Investor Lawyers Blog

Montana Supreme Court Says Lower Court’s Finding that Tenancy-in-Common Investment Is Not A Securities Was In Error

Published on: July 20, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The Supreme Court of Montana says that a lower court erred when it found that an investor’s stake in a tenancy-in-common venture promising fixed return rates is not a securities under the Montana Securities Act. The case is Redding v. Montana 1st Judicial District .

Holding that the Montana First Judicial District Court improperly ruled that the plaintiff failed to invest in a common venture that would be considered an “Investment contract” under the act, the state’s highest court granted plaintiff Billie Redding’s petition seeking writ of supervisory control over the district court.

Redding had filed her Montana securities lawsuit against her accountant and number of entities, after a failed $4.5M investment in four TICs in commercial property through DBSI Housing Inc., which promised a steady return and that it would manage the properties. (Unfortunately, DBSI not only had to file for bankruptcy protection in 2008, but also its receiver found out that the company had been running a Ponzi scam.) Both sides moved for summary judgment on a number of matters, including whether a TIC constitutes a security under the state’s law.

Finding there was no common venture between DBSI and Redding, the district court said that the TICs in question are not to be considered securities. The lower court applied the horizontal commonality approach to reason that the plaintiff hadn’t been burdened with the same risks as other investors because her contract stated there would be fixed profit returns. The court also said that the vertical commonality test was not satisfied because Redding stood to gain regardless of how much was collected from the properties at any month.

Montana Supreme Court Justice Michael Wheat noted that under the Montana securities law, the courts in the state interpret that an investment contract has to satisfy the prongs that it is an a) investment having a b) common venture that c) comes with reasonable expectations and profits d) through the managerial or entrepreneurial efforts of others. Wheat said that seeing as the state hasn’t adopted a method to determine what satisfies the common prong venture for the Montana Securities Act’s purposes, a common venture can be set up by fulfilling the element of “either horizontal, broad vertical, or narrow vertical commonality.” In the matter of Redding, the state’s Supreme Court said that the district court’s finding in regards to common venture conflicted with United States Supreme Court precedent in SEC v. Edwards and was therefore incorrect.

In that case, the nation’s highest court determined that a fixed return rate could be an investment contract and, hence, a security that was “subject to federal securities laws.” The Montana Supreme Court found that the district court’s “reliance on a promised return as dispositive of common venture” needed to be reversed. The state’s highest court said that vertical commonality or horizontal community is the “keystone” when it comes to common venture and not the investment return’s accompanying fluctuation and risk.

Court Erred in Finding TIC Investments Not Securities, Montana High Court Rules, Bloomberg/BNA, July 10, 2012

Redding v. Montana 1st Judicial District (PDF)

SEC v. Edwards

More Blog Posts:
Securities Fraud Lawsuit Seeks to Recover $49M From 96 Independent Broker-Dealers Liable Over Sales of Tenant-In-Common Exchanges, Stockbroker Fraud Blog, December 15, 2010
SEC to Push for Money Market Mutual Fund Reform Provisions Despite Opposition, Stockbroker Fraud Blog, July 6, 2012

Barclays LIBOR Manipulation Scam Places Citigroup, Credit Suisse, Deutsche Bank, JP Morgan Chase, and UBS Under The Investigation Microscope, Institutional Investor Securities Blog, July 16, 2012 Continue Reading ›

Institutional Investor Roundup: Ex-IndyMac Executives Class Action Securities Case for $6.5M, New York Fed Sells $828M of Mortgage Debt Securities from AIG Bailout, and Survey Says That 25% of Wall Street Employees Believe Cheating is Necessary to Succeed

Published on: July 18, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The former executives of IndyMac Banccorp have consented to settle class-action securities lawsuit related to bank holding company’s collapse when the housing bubble burst. Per the settlement terms, the financial firm’s insurer will pay investors $6.5 million in cash.

IndyMac shareholders had gone after ex-CEO Michael Perry and ex-finance officer Scott Keys in 2008, contending that they had misled investors about the mortgage lender’s poor financial condition. A month later, federal bank regulators closed down IndyMac Bank. Although the two of them are settling, they were not required to admit to any wrongdoing.

“Again, no jail time for anyone,” commented Shepherd Smith Edwards and Kantas, LTD, LLP Founder and Stockbroker Fraud Lawyer William Shepherd.

