market. Buy large baskets of stocks and you will never have to worry again. 

Asset allocation had been around since the 1950s. The purpose of a diversified portfolio is to reduce overall portfolio risk.  If one or two market sectors do poorly, your losses would be balanced by those sectors that would profit.

As applied it is often an attempt to mitigate all risks which it cannot do. If you are trying to manage risk without defining what that risk is, asset allocation will never be the optimal method for any investor.

Asset allocation did not work very well in 2008-2009 as the sectors that were most affected and took the largest losses, banking and real estate touched virtually every other market sector. The losses, especially in the home value portion of investors’ net worth reduced consumer spending, led to increased unemployment and just about all portfolios took some losses.

All of that has apparently been forgotten in the ensuing bull market. Forgotten is the idea that asset allocation does not work in all markets. Forgotten is the idea that loading up a portfolio with mutual funds or ETFs full of stocks is a recipe for disaster unless you have some good reason to believe that market will continue to rise.

Advisors, because they had no good research to support their portfolio selections, told investors that they did not need research.  The rise of robo-investment advisors is indicative of how foolish the investment world has and will become.

Investors are now told that they should invest based upon their age as if an investor’s age had anything to do with how the market will perform.  Younger investors are directed to select portfolios with more stocks because they had the time to could “make up the losses” if losses occurred.

No robo-advisor suggests that it would be better to not take the losses in the first place.  None suggests that the basic tenets of the “investment pyramid” which would have younger investors build a solid base of more conservative investments first might be more appropriate.

Most importantly no robo-advisor seems to think it is important to tell investors when they should sell.  That advice is as important as any advice to buy anything because no stock and certainly no market can go up forever.

At the end of the day, the discussion about what is in the “best interests of investors” boiled down to a discussion of cost.  Investment advice has become commoditized and therefore the argument goes, consumers should be charged the cheapest price.  This is one of the largest crocks of BS that has ever been foisted on investors.

Goldman Sachs, JP Morgan, the largest pension plans, endowments and serious professional investors all rely upon research and analysis to make investment decisions.  The best analysts earn 7- figure salaries because they are the best.  All that smart money pays dearly for advice. At the same time, regulators and others are telling individual investors that it is their best interest to get the cheapest advice or none at all.

If the person offering you investment advice is suggesting stocks, bonds,mutual funds or ETFs without some reasoned opinion about what those investments will be worth in 90 or 180 days, that advice is useless and you should not pay anything for it.  If they tell you that they construct portfolios that use an algorithm, ask them if the algorithm is aware that the US government is imposing new tariffs on imports or that the Federal Reserve is raising interest rates.

The SEC, DOL and other regulators would do investors a favor if they required those giving investment advice to always share with their customers why they bought and why they sold every position.   A little transparency is always in investors’ best interests.

When I was diagnosed with cancer I wanted the best doctors, not the cheapest. When a neighbor or friend called me in search of a lawyer because their kid was picked up on a DUI, I declined to handle the representation because it was not my field of law and they really needed a specialist. And guess what, specialists cost more.

People need investment advice because bad investment advice or no advice will severely impact their retirement and they should be willing to pay more not less for good advice.  Good investment advice will always be in the investors’ best interest. The discussion really needs to stop with that.

 

Investment Advisor Litigation When the Market Corrects

When the stock market finally corrects it will be the eighth major correction since I first started working on Wall Street back in the 1970s. It may happen next week or next year but it will certainly happen.  When the market does correct investors will certainly experience some losses.

Everyone understands that the stock market goes up and down. That does not mean that investors should expect to lose a significant amount of the money they made during the bull market when the correction does happen.

At every correction investors who lose more money than they anticipated bring claims for compensation against their stockbrokers and advisors.  For a stockbroker registered at FINRA most of the claims will be handled by FINRA in an arbitration proceeding. As soon as the claim is filed it shows up on the stockbroker’s Brokercheck report.

Many of the investment advisors who are registered with the SEC or with a state agency but not FINRA also have arbitration clauses in their customer agreements. They too are supposed to amend their disclosure filings to report customer claims, but few do.  I know of investment advisors who have had multiple customer claims but still show a clean record.

Investment advisors are always considered to be fiduciaries to their clients. As such they required to fulfill all of the duties of a fiduciary.  A fiduciary’s first duty is to protect the assets that are entrusted to them.

You cannot protect the assets in an investment portfolio unless you are prepared to sell them when the market turns down.  For advisors who are paid based upon the amount of money in the portfolio this creates a conflict of interest that no one wants to talk about.

Too much cash in the portfolio invites the customer to withdraw the cash and invest in something else, like real estate.  Good advisors will offer a large variety of investments so that they can always find one poised to increase in value or provide a steady income.

This will be the first market downturn where a significant amount of assets are being held by robo-investment advisors.  When the next correction comes, robo-investment advisors are going to be likely and easy targets for the plaintiff’s bar.  Robo-investment advisors are not programmed to sell positions when the market begins to turn down and are likely to stay invested while losses pile up.

Robo- investment advisors select their portfolios using algorithms that are fed with historical market data.  Everyone knows that past performance is no indicator of future results but the SEC allows this sham to continue. For a robo-investment advisor to have any value it would need to be able to assess what is happening in the real world economy and what is likely to happen as a result.

Robo-investment advisors claim to use asset allocation to select their portfolios and to protect their customers from losses. The simple truth is that most robo-advisors (and many human investment advisors) have no idea how asset allocation is done correctly.

The idea behind asset allocation is that you can create a portfolio of non-correlated assets that will reduce the risk if some macro-economic event rocks the markets.  Most robo-investment advisors give lip service to the idea of a diverse portfolio but few actually construct their portfolios correctly.

