Investor Lawyers Blog

CFTC in Action: Agency Adopts Rules on SIDCOs, Reissues Relief for Contemporaneous Swaps Documentation Requirements, & Its Chair Gensler Praises Swaps Markets

Published on: November 30, 2013 | by Shepherd Smith Edwards & Kantas, LLP

CFTC Adopts Systemically Important Designated Clearing Organization Rules

The US Commodity Futures Trading Commission has adopted its final rules regarding systemically important designated clearing organizations. The new SIDCO rules line up CFTC regulations to with the Principles for Financial Market Infrastructures set up by the International Organization of Securities Commissions and the Bank for International Settlements.

Per the rules, SIDCOs can remain Qualifying Central Counterparties (QCCPs) for international bank capital standard purposes. The rules come with substantive requirements having to do with financial resources, governance, system safeguards, special default rules and procedures for shortfalls or losses that are not covered, disclosure requirements, risk management, efficiency, and recovery and wind-down procedures. The rules also tackle the procedures through which derivatives clearing organizations besides SIDCOs can choose to become subject to additional standards so they can also be considered QCCPs.

Texas Securities Fraud: SEC Accuses Two Houston-Based Advisory Firms of Making Thousands of Transactions That Clients Didn’t Know About

Published on: November 27, 2013 | by Shepherd Smith Edwards & Kantas, LLP

According to the SEC, Houston-based advisory firms Tri-Star Advisors and Parallax Investments LLC made thousands of principal transactions through the broker-dealer they are affiliated with but did not disclose that they were doing this to clients even though they are obligated to notify customers/get their permission beforehand. Also facing Texas securities charges over the transactions are three executives: John P. Bott II, who owns Parallex, and Jon C. Vaughan and William T. Payne, who are Tri-Star officials.

The regulator’s orders of administrative proceedings say that Bott made a minimum of 2,000 undisclosed principal transactions without the permission of Parallex clients. Meantime, for each one (executed between 2009 to 2011) its affiliate broker-dealer Tri-Star Financial employed its inventory account to buy bonds backed by mortgages for these clients and moved the bonds into the accounts of clients. Bott received close to half of the $1.9 million in sales credits that Tri-Star Financial received on the transactions.

Vaughan and Payne are also accused of making over 2,000 undisclosed principal transactions during the same timeframe without the permission of their Tri-Star Advisor clients. The same broker dealer provided similar third-party services as it did for Parallex, and Vauhan and Payne got close to half of the $1.9 million in gross sales credits. SEC Enforcement Division’s Asset Management Unit co-chief Marshall S. Sprung says that Tri-Star and Parallex prevented clients from knowing that their advisers could benefit from “running the trades through an affiliated account.”

US Hedge Fund Industry is Worried About Tax Implications Under EU Directive

Published on: November 27, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The hedge fund industry in the United States is worried about how managers will be treated under the proposed compensation guidance issued by the U.K. Financial Conduct Authority about the implementation of the E.U. Alternative Investment Fund Managers Directive. The Managed Funds Association is primarily concerned with how tax is dealt with as it pertains to compensation paid to American and other non-EU hedge fund managers.

The Managed Funds Association wrote a letter to the FCA asking that the agency make sure that deferral requirements factor in tax implications for fund manager employees in the jurisdiction of covered employees. The MFA wants remuneration provisions to EU fund managers restricted and not extended to their delegates.

The MFA is worried about practical issues and costs that can occur when the hedge fund regulatory regime and the taxation regime for LLPs and Partnerships in the UK interact. In that country LLPs and Partnerships are treated as tax-transparent, with the result being that partners of partnerships and partnerships of LLPs are taxed to the degree where profits are distributed to them regardless of which one did the distributing. MFA is concerned that because of the deferred remuneration provisions, LLP members and partners could end up with tax liabilities on income that is deferred without corresponding incomes to cover the liabilities.

MF Global to Pay $1.2B to Customers

Published on: November 26, 2013 | by Shepherd Smith Edwards & Kantas, LLP

U.S. District Court Judge Victor Marrero has ordered MF Global to pay customers over $1.2 billion. The defunct brokerage firm left an about $1.6 billion shortfall for approximately 38,000 customers when it filed for bankruptcy protection in 2008.

Now, with this court order, along with the attempts of a liquidation trustee to get back the missing funds, customers are going to get almost all of their money back. Also, in addition to paying certain creditors and customers, MF Global will pay a $100 million penalty.

The brokerage tanked financially after it revealed that it had placed bets worth billions of dollars on high risk European debt. As customers started to leave MF Global in bulk and trading partners demanded bigger margin payments, the firm used customer funds for its own purposes (more than a billion dollars was taken out of their accounts) and did not replace them. This is not allowed. Also the estimated shortfall was about $1.6 billion.

High Commission Products are Wall Street Favorites

Published on: November 25, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Nontraded real estate investment trusts are getting a lot of intention from Wall Street lately. One reason for this is that LPL Financial (LPLA), Ameriprise Financial Services (AMP), and other independent brokerage firms are continuing to raise billions of dollars for deals and in sales.

Already, independent broker-dealers are headed toward selling $20 billion in nontraded REITS in 2013, which is nearly twice the amount that were sold in 2012. According to LPL Financial, its commissions for nontraded REITs and other alternative investments has gone soaring, hitting $81.2 million in revenue from July to September. Even the Goldman Sachs Group Inc. (GS) has been going after alternative investments by seeking a partnership with the CAIS Group, which is an exchange for such products, including private equity funds and hedge funds.

