Investor Lawyers Blog

Goldman Sachs COO Says Investment Firm Shorted 1% of CDOs Mortgage Bonds But Didn’t Bet Against Clients

Published on: July 14, 2010 | by Shepherd Smith Edwards & Kantas, LLP

According to Goldman Sachs Group Inc. Chief Operating Operator and President Gary Cohn, the investment firm adamant that the bank did not bet against its own clients. He says that Goldman Sachs purchased protection against a decline in just 1% of mortgage-backed securities it underwrote since late 2006. Former clients, regulators, and members of Congress are accusing Goldman Sachs of designing mortgage-backed securities that would fail and then betting on their failure to purchase credit-default swaps, which pay out when a default occurs.

Cohn testified last month before the Financial Crisis Inquiry Commission. He says that in the wake of the serious allegations, the investment firm has examined the $47 billion in residential mortgage-backed securities (RMBS) and $14.5 billion in collateralized debt obligations (CDOs) that the firm underwrote since firm executives began to feel the need to treat the subprime mortgage market with caution in December 2006. He claims that by the end of June 2007, Goldman Sachs held $2.4 billion of bonds from CDOs and $2.4 billion of bonds from RMBS trusts. The investment bank had protection for approximately 1% of the total underwritten. Nearly 60% of the derivatives and bonds in the CDOs were from other institutions.

The hearing was called to probe the relationship between Goldman and American International Group Inc (AIG). The investment bank had purchased CDO protection from the insurer. Billions of dollars in federal funds had allowed AIG to stay in business even though it was facing bankruptcy and a number of the insurer’s counterparties, including Goldman, are believed to have benefited. Cohn has argued that all market participants benefited from the government’s assistance.

Related Web Resources:
Goldman Sachs Shorted 1% of its Mortgage Bonds, CDOs, Cohn Says, Business Week, June 30, 2010
Goldman’s Cohn: Firm Didn’t Drive Down Mortgage-Asset Marks, Bloomberg.com, June 30, 2010
Financial Crisis Inquiry Commission
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Morgan Stanley Settles Massachusetts Lending Case for $102 Million

Published on: July 12, 2010 | by Shepherd Smith Edwards & Kantas, LLP

According to Massachusetts Attorney General Martha Coakley, Morgan Stanley has agreed to pay $102 million to settle allegations that it offered predatory subprime mortgage loan funding in the state. The investment firm filed its assurance of discontinuance in Massachusetts state court, agreeing to pay $19.5 million to the state, $58 million in relief to approximately 1,000 Massachusetts homeowners, $2 million to nonprofit groups that help subprime foreclosure victims, and $23.4 million to a state pension plan and a state trust for investment losses. By agreeing to settle, Morgan Stanley is not admitting to or denying the attorney general’s allegations.

Coakley contends that the investment bank provided subprime lender New Century billions of dollars. The funds were used to target lower-income borrowers to get them into loans they would not be able to pay back. Coakley contends that even though Morgan Stanley “uncovered signals pretty early on” that New Century’s practices “were not sound” and the “bad loans were causing the lender to collapse” the investment bank went forward with funding and securitizing the loans. Coakley also says that Morgan Stanley was aware that New Century repeatedly violated Massachusetts banking standards between 2005 and 2007, used inaccurate and inflated appraisals, and improperly calculate debt-to-ratio from initial “teaser rates.”

The state says that Morgan Stanley packaged the loans and sold them to big investors. The investment bank has been ordered to revise some of its lending practices.

Bank of America/Countrywide, Goldman Sachs, Fremont Investment and Loan, and others have reached similar settlements with the state. The approximately $440 million in settlement money will provide borrowers, investors, homeowners, and the state with relief and recovery.

