Investor Lawyers Blog

Texas Securities Fraud: Three FINRA Cases Against Securities America Over Sale of Private Placements Halted

Published on: February 22, 2011 | by Shepherd Smith Edwards & Kantas, LLP

In what Investment News is describing as a legal victory for Securities America, a federal judge in Dallas has placed a restraining order on three upcoming FINRA arbitration claims against the broker-dealer and its brokers. The cases will be combined with two class action. This will likely limit Securities America’s liability. Ameriprise Financial Inc. owns this brokerage firm.

In the U.S. District Court for the Northern District of Texas, Judge W. Royal Furgeson, Jr. ordered the broker-dealer to set up a $21 million settlement fund for investors. The Texas securities fraud claims involve the allegedly bogus sale of private placement notes from Provident Royalties LLC and Medical Capital Holdings Inc.

A number of plaintiff’s attorneys have expressed dismay at Furgeson’s decision because they are worried that their clients won’t get as much from a class action case. Furgeson, however, says that combining the cases protects the financial recovery for all investors and not just those with FINRA arbitration claims.

Per court documents, Securities America sold approximately $18 million of Provident shares and $700 million of Medical Capital notes. Some 20,000 investors purchased the Medical Capital notes from independent broker-dealers and approximately $2.2 billion was raised from the private placements. Unfortunately, many of the medical receivables believed to be underlying the notes never existed.

Dozens of claimants, including the securities divisions of Massachusetts and Montana, have filed securities claims against Securities America. The financial firm, however, maintains that it did not engage in any wrongdoing when it sold the MediCap notes.

Related Web Resources:

Securities America scores huge victory in Reg D case, Investment News, February 18, 2011

More Stockbroker Fraud Blog Posts:

Securities America Inc. to Pay $1.2M in Compensatory and Punitive Damages Over Allegedly Fraudulent Medical Capital Notes, January 6, 2011

FINRA Fines H & R Block Financial Advisors (Now Ameriprise Advisor Services) over Sales of Reverse Convertible Notes (RCN), February 17, 2010

Securities America & Ameriprise Financial Inc. Sued For Selling Allegedly Faulty Private Settlements, November 10, 2009 Continue Reading ›

Order to Freeze Assets in $53M Fund Fraud Allegedly Involving Michael Kenwood Asset Management LLC Obtained by SEC

Published on: February 21, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The SEC has obtained an order to freeze the assets of investment adviser Michael Kenwood Capital Management LLC and firm principal Francisco Illarramendi, who is accused of taking at least $53M from a hedge fund and fraudulently transferring investor money from several funds to bank accounts he controlled. Illarramendi then allegedly took that money and placed it in private-equity investments.

The SEC’s securities fraud complaint charges the investment adviser and Illarramendi with violating the 1940 Investment Advisers Act. Rather than using the money to benefit investors, Illarramendi allegedly used the money to his benefit and for the benefit of the entities under his control. The SEC says that it sought emergency relief because it was afraid that Illarramendi was going to make additional, unauthorized investments.

The largest private equity investment Illarramendi made was in an unnamed West Coast nuclear energy company. The SEC says he used $23 million in investor funds. A foreign company pension fund that was his biggest investor contributed 90% of the money in his funds.

In December 2009, Illarramendi allegedly authorized for $3.5 million to be transferred from an account to a Spanish company that makes rolled steel. In May 2010, he approved the transfer of $20 million from the financial firm’s $540 million Short Term Liquidity Fund to pay for shares in a clean-tech manufacturing company. He transferred another $4 million from the short-term fund to purchase shares in a development stage energy company. Another $3.1 million was transferred from different funds to the Spanish steel company.

The SEC is accusing Illarramendi of using clients’ money as if they were his and diverting millions of the investors’ funds. The commission says he breached his responsibilities as an investment adviser and abused clients’ trust. The SEC is seeking disgorgement of ill-gotten gains, permanent injunction, plus prejudgment interest.

Named as relief defendants that received investor money that they weren’t entitled are Michael Kenwood Asset Management LLC, MKEI Solar LP., and Kenwood Energy and Infrastructure LLC. Illarramendi, who is the majority owner of Michael Kenwood Group LLC, managed several hedge funds. One of the hedge funds has held up to $540 million in assets.