Many human and robo-investment advisors construct portfolios with asset classes such as “large cap stocks”, “mid-cap stocks” “small cap stocks” and “international stocks”.  As regards most macro-economic events such as a spike in the price of oil or an increase in interest rates, these asset classes are perfectly correlated with each other, not the opposite as they should be.

Asset allocation is designed to deal with the constant yin-yang between stocks and bonds triggered by interest rate fluctuations. For a long term portfolio, you would accumulate bonds at par when interest rates were high. As interest rates peak and began to come down, you would expect stocks to begin to appreciate, so you would sell bonds at a premium and begin buying good stocks in different, non-correlated industries.

Asset allocation works because its portfolio re-balancing system is based upon the premise that you will buy-low and sell-high. Robo-investment advisors re-balance their portfolio based upon a pre-determined formula that simply ignores what is likely to go up and what is likely to come down.  Many human advisors do not do the kind of research necessary to intelligently re-balance a portfolio either.

I worked on a lot of claims against stockbrokers and investment advisors after the market crashes in 2001 and 2008.  They always put up the same, weak defenses.

First, they argue that no one can predict the top of the market.  That is absolutely true and totally irrelevant. The great bulk of intelligent, prudent investors only invest in stocks that they think will appreciate in value. If your robo (or human) investment advisor told you to buy APPL or a mutual fund or ETF of “international stocks” it is fair that assume that they did so after some analysis that concluded the position would appreciate. Otherwise the advisor brings no value to the relationship.

If the advisor is actually doing that analysis and it includes more than just consulting a Ouija board, sooner or later that analysis will say “sell” or at least indicate that the share price will not appreciate much more.  The most common indicator is price/earnings ratio which economists tell us will usually fluctuate within an established range. When prices get out of the range on the high side, they will usually decline and revert to established norms.

Next, brokers and advisors defend these claims by arguing that clients should stay fully invested at all times because the market always comes back. That is another insipid defense.  It is akin to suggesting that you should keep your hand on a hot stove because it will eventually cool down.

As we approach the end of this long bull market every investor should be happy with the gains that they made in their portfolio. The Dow Jones Industrial Average has more than doubled since the end of 2008.  Even if your portfolio had a smaller gain, why would anyone want to give those gains back when the market declines?

Next, advisors offer lame excuses as to why they did not hedge the portfolio against a market downturn. There are a number of ways to accomplish this but very few advisers have a system to do so effectively.  I have asked many advisors why they do not hedge their portfolios or include stop loss orders to protect against a serious loss. They usually tell me that they were afraid to sell positions because the market would resume its climb and they would miss further gains.

That particular defense only works if the advisor has some research that suggests the market will go higher still. Many of the advisors that I cross-examined over the years had nothing more than their own gut feeling.

Where advisors tend to really screw up is when they get into the habit of adding speculative “alternative” investments to a portfolio to “juice” the returns. This may be acceptable for people who understand the risks and who are willing to accept the losses if things do not turn out as planned.  That does not describe a lot of people who are sold these investments thinking that they are hedging against losses in other investments.

Real estate investments are commonplace as an alternative and many advisors will add an exchange traded REIT to a client’s portfolios. These are very different than non-traded REITs which are usually private placements. The risk is much greater if the investment cannot be sold and at least some of the value retained.  Non-traded REITS have been the subject of thousands of claims against brokers and advisors in the last 10 years.

At the end of the day most of an advisor’s clients turn over the management of their portfolio because they want the portfolio to grow. That should not be that difficult for any good advisor but like anything else, you have to know what you are doing and you have to put in the hours to do it right.

Giving good professional investment advice takes skill and it takes effort, but it is also a people business. The number one complaint that I heard over and over, year after year, from people who contacted me asking about suing their broker or advisor was always the same, “He stopped returning my phone calls”.

When the market takes a sharp downturn, people want advice. That is another reason why robo-investment advisors are likely to see more litigation when the down-turn comes. They are never going to hold your hand.

 

Fake Business News

I think I first heard that we were entering the “Information Age” in the 1990s. The internet was just coming on-line. It promised that every book ever written would be available without a trip to the library. It promised that I could view every painting in every museum in the world without ever getting on an airplane.

In just two decades we have become inundated with information that is simply false. I am not talking about political “fake news” or “fake facts” spewed by politicians. No one in their right mind expects politicians to be truthful.

The internet has become a prime source of financial information and anyone can add to the growing library, even if they have no idea what they are talking about.  The world is full of information about finance that is pure fantasy.

For a great many years I got my business news daily from the Wall Street Journal. When I moved to San Francisco in the1980’s I started reading the San Jose Mercury News because it had the best tech reporters around.

I admit that I am somewhat of an information junkie especially as it regards business, the economy and the financial markets.  I currently watch the national news on PBS or CNN. I have been known to watch Bloomberg TV especially the shows focused on European and Asian markets. I read scientific and tech journals and law review articles. I am an old dog trying to learn new tricks. I want to keep up with what is going on in finance, law and technology.

That is one of the reasons that I like LinkedIn.  I have connected with people all over the world and through them I get articles about many things that are going on in the global marketplace that I would not otherwise read.  But not every one of those articles has any value at all.

Some of the articles are written by people who call themselves strategists, influencers, gurus, visionaries, evangelists and futurists.  Many seem to be self-appointed experts without credentials or experience.  Some just regurgitate stupidity because they cannot discern good information from bad information or ask intelligent questions about what they are reading.

Is it unfair to expect that someone who holds themselves out as an expert in finance have an MBA or have worked in finance?  Is it unfair to expect someone commenting on a fairly complex legal issue to have graduated from law school?

This seems to have carried over to the mainstream financial press. There are “experts” contributing columns to Forbes and Fortune who could not find their way out of a paper bag. They lack context, perspective and expertise.  So much is the need for content that quality has gone out the window.  The desire for “views” and “likes” is more important than the quality of thought that goes into the writing.

