Investor Lawyers Blog

Texas Senator’s Bill Would Make Plaintiffs’ Attorneys in Private Securities Cases Disclose Possible Conflicts Of Interest That Might Have Affected Client Retention

Published on: April 5, 2013 | by Shepherd Smith Edwards & Kantas, LLP

On March 22, Senator John Cornyn (R-Texas) introduced S. 652, which would mandate that plaintiffs’ lawyers in private securities actions reveal via sworn certification any fees or other conflicts of interest that might have impacted their retention of clients. Dubbed the “Securities Litigation Attorney Accountability and Transparency Act,” the bill would mandate that the courts review the certifications and disqualify any lawyers that had wielded such influence from the case.

Some plaintiffs attorneys feel that S. 652 disregards the effect that Private Securities Litigation Reform Act has had on securities cases. The bill has been referred to the Senate Banking Committee.

Meantime, another Texas lawmaker, House Financial Services Committee Chairman Jeb Hensarling , is asking the Securities and Exchange Commission to account for how it used resources in Gabelli v. SEC, a US Supreme Court case that affirmed the statute of limitations standard the regulator must abide by when bringing a civil penalty. Representatives Hensarling and Rep. Scott Garrett (R-N.J.), who chairs the HFSC’s Capital Markets subcommittee, wrote a letter to Commission chairman Elisse Walter expressing worry over how the regulator expends resources on “dubious legal theories” while failing to meet deadlines for rulemaking.

SEC Submits Request for Data on Whether to Make Brokers & Investment Advisers Abide by Uniform Fiduciary Standard

Published on: April 4, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has put out its request for information to help it decide whether to impose a uniform standard of care on both investment advisers and broker-dealers that give advice to retail customers. The comment period ends 120 days after the data request, which was issued on March 1, is published in the Federal Register.

Responding to the Dodd-Frank Wall Street Reform and Consumer Protection Act’s Section 913, the SEC conducted a study on the effectiveness of the current standards for investment advisers and brokers. Following its examination, Commission staff recommended that the regulator take part in rulemaking to establish a uniform fiduciary standard for those that provide customized retail investments. However, last year, after then-SEC Chairman Mary Schapiro announced that the agency was putting together a request for information so it could decide whether to follow this recommendation, the initiative had to be delayed due to a lack of support from other commissioners.

Now, in this latest request request, the Commission was quick to stress that it has yet to decide whether such a rulemaking needs to happen or what one would entail. It also asked for data regarding others areas impacting both investment advisers and brokers that could benefit from harmonization, including business conduct rules, licensing advertising, registration, and books and records.

RMBS Lawsuit Against Deutsche Bank Can Proceed, Says District Court

Published on: April 4, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. District Court for the Southern District of New York is refusing to throw out the shareholder securities fraud lawsuit filed against Deutsche Bank (DB) and three individuals over their alleged role in marketing residential mortgage-backed securities and mortgage-backed securities before the economic crisis. The court found that the plaintiffs, led by Building Trades United Pension Fund, the Steward International Enhanced Index Fund, and the Steward Global Equity Income Fund, provided clear allegations that omissions and misstatements were made and there had been a scam with intent to defraud.

The RMBS lawsuit accuses Deutsche Bank of putting out misleading and false statements regarding its financial health prior to the financial crisis. The plaintiffs contend that the financial firm created and sold MBS it was aware were toxic, while overstating how well it could handle risk, and did not write down fast enough the securities that had dropped in value. Because of this, claim the shareholders, the investment bank’s stock dropped 87% in under 24 months.

U.S. District Judge Katherine Forrest said that the plaintiffs did an adequate job of alleging that even as Deutsche Bank talked in public about its low risk lending standards, senior employees at the firm were given information showing the opposite. She said that there are allegations of recklessness that are “plausible.” The district court also found that the complaint adequately alleged control person and antifraud violations involving defendants Chief Executive Officer Josef Ackermann, Chief Financial Officer Anthony Di Iorio, and Chief Risk Officer Hugo Banziger, who are accused of making material misstatements about the risks involved in investing in CDOS and RMBS while knowing they were less conservative than what investors might think. Claims against defendant ex-Supervisory Board Chairman Clemens Borsig, however, were thrown out due to the plaintiffs’ failure to allege that he made an actual misstatement.

