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FINRA has filed a temporary cease-and-desist order barring WR Rice Financial Services Inc. and Joel I. Wilson, its owner, from taking part in allegedly fraudulent sales activities and the conversion of assets or funds. The SRO is also filing a securities complaint accusing both the Michigan based-brokerage firm, Wilson, and other registered representatives of selling over $4.5 million in limited partnership interests to approximately 100 investors while leaving out or misrepresenting material facts.

Per the broker fraud case, the broker-dealer and Wilson got investors to participate by promising them that their funds would be placed in land contracts in Michigan on residential real estate and that the interest rate they would get would be 9.9%. The money was instead allegedly used for unsecured loans to companies under Wilson’s ownership or control.

In other securities news, the SEC’s Division of Investment Management director Norm Champ recently stated that the Commission’s report on retail investors and their financial literacy gives basis for creating a summary prospectus for variable annuities. Speaking via teleconference at the American Law Institute-Continuing Legal Education Group conference on life insurance products on November 1, Champ reported that investors in the study agreed that the mutual fund summary prospectuses were user-friendly. He expressed optimism that a summary prospectus for variable annuities could give significant disclosures and related benefits if designed and implemented well and that the framework used for the mutual fund summary prospectus should prove to be an effective model.

The U.S. Chamber of Commerce has written a letter to Treasury Secretary Timothy Geithner asking him to rescind the request he made to the Financial Stability Oversight Council to press the Securities and Exchange Commission to take further action on money market mutual funds. Instead, they want the SEC to be allowed to first finish its study on the impact its 2010 reform steps have already had up to this point.

The Chamber implied that if FOSC were to invoke its powers, per the Dodd-Frank Wall Street Reform and Consumer Protection Act’s Section 120, to make the SEC act, this could place the financial markets in peril. It said that not only was invoking Section 120 premature, and at “cross-purposes” with the mandate the Commission has to “promote capital formation” but also this would subject money market mutual funds to what would be the equivalent of “joint oversight by the FSOC.”

Under Section 120, the FSOC is authorized to recommend that primary financial regulators implement “new or heightened standards and safeguards” after finding that a financial activity could create systemic risk. Such a recommendation has to be made available for public comment before it is formally adopted. (Following a final recommendation, the Commission would have 90 days to comply, implement a similar measure, or give reason for why it chose not to act.)

“Business owners are solicited to join the Chamber of Commerce and pay dues. But does the ‘Chamber’ even represent their interests?,” said Shepherd Smith Edwards and Kantas, LTD, LLP Founder and Money Market Mutual Fund Fraud Attorney William Shepherd. “This is an example of how the Chamber spends their dues. But I would say that the vast majority of those who own businesses are more interested in transparency and safety when they invest into money market funds than protecting those running these funds from regulations.”

Geithner, who is also FSOC chairman, had introduced a parallel strategy a couple of months ago that he said would assist in limiting systemic risk from money market funds. In addition to a letter to council members urging the FSOC to use Section 120 to make a formal recommendation of action by the SEC, he also put out groundwork for a number of measures by federal regulators should the Commission decide not to act.

The Treasury Secretary’s plan involves two initiatives that the SEC is considering: Requiring the funds to keep capital buffers or moving them to a floating net asset value. (SEC Chairman Mary Schapiro, who in August wasn’t able to garner enough commissioner support to move forward with proposed money market mutual fund measures, has expressed support for Geithner’s plan. She too believes that money market funds are a systemic risk.)

Addressing the 2010 rule changes by the SEC in 2010, Geithner, in his letter, said that they failed to tackle a couple of core money funds characteristics that place the funds at risk of “destabilizing runs”: a “first-mover advantage,” which can spur investors to redeem shares upon first signs of a possible threat to the liquidity or value of the fund, and the need for “explicit loss-absorption capacity” in the event of a decline in a portfolio security’s value.

US Chamber of Commerce

Financial Stability Oversight Council


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The U.S. District Court for the Northern District of California is allowing a securities lawsuit by an investor claiming negligent misrepresentation over allegedly flawed offering documents in bonds to raise money for a private school to proceed. The plaintiff is Lord Abbett Municipal Income Fund Inc. and the defendants are board of trustee members of the Windrush School.

