Investor Lawyers Blog

NY AG Says Madoff Trustee Shouldn’t Be Able to Block $410M Settlement with Money Manager Merkin

Published on: January 17, 2013 | by Shepherd Smith Edwards & Kantas, LLP

New York Attorney General Eric Schneiderman doesn’t believe that Madoff Trustee Irving Picard should be allowed to block the $410 million securities settlement reached between the state and J. Ezra Merkin, the former GMAC Financial Services chairman who was the money manager of funds that acted as the “feeders” to the Ponzi mastermind. Picard wants the settlement stayed.

Schneiderman had filed a New York securities case against Merckin in 2009 to recover some of the money lost in the multibillion dollar Bernard Madoff Ponzi scam that went on for decades. Picard, however, contends that he is the only one entitled to seek recovery for the victims of the scheme. He also says it is his job to thwart attempts to take assets owned by the bankruptcy estate. He has argued that with the Merckin deal Schneiderman is trying to get around bankruptcy law. As of August 2012, he had raised approximately $9 billion for Madoff’s former clients, who lost about $17 billion of their capital when the Ponzi scam collapsed.

Now, Schneiderman and Bart Schwartz, who is the receiver for Merkins’ funds, are asking a federal district court to stop Picard’s motion seeking injunction to block the settlement. They say that Picard has known for some time that this case was seeking resolution but that he had previously made no attempt to stay their efforts. They pointed out that there are investors depending on this settlement to get their lost funds back.

JPMorgan Chase Ordered to Remedy Risk Management Breakdowns Involving “London Whale” Trades

Published on: January 17, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Office of the Comptroller of the Currency and The Federal Reserve is ordering JPMorgan Chase (JPM) to fix the breakdown that occurred in its risk management that resulted in the “London Whale” trades. These were outsized credit derivatives bets made by a group of traders in the UK that resulted in over $6 billion in losses for the investment bank. Due to the extremity of the some of the positions, prices in the markets became distorted. The “London Whale” is the nickname of one of the traders involved.

According to the newly issued enforcement actions, the internal controls of the bank did not succeed in spotting and preventing specific trading involving credited derivatives that Chief Investment Office Ina Drew conducted and this led to the losses. The OCC says that per investigations that were conducted, there had been certain deficiencies, such as poor risk management procedures and processes, insufficient governance and oversight for proper material risk protection, inadequate control of trade valuation, models that were not properly developed or implemented, and insufficient internal audit processes. Meantime, the Fed pointed to deficiencies of senior management letting the board of directors know about certain issues.

While JPMorgan Chase doesn’t have to pay a fine, there are steps it is going to have to take to enhance its risk management and improve its anti-money laundering procedures. The OCC says that the financial firm’s controls for anti-money laundering have key deficiencies related to the reporting of suspicious activity, the monitoring of transactions, risk assessment, customer due diligence, independent testing, and the proper placement of adequate internal control systems.

Morgan Stanley & Goldman Sachs Settle Federal Homeowner Foreclosure Complaints for $557 Million

Published on: January 16, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Goldman Sachs (GS) and Morgan Stanley (MS) have agreed to collectively pay $557M to settle complaints accusing them of wrongfully foreclosing on homeowners. Under their respective agreements with the Federal Reserve, Morgan Stanley will pay $227M while Goldman will pay $330M.

Approximately 220,000 people who lost their homes due to “robo-signing” and other abuses could receive compensation as a result. Per the agreement with the two investment banks, they will pay $232 million in cash to compensate homeowners. This will conclude the loan files review against the two banks that were ordered in 2011. Cash payments will vary and may go as high as $125,000 to borrowers whose homes foreclosed in 2009 and 2010. $325M will go toward lowering mortgage balances and forgiving outstanding principal on home sales that made less than what borrowers owed on mortgages.

The deals stuck by Morgan Stanley and Goldman Sachs is similarly structured to the $8.5B one reached last week with JPMorgan Chase (JPM), Bank of America (BAC), Citigroup (C), Wells Fargo (WFC), PNC Financial Services (PNC), MetLife Bank (MET), SunTrust (STI), Sovereign (SOV), Aurora, and US Bank. They are paying 3.8 million homeowners approximately $3.3 billion to conclude the foreclosure review. $5.2 billion is for forgiveness of principal and mortgage modifications. Ally Financial and HSBC are in talks to work out similar settlements. The Fed reports that now, over 4 million borrowers will receive cash compensation.

Major Newspapers Say Judicial Arbitration by Delaware’s Court of Chancery is Unconstitutional

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

According to The Wall Street Journal, the major print media don’t believe that the country’s premier corporate litigation forum should be able to arbitrate business disputes. On Monday, News Corp, the news publication’s parent company, was joined by The New York Times Company, the Associated Press, the Washington Post, Atlantic Media, Inc., Bloomberg L.P., Reuters America LLC, and other media companies and groups in a friend-of-the-court brief to the U.S. Court of Appeals for the Third Circuit. They are pushing for a state law that gives the state’s Delaware Court of Chancery the power to arbitrate business disagreements in secret to be found unconstitutional. The outcome of this case could affect how business disputes in Corporate America are settled.

