Investor Lawyers Blog

Failure of Municipal Swaps Cost Taxpayers $4 Billion

Published on: November 17, 2010 | by Shepherd Smith Edwards & Kantas, LLP

According to Bloomberg.com, taxpayers have had to pay over $4 billion because of insurance companies and banks’ failed promise to nonprofits and governments that financial engineering would bring down interests on bonds sold for public projects. Since 2008, hundreds of borrowers throughout the US have had to pay Wall Street to end their agreements. Citigroup, JP Morgan Chase & Company, Morgan Stanley , and Bank of America are a few of the other firms that have received payments from borrowers.

For example, California’s water resources department paid $305 million to Morgan Stanley-led banks to unwind interest-rate bets that backfired, while the Bay Area Toll Authority gave bond insurer Ambac Financial Group Inc. $105 million to terminate $1.1 in billion interest-rate agreements. In August, The state of North Carolina shelled out $59.8 million.

Interest-Rate Swap
In this type of transaction, two parties exchange payment based on a principal amount that has been agreed upon. Most municipal market swaps require borrowers to put out long-term securities with interest rates that change every month or week. The borrowers are to exchange payments, resulting in a fixed-rate paid to an insurer or bank, while a variable rate in return is received.

The swaps drew a lot of interest because nonprofits and governments could pay lower rate than if they had sold conventional fixed-rate securities. According to the Financial Crisis Inquiry Commission senior researcher Randall Dodd, prior to the credit crisis, there were up to $500 billion of the deals done were in the $2.7 trillion municipal bond market.

Unfortunately, the credit market did collapse and Wall Street’s payments dropped and could no longer cover the municipalities’ debt costs. Still, under the agreements, borrowers had to keep selling adjustable-rate securities.

Bloomberg reports that there aren’t many taxpayers that are familiar with how much it cost to untangle municipal swaps. (Payment disclosures to Wall Street are usually noted somewhere in the documents given to investors by borrowers when the bonds are sold.) In many instances, investment firms that receive payments aren’t clearly identified and government officials usually don’t draw notice to payments made to terminate contracts.

Related Web Resources:
Wall Street Takes $4 Billion From Taxpayers as Swaps Roil Public Financing, Bloomberg, November 10, 2010

Municipal Securities, Stockbroker Fraud Blog

Multimillion Texas Stock Sale Fraud Results in Multiple Indictments

Published on: November 16, 2010 | by Shepherd Smith Edwards & Kantas, LLP

Federal court prosecutors have issued new information regarding the securities fraud allegations made against an ex-Tiki Island resident and nine of his accomplices. Harris Dempsey “Butch” Ballow faces charges related to a seven-year multimillion-dollar stock sale scam.

Ballow, 67, was indicted in 2003 for alleged money laundering and fraud. He pleaded guilty to the money laundering charge, agreed to cooperate with the US Securities and Exchange Commission, and was released on $100,000 bond. However, he didn’t show up for his sentencing hearing and left the country. An arrest warrant was issued in 2004.

As a fugitive, Barrow is accused of using numerous aliases, including the names Tom Brown, John Gel, Marty Twinley, and Melvyn John Gelsthorpe. He allegedly used these names to control the following publicly traded companies: Medra, E-SOL International, Aztec Technology Partners (known as Ultimate Lifestyles), and Deep Earth Resources. He was living in Puerto Aventuras, Mexico on 2008 but disappeared the following year after allegedly persuading an investor to transfer $5 million to one of his companies. Mexican federal police finally arrested him at his home in Puerto Vallarta last July.

Also charged with wire fraud are Ballow’s wife Robin Harless Ballow, ex-Houston residents Ruben Garza Perez and Kelly Lyn Boothe, Austin, Texas attorney Patrick Lanier, Jeffrey Janssen Anuth, and five others. According to authorities, the defendants allegedly sold stock shares in the companies that Ballow acquired and controlled while he was a fugitive. They also are accused of concealing Ballow’s real name when they sold the stock to investors, issuing false information to raise and maintain stocks’ value, and not taking away the restrictions that kept investors from selling the stock and land ownership interests in a real estate development that never became a reality.

