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NH Pursues UBS – Lehman Principal Protected Notes

Mark Rufo said he thought he had found a “good conservative investment” for his 88-year-old mother when, in 2007, he put $26,000 of her money with UBS Financial Services in Concord.

The Nashua lawyer bought Asian Currency Basket Principal Protected Notes. Asian currencies appeared stable at the time, especially compared with the debacle of a decade earlier. In addition, Rufo said, he was assured by both the name of the investment and his broker that the principal would be protected.

Last Sept. 10, as the stock market started heading south, he checked with his broker, who he said assured him that he wasn’t exposed. Two days later, he learned about Lehman Brothers was facing bankruptcy.

“Boy, I’m glad I’m not tied up with Lehman Brothers,” Rufo said he told to himself. Minutes later, his broker told him that actually he was – or at least his mother was – because it was Lehman that was backing the principal.

Rufo said he asked the broker how much was left in the currency basket that he had purchased, and he said he was told, “There aren’t really any Asian currencies in the basket. There are derivatives.”

When the broker couldn’t adequately explain to Rufo the nature of these derivatives, Rufo said he replied, “If a year ago, if you said, ‘Mark, I want you go buy something I don’t understand, I wouldn’t have bought it.”

Multiply the Rufo case – which is in Merrimack County Superior Court – by 42, and you have the cease and desist order case filed June 4 by New Hampshire Bureau of Securities Regulation against UBS.

The bureau alleges that state investors lost $2.5 million in various structured products backed by Lehman Brothers, which filed for bankruptcy on Sept. 13, 2008. By not adequately disclosing these risks, UBS engaged in “dishonest and unethical business practices,” the bureau charges.

“UBS presented these notes as simple, safe investments when in fact they are highly volatile and are subject to shifting market conditions,” said Jeff Spill, the bureau’s deputy director for enforcement. “The safety of these products was exaggerated. We believe UBS engaged in unfair and unlawful sales practices when presenting these investments.”

UBS, however, said in a disclosure that it did point out the risk in the prospectus and “followed all regulatory requirement, well-established sales practices and client disclosure guidelines.”

According to the bureau’s complaint, UBS, through its “structured product working group,” developed the idea behind the products and put them out to bid to companies like Lehman. In addition, UBS acted as an agent for Lehman-issued structured products.

The Northeast consultant for the structured product group acted as a consultant out of the Manchester and Concord offices of UBS, according to the securities bureau.

UBS’ local offices were “pushing” the sale of such products, selling 65 products to 42 investors, according to the complaint. UBS continued to “push” the sale, even after the near failure of Bear Stearns earlier in 2008 made it clear how risky such products were when backed by companies with large subprime loan portfolios.

Lehman went on to report billions of dollars in losses, and e-mails circulated in UBS’ Maine and New Hampshire offices noted in June that “Lehman is smelling a bit to me.”

The bureau said it was told by UBS’ structured sales consultant that agents were told to make clear the risks involved with Lehman Brothers, but a local branch manager in New Hampshire said the office never received such instructions, according to the complaint.

The complaint also says that sales reps were rewarded with bonuses for the sales of such products, and the average commissions were sometimes three times the amount that on regular securities sales.

In addition to a potential cease and desist order, the company faces a $2,500 fine for each violation.‘Pattern’ of investments
This is the second securities action taken by New Hampshire securities regulators against UBS in as many years.

In 2008, the bureau alleged UBS had been advising the New Hampshire Higher Education Loan Corporation – the state’s largest student loan provider — to stay in the failing auction rate securities market at the same time UBS was preparing to extract itself from the market prior to the market’s collapse.

When UBS and other banks decided to stop supporting auctions in February 2008, the market froze and investors were unable to access their money, the bureau alleged. As a result, NHHELCO lost a large sum and was unable to provide loans for thousands of students, according to the bureau.

In April 2008, New Hampshire was part of a global settlement in which UBS paid $22.1 billion to repurchase auction rate securities from damaged investors or provide liquidity to the market. In addition, UBS paid $150 million in fines.

In a letter to the UBS chief executive Oswald Grubel, securities bureau director Mark Connolly charged that both allegations were part of a “pattern” of presenting volatile investments as safer than they actually were to investors. Connolly asked Grubel to intervene and settle the matter.

UBS has until July 3 to formally contest the charges, which could result in a hearing. In its statement, after the allegation, UBS said it would “defend itself vigorously in this matter.”

That’s two days after the July 1 hearing scheduled in Rufo’s case. UBS is arguing that the case go to mediation, Rufo said, but that process was “pretty much a racket controlled by the big brokerage houses.” Rufo said that when he first talked to UBS officials, all he wanted was his mother’s principal back, but in reality it was more a matter of principle.

“The money isn’t going to make any difference to her, because I can take care of her, but maybe there is some other 88-year-old mother out there who doesn’t have a son as a lawyer. I wouldn’t be able to do this if I wasn’t in the profession. If I went to a lawyer who charged by the hour, it wouldn’t be practical.”