Investor Lawyers Blog

As the US House Passes Package of Bills to Open Capital Market Flow to Small Businesses, the Senate Prepares Similar Legislation

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

It’s been less than one week since US House passed a package of six bills that would open up capital flow to small businesses. Now, it is the Senate is preparing to introduce its own version of legislation to assist small businesses in raising capital. Both Republican and Democrat senators are expected to work together to push forward the bills package, which would ease up the restrictions of SEC regulations to attract investors and help out startups and small businesses.

The legislation, which made it through the House by a 390-23 vote, has President Barack Obama’s support. Called the Jumpstart Our Business Startups Act (H.R. 3606), the bills would allow crowdfunding (this involves raising capital from a bigger pool of small-scale investors that the Commission has not classified as “accredited.”), increase the shareholder reporting trigger for all community banks and companies, set up an initial public offering “on-ramp” for emerging growth companies, increase the Regulation A offering cap to $50 million, and eliminate the general solicitation ban.

The House also approved several amendments to the package. Among these was one that would up the shareholder threshold for all firms to $2,000. The original bill had only increased the threshold to 1,000. Per the amendment, only 500 shareholders under the 2,000 limit can be non-accredited. Another amendment mandates that the Securities and Exchange Commission conduct a study regarding whether it can enforce the Exchange Act’s Rule 12g5-1.

SIPC Modernization Task Force Recommends Increasing SIPA Protection Level for Failed Brokerage Firm’s Clients from $500K to $1.3M

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

The SIPC Modernization Task Force, which was created by the Securities Investor Protection Corporation, has made 15 recommendations to update SIPC and Securities Investor Protection Act provisions. Among the 15 recommendations:

• Raising coverage protection for customers of failed brokerage firms from $500K to $1.3M.
• Getting rid of the distinction between protection levels for securities and cash.
• Providing pension fund protections for participants on a pass-through basis.
• Amending the current minimum assessment to whichever is greater-a) the amount established by SIPC Bylaw to not go over 0.2% of the member’s gross revenues from the securities business or b)$1,000.
• When total amount of claims aggregates is $5 million, allowing for direct payment procedures.
• Mandating that SIPC members’ auditors submit audit report copies with SIPC.
• Affirming banks and other custodians’ duty to protect Rule 15c3-3 accounts; reaffirming that the accounts will have to contend with trustee control should the broker-dealer enter liquidation proceedings.
• Granting the same avoidance powers to the SIPA trustee and a trustee dealing with a case under the bankruptcy code.
• Continuing to allow reverse purchase agreement and repurchase related claims to be treated as general creditor claims.

SIPC’s board is now evaluating the recommendations, some of which will require congressional action (ie. rule making).

Meantime, investors of Bernie Madoff have submitted two petitions requesting that the US Supreme Court review the U.S. Court of Appeals for the Second Circuit’s ruling, which upheld Irving Picard’s method of calculating “net equity” under SIPA in which customers are allowed to get back their “net equity.” However, how that amount is calculated is not specified.

Picard is the Madoff trustee and is overseeing the liquidation of the Ponzi mastermind’s brokerage firm, Bernard L. Madoff Investment Securities LLC. Contending that BLMIS created false profits, Picard Is suing “net winners” that allegedly took more money than they deposited into their accounts. The money retrieved would pay back “net losers.”

In a certiorari petition submitted on February 3, lawyers for hundreds of investors contended that the appeals court made a mistake in giving SIPA trustees “unlimited discretion” to determine “net equity” according to whatever circumstances are involved. The investors argued that SIPA defines “net equity” in a manner that mandates that SIPC insurance coverage be issued according to the amount the broker owes to customers. This figure the reflected on the last statement.

A few days later, Massachusetts School of Law Dean Lawrence Vevel, who is also an investor, filed his certiorari petition accusing the Second Circuit of disregarding congressional intent when it upheld in favor of Picard’s approach to “net equity.” He argued that Congress obviously meant to replace client securities even if the securities had never been bought.