Related Web Resources:
Morgan Stanley Settles Massachusetts Subprime Loan Probe, ABC News, June 24, 2010
Morgan Stanley to Pay $102 Million in Subprime Accord, Bloomberg Businessweek, June 24, 2010
Massachusetts Attorney General Martha Coakley
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Refusal to Grant Prevailing Party of Securities Fraud Case Attorneys’ Fees and Costs is Affirmed by Appeals Court

Published on: July 9, 2010 | by Shepherd Smith Edwards & Kantas, LLP

In Kelter v. Associated Financial Group Inc., The U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s decision to refuse to grant attorney fees and costs under the Private Securities Litigation Reform Act to the prevailing parties, which in this case are the defendants. In its unpublished ruling, the court determined that the plaintiff did not take part in any “egregious conduct” that would warrant that the district court’s denial be reversed.

The securities fraud case was filed by Richard Kelter and involved his failed APEX Equity Options Fund LP investments. The plaintiff accused Jeffrey Forrest of fraudulent misrepresentation regarding the risks and nature of the equity fund. He claimed that as Forrest’s principals, Associated Securities Corp., Associated Financial Group Inc., and Associated Planners Investment Advisory Inc. should be held liable.

On January 14, The district court granted the Associated defendants’ summary judgment. Two weeks later, the defendants moved for attorneys’ fees and costs under PSLRA. They claimed that Kelter did not have enough legal basis and factual evidence when he named them as defendants in his first amended complaint. The district court denied their motion.

The appeals court says that the district court had found that the Associated Defendants did not timely serve its motion for fees on Respondent before filing and, as a result, did not give the Respondent twenty-one days to withdraw the challenged paper. The lower court also said that it did not see any indication that the plaintiff’s actions were unreasonable, frivolous, filed for improper purpose, or objectively baseless.

The appeals court not only affirmed the district court’s decision, noting that it did not find Kelter’s arguments of the objectively baseless nature that have in past cases resulted in such fee awards, but also it declined to “reach the question of whether the district court improperly applied Rule 11’s safe harbor provision.”

Related Web Resources:
Kelter v. Associated Financial Group Inc., 9th Circuit

Private Securities Litigation Reform Act
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France and Germany Press EU to Ban Naked Short Selling of Stocks and Limit Credit Default Swaps

Published on: July 8, 2010 | by Shepherd Smith Edwards & Kantas, LLP

Germany and France are calling on the European Union to accelerate its plans for proposals to put restrictions on credit default swaps and ban naked short selling of bonds and some stock. French President Nicolas Sarkozy and German Chancellor Angela Merkel wrote a joint letter to the European Commission last month.

The two leaders noted that strong market volatility was making it necessary to question certain financial methods and that improving the transparency of short-selling positions on shares and bonds was important. Just this May, the German government unilaterally decided to ban the naked short selling of certain stocks and bonds. Sarkozy and Merkel are also pressing for swift resolution of the differences between the European Parliament and EU member states over a new banking supervision scheme. Disputes regarding the amount of power new agencies will have to oversee banking, securities, and insurance industries have yet to be resolved.

The EC welcomed the letter, saying that the German and French leaders were voicing support for its work, and noted that the “final phase of completing our proposals” is under way. Commission spokeswoman Pia Arenkilde-Hansen also noted that the EC is working with key stakeholders to tackle the issue of derivatives. She did however, point out that member states have “divergent positions” when it comes to short selling. The EC has not yet found a consensus.

The EC acknowledged the need for urgency but insisted that rushing the proposals would be a mistake.

Related Web Resources:
Merkel And Sarkozy Want EU To Ban High-Risk Trading, World News, June 11, 2010
EU leaders ask for short selling, CDS rules, Business Week, June 17, 2010
European Commission
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Court Orders Southridge Partners Limited Partnership Dispute to Arbitration

Published on: July 6, 2010 | by Shepherd Smith Edwards & Kantas, LLP

The Delaware Chancery Court is dismissing Aris Multi-Strategy Fund LP’s action to obtain access to Southridge Partners LP books and records and sending the case to arbitration. Aris is a Southridge limited partner. According to Chancellor William Chandler III, arbitration for this case is contractually mandated.