SEC OCIE Finds Custody-Related Deficiencies Involving Investment Advisers

Published on: April 3, 2013 | by Shepherd Smith Edwards & Kantas, LLP

According to the Securities and Exchange Commission Office of Compliance Inspections and Examinations, it discovered “significant deficiencies” related to custody issues with a third of the investment advisers that it examined, including:

• Failure of an investment adviser to recognize when it has custody • Failure to satisfy the rule’s surprise exam requirements • Failure to fulfill the rule’s qualified custodian requirements

Custody by investment advisers refers either to the holding of securities or client funds or the authority to possess them, including the power of attorney to get securities or funds from client accounts. The 1940 Investment Advisers Act’s Rule 206(4)-2 regarding custody prescribes specific requirements for client asset safety.

“Substituted Compliance” Should Regulate Cross-Border Swaps, Says SEC Chairman Elisse Walter

Published on: April 3, 2013 | by Shepherd Smith Edwards & Kantas, LLP

According to Securities and Exchange Commission Chairman Elisse Walter, the best way to regulate global over-the-counter derivatives regulation is via “substituted compliance.” Such an approach would let a market participant comply with domestic requirements in a certain area through compliance with comparable foreign regulation while also allowing the domestic regulator to keep applying specific policy requirements of local law when the foreign one fails to impose requirements or protections that compare.

Per its Dodd-Frank Wall Street Reform and Consumer Protection Act Title VII mandate, the SEC intends to put forth a proposal on how to tackle cross-boarder issues. Although the Commission hasn’t figure out how it will go forward with this proposal, Walter stressed that “substituted compliance” could act as a “a reasonable and necessary middle ground” between making foreign participants abide by domestic regulation and widely recognizing foreign swap regimes. She believes that while efforting to give the maximum substituted compliance possible, properly tailored cross-border regulation would take care of the potentially significant regulatory gaps that are likely to exist between jurisdictions.

Walter believes that regulators need to be participating in the world debate on how to cut down systemic risk. Also, noting that brokerage firms, investment advisers, and other market participants that the SEC oversees differs from traditional banking institutes, Walter cautioned that failure to identify these key differences ups the risk that there will be weaker financial institutions and less options for businesses looking for investment capital.

Galleon Group Founder’s Brother Pleads Not Guilty to Insider Trading

Published on: April 2, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Rajarengan “Rengan”, the brother of Galleon Group founder Raj Rajaratnam, has entered a not guilty plea to federal fraud charges accusing him of securities fraud and conspiracy to commit securities fraud. The indictment stems from the same insider trading that landed Raj behind bars for 11 years and resulted in convictions for over two dozen co-conspirators.

The government had accused Raj of making up to $75 million dollars by trading on insider information given to him by other money managers or the employees of public companies. Now, federal prosecutors claim that Rengan made close to $1.2 million on illegal trades made in 2008 involving Advanced Micro Device and Clearwire Corp. He allegedly obtained insider tip about the securities of Hilton Hotels, Polycom, Akamai Technologies, Clearwater Corporation, and AMD from Raj.

In its related civil case, the Securities and Exchange Commission also is charging Rengan. The agency contends that between 2006 and 2008, Rengan repeatedly obtained insider information from his brother, making over $3 million in illicit gains not just for the hedge funds he oversaw at Sedna Capital Management, which he co-founded, and Galleon, but also for himself. The SEC is accusing Rengan of Securities Exchange Act of 1934 Section 10(b) and Rule 10b-5 violations.

Deutsche Bank Settles Massachusetts CDO Case for $17.5 Million

Published on: April 1, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Deutsche Bank Securities Inc. has consented to pay $17.5 million to the state of Massachusetts to settle allegations by that it did not disclose conflicts of interest involving collateralized debt obligation-related activities leading up to the financial crisis. Secretary of the Commonwealth William Galvin also is accusing the firm of inadequately supervising employees that knew about the conflicts but did not disclose them. DBSI, a Deutsche Bank AG (DB) subsidiary, has agreed to cease and desist from violating state securities law in the future.