It was last year that U.S. District Judge Mary A. McLaughlin struck down a program by the Delaware Chancery Court that let its judges preside over arbitration disputes. Her decision was a victory to Delaware Coalition for Open Government, which is the civic group that filed a lawsuit against the court’s judges. The judges are the ones that filed the appeal.

The media’s brief wants the appeals court to affirm McLaughlin’s ruling and acknowledge the “strong presumption” that champions open access to judicial proceedings and the First Amendment rights of the media and the public to that access. Supposedly backing the concept of judicial arbitration is the idea that Delaware, which is dependent on corporate tax, wants to take advantage of having its chancery court be a go-to venue for corporate litigation, including class action lawsuits.

Credit Suisse Must Face ARS Lawsuit Over Subsidiary Brokerage’s Alleged Misconduct, Says District Court

Published on: January 11, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. District Court for the Southern District of New York has rejected Credit Suisse Group’s (CS) motion to dismiss Elbit Systems Ltd. v. Credit Suisse Group, the auction-rate securities lawsuit filed by an investor claiming that alleged misconduct took place at a Credit Suisse Group brokerage firm subsidiary Credit Suisse Securities (USA) LLC. The court said that the investor did an adequate job of alleging that the subsidiary acted with actual power of authority as Credit Suisse Group’s agent.

The plaintiff, Elbit Systems Ltd., contends that it invested in ARS because it was told that these were liquid, safe, and backed by the US government-backed. However, the Israeli electronics company claims that even as the market started failing in 2007, cash managers started to replace the government-backed ARS with more risky ARS backed by credit-linked note securities and collateralized debt obligations, and its Corporate Cash Management account began to fail, it was never informed that these problems were happening. Instead, its holdings in these risky investments were allegedly increased.

As of the complaints filing, Elbit’s securities have not been sold while its ARS investments had allegedly lost about $16 million. Also, a Credit Suisse Securities executive is accused of telling the plaintiff that brokers Eric Butler and Julian Tzolov were too busy to handle its account when actually, the two of them were no longer at the firm because they had been accused of securities fraud.

Despite Her Involvement in Dozens of Securities Cases, Brokerage Firms Continue to Clear Trades of Newport Coast Securities Broker Bambi I. Holzer

Published on: January 10, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Three years after Forbes magazine wrote an article exposing broker Bambi Holzer as someone whose investment advice to clients had resulted in more than $12M in securities settlements, brokerage firms continue to clear her trades. Over the years there have been dozens of complaints filed against her for improper broker activities-more than nearly anyone that we here at Shepherd Smith Edwards and Kantas, LTD, LLP have ever seen.

Holzer is currently a Newport Coast Securities broker, but her employment history with different broker-dealers within the industry has involved numerous financial firms. According to the Financial Industry Regulatory Authority, she was previously registered with Wedbush Morgan Securities Inc., Brookstreet Securities Corporation, and Sequoia Equities Securities. Holzer also worked with UBS (UBS), where she and the firm were compelled to pay at least $11.4 million to settle securities claims that she had allegedly misrepresented variable annuities by misrepresenting that they came with guaranteed returns. Following her time there, Holzer went to go work at AG Edwards (AGE), where she was fired in 2003 for engaging in business practices allegedly not in line with the policies of the firm.

Later, while at Brookstreet, Holzer allegedly made misrepresentations during a 2005 presentation in Beverly Hills about how trusts had allowed a fictional couple to defer $732,000 in taxes and make $9 million. She would later say on her website that 500 people watched her that day. However, a court document says that there were actually just 33 people in attendance.

Also while at Brookstreet, NASD, FINRA’s predecessor suspended Holzer for 21 days and ordered her to pay a $100,000 fine for negligent misrepresentations she allegedly made about certain product features related to variable annuities when she worked at PaineWebber. And an example of one complaint still pending against Holzer is the FINRA arbitration claim filed in early 2010 by a Wedbush Morgan Securities customer who is contending that account mishandling, breach of fiduciary duty, and breach of contract allegedly resulting in $824,000 in damages.

Holzer’s record on FINRA’s Central Registration Depository is 105 pages long, and the lawsuits and regulatory disciplinary actions against her span over 90 of these pages. Allegations include:

• Violations of the Illinois Securities Act • Negligent representations related to variable annuities
• Fraud • Misrepresentations of fees • Unsuitable investments
• Private placement-related fraud • Churning • Variable annuity-related fraud • Inadequate supervision • Elder abuse
• Negligent sale/recommendation of Provident Royalties, LLC • Negligent recommendation/sale of unsafe products, including the Behringer Harvard Security Trust

Many of the FINRA claims against Holzer involve private placement and variable annuity instruments. A lot of these arbitration cases have resulted in substantial settlements.