Related Web Resources:
Harris Dempsey “Butch” Ballow and Nine Others Charged with Allegedly Executing Stock Fraud Scheme While Ballow was a Fugitive from Justice, FBI, November 2, 2010
Indictments detail multimillion stock sale fraud, Galveston Daily News, November 4, 2010
‘Butch’ Ballow: A Wanted Man Click 2 Houston, December 9, 2009
Institutional Investor Securities Blog

Texas Securities Fraud, Stockbroker Fraud Blog Continue Reading ›

Goldman Sachs Ordered by FINRA to Pay $650K Fine For Not Disclosing that Broker Responsible for CDO ABACUS 2007-ACI Was Target of SEC Investigation

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

The Financial Industry Regulatory Authority says it is fining Goldman Sachs $650,000 for failing to disclose that the government was investigating two of its brokers. One of the brokers was Goldman vice president Fabrice Tourre. FINRA says Goldman did not have the proper procedures in place to make sure that this disclosure was made.

The SEC had accused Tourre of being “principally responsible” for Abacus 2007-AC1, a synthetic collateralized debt obligation, and selling the bonds to investors, who ended up losing more than $1 billion while Goldman yielded profits and hedge fund manager John A. Paulson made money from bets he placed against specific mortgage bonds. The SEC contends that Goldman failed to notify investors that Paulson had taken a short position against Abacus 2007-AC1. This summer, Goldman settled for $550 million SEC charges that it misled investors about this CDO, just as the housing market was collapsing.

Regarding Goldman’s failure to disclose that the SEC was investigating two of its brokers, even though investment firms are required to file a Form U4 within 30 days of finding out that a representative has received a Wells notice about the probe, FINRA says that Tourre’s U4 wasn’t amended until May 3, 2010. This date is more than 7 months after Goldman learned about his Well Notice and after the SEC filed its complaint against the investment bank and Tourre. FINRA also says that Goldman’s “employee manual” for brokers does not even specifically mention Wells Notices or the need for disclosure after one is received.

By agreeing to settle with FINRA, Goldman is not admitting to or denying the charges.

Goldman Sachs to Pay $650,000 for Failing to Disclose Wells Notices, FINRA, November 9, 2010
Related Web Resources:
Goldman Fined $650,000 for Lack of Disclosure, New York Times, November 9, 2010
Goldman Sachs Settles SEC Subprime Mortgage-CDO Related Charges for $550 Million,
Stockbroker Fraud Blog, July 30, 2010
Goldman Sachs, Institutional Investor Securities Blog Continue Reading ›

Citigroup Global Markets to Pay Back $95.5M Over ARS Sold to LandAmerica Exchange Fund

Published on: November 11, 2010 | by Shepherd Smith Edwards & Kantas, LLP

A federal bankruptcy judge has approved a settlement involving Citigroup Global Markets Inc. agreeing to repay $95.5 million to clients who sustained auction-rate securities related-losses. The ARS were told by Citigroup to LandAmerica 1031 Exchange Services Inc. before the latter folded in 2008. The ARS had been valued at about $120 million. The repurchase rate that clients are getting is reportedly better than what the ARS can be sold for now.

Under the approved securities settlement, these creditors should recover a little over 50% of their financial losses. The distribution of the money should begin taking place in December.

LandAmerica 1031 Exchange Services Inc. and parent company LandAmerica Financial Group Inc. filed for Chapter 11 bankruptcy in November 2008. Over 250 clients had placed proceeds from investment property sales in the exchange. Their intention was to defer capital gains taxes while searching for other properties to purchase.

Unfortunately, because the exchange company invested some of the funds in ARS, when the market froze and LandAmerica filed for bankruptcy, the investors became unable to access their money. At the time of the bankruptcy, Landmark held $201.7 million in ARS. $30 million of the securities had sold.