In particular, the subsidiary allegedly kept secret its relationship with Magnetar Capital LLC. Galvin claims that DBSI proposed, structured, and invested in a $1.6 billion CDO with the Illinois hedge fund, which was shorting some of the securities’ assets. In total, Deutsche Bank Securities and Magnetar are said to have invested in several CDOs worth approximately $10 million combined.

The state of Massachusetts’s case focused on Carina CDO Ltd., of which Magnetar was the sponsor that invested in the security’s equity and shorted the assets that were BBB-rated. Ratings agencies would go on to downgrade the collateralized debt obligation to junk. Galvin contends that it was Deutsche Bank’s job to tell investors what Magnetar was doing rather than keeping this information secret.

Barclays Capital, Interactive Brokers, Lebenthal & Co., and Advisors Asset Management Pay $105,000 in FINRA Fines Related to Municipal Securities Rulemaking Board Violations

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

The Financial Industry Regulatory Authority is ordering four financial firms to pay $105,000 in fines for Municipal Securities Rulemaking Board violations related to political contribution, pricing, supervision, and other rules. The SRO noted the fines in its monthly disciplinary report.

One firm, Interactive Brokers LLC, must pay $7,500 for trade reporting violations related to Rule G-14’s requirements. The financial firm is accused of not reporting 60 sale and purchase transactions to the Real Time Transaction Reporting System within 15 minutes of their execution during 2010’s third quarter.

A second firm, Barclays Capital Inc, has to pay $15,000 for violating rules G-14, G-8, and G-27. The firm purportedly did not report 40 transactions to the RTRS, also within 15 minutes of their execution during 2011’s second quarter. It is accused of not reporting the correct trade time of 66 transactions.

SEC Reaches $600M Insider Trading Settlement with SAC Capital Advisors-Affiliated Hedge Fund Advisory Firm

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

Calling it its largest insider trading settlement to date, the Securities and Exchange Commission has settled its securities case with CR Intrinsic Investors LLC, an SAC Capital Advisors-affiliated hedge fund advisory firm, for $600 million. The regulator had sued the CR Intrinsic Investors and portfolio manager Matthew Martoma last year, accusing the latter of gaining access to inside information about an Alzheimer’s drug trial that was being developed by pharmaceutical companies Wyeth and Elan Corp. plc. before the results were released to the public.

The advanced information noted that the drug might be ineffective. This allegedly prompted Martoma to liquidate the position of his funds in both companies’ stocks and take on short positions. Martoma and his funds are said to have yielded $276 million in avoided losses (or profits) from the scam. He is now facing related criminal charges.

Earlier this month, the SEC amended its securities lawsuit, adding SAC and four affiliated hedge funds as relief defendants for allegedly receiving ill-gotten games from the insider trading scheme. According to the regulator’s acting director of enforcement George Canellos, the evidence in this case came from “the earth,” meaning that they were obtained from phone records, trading records, business records, and other information (as opposed to wiretaps).

The defendants resolved the securities case without denying or admitting to the claims. They agreed to pay about $275 million in disgorgement, a $275 million penalty, and $52 million in prejudgment interest. A court, however, must approve the settlement.

US v. Martoma (PDF)

SEC v. CR Intrinsic Investors (PDF)

More Blog Posts:
Investors are Not Raymond James Financial Customers for FINRA Arbitration Purposes, Rules 4th Circuit, Stockbroker Fraud Blog, March 28, 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 Continue Reading ›

Investors are Not Raymond James Financial Customers for FINRA Arbitration Purposes, Rules 4th Circuit

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

The U.S. Court of Appeals for the Fourth Circuit affirmed that, for purposes of Financial Industry Regulatory Authority arbitration, investors who lost the investment they made on stock they purchased from a lawyer connected to a Raymond James Financial Services (RJF) Inc. broker are not the brokerage firm’s client. The appeals court said that the investors dealings with the broker-dealer were “too remote.”

Tax lawyer David Affeldt had been recruited by an Inofin Inc. executive to recommend to investors that they buy securities from the company. That employee happened to be the college roommate of then-Morgan Stanley (MS) representative Kevin Keough, who also informally acted in a sales capacity for Inofin.

Because of his employment with the financial firm at the time, Keough had Inofin pay his compensation for the referrals to his wife instead of to him. He and Affeldt, however, agreed to equally share these referral fees-an agreement that continued even after Keough went to work with Raymond James.