Investor Lawyers Blog

SEC to Concentrate on Financial Firms Where Management is Not Doing Enough to Promote Compliance

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

According to Securities and Exchange Commission’s Office of Compliance Inspections and Examinations director Carlo di Florio, the federal agency will be concentrating “intently” on financial firms with senior management and boards that are failing to set the right tone when it comes to getting behind key control and risk functions to promote compliance. Di Florio addressed his statements to those attending the Compliance Outreach Program for investment companies and investment advisers. Although the gathering was SEC-organized, he noted that the views he was expressing are his own.

The SEC wants boards and management to support compliance-especially as they are responsible for setting a company’s tone and culture. Di Florio said that a chief compliance officer needs the support and involvement of management and the board in order to be effective. He noted that the SEC’s national examination manual has been given to OCIE staff. The manual establishes key standards and policies for the group.

In the last 18 months, the OCIE has undergone restructuring to streamline its processes, set up practices that are being implemented across regional offices, and engaged in greater coordination with other divisions in the SEC. Exams are also now more concentrated on risk.

Other changes include the setting up of a Risk Assessment and Surveillance unit that will identify the financial firms, products, and practices that are the most high-risk. Working groups also have been created in the areas of fixed income products and municipal securities, equity market structure and trading, sales and marketing practices, new and structured products, microcap fraud, and valuation.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, OCIE has been given greater responsibility over municipal advisors, swap market participants, hedge funds, and other firms. For example, while the SEC has been able to examine the average investment adviser every 11 years, the agency hopes to conduct these exams more frequently so that clients are better protected. SEC Commissioner Elisse Walter, who spoke at the same event as Di Florio, said that commission staff are recommending the setting up of at least one self-regulatory body to oversee registered investment advisers (ideally FINRA would be involved) and making the industry pay “user fees” to fund OCIE examinations.

Our stockbroker fraud lawyers have seen way too many investors lose out because the financial firm they entrusted with their money was not in compliance, committed securities fraud, or was negligent in some other way. We are here to help our clients recoup their losses.

Shepherd Smith Edwards and Kantas, LTD LLP represents investors in arbitration and litigation. We work with clients located throughout the US, as well as some investors living abroad who suffered losses because of a US-based financial firm.

We would be happy to offer you a free consultation to help you determine whether you have a securities fraud claim on your hands.

Speech by SEC Staff: Remarks at the Compliance Outreach Program, SEC, January 31, 2012
SEC: Senior Management and Boards That Fail to Support Compliance Face Most Scrutiny, AdvisorOne, January 31, 2012

More Blog Posts:
Securities and Exchange Commission Charges Investment Adviser with Committing Securities Fraud on Linked In, Stockbroker Fraud Blog, January 6, 2012
Texas Securities Fraud: SEC Charges Life Partners Holdings Inc. in Life Settlement Scam, Stockbroker Fraud Blog, January 4, 2012

Despite Tougher Investigations, SEC is Still Letting Wall Street Firms Avoid Punishments for Financial Fraud, Institutional Investor Scurities Blog, January 29, 2012 Continue Reading ›

US Supreme Court Once Again Upholds Enforcement of Arbitration Agreements

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

In Marmet Health Care Center, Inc. v. Brown, the US Supreme Court has issued a ruling holding that federal and state courts have to follow the Federal Arbitration Act and support any arbitration agreement that is covered under the statute. The Court said that the FAA pre-empts a state law that doesn’t allow the enforcement of this type of agreement, which requires that personal injury and wrongful claims against nursing homes be resolved outside of court. By holding, the Supreme Court was reaffirming its holding in AT&T Mobility v. Concepcion that FAA displaces conflicting rule when state law doesn’t allow the arbitration of a certain kind of claim.

In this latest ruling, the Court examined three nursing home negligence lawsuits filed by the relatives of patients that died at assisted living facilities. Each family had a signed agreement noting that any disputes, except for those regarding non-payment, would be dealt with via arbitration. Although the trial court rejected the plaintiffs’ claims because of the arbitration agreements, the West Virginia Supreme Court decided to reverse the court’s ruling, holding that public policy of the state prevented a pre-occurrence arbitration agreement in an admission contract for a nursing home that mandated that a negligence claim over wrongful death or personal injury be resolved through arbitration.