Aris is seeking access to Southridge’s records and books. Aris claims that Southridge has not responded to requests for information.

According to the court, because this dispute is one regarding “the partnership,” it is subject to the LP Agreement terms that mandate arbitration. The court also noted that the arbitration provision doesn’t limit the arbitrator from resolving disputes other than those involving the LP Agreement. Also, while parties may ask that an arbitrator limit its authority only to disputes involving the agreement, the arbitrator can say no. This means that the arbitrator is allowed to determine whether to resolve the books and records dispute.

Judge Chandler determined that the Delaware Revised Uniform Limited Partnership Act lets partners contractually agree to enter books and records actions to arbitration. The court also says that Aris’s contention that inspection rights cannot be determined by an arbitrator because the Chancery Court has exclusive jurisdiction is incorrect. It stated that 6 Del. C. §17-109(d) lets a limited partner wave its right to bring actions involving a limited partnership’s internal affairs or organization to the Delaware Courts as long as it agrees to arbitrate its actions.

Related Web Resources:
Aris Multi-Strategy Fund LP v. Southridge Partners LP, Del Court Opinion (PDF)

Delaware Revised Uniform Limited Partnership Act
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Texas Securities Fraud Alleged in SEC Lawsuit Against Former Advanced Materials Group Inc. CFO

Published on: July 1, 2010 | by Shepherd Smith Edwards & Kantas, LLP

The US Securities and Exchange Commission is suing William G. Mortenson with Texas securities fraud related to an alleged revenue scheme that allowed him to maintain an expensive lifestyle. According to the SEC, the former chief financial officer of Advanced Materials Group Inc. fraudulently inflating the company’s financial results in 2008 and 2009. AMG is now in bankruptcy protection fired Mortenson in 2009.

In addition to the charges of Texas financial fraud charge and misappropriating hundreds of thousands of dollars from AMG, The SEC is accusing Mortenson of falsifying records, lying to accountants, circumventing internal controls, and aiding and abetting violations involving reporting, internal control, and record-keeping. The SEC claims that Mortenson instructed employee Feng “Eric” Zheng to document bogus sales to two of the company’s biggest customers. The entries materially overstated AMG’s sales, accounts receivable, and earnings as they were then reported in quarterly and annual reports.

Mortenson allegedly used the inflated accounts receivable to borrow money under the company’s bank line of credit. He is accused of misappropriating the money, as well as other funds, to cover up to $380,000 in personal expenses, including property tax, country club membership, private jet flights to Europe, family vacations, and home remodeling. The SEC is asking the U.S. District Court for the Northern District of Texas to order civil penalties, an officer/director bar, disgorgement, and permanent injunctive relief against Mortenson.

Meantime, Zheng has settled charges regarding his alleged involvement in the Texas securities scam for $25,000. He was accused of falsifying records, lying to accountants, circumventing internal controls, and aiding and abetting violations of recordkeeping, reporting, and internal controls.

Related Web Resources:
SEC sues ex-president of Garland-based Advanced Materials Group, Dallas News, June 10, 2010
SEC Charges Former Advanced Materials Group, Inc. CFO with Securities Fraud and Misappropriation of Hundreds of Thousands of Dollars, SEC.gov, June 9, 2010 Continue Reading ›

No Criminal Cases Yet Against Wall Street Banks Despite Obama Administration’s Vow To Go After Those Responsible for Financial Crisis

Published on: June 28, 2010 | by Shepherd Smith Edwards & Kantas, LLP

According to the Washington Post, even though the President Obama had vowed to hold Wall Street accountable for the economic collapse, his administration has yet to bring any charges against the large investment banks that took out loans from mortgage companies, turned them into toxic securities, and sent them into the world’s financial markets. Now, some are wondering whether government officials went too far in their promise to pursue charges that can’t really be filed because they could criminalize an “entire business model in the financial industry.”

