Investor Lawyers Blog

Morgan Stanley to Pay New Jersey Regulators $100K for Selling Exotic ETFs to Investors, Including Seniors

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

Morgan Stanley will pay $100,000 to the New Jersey Bureau of Securities for allegedly selling exotic exchange-traded funds to investors. The state’s regulators say that the firm’s financial advisers were not properly trained and sold inverse and leveraged ETFs to senior investors that wanted to earn additional income. These clients instead would go on to sustain losses. A state official contends that the financial firm did not properly supervise staff that was dealing with ETF transactions.

Commenting on the securities settlement, Morgan Stanley said it was “pleased’ to have arrived at a resolution and that since the period in question-1/07 to 6/09, the brokerage firm has overhauled its process involving these products. The amount includes $65K in civil penalties, $25K to pay the state back for its investigative expenses, and $10,000 toward investor education. Already, the broker-dealer has paid $96,940 in restitution to investor in New Jersey.

Last year, Morgan Stanley consented to pay close to $2.4 million to settle Financial Industry Regulatory allegations over the firm’s handling of ETFs. According to the SRO, from 1/08 to 1/0, the firm did not set up or maintain a supervisory system and written procedures to ensure compliance with FINRA and NASD rules related to the sale of inverse, leveraged, and inverse leveraged ETFs.

Investor Sues Berthel Fisher Over TNP 2008 Participating Notes Program LLC

Published on: July 29, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Investor Jon Hanson is suing Berthel Fisher & Co. Financial Services Inc. for allegedly not conducting the necessary due diligence on the TNP 2008 Participating Notes Program or making the proper disclosures to parties like him that backed the high-risk investment. The private placement went into default in 2012.

The independent brokerage firm, which not so long ago settled the majority of investor claims over real estate deals involving Diversified Business Services and Investments Inc., (a real estate manager that is now bankrupt), could be facing a class action securities case involving a failed deal with Tony Thompson, the real estate investor. This would be the first time that a broker-could be hit with a class action over a Thompson National Properties LLC-sponsored product.

According to Hanson’s securities fraud lawsuit, Berthel Fisher allegedly know there were misrepresentations and omission in the TNP 2008 Participating Notes Program memorandum yet did not probe further into the red flags. Instead, the financial firm used the “misleading TNP 2008 PPM” to help collect about $26.2M from more than 200 investors. Although the independent broker-dealer did not sell all of the TNP 2008 Notes Program and not all of the $26M was sold to its clients, it is a defendant of this private placement case because it was the underwriter of the deal.

Both Sides Rest in Ex-Goldman Sachs Bond Trader Fabrice Tourre’s Trial For Alleged Mortgage-Backed Securities Fraud

Published on: July 29, 2013 | by Shepherd Smith Edwards & Kantas, LLP

In federal court, both the Securities and Exchange Commission and former Goldman Sachs Group (GS) vice president Fabrice Tourre have both rested their case in the civil trial against the bond trader. Tourre is accused of MBS fraud for his alleged involvement in a failed $1 billion investment connected to the collapse of the housing market. After the SEC finished presenting its evidence, U.S. District Judge Katherine Forrest turned down Tourre’s bid to have the securities case against him thrown out. He denies wrongdoing and says that his career is in now in shambles.

According to the regulator, Tourre purposely misled participants in the Abacus 2007-AC about the involvement of John Paulson’s hedge fund Paulson and Co. The Commission contends that Tourre concealed that Paulson helped select the portfolio of the subprime MBS underlying Abacus—a $2 billion offering linked to synthetic collateralized debt obligations. The latter then shorted the deal by betting it would fail.

The SEC’s complaint points to Tourre as primarily responsible for the CDO, which it says says he devised and prepped marketing collateral for and was in direct contact with investors. The regulator believes that by failing to disclose Paulson’s role, Tourre broke the law. They also contend that instead the bond trader instead told customers that as an Abacus investor, Paulson’s hedge fund expected the securities to go up.

Texas Securities Case: SEC Alleges Ponzi Scam Involving Virtual Currency Bitcoin

Published on: July 28, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission is suing Trendon Shavers and his company Bitcoin Savings & Trust, accusing the two of them of running a Ponzi scam involving Bitcoin. In its Texas securities fraud case, the regulator contends that Shavers offered and sold the denominated investments online with the use of the names “pirateat40” and “Pirate,” purportedly raising at least 700,000 Bitcoin in BTCST investments.