This has also migrated over to the conference circuit. When I go to a conference, I want to learn something valuable from people who know what they are talking about. I want to hear speakers who have been in the trenches; those who have walked the walk.

Many conferences refuse to pay for the best speakers opting instead for those who will speak for free and pay their own way in exchange for “exposure”.  Some conferences charge speakers to appear. This eliminates many of the best academics and usually people from big companies who do not need the exposure and certainly are not going to pay for it.

There has always been some amount of fake news about some businesses. Tobacco companies said that smoking did not cause cancer; coal and oil companies deny global warming.  You would expect a salesperson or CEO to say that their company’s product is the best or their service the fastest and that is not troubling. But there were always rules.

For any company with investors the dissemination of financial information is regulated. Every press release and often every advertisement is usually vetted by  the company’s lawyers to assure accuracy and compliance.

When a public company published financial information it was presumed that the information was accurate. There would be auditors looking over managements’ shoulders in any event.  There are quarterly phone calls with analysts who ask questions. If management gets a reputation for being too optimistic on a recurring basis, people know about it and begin to discount what they are saying.

If you worked for any large company, when you made a statement in public you always represented that company. You were expected to maintain a professional demeanor, to go out of your way not be controversial or say something that might make the company look bad.  You were always expected not say something that was stupid or inaccurate. That is still true in many cases but it is far from universal and it seems to be less and less true as time goes on.

This becomes a serious problem when a small company is trying to obtain funding from investors.  Investors are entitled to a full and fair disclosure of the actual facts.  Most of the Wall Street firms take care to verify the facts that they are passing on to investors but this has become a significant problem on the fringes of finance like Crowdfunding and investors are getting ripped off every day.

I speak with people every week who want to raise funds for their business. I appreciate that many of the people who contact me have done some research first. But just because you heard something at a Ted Talk or read an article in Inc. does not make it real.

One of the core premises in the Crowdfunding market is that the investors can fend for themselves or that the crowd will be able to separate good investments from bad ones. That is simply not true, has never been true and is unlikely to become true.  The vast majority of investors have no idea what questions to ask and if they do, they have no ability to verify whether the answers they get from the company are true.

This “fake” news often shows up in the company’s sales projections. Projections in an offering are always rosy but the projections need to have some basis in fact. I have asked people who are Crowdfunding their offering how they arrived at their sales projections and many have no idea if their product is priced correctly or what their competition is offering.

I try to be pretty careful about what I write on this blog. I limit my articles to areas which I know fairly well, finance, law, investments and economics. I do a fair amount of research for any article. When I write articles for this blog, all of which are read over by a colleague before I publish them, I always ask myself “would I be willing to say that to a judge?”

I have been taught to be a critical thinker. I think that the best lawyers are. I was taught to question facts and assumptions. As a lawyer I try to understand the underlying transaction and the expectations of the parties whether I am writing the paperwork or litigating over someone else’s.  It carries over to this blog and other articles that I write.

When I started this blog I said that I was constantly amazed by the vast amount of patently foolish investment advice in the marketplace and promised to call out financial foolishness whenever I see it.  I never expected that so much of that false information would present itself or that so many people would accept that information without question.

So far I used the blog to point out the obvious facts that 1) robo-investment advisors, in part because they are looking backwards not forwards, are virtually useless; 2) investing in a cannabis related company has the extra risk of investing in a business that is patently illegal; 3) the Crowdfunding industry needs to act like responsible intermediaries because the offerings are either bad investments or fraudulent and 4) crypto-currency has limited utility as a method of finance in part because it is a very expensive way to raise money.

You should certainly be aware that there are a great many articles out there that see the world very differently on each of these subjects. The more time I spend reading what is out there, the more I know that I have my work cut out for me.  The simple truth is that markets need accurate information in order to operate efficiently.

 

The Future of Investment Advice

In order to understand the future of investment advice I think it is essential to understand how the industry has developed to where it is today.

When I started in the financial services industry back in the 1970’s retail customers got advice about what to buy and sell from their stockbrokers.  At the larger brokerage firms that usually meant that your broker would call you and tell that they or the firm’s research department had identified a stock that was a “buying opportunity”. This was often accompanied by a recommendation of what you should sell to pay for your new purchase so your broker would make not one, but two commissions from the recommendation.

When the stock market suddenly crashed in 1987 a lot of customers asked their stock broker why the broker had not seen the crash coming. The brokers really had no good answer. The crash took a lot of money out of the market and caused a lot of customers to lose faith in their broker’s ability to select investments for them.

Partially to placate those customers with something new and partially to make more money the industry introduced wrap accounts. A wrap account places the customer’s account into the hands of a professional money manager for an annual fee which is shared with the introducing stockbroker.

Wrap accounts introduced the idea that the individual brokers would be compensated on the customer assets under management (AUM) rather than the commissions that their accounts generated. This let the brokers do what they do best (sell) and let the professional money managers manage the accounts.

It also created a conflict of interest. Managers kept investors fully invested because that is what they had been hired to do. If the managers started to accumulate large cash positions in customers’ accounts, the customers might withdraw the cash. That would be counter-productive to the brokers who were being paid to bring in more and more new assets.

By the mid-1990s the market had recovered nicely and people started asking how long the boom would last.  At the end of 1996 Fed Chairman Alan Greenspan attributed the sharp run up in stock prices to “irrational exuberance”.  Neither the brokers nor the money managers advised the customers to sell when they had large profits and maintain a cash position

Much of the run-up in the 1990s was attributed to new tech companies that not everyone understood. Consequently, the firms hired highly qualified research analysts to parse through the various issues and recommend what they considered to be the best.

At the same time, the brokerage firms were making a lot of money by underwriting new issues of these tech stocks. In many cases the research analysts were working to support the efforts of the firms’ investment bankers. They only wrote reports describing why their firm’s banking client’s offerings were a “buying opportunity”.