The Madoff trustee has refused to pay back claimants according to their final BLMIS accounts. Instead, he has said that customer claims have to be based on the withdrawals and deposits that are noted in BLMIS’ books and records.

Diverse Group of Securities Experts Make Recommendations For Future of Organization, SIPC, February 21, 2012
Madoff Investors Ask High Court to Review Affirmance of Trustee’s ‘Net Equity’ Method, Bloomberg BNA, February 22, 2012

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Appeals Court affirm SEC Finding that Broker Acted “Willfully” When Keeping IRS Lien Information from FINRA, Stockbroker Fraud Blog, February 24, 2012
FINRA Says Charles Schwab Corp. is Making Customers Waive Right to Pursue Class Action Lawsuits, Stockbroker Fraud Blog, February 8, 2012
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Look Out for Rule Recommendations on Consolidated Audit Trail, Market-Wide Circuit Breaker Changes, and Limit Up-Limit Down Mechanisms

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

Securities and Exchange Commission’s Division of Trading and Market Associate Director David Shillman reported that the staff is almost ready to recommend three market rules for adoption. He noted that the Commission would likely bundle recommendations dealing with consolidated audit trail, market-wide circuit breaker changes, and limit up-limit down mechanisms. Schillman made his comments at SEC Speaks, which was sponsored by the Practising Law Institute, on February 24.

FINRA and the national securities exchanges submitted the proposal on limit up-limit down last year. Per the proposal, trades in listed securities would need to be executed within a range connected to recent instrument prices. The limits are set up to take the place of single stock circuit breakers (pilot basis-approval was given). Shillman noted that although single stock circuit breakers “have worked relatively well,” they are a “relatively blunt instrument” and a wrong trade can happen prior to the break’s activation. Such mistakes would be avoided with limit up-limit-down.

The exchanges and FINRA also proposed to update current market-wide circuit breakers, which would tighten the trigger-window for a market-wide stoppage to a 7% index from a 10% price movement. The pause that occurs in trading would also be shortened. Meantime, in 2010, the SEC had proposed a “consolidated audit trail,” which would be a national database for capturing in real time details on the National Market System securities and listed options. The customer’s identity would be included in the data.

FINRA May Surrender Proprietary BrokerCheck Lock 1

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

The Financial Industry Regulatory Authority Inc. is thinking of giving up its proprietary lock on BrokerCheck information. This would allow for greater examination of a broker’s disciplinary data, including regulatory and arbitration actions, as well as customer complaints. The SRO is currently seeking public comment on this matter through April 6.

Opening up access to BrokerCheck data would allow commercial users to make the reports, known for being pretty dense, friendlier for users. (Some people have said that the information available is “convoluted” and uses language that can be hard for an investor to comprehend.) This could help investors more easily find information about a broker. Also, vendors might be able to establish comparison data and some complaint data on the firm-level could become accessible.

Up until this point, FINRA has been protective about keeping its disciplinary information confidential. Not only has it prevented the automatic downloading of the BrokerCheck database, but also, this information has only been available through one-off data requests by individuals.

Texan R. Allen Stanford Convicted on 13 Criminal Counts Over $7.2B Ponzi Fraud

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

Nearly three years after he was indicted for defrauding investors in a $7.2 billion Ponzi scam involving certificates of deposit that are now worthless, a Houston jury has convicted R. Allen Stanford of 13 of 14 criminal counts, including fraud, conspiracy to commit money laundering, conspiracy to commit wire or mail fraud, wire fraud (from April 24, 2006, December 24, 2008, January 5, 2009, and February 12, 2009), mail fraud, and obstructing investigators. The only count jury members found him not guilty of was wire fraud (from February 2, 2006). Collectively, the Texas financier’s convictions carry prison sentences totaling up to 230 years.

Prosecutors depicted Stanford, 61, as a con man that used investors’ money to get very rich and pay for his businesses. (At one point, his net worth was over $2 billion.) They also say he bribed regulators so he could get away with his scam.