Per the court, the defendants authorized the California private school to seek financing for the renovation and expansion of its facilities through the issuance of $13 million in bonds, which took place pursuant to a July 1, 2007 indenture between Wells Fargo Bank NA (WFC), serving as indenture trustee, and California Statewide Communities Development Authority, as the bond issuer. (Per the indenture terms, the trustee was the bondholders’ representative.) The bonds were secured by a mortgage on the facility and repayment was to be made through gifts, tuition, and grants. Lord Abbett bought more than $9 million of the bonds.

Now, the New Jersey-based mutual fund is contending that the bond offering documents left out key information about Windrush’s ability to pay back the bonds. For example, Windrush allegedly was reliant upon Making Waves Foundation, a charitable organization that historically puts 10-15 kids at the school every year, to pay it a substantial tuition for each student. Lord Abbett, however, claims that even before the bonds were issued the defendants had already found out that the charitable group was going to open its own school and would no longer be sending kids to study at Windrush and that this would cause lose the latter to not just lose the substantial tuition subsidies but also have to compete with Making Waves for state funding. Despite allegedly knowing that the loss of tuition for so many students would reduce Windrush’s revenue, making it harder for the school to pay back the bonds, the defendants did not make this known on the bonds’ official statement. When Windrush found that it could not make an interest payment that was due in July 2011, it filed for bankruptcy protection.

The U.S. Court of Appeals for the Fifth Circuit says that federal sentencing judges who initially withhold restitution in complex or large fraud cases because the amounts are too hard to calculate cannot choose to later open up the case and add that in should the government later come up with more information. The appeals court was not convinced by a district judge’s dependence on the US Supreme Court’s ruling in Dolan v. United States allowing sentencing judges to go back and include restitution after the 90-day post-sentencing deadline.

In this case, United States v. Murray, the defendants were convicted for mail fraud, securities fraud and other offenses stemming from a financial scam involving hundreds of investors and high valued collateralized loans. Rather than investing the victims’ funds in the loans, the defendants used the funds for their personal spending, made other investments, and also made good on the high returns that were promised to earlier investors. For purposes of determining sentencing, the district court calculated that the investors lost $84 million.

Yet during sentencing the sentencing judge and the federal probation department invoked a Mandatory Victims Restitution Act provision that lets the judge refuse to order restitution in cases where there are too many victims to determine exactly how many there are that it makes restitution “impracticable” or if figuring out certain complex issues of fact related to amount or cause of the losses would prolong or complicate the sentencing process to a point that this burden overrides the need to provide any victim with restitution. A few months after these defendants received their sentences, even though federal law places limits on when a district court can reopen or amend a sentence, prosecutors convinced the judge to open up the sentencing and conduct a hearing on information from hundreds of victim impact statements.

Following the hearing, the judge found that denying the investors restitution for their losses because the government had a hard time figuring out how much harm they suffered is a violation of MVRA’s main purpose, which is to make sure compensation where owed is given. She told the defendants they now had to pay restitution of millions of dollars.

Now, however, Fifth Circuit has said that in the event that a district court invokes §3663A(c)(3), §3663A(a)(1)’s provision that the court shall order for restitution to be made by the defendant to the victim is not applicable, which means that a district court cannot open a final sentence judgment. The fifth circuit said that while the sentencing judge in Dolan gave herself the option to revisit the matter of restitution in the future, the sentencing judge in US v. Murray did not.

United States v. Murray

Dolan v. United States

Mandatory Victims Restitution Act

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Texas Securities RoundUp: Provident Royalties CEO Pleads Guilty in $485M Ponzi Scam and District Court Upholds $100K Arbitration Award in Adviser Fee Dispute, Stockbroker fraud Blog, November 10, 2012

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Paul R. Melbye, Provident Royalties’s CEO, has pleaded guilty to running a $485M Ponzi Scam that defrauded over 7,700 investors in the US. He faces up to 47 years behind bars.