By issuing this decision the state’s Supreme Court was rejecting the way the US Supreme Court interpreted the FAA on the grounds that Congress would not have meant for the Act to be applicable to civil claims of injury or death that are tangentially connected to a contract—especially when needed service is a factor.

The US Supreme Court, however, reversed that decision, staying with its own interpretation of the FAA being controlling and a lower court not being able to ignore precedent. The Court sent the case back to state court where inquiry into whether the provision allowing only for arbitration can’t be enforced under state common law principals not specifically addressing arbitration and therefore the FAA wouldn’t pre-empt.

At Shepherd Smith Edwards and Kantas, LTD, LLP, our stockbroker fraud law firm represents individual and institutional investors with securities fraud claims and lawsuits. We have helped thousands of investors recoup their losses via arbitration and through the courts.

With securities fraud, the majority of claims have to be resolved through arbitration. One reason for this is that most investors that sign up for accounts through brokerage firms almost always end up agreeing to binding arbitration clauses.

Read the Supreme Court’s ruling in Marmet Health Care Center, Inc. v. Brown (PDF)

More Blog Posts:

SEC and SIPC Go to Court to Over Whether SIPA Protects Stanford Ponzi Fraud Investors, Stockbroker Fraud Blog, February 6, 2012

SEC Examines the Private Equity Industry

Published on: February 15, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has started to take a broad look at the private equity industry, which until now hasn’t been subjected to much regulatory scrutiny. The industry consists of several thousand firms with over $1 trillion in assets under management. Now, the federal agency wants to know more about these financial firms’ business practices.

According to the New York Times, the Commission’s enforcement unit has sent a letter to a number of private equity funds as part of its informal look. The SEC, however, has been quick to stress that none of the firms are suspected of any wrongdoing and that it merely wants more information to be able to look into possible securities law violations. For example, the Commission wants to examine whether some private equity funds are overstating their portfolios’ value to bring in investors for future funds. Regulators also want to know about the ways in which private equity companies value investments and report performance.

The SEC’s inquiry is being conducted by its Asset Management enforcement division, which has been taking more aggressive actions to eliminate misconduct in the financial industry. At a private equity conference last month, the division’s co-chief Robert B. Kaplan talked about the need for more oversight over the industry.

Bloomberg.com reports that according to a person that knows about the inquiry, so far, it is the smaller private equity companies that are being scrutinized while some of the largest companies, including privately trading ones, are, for now, being overlooked. For example, Blackstone Group LLP, which is the largest private equity company, didn’t receive the letter the SEC sent out in December. KKR & Co. also didn’t get the letter.

The SEC decided to take a closer look at the private equity industry after the financial crisis and firms having to mark down holdings. Since then, those demanding better regulation from the agency have called for more oversight. While the SEC is tasked with policing public securities offerings and transactions it typically hasn’t looked at areas involving private placements that don’t have to register with it and sophisticated investors. That said, the Commission has still been allowed to enforce the fiduciary duties of private equity managers to the funds.

Now, per the Dodd-Frank Wall Street Reform and Consumer Protection Act, the majority of private equity companies will need to register with the SEC by the end of next month. Some 750 advisers will have to disclose “census-like” information about employees, investors, assets under management, activities beyond fund advising, and possible conflicts of interest.

Private Equity Industry Attracts S.E.C. Scrutiny, New York Times, February 12, 2012

SEC Review of Private Equity Said to Focus on Smaller Firms, Bloomberg, February 13, 2012

Bank of America Subpoenaed by Massachusetts Over Bryn Mawr CLO II Ltd. and LCM VII Ltd. CLOs that Cost Investors $150 Million

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

Massachusetts securities regulator William Galvin is subpoenaing Bank of America Corp. over two collateralized loan obligations that led to investors to lose $150 million. Galvin is trying to determine whether the financial firm knew it was overvaluing the portfolios’ assets so it could remove the loans from its books.