During his criminal trial, financial statements e-mails that were presented as evidence and ex-employees who testified helped paint a picture of the Texan as someone who spent 20 years defrauding investors by selling CDs through his bank in Antigua. James M. Davis, who served as former CFO for Stanford’s different companies, also was a witness for the prosecution. He stated that he and Stanford together falsified annual reports, bank records, and other documents to hide the fraud. Prosecutors contended that Stanford lied to depositors from over 100 nations by claiming that their cash was being invested in bonds, stocks, and other securities.

US Supreme Court’s Janus Ruling May Compel SEC to File More Aiding, Abetting, and Control Person Liability Securities Claims

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

According to the Securities and Exchange Commission Enforcement Division’s Chief Counsel Joseph Brennan, the US Supreme Court’s ruling in Janus Capital Group Inc. v. First Derivative Traders is impacting the types of violations the federal regulator is now filing against defendants. Brennan says to look out for more possible control person liability and aiding and abetting claims. Speaking at the SEC Speaks conference by the Practising Law Institute in Washington, Brenner said the views he was expressing are his own.

In the high court’s 2011 ruling, the decision honored, under Rule 10b-5 of the 1934 Securities Exchange Act, a narrow perspective of primary liability in a private lawsuit. The majority held that an investment adviser who was a legally separate entity from the mutual fund that submitted an allegedly prospectus couldn’t be held primarily liable in a private action even if that adviser had played a key role in developing the statement. Justice Clarence Thomas wrote that the statement’s maker is the entity or person with final authority over the statement (including its content and how it should be communicated).

The Exchange Act’s SEC Rule 10-b5(b) makes it illegal to either issue any statement of material fact that is untrue or leave out a key fact. The Supreme Court’s ruling establishes an even higher pleading bar in private securities fraud cases where the plaintiff wants to hold defendants liable for other’s misstatements.

The ruling, however, has not had a big impact on who the SEC can charge. It also hasn’t had a big influence on SEC enforcement decisions involving other statutes and provisions.

Also discussing Janus at the same gathering was SEC Deputy Solicitor John Avery. He noted while that the decision signified a significant “change” and the “narrowing” of how primary liability for issuing false or misleading statements is defined, it remains unclear whether SEC actions are covered under the ruling. While some district courts have found that Janus applies to SEC actions, federal appellate courts have not issued any decisions related to this matter.

Avery said that the ruling has, however, changed the way the SEC files charges. The federal agency, which is authorized to pursue aiders and abbettors accused of violative conduct, might now charge those that played a role in creating the statement as abbettors and aiders even though they wouldn’t be liable per Janus. However, in certain cases, this authority won’t work too well.

Meantime, federal courts are starting to deal with whether Janus is applicable beyond the context of Rule 10b-5. In four out of five SEC cases, the courts have ruled against applying Janus outside the rule.

Contact our securities fraud law firm to request your free case evaluation.

Janus Capital Group Inc. v. First Derivative Traders and the Law of Unintended Consequences, Forbes, September 21, 2011

Read the Supreme Court’s Opinion (PDF)

More Blog Posts:
Securities Fraud: Mutual Funds Investment Adviser Cannot Be Sued Over Misstatement in Prospectuses, Says US Supreme Court, Stockbroker Fraud Blog, June 16, 2011

Janus Avoids Responsibility to Mutual Fund Shareholders for Alleged Role in Widespread Market Timing Scandal, Stockbroker Fraud Blog, June 11, 2007

Texas Financier Allen Stanford’s Ponzi Scam: SIPC Asks District Court to Toss Out SEC Lawsuit Seeking to Reimburse Fraud Victims

Published on: March 5, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The Securities Investor Protection Corp. is asking the U.S. District Court for the District of Columbia to reject the SEC’s request for an order that would make it pay back the victim of Texas financier R. Allen Stanford’s $7 Billion Ponzi scam. The brokerage industry-funded nonprofit claims that the Commission has not demonstrated that these investors are eligible to receive this type of coverage from SIPC.

