Investor Lawyers Blog

Cayman Islands LLC Must Replead CLO Securities Case Against Deutsche Bank

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

The U.S. District Court for the Southern District of New York says that Arco Capital Corp. a Cayman Islands LLC, has 20 days to replead its $37M collateralized loan obligation against Deutsche Bank AG (DB) that accuses the latter of alleged misconduct related to a 2006 CLO. According to Judge Robert Sweet, even though Arco Capital did an adequate job of alleging a domestic transaction within the Supreme Court’s decision in Morrison v. National Australia Bank, its claims are time-barred, per the two-year post-discovery deadline and five-year statute of repose.

Deutsche Bank had offered investors the chance to obtain debt securities linked to portfolio of merging markets investments and derivative transactions it originated. CRAFT EM CLO, which is a Cayman Islands company created by the bank, effected the transaction and gained synthetic exposure via credit default transactions. For interest payment on the notes, investors consented to risk the principal due on them according to the reference portfolio. However, if a reference obligation, which had to satisfy certain eligibly requirements, defaulted in a way that the CDS agreements government, Deutsche Bank would receive payment that would directly lower the principal due on the notes when maturity was reached.

Arco maintains that the assets that experienced credit events did not meet the criteria. It noted that Deutsche Bank wasn’t supposed to use the transaction as a repository for lending assets that were distressed, toxic, or “poorly underwritten.”

Courts Nationwide Dismiss More Securities Actions: Madoff Trustee’s Case, Equinox Investor’s Class Lawsuit, K-Sea Transportation Litigation, & Shareholder Derivative Complaint is Thrown Out

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

Trustee Can’t Sue Investment Banks for Aiding Madoff Ponzi Scam

The U.S. Court of Appeals for the Second Circuit affirmed a lower court ruling that trustee Irving Picard cannot sue the investment banks accused of allegedly aiding and abetting the Madoff Ponzi scam for billions of dollars because the doctrine in pari delicto bars him. Per the doctrine, one wrongdoer can’t recover from another wrongdoer.

Picard sued UBS AG (UBS), JPMorgan Chase & Co. (JPM), HSBC Bank plc, and UniCredit Bank Austria AG, claiming they disregarded warning signs of Madoff’s fraud as they received significant fees. Because Picard is now in “Madoff’s shoes” as the debtor’s representative of Bernard L. Madoff Investment Securities, the court said that he cannot proceed with lawsuits against the parties that took part in the fraud.

Securities Lending Trial Against Wells Fargo & Co. is Underway

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

It will be up to 11 jurors to determine if Wells Fargo & Co. (WFC) is guilty of grossly mismanaging a securities lending program and lying about the degree of risk involved or whether the economic crisis was actually at fault. The program was marketed to institutional clients, including pension funds. According to investors, the bank committed fraud by taking huge risks with what they were under the impression was a conservative program. Nearly 15% of the portfolio’s by 2007’s fall season had defaulted or was distressed. (Citigroup (C) has since bought most of Wells Fargo’s Clearland securities lending business.)

The plaintiffs contend that rather than investing money in higher grade market instruments and other safe investments, which is what they thought was being done), managers bet on structured investment vehicles and other high-risk financial instruments. Cheyne Finance, one SIV involving subprime mortgages that the bank invested in, was placed in receivership. The securities case, filed in 2011, focuses on cash collateral investments primarily made by Wells Fargo between 2005 and 2008.

Wells Fargo denies the allegations. Contrary to the attorneys for the investors, the bank’s lawyers are arguing that the securities lending business’s investments were conservative and safe and that it’s track record was pretty solid until the economic crisis. Even then, contend the attorneys, the losses suffered were not a big portion of the program. Also, claims Wells Fargo, the securities lending program was overseen at a level that was “extraordinarily high” and the investors’ best interests were primary. The banks’ legal team noted that investors were given written warnings that losses were likely.

