Investor Lawyers Blog

Democrats Call for Shareholder Approval of Corporate and Political Spending

Published on: August 2, 2011 | by Shepherd Smith Edwards & Kantas, LLP

Senate and House Democrats have brought forward a revised proposal that would mandate that shareholders are notified of and approve any spending of corporate money towards political spending. The Shareholder Protection Act of 2011, which was introduced by Rep. Mike Capuano (D-Mass.) and Sen. Robert Menendez (D-N.J.), will hopefully curb unaccountable political spending by company executives, while giving shareholders a say in whether a company should get involved in electoral politics.

Prior to 2010, corporations weren’t allowed to spend on federal campaigns—that is, until the US Supreme Court ruled last year that they could give money to non-profit groups with issue-based advertising. The decision, in Citizens United v. Federal Election Commission, worried many Democrats because that kind of spending is protected from public disclosure laws dealing with campaign contributions. (Prior to that there was the legislature known as the DISCLOSE ACT, which Congress blocked in 2010. The DISCLOSE ACT mandated that there be more disclosure regarding union and corporate money that is given to outside organizations for political purposes.

Per this new measure, companies that want to put money into campaigns would have to get shareholders to approve a budget for this. A corporation’s board of directors would have to approve expenditures greater than $50,000 and these would have to be publicly disclosed. Payments to outside organizations for political purposes would also have to be disclosed.

The bill also covers spending for:
• “Electioneering communications” involving a federal candidate.
• Messages directly calling for a vote for or against a candidate.

Melendez, who served as Democratic Senatorial Campaign Committee chairman, said that he considers it “fundamentally wrong” for corporations to influence elections and be able to make decisions about our nation’s policies. He said that during his time as chair, he saw corporate funding of about $70 million to combat candidates that he supported.

It does not appear likely that Republicans and campaign finance regulation opponents will back this new proposal. Center for Competitive Politics President Sean Parnell has said that with its “regulations on their political speech,” the Shareholder Protection Act is a “thinly disguised effort to silence the business community.” He called the bill an attack on the First Amendment and wants Congress to reject it.

Citizens United v. Federal Election Commission
In a 5-4 decision, the Supreme Court ruled that the government is not allowed to ban corporations from engaging in political spending in candidate elections and that to do so is a regulation of political speech and free speech. President Barack Obama said the Supreme Court’s decision was a victory for Wall Street firms, oil companies, health insurance companies and other powerful interests.

Citizens United v. Federal Election Commission overruled two precedents. McConnell v. Federal Election Commission upheld the portion of the Bipartisan Campaign Reform Act of 2002 (it limits union and corporate campaign spending) and Austin v. Michigan Chamber of Commerce upheld limits on corporate spending directed at either opposing or supporting a political candidate.

Our institutional investment fraud lawyers work hard to help our clients, who have suffered financial losses because of misconduct by Wall Street firms and/or their their employees get their money back. Unfortunately, it is the investors who end up suffering because of broker misconduct.

Related Web Resources:

Justices, 5-4, Reject Corporate Spending Limit, NY Times, January 21, 2010

Citizens United v. Federal Election Commission (PDF)

H.R. 2517: Shareholder Protection Act of 2011, GovTrack

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Securities Lawsuits Expected to Reach Record High in ’11, Says Advisen Ltd. Report, Institutional Investor Securities Blog, April 23, 2011

Dodd-Frank Reforms Will Lower Deficit by $3.2B Over the Next Decade, Estimates CBO, Institutional Investor Securities Blog, April 8, 2011

Reductions to SEC’s Budget Will Cause Staff Furloughs, Says Schapiro, Stockbroker Fraud Blog, March 24, 2011

Advisory Performance Fee Rule Limit Adjusted by the SEC

Published on: July 30, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has issued an order raising the threshold for determining whether an investment adviser can charge performance fees to clients. The increase is because of inflation. It also executes a Dodd-Frank Wall Street Reform and Consumer Protection Act requirement.

Under the Investment Adviser Act’s Rule 205-3, investment advisers are allowed to charge performance fees if the client meets certain criteria. Two tests with dollar amount threshold are among these requirements.

Per the SEC order, an investment adviser can charge performance fees if it is managing at least $1 million for the client, or if the latter’s net worth is over $2 million. Either test has to have been satisfied at the time that the advisory contract is entered. Prior to this order, since 1998 the thresholds have been $750,000 and $1.5 million, respectively.