That also created conflicts of interest.  When the market finally crashed it was revealed that some analysts had never suggested that the price of any of the stocks they covered would not go higher. Some analysts never recommended a “sell” on any stock they followed even when fundamental analysis told them that they should be selling.

Again, when the market crashed in 2001 a lot of people asked their broker why they did not see the crash coming or take some defensive action to protect their profits.  And again, the brokers did not have a good answer other than “no one can really predict the market” which, of course, is exactly the skill that the stockbrokers and money managers had been espousing to customers all along.

The brokers themselves got more than a little frustrated with the large wire houses and many jumped ship. Sometook their clients and set up shop as independent investment advisors.

The accounts were still housed at a brokerage firm that got paid a commission on each trade but the advisors now kept all of the annual account management fees. This was a better deal for the advisor even if they now needed to pay their own rent and overhead. The idea that no one can really predict the market suited these independent advisors well because they were more interested in acquiring new customers and assets than picking good investments.

That led to a concept that as long as a portfolio was diversified it really did not matter which stocks were in it. By diversifying the stock portion of the portfolio into different asset classes the advisors were trying to avoid what had happened in the tech wreck. The theory was that if you bought stocks in different asset classes, the collapse of one sector, like tech, would not hurt you too badly.

This did not help investors when the market crashed in 2008. This crash was caused by a bubble in real estate and foolish lending in the financial sector. Most companies are affected by what occurs with banks and real estate as both effect business and consumer spending. Diversification only mitigates certain risks. This crash involved a systemic risk, not an asset sector risk, a fact that many brokers never understood.

It should not surprise anyone that investors again asked their advisors why they did not get them out of the market before it crashed.  Again the response was “no one can predict the market”.

Since 2008 the advisor industry has seen the rise of robo-advisors.  These are popular with millennial investors who do not trust the Wall Street professionals after 2008.  Robo-advisors select portfolios based upon algorithms. This makes as much sense as throwing darts at a list of stocks and bonds even if you are a champion dart thrower.

Robo-advisors are not even attempting to predict the market and they are not programmed to ever sell the portfolio if the market starts to crash, which we all know, it will. They are just selling diversification at a lower price. They achieve “diversification” by buying mutual funds or ETFs. These contain so many stocks that mathematically, there is no actual diversification.

Robo-advisors advertise that people pay too much for investment advice. I would argue that most customers pay too little.  My current advisor spends countless hours poring over financial statements and research reports to pick individual stocks.  He gets the same 1% of AUM as advisors who put all of their clients into pre-selected diversified portfolios of various funds and ETFs without really knowing a lot about them or how they might be expected to perform. With investment advice, like everything else in life, the rule should be that you get what you pay for.

What I think may be an intelligent alternative going forward is for people to just put their investment advisor on a fixed monthly or yearly retainer.  It would cost more for a larger portfolio than a smaller one because all portfolios need to be constantly monitored and larger portfolios require more time. Advisors would keep their customers and get referrals by keeping their customers happy.

And what makes customers happy?  They want to have more money in their accounts at the end of the year than they had at the beginning of the year. That is true even if the market crashes because there is nothing more foolish than staying in the market when the market is going down.

The customers will never truly be happy and get the results they truly want until advisors thoroughly analyze and review the stocks they recommend and purchase and hold only those that they believe are likely to appreciate. They will never get there if advisors refuse to take profits and move to cash when the market indicates that they should. They will never get there if advisors diversify to mitigate some risks, but not all.

People actually do predict the future performance of individual stocks and the market in general. I doubt that you would be surprised if I told you that the ones who do it well get paid a lot of money by investment banks, mutual funds and large institutions.

The advisor industry needs to understand that parroting the phrase “no one can predict the market” every time the market corrects is the fastest way to be demonstrate that you do not know what you are doing. Providing beneficial investment advice takes time and effort. Advisors are entitled to be paid for their efforts. But first they have to actually do the work and that work is accurately predicting the future price of individual securities and the market in general.

 

 

Is Technology Changing Finance?

A lot of people seem to believe that technology will fundamentally change or disrupt finance and the financial markets.  Many, if not most, of those people seem to be developing technology, selling it or using it to sell products to investors and financial consumers.  Most of these people seem to have degrees or backgrounds in technology not finance.

Having a background in technology does not give you an understanding of finance or the financial markets.  You cannot fix or disrupt what you do not understand and the lack of understanding behind many of these products is simply ridiculous.

I only write about the law and the financial markets. I spent my career as an attorney working in and around the financial markets. I also taught Economics and Finance so I have a pretty well rounded idea about how the capital markets work and how they are evolving.

So I feel perfectly justified to call out the many techies who think they understand the financial markets even though they have never worked in the markets or studied finance. Nonetheless many seem hell-bent to create products that they think are making these markets better and are quick to label the products that they sell as “disruptive”.

I call these people the “algorithms fix everything” crowd.  It is an interesting thought, except that these mathematicians have no math to back up much of what they say about finance.

At the same time, there is an ongoing narrative that suggests that everyone who works in the financial markets is evil. I find it amazing how many people actually think that all bankers and stock brokers get up in the morning thinking “who can I screw today?”  I have personally brought more than 1000 claims on behalf of aggrieved investors against Wall Street firms and written a book about some of the really bad things that Wall Street firms can do, but even I know that Wall Street firms are not evil.

The capital markets handle millions of transactions every day involving trillions of dollars and the almost all of those transactions settle with both the buyer and seller happy. Banks and stockbrokers fund schools, universities, roads and hospitals and virtually every company since WWII, again without serious problems or complaints from anyone. Banks aggregate and intermediate capital and over all they do it quite well.  So what, exactly, needs disrupting?