“Ask and It Shall Be Received”: Securities Brokers Can Wipe Complaints and Even Legal Claims Off Their Public Records

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

The New York Times is reporting that on May 24, a Financial Industry Regulatory Authority panel of arbitrators granted Wells Fargo (WFC) broker Michele Kief ‘s request that it recommend that the securities complaint, in which the bank settled for $125,000 allegations of fraud and negligence related to her actions, be deleted from her record. They also agreed that it be noted that the investments at issue were “suitable and safe. “There at least eight other client disputes on BrokerCheck against Kief. BrokerCheck is FINRA’s regulatory database.

Just two months before, FINRA arbitrators also consented to recommend the deletion of a securities arbitration complaint against ex-Charles Schwab (SCHW) executive Kimon P. Daifotis. This was the eighth such recommendation against Daifotis, who ran the Schwab Yield Plus fund that led investors to lose hundreds of millions of dollars.

“As FINRA publishes, advertises and encourages investors to check a broker’s record to gain information about their broker or a prospective broker, FINRA arbitrators often wipe that record clean.” Says William S, Shepherd, a securities attorney who represents investors in cases against brokers. “Everyone would like to wipe our credit record clean, maybe we just need to ask. Also, there is no educational requirement to become a securities broker, not even a high school degree. The only requirements are a 4-month apprenticeship and passing a multi-state state and a FINRA examination. Yet, securities brokers manage millions, some even hundreds of millions, of investors’ money. Their average six-figure income brokers places them in the highest percentiles of earnings in the U.S, along with other licensed professionals. Public disclosures are, and should be, important for those who often turn over their retirement accounts and even entire life savings to be handled by those who call to extoll their expertise.”

LPL Securities Names Ex-SEC Official As Its New General Counsel

Published on: June 19, 2013 | by Shepherd Smith Edwards & Kantas, LLP

LPL Securities has hired the Securities and Exchange Commission Division of Enforcement’s ex-acting deputy director David Bergers as LPL Financial Holdings Inc.’s (LPLA) general counsel and managing director for government and legal relations. Following news of the appointment, LPL CEO and Chairman Mark Casady was quick to point out that the firm didn’t choose Bergers because it recently has been in trouble with regulators. That said, Casady did acknowledge that Bergers’ 13 years of SEC experience was one reason he became the top contender for the post. Because of SEC rules, Bergers is not allowed to appear before the Commission as an LPL representative until June 2014.

A source close to our securities fraud law firm says that there are at least seven complaints against Bergers at the moment, with the majority of them involving large seven-figure. Before working at the SEC, Bergers served as assistant general counsel and vice president for Tucker Anthony Inc., a regional brokerage firm.

In regards to LPL’s recent trouble’s with regulators, there was the $7.5 million that the Financial Industry Regulatory Authority ordered the financial firm to pay over nearly three dozen key e-mail system failures (including retention issues) that occurred between 2007 and 2013 involving 28 million business emails and thousands of independent contractor representatives. The SRO accused LPL of inadequate supervision, failure to capture emails and respond to regulator requests, and making misstatements during the SRO’s investigation. In addition to the fine, LPL has to establish a $1.5 million fund for customer compensation.

Former Millennium Global Investments Portfolio Manager Accused of Fraud Involving Nigerian Sovereign Debt Markups

Published on: June 19, 2013 | by Shepherd Smith Edwards & Kantas, LLP

According to prosecutors, Michael Balboa, an ex-Millennium Global Investments Ltd. portfolio manager, took part in a 10-month financial scam that involved marking up the Nigerian sovereign debt in funds he oversaw.

The federal government contends that Balboa and three unnamed co-conspirators engaged in a scheme in which he provided bogus mark-to-market quotes to a valuation agent that then inflated the market prices at month-end for Nigerian warrants. As a result, one fund’s total valuation for the Nigerian warrants was able to go from over $12 million at the start of 2008 to over $84 million in August of that year. Balboa’s Millennium Global Emerging Credit Fund is now insolvent.