The state is looking to obtain records and documents from Banc of America Securities LLC related to two CLOs-Bryn Mawr CLO II Ltd. and LCM VII Ltd-that were sold in 2007. (Merrill Lynch and Bank of America Securities joined forces in 2008 when they were merged in an acquisition).

It was in 2006 that Bank of America had about $400 million of commercial loans from small banks. The following year, loans were put together as securities packages that were bought by investors.

Galvin has been taking a hard look at the way banks structured and sold debt products-especially mortgage-backed securities-leading up to the 2008 economic collapse. Galvin says his office is also interested in taking a closer look at other entities.

Massachusetts’ subpoena on Friday comes a day after Bank of America, Citigroup Inc., Wells Fargo & Co., JP Morgan Chase & Co., and Ally Financial Inc. agreed to settle for $25 billion allegations accusing them of engaging in abusive mortgage practices. The agreement was reached with federal agencies and 49 states (not Oklahoma) and is considered the largest federal-state settlement ever. All five banks will also pay the Federal Reserve $766.5 million in penalties.

The deal resolves allegations that the banks robo-signed thousands of foreclosure documents without properly reviewing the paperwork, engaged in deceptive practices when offering loan modifications, did not offer other options prior to closing on borrowers who had mortgages that were federally insured, and submitted improper documents in bankruptcy court.

Also as part of this securities settlement, Bank of America will pay $1 billion to settle a separate probe into allegations that it and its Countrywide Financial unit engaged in wrongful and fraudulent conduct. The $25B settlement is designed to provide mortgage relief and give $2,000 to about 750,000 borrowers whose homes ended up foreclosing after home values dropped 33% from what they were worth in 2006.

Per other terms of the settlement, the bank is to provide $17 billion in loan modification and principal reduction to delinquent borrowers whose homes are at risk of foreclosure. $3 billion is included for borrowers that are up-to-date on mortgage payments but cannot refinance because they owe more than what their home is worth. The banks have also agreed to new servicing standards.

Massachusetts Subpoenas Bank Of America Over CLOs, Fox Business, February 10, 2012
U.S. banks agree to $25 billion in homeowner help, Reuters, February 9, 2012

More Blog Posts:
FDIC Objects to Bank of America’s Proposed $8.5B Settlement Over Mortgage-Backed Securities, Stockbroker Fraud Blog, August 30, 2011
Mortgage-Backed Securities Lawsuit Against Bank of America’s Merrill Lynch Now a Class Action Case, Stockbroker Fraud Blog, June 25, 2011
Bank of America to Pay $335M to Countrywide Financial Corp. Borrowers Over Allegedly Discriminating Lending Practices, Institutional Investor Securities Blog, December 21, 2011 Continue Reading ›

Investors of Highland Floating Rate Funds File Securities Fraud Claims and Lawsuits Over Poor Performance

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

If you are an investor who sustained financial losses from the Highland Floating Rate Advantage Funds, please contact the securities fraud law firm of Shepherd Smith Edwards and Kantas, LTD, LLP right away and ask for your free case evaluation.

Unfortunately, the Highland Floating Rate Funds, which have produced negative returns over five years, continue to be a source of dismay for investors. Funds include the Class Z Shares (Symbol: XLAZX), Class C Shares (Symbol: XLACX), and Class A Shares (Symbol: XSFRX).

Per Highland sales collateral, the Highland funds are purported to use leverage to up the yield potential while aiming for credit risk management and capital reservation. Many of the investors that chose to back the Highland Floating Rate Funds did so because they thought that a greater return was offered without the downside of substantial risks. However, a reason that the funds didn’t do well is that the loans they were invested in had been rated as “junk” or lower than investment grade.

SEC Gets Initial Victory in Lawsuit Against SIPC Over Payments Owed to Stanford Ponzi Scam Investors

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

U.S. District Court Judge Robert Wilkins says that the Securities and Exchange Commission doesn’t need to go through a full civil trial in order to make the Securities Investor Protection Corp. start liquidation proceedings to compensate the victims of Allen Stanford’s $7B Ponzi scam for their losses. This ruling is a partial victory for the SEC, which has been trying to get the brokerage industry-funded nonprofit to help the investors recoup their losses. The dispute between the two groups has centered around the interpretation of the SIPC’s mission and whether or not it supports the SEC’s efforts to protect investors.