Related Web Resources:
SEC Charges Connecticut-Based Hedge Fund Manager for Fraudulent Misuse of Investor Assets, SEC, January 28, 2011
Read the SEC Complaint (PDF)

1940 Investment Advisers Act

Related Blog Posts:
Fontana Capital LLC Founder Violated Short-Selling Rule, Says SEC, Stockbroker Fraud Blog, February 2, 2011
3 Hedge Funds Raided by FBI in Insider Trading Case, Stockbroker Fraud Blog, November 23, 2010
$2.6M Texas Securities Fraud Settlement: Hedge Fund Adviser Settles SEC Allegations Involving Violations Related to Improper Public Stock Offering Participation After Short Selling, Stockbroker Fraud Blog, October 5, 2010 Continue Reading ›

MSRB Seeks Public Comment on New Fiduciary Duty Rule for Municipal Advisors

Published on: February 21, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The Municipal Securities Rulemaking Board is currently asking for public comment on several rulemaking proposals and draft interpretive guidance, including the proposed Rule G-36, a new fiduciary duty rule for municipal advisors. Comment is also being sought on proposed rule amendments and guidances related to gifts by municipal advisors and fair practice duties of underwriters.

Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act is extending the MSRB’s authority to municipal advisors. Under Section 975, municipal advisors have a federal fiduciary duty to clients. MSRB has been directed to implement this requirement. Our institutional investment fraud lawyers would like to remind investors that breach of duty by investment advisers and brokers can be grounds for a securities fraud case when investor losses result.

The draft interpretive guidance regarding advisors’ fiduciary duty address a number of issues, including duty of care, conflicts of interest disclosures, and when conflicts of interest can be waived by a client’s informed consent. The proposed guidance would require municipal advisors to have a fiduciary duty to clients under federal law—not just a fiduciary duty under state and common laws.

The MSRB is also asking for public comment on draft interpretive guidance related to the extension of Rule G-17 to municipal advisors. Also called the “fair dealing” rule, Rule G-17 specifies a code of conduct for all individuals and entities that the MSRB regulates. The draft guidance gives details about how the rule applies to municipal advisers. The MSRB also wants public comment on interpretive guidance of Rule G-17 to underwriters. Both municipal advisers and underwriters would be required to disclose material terms, proposed transaction risks, and related conflicts and incentives to clients.

Related Web Resources:

Municipal Securities Rulemaking Board

More Blog Posts:
JPMorgan Chase & Co. CEO Warns Municipal Bond Investors to Expect More Bankruptcies, Institutional Investor Securities Blo, January 18, 2011

Class Action Plaintiffs Dispute Bank of America’s $137M Settlement with State Attorney Generals Over Municipal Derivatives, Institutional Investor Securities Blog, December 31, 2010

Bank of America to Pay $137M Over Alleged Investment Scam To Pay Municipalities Low Interest Rates on Investments and $9M Over Alleged Bid-Rigging Scheme to Nonprofits, Institutional Investor Securities Blog, December 16, 2010

Ex-Gilford Securities Broker Indicted in International Stock Fraud Scam Involving Pump and Dump of Israeli and Chinese Securities

Published on: February 19, 2011 | by Shepherd Smith Edwards & Kantas, LLP

Gregg M. Berger, an ex-Gilford Securities broker, has been indicted for conspiracy over his alleged involvement in a global pump and dump stock fraud scheme involving thinly traded Israeli and Chinese securities. He is charged with wire fraud and securities fraud. The SEC has also filed related civil securities fraud charges against Berger, a number of other individuals, and three companies. The commission is seeking permanent injunctions, civil penalties, disgorgement, and a penny stock bar against Berger. Federal investors discovered the pump and dump scam following a multi-year probe.

According to prosecutors, between January 2005 and December 2007, Berger allegedly conspired with How Wai Hui, Francis A. Tribble, Scott Bradley, Alan Ralsky, and others to execute a stock scam that resulted in the sale of about 30 million shares of stock. Berger made over $600,000 in commissions and his co-conspirators generated about $30 million.

Defendants are accused of using spam emails to manipulate the thinly traded stocks. The recipients who bought the stock would drive the share price up and that is when Berger and co-conspirators would sell their shares at the new prices.

The indictment says that Berger was the stockbroker for the scam. He set up the brokerage accounts, arranged it so that stocks could be transferred to the accounts, executed the stock trades, transferred proceeds to specific bank accounts, provided confidential account information details to co-conspirators that were not supposed to receive this data, and did not obtain account holders’ consent. Stocks sold in the pump and dump scheme included those from Pingchuan Pharmaceutical Inc., China World Trade Corporation, World Wide Biotech and Pharmaceutical Co., China Digital Media Corporation, m-Wise, and China Mobility Solutions.