CFTC Files Texas Securities Fraud Against TC Credit Services and its Houston Owner Over $1.4M Commodity Pool Scam

Published on: July 17, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. Commodity Futures Trading Commission is charging TC Credit Service, LLC, doing business as Del-Mair Group, LLC), and its owner Christopher D. Daley with Texas securities fraud. In its anti-fraud enforcement action, the CFTC is accusing them of running a $.1.4 million commodity pool scheme.

According to the CFTC, beginning at least as early as the start of 2010 and up until at least November 2011, the defendants fraudulently accepted and solicited at least $1.4 million from at least 55 participants who became involved in a commodity pool for trading crude oil futures contracts. However, alleges the agency, TC Credit Services wasn’t maintaining any commodity accounts under its name during this time, while Daley’s personal trading accounts were suffering net losses monthly.

The Texas securities complaint accuses Daley of omitting material fact, giving pool participants fake account statements to hide the fraud, and making fraudulent misrepresentations that: his trading in crude oil futures contracts would make 20% monthly returns on deposits, the pool never experienced a month of losses, and its value had grown 60% for the year starting March 2011. Daley also allegedly omitted that the pool did not keep any commodity interest account under its name, his personal futures trading accounts lost money each month, and he was not a properly registered Commodity Pool Operator with the agency.

The CFTC claims that Dailey used just a part of the participants’ money to trade futures contracts while he misappropriated the rest of the cash, including at least $100,000 to cover his own expenses and about $195,000 toward his own bank accounts.

One day after the agency submitted its complaint to the U.S. District Court for the Southern District of Texas, Judge Lynn N. Hughes issued an emergency order freezing the defendants assets and barring them from destroying records and books. The CFTC wants restitution for the defrauded pool participants and for the defendants to pay civil penalties and give back ill-gotten gains. It also wants registration and trading bans and permanent injunctions against future federal commodities laws violations.

Commodity Pool Fraud
These scams usual involve unregistered commodity pool operators that promise investors big profits with low risks. These fraudsters will usually capitalize on their personal relationships or reputations to get people to invest. Unfortunately, every year, investors end up losing millions of dollar in commodity pool scams and fake “hedge funds” that trade in commodity futures and options.

CFTC Charges Houston-based Christopher Daley and his company, TC Credit Service, LLC, with Solicitation Fraud and Misappropriation in $1.4 Million Dollar Commodity Pool Scheme, CFTC, July 11, 2012

Read the Complaint (PDF)

More Blog Posts:
Texas Securities: SEC’s Bid To Get Stanford Ponzi Scam Victims SIPC Coverage is Denied by District Court, Stockbroker Fraud Blog, July 9, 2012

Texas Securities Roundup: Morgan Stanley Smith Barney Sued Over Financial Adviser’s Ponzi Scam, Judge Dismisses Ex-GE Executive Whistleblower’s Lawsuit Over His Firing, & Ex-Stanford Financial Group CIO Pleads Guilty to Obstructing the SEC’s Probe, Stockbroker Fraud Blog, July 3, 2012

Ponzi Scam Receiver Can Go Forward with Securities Claim Against Texas Investor Who Benefited From the Fraud, Stockbroker Fraud Blog, June 26, 2012 Continue Reading ›

Barclays LIBOR Manipulation Scam Places Citigroup, Credit Suisse, Deutsche Bank, JP Morgan Chase, and UBS Under The Investigation Microscope

Published on: July 16, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The London Inter-Bank Offer Rate (LIBOR) manipulation scandal involving Barclays Bank (BCS-P) has now opened up a global probe, as investigators from the United States, Europe, Canada, and Asia try to figure out exactly what happened. While Barclays may have the settled the allegations for $450 million with the UK’s Financial Services Authority, the US Department of Justice, and the Commodity Futures Trading Commission, now a number of other financial firms are under investigation including UBS AG (UBS), JPMorgan Chase (JPM), Deutsche Bank AG, Credit Suisse Group (CS), Citigroup Inc., Bank of Tokyo-Mitsubishi UFJ, HSBC Holdings PLC (HBC-PA), Lloyds Banking Group PLC (LYG), Rabobank Groep NV, Mizuho Financial Group Inc. (MFG), Societe Generale SA, RP Martin Holdings Ltd., Sumitomo Mitsui Banking Corp., and Royal Bank of Scotland PLC (RBS).

In the last few weeks, the accuracy of LIBOR, which is the average borrowing cost when banks in Britain loan money to each other, has come into question in the wake of allegations that Barclays and other big banks have been rigging it by submitting artificially low borrowing estimates. Considering that LIBOR is a benchmark interest rates that affects hundreds of trillions of dollars in financial contracts, including floating-rate mortgages, interest-rate swaps, and corporate loans globally, the fact that this type of financial fudging may be happening on a wide scale basis is disturbing.