Tim Coleman, a former senior Justice Department staff member,says that one of the problems is that not all of the people on Wall Street that contributed to the economic meltdown necessarily committed crimes. Rather, some of them made bad calls and took risks that fared poorly.

It was just last November that US Attorney General Eric H. Holder reinforced the vow to prosecute Wall Street executives and others. When launching the Financial Fraud Enforcement Task Force, he said the Justice Department would be “relentless” in pursuing financial and corporate wrongdoing. Now, officials and Holder himself are defending this promise against critics.

At a recent news conference, Holder stated that the Justice Department’s efforts should not be assessed only in relation to Wall Street cases. Also, James M. Cole, Obama’s nominee for deputy attorney general, has said that it is essential to go after the individual executives whose actions led to the economic collapse.

The Justice Department has charged 1,215 people with mortgage fraud since the beginning of March. Also, earlier this month, the Justice Department arrested Lee Bentley Farkas, the former chairman of Taylor, Bean & Whitaker. The government is accusing Farkas of committing a $1.9 billion securities fraud against the government and investors, destroying evidence, falsifying documents, covering up the mortgage firm’s losses with money from Colonial Bank, and then tapping into the emergency bailout program for the banking system to help Colonial.

With 48 ongoing FBI investigations into financial institutions and businesses, officials say to expect more indictments. UBS, Deutsche Bank, Morgan Stanley, Goldman Sachs, the former Lehman Brothers, Citigroup, and JP Morgan Chase are among the firms being probed. Also, the Justice Department obtained a 12% budget increase to combat financial fraud this year and is asking for an additional 23% for next year.

Related Web Resources:
Cases against Wall Street lag despite Holder’s vows to target financial fraud, Washington Post, June 18, 2010
Mortgage Scams Targeted in Sweep, The Wall Street Journal, June 18, 2010
CEO of mortgage giant, Lee Bentley Farkas, indicted in $1.9B massive fraud scheme, NY Daily News, June 16, 2010
Financial Fraud Enforcement Task Force

Eric H. Holder, US Department of Justice Continue Reading ›

Texas Attorney General Candidate Barbara Ann Radnofsky Says State Should File Securities Fraud Lawsuit Against Wall Street Firms

Published on: June 26, 2010 | by Shepherd Smith Edwards & Kantas, LLP

Barbara Ann Radnofsky, the Democratic candidate for Texas attorney general, says that the state should sue Wall Street firms for securities fraud. Earlier this week, she published a legal brief accusing investment banks of being responsible for the financial crisis. Her Texas securities fraud briefing, which is modeled on the multibillion-dollar tobacco settlements from the 1990’s, is seeking approximately $18 billion in securities fraud damages and other reparations for Texas. She targets Morgan Stanley, Goldman Sachs Group, AIG insurance, and other leading financial firms, banks, and bond-rating agencies.

Radnofsky’s brief is not a securities fraud lawsuit, but it is a framework for one. She hopes that it will push incumbent Texas Attorney General Greg Abbott to take action. She contends that if Abbott fails to sue the firms by September, “he is committing legal malpractice.” She is accusing him of failing to act despite the “clear evidence.”

Radnofsky has noted that the financial meltdown has forced Texas to make cuts to social programs, environmental enforcement, and child protective services. She says the “Great Recession” has lead to child illness, hunger, death, and abuse. She also contends that foreclosures and abandoned homes have severely affected neighborhoods.

Freddie Mac and Fannie May Drop After They Delist Their Shares from New York Stock Exchange

Published on: June 25, 2010 | by Shepherd Smith Edwards & Kantas, LLP

Fannie Mae dropped 39% to 56 cents and Freddie Mac went down 38% to 75 cents when the mortgage firm delisted their preferred and common shares from the New York Stock Exchange at the request of the Federal Housing Finance Agency. The moves were ordered after the NYSE told Fannie Mae that its shares did not meet listing standards any longer because over the last 30 days its closing price had dropped under $1. The voluntary delistings will go into effect in early July. The companies are expected to trade on the Over-the-Counter Bulletin Board.