Still there is a never ending stream of new products and services which claim to be revolutionary and which promise to disrupt the capital markets. On closer examination many of these innovations are more hype than substance. Say what you will, there is nothing disruptive here.  A few examples for your consideration:

1) Algorithmic stock trading – This is a good place to start because it is pure technology applied to the existing markets. “Quant” traders use computers to evaluate trends and trading patterns in the market of various securities. They attempt to anticipate the price at which the next trade or subsequent trades will occur.  Logic says that computers should be able to take in more information that is pertinent to stock trading, analyze it almost instantaneously and execute transactions in micro seconds.

It sounds right, but the reality is that all stock trading is binary; every buyer requires a seller. No one buys a stock unless they believe that the price will appreciate; sellers generally will only sell shares when they think the price will appreciate no further. Both sides to any trade cannot be correct.

Analyzing the information or executing faster is of no use unless each trade you make is profitable.  No one has yet figured out how to accomplish that, nor are they likely to do so.  What we are talking about is predicting the future which is difficult to do even if only a micro-second or two ahead.   And please do not suggest that artificial intelligence will change this.  If there is one right answer based on the current information, e.g. buy APPL, then who is going to sell it?

2) Robo investment advisors- These are similar but much less sophisticated. Robo-advisors do not actually attempt to anticipate future market performance. They make investment recommendations based solely on the past performance of the markets. Anyone who has ever bought a mutual fund is required by law to be told that past performance is not a basis for future results. But that is all you get with a robo-advisor.

FINRA did a study of a half dozen robo investment platforms and found that they provided widely divergent portfolios for the same types of investors. No robo is any better than any other and none is really worth anything.

3) Crypto currency- It was a discussion about Bitcoins that was the initial impetus for this article. Aficionados of crypto currency actually think that they are developing an alternative currency for an alternative financial system. People seem to want to just print their own money and on one level I can understand that.  But that level is more of a fantasy than reality.

The reality is that I can buy food or virtually anything else in most places in the world with US currency. Why do we need Bitcoins? What exactly, is their utility?   When I ask that question I get any number of weak responses. More often than not, I get a tirade about banks and/or governments being evil.

What proponents of crypto currencies never want to face is the fact that the crypto currency market has been full of people laundering money from illegal activities.  The banks that crypto currency fans love to hate are required by law to know their customers and have systems in place to prevent money laundering.  It costs money to follow the law and have those systems. It is money that the crypto currency platforms do not want to spend. If there is a common thread in the crypto currency world, it is that people want to skirt or simply ignore the regulations that keep the markets safe and functioning.

4)  Crowdfunding Platforms- Crowdfunding clearly works and works well as evidenced by the significant amount of money that it has raised for real estate and real estate development projects.  At the same time the crowdfunding industry is populated by a great many people who fall into the “I do not care what the rules say, I am in this to make a buck” crowd.  I have written several articles about how some of the crowdfunding platforms do not take the time to properly verify the facts that they give to potential investors.  Due diligence can be expensive and some of the platforms just refuse to spend what it takes to do it correctly.

Crowdfunding replaces the role that stockbrokers typically fulfill in the process of raising capital with a website and do it yourself approach.  With a stockbroker, the company that was seeking capital got that money the vast majority of the time because the brokers were incentivized to sell the shares. With crowdfunding it is very much hit or miss whether the company will get funded. Many of the better crowdfunding platforms charge close to what a brokerage firm would charge and the investors get none of the protections or insurance that they would get with a stockbroker.

5) FinTech and FinApps – I can go to my bank’s website and send a payment to my electric utility company. I can do the same at the utility company’s website. I admit that it is convenient, but it is hardly disruptive.   Remittance companies like PayPal merely move money from my bank to a vendor’s bank.  And PayPal posted a $3 billion profit in the last fiscal quarter.  So they may charge less of a fee per transaction than a bank, but is not essentially different, and again while PayPal holds my money, I get no insurance against hacking or theft.

Apps that allow me to apply for a mortgage on my phone are really doing no more than eliminating a bank employee who would enter the same information from a written application into the bank’s computer. Again, it is convenient but not necessary.  And the money for the mortgage comes from either a bank or stock brokerage firm so there is nothing disruptive here, either.

Is there nothing truly new and disruptive in finance? Of course there is. They deservedly gave the 2006 Nobel Prize in Economics to Muhammad Yunus for developing a system of micro-finance that continues to create millions of entrepreneurs and lift millions more out of poverty. I doubt that one line of computer code was needed.

Micro-finance has the ability to put globalization on steroids.  Who will be disrupted?  Quite of few people with big school pedigrees and enormous student debt who write code to disrupt finance but who never understood finance in the first place.to

Misunderstanding Asset Allocation

Diversification is one of the most often used and most often misunderstood concepts in investing.  Investors are frequently advised to diversify their portfolios.  Most people are rarely told what true portfolio diversification is, how to correctly construct a diversified portfolio or what to expect from the portfolio in terms of risk and rewards.

The idea of using a diversified investment portfolio is usually attributed to an article published by Prof. Harry Markowitz in the Journal of Finance in 1952. The article gave birth to what has been called “modern portfolio theory” (MPT).  It is widely accepted but I think it fair to say most people who claim to understand MPT do not.  If they did they would not invest as they do.

Markowitz was, first and foremost, a mathematician who applied mathematics to investment portfolios. The calculus that he used is not that complex if calculus is your thing but most people who swear by MPT cannot do the math themselves nor do they understand it.

The goal of MPT is not to get the highest return but to get an efficient return for the amount of risk that the investor is willing to assume. In a nutshell, Markowitz believed that by constructing a portfolio with a number of stocks, the winners will balance out the losers. Deciding upon which stocks to buy and how many has always been the vexing problem.

