Herskovits PLLC is investigating whether Morgan Stanley unlawfully “forfeited” deferred compensation otherwise due and payable to financial advisers formerly employed by the firm.  A class action lawsuit involving similar claims has begun in the U.S. District Court for the Southern District of New York.   That litigation is in its early stages and may carry on for years before a resolution is reached.

Morgan Stanley’s Deferred Compensation Plan

Morgan Stanley compensates FAs based on revenues generated from the FA’s customers’ accounts.  Morgan Stanley typically defers a portion of the fees generated as “deferred compensation” and allocates a substantial percentage of the FA’s deferred compensation to the Morgan Stanley Compensation Incentive Program.  75% of the deferred compensation vests over a six-year period and 25% vests over a four-year period.  However, Morgan Stanley “cancels” the deferred compensation if the FA leaves Morgan Stanley prior to the vesting dates.

Potential Legal Claims

In simple terms, it can be argued that the deferred comp plan in an “employee benefit pension plan” under ERISA because it “results in a deferral of income” for services rendered years ago.  If this argument proves successful, the deferred compensation program’s “cancellation rule” will be deemed a violation of ERISA’s vesting and anti-forfeiture requirements.

Where to Pursue these Claims?

Certain formerly employed FA’s may be eligible to join the class action lawsuit should the judge certify the class.  It is unknown at this time whether or when the court will certify the class.  Moreover, if the class is certified, it is unclear whether joining the class – as opposed to pursuing the ERISA claims on an individual basis in FINRA arbitration – is preferable avenue for the FA.  FAs are always free to pursue their claims on an individual basis in FINRA arbitration.

Considerations for the FA When Deciding Whether and Where to Pursue the Claims

Class actions lawsuits sometimes result in recoveries of “pennies on the dollar” for the members of the class.  This structure nonetheless serves the plaintiffs’ lawyers well, because the lawyers receive a substantial percentage of the class settlement – which may be a large pool of money – whether or not an individual class participant recovers much money.

Another consideration to weigh concerns claims which Morgan Stanley may assert.  The firm can – and does – aggressively pursue claims for unpaid “employee forgivable loans” (EFLs).  Morgan Stanley will pursue those EFL claims in FINRA arbitration.   Therefore, the FA has to carefully weigh whether he would garner greater leverage by meeting the EFL claim with a deferred comp counterclaim in FINRA arbitration.  By pursuing the deferred comp claim as part of a class, the FA would be left without a potentially potent defense against than EFL claims in FINRA arbitration.

A second consideration concerns the payout of any settlement in court versus arbitration.  An FA has to make a determination when he believes he will recover more by pursuing his claims on an individual basis in FINRA arbitration.

Herskovits PLLC has a nationwide practice representing the interests of financial advisors, including FAs with claims for unpaid compensation.  Please call us at 212-897-5410 for a consultation.

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