Under the Dodd-Frank Act, the Commission was required to set forth an order to take into account inflation by July 21, 2011. The new order will go into effect on September 19, 2011
The SEC has proposed amendments to Rule 205-3, including:
• Using the PCE Index as the inflation index to calculate the inflation adjustment rates to this rule, which would be updated every five years.

• Excluding the value of that person’s main residence and debt that the property securities when determining if someone is a “qualified client”.

• Letting an investment adviser and its clients keep existing performance fee arrangements that were set up when they entered into the advisory contract.

Investment Adviser Fraud
Unfortunately, there are investors who end up losing money because of investment advisor fraud. Our securities fraud lawyers can help you determine whether you have a case.

SEC Issues Order Raising Performance Fee Rule Dollar Limit to Adjust for Inflation, SEC, July 12, 2011
Read the SEC Rule (PDF)

Read the SEC’s Final Rule on this Matter from 1998

Rules Under the Investment Advisers Act of 1940

More Blog Posts:
SEC to Up Dollar Thresholds for When an Investment Adviser Can Charge Investors Performance Fees, Stockbroker Fraud Blog, May 24, 2011
Investments Advisers Told to Look at Recent SEC Enforcement Actions When Preparing for Exams, Stockbroker Fraud Blog, April 20, 2011
No Need for New SRO Overseeing Investment Advisers, Says NASAA Official to Congress, Stockbroker Fraud Blog, April 10, 2011 Continue Reading ›

Houston Securities Fraud: Ex-Citigroup Broker Accused of Stealing Millions from Wealthy Mexican Investors is Barred from FINRA

Published on: July 29, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority is barring a former Citigroup broker from membership. The sanction comes following allegations of Texas securities fraud. According to the findings, Jose Luis Vinas converted about $3.3 million from customers while he served as a registered representative for both UBS Securities and Citigroup. The clients were primarily located in Mexico and many of them do not speak English. Vinas, who is from Houston, had also worked for Bancomer Securities International.

FINRA says that Vinas had these non-English speaking customers sign blank documents that were in English. A variable credit line account was set up at his firm in their names. He then would allegedly turn in or cause to be submitted applications from these clients asking for credit line increases even though they had never asked for credit accounts or knew they existed.

The SRO is also accusing Vinas of forging or causing the forgery of client signatures on Letters of Authorization (LOAs) . He even allegedly had customers sign ones to authorize the transfer of customer funds without their knowledge or authorization. FINRA says that Vinas submitted or caused to be turned in to another member firm, verbal LOAs that were fraudulent and again turned in without client knowledge or authorization. These verbal LOAs gave him permission to wire money to their accounts. He allegedly gave false documents showing bogus balances in accounts that he had already taken the money from and closed.

Texas Securities Fraud
For a broker to steal money from an investor without authorization or conduct transactions without their authorization is Texas securities fraud. Not only could the broker be subject to criminal charges but he/she will likely be subjected to fines or sanctions. Other examples of broker misconduct that could be grounds for a Houston securities fraud case include unsuitability, omissions and misrepresentations, churning, overconcentration, failure to execute trades, breach of promise, breach of contract, failure to supervise, breach of fiduciary duty, margin account abuse, unauthorized trading, margin account abuse, and negligence.

It is also important that brokers understand the risks involved when making an investment and have an understanding of what type of arrangements they are signing up for when working with a broker-dealer. Unfortunately, there are brokers out there who do give the rest of the industry a bad name in their efforts to make a profit while disregarding their clients’ best interests. Many investors have sustained financial losses as a result.

Our Houston securities fraud law firm represents investors statewide and nationally. We also have stockbroker fraud victims located abroad. We are committed to helping our clients get their money back and we have worked on thousands of cases that have ended with successful outcomes.

FINRA Case #2009017198901, FINRA: Disciplinary and Other FINRA Actions

More Blog Posts:
Basketball Benefactor Accused of Texas Securities Fraud and Ponzi Scam that Targeted High-Profile Coaches Found Dead, Stockbroker Fraud Blog, July 19, 2011
Former Texas Securities Regulator Says Self-Regulation of Securities Industry Does Not Work, Stockbroker Fraud Blog, July 6, 2011
Texas Securities Fraud: Planmember Securities Corp. Registered Representatives Accused of Improperly Selling Life Settlement Notes, Stockbroker Fraud Blog, June 27, 2011 Continue Reading ›

SEC and SIFMA Divided Over Whether Merrill Lynch Can Be Held Liable for Alleged ARS Market Manipulation

Published on: July 29, 2011 | by Shepherd Smith Edwards & Kantas, LLP

In Wilson v. Merrill Lynch & Co. Inc., the Securities Industry and Financial Markets Association and the Securities and Exchange Commission have submitted separate amicus curiae briefs to the U.S. Court of Appeals for the Second Circuit that differ on whether Merrill Lynch can be held liable for allegedly manipulating the auction-rate securities market. While SIFMA argued that an SEC order from 2006 that settled ARS charges against 15 broker-dealers affirmed the legality of the auction practices when they are properly disclosed, the SEC said that Merrill did not provide sufficient disclosures about its conduct in the ARS market and therefore what they did reveal was not enough to “preclude the plaintiff from pleading market manipulation.”