Bitcoin is a virtual currency that is traded on online exchanges. Based on its average price in 2011 and 2012 when Bitcoin was on the market, the virtual currency at issue was worth over $4.5 million. Today, their value is greater than $60 million.

The SEC believes that Shavers told customers they could make up to 7% weekly interest due to BTCST’s “Bitcoin market arbitrage activity,” when actually BTCST was a Ponzi scheme that involved Shavers using Bitcoin from new investors to cover purported investor withdrawals on outstanding investments and interest payments. He also allegedly used investors’ Bitcoin to engage in day trading in his account while trading in some of their Bitcoin for US dollars to cover his own expenses.

Thornes & Associates Inc. Investment Securities’ Head Gets Industry Bar for “Lending” $4.2M of His Clients’ Assets to Friends

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

The Financial Industry Regulatory Authority says that Thornes & Associates Inc. Investment Securities President John Thomas Thornes lent $4.2 million in client assets to two friends. Following the resolution of the FINRA arbitration case, the California broker is barred from the securities industry and his broker-dealer has been suspended, as well was expelled as a member of the SRO.

The friends who received the “loans”-over 50 transactions-allegedly spent the assets on cars, vacation homes, and plane and jet rentals. Over $262,000 is said to have been turned into cashier’s checks and used at an Indian casino.

Per FINRA’s complaint, however, calling the transfer of money a “loan” was not an accurate characterization, and not only were they unsecured and undocumented transactions but also they were never paid back.

UBS to Pay Fannie Mae and Freddie Mac $885M to Settle RMBS Lawsuit

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

UBS (UBS) will pay $885 million to settle Federal Housing Finance Agency to settle allegations that it misrepresented mortgage-backed bonds during the housing bubble. $415 million of the mortgage settlement will go to Fannie Mae, while $470 million will be paid to Freddie Mac, both government-sponsored enterprises, over the $200 million in mortgage-backed securities that were sold to them.

According to FHFA, UBS misrepresented the quality of loans that were underlying residential mortgage-backed securities worth billions of dollars that Freddie Mac and Fannie Mae ended up buying. Both firms were seized in 2008 when losses from subprime mortgages brought them close to insolvency. They still are under US conservatorship.

UBS is the third to settle with FHFA over RMBS allegations. Citigroup (C) and General Electric Co. (GE) were the first.

FINRA Reports Losses After Squandering Profit From NYSE Payment

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

Last month, the Financial Industry Regulatory Authority put out its yearly report for 2012. According to the results, the self-regulatory organization is hurting. Its operating losses are huge-nearing $90 million for the second year straight. Meantime, its staff has grown 13%, with benefits and compensation rising 41% in the last five years to hit $628.9 million last year. That’s a significant jump from 2007 when the SRO’s compensation and benefits was $446.1 million. Retirement and pension expenses have risen 89% in the last five years.

While observers say that FINRA’s operating losses are not an immediate danger, no one can say for sure. Some are even asking how could a regulator facing potential financial trouble do its job and protect investors? Unlike its last five yearly reports, FINRA’s 2012 report pointedly says that the will keep observing the changing economy and assessing any effect on the organization. If there were to be a huge market collapse, however, FINRA’s equity would take a beating.

The private SRO is the National Association of Securities Dealer’s successor. NASD’s merger with the New York Stock Exchange (NYSE) Regulatory Division is one reason for the increase in FINRA’s compensation. After its merger with the NYSE Regulatory Division, NASD soon changed its name to the Financial Industry Regulatory Authority (FINRA).

DOJ’s $5B Securities Lawsuit Against Standard & Poor’s Can Proceed, Says Judge

Published on: July 22, 2013 | by Shepherd Smith Edwards & Kantas, LLP

U.S. District Judge David O. Carter for the Central District of California has turned down Standard & Poor’s bid to have the Justice Department’s $5 billion securities lawsuit against it dismissed. This affirms Carter’s recent tentative ruling earlier on the matter.

S & P is the largest credit rating agency in the world. It is a McGraw Hill Financial Inc. unit.

