On June 20, 2011, two class action suits were filed against David Lerner & Associates over its sales of Apple REITs, a family of real
estate-based securities. This follows a recently filed complaint by the Financial Industry Regulatory Authority (FINRA) alleging that David Lerner Associates, Inc. has been misleading investors about the value of the Apple REIT Ten shares. Here is a link to the FINRA Press Release about the first regulatory action against Lerner.
Lerner’s company sold $6.8 billion of the securities into some 122,600 customer accounts. His company is a prominent advertiser on New York City radio, famous for its tagline, “Take a Tip from Poppy”, and in recent years has hosted seminars drawing hundreds of investors in the Boca Raton, FL area.
In December 2011, FINRA sued Lerner again, this time amending the prior complaint against Lerner’s company and this time naming him individually, for statements he made in an attempt to quell
anxious customers who had reason to be concerned about their investments since two class actions and a regulatory action were filed questioning the value of the investment. This second action claiming that Lerner misled investors about risk and valuation when marketing $2 billion in non-traded REITs also takes issue with Lerner’s attempt to continue to mislead investors. Here are some
of the highlights of the FINRA complaint against Lerner individually:
WHAT FINRA HAS TO SAY ABOUT LERNER’S RECENT CLAIMS ABOUT APPLE REITS:
- Since Jan 2011, Lerner has sold $442 million of Apple REIT Ten, “without performing adequate due diligence in violation of its suitability obligations”
- Earlier Apple REITs inappropriately valued REIT shares at a constant artificial price or $11, not withstanding years of performance declines, increased leverage and excessive return of capital to investors
- Lerner continues to solicit thousands of customers to purchase Apple REIT Ten without performing due diligence
- The performance results for Apple REIT Six, Seven, Eight and Nine were misleading because they did not reflect reduction in distribution rates and did not disclose that income was insufficient to support the promised 7-8% returns and that distributions were partially funded by debt.
- Between 4/28/2011 and 11/17/2011 Lerner made false, exaggerated and misleading claims regarding investment returns, market values, performance and prospects of the Apple REITs to over 1,000 customers during at least four investment seminars
- Lerner made untrue and misleading statements regarding the prospects of Apple REIT Ten, calling it a cash cow
- Lerner slide presentations to sell Apple REIT Ten violate FINRA’s advertising rules
- On June 6 and July 27, 2011, to counter negative press following FINRA’s initial complaint against Lerner Associates, Lerner signed and sent out letters to over 50,000 Lerner customers that contained exaggerated, false, or misleading statements regarding the valuations, performance, prospects, risks, liquidity, and practices of the Apple REIT programs
- Since July 13, 2011, Lerner continued to make unsupported claims regarding the merger of the Apple REITs into a company that will be publicly traded.
- Although REITs Six through Nine are all illiquid and worth less than their $11 per share offering price, Lerner has led customers to believe the purported public offering will reap a windfall for investors
SO WHO DO YOU BELIEVE? FINRA OR LERNER?
Do you believe the regulators, who have no ax to grind other than to
protect the investing public or do you believe the promoter, who
continues to promote?
Apparently Lerner’s PR campaign is succeeding because investors appear to have been swayed by his promises, notwithstanding the not so subtle warning that is coming from FINRA. We have yet to detect that investors are concerned by the FINRA allegations.
READ THE AMENDED FINRA COMPLAINT FOR YOURSELF AND DECIDE
The text of the complaint filed by FINRA Department of Enforcement v David Lerner Associates, Inc. and David Lerner (CRD No. 307120) on December 13, 2011 can be accessed here.
Read it and make your own decision regarding what amount of concern to have if you own any of the Apple REITs.
Rex Securities Law , located in Boca Raton, FL, provides representation to investors in Texas and nationwide who are seeking recovery of investment losses due to the negligence or fraud of stockbrokers and broker dealers. If you have questions about how your account has been handled, call to speak with an experienced securities attorney. Most cases handled on a contingent fee basis meaning that you do not pay legal fees unless we are successful.
Rex Securities Law
561 391 1900