“It’s my understanding the total financial paper effected by LIBOR is close to $500 trillion dollars. This is a half-quadrillion dollars if you are wondering about the next step up,” said Shepherd Smith Edwards and Kantas, LTD, LLP Founder and Institutional Investment Fraud Attorney William Shepherd.

FINRA Sustained $84.1M Net Loss in 2011

Published on: July 14, 2012 | by Shepherd Smith Edwards & Kantas, LLP

According to its yearly financial report, in 2011 the Financial Industry Regulatory Authority sustained an $84 million net loss last year primarily because of “non-recurring costs” involving new data centers in Maryland and New York and a rise in integration expenses related to the enhancement of cross market surveillance capabilities. A poor economy also reportedly played a role in the SRO’s decrease in revenues. The report came out on June 29.

FINRA Chairman and Chief Executive Officer Richard Ketchum attributed the decrease of regulatory fees of close to $50 million-a 10% drop since the financial crisis hit in 2008-to a drop in transaction volumes and industry revenues, as well as lower investment returns because of overall market returns and a more conservative investment allocation policy. (FINRA also noted net losses of $696.3 million in 2008, $48.6 million in 2009, and $54.6 million in 2010. )

Ketchum said that due to its “static funding levels,” FINRA is closely examining the organization’s spending habits, which it plans to lower by approximately $35 million this year. He expects that this will creative cumulative savings of close to $60 million by the end of next year while keeping the SRO’s regulatory mission intact.

Goldman Sachs Execution and Clearing Must Pay $20.5M Arbitration Award in Bayou Ponzi Scam, Upholds 2nd Circuit

Published on: July 14, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. Court of Appeals for the Second Circuit is allowing a $20.5M award issued by a Financial Industry Regulatory Authority arbitration panel against Goldman Sachs Execution & Clearing LP to stand. The court turned down Goldman’s claim that the award should be vacated because it was issued in “manifest disregard of the law” and said that the clearing arm must pay this amount to the unsecured creditors of the now failed Bayou hedge fund group known as the Bayou Funds, which proved to be a large scale Ponzi scam.

Goldman was the prime broker and only clearing broker for the funds. After the scheme collapsed in 2005, the Bayou Funds sought bankruptcy protection the following year. Regulators would go on to sue the fund’s funders over the Ponzi scam and the losses sustained by investors. Meantime, an Official Unsecured Creditors’ Committee of Bayou Group was appointed to represent the debtors’ unsecured debtors. Blaming Goldman for not noticing the red flags that a Ponzi fraud was in the works, the committee proceeded to bring its arbitration claims against the clearing firm through FINRA. In 2010, the FINRA arbitration panel awarded the committee $20.58M against Goldman.

In affirming the arbitration award, the 2nd Circuit said that in this case, Goldman did not satisfy the manifest disregard standard. As an example, the court pointed to the $6.7M that was moved into the Bayou Funds from outside accounts in June 2005 and June 2004. While the committee had contended during arbitration that these deposits were “fraudulent transfers” and could be recovered from Goldman because they were an “initial transferee” under 11 U.S.C. §550(a), Goldman did not counter that the deposits weren’t fraudulent or that it was on inquiry notice of fraud. Instead, it claimed the deposits were not an “initial transferee” under 11 U.S.C. §550 and the panel had ignored the law by finding that it was.

NYSE Proposal for Retail Order Execution Pilot Program Gets SEC Approval

Published on: July 12, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has approved the New York Stock Exchange LLC and NYSE Amex LLC proposal for a pilot program that lets them set up for one year a private trade execution venue for retail investors. The “retail liquidity program” will go up against internalizing brokerage firms for retail order flow while offering price improvements at mere fractions of a penny. (Currently retail brokers send most of their orders through broker dealers that internalize or execute them in over-the-counter markets instead of bilateral exchanges.)

According to NYSE Euronext (NYX), the program will be implemented on the NYSE MKT and NYSE on August 1 and is complimentary to the trade execution options that currently exist for retail investors. The program is for direct use by retail brokerages and market intermediaries that work with retail order flow providers.