According to prosecutors, Melbye did not disclose material facts to investors and he issued materially false representations to get them to make payments to Provident. The Securities and Exchange Commission had sued Melbye and Provident principals Henry Harrison and Brendan Coughlin over the alleged securities fraud in July 2009. The men were accused of taking the money of investors, who were promised yearly returns greater than 18%, and spending less than half of it on oil and gas leases when they had promised that most of the funds would go toward investments, leases, mineral rights, development, and exploration. The “returns” that older investors received came from the investment money put in by newer investors.

Coughlin and Harrison, who were indicted on criminal charges in July, are waiting to go to trial. The two Dallas men were each charged with 10 counts of mail fraud and one count of conspiracy to commit mail fraud. Per the criminal allegations, starting around September 2006, Harrison, Coughlin, and others made false representations and did not reveal material facts in order to get investors to make payments to Provident. (These allegedly false representations included statements that investors’ money would only go toward a specific oil and gas project.) They also allegedly failed to disclose that Blimline, a Provident founder, had obtained millions of dollars in unsecured loans and he had previously been charged with securities fraud.

In other Texas securities news, the U.S. District Court for the Southern District of Texas has decided not to overturn the $100,000 arbitration award that investment adviser representative Robert Thompson has been ordered to pay in a fee division dispute. The case involves Thompson and Chris Jones, who is a California resident. Both are former Walnut Street Securities representatives.

Jones and Thompson had gone into an agreement together in 2005 to divide fees from Thompson’s clients in the Houston area. Two years later, they became involved in a dispute over this arrangement and they sought resolution via a Financial Industry Regulatory Authority arbitration panel, which refused to have the venue in Texas. Instead, the hearing took place in California where the arbitration panel found that Thompson was liable to Jones for $100,000. All other counterclaims and claims were denied.

Thompson then went to court with a motion to vacate claiming that the decision to have the hearing take place in California prejudiced his rights to cross-examine witnesses and provide evidence. The district court denied Thompson’s motion to vacate.

The court said that since the statutory standards for vacatur under the Texas General Arbitration Act and the Federal Arbitration Act are substantially the same, it would use TAA in its analysis while looking at the common law that oversees the two statutes. The court also said that Thompson did not provide a transcript or order from the arbitration panel, which was needed for his argument. The court determined that regardless of whether or not the arbitration panel made a mistake in placing the venue in California, the award cannot be vacated because Thompson did not show how this venue decision prejudiced his rights.

Texan Pleads Guilty in $485 Million Ponzi, Courthouse News, November 9, 2012

Dallas Men Indicted in $485 Million Investment Fraud Scheme in East Texas, FBI, July 12, 2012

Joint Venture Collapses Into FINRA Arbitration Slugfest Over Fee Division, Forbes, October 8, 2012

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The US Supreme Court has decided not to review a ruling by the U.S. Court of Appeals for the Eleventh Circuit affirming a $62M award against Michael Lauer, an ex-Lancer Group Hedge Fund manager, in the securities lawsuit filed against him by the Securities and Exchange Commission. The federal appeals court had said that the district court’s decision granting the Commission’s motion for summary judgment on liability and remedies was proper.

Per the SEC fraud lawsuit, Lauer is accused of misrepresenting the hedge funds’ true value by artificially inflating the value of holdings found in shell companies that were thinly traded. The Commission contends that he hid his scam by making false statements in investor newsletters, private placement memoranda, and phone calls. (Lauer has since been acquitted of related criminal charges.)

In his certiorari petition filed earlier, Lauer argued that federal court couldn’t strike a defendant’s motion to dismiss due to lack of subject matter jurisdiction without evaluating whether it had such jurisdiction. He also claimed that the appeal’s court ruling that the district court’s decision was grounded in enough evidence was not de novo review.