Related Web Resources:
SEC v. Berger, United States District Court, E.D. Michigan

Securities and Exchange Commission v. Gregg M.S. Berger, et al., Case No., 2:11-CV-10403 (RHC-PJK) (E.D. Mich.), SEC, February 1, 2011

More Blog Posts:
Dallas Securities Attorney and Former SEC Litigator Convicted of Fraud in Pump and Dump Stock Scam, Stockbroker Fraud Blog, February 11, 2010
Pump and Dump Scheme Involving Prime Time Stores Inc. Sends Global Spam Levels Up 30%, Stockbroker Fraud Blog, September 5, 2007
“Pump and Dump”, Annuities, Real Estate, Affinity Fraud and “Free Lunch Seminars” Are Top Scams in 2007 Say State Securities Regulators, Stockbroker Fraud Blog, May 21, 2007 Continue Reading ›

$18M Credit Default Swap Case Against Merrill Lynch International Reinstated

Published on: February 18, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The securities case accusing Merrill Lynch International alleging breach of contract related to the $18 million credit default swap purchased by DKR Soundshore Oasis Holding Fund Ltd has been reinstated. The Appellate Division (First Department) of the New York Supreme Court rejected the financial firm’s efforts to get the case tossed on the grounds that DKR did not give enough notice of a credit event. The judges were in unanimous agreement that notifying Merrill the event happened was enough and it didn’t matter that the date hadn’t been specified.

DKR bought for ¥1.5 billion (that’s $18 million) the swap from Merrill for insurance against a certain debt obligation of Urban Corp. Per the contract, a credit event would constitute a restructuring of at least ¥1 billion of Urban’s subordinate debt.

In June 2008, DKR told Merrill that Urban had restructured its debt, but the credit default seller said the notice was not valid and refused to issue payment. DKR filed a lawsuit against Merrill claiming breach of contract and other claims. The defendant filed a motion to dismiss on the grounds that DKR did not give the exact date of when the restructuring happened. The lower court agreed.

Now the appellate court, in reversing the ruling, has determined that CDS buys are entitled to “the benefit of every possible favorable inference” and that the contract under dispute did not ask that the notice have the same precision as to how a credit event was defined.

CDS buyers are required to make periodic payments to sellers in return for credit protection against a third party. If that party defaults on its obligation, the buyer tells the seller there has been a credit event and this is supposed to result in payment of the credit protection.

More Blog Posts:
France and Germany Press EU to Ban Naked Short Selling of Stocks and Limit Credit Default Swaps, Stockbroker Fraud Blog, July 8, 2010

The Financial Regulation Reform Act of 2008 Seeks to Regulate Investment-Bank Holding Companies and Credit Default Swaps, Stockbroker Fraud Blog, November 24, 2008

Wisconsin School Districts Sue Royal Bank of Canada and Stifel Nicolaus and Co. in Lawsuit Over Credit Default Swaps, Stockbroker Fraud Blog, October 7, 2008

Ex-Triton Financial CEO Accused of Using NFL Contacts to Commit $50M Texas Securities Fraud

Published on: February 17, 2011 | by Shepherd Smith Edwards & Kantas, LLP

Kurt Branham Barton, the former CEO of Triton Financial, a financial firm based in Austin, Texas, has been indicted on 33 counts, including Texas securities fraud, money laundering, and wire fraud. Barton allegedly used ex-NFL stars and church contacts in a $50 million Ponzi scam.

The American-Statesman reports that beginning in 2002, Barton accumulated a number of partnerships and companies based around Triton Financial. He even hired ex-NFL stars Chris Weinke and Ty Detmer to persuade clients to invest. Many investors belonged to the Church of Jesus Christ of Latter-day Saints (Barton is also a member).

Court documents contend that Barton got investors to give him over $50 million and that he used the funds to live a lavish lifestyle that included expensive vehicles, flying in private planes, and a luxury box for watching University of Texas football games. He also made money in political campaign contributions.

By 2009, however, several securities fraud complaints had been filed. Investors accused Barton of misleading them about where their money would go. The Securities and Exchange Commission would go on to file a securities fraud lawsuit against Triton Financial and Barton, and the Texas State Securities Board has stripped him of his investment adviser license.

The indictment accuses Barton of lying about his investments to investors regulators and of creating “false, fictitious, and fraudulent limited partnerships. He also allegedly used an E-Trade statement that showed his holdings had a balance of over $3 million even though the actual balance was $3,161.17. Barton is accused of giving regulators “altered and fabricated documents” about his business dealings.

A judge has placed Triton Financial in receivership. Per the receiver’ statement on January 31, 2011, over 600 investors have made $63.3 million in securities fraud claims against the financial firm and its ex-CEO.