Meantime, the US Securities and Exchange Commission has received complaints claiming that Citigroup engaged in misrepresentation and securities fraud related to the credit worthiness and liquidity of the securities.

Related Web Resources:

Stockbroker Fraud Blog

Investment Manager Accused of Securities Fraud Must Pay Defrauded Clients Over $20 Million

Published on: November 10, 2010 | by Shepherd Smith Edwards & Kantas, LLP

In a default judgment, The U.S. District Court for the Western District of Washington is mandating that investment adviser Enrique Villalba and affiliated entities pay investors over $20 million. The 47-year-old has been sentenced to almost 9 years in prison for defrauding clients of over $30 million.

Most of the funds that were taken from investors were lost in unauthorized, high risk investments in futures contracts. Villalba also used some of the funds to run Rico Latte coffee shops and purchase property. Among his victims was one woman who lost almost $12 million. Another man, former ER doctor David Ernst, lost his life savings. Tom Mulgrey, 56, lost $4 million.

Villalba has not been in touch with the plaintiffs of this securities fraud lawsuit since September 2009. His investment fraud victims are located in different US states. In their securities complaint, the plaintiffs are alleging claims under the Washington Securities Act and the 1934 Securities Exchange Act.

In granting the plaintiffs’ motion to obtain a default judgment, the court noted that per the two statutes, rescission is the way to calculate damages. In this case, the court deemed rescission appropriate because it “undoes the transactions” while returning the plaintiffs to their original state had they never invested their funds with the defendants.

Also, under the Washington Securities Act, the court determined that not only are the plaintiffs entitled to interest on the damages amount beginning the date of each deposit, but also they are entitled to recover lawyers’ fees and costs. The Washington Consumer Protection Act also entitles them to legal fees. Per the default judgment, the plaintiffs have been awarded $20,080,637.89, which includes the principal amount of $13,393,650.67, $6,669,053.22 in interest, and $17,934 in lawyers’ fees and costs.

Related Web Resources:
Court Orders Investment Manager To Pay Defrauded Clients Over $20 million, BNA/Alacrastore.com, November 5, 2010
Investment adviser caught in $30 million fraud sent to prison for almost 9 years, Cleveland.com, September 8, 2010
Read the Order

Securities Act of Washington
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Court Rejects Defendants’ Challenge to Poptech LP’s Lead Plaintiff Status in Class Securities Fraud Lawsuit

Published on: November 10, 2010 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. District Court for the District of Connecticut has rejected defendants Stewardship Investment Advisors LLC and Marlon Quan’s challenge to the appointment of Poptech LP as the lead plaintiff in a class securities fraud lawsuit filed by investors. The plaintiffs are accusing the investment firm and Quan of violating federal securities law antifraud proscriptions by allegedly misrepresenting that the fund would employ certain investment strategies. The fund is also accused of investing the majority of its assets in a Thomas Petters-operated Ponzi scam. Poptech, not long after filing its class securities lawsuit, published notice in Business Wire stating that there wasn’t a dispute that the notice appropriately notified members of the proposed class about the pending action and the purported class period.

In their challenge, the defendants argued that the notice did not satisfy Private Securities Litigation Reform Act requirements, including failing to completely and “adequately” notify proposed class members of all the claims asserted in the complaint, not providing enough details about the defendants’ alleged misrepresentations, and failing to “adequately facilitate” additional action and inquiry by potential members. The court, however, found that the PSLRA requires just a “reasonably detailed summary” of claims made.

Shepherd Smith Edwards & Kantas LTD LLP Founder and Securities Fraud Lawyer William Shepherd had this to say about the ruling: “If this Court’s decision survives appeal, it could be helpful to victims of securities fraud. Some courts have carried ‘pleading securities fraud with particularity’ to extremes before discovery could even begin. Also, while these pleading requirements apply to class action litigation, many judges have been requiring absurd pleading requirements in all types of securities actions. Hopefully, fewer defrauded investors will be thrown out of court in the future based on pleading technicalities.”