In a release issued last week, NYSE Euronext executive vice president Joseph Mecane said that giving improved prices for retail orders in an exchange environment lets individual investors afford new economic incentives while creating greater liquidity, transparency, and competition through the US cash equities marketplace. The program will set up two new market participant classes at NYSE exchange: 1) retail member organizations that will turn in retail orders to the exchanges and 2) retail liquidity providers that will have to give price improvements as interest that is more competitively priced than the exchange’s best protected bid/offer as a tradeoff for specific economic benefits. A NYSE member can qualify as a liquidity provider by obtaining approval as a market maker or supplementary liquidity provider on the exchange, while demonstrating that it can meet retail liquidity provider requirements.

Institutional Investor Roundup: Evergreen Ultra Short Investor Lawsuit Settled for $25M, FINRA Launches Pilot Program for Huge Claims, Ex-AmeriFirst Funding Manager’s Conviction Appeal is Rejected, & EU Regulator Examines Credit Raters’ Bank Downgrade

Published on: July 12, 2012 | by Shepherd Smith Edwards & Kantas, LLP

Evergreen Investment Management Co. LLC and related entities have consented to pay $25 million to settle a class action securities settlement involving plaintiff investors who contend that the Evergreen Ultra Short Opportunities Fund was improperly marketed and sold to them. The plaintiffs, which include five institutional investors, claim that between 2005 and 2008 the defendants presented the fund as “stable” and providing income in line with “preservation of capital and low principal fluctuation” when actually it was invested in highly risky, volatile, and speculative securities, including mortgage-backed securities. Evergreen is Wachovia’s investment management business and part of Wells Fargo (WFC).

The plaintiffs claim that even after the MBS market started to fail, the Ultra Short Fund continued to invest in these securities, while hiding the portfolio’s decreasing value by artificially inflating the individual securities’ asset value in its portfolio. They say that they sustained significant losses when Evergreen liquidated the Ultra Short Fund four years ago after the defendants’ alleged scam collapsed. By settling, however, no one is agreeing to or denying any wrongdoing.

Meantime, seeking to generally move investors’ claims forward faster, the Financial Industry Regulatory Authority has launched a pilot arbitration program that will specifically deal with securities cases of $10 million and greater. The program was created because of the growing number of very big cases.

CFTC Accuses Peregrine Financial Group of Securities Fraud Related to $200M Customer Funds Shortfall

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

The CFTC is accusing Peregrine Financial Group and its owner Russell R. Wasendorf, Sr. of misappropriating client monies, including statements that were untrue in financial statements submitted to the CFTC, and violating customer fund segregation laws. The Commission filed its securities fraud complaint against the registered futures commission merchant in the United States District Court for the Northern District of Illinois.

Per the CFTC’s complaint, during an audit by the National Futures Association, Peregrine misrepresented that it was holding more than $200M of client funds when it only held about $5.1M. The regulator says that the whereabouts of this at least $200 million in customer fund shortfall are not known at this time. In the wake of the allegations, Peregrine has told its clients that it was being investigated for “accounting irregularities.”

The Commission contends that beginning at least 2/2010 until now, Peregrine and Wasendorf did not meet CFTC Regulations and the Commodity Exchange Act by not maintaining enough client money in accounts that were segregated. The brokerage and its owner also are accused of making false statements about the funds that were being segregated for clients that were trading on US Exchanges in required filings.

Wasendorf, who reportedly tried to kill himself on Monday is now in a coma. The NFA just recently was given information that he may have been responsible for a number of falsified bank records.

The CFTC wants a restraining order to preserve records, freeze assets,, and establish a receiver. It is seeking disgorgement, restitution, financial penalties, and other appropriate financial relief.

Yesterday, Peregrine’s clearing broker Jefferies Group Inc. said that it had started unloading positions held for the futures brokerage’s clients after a margin call was not met. Jeffries Group doesn’t expect to sustain losses.

Meantime, the NFA and “other officials, have frozen all customer funds and Peregrine is not allowed to accept or solicit new client funds or accounts or make trades for customers unless it involves liquidating positions or distributing their money. Also looking into this financial matter is the US Federal Bureau of Investigation.

It was just this year that a court-appointed receiver in Minnesota sued Peregrine over allegedly disregarding warning signs that the futures brokerage’s client Trevor Cook was running a Ponzi scam. According to the securities lawsuit, investments by Cook and others with Peregrine that were supposedly profitable sustained over $30 million in losses as the allegedly culpable participants moved about $48 million from clients to Peregrine accounts.

According to Fox Business, the fallout from these latest allegations against Peregrine could be bigger than the MF Global collapse as traders blame regulators for not doing enough and industry members fight to recapture investor confidence.

