Investor Lawyers Blog

American Capital REIT is Accused of Charging Hundreds of Millions of Dollars in Excessive Fees

Published on: October 28, 2016 | by Shepherd Smith Edwards & Kantas, LLP

A class action securities case brought by stockholders is accusing American Capital Agency Corp. of charging excessive management fees that were given to directors and executive officers as compensation. The real estate investment trust invests in agency mortgaged backed securities “on a leveraged basis.” Because of this, American Capital must pay 90% of profits to investors as dividends.

However, according to William Wall, the lead plaintiff in the REIT case, a number of the individual defendants “improperly funneled” millions of dollars that should have gone to AGNC stockholders. He said that the REIT’s board allegedly forced the company to pay the AGNC Manager “exorbitant” fees in light of the management agreement between the AGNC Manager and AGNC. The fees went to the defendants.

Noting that the REIT’s dividend is a key metric for its success, the class action securities complaint said that in 2012 the board cut AGNC’s dividend by over 50%. The plaintiff said that the board had the contractural right to either end the unfair management agreement or make the AGNC Manager charge fees that were fairer. Instead, AGNC allegedly kept paying the manager over $100M annually even though results were “abysmal.”

Estate of Bernie Madoff’s Friend to Pay Trustee Irving Picard Over $262M

Published on: October 28, 2016 | by Shepherd Smith Edwards & Kantas, LLP

The estate of Stanley Chais has agreed to pay the victims of Bernard Madoff’s Ponzi scam $277M to settle claims accusing Chais, a Beverly Hills manager, of enriching himself through the fraud while costing thousands of investors, including his own clients, money.

Chais was one of Madoff’s oldest friends and one of his earliest investors. When the multi-billion dollar scam failed eight years ago, however, Chais claimed he had been fooled by Madoff, too, and that he knew nothing about the fraud. Yet he and his estate have since been the subject of securities fraud cases related to the Madoff Ponzi scam for years. Chais died in 2010.

Now, his estate has agreed to pay Madoff trustee Irving Picard over $262M, as well as $15M to California’s attorney general to settle a class action case. Picard had accused Chais and his wife Pamela, as well as entities under their control, of allegedly making about $1B from bogus securities transactions conducted by Madoff’s firm. Chais also earned hundreds of millions of dollars as a money manager for sending his customers’ money into Bernard Madoff’s financial firm.

Hedge Funds with Puerto Rico Revenue Bonds Want Court to Delay General Obligation Bondholders’ Lawsuit

Published on: October 27, 2016 | by Shepherd Smith Edwards & Kantas, LLP

A battle of hedge funds, and their competing interests, has erupted in Puerto Rico over the last few weeks. This week, hedge funds Tilden Park Capital Management LP, Whitebox Advisors LLC, Merced Capital LP, and GoldenTree Asset Management LP filed a motion asking a court to impose a legal stay that would delay the lawsuit filed by general obligation bondholders that want Puerto Rico to stop directing sales-tax revenue away from the general fund. These hedge funds that submitted the motion collectively hold about $2 billion of tax revenue bonds, which are called COFINA bonds, locally.

Meantime, the general obligation bondholders that filed the lawsuit are also hedge funds. They include entities under the management of Aurelius Capital Management, FCO Advisors, Autonomy Capital, Covalent Partners, Monarch Alternative Capital, and Stone Lion Capital Partners. Earlier this month, they asked a court to stop the island from using sales-tax revenue to pay back COFINA debt. Those funds believe that the sales tax revenue should pay back the general obligation bonds first because Puerto Rico’s constitution states that general obligation should be repaid before other debt. However, the hedge funds holding the COFINAs that are requesting the legal stay are arguing that COFINA’s share of the sales-and-use-tax should not be “subject to clawback” in the event of a payment shortfall of the general obligation bonds.