Related Web Resources:
Former Triton chief indicted on charges of money laundering and fraud, Statesman, February 15, 2011
Broker indicted in fraud with NFL stars, KXAN, February 16, 2011
Read the Indictment (PDF)

More Stockbroker Fraud Blog Posts:
Texas Securities Act Control Person Claims against Merrill Lynch Pierce Fenner & Smith Inc. is Revived by Appeals Court, Stockbroker Fraud Blog Posts, January 20, 2011
R. Allen Stanford’s Criminal Trial Over $7 Billion Ponzi Scam Delayed So He Can Detoxify from Medication Addiction, Stockbroker Fraud Blog Posts, January 11, 2011
ALJ to Determine Whether to Revoke Registration of STS-Advisors Ltd. and Investment Adviser Representative Richard Lewis Bruce Over Alleged Texas Securities Fraud, Stockbroker Fraud Blog Posts, January 7, 2011 Continue Reading ›

Ex-Goldman Sachs Broker’s Request for SEC Help in Obtaining Documents from Germany Denied by District Court

Published on: February 17, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. District Court for the Southern District of New York says it will not direct the Securities and Exchange Commission to contact German authorities on behalf ex-Goldman Sachs & Co. (GS) executive Fabrice Tourre, who is seeking to obtain certain documents related to the securities fraud case against him. Per Magistrate Judge Michael Dolinger’s ruling, a discovery request based on Federal Rule of Civil Procedure 34(a) doesn’t “extend” to having a
“government agency make requests to a foreign government under the terms of” a memorandum of understanding between both parties. Dolinger notes that while MOU between the SEC and its German equivalent allows both regulators to help each other in the enforcement of their respective securities laws, “there is no indication” that the MOU is supposed to offer a right or a benefit to a private party, such as allowing a securities fraud litigant to obtain discovery in Germany.

The SEC charged Goldman Sachs and Tourre over alleged misstatements and omissions related to collateralized debt obligations called Abacus 2007-AC1, a derivative product linked to subprime mortgages. The broker-dealer settled its securities case for $550 million. Meantime, Tourre, who is accused of giving Goldman Sachs “substantial assistance” in its alleged efforts to mislead investors, is seeking to have the SEC case against him dismissed. He is pointing to Morrison v. National Australia Bank Ltd., a US Supreme Court decision that was issued two months after the SEC filed charges against him.

This week, his lawyers argued that the SEC was attempting to circumvent the Supreme Court ruling, which limits the reach of civil claims over acts that occurred outside the country. The transactions involving Tourre that are under dispute took place abroad.

Goldman’s Tourre Shouldn’t Face SEC Lawsuit, His Lawyers Say, Bloomberg Businessweek, February 15, 2011

The SEC Complaint (PDF)

Money Market Fund Portfolio and “Shadow NAV” Information Now Available to the Public, Says SEC

Published on: February 16, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission says that investors can now access detailed data about money market funds, including their portfolio’s market-based price, called its “shadow NAV” (net asset value). The public can now access this information, which will be updated regularly, on the SEC’s website through the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system.

It was just last year that the SEC adopted a rule that requires money market funds to submit information about their portfolio valuations and holdings. SEC Chairman Mary L. Schapiro says that the Commission believes that the public disclosure of this data will help market analysts and investors in evaluating mutual funds.

Per the new rule, the SEC will make available within 60 days the information that the funds file on new Form N-MFP. Money market funds also must now post current portfolio data on their on Web sites within five business days after the month has ended.

According to a study released last month by the Investment Company Institute, money funds’ market value usually adhere to the stable $1 net asset value unless there are unusual market conditions. ICI is the national association for mutual funds.

ICI report says that per securities laws, money funds can offer shares at a stable $1 NAV as long as per-share values remain within one-half cent of $1. Also, between 2000 and 2010, money funds’ average shadow price shifted between $0.998 and $1.002. During this time, the market underwent significant valuations in asset prices and interest rates. For the money fund’s market value to fluctuate beyond one-half cent of the $1 NAV, certain market condition changes would have to occur, such as investor net redemptions hitting 80% of a fund’s assets, short-term interest rates going up by over 300 basis points in a day, and a 100 basis point rise in interest rates added to investor redemptions of 70% of a fund’s assets.