SIPC had been pushing for a trial. However, Wilkins said that a trial doesn’t comport with the agency’s purpose, which is to give immediate, summary proceedings upon the failure of a securities firm. Wilkins is mandating a “summary proceeding” that would be fully briefed by the end of this month. However, in regards to the SEC claim that it should be able to determine when the SIPC has failed to fulfill its duties, Wilkins said that this was for the court to decide.

SIPC has a reserve fund that is there to compensate investors that have suffered losses because a brokerage firm has failed. Under SIPC protections, customers of a broker that has failed can receive up to $500,000 in compensation ($250,000 in cash). Although not intended as insurance against fraud, SPIC covers the financial firm’s clients but not those that worked with an affiliate, such as an offshore bank. For example, Stanford International Bank is an Antiguan bank, which means that it should fall outside SIPC-provided protections. However, Stanford Group Company, which promoted the CDs to the investors, is a member of SIPC. (Also, SEC has maintained that Stanford stole from the brokerage firms’ clients by selling the CDs, which had no value, and that this was not unlike the Bernard L. Madoff Ponzi scam that credited $64B in fake securities to client accounts.)

Meantime, Stanford has been charged by both federal prosecutors and the Commission with bilking investors when he and his team persuaded them to buy $7B in bogus CDs from Stanford International Bank. He then allegedly took billions of those dollars and invested the cash in his businesses and to support his lavish lifestyle. Stanford’s criminal trial is currently underway.

Wilkins noted that even if the SEC’s lawsuit against SIPC succeeds, this wouldn’t mean that Stanford’s victims would get their money right away. It would still be up to a Texas court to decide on claims filed by former Stanford clients.

Judge Hands SEC Initial Victory In Suit Against Insurance Fund, The Wall Street Journal, February 9, 2012

Securities Investor Protection Corporation
Compensating Stanford’s Investors, NY Times, June 20, 2011

More Blog Posts:
SEC and SIPC Go to Court to Over Whether SIPA Protects Stanford Ponzi Fraud Investors, Stockbroker Fraud Blog, February 6, 2012

SEC Sues SIPC Over R. Allen Stanford Ponzi Payouts, Stockbroker Fraud Blog, December 20, 2011

Texas Securities Fraud: SEC May Pursue Disgorgement Claim from Charles Wyle’s Estate Now that He is Deceased

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

Now that Texas insider trading defendant Charles Wyly has passed away, the Securities and Exchange Commission may decide to pursue disgorgement from his estate. In the U.S. District Court for the Southern District of New York last month, Judge Shira Scheindlin said that the SEC’s bid for disgorgement survives Wyly’s death because this type of claim is remedial (preventing the alleged wrongdoer from financially benefiting from the alleged violations) and not punitive.

The SEC sued Charles and his brother Samuel Wyly in 2010, charging the Dallas siblings with insider trading and violating federal securities laws. The two men were accused of making over $550 million while making trades with the stocks of public companies that they served on as board members. They allegedly used hidden entities abroad to hide their trading and ownership of the securities.

The Commission accused the brothers of setting up subsidiary companies and trusts in the Cayman Islands and the Isle of Man to sell over $750M in stock in a number of companies that were public. Companies that they involved in their Texas securities scam included Sterling Software Inc., Scottish Annuity & Life Holdings Ltd., Michaels Stores Inc., and Sterling Commerce Inc. They allegedly made an unlawful gain of over $31.7 million after committing an insider trading violation related to one of the companies.

Also facing civil charges over the SEC’s Texas securities fraud case were broker Louis J. Schaufele III and the brothers’ lawyer, Michael C. French, who also belonged on the boards of three of the companies mentioned above. According to the Commission, the Wylys and their lawyer knew, or should have known, what their legal duties were as public company directors and over 5% beneficial owners. Per the law, these persons have to report trading and holdings in their companies’ securities to the SEC. The three of them also should have known that these disclosures are key for investors when they are deciding whether to invest.