Standing by SIPC is the National Association of Independent Broker/Dealers. The group wrote a letter to SEC Chairman Mary Schapiro contending that forcing the nonprofit to pay back Stanford’s victims is not only a “misfit solution,” but also, it will establish an “unsustainable precedent.”

The SEC’s securities lawsuit against SIPC is an attempt to force a brokerage’s liquidation, which is the first step that SIPC must take under the Securities Investor Protection Act to pay back the clients of its member firms. SIPC, however, has refused to do so on the grounds that Stanford International Bank, which is based in Antigua, is not one if its member firms. Stanford International Bank is the financial firm that issued the more than $7.2 billion CDs that were sold to investors. (It is Stanford Group Co. that belongs to SIPC.) The CDs now have no value.

House To Vote On GOP Legislation Related to Small Business’ Access to Capital

Published on: March 5, 2012 | by Shepherd Smith Edwards & Kantas, LLP

This week, the House is slated to vote on a Republican legislative package to make it easier for small businesses to access capital. On February 28, House Majority Leader Eric Cantor (R-Va.) presented his Jumpstart Our Business Startups Act’s final version, which is comprised of six bills that would revise securities laws to make this capital flow happen. Included in this package is a bill calling for more shareholder reporting triggers for community banks. Meantime, Senate Majority Leader Harry Reid (D-Nev) has said he plans to push forward a similar package in the US Senate.

As both the House and Senate move forward with their legislative packages, Senator Scott Brown (R-Mass) is asking the Senate to push forward his bill, which would allow for a crowdfunding-related securities registration exemption. His bill (S. 1971) and Sen. Jeff Merkley’s (D-Ore.) S. 1970 similarly are pressing for letting issuers raise up to $1 million yearly through crowdfunding. However, Merkley’s bill establishes a part for states to play in regulating crowdfunding securities, while Brown’s bill does not. The Senator from Massachusetts believes a national framework is necessary, rather than making entrepreneurs comply with each state’s securities law mandate. Also, while Merkeley’s bill calls for giving investors a private right of action to file a civil suit against fraud issuers, Brown doesn’t believe this is necessary and sees current fraud laws as “solid” and merely in need of enforcement. He did, however, say that he and Merkeley share the same desire for investor protection.

Regarding the issue of the Securities and Exchange Commission’s capital formation efforts on small businesses, SEC Division of Corporation Finance Director Meredith Cross said it is hard right now for the regulator to evaluate their impact. Cross, who was part of a panel at the Practising Law Institute’s SEC Speaks conference on February 24, said her views are her own.

FINRA May Surrender Proprietary BrokerCheck Lock

Published on: February 29, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority Inc. is thinking of giving up its proprietary lock on BrokerCheck information. This would allow for greater examination of a broker’s disciplinary data, including regulatory and arbitration actions, as well as customer complaints. The SRO is currently seeking public comment on this matter through April 6.

Opening up access to BrokerCheck data would allow commercial users to make the reports, known for being pretty dense, friendlier for users. (Some people have said that the information available is “convoluted” and uses language that can be hard for an investor to comprehend.) This could help investors more easily find information about a broker. Also, vendors might be able to establish comparison data and some complaint data on the firm-level could become accessible.

Up until this point, FINRA has been protective about keeping its disciplinary information confidential. Not only has it prevented the automatic downloading of the BrokerCheck database, but also, this information has only been available through one-off data requests by individuals.

Critics of FINRA’s closed door policy have said these limitations protect the financial industry by keeping embarrassing information about firms and brokers private. While this has allowed financial advisers with numerous complaints against them to keep such secrets quiet, invaluable information, such as whether one broker has received more complaints than another, ends up not becoming known. The SRO, however, maintains that it hasn’t been shielding the industry with its BrokerCheck restrictions.

One reason that FINRA is considering making its BrokerCheck data more easily accessible is because it has been under pressure to merge the database’s search results with the Investment Adviser Public Disclosure database. IAPD data is pubic information and can be downloaded automatically. (Last year, FINRA considered putting the two systems together into one database to be made public but now says it is more practical to keep them separate.)