Related Web Resources:
SEC Releases Money Market Fund Portfolio and “Shadow NAV” Information to the Public, SEC, January 31, 2011
The ICI Report (PDF)

More Blog Posts on Money Market Funds:
SEC is working on issues related to asset-backed securities, credit ratings, and money market mutual funds, says Schapiro, Stockbroker Fraud Blog, January 31, 2011
US Treasury Department Extends Money Market Fund Guarantee Program Through April 2009, Stockbroker Fraud Blog, December 10, 2008 Continue Reading ›

Ex-UBS Employee Can Proceed with Her Whistleblower Claim, Says District Court

Published on: February 15, 2011 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. District Court for the District of Connecticut says that ex-UBS (UBS) employee Mary Barker’s whistleblower claim alleging that she was retaliated against for she reporting a purported accounting mistake can move forward. Her Age Discrimination in Employment Act claim, however, was dismissed.

Barker, who used to work UBS’s Stamford, Conn. Office, was given the responsibility of reconciling UBS’s existing exchange seat shares with old company records in December 2006. The valuation had to take place because UBS’s holdings of exchange seat assets were redistributed after the Commodity Exchange Inc. and the New York Mercantile Exchange merged.

Barker allegedly found that some of UBS’s historical exchange seat holdings had either not been accounted for or had been improperly accounted on the financial firm’s balance sheet. UBS went on to realize that about $80 million from the sale of exchange seats had been overlooked.

Barker told her manager about the brokerage firm’s alleged failure to disclose the seat holdings in February 2007. She says that not only did her manager fail to report her findings, which violated federal securities laws, to upper management, but also, her worries were never addressed. She says that her interactions with other UBS officials over the matter were similarly unsatisfying.

Despite getting a “Thank You Award” for her efforts, Barker says that UBS began to take retaliatory action against her. Not only did she get a poor review rating that year and fail to get a salary bump the following year, but also she was passed over for a promotion and her complaints were disregarded. In May 2008, Barker was told that the financial firm was letting her go due to a general reduction in UBS’ workforce.

Related Web Resource:
Barker v. UBS AG

More Blogs on Whistleblower Cases:

Why Whistleblowers Should Act Quickly and Consult Competent Legal Counsel, Stockbroker Fraud Blog, December 18, 2010

Whistleblower Sues Moody’s Investors Service for Defamation, Stockbroker Fraud Blog, September 15, 2010

TD Ameritrade Inc. Settles SEC Securities Fraud Charges Over Reserve Yield Plus Fund Shares for $10M

Published on: February 14, 2011 | by Shepherd Smith Edwards & Kantas, LLP

TD Ameritrade Inc. (AMTD) has settled Securities and Exchange Commission charges that it failed to reasonably supervise its representatives, some who sold shares of the Reserve Yield Plus Fund to clients. As part of the settlement, TD Ameritrade will pay $10 million to eligible customers who are still fund shareholders.

According to the SEC, TD Ameritrade representatives offered and sold Reserve Yield Plus Fund shares to customers before September 16, 2008. The SEC contends that the representatives “mischaracterized” the fund as a money market fund, making it seem as if the fund had guaranteed liquidity while allegedly failing to discloses the risks involved with this type of investment. In September 2008, the fund “broke the buck” when its assets’ value fell lower than the level required to cover each dollar that had been invested in the fund.

The SEC also claims that TD Ameritrade lacked an adequate supervisory system or policies to stop its representatives’ misconduct that led to investors’ losses. Clients eligible to receive money from the settlement should get receive 1.2 cents per share.

The SEC says that it is essential that customers are given adequate information about investment instruments and that broker-dealers must properly train and supervise their representatives to give clients this important information. The SEC said that thousands of TD Ameritrade customers still hold most of the Yield Plus Funds shares. They got approximately 95% of its original investments after the fund liquidated its assets.

By agreeing to settle, the TD Ameritrade Inc. is not denying or admitting to the misconduct.

Related Web Resources:
SEC announces $10M settlement with TD Ameritrade, AP/Yahoo, February 3, 2011
SEC Charges TD Ameritrade for Failing to Supervise Its Representatives Who Sold Shares of the Reserve Yield Plus Fund, SEC, February 3, 2011
Securities Fraud Attorneys

Related Blog Posts on SEC Settlements:
AXA Rosenberg Entities Settle Securities Fraud Charges Over Computer Error Concealment for Over $240M, Stockbroker Fraud Blog, February 10, 2011
Ex-Portfolio Managers to Pay $700K to Settle SEC Charges that They Defrauded the Tax Free Fund for Utah, Stockbroker Fraud Blog, January 22, 2011
Schwab Settles for $119M SEC Charges It Allegedly Misled YieldPlus Fund Investors, Stockbroker Fraud Blog, January 17, 2011 Continue Reading ›