Ex-Wells Fargo broker complaint wins class action status in fight over deferred compensation

Ex-Wells Fargo broker complaint wins class action status in fight over deferred compensation
Broker alleges he was cheated out of $200,000 in compensation protected by ERISA.
OCT 16, 2018

A federal judge has granted class action status to a lawsuit brought by a financial adviser who claimed Wells Fargo Advisors cheated him out of $200,000 in deferred compensation. The adviser, Robert Berry, worked at Wells Fargo Advisors and predecessor firms from 1994 to 2014, according to his BrokerCheck report. He was "permitted to resign," according to BrokerCheck. At that time, he chose to open his own wealth management firm, Berry Financial Group, according to the firm's website, and is affiliated with LPL Financial. Brokers, like Mr. Berry, at large institutions can accrue hundreds of thousands of dollars — if not millions — in deferred compensation, making restrictions on when and how a broker can get his hands on the money a highly contentious issue for some advisers. In the past, such plans used to be voluntary at large wirehouses. But in some institutions, deferred compensation plans are now mandatory for brokers and advisers. Critics of the wirehouses claim that part of advisers' pay is being held captive. Mr. Berry's amended complaint, filed May 1, 2017, took aim at a "forfeiture clause" in two deferred compensation plans. It alleges that the plans constitute pension benefits under the Employee Retirement Income Security Act, and as such, unvested deferred compensation is not forfeitable. The complaint claims the two deferred compensation plans in question are not so-called "top hat" plans, which would have made them available only for a select group of management and other highly compensated employees and made them exempt from ERISA. In the amended complaint, Mr. Berry, 65, argued that the Wells Fargo Advisors' plans violated ERISA's funding, vesting, and non-forfeitability rules, along with others. "A forfeiture clause in the plans allows Wells Fargo to forfeit a participant's purportedly unvested deferred compensation" if the broker moves to a rival in a period of three years, according to the complaint. After Mr. Berry resigned and started his own firm, "Wells Fargo used the forfeiture clause to deny [him] his deferred compensation," according to the complaint. "Wells Fargo did the same to other departing employees." "But because the forfeiture clause is unenforceable under ERISA, [Mr. Berry] and all others similarly situated are entitled to their forfeited deferred compensation," the complaint alleges. "The company denies the claims in the lawsuit and will defend its position on the merits," wrote a spokesperson for Wells Fargo Advisors, Shea Leordeanu. Mr. Berry, who was named the lead plaintiff in the matter, declined to comment. (Full disclosure: One of the attorneys representing Mr. Berry, Tom Ajamie, co-wrote a book with me about the 2008 financial crisis). Wells Fargo & Co., the parent bank of Wells Fargo Advisors, and Wells Fargo Advisors Financial Network, the independent broker-dealer, are also named in the complaint. Law360 first reported the class action certification of Mr. Berry's complaint about the Wells Fargo Advisors deferred compensation plan last week.

Latest News

FSI urges New Jersey to pass independent contractor legislation
FSI urges New Jersey to pass independent contractor legislation

Industry group submits testimony supporting S2782, which includes language shielding licensed financial professionals from the state's new ABC test.

UBS cuts staff jobs outside the United States: Report
UBS cuts staff jobs outside the United States: Report

Financial advice firms continue to shed employees, often a way to reduce costs.

Foreign investor sues Florida EB-5 sponsor, alleges he was left empty-handed after $72M sale
Foreign investor sues Florida EB-5 sponsor, alleges he was left empty-handed after $72M sale

The building sold for $72 million - he says his $550,000 never came back.

Fintech bytes: FP Alpha asserts tax software leadership with updated AI snapshot tool
Fintech bytes: FP Alpha asserts tax software leadership with updated AI snapshot tool

Also, Zocks and Amplify unveil integrations with Conquest and Wealthbox CRM to extend their reach among independent advisors.

Pathstone absorbs $12B Philadelphia RIA Mill Creek Capital
Pathstone absorbs $12B Philadelphia RIA Mill Creek Capital

The deal creates one of the largest independent RIA footprints in the Philadelphia metro region, with more than $30 billion in combined client assets.

SPONSORED Estate planning isn't a service add-on. It's your retention strategy.

As $84 trillion prepares to change hands, advisors who treat estate planning as peripheral are quietly building a sieve, not a book.

SPONSORED Why strategy matters more than performance

In volatile markets, the advisors who win aren't the ones with the best calls - they're the ones whose clients stay the course.