This fight is playing out at the same time the U.S. Government is trying to help the U.S. Commonwealth with its financial crisis. PROMESA, which stands for the Puerto Rico Oversight Management and Economic Stability Act, is the new law that includes the legal stay that the CONFINA holders want imposed. The stay postpones creditor lawsuits against the island until February 15, 2017 in order to give Puerto Rico time to work out how to repay the $70 billion of debt it owes. Although Puerto Rico is way overdue on $1.8 billion of principal plus interest payments, this includes what the island owes on general obligation bonds, the Commonwealth paying back COFINAs.
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SEC Adopts Final Rules to Modernize Fund Raising for Intrastate and Regional Offerings, Enhance Information that is Reported by Funds, and Enhance the Effectiveness of Risk Management Programs

Published on: October 27, 2016 | by Shepherd Smith Edwards & Kantas, LLP

The SEC has adopted final rules to modernize the way companies are allowed to raise funds for their businesses via small and intrastate offerings, all the while keeping investor protections in place. The final rules include amendment to Securities Act Rule 147 and a new Securities Act Rule 147A for out-of-state residents and companies organized or incorporated outside the state.

Under the Rule 147A and Securities Act Rule 147 amendments, the current intrastate offering framework, which allows companies to raise funds from investors in their state without having to federally register the sales and offerings, would be modernized. New Rule 147A would differ from Rule 147 in that it would permit out-of-state residents and companies outside the state, or companies that were incorporated outside the state, to access these securities offerings.

There are also now amendments to Regulation D’s Rule 504 that would grant registration exemption for offers and sales as high as $1M of securities within a one-year period, as long as the issuer does not qualify as an Exchange Act reporting company, blank check company, or investment company. The aggregate quantity of securities that could be offered and sold under Rule 504 within any yearlong period would go up from $1M to $5M. Meantime, the new final rules would repeal Rule 505, which allowed for offerings of up to $5M yearly that were sold only to accredited investors or 35 non-accredited investors maximum.

SEC Cases: Embraer Settles FCPA Charges for $205M, Bank Leumi is Charged with Engaging Unregistered US Cross-Border Business, and Lime Energy Company and Executives Settle Accounting Fraud Charges

Published on: October 26, 2016 | by Shepherd Smith Edwards & Kantas, LLP

Aircraft Manufacturer Settles FCPA Violation Charges With the SEC and DOJ for Over $205M

Embraer S.A. has arrived at a global settlement with the U.S. Securities and Exchange Commission, the U.S. Department of Justice, and Brazilian authorities. The agreement resolves allegations that the aircraft manufacturer violated the Foreign Corrupt Practices Act, and it requires the company to pay over $205M.

According to the SEC’s complaint, Embraer made over $83M because of bribe payments made by its subsidiary in the US. The payments were made via third-party agents to foreign government officials in Saudi Arabia, the Dominican Republic, and Mozambique, as well as an agent in India. The company allegedly generated false records and books to hide the illegal payments and took part in an accounting scam in India.

To settle, Embraer will pay the DOJ $107M as part of a deferred prosecution deal and over $98M to the SEC in disgorgement plus interest. It is also expected to pay disgorgement to authorities in Brazil in that country’s civil case.

FINRA Bans Dallas Broker For Recommending Ponzi Scheme to Investors

Published on: October 25, 2016 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority (FINRA) has banned Stuart G. Dickinson, a Dallas broker, from the securities industry for recommending that customers back a Ponzi scheme. At the time, Dickinson was with WFG Investments. The firm fired him in 2013.

In addition to the bar, Dickinson must pay seven customers $924K in restitution over the Texas securities fraud. According to FINRA’s default decision notice, Dickinson failed to perform the reasonable due diligence on ATM Financial services (ATMF) and did not detect the red flags indicating that it was a sham. As a result, said the self-regulatory organization, investors lost $1.02M.

It was in 2007 that Dickinson sold over $1M in limited partnership interests in ATM Alliance. He had formed contracts with the company to service and manage ATM machines in a number of locations. Dickinson established a general partnership to raise funds for the ATM investments and he became a 90% owner while his supervisor Trent W. Schneiter became a 5% owner. As part of the agreement, they would earn 20% off what the banking machines made.

Ex-Oppenheimer Broker Pleads Guilty in Insider Trading Case

Published on: October 25, 2016 | by Shepherd Smith Edwards & Kantas, LLP

David Hobson, an ex-Oppenheimer & Co (OPY) investment adviser, has pleaded guilty to the criminal charges of securities fraud and conspiracy to commit securities fraud. The 47-year-old Rhode Island broker admitted that he engaged in insider trading using information given to him by investment client Michael Maciocio in order to make illegal profits. Maciocio has already pleaded guilty to the charges in the insider trading case against him.

