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Kweku Adoboli, an ex-UBS (UBS) trader, has been convicted of fraud over bad deals he made at the Swiss Bank that resulted in $2.2 billion in losses. He has been sentenced to 7 years behind bars.

Adoboli, who had pled not guilty to the criminal charges, is accused of booking bogus hedges and storing profits in a secret account to hide the risks related to his trades and dealings involving exchange-traded funds, commodities, bonds, and complex financial products that track stocks. Not only did he go beyond his trading limits but also he did not cover his losses.

Meantime, the ex-UBS trader had argued in his defence that the trading losses happened not because of fraudulent or dishonest conduct on his part but because he and other traders were asked to accomplish too much without sufficient resources and in a very volatile market.

In the wake of Securities and Exchange Commission charges accusing
Massachusetts Mutual Life Insurance Company of securities law violations, the insurance company has agreed to settle the allegations by paying a $1.625M penalty. The SEC contends that the insurer did not adequately disclose the potential negative impact of a “cap” it had placed on certain complex investments.

Per the Commission, MassMutual placed a cap feature that could potentially impact $2.5B of its variable annuities in specific optional riders that were offered to investors. However, sales materials and prospectuses did not properly explain that if they cap were reached, the GMIB (guaranteed minimum income benefit) value would cease to accrue interest. Instead, the disclosures appeared to infer that interest would keep growing after the GMIB value hit the cap while investors would still have the option for dollar-for-dollar withdrawals. Not only did several MassMutual sales representatives become confused by the disclosure content, but also clients were not properly apprised of how making withdrawals could hurt them financially were the cap to be reached about 10 years from now. MassMutual has since taken out the cap to make sure that no investors suffer financial harm.

Specifically, says the SEC order, between 2007 and 2009 the insurer offered investors GMIB 5 and 6 riders as an option on specific variable annuity instruments. The GMIB riders were presented as giving “Income Now” if withdrawals were made during the accumulation phase. “Income Later” could occur if investors opted to get annuity payments. (MassMutual’s sales material noted the guarantee in the riders, which state that even if a contract were to hit a 0 in value, an investor could still apply the GMIB value to a variable or fixed annuity.)

The riders came with a maximum GMIB value-a cap that would investors would not be able to hit until 2022. However, if the cap were reached by the GMIB value, every dollar taken out would lower the GMIB value by a pro-rata figure linked to the percentage drop on the contract value. After a number of these types of withdrawals-market conditions pending-the GMIB value and the contract value would go down and adversely impact how much a customer could apply to the future income stream and an annuity.

However, contends the SEC, several MassMutual sales agents did not fully comprehend all of this and they thought that if the GMIB value hit the cap, investors could still take withdrawals with the GMIB value staying at the cap. The sales force was also suffering from other misconceptions, such as wrongly believing that investors would be able to maximize benefits if they waited until the cap was reached by the GMIB value, take yearly withdrawals of 5 or 6 percent, and annuitize contracts to get an income stream linked to the maximum GMIB value. In fact, this type of investment strategy was actually more harmful than beneficial.

The Commission says that MassMutual should have identified the signs indicating that sales argents and others didn’t fully comprehend how post-cap withdrawals might impact the GMIB value and realized that its disclosures were not adequate enough. The insurer has agreed to settle without admitting to or denying the SEC’s findings.

Read the Administrative Proceeding (PDF)


More Blog Posts:

Securities Roundup: FINRA Tells Broker Dealer to Cease-a-Desist Its Allegedly Fraudulent Sales, SEC Supports Creation of Variable Annuities Summary Prospectus, & US Supreme Court Hears Amgen & Comcast Appeals to Shut Down Class Action Lawsuits, Stockbroker Fraud Blog, November 15, 2012

California Securities Lawsuit Claiming Negligent Misrepresentation Over Allegedly Flawed Bond Offering Documents May Proceed, Says District Court, Stockbroker Fraud Blog, November 13, 2012

US Chamber of Commerce Wants Treasury Secretary to Let SEC Finish Study About Money Market Mutual Funds Before Pressing for Action, Institutional Investor Securities Blog, November 15, 2012 Continue Reading ›

In a record first involving the Federal Deposit Insurance Company suing the auditors of a failed bank, the government agency has filed a lawsuit against Crowe Horwath LLP (CROHORP) and PricewaterhouseCoopers LLP for over $1 billion for their alleged failure to detect the securities fraud perpetuated by Taylor Bean & Whitaker Mortgage Corp. that led to the demise of Colonial Bank. Taylor Bean was one of the bank’s biggest clients. The two auditors are accused of gross negligence, professional malpractice, and breach of contract for not spotting the scam.