There have been a number of studies over the years that suggest the correct number of stocks to buy to gain diversification of the risk of a catastrophic loss is somewhere between 15 and 20.  Some people believe that they should buy a much larger basket, such as an index fund that tracks the entire S&P 500.

The large basket, index fund approach is the result of the capital asset pricing model (CAPM) which suggests that maximum diversification comes from buying a pro rata share of all available assets. The CAPM was introduced by Prof. William Sharpe in 1970.

Both Markowitz and Sharpe are trying to solve the same problem, constructing a portfolio that efficiently deals with the risk of loss. Understanding the significant difference between the two approaches is where most people get lost.

Markowitz suggested that one way to mitigate the risk of investing was to create a portfolio that contained a mix of non-correlated assets.   Non-correlated assets perform differently during periods when market conditions change.

A classic example of non-correlated assets might be an oil company and an airline. Oil company profits tend to rise when oil prices go up because the companies can get increased prices and margins.  Airline company profits tend to fall when oil prices increase as their operating expenses increase. Oil prices and other commodity prices fluctuate up and down with supply and demand, weather, political decisions and other macro economic factors.

This economic see-saw is usually felt in the credit markets. Fixed income securities are generally safer than equities.  Investors generally seek safer investments and like steady income.  But investors will move out of fixed income securities and into equities when interest rates are low as they have been in recent years.  Low interest rates often translate into higher profits for companies that borrow money pushing the price of their shares up.

That is why it is fairly easy to predict that people will begin to take the profits that they have made in equities in recent years and put their funds into fixed income securities as interest rates begin to rise.  Remarkably, a lot of people who are in the business of asset allocation simply ignore that fact.

A great many portfolios, especially those prepared by robo-advisors, construct portfolios allocated between equities and fixed income securities based upon the investor’s age. They argue that younger people can assume the risk of investing more aggressively into equities.  Neither Markowitz nor Sharpe ever considered an investor’s age as part of their analysis. The focus should not be on how old the investor is today, but what the markets are doing today and what do you anticipate that they will do in the near term.

Markowitz believed that portfolio construction should begin with observations and beliefs about the future performance of the available securities. That means that you should buy securities whose price you think will appreciate. You may be wrong due to market or other factors but if you are buying stocks that will react differently to those market factors you should not suffer catastrophic losses.

The CAPM on the other hand looks primarily at a stock’s volatility or beta. The beta is determined by how much more or less volatile a company’s stock is than a broader index. A stock whose volatility is the same as the index has a beta of 1. That is why people are encouraged to purchase an index or other large basket of stocks to get their portfolio’s beta closer to 1.

The essential difference between these two approaches is that Markowitz was looking at the fundamental factors that contributed to each company’s performance.  This fundamental securities analysis looks at a company’s business, management, competition etc. and tries to determine if the company will be profitable in the future and if so, how profitable.

CAPM on the other hand, looks at the how the company’s shares have performed versus the index in the past.  It is grounded in technical securities analysis which specifically looks at how a stock’s price has acted in the past and projects how that stock will trend into the future.  Technical analysis looks at the market rather than the company. It suggests that everything that anyone would want to know about a company is reflected in the current price of its shares.

I learned basic technical analysis in the commodities markets years ago where most traders charted the markets which were governed more or less by supply and demand for the underlying commodity.  I know many short term traders who swear by technical analysis but not so many who would use it to predict long term trends for investment. Past performance, after all, is never an indication of future performance.

I also take issue with the idea that everything that anyone would want to know about a company is reflected in its share price.  I buy a stock it is because I believe that the price will appreciate. The person who is selling that stock to me generally believes that it will appreciate no further or else logic suggests that they would not sell it.

Neither approach is right or wrong. Both are trying to predict the future which will always be an imperfect science. Both Markowitz and Sharpe are Nobel Prize winners.

Over the years I would carefully research the companies in which I invested. I would read multiple research reports on each company, some positive, some negative, published by analysts whose opinions I came to trust.  Research is a time consuming project. I now have an advisor who does this for me.

My advisor suggests that I only invest in companies thathave a history of paying regular dividends. That fact alone usually reduces volatility.

Robo investment advisors are firmly rooted in CAPM. They ignore fundamental facts about companies and markets.  If you buy an index fund, then the results you will get will mirror whatever the market does. This is fine when the market is going up. I have continually advised anyone who would listen that robos are a bad idea and when the market turns down, which it eventually will, people who are in robos and who stay invested in robos will take losses that they should not have to take.

 

The Passive Investment Problem

Buy it, hold it and forget it is the idea behind robo-advisors and is the reason that robo-advisors are detrimental to your financial health and well-being.  The hype behind robo-advisors comes from the advisors themselves who are determined to get your money out of the bank and onto their platforms.  When the market turns down, robos are going to have a lot of unhappy customers.

I spent more than 25 years representing investors who had been ripped off in the financial markets. In most cases they knew just enough about investing to get themselves into trouble.

One of the reasons that I write this blog is my desire to point out foolish investments and investment advice.  Much of that advice, because it is repeated over and over by an industry with a massive advertising budget, becomes “common knowledge” even though it is without a solid basis in fact.

Most professional investors use what is called fundamental securities analysis to make a determination of what stocks to buy and at what price they are willing to buy them.  Fundamental analysis was developed by Prof. Benjamin Graham in the late 1940s and his textbook is still used in business schools all over the world.

Fundamental investors analyze a company’s income statements and balance sheet. They look at its management, products, competitors and prospects for the future. The question they are faced with is the same question all investors face: if I buy this stock today, will the price go up in the future?

It is important to understand that this analysis is not an exact science.  What is more, markets are as often as not driven by irrational forces, fear and greed, as anything else.  Even some of the basic macro-economic factors that drive the markets such as interest rates and oil prices are political decisions, not rational ones determined by supply and demand.

But that is not a reason to give up on a rational, analytical approach to investing or stock selection.