The SEC accused the brothers and French of making it appear as if all of the Wylys’ trading and holdings only involved what they traded and held in the US. By not letting potential investors and shareholders know about this material information, the Wylys sold over 14 million issuer securities shares over 13 years for gains totaling over $550 million that were undisclosed.

Charles Wyly died in August 2011 at the age of 77. According to police, he died when an SUV struck his Porsche in Colorado where he has a home.

SEC Disgorgement Claim Survives Death of Insider Defendant, Bloomberg/BNA, January 31, 2012
SEC SUES SAMUEL E. WYLY AND CHARLES J. WYLY FOR FRAUD, Bloomberg, July 29, 2010

More Blog Posts:
AmeriFirst Funding Corp. Owner Convicted of Texas Securities Fraud, Stockbroker Fraud Blog Post, February 3, 2012
Texas Securities Fraud: BNY Mellon Capital Markets LLC Settles Allegations of Rigged Bond Bidding for $1.3M, Stockbroker Fraud Blog, January 24, 2012
TD Bank Ordered to Pay Texas-Based Coquina Investments $67M Over $1.2 Billion Ponzi Scheme, Stockbroker Fraud Blog, January 19, 2012 Continue Reading ›

Pressure from Regulators and Investors Prompts Carlyle Group to Drop Arbitration Clause from its IPO Filing

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

Carlyle Group will no longer be including a controversial arbitration clause initial public offering filing. The private equity giant had filed its IPO documents last year but has since been pressed by regulators and investors to drop the clause, which would have prevented company shareholders from submitting class action lawsuits and instead require that they go through a confidential arbitration process.

There had been concern from the Securities and Exchange Commission, lawmakers, and investors that the clause would prevent shareholders from bringing claims against the Carlyle Group in the event of wrongdoing. Earlier this month, the private equity group’s spokesperson Christopher W. Ullman said that after talking with the SEC and its investors, the Carlyle Group was withdrawing the proposed provision. Ullman was also quick to clarify that the original intent of the clause was to make the process for potential claims more cost-effective for everyone involved.

However, there is also the possibility that if the company had chosen not to withdraw the arbitration clause, the SEC may not have allowed the IPO to go forward. Senators Robert Menendez (D-NJ), Al Franken (D-Minn.), and Richard Blumenthal (D-Conn.) had even recently written to SEC chairwoman Mary L. Schapiro asking the SEC to block the IPO offering if the clause, which they believed would take away investors’ rights, wasn’t removed.

In their letter, the senators reminded the SEC that private securities litigation remains an “indispensable tool” that allows defrauded investors to get back their losses without needing to depend on the government. They cited the Exchange Act’s Section 10(b), which establishes an investor’s private right of action to file a lawsuit against an insurer for deceitful/fraudulent statements and actions allegedly committed when selling securities. The senators also said that making individuals only be able to go through the confidential arbitration process for shareholder claims would limit their ability to enforce their rights under the Exchange Act’s Section (10b), which would then violate the Act’s Section 29(a)’s statutory language.

The Senators wrote about how they believed that private arbitration significantly limits or doesn’t allow for pretrial discovery, which can then make complex securities claims impossible to prove. They also said that the private arbitration system generally favors the companies that retained their services as opposed to the individual shareholder with a claim. (Ullman said the Carlyle Group decided to take the arbitration clause out even before the senators had sent their letter to Schapiro.)

The Carlyle Group is shooting for its IPO to happen during the first half of the year. Last year, the firm revealed that about 36% of its assets are in private equity funds. Approximately 21% are in the areas of energy and real estate, while approximately 29% are in funds of funds. Carlyle Group has over 1,400 hundred investors in more than 73 nations. Its executives have gotten up to 60% of their compensation based on how the funds they focus on perform—the remaining amount is based on the performance of the firm. The filing says that once Carlyle becomes a public company, it executives will obtain about 45% of their compensation from their own funds’ returns, which is more in line with the industry average.

Our institutional investment fraud attorneys represent clients throughout the US. We also have clients abroad with securities fraud claims and lawsuits against financial firms in the US.