Meantime, the Blackstone Group (BX) and KKR & Co., both private equity firms, are handling private-loan portfolios worth billions of dollars in nontraded business development companies involving sellers such as LPL and Ameriprise. And even REITs are getting involved, with Starwood Property Trust Inc. (STWD) investing $250 million into the Griffin Capital Essential Asset REIT Inc., which is a nontraded REIT, and purchasing 24.3 million shares in it.

$3.8M Colorado Securities Scam Defrauded Over 40 Elderly Seniors

Published on: November 24, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission is charging Gary C. Snisky with defrauding over 40 senior investors in a $3.8 million Colorado securities scheme. The regulator contends that Snisky, who describes himself as an institutional trader, used insurance agents to sell interests in Arete LLC, which was supposedly more profitable and safer than annuities. He is accused of targeting mainly retired annuity holders, many of whom live in in the state.

According to the SEC, investors were told that their money would go toward buying government-backed agency bonds at discount rates and that the bonds would be used in overnight banking sweeps. Instead, Snisky misappropriated about $2.8 million of investor money to pay for his mortgage and pay sales folk their commissions.

Snisky is accused of bringing in experienced insurance salespersons who could source their existing client base of annuity holders and get them to invest in Arete. He described Arete as an “annuity plus” investment that investors could take principal from and earn interest without penalty (even after a decade) while still benefitting from guaranteed annual returns of up to 7%. The SEC says that the purported institutional trader stressed that the investments were safe and claimed he could get agency bonds backed by the government at a reduced rate and without paying fees for middlemen. He also allegedly drafted documents that salespeople used as offering materials to attract investors, showed the staff fake investor account statements to make it appear as if there were actual earnings, and organized seminars where he met with salespeople and investors.

CommonWealth REIT Shareholders Gets New Vote on Whether to Oust Its Board

Published on: November 24, 2013 | by Shepherd Smith Edwards & Kantas, LLP

In the dispute between investors and CommonWealth REIT (CWH) over whether to oust its board, an arbitration panel said that attempts by shareholder to remove trustees were not valid but that a new vote could go forward. Related Cos. and Corvex Management LP, both CommonWealth shareholders, have been trying to get the board of trustees removed because they believe there was mismanagement and conflicts of interest.

They blamed this in part on CommonWealth President Adam Portnoy and his dad (and company founder) Barry owning external management firm REIT Management and Research LLC. The two of them are also on REIT’s board.

Corvex and Related claim that they were able to get support from holders that owned over 70% of the shares to get the trustees taken out. However, CommonWealth not only denies the conflict of interest claims but also contends that per its bylaws the vote was not valid.

Puerto Rico Paid Wall Street Securities Firms $1.4B in $61B of Bond Sales

Published on: November 23, 2013 | by Shepherd Smith Edwards & Kantas, LLP

As most investors in Puerto Rican bonds are aware, the territory is billions of dollars of debt and the ratings on many of the bonds the Commonwealth has issued have recently fallen. As a result the value of many Puerto Rican municipal bonds has plummeted over the last few months. Still, even with falling ratings and prices and a looming crisis for the Puerto Rican government, Wall Street firms continue to help the territory borrow money.

Reportedly, Puerto Rico and its public agencies have sold $61 billion of bonds in 87 deals since 2006. With these deals the island paid these US securities firms, their attorneys, and others approximately $1.4 billion. Also, the financial firms were able to charge higher underwriting fees for Puerto Rican municipalities than what they imposed on US cities and states when they were in trouble.

According to the Wall Street Journal the territory has paid approximately $764 million in fees to underwriters, credit raters, attorneys, and insurers in the last seven years while backstopping a lot of the bonds. Citigroup (C) and UBS (UBS) received over half this money for underwriting. And just this August, Morgan Stanley (MS) was a lead underwriter when Puerto Rico’s electric power authority sold $673 million in bonds.

FINRA Bars Broker Accused of Selling Over $18M in Fraudulent Promissory Notes to NBA, NFL Athletes, & Others

Published on: November 21, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority has banned ex-Success Trade Securities Inc. broker Jinesh “Hodge” Brahmbhatt from the industry. The broker is accused of selling over $18 million in fraudulent promissory notes to 58 investors, which included many National Football League and National Basketball Association athletes. Brahmbhatt’s registered investment adviser firm is Jade Private Wealth Management LLC.

In its letter of acceptance, waiver and consent, FINRA cites Brahmbhatt for failing to show up and testify at a disciplinary hearing about his former employer and its CEO Fuad Ahmed. The SRO is accusing the firm and its chief executive of fraudulent promissory notes sales and filed its complaint in April.

FINRA said that the notes, put out by parent company Success Trade, were sold with the promise of yearly 12% to 26% interest rates. Sale proceeds purportedly went to personal unsecured loans to Ahmad, paid for firm operations, and paid off past investors. FINRA has alleged that Success Trade tried to get note holders to either get stock in the company or roll over notes that were maturing at higher rates.

Municipal Bond News : SEC Offers Small Entity Compliance Guide, MSRB Puts Out Video on Issuance Process, CFTC Offers SEF Regulatory Guidance, & Lawmakers Consider SIPC Reforms

Published on: November 21, 2013 | by Shepherd Smith Edwards & Kantas, LLP

SEC Issues Small Entity Compliance Guide

The Securities and Exchange Commission has put out a small entity compliance guide that explains the new forms and rules involved with the municipal advisers registration regime. Issued in September, the rules and forms implement the Dodd-Frank Act’s Section 975, which mandates that municipal advisers register with the regulator.

Permanent registration dates start the first of next year through October 31, 2014. If an adviser joins up after this time, it will have to apply to register under the permanent regime before engaging in any activities.