“Flash Crash” – Why is This So Hard to Understand?

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

“On May 6, 1010, the New York Stock Exchange was intentionally shut down for 90 seconds by those in charge,” recounts Shepherd Smith Edwards and Kantas Founder and Securities Fraud Lawyer William Shepherd. “When this happened there was no market (bid and ask quotes) for many large cap stocks, except on small exchanges and the ‘third market.’ Meanwhile trading programs continued to submit market orders.” Shepherd continued, “Market orders in a ‘thin’ market are always a recipe for disaster. The question people should be asking is: Who decided to stop trading on the NYSE without warning and why? Imagine how much money could have been made by anyone who knew of this shutdown in advance!”

Shepherd’s observations come in the wake of NYSE Euronext chief executive officer Duncan Niederauer’s address to attendees at a recent National Association of Corporate Directors conference. Niederauer acknowledged that there is more that needs to be done to understand the events leading up to the flash crash. He said that while the Commodity Futures Trading Commission and the Securities and Exchange Commission had put out a “very well done” report that explained why markets dropped 4 or 5% that day, the reason why prices for some individual stocks plummeted by almost 100% remain unclear.

The Dow Jones Industrial Average dropped by over 573 points during five minutes of trading that day before taking 90 seconds to reverse and regain 543 points. Although the CFTC and the SEC have determined that the flash crash was started by a mutual fund complex that used computer algorithms to quickly sell $4 billion in futures contracts, Niederauer has said that there is still both information and misinformation. He contends that to bar high-speed electronic trading is impractical despite the fact that the US market structure is “more vulnerable than we thought.” He said the NYSE stands behind a model that comes with market maker obligations that are clearly outlined and that this can be used to determine whether the market maker is “doing a good job.” More market structure rules are expected in January.

Related Web Resources:
Flash crash’ shows need for price discovery and safeguards, NYSE
CFTC And SEC Release “Flash Crash” Report, FuturesMag.com
Read the SEC and CFTC Report (PDF)
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Texas Securities Fraud: M25 Investments Inc., M37 Investments LLC, and Two Individuals Must Pay $16.2M Over Alleged Forex and Ponzi Scams

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

M37 Investments LLC, M25 Investments Inc., Jeffery Lyon, and Scott Kear Sr. have settled for $16.2 million Commodity Futures Trading Commission charges involving the alleged defrauding of over 200 individuals in a foreign currency scheme. Many of the investment fraud victims were senior investors. The Texas securities fraud agreement was reached between the parties in district court.

The CFTC contends that the defendants solicited about $8 million from approximately 213 individuals to trade off-exchange leveraged foreign currency,
commodity futures contracts, and forex options. The commission says that between December 2007 and September 2009, investors in Texas, West Virginia, Maryland, and Mississippi, and other states were solicited for the trades. Many of the seniors who were targeted were solicited through their churches.

The defendants are accused of guaranteeing investors renewal bonuses, if they reinvested, in addition to guaranteed interest payments on investments. The investors were also allegedly told that “profitable trading” would garner returns. Unfortunately, what ended up happening is that most of the investors’ funds didn’t go toward trading and what was traded resulted in substantial losses.

CFTC says that the few funds that M35 and M25 paid to investors was money that had come from other clients. Because of this, CFTC contends, the two firms ended up running Ponzi scams. The agency also is accusing the defendants of covering up the securities fraud with monthly statement accounts that gave clients the false impression that they were making the 2% monthly interest that they had been promised.

Jointly and severally the defendants will pay $7.404 million in restitution. The two companies will jointly and severally pay a fine of $7.1 million. Lyon’s fine is $375,00 and Kear will pay $1.4 million.

Related Web Resources:
Federal Court Orders More than $16.2 Million in Customer Restitution and Monetary Penalties against Texas Defendants Scott P. Kear, Sr., Jeffery L. Lyon and their Firms in CFTC Anti-Fraud Action