The idea of passive investing has gained some traction of late for the wrong reasons.  Passive investing is the idea that you “buy and hold” a stock or a fund no matter what happens.  The theory, at least for investors with a long time horizon, is that the investment will be worth more when you need it, years in the future.

It should not take you long to realize that no one can predict what the market price of any stock will be years in the future. Fundamental analysis looks out a year or so and even that is difficult.

That “no one can predict the future” is one of the reasons that people advocate passive investing.  But their “buy, hold and it will be worth more when you need it” strategy does just that.

Advocates of passive investing will point to a number of academic studies, most from the 1990s that suggest that mutual funds, which are actively managed, failed to beat the market indexes over the long term.  These studies exist but are flawed for a number of reasons.

In the first place, beating the market index should never be the goal of any small investor.  To beat an index means that you will need to take risks that are higher than the index and those risks will often come back to bite you.  That is one of the reasons that mutual funds, the active investors that these academic studies are looking at, do not, on average, perform as well as an index.

The other reason is that mutual funds are not efficient. They are constrained by law, their own advertising and the ebb and flow of funds in and out.  Mutual funds are also subject to advertising costs, sales charges and management fees.  They should always yield less than a theoretical index that is not subject to these charges.

Notwithstanding, the passive investors are quick to repeat that the average investment advisor cannot beat an index.  I do not know why anyone would hire an “average “advisor or why any investment advisor would bother trying to beat an index.

Your goal should always be to have more money in your portfolio this year than last year and more again next year.  The way to accomplish this is to do the one thing those passive investors will never do, sell your positions when the market starts to go down.

How can you know when the markets are starting to go down? Fundamental analysis works both ways; it tells you what to buy and at what price and what to sell and when to sell it. Even if your analysis is wrong, there are ways to protect your portfolio against losses with stop-loss orders that get you out before you have given back all of the profits that you have made.

No one can predict when the market will peak. People can get greedy and fearful that if they get out now, they might miss another year of profits.  Of course, even if the market does go up for another year, two years from now it may be at levels below where it is today.  That means that you will have less money and be two years closer to retirement.

Investing is difficult. Fundamental analysis is a skill that takes time to learn and is time consuming for anyone.  If all you had to do to make money in the stock market was to buy an index ETF and leave it alone, everyone would do it.

Passive investing in general and robos in particular are for people who do not know enough about investing to do it well.  If you consider yourself to be in this group, either hire a competent advisor to do it for you or leave your money in the bank.  Anything else is foolish.

 

FINRA Reports on Robo-Advisors

A year ago FINRA and the SEC issued a joint investor alert regarding robo-investment advisors and other automated tools that offer advice to investors. The alert clearly suggested that investors should be wary because an automated tool may rely on incorrect economic assumptions.

That warning has dissuaded just about no one. Robo-advisors are a fad that is growing exponentially.  Mainstream brokerage firms have acquired existing robo-advisor firms and launched their own robo-platforms.

I have written several articles where I explained why robo-advisors cannot work. In addition to the fact that they may rely on incorrect assumptions, they are also not connected to the real world in any way.  While most investors are concerned with slowing growth in China, the changing price of oil and the continuing rise in interest rates, robo-advisors concern themselves with none of these.  Robo-advisors do not look at what is happening in the broad economy or what is likely to happen.

FINRA has just published a new report on digital investment advice that demonstrates just how poorly robo-advisors perform.  The report asks a great many important questions about the use of robo-investment advisors but answers none.

You can view the report here.  https://www.finra.org/sites/default/files/digital-investment-advice-report.pdf .

The report defines the investing process in six steps; customer profiling, asset allocation, portfolio selection, trade execution, portfolio re-balancing, tax-loss harvesting and portfolio analysis. I don’t quibble with these steps, however, it is how the robo-advisors execute them that is the problem.

The report notes that there is a wide disparity between the platforms regarding the amount of information that they acquire about a prospective customer.  I wasn’t actually troubled by this. The brokerage industry knows how to open an account and obtain enough information to ascertain a customer’s investment objectives and risk tolerance.  It is a task that the industry performs every day.

Where the report was most enlightening was in its side by side comparison of the portfolios that seven robo-advisors would have constructed for a hypothetical 27 year old who was investing for retirement. The disparities are enormous. The amount of equities purchased ranged from 51% to 90%; the amount of foreign issues from 22% to 48%. One portfolio contained 5% in gold and precious metals; another 14% in commodities. The rest had no investments in either category.

Presumably these allocations would not change over the next 40 years as the customer added to the account every year. The FINRA report defines re-balancing as maintaining the target allocation.  I would assume that risk tolerance declines with age, but the FINRA report makes no mention of how that money would be invested in the future.  Even if the allocations were static, the end result would vary greatly platform to platform.

So what, you say? The end result of a 40-year investment portfolio is going to vary greatly if you compare the portfolios prepared by live advisors as well.  True, but the difference is that live advisors are looking at the real world and absorbing real information.  The algorithm that is at the core of a robo-advisor, once set, may never be modified and never looks at real world events.

I have read a lot of articles about robo-advisors.  Few actually try to evaluate the algorithms of one versus another. The FINRA report suggests that member firms need to effectively govern and supervise the algorithms that they use. An algorithm is a mathematical formula. Exactly how does the investment committee at a brokerage firm supervise it?

The FINRA report gives passing acknowledgement that many of the robo-advisors are based in Modern Portfolio Theory (MPT) and gives a shout-out to Prof. Harry Markowitz who first proposed it and later won the Nobel Prize.  I went back and re-read Prof. Markowitz’ article that was published in 1952.  The math was over my head.

Markowitz was a theoretical mathematician who applied his theory to economics, specifically to investment portfolio construction. He theorized that investors would want to maximize their investment returns while at the same time minimizing their risks.

