$16-Million Enforcement Action Against Merrill Lynch Demonstrates SEC’s Continued Pursuit of Misleading Broker Sales Talk and Excessive Markups in Mortgage-Backed Securities Trading

The SEC continues to scrutinize the questionable sales tactics used by personnel at broker-dealers in the trading of bonds, including residential mortgage-backed securities (RMBS). The recent SEC settlement order against Merrill Lynch, Pierce, Fenner & Smith Inc. (Merrill Lynch) is another reminder that fund managers must be wary of pricing information provided by their broker-dealers. Merrill Lynch sales personnel allegedly misrepresented the prices at which they had acquired, or were acquiring, RMBS and charged undisclosed excessive markups to customers. This article details Merrill Lynch’s alleged misconduct and the other salient provisions of the order. For a similar recent settlement involving sales of commercial mortgage-backed securities, see “SEC Settlement With Deutsche Bank for Alleged Fraudulent Bond Sales Practices Highlights Challenge for Fund Managers to Obtain Accurate Pricing” (May 10, 2018). For other actions involving improper sales talk in bond trading, see “SEC Complaints Against Former CMBS Traders Highlight Need for Fund Managers to Verify Broker Pricing for Thinly Traded Securities” (Jun. 1, 2017); “SEC Settlement With Ex-Goldman Head RMBS Trader Highlights Risk That Puffery May Become Misrepresentation When Trading Illiquid Securities” (Sep. 8, 2016); and “Pricing Information Provided by Brokers to Hedge Fund Managers for Thinly Traded Securities May Not Be Reliable” (Sep. 17, 2015).

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