Investor Lawyers Blog

Federal Sentencing Judges Cannot Later Reopen Fraud Cases to Add Restitution, Rules Fifth Circuit

Published on: November 13, 2012 | by Shepherd Smith Edwards & Kantas, LLP

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

Texas Securities RoundUp: Provident Royalties CEO Pleads Guilty in $485M Ponzi Scam and District Court Upholds $100K Arbitration Award in Adviser Fee Dispute

Published on: November 10, 2012 | by Shepherd Smith Edwards & Kantas, LLP

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 ›

SEC Roundup: $62M Securities Fraud Award Against Ex-Lancer Group Hedge Fund Manager Stands, Investment Management Division Adopts Risk-Based Approach to Regulatory Initiatives, & Conflicts of Interest Areas Now Are Priority

Published on: November 10, 2012 | by Shepherd Smith Edwards & Kantas, LLP

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.

FINRA Provides Guidance As It Opens Up Arbitration Process to Investment Advisers

Published on: November 9, 2012 | by Shepherd Smith Edwards & Kantas, LLP

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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Louisiana-Based Hedge Fund Manager Charged by SEC with Securities Fraud Related for Allegedly Concealing RMBS Losses

Published on: November 8, 2012 | by Shepherd Smith Edwards & Kantas, LLP

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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Standard & Poor’s Misled Investors By Giving Synthetic Derivatives Its Highest Ratings, Rules Australian Federal Court

Published on: November 8, 2012 | by Shepherd Smith Edwards & Kantas, LLP

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 to Pay $2M Massachusetts Over Allegedly Improper Disclosure About Facebook Before IPO & SEC Wants Additional Comments on Nasdaq’s Proposed $62M Fund For Those that Experienced Technical Glitches After Trading Began

Published on: November 7, 2012 | by Shepherd Smith Edwards & Kantas, LLP

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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Top Financial Regulators Speak Out Against Bill They Claim Gives the White House Authority Over Rulemaking

Published on: November 6, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The heads of the Office of the Comptroller of the Currency, the Federal Reserve, the Securities and Exchange Commission, the Consumer Financial Protection Bureau, the National Credit Union Administration, and the Federal Deposit Insurance Corporation have sent a letter to Senators Susan Collins (R-Maine) and Joseph Lieberman (I-Conn) about bill S. 3468: Independent Agency Regulatory Analysis Act of 2012. Lieberman is the chair of the Senate Committee on Homeland Security and Governmental Affairs, the committee to which S. 3467 has been referred.

The regulators believe that, if approved, the legislation would give the White House “unprecedented authority” over independent agencies’ rulemaking and policy functions. For example, would let the president of the United States mandate that independent agencies turn in proposed rules to the Office of Management and Budget for approval. It also would require the agencies to analyze the benefits and costs of new regulations, which is a process that they have up to now been exempt from.

The letter reminds Lieberman and Collins, who is a ranking committee member and a cosponsor of the proposal, that Congress set up the independent regulatory agencies to exercise policymaking functions separate from any administration’s control. By requiring that the agencies give their rulemakings to OMB’s Office of Information and Regulatory Affairs, say the regulators, the president would gain power to affect the rulemaking and policy functions of these agencies, taking away that independence. They also believe that the bill gets in the way of their ability to make needed rules in a timely way, which would likely lead to litigation.

Securities Roundup: Study Recommends Against Additional Money Fund Reforms, Lawmakers Disagree on Whether Dodd-Frank Wiped Out “Too Big to Fail” & An SEC Committee Approves Recommendations to Proposed General Solicitation Ban

Published on: October 31, 2012 | by Shepherd Smith Edwards & Kantas, LLP

Per a study released by the U.S. Chamber of Commerce, it is “ill-advised” to regulate money market mutual funds further due to the effective reforms that the SEC already implemented two yeas ago, including revisions that made the funds more transparent and liquid and not as high risk. The study comes in the wake of debate between lawmakers, market participants, and regulators about more regulations to the industry. For example, SEC Chairman Mary Schapiro has been pushing for the additional reforms because she believes the money market mutual fund industry continues to be a threat to the financial system.