The Financial Industry Regulatory Authority is now making its arbitration process available to all registered investment advisers. The SRO’s arbitration forum has in the past been for member broker-dealers, but not IA’s, to resolve disagreements. (That said, IAs that are dually registered with FINRA have had to arbitrate via the SRO’s arbitration process if the disagreement pertained to the adviser’s activities as a member of FINRA or as an associated person.) Now, however, FINRA is ready to take arbitration cases against investment advisers as long as the parties involved are both amenable to this.

Some people have expressed concern that opening up FINRA’s arbitration process to these advisers could create problems. For example, seeing as broker-dealers and investment advisers are upheld to different standards under federal law, there has been the worry that FINRA arbitrators might get confused as to which standard applied to a case.

FINRA arbitration lawyer William Shepherd, however, disagrees: “It is true that financial advisors are held to a fiduciary standard by statute, but securities brokers are often held to a ‘common law’ fiduciary standard. For example, brokers are held to a fiduciary standard when they use discretion to invest their clients’ money (either with or without written permission). As well, for decades the FINRA Arbitration Code has allowed cases to be filed for ‘any dispute, claim or controversy.’ Current FINRA arbitrators are savvy enough to make any distinction in the responsibilities of different investment professionals and are likely the most capable persons in existence to decide cases concerning financial advisors.”

FINRA’s decision to open its arbitration process comes during the ongoing discussion about possible self-regulatory oversight for advisers. Bill H.R. 4624 proposes bringing advisers under the supervision of at least one SRO, with FINRA as the potential watchdog. There has, however, been strong opposition to the legislation, and House Financial Services Committee Chairman Spencer Bachus (R-Ala.), who ushered H.R. 4624, has decided not to keep pushing it forward until a committee consensus is reached.

Meantime, FINRA has put out guidance on how investment advisers who are not members of the SRO can use its mediation and arbitration forum to resolve disagreements with employees and members. Per the guidance on disputes between IAs that are firms not regulated by FINRA and investors/investment adviser employees, the SRO will accept disputes by parties seeking this forum as long as the investor and IA turn in a post-dispute agreement to arbitrate, the IA or other parties consent to pay arbitration surcharge fees, and the investor submits a written submission agreement to send the dispute to FINRA Dispute Resolution (the agreement has to be signed by all parties involved in the arbitration and the signatures need to have been written after the events that led to the dispute happened). FINRA mediation services will be offered for investment adviser disagreements on a voluntary basis.

Guidance on Disputes between Investors and Investment Advisers who are not FINRA-regulated firms, FINRA

FINRA Opening Arbitration Process To Investment Advisers, Spokeswoman Says, Bloomberg/BNA, October 29, 2012

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The Securities and Exchange Commission has filed charges against hedge fund manager Walter A. Morales and his Baton Rouge-based firm Commonwealth Advisors with allegedly defrauding investors by concealing the millions of dollars in losses sustained from investments linked to residential mortgage-backed securities during the economic crisis. The SEC wants a jury trial and it is seeking permanent enjoinment, penalties, disgorgement, and prejudgment interest.

According to the Commission’s RMBS lawsuit, Morales and his financial firm caused the hedge funds that they oversaw to purchase Collybus, which were the most risky and lowest tranches of a collateralized debt obligation. They then sold MBS into the CDO at prices they had received four months prior while being fully aware that during this time the RMBS market had declined. As the CDO investments continued to not do well, Morales allegedly told firm employees to engage in cross-trades by conducting manipulative trades with the hedge funds they advised so that a $32 million loss sustained by one of the funds in the Collybus investment could be hidden. Morales and his firm then allegedly lied to investors, which included individuals and pension funds, about the worth and quantity of the mortgage-backed assets in the funds and created bogus internal documents so that their false valuations could be justified.

Also, even though Morales and Commonwealth likely knew that the losses would continue for some time, the SEC contends that the two of them conducted over 150 cross-trades between two hedge funds they provided advice to and another one of their hedge funds at prices under Commonwealth’s valuation for those securities in June 2008. After the trades were made, Morales is said to have instructed an employee to designate the securities as having fair market value, creating a $19 million gain for the acquiring hedge fund that was fraudulent and at cost to the funds that were sold. The cross-trades were conducted even though Morales had represented that it would not make such trades.