It wasn’t until recently that FINRA was the only regulator to have an online tool that let investors look into the backgrounds of members of the financial services industry. It was in 2010 that the Securities and Exchange Commission widened the IAPD database to include not just investment advisor firm information, but also data about IA representatives.

Last year, as mandated by Dodd-Frank’s Section 919B, the Commission put out a study and recommendations on how to better investor access to information related to broker-dealer and investment adviser registration. AdvisorOne reports that to improve how investors can better access this type of data, the SEC is recommending that search findings for it and the IAPD databases be unified, zip code and other location indicator-related searches be implemented, and educational content to help investors navigate any unfamiliar term definitions or links be included. Dodd-Frank wants these recommendations implemented soon, and FINRA plans to have this completed by the July deadline.

FINRA to Restructure BrokerCheck, Giving Investors More Power, AdvisorOne, March 2, 2012

Finra may give up lock on BrokerCheck, InvestmentNews, March 1, 2012

More Blog Posts:
Appeals Court affirm SEC Finding that Broker Acted “Willfully” When Keeping IRS Lien Information from FINRA, February 24, 2012

FINRA Says Charles Schwab Corp. is Making Customers Waive Right to Pursue Class Action Lawsuits, February 8, 2012

Merrill Lynch, Pierce, Fenner & Smith Ordered to Pay $1M FINRA Fine for Not Arbitrating Employee Disputes Over Retention Bonuses, Institutional Investor Securities Blog, January 6, 2012 Continue Reading ›

US Sentencing Commission is Open to Public Comment on Proposed Amendments that Could Impact Insider Trading Convictions

Published on: February 29, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. Sentencing Commission is welcoming public comment on amendments that have been proposed to its sentencing guidelines, which would ramp up the offense level for certain insider trading cases. Also, there are other proposals, related to amendments to the guidelines that get specific about determining loss in fraud cases, dealing with the rehabilitative efforts of offenders, and assessing the harm related to bank and mortgage fraud.

The proposed amendment to Section 2B1.4 of the US Sentencing Guidelines calls for an offense-level enhancement if the defendant accused of insider training had occupied a position of trust (four levels) or used sophisticated means (two levels), with the latter requiring a minimum base offense level of 12. Right now, insider trading’s base offense level is eight.

Under the proposed amendment, the term “sophisticated” would mean a very complex offense conduct as it relates to hiding or executing the offense. Factors that courts would take into account to determine whether sophisticated means were applied by the inside trader include how many transactions were made, the monetary value of each transaction, the number of securities involved, the duration of time that the offense took place for, whether shell companies, fake entities, or offshore accounts were used to hide the transactions, and if auditing mechanisms, internal compliance policies, and compliance and ethics programs were undermined to cover up the insider trading scam.

The proposed amendment as it relates to mortgage fraud and other financial institution-related frauds would deal with foreseeable pecuniary harm (including costs the lending institution involved with foreclosure on the mortgaged property would have to pay), as long as the institution had applied due diligence during initiation, monitoring, the processing of the loan, and collateral disposal.

The US Sentencing Commission also wants to look at making clear what method or methods would be used to figure out securities fraud losses. Commission members are hoping this will stop sentencing disparities from occurring. Methods that have been used to figure out loss have included the modified rescissory method, the simple rescissory method, the market-adjusted method, and market capitalization.

Modified rescissory method: Concentrates on the difference between the average security price after market disclosure and the average security price while the fraud was occurring.

Simple rescissory method: Looks at the price paid for the security and what that was after the fraud was uncovered.

Market-adjusted method: Can turn according to changes in the values of the securities (but doesn’t include changes related to external market forces.)

Market capitalization: Looks at the difference between the price after disclosure and beforehand.

The commission is looking into providing a loss-causation standard not unlike the one for civil securities fraud cases.

More Blog Posts:

$78M Insider Trading Scam: “Operation Perfect Hedge” Leads to Criminal Charges for Seven Financial Industry Professionals, Stockbroker Fraud Blog, January 18, 2012