Beware of Your Broker, Forbes, March 25, 2009

FINRA Central Registration Depository

More Blog Posts:
Ernst &Young Auditor Suspended Over Part Played in Botched 2004 Audit of AA Investors Management LLC, Stockbroker Fraud Blog, January 7, 2013

SEC Roundup: Massachusetts Investment Adviser Gets $1.78M Judgment and Allianz to Pay $12.3M to Settle Foreign Corrupt Practices Act Lawsuit, Stockbroker Fraud Blog, January 7, 2013

Clearing House Association Wants Greater Protections for Clearing Members, Institutional Investor Securities Blog, December 31, 2012

FINRA To Take Closer Look at High-Frequency and Algorithmic Trading, Will Continue to Monitor Private Placements, Complex Products, and Other Areas

Published on: January 10, 2013 | by Shepherd Smith Edwards & Kantas, LLP

This month, the Financial Industry Regulatory Authority announced that it would be placing “significant resources” into monitoring high-frequency and algorithmic trading. The SRO said that following a number of market disruptions last year, it is worried about the way firms oversee these two systems.

In its yearly examination and regulatory priorities letter, FINRA spoke about how despite the fact that many high-frequency trading strategies are legitimate, others can be employed for purposes that are volatile, which is why the SRO wants to keep surveillance of this a priority and make sure that abusive trading doesn’t happen.

FINRA also said that it wants to take a closer look at alternative trading systems due to disclosure and operational concerns and high volume trading. It is examining firms that run ATS, as well as their affiliates. The SRO wants to figure out whether firms are accurately and consistently representing and disclosing different parts of their ATS operations to subscribers. Sweep letters were sent by FINRA to broker-dealers inquiring about ATSs in August.

SEC Roundup: Lawmakers Question Structural Reform Costs, Enforcement Director Khuzami to Step Down, & New Commission Chairman Names General Counsel is Named

Published on: January 9, 2013 | by Shepherd Smith Edwards & Kantas, LLP

Lawmakers Question the SEC About Costs Related to Structural Reform

Per the Dodd-Frank Wall Street Reform and Consumer Protection Act’s Section 967, the Securities and Exchange Commission has been tasked with assessing how to restructure its operations to better its use of internal communications and resources. The restructuring plan is being referred to as the Mission Advancement Program. However, lawmakers are concerned that this effort may be too expensive—especially because of the costs associated with retaining independent consultant Booz Allen Hamilton Inc. to help with the restructuring.

Earlier this month, House Oversight Committee Chairman Darrell Issa (R-Calif.) asked the SEC for information about how much the Commission expects to save through the Booz Allen-recommended reforms, its 2012 fiscal year budget for Office of the Chief Operating Officer, CEO Jeffery Heslop’s yearly compensation, the May 2011 contract between the agency and Booz Allen, and the payments that have been made to the latter.

IOSCO Complex Products Report Does Not Get SEC Commissioners’ Approval Votes

Published on: January 7, 2013 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has failed to approve the International Organization of Securities Commission’s final report on the suitability requirements for distributing complex financial products. Commissioners Troy Paredes and Daniel Gallagher say they disapprove of its release. They don’t think it accurately portrays relevant law and that the US regulatory regime should not conform to it.

IOSCO believes that the 2008 economic collapse brought up serious concerns about how the increasing complexity of certain financial products has made it harder for clients to see the risks involved.

The report lays out nine principals to make sure there is proper customer protection related to complex financial instruments. Among the principals: intermediaries must implement policies to note the difference between non-retail and retail clients as they relate to financial instruments and execute “reasonable steps” to handle conflicts of interest, while exposing the risks should the client’s interest potentially be compromised; firms have to set up specific internal policies that support suitability requirements; and that intermediaries that recommend certain complex instruments have to take reasonable steps to make sure that their counsel is grounded upon a reasonable assessment that the financial product’s risk-reward profile and structure is aligned with the customer’s knowledge, experience, investment goals, inclination toward risk, and capacity to handle loss.

Ernst &Young Auditor Suspended Over Part Played in Botched 2004 Audit of AA Investors Management LLC

Published on: January 7, 2013 | by Shepherd Smith Edwards & Kantas, LLP

In a divided decision, the SEC has decided that suspending Ernst & Young auditor Wendy McNeeley from Commission practice for half a year for her conduct as manager of the audit of investment adviser AA Investors Management LLC and a related fund is appropriate. According to the agency, McNeeley and her engagement partner Gerard Oprin did not apply due professional care when assessing a $1.92 million related-party “tax loan” from client accounts to alleged fraudster John Orecchio, who co-owns AA Capital. She is also accused of choosing not to investigate further even after she encountered a number of red flags over a material transaction involving a related party.

The SEC filed its administrative proceedings against her and Oprin for not conducting the 2004 audit of AA Capital Equity Fund LLP and AA Capital, per generally accepted auditing standards. This alleged misconduct, contends the Commission, resulted in Ernst & Young putting out audit reports that were not properly qualified yet came with disclosures noting that they conformed to general accounting principles. McNeeley and Oprin are accused of not getting enough “competent evidential matter” or exercising the professional care required to their evaluation and disclosure of the loan to Orecchio. Instead, they allegedly depended on information from AA Capital’s chief financial officer that hadn’t been substantiated. Oprin was also accused of not properly supervising the audit.

While an administrative law judge would go on to dismiss the allegations facing Oprin, McNeeley was barred from appearing as an SEC accountant for a year. She appealed.