The SEC also claims Morales deceived a prime brokers by representing the transactions as legitimate and at current market prices, as well as its largest investor by misrepresenting the latter’s exposure to the CDO. Although he had promised that the investor’s exposure to Collybus would be limited, by the middle of 2008 its exposure was almost double. Morales also allegedly made up false minutes after the investor found out that Commonwealth was not going along with its valuation procedures that it had stated.

SEC Charges Baton Rouge-Based Investment Adviser with Hiding Losses From Mortgage-Backed Securities Investments, SEC, November 8, 2012

Read the SEC Complaint (PDF)

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A ruling by the Australian Federal Court against Standard & Poor’s could give 13 NSW councils about A$30M in compensation for their about A$16M in synthetic derivative losses. According to the court, the ratings firm misled investors by giving its highest ratings to complex investment instruments that ended up failing during the worldwide economic crisis. The councils can now claim compensation from S & P and co-defendants Royal Bank of Scotland (RBS)- owned ABN Amro Bank and the Local Government Financial Services, Ltd. The three had sold the councils constant proportion debt obligation notes, promoted as Rembrandt notes, six years ago.

Specifically to this case, Australian Federal Court Justice Jayne Jagot said that Standard & Poor’s took part in conduct that was “deceptive” when it gave AAA ratings to constant proportion debt obligations that were created by ABN Amro Bank NV. The Australian townships were among those that invested what amounted to trillions of dollars in the CPDOs, as well as in collateralized debt obligations.

The projected A$30M in compensation includes not just councils’ losses, but also interest and costs. The councils are also entitled to receive compensation for breach of fiduciary duty from LGFS, which succeeded in its own claim against Standard and Poor’s and ABN Amro for Rembrandt notes that it sold to its parent company after the notes were downgraded from their triple-A rating to triple-B+.

Citigroup Global markets Inc. (C) has consented to pay $2M to settle claims by the state of Massachusetts that a research analyst improperly disclosed information about Facebook (FB) before the company’s initial public offering. According to Secretary of the Commonwealth William F. Galvin, the financial firm neglected to supervise this person, who allegedly gave research information to a media technology site. Galvin says that this disclosure violated state securities laws, a nondisclosure arrangement between Facebook and Citigroup, and FINRA and NASD rules. While Citigroup has admitted to the statement of facts, it has not denied or admitted violating SRO rules and securities laws.

Per the allegations In re Citigroup Global Markets Inc., Mass. Sec. Div., the junior analyst emailed the information to AOL Inc.-owned media site TechCrunch. The data contained projections by a senior analyst about the IPO. Citigroup is accused of not detecting or preventing the disclosure until responded to a subpoena issued by Massachusetts. Also implicated in the order was a senior Citigroup analyst accused of giving data about YouTube Inc. revenue estimates to a French magazine without getting the communication approved first.

The Facebook IPO in May has attracted a lot of attention from regulators and lawmakers. One reason for this is allegations that analysts gave certain investors select data about the offering. There was also the problem of technical glitches that arose when trading began. Securities lawsuits and congressional and regulatory probes ensued.

To compensate investors that suffered losses from the technical snafus, Nasdaq Stock Market LLC is proposing a $62 million reimbursement fund. Now, the Securities and Exchange Commission is asking for more comment about this proposed fund. As of October 26, most of the 11 letters it had received had voiced objections. For example, some took issue with the $40.527 benchmark price that was used to figure out how much members are owed, while others didn’t like how only a limited number/kinds of orders are eligible for compensation: sells that were priced at $42 or under that failed to execute, sales in this price range that were executed at a lower price, purchases priced at $42 that went through but weren’t confirmed right away, and purchases at the same price that not only went through and weren’t confirmed but also efforts were made to cancel them. Qualified market participants wanting to take part in the compensation program would have to relinquish other related claims that might also be valid.

Citi fined $2 million over Facebook IPO, fires two analysts, Reuters, October 26, 2012

Read the Consent Order resolving the proceedings between Massachusetts and Citigroup(PDF)


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