Carlyle Drops Arbitration Clause From I.P.O. Plans, New York Times, February 3, 2012

Carlyle Drops Forced Arbitration Clause In IPO, The Wall Street Journal, February 3, 2012

Private equity giant Carlyle files for IPO, Reuters, September 6, 2011

More Blog Posts:
Senate Passes Bill Banning Congressional Insider Trading, Institutional Investor Securities Blog, February 8, 2012

With Confirmation of Richard Cordray as Its Director, The Consumer Financial Protection Bureau Can Finally Get to Work, Institutional Investor Securities Blog, January 4, 2012

SEC and SIPC Go to Court to Over Whether SIPA Protects Stanford Ponzi Fraud Investors, Stockbroker Fraud Blog, February 6, 2012

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

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

The Financial Industry Regulatory Authority has filed a complaint against Charles Schwab Corp. The SRO says the online brokerage is in violation of FINRA rules because it makes clients waive their rights to pursue class actions against it.

Per a new provision added to over 6.8 million customer account agreements, Charles Schwab clients are now not allowed to begin or join class-action complaints against the financial firm. Customers must also agree that arbitrators won’t be given authority to consolidate claims from different parties, as this would set up a class-action situation.

Over 50,000 clients have opened accounts with the financial firm since it implemented this new limitation. Now, FINRA wants an expedited hearing. The SRO is concerned that the class action waiver will cause millions of Schwab clients to mistakenly think they cannot bring or take part in an already existing class action complaint against the brokerage firm. Also, FINRA has specific rules about the conditions that financial firms can place on clients, and the SRO says this provision is a definite violation.

Senate Passes Bill Banning Congressional Insider Trading

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

Two days after the US Senate votes 92 to 2 to take up a measure that would ban Congressional members from engaging in insider trading, the legislation has passed by a 96 to 3 vote. The bill, which bars members of Congress from using confidential information obtained as a result of being in public office to trade stock, had temporarily become entangled in the proposals of over two dozen amendments, with some of the amendments seeking to strengthen the bill and others looking to weaken it.

One of the amendments that passed by a 58-41 vote would extend the new rules of the bill to cover members of the executive branch. Per the bill, Congressional members, senior administration officials, and top aides would have 30 days instead of a year to disclose financial transactions.

President Barack Obama is a supporter of the Stop Trading on Congressional Knowledge (STOCK) Act. During his State of the Union address last month, he said that if Congress placed their signatures of approval on the bill he would sign it into law right away. There is currently a companion bill making its way through the House that has over 255 co-sponsors and still must be put to a vote.

Authored by Senators Scott Brown (R-Mass.) and Kirsten Gillibrand (D-N.Y.), the STOCK Act is derived from two bills authored respectively by both of them. It was Senate Homeland Security and Government Reform Committee Chairman Joe Lieberman (I-Ct.) that combined the two bills.

Originally introduced in 2006, the STOCK Act started to generate a lot more interest from lawmakers after the CBS news program 60 minutes reported that members of Congress bought stock in companies while debating on laws that could impact the businesses. These investments were not illegal.

Other provisions of the combined bill include making it illegal for Congress members to tip off others, which would become a crime and a violation of congressional rules. However, the bill does not ban lawmakers from doing political favors for companies that they have stock in as long as they don’t actually sell the stock.

As our securities fraud law firm mentioned in an earlier blog post, the Securities and Exchange Commission grew worried that placing this kind of insider trading ban on lawmakers affect the scope of existing laws. The SEC instead wanted there to be a fiduciary duty barring members of Congress from revealing confidential information and using what they know for personal gain.

The use of confidential insider information to make a trading profit is wrong—even if some consider it a victimless crime.

Lure of a Senate Bill Attracts Amendments, Some of Them Relevant, The New York Times, February 1, 2012

STOCK Act: Insider Trading Bill To Receive Senate Vote Next Week, Huffington Post, January 26, 2012

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

Measure Banning Insider Trading Gains Support of Congress Members, Stockbroker Fraud Blog, September 24, 2011