The two mortgage companies, which are 80% owned by US taxpayers, guarantee or own nearly half of the US’s $11 trillion mortgage market. Shareholders include Blackrock Inc., Vanguard Group, California’s state pension fund, and Kinetics Asset Management.

The two firms have been at risk of delisting since September 2008 when they were seized by regulators and their share prices dropped. The US Treasury has infused about $145 billion ($61.3 billion into Freddie Mac and $83.6 billion into Fannie Mae) into the companies since then to keep them afloat despite defaults of mortgages and foreclosures. Taxpayer aid could end up reaching the hundreds of billions of dollars. The US government has promised to keep financially supporting the mortgage firms while Congress deliberates over overhauling the country’s mortgage finance system. The two firms are still a key source of funding for mortgage lenders and banks.

“This is more insult to the injury sustained by those who were sold shares, especially preferred shares, of Fannie Mae and Freddie Mac,” says Securities Fraud Attorney William Shepherd. “Most investors were told that these were very safe investments. Many were told that these were as safe as government bonds. It is not too late to seek damages for such misrepresentations.”

Related Web Resources:
Fannie, Freddie Plunge After Moving to Delist Shares, Bloomberg, June 16, 2010
Fannie Mae, Freddie Mac to delist from NYSE, CNN, June 16, 2010 Continue Reading ›

As BP Oil Spill Reaches Crisis Mode, A Number of Wall Street Analysts Placed “Buy” Rating On the Company’s Plunging Shares

Published on: June 22, 2010 | by Shepherd Smith Edwards & Kantas, LLP

When BP oil spill in the Gulf Coast first became news, the company’s shares started to drop. According to the Huffington Post, the unfolding crisis incited a mad dash on Wall Street, with dozens of securities analysts encouraging investors to “buy, buy, buy” BP (BP.L: Quote, Profile, Research, Stock Buzz) (BP.N: Quote, Profile, Research, Stock Buzz).

Among those to jump into the fray were Credit Suisse, Citigroup, and Morgan Stanley. Thomson Reuters says that of 34 analysts that rated the BP shares as recently as May 11, 27 gave “buy” or “outperform” ratings. 7 rated the shares with a “hold.” None of the analysts gave the shares an “underperform” or “sell” rating.

As estimates of how much oil was being spilt grew and was coupled with news of BP’s unsuccessful efforts to stop the leak, BP stock kept dropping, destroying some $100 billion in shareholder wealth. Unfortunately, when Wall Street makes mistakes, it is the investors that end up losing money.

Some experts saying that with so many analysts making the wrong call, the BP crisis has exposed the problems that continue to plague the sell-side analyst community despite all the reform that has been implemented in the last 10 years. Some investment firms are afraid to be left out, which can contribute to what appears to be an existing “group think” mentality. Analysts may also be unwilling to challenge companies for fear of jeopardizing their relationship with leading executives-a classic case of conflict of interest.

Meantime, the analysts are coming to their own defense. They say that the Deepwater Horizon oil spill was unprecedented and therefore it was hard to predict its outcome and related financial ramifications. Granted, as the risks became more obvious, many on Wall Street downgraded their buy ratings to more cautious notes. Natixis and Goldman were among those that lowered their ratings from “buy” to “hold” or neutral.” There were also a small group of analysts that did accurately call the effects the oil spill would have on BP’s stock prices.

Related Web Resources:
Wall Street Said ‘Buy, Buy, Buy’ BP Stock As Gulf Crisis Unfolded, The Huffington Post, June 18, 2010
BP Stock Sinks Back Near Oil-Spill Low, The Street, June 22, 2010
A Timeline of the BP Oil Spill Crisis, WallStCheatSheet.com, May 6, 2010 Continue Reading ›