It was last year that the U.S. District Court for the Southern District of New York dismissed an investor claim that Merrill Lynch, which was acting as underwriter, manipulated the ARS market to attract investment. The court said that the claimant “failed to plead manipulative activity” and agreed with the brokerage firm that adequate disclosures were made. After appealing to the Second Circuit, the investor requested that the SEC provide its thoughts on five court-posed questions about the adequacy of the financial firm’s disclosures and how they impacted allegations of reliance and market manipulation.

The SEC said that the plaintiff’s claim that Merrill manipulated ARS auctions don’t preclude him from pleading, for fraud-on-the-market reliance purposes, an efficient market. SIMFA, however, said the plaintiff was precluded from claiming “manipulative acts” because investors have been made aware through “ubiquitous industry-wide disclosures about auction practices” that broker-dealers’ involvement in ARS actions is impacted by the “natural interplay” of demand and supply.

Related Web Resources:
Auction-Rate Securities UPDATE: SEC Brief May Help ARS Investors, Business Insider, July 26, 2011

More Blog Posts:

District Court in Texas Decides that Credit Suisse Securities Doesn’t Have to pay Additional $186,000 Arbitration Award to Luby’s Restaurant Over ARS, Stockbroker Fraud Blog, June 2, 2011

Broker-Dealers are Making Reverse Convertible Sales That are Harming Investors, Says SEC

Published on: July 28, 2011 | by Shepherd Smith Edwards & Kantas, LLP

According to the Securities and Exchange Commission, the sales practices that broker-dealers engage in when structured securities are hurting investors. The SEC released this recent finding in a report this week. Structured securities products are derivatives whose value is determined from baskets of indexes, other securities, options, debt issuances, commodities, and foreign securities.

The SEC reached its conclusion after conducting a sweep examination of 11 broker-dealers. The Commission says that the financial firms may have guided clients toward complex products even though they were unsuitable for these investors. In certain instances, they also appear to have:

• Charged too high of prices • Failed to adequately reveal all risks involved
• Traded at prices that were not to the benefit of retail investors • Committed possible supervisory deficiencies

At the heart of the SEC sweep examination were reverse convertible notes, which is a security that has an embedded put option. RCN are considered among the riskiest structured products. According to the SEC report, there were clients who purchased RCN’ even though these financial products not in line with their investor profiles or stated goals. Many of these RCN investors sustained significant financial losses.

The SEC report is recommending that broker-dealers:
• Implement procedures and controls to detect and stop structured securities-related abuses • Reveal material facts about the structured product notes when offering them to investors • Make sure that supervisors and registered representatives undergo specialized training before they sell structured securities
• Properly list structured securities products on client statements
It was just recently that the Financial Industry Regulatory Authority Inc. warned investors to exercise caution when evaluating whether to buy complex investment products.

Our securities fraud lawyers represent investors that have suffered financial losses because they were encouraged to purchase financial instruments that were inappropriate for them.

SEC blasts B-Ds over sales of reverse convertibles, Investment News, July 27, 2011
Staff Summary Report on Issues Identified in Examinations of Certain Structured Securities Products Sold to Retail Investors, SEC, July 27, 2011 (PDF)

More Blog Posts:
RBC Wealth Management Unit Ferris Baker Watts to Pay Investors Restitution Over Reverse Convertible Notes Allegations, Says FINRA, Stockbroker Fraud Blog, October 23, 2010
Increase of Structured Notes with Derivatives Sales Seduces Retirees, Reports Bloomberg, Stockbroker Fraud Blog, September 25, 2010
FINRA Fines H & R Block Financial Advisors (Now Ameriprise Advisor Services) over Sales of Reverse Convertible Notes (RCN), Stockbroker Fraud Blog, February 17, 2010 Continue Reading ›

Whistleblowers to Be Awarded from $453 Million SEC Fund

Published on: July 28, 2011 | by Shepherd Smith Edwards & Kantas, LLP

According to Sean McKessy, the head of Securities and Exchange Commission’s Whistleblower Office, the agency has a $453 million fund from which to award bounties under its new whistleblower program. Kessey recently spoke during a BNA webinar.