According to the FDIC’s complaint, two Colonial mortgage lending employees, Teresa Kelly and Catherine Kissick, let Taylor Bean officials divert money from the bank without it getting collateral in return. This resulted in Taylor Bean allegedly stealing nearly $1 billion from Colonial by promising it would provide the bank with mortgages that it had actually sold to other banks. The FDIC contends that not only did Kissick and Kelly know about Bean’s fraud but also they made it possible for the cash to be illegally diverted. The two of them would later plead guilty to aiding Taylor Bean’s fraud.

In 2009, Alabama banking regulators seized Colonial. The downfall of Colonial Bank is considered one of the biggest bank failures in our nation’s history and Is expected to cost the FDIC’s insurance fund about $5 billion.

Although auditing firms usually tend to benefit from pari delicto, a common-law doctrine that prevents one wrongdoer from suing another for money made from a joint wrongdoing (and since employees’ actions are usually imputed to the corporation, in this case Colonial typically would also be considered a wrongdoer), the FDIC’s securities case portrays the Colonial lending officials as rogue employees who were working against the bank’s interest—especially as Colonial was harmed by the fraud when it lent Taylor Bean hundreds of millions of dollars that had been secured by loans that didn’t exist or were worthless. If the FDIC succeeds in demonstrating that Kissick and Kelly were working for their own benefit, then in pari delicto may not provide Pricewaterhouse Coopers and Crowe Horwath with such protections.

Meantime, Pricewaterhouse Coopers’s legal team is contending that Colonial’s employees acted to protect Colonial from loss and that Taylor Bean had been paying the bank $20-30 million/month in interest. The defendants are also arguing that auditors shouldn’t have been expected to discover the fraud that was so well hidden that the FDIC and OCC didn’t uncover it either when they conducted targeted exams.

A Tale of Two Lawsuits — PricewaterhouseCoopers and Colonial Bank, Forbes, November 10, 2012

FDIC Sues Auditors Over Colonial Bank Collapse, Smart Money/Dow Jones, November 15, 2012

Federal Deposit Insurance Corporation


More Blog Posts:

FDIC Objects to Bank of America’s Proposed $8.5B Settlement Over Mortgage-Backed Securities, Stockbroker Fraud Blog, August 30, 2011

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

Standard & Poor’s Misled Investors By Giving Synthetic Derivatives Its Highest Ratings, Rules Australian Federal Court, Institutional Investor Securities Blog, November 8, 2012

Continue Reading ›

According to the SEC’s Whistleblower Office, during fiscal year 2012 it received 3,001 tips. The categories that received the most complaints involved the areas related to manipulation, offering fraud, and corporate disclosures and financials. Although complaints came from every state, the states with the most complaints were California, with 435 whistleblower tips, 246 from New York, while 202 tips came from Florida. Tips also were sent in from 49 countries.

During this past fiscal year, there were 143 notices of covered enforcement actions that resulted in sanctions of over $1 million—the minimum amount that needs to be collected for a whistleblower to obtain a reward. (A quality, original tip may entitle a whistleblower to 10-30% of what the government recovers). The SEC said that its Investor Protection Fund, which pays these rewards to qualifying whistleblowers, is fully funded and at the end of FY 2012 contained over $435 million. In August, the SEC paid its first whistleblower reward of $50,000 under the program.

In other securities regulator news, Scott O’Malia the CFTC commissioner announced that the agency will have to contend with a “regulatory cliff” next month when the temporary no-action relief stemming from new swaps rules expires. The regulator had put out 18 no-action letters and other guidance on October 12, providing a lot of swap market participants with a brief reprieve from rules that were scheduled to go into effect the next day. The relief for most expires on the last day of the year, and O’Malia wants the agency to take action to resolve this situation. He made his comments at the DC conference sponsored by George Mason University’s Mercatus Center.