According to Preet Bharara, the United States Attorney for the Southern District of New York, between 5/2008 to 4/2014 Hobson and Maciocio sought to trade on insider information regarding acquisitions that a particular pharmaceutical company was considering. Although Bharara’s release doesn’t name the company, Law360 identified the company as Pfizer Inc. Bharara said that Maciocio, who was master planner in Pfizer’s active pharmaceutical ingredient supply chain group, would find out about the upcoming acquisitions and tip Hobson.

Bharara’s statement said that even though Maciocio was not given access to the acquisitions that the pharmaceutical company was targeting, he would use the code name of the acquisition, the drug indication, the dose, the clinical trial phase, and/or the drug’s chemical structure to find out the name of the company that Pfizer was considering acquiring. Maciocio would trade based on this information and share the information with Hobson. The two men have been friends since childhood.

Deutsche Bank Settles Silver Rigging Allegations for $38M

Published on: October 24, 2016 | by Shepherd Smith Edwards & Kantas, LLP

Deutsche Bank (DB) has agreed to pay $38M to settle a securities lawsuit alleging that it colluded with other banks to manipulate silver prices. According to Reuters, this agreement could compel other banks that have been accused of the same misconduct to settle.

According to the complaint, investors are accusing the German lender, Bank of Nova Scotia (BNS), and HSBC Holdings (HSBC) of fixing silver prices. They purportedly did this during a secret meeting conducted daily known as the Silver Fix. The silver manipulation scam allegedly began in 2009 and the alleged colluders suppressed prices on about $30B of silver financial instruments and silver that were traded annually. As a result of the alleged silver manipulation scam, banks were purportedly able to make returns that could exceed 100 percent annualized.

Investors claim that UBS AG (UBS) exploited the silver rigging. However, U.S. District Judge Valerie Caproni dismissed the Swiss lender from the case. She said that even if UBS profited from the silver manipulation there was no evidence provided to show that the Swiss bank had rigged prices.

DOJ to Sue Moody’s Over Mortgage-Backed Securities

Published on: October 21, 2016 | by Shepherd Smith Edwards & Kantas, LLP

According to a letter written by prosecutors to Moody’s (MCO), the U.S. Department of Justice intends to sue the credit rating agency and its Moody’s Investors Services unit over valuations that the latter assigned to mortgage-backed securities leading up to the 2008 financial crisis. The MBS fraud case is expected to make claims about the way the agency rated collateralized debt obligations and residential mortgage-backed securities, as well as allege violations of the Financial Institutions Reform, Recovery, and Enforcement Act as it pertains to rating RMBSs and CDOs. Moody’s disclosed the expected case in an update that also included third quarter earning results.

Aside from the DOJ case, several states’ Attorney Generals are expected to pursue their own claims against Moody’s, except that their cases would be brought under state law.

A number of ratings companies have come under fire over their alleged failure to provide accurate warnings about the risks involved in investing in MBSs and CDOs leading up to the economic crisis. In 2013, the DOJ sued Standard & Poor’s over similar allegations, along with the claim that the agency misled investors for its own profit while misrepresenting the actual risks involved in the securities. Last year, S & P settled with the DOJ, the District of Columbia, and 19 states for almost $1.4B. The government and the states took issue with the way S & P rated the CDOs and RMBSs that it issued from ’04 to ’07.

Securities Cases: Merrill Lynch Ordered to Pay $2.8M for Supervisory And Other Violations, Ernst & Young Agrees to Pay $11.8M for Failed Audits, and Ex-Morgan Stanley Client Administrator is Suspended Over Fraudulent Wire Transfer

Published on: October 20, 2016 | by Shepherd Smith Edwards & Kantas, LLP

Financial Industry Regulatory Authority Fines Merrill Lynch $2.8M

FINRA has fined Merrill Lynch, Pierce, Fenner and Smith Inc. $2.8 million. By settling, the firm is not denying or admitting to the self-regulatory organization’s charges.

FINRA said because of system errors, Merrill Lynch inaccurately reported millions of trades. The regulator said that Merrill Lynch’s supervisory system as it relates to specific matters related to documenting, reporting, and records was not designed in a reasonable manner.

Ernst & Young Settles Audit Failure Charges By Agreeing to Pay Over $11.8M

Ernst & Young LLP has agreed to resolve U.S. Securities and Exchange Commission charges accusing it of audit failures. The monetary settlement, along with the $140M penalty that audit client Weatherford International agreed to pay separately, will go back to investors who were hurt in the accounting fraud.