The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act requires that certain whistleblowers receive 10-30% of an award in a successful prosecution or action. The percentage of the award will depend on the how significant the information the whistleblower provided was to the outcome of the action, how much help he/she gave, and the SEC’s degree of interest in stopping certain kinds of misconduct, such as insider trading. The percentage awarded remains at the SEC’s discretion.

As our securities fraud lawyers mentioned in a recent blog post, there have been mixed reactions over whether someone who decides to turn whistleblower should go to an employer first before going to the SEC. House Republicans have even introduced a new bill that would mandate that a whistleblower have reported its information internally in order to qualify for part of the whistleblower bounty. For now, however, while the new program offers incentives for a whistleblower to go inside the corporation with his/her information first, the SEC doesn’t require it. ( As noted by McKessey, that the final rules left on this requirement “evidence a determination that doing so could be detrimental to the program and inconsistent with the statute.”) For example, if an employee were to report an issue to internal compliance, which then resulted in the company launching a probe and discovering additional violations, under the SEC’s incentive program, the whistleblower to be eligible for a bounty amount that would factor in all violations and not just the one that he/she initially reported.

$629M Mortgage-Backed Securities Lawsuit Blames RBS Securities and Other Financial Firms For Bankruptcy of Western Corporate Federal Credit Union in 2009

Published on: July 26, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The National Credit Union Administration has filed a $629 million securities fraud lawsuit against RBS Securities, Wachovia Mortgage Loan Trust LLC, Nomura Home Equity Loan Inc., Greenwich Capital Acceptance Inc., Lares Asset Securitization Inc., IndyMac MBS Inc., and American Home Mortgage Assets LLC. The NCUA is accusing the financial firms of underwriting and selling subpar mortgage-backed securities, which caused Western Corporate Federal Credit Union to file for bankruptcy, as well as of allegedly violating state and federal securities laws.

The defendants are accused of misrepresenting the nature of the bonds and causing WesCorp to think the risks involved were low, which was not the case at all. NCUA says that the originators of the securities “systematically disregarded” the Offering Documents’ underwriting standards. The agency blames broker-dealers and securities firms for the demise of five large corporate credit union: WesCorp, US Central, Members United Corporate, Southwest Corporate, and Constitution Corporate.

Last month, NCUA filed separate complaints against JPMorgan Chase Securities and RBS Securities. The union believes that those it considers responsible for the issues plaguing wholesale credit unions should cover the losses that retail credit unions are having to cover. NCUA says it may file up to 10 mortgage-backed securities complaints seeking to recover billions of dollars in damages. As of now, it is seeking to recover $1.5 billion.

NCUA acts as the “liquidating agent” for failed credit unions. Wholesale credit unions provide electronic payments, check clearing, investments and other services to retail credit unions, which actively work with borrowers.

NCUA sues JPMorgan and RBS to recover losses from failed institutions, Housing Wire, June 20, 2011

NCUA seeks $629M in damages from RBS Securities, Credit Union National Association, July 19, 2011

Feds Sue Bankers Over Fall in Bonds, The Wall Street Journal, June 21, 2011

$75K FINRA Arbitration Award Against Wells Fargo Advisors LLC For Defaming an Ex-Employee in Form U-5 is Confirmed by District Court

Published on: July 25, 2011 | by Shepherd Smith Edwards & Kantas, LLP

In district court, Judge Samuel Conti has confirmed a Financial Industry Regulatory Authority panel’s $75,000 arbitration award to Kenneth Schaffer against Wells Fargo Advisors, LLC. It was the financial firm that began proceedings against its former employer last year.

Schaffer accused Wells Fargo of “ending” his career when on a Form U5, which is a Uniform Termination Notice for Securities Industry Registration, the firm provided descriptions of alleged infractions that he said were misleading and had prevented him from being offered another job. He claimed that the reasons given for his firing were pretextual and that he was actually let go over health issues. Schaffer also disputed Wells Fargo’s claim that he owed them money for a promissory note. While he said that the financial firm had represented the note as a “sales bonus,” Wells Fargo said that after terminating Schaffer’s employment was terminated on October 1, 2009, it should receive the entire $74,617.76 that was owed on a promissory note.