According to a report from Republican oversight panel members of the House Financial Services Committee, as MF Global teetered on the brink of failure, regulators were confused about how to deal with the crisis. The findings come from a number of Congressional hearings with MF Global executive and other officials during a yearlong probe, including interviews with numerous ex-MF Global employees and over 240,000 documents. The Republicans released the report without the backing of House Democrats.

E-mails that went back and forth between the regulators in the hours leading up to the financial derivatives broker’s bankruptcy exhibited what the Republicans describe as a “disorganized and haphazard” approach to oversight, as well as communication issues.
Some of the Republicans behind this 100-page report believe that regulators gave former MF Global chief executive John S. Corzine a lot of leeway. Meantime, Democrats have said that the report is a way for Republicans to embarrass Obama administrative watchdogs.

Representative Randy Neugebauer, who is the oversight panel’s chairman and led the investigation, commented that it wasn’t that more regulation was necessary in the handling of the MF Global crisis but that the regulators needed to actually do their job and work together better. For example, per the report, after the Commodity Futures Trading Commission had instructed MF Global to transfer $220M to stop up a hole in customer accounts, which the firm agreed to do, the Securities and Exchange Commission and other regulators complained that the order was given without first consulting them. The report also cites other incidents of missed communications and frustration among the different agencies toward each other.

Some Republicans are suggesting that SEC and CFTC would better serve investors and customers if they streamlined themselves or merged into one agency. However, this is not the first time that lawmakers have tried to combine the two regulators. Such efforts in the past have always hit a wall of opposition.

The report on MF Global is the most significant attempt by the government to address errors made by the broker and the bulk of the blame continues to be pointed toward Corzine, who fought back against attempts to limit his authority over European trades, including the demands of auditor PriceWaterhouseCoopers (PWC) that MF Global account for sovereign debt holdings in a manner that would have lowered profitability. However, authorities continue to remain wary of filing criminal charges against MF Global’s top executives because they believe that loose controls and chaos and not criminal actions, are why over a billion dollars in customer money disappeared. (The report also names the Federal Reserve Bank of New York, contending that it should have been more careful when deciding to approve MF Global’s application to sell securities on the New York Fed’s behalf.)

House Report Faults MF Global Regulators, New York Times, November 15, 2012

Financial Services Subcommittee Report Finds Decisions by Corzine, Lack of Communication Between Regulators Led to MF Global Bankruptcy and Loss of Customer Funds, Financial Services, November 15, 2012
Read the Report (PDF)

More Blog Posts:
$1.2 Billion of MF Global Inc.’s Clients Money Still Missing, Stockbroker fraud Blog, December 10, 2011

MF Global Holdings Ltd. Files for Bankruptcy While Its Broker Faces Liquidation and Securities Lawsuit by SIPC, Institutional Investor Securities Blog, October 31, 2011
Ex-MF Global CEO John Corzine Says Bankruptcy Trustee’s Bid to Join Investors’ Class Action Securities Litigation is Hurting His Defense, Institutional Investor Securities Blog, September 5, 2012 Continue Reading ›

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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Continue Reading ›

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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Moody’s, Fitch, and Standard and Poor’s Were Exercising Their 1st Amendment Rights When They Gave Inaccurate Subprime Ratings to SIVs, Says Court, Institutional Investor Securities Blog, December 30, 2010

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

Continue Reading ›

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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Texas Securities Fraud: Investors Bilked in $68M Dallas Ponzi Scam Hope To Recover Some Funds Via Rare Guitar Auction, Stockbroker Fraud Blog, October 25, 2012

Texas Securities Fraud: District Court Says Houston-Based Private Equity Firm Can Proceed with Claim Over $10M Film Financing Investment, Stockbroker Fraud Blog, October 19, 2012
Provident Royalties Faces $485 Million Texas Securities Fraud, Says SEC, Stockbroker Fraud Blog, July 26, 2009 Continue Reading ›

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