The authors of the study derived their findings from money fund investment data that had been filed with the Commission, as well as from information on commercial paper from the Federal Reserve. Among its conclusions is that the reforms in 2010 made the funds more liquid and better equipped to deal with significant redemption changes. Also, in the last two years, the funds have begun to shift “more dynamically” through geographies and asset classes in reaction to “evolving risks.”

Another area that has been up for debate is whether the Dodd-Frank Wall Street Reform and Consumer Protection Act has, in fact, ended “too big to fail” and outlawed bailouts. Rep. Barney Frank (D-Mass) issued an analysis earlier this month that said that the law does. However, another report, by House Financial Services Committee Chairman Rep. Spencer Bachus (R-Ala), disagrees.

Criminal Sentences Issued in Municipal Bond Conspiracies Involving Three Ex-Financial Services Execs Accused of Contract Bidding & FINRA Looks at Whether Financial Firms Made Bond Ballot Campaign Contributions For Municipal Underwriting Business

Published on: October 31, 2012 | by Shepherd Smith Edwards & Kantas, LLP

In the U.S. District Court for the Southern District of New York, three ex-former financial services executives have received their respective sentences for taking part in conspiracies involving contract bidding for municipal finance contracts and the municipal bond proceed investments. The defendants, Peter S. Grimm, Steven E. Goldberg, and Dominick P. Carollo, are former General Electric (GE) affiliate executives. They were convicted earlier this year.

Per evidence at the criminal trial, between 1999 and 2006, while working for the GE affiliates, the three defendants took part in different conspiracies involving different insurance companies and financial institutions. These “providers” offered an investment agreement contract to governments and agencies throughout the country. These public entities wanted to invest money from different sources, mainly proceeds from municipal bonds proceeds they had issued to raise money, for public projects.

The three men and their co-conspirators are accused of corrupting the bidding process for many of these investment agreements to raise the profitability and amount of the agreements that were awarded to the provider companies where they worked. This led to municipalities not being able to avail of competitive interest rates for investing tax-exempt bond proceeds that they were going to use for different public works projects, which cost them millions of dollars.

Carollo, who was convicted on two counts of conspiracy to commit wire fraud and defraud the US, was sentenced to 36 months behind bars and he has to pay a $50,000 criminal fine. Goldberg, who was found guilty of four counts of the same charge, got a prison term of 48 months and he must pay a $90,000 fine. Grimm, whose conviction involves 3 counts of the same crime, also received a 36-month prison term. He has to pay a $50,000 fine.

Meantime, the Financial Industry Regulatory Authority is trying to determine whether brokerage firms made bond ballot campaign contributions that resulted in them receiving campaign-related municipal underwriting business. This closer examination by the SRO comes following media reports in these allegations.

Although municipal dealers contributing to campaigns usually is not a violation of rule G-37 of the Municipal Securities Rulemaking Board, the SRO wants to look into the perception that some contributions may have been influential and if, indeed, some broker-dealers have been assisting a “municipal issuer do what it is prohibited itself from doing,” said Robert Ketchum, FINRA CEO and chairman. Ketchum made his statements at the Bond Dealers Association’s annual conference earlier this month.

FINRA has been looking closely at bond markets (which in the last year have experienced a rise in retail investors), including municipal dealer firms with business activities dealing significantly with retail-sized transactions. The SRO wants to make sure that members reveal all material facts about a transaction to customers, check that products are suitable for investors, assess the credit risks involved with a municipal bond, and refrain from pay-to-play violations to influence issuer officials.

Ex-GE Bankers Convicted of Municipal Bond Bid-Rig Scheme, Bloomberg Businessweek, October 18, 2012

Remarks by Richard G. Ketchum Chairman and Chief Executive Officer, Bond Dealers Association Annual Conference, October 11, 2012

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July 31, 2012
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Muni Debt Reform: SEC to Proceed with Field Hearing in Alabama, Stockbroker Fraud Blog, May 29, 2011