He allegedly overstated the value of the securities positions and illiquid securities in the funds, which caused him to earn performance and management fees that were not legitimate. Balboa also purportedly lied to investors repeatedly about how the funds were faring.

Former Broker Claims He is the Reason FINRA’s Regional Director Resigned, While Ex-JP Morgan Broker Files Arbitration Claim Against His Former Employer

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

According to former broker David Evansen, he is the reason that Mitchel C. Atkins, the Financial Industry Regulatory Authority Inc.’s District 7 region director, resigned. His claim differs from the SRO’s statement about how Atkins decided to step down “pursue other interests.” Aktins, as FINRA regional director, was in charge of Florida, Atlanta, New Orleans and Dallas, and he worked with the agency for 20 years.

Evansen said that he wrote to FINRA chief executive Richard Ketchum and regulatory operations EVP Susan Axelrod to let them know that Atkins was indicted on both a misdemeanor and felony charge in Louisiana two decades ago. He said that he couldn’t confirm for sure that his letter is why Atkins resigned but he is convinced that it is.

Per Evansen, Atkins purportedly used bingo game earnings for non-charitable purposes, which is illegal in that state. While the felony charge was dropped, Evansen said that Atkins pleaded guilty to the misdemeanor charge. After Atkins complied with his sentence term, which included conditional probation, community service, and other specifics, his record was expunged.

SEC Risk Fin Director Wants Public Input About Investor Protection-Related Costs and Benefits

Published on: June 15, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission’s Division of Risk, Strategy and Financial Innovation’s director Craig Lewis wants members of the public to be more proactive about offering information regarding investor-protection related benefits and costs during the rulemaking process. At the Pennsylvania Association of Public Employee Retirement Systems’s spring forum, Lewis said that it would help the regulator if it was given if not quantitative data, then qualitative, descriptive, and thorough information so it could better comprehend the possible effect a rule might have on investor protection.

According to the Commission’s recently published guidance on how it performs economic analysis to support rulemaking, there are four basic elements, including:

1) Identifying the justification for why there should be a rulemaking.

Radio Host Dave Ramsey and Financial Advisers Get Into Twitter Fight

Published on: June 14, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Dave Ramsey, a well-known radio host, recently got into a twitter war with fee-only financial advisers. The advisers had criticized the radio personality, who is also an author, for telling his readers to expect a 12% investment return and for promoting brokers who are commission-based. Ramsey hosts the popular “The Dave Ramsey Show,” which is a program about money and life.

One adviser, Carl Richards, Tweeted that Ramsey’s advice was “dangerous.” Ramsey responded to his critics also via Twitter, saying that he provides assistance to more people in minutes than all of these advisers ever will.

Another adviser, David Grant, questioned whether the investment professionals that Ramsey recommends on online pay the host for that endorsement. Ramsey did not respond. However, his website does state that local providers that are endorsed do pay a fee for the “local advertising.” All recommended providers, however, have to be Financial Industry Regulatory Authority Inc. members.

Brokerage Firms Change Hands as Insurers Divest In House Securities Firms, While REIT Manager Schorsch Buys First Allied Securities

Published on: June 12, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Symetra Financial Corp. (SYA), an insurance company, is leaving the independent brokerage business after it sells its broker-dealer Symetra Investment Services Inc. to Manulife Financial Corp. (MFC) unit John Hancock Financial Services Inc. (JHF). Symetra chief executive Tom Mara said that considering the company’s products at this time, owning the brokerage firm as a “distribution channel” isn’t a “good strategic fit” any longer.

The insurer’s brokerage company has approximately 280 registered representatives. Manulife is making the buy in part because it wants to broaden its asset-management business. (Last year, it agreed to buy Wellington West Financial Services Inc. from National Bank of Canada.)

However, ever since the credit crisis, Symetra isn’t the only insurer to get rid of their independent broker-dealers because of the risks and expenses involved with being part of the securities industry. (The declined in variable annuities sales hasn’t encouraged insurance companies to stay in the broker business either.)