According to the US government, the credit rater fraudulently misrepresented its ratings process as objective and independent when it was, in fact, stymied from issuing ratings because of its desire to please banks and other clients. Instead, between 2004 and 2007, S & P purportedly issued AAA ratings to certain poor quality mortgage packages, including residential mortgage-backed securities, collateralized debt obligations, and subprime mortgage-backed securities. Now, prosecutors want to recover the losses that credit unions and federally insured banks allegedly suffered because of these inaccurate ratings that it contends upped investor demand for the instruments until the prices soared and the market collapsed, contributing to the global economic meltdown that followed.

SEC Charges SAC Capital Hedge Fund Adviser Stephen Cohen With Failure to Stop Insider Trading

Published on: July 20, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission is charging Stephen A. Cohen with failure to supervise two portfolio managers and stop them from insider trading. Cohen is the SAC Capital. The SEC wants to ban the hedge fund mogul from supervising investor funds. A spokesperson for SAC says the securities case is meritless and Cohen always behaved appropriately.

According to SEC Division of Enforcement Co-Director Andrew Ceresny, even though it is the job of a hedge fund manager to properly supervise his/her employees and make sure that everyone is in compliance with securities laws, Cohen failed to act after finding out about red flags indicating that portfolio managers Michael Steinberg and Mathew Martoma may have been engaged in insider trading. The agency says that Cohen received “highly suspicious information” that should have compelled any reasonable hedge fund manager to look into the basis for trades made by Steinberg and Martoma. Instead, he purportedly let them execute the trades and even gave Martoma a $9 million bonus. Because of the illegal trades, the SEC contends, Cohen’s hedge funds made profits while avoiding $275 million in losses.

Already, SAC Capital affiliates have agreed to pay the SEC more than $615 million over the insider trading charges. The Commission says that, Martoma, affiliate CR Intrinsic Investors’ portfolio manager, received confidential data about an Alzheimer’s drug from a doctor who told him about clinical test results before they became public. Martoma and the affiliate then sold over $960 million in securities of Wyeth and Elan Corp., the two pharmaceutical companies that developed the drug, in the span of the week.

To settle the SEC’s case, CR Intrisinc said it would pay $275 million penalty, $275 million in disgorgement, and $52 million in prejudgment interest. Another SAC Affiliate, Sigma Capital, said it would pay $14 million over insider trading allegations to the SEC.

As for Steinberg, he is accused of insider trading in Dell securities. The SEC says that rather than find out whether Steinberg had material non-public information and was insider trading, Cohen followed Steinberg’s recommendation and sold his own shares in Dell. Meantime, Steinberg allegedly used that insider information as the basis for short-selling of Dell shares in his portfolio with Sigma Capital. Shortly after. Dell made its earnings announcement on August 28, 2008, its stock prices dropped. Funds overseen by Cohen’s firms, however, either made money or avoided losing at least $1.7 million.

The SEC is accusing Cohen of violating the Exchange Act’s Section 10(b) and Rule 10b-5 thereunder. He could be ordered to pay financial penalties and be barred from the industry.

SEC Charges Steven A. Cohen With Failing to Supervise Portfolio Managers and Prevent Insider Trading, SEC, July 19, 2013

CR Intrinsic Agrees to Pay More than $600 Million in Largest-Ever Settlement for Insider Trading Case, SEC, March 15, 2013

More Blog Posts:
New Stream Capital LLC Hedge Fund Executives Face Criminal Securities Fraud Charges, Stockbroker Fraud Blog, February 28, 2013

Hedge Fund Manager Philip Falcone Consents to $18M Securities Fraud Settlement, Institutional Investor Securities Blog, May 16, 2013

Investment Advisors Report: SEC Division Reviews Application of Investment Advisers Act, New Commission Unit Will Watch For Adviser Risk, & Just 1 in 10 SEC Exams Leads to Enforcement Action, Stockbroker Fraud Blog, March 26, 2013

Nontraded REIT News: Securities America Stops Selling American Realty Capital Trust V and Advisor Group Ends Selling Deal with Cole Holding

Published on: July 18, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Securities America Stops Selling Nontraded REIT ARC V

Securities America Inc. has severed ties with American Realty Capital Trust V Inc., a top-selling nontraded REIT. The independent broker-dealer blamed this on an overconcentration risk and its own exposure to real estate programs that AR Capital, a brokerage firm, distributes.

The nontraded real estate investment trust, known as ARC V, was the number one seller last month with about $10.8 million in daily sales. Already, between April, when the REIT launched, through the end of June, brokers have sold $406 million of them.