The FINRA arbitration panel, however, agreed with Schaffer and found the promissory notice “unconscionable.” It said that Wells Fargo therefore could not recover on it. The panel also said that because the Form U5 Termination Explanation was of a “defamatory nature,” the financial firm was liable to Schaffer for compensatory damages. The court confirmed the arbitration award, while denying Wells Fargo’s motion to vacate, and entitled Schaffer to recover legal fees.

Harvest Managers, Benchmark Asset Managers, and Investment Advisor to Pay $11.6 Million to Settle SEC Charges Over Allegedly Mishandled Client Funds

Published on: July 23, 2011 | by Shepherd Smith Edwards & Kantas, LLP

Following SEC charges that they used material misrepresentations and omissions to misappropriate about $8.7 million from clients, family, and friends, Sam Otto Folin, Benchmark Asset Managers LLC and Harvest Managers, LLC have agreed to pay $11.6M in disgorgement, civil penalties, and prejudgment interests to settle the securities fraud allegations. By settling, however, they are not denying or admitting any misconduct.

The SEC claims that for about eight years (about ’02 – ’10) even though all three defendants sold securities in the two firms and in Safe Haven Portfolios LLC, with the promise to investors that money would go to private and public companies that possessed goals and intentions that were “socially responsible, part of these funds allegedly were diverted to pay past investors, Folin’s salary, and both firms’ expenses. Harvest and Benchmark also allegedly issued “notes” to friends, and family advisory clients that they said were safe and conservative, while promising guaranteed interest rates that were above market. They then misrepresented the notes’ value on statements.

The SEC also accuses Benchmark and Folin of forming Save Have in 2004 under the guise of offering investments to a number of portfolios. They had clients place their money in Safe Haven From ’06 – ’09. They also allegedly made Save Haven pay more than $1.7M to Harvest and Benchmark as supposed “development” expenses, which weren’t actually expenses related to Safe Haven (and were allegedly improperly amortized) and made the latter issue over $3.9 million in loans to the two investment advisory firms.

SEC Charges Philadelphia-Based Registered Investment Adviser With Fraud, Sec.gov, July 12, 2011
Recent Fraud Cases Show Investors Must Remain Vigilant, Forbes, July 13, 2011

More Blog Posts:
SEC to Up Dollar Thresholds for When an Investment Adviser Can Charge Investors Performance Fees, Stockbroker Fraud Blog, May 24, 2011
Investment Manager Accused of Securities Fraud Must Pay Defrauded Clients Over $20 Million, Stockbroker Fraud Blog, November 10, 2010
SEC Charges Investment Adviser With Allegedly Making Unsuitable Hedge Fund Recommendations to Elderly Clients, Stockbroker Fraud Blog, October 15, 2010 Continue Reading ›

New Bill Calls for Whistleblowers to Notify Financial Firms of Alleged Violations

Published on: July 23, 2011 | by Shepherd Smith Edwards & Kantas, LLP

A new bill introduced by Republicans in the House is mandating that to be able to qualify for the SEC’s new Whistleblower program employees would have to first notify their firms of possible securities violations before going to the Commission. Commenting on the proposed legislation, which is known as the Whistleblower Improvement Act (H.R. 2483), Shepherd Smith Edwards and Kantas founder and Stockbroker Fraud Attorney William Shepherd said: “Does this even make sense: Before an employee anonymously reports his or her company is defrauding people, that employee must first report it to management of the company? The only goal in requiring this would be so the company can sweep the wrongdoing under the carpet rather than get caught. Who do these Congressional folks actually work for?”

Under Section 21F of the Securities Exchange Act of 1934, which was added by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. No. 111-203), whistleblowers that voluntarily give original information about a federal securities law violation that has been committed are eligible for up to 30% of all penalties and fines collected by the SEC over the violation. This latest bill requires employees to first provide information about the alleged misconduct to their employees to qualify for part of the bounty. However, they don’t have to report the alleged violations internally when there is evidence of alleged misconduct involving the highest management levels or other evidence of bad faith by the employer. In many cases, prior to taking enforcement action the SEC would have to notify a company that a whistleblower has passed on information and an investigation is under way.

The new bill would revise the SEC rule that was implemented on May 25 that, per Dodd-Frank, doesn’t require employees to go to their firms internal compliance programs first. Business groups, the defense bar, and some Republican lawmakers had opposed the rule.

Related Web Resources:

Whistleblower Improvement Act (H.R. 2483)

Section 21F to the Securities Exchange Act of 1934 (PDF)

More Blog Posts:

Whistleblower Lawsuit Claims Taxpayers Were Defrauded When Federal Government Bailed Out Houston-Based American International Group in 2008, Stockbroker Fraud Blog, May 5, 2011