He accomplishes this by theorizing that a diverse portfolio of non-correlated assets will perform better than a portfolio of concentrated assets.  He creates a series of mathematical formulas (algorithms) to show that it is possible.

As a practical matter it is the idea that the various assets in the portfolio are not correlated to each other that is at the core. As oil prices come down for example, we know that it has a negative effect on the profit of oil companies but a positive effect on the profits of airlines and trucking companies. Higher interest rates are good for banks, but not so good for home builders.

Now go back and look at the categories of equities that make up the robo-advisor portfolios; large, mid sized and small cap domestic securities, developing and emerging foreign markets.  How are these non-correlated?  Haven’t builders, large and small in all countries been helped by low interest rates? Aren’t airlines of all sizes in all countries going to be negatively affected if oil prices shoot back up?

MPT necessarily looks at the effect that interest rates and commodity prices have on portfolio securities. I realize that those 5 categories of equities, large, medium and small cap, developed and emerging markets have become standard in some quarters but in a global economy they are less and less non-correlated.  That correlation is even higher if you use baskets of securities (ETFs) because some number of the securities in every basket will be affected by changes in macro market conditions.

Markowitz’ formulas are based upon what he believed investors should want; good returns with less risk. The “efficient frontier” that evolved from his equations is a point on a graph, not a place on a map.  It is a hypothetical goal.

The algorithms that support the robo-advisors are the same, hypothetical. They do not look at the real world, nor are they concerned with it.  They just tell you, if you do X, Y should happen.  That might be true is the world were stagnant, but it isn’t.

One difference between Markowitz and the new generation of algorithm writers is that Markowitz published his equations in a peer reviewed journal. The robo-advisors will never let anyone see what is behind the curtain.

The fact that FINRA can demonstrate the wide disparity between the portfolios that various algorithms would create makes shopping for a robo-advisor all the more necessary while at the same time demonstrating that it is an impossible task.

If you hire a human investment advisor you can sit down and talk to them first. You can ask them what they know and what they think. You can ask them about the markets and about the future. Chances are because they deal with a lot of people they have heard the same questions before and have had an opportunity to consider their answers.

Robo-advisors are a fad. They are popular because they are cheaper. They are sold by disparaging human investment advisors who some people think cannot do any better than average. That begs the question that I have asked before: why would anyone want to hire an average investment advisor?

 

 

The lesson of Long Term Capital Management

Over the years I have marveled at the fact that some of the most intelligent people in the financial markets repeatedly get blindsided by market action. Frequently it is because in the real world the markets do not act in accordance with their view of how the markets should act.

A great many intelligent people lost money when the markets crashed in 2000 and 2008 because in each instance they did not see the crash coming. Many fall back on “nobody” can predict the market when what they mean is that “they” failed to predict the market.

A great deal of the advice given by the Wall Street firms is conflicted. Even simple tools like asset allocation are grossly misapplied. Finding a better than average financial adviser can be hit or miss.

Many people agree that investing requires time, information, analysis and discipline. There is logic that suggests using computers and mathematics to make investment decisions has merit. Computers will certainly analyze more information in less time and can trade any account subject to a rigid discipline.

Success should be dependent upon analyzing the right information in the right way. Hiring really smart and accomplished people to decide which information to collect and how to analyze it would seem to enhance the chance of success. Except that it does not always work.

The most outrageous example may be the case of Long Term Capital Management (LTCM), a Connecticut based hedge fund that lost about $4.5 billion of investors’ money in 1998 and almost brought the markets down with it. The investors were some of Wall Street’s biggest banks and many of the individual executives who managed them.

LTCM was started in 1993 by Lee Meriwether, a very accomplished trader who had made substantial profits for Salomon Brothers. Showcased members of the team were Myron Scholes and Robert Merton, two economists who had devised a mathematical model for pricing options. Merton and Scholes won the Nobel Prize in Economics for that model in 1997 just before the downturn that wiped out LTCM.

LTCM performed arbitrage with its investors’ money. They looked for small discrepancies in the price of the same or similar instruments in different markets. They assumed that the markets would always efficiently close those gaps.

LTCM created sophisticated mathematical tools to identify those discrepancies and to evaluate the greater markets so they could estimate how those gaps would close. No one has suggested that LTCM’s math was wrong; it is just that the events that occurred were not in the database that they were analyzing.

In 1997 the government in Thailand devalued its currency. The ensuing defaults roiled the markets in Asia and caused a serious decline in the equity markets. Credit markets in Japan, a major US trading partner and the most important capital markets in Asia tightened significantly. It did not help that Russia defaulted on its own sovereign debt shortly thereafter.

Importantly, LTCM did not lose money when the devaluation occurred in 1997 but a year later. The LTCM fund was very profitable into 1998. Losses started to mount up when its mathematical models could not account for the shifting market conditions caused by the devaluation. They were useless to predict the effects of the often conflicting ways in which other Asian governments and central banks would deal with it.

The lesson to learn from LTCM is quite simple. Even the best mathematical models created by the smartest people should not be relied upon to tell us what the markets may do. No computer program can accurately predict the price of securities one month or one year from today.

Despite this fact, there are currently a multitude of “quant” firms that are developing and using ever more sophisticated mathematics to do just that. Most are focused upon making predictions of what will happen in the markets today not next month. I wish them luck but I would not give them any of my money to invest.

The markets will continue to evolve, globalize and expand. Developing mathematical models based upon how the markets have acted up until today will be less and less accurate and have less and less utility going forward.

Millennials think otherwise and are expected to invest trillions of dollars with robo-advisers who use mathematics in the same way. A substantial percentage of those funds will be lost the next time the market turns down.

Then the market”professionals” and pundits who currently sell and endorse robo-adviser programs will remind the millennials that “nobody can predict the market” because some things about the markets never change.