CFTC Files Complaint Against Peregrine Financial Group, Inc. and Russell R. Wasendorf, Sr. Alleging Fraud, Misappropriation of Customer Funds, Violation of Customer Fund Segregation Laws, and Making False Statements, CFTC, July 10, 2012

Peregrine Financial Allegedly Has $200 Million Shortfall, Bloomberg, July 10, 2012

PFG Scandal Deepens as CFTC Files Claim, Fox Business News/Reuters, July 10, 2012

More Blog Posts:
ABA Presses for Self-Funding for SEC and CFTC, Institutional Investor Securities Blog, May 31, 2012

CFTC and SEC May Need to Work Out Key Differences Related to Over-the-Counter Derivatives Rulemaking, Institutional Investor Securities Blog, January 31, 2012

SEC and CFTC Say They Found Out About JPMorgan’s $2B Trading Loss Through Media, Institutional Investor Securities Blog, May 31, 2012

Texas Securities: SEC’s Bid To Get Stanford Ponzi Scam Victims SIPC Coverage is Denied by District Court

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

The U.S. District Court for the District of Columbia has rejected the Securities and Exchange Commission’s lawsuit, which sought Securities Investor Protection Corporation protection for the investors that were defrauded in R. Allen Stanford’s $7 billion Ponzi scam. Federal Judge Robert Wilkins said that under the definition of the Securities Investor Protection Act, the SEC did not meet its burden in proving that more than 7,000 Stanford investors were “victims” and, as a result, eligible for SIPC coverage of up to $500,000 each. Wilkins therefore has decided not to order a liquidation proceeding in federal court in Texas.

SIPC, which has a special reserve fund to compensate investors that sustain financial losses in brokerage firms that fail, has been adamant that it cannot cover Stanford’s Ponzi victims because their losses were not in a failed brokerage firm. The investors had bought CDs issued by Stanford International Bank Ltd., which is a foreign-based bank, and not through Stanford Group Co., the broker-dealer based in Houston.

The SEC disagrees, which is why it brought this lawsuit to get the court to make SIPC start liquidation proceedings. The Commission doesn’t believe that an actual separation between the Antigua- located bank and Stanford Group existed and that clients who invested with Stanford International Bank effectively placed their money in the broker-dealer. It also said customer status shouldn’t only depend on the identity of the entity where the clients’ funds have been placed and pointed out that Stanford used his control over both banks to divert the CD sale proceeds toward Stanford Group obligations and expenses. The regulator noted how certain investors were given information that caused them to believe that they were buying SIPA-protected CDs.

In his ruling, however, Judge Wilkins, decided that the SEC’s interpretation of SIPA was “extraordinarily broad and would unreasonably contort” the language of the statute. The district court said that while it sympathized with Stanford’s victims, it had an obligation to apply SIPA the way Congress intended and to stick to the statute’s narrow definition of what constitutes a “customer.” Wilkins noted that an investor is eligible to SIPC compensation only if he/she has placed securities or money in a broker-dealer that becomes insolvent. If the investor did not entrust securities or cash, then he/she is not a “customer” and not entitled to recovery from SIPC. The court said that seeing as Stanford’s investors put money into Stanford International Bank accounts to buy their CDs and not Stanford Group, then within the meaning of SIP the defrauded investors that bought the CDs are not Stanford Group customers.

SEC Loses Bid To Force SIPC Payout For Stanford Investors, Bloomberg, July 3, 2012

SEC Loses Bid to Gain SIPC Coverage for Stanford Investors, Bloomberg/BNA, July 5, 2012
Securities Investor Protection Act, US Courts
Securities Investor Protection Corporation

More Blog Posts:
Texas Securities Roundup: Morgan Stanley Smith Barney Sued Over Financial Adviser’s Ponzi Scam, Judge Dismisses Ex-GE Executive Whistleblower’s Lawsuit Over His Firing, & Ex-Stanford Financial Group CIO Pleads Guilty to Obstructing the SEC’s Probe, Stockbroker Fraud Blog, July 3, 2012

Ponzi Scam Receiver Can Go Forward with Securities Claim Against Texas Investor Who Benefited From the Fraud, Stockbroker Fraud Blog, June 26, 2012

Madoff Trustee Files Clawback Lawsuits Collectively Seeking Over $1B For BLMIS Feeder Fund Transfers, Institutional Investor Securities Blog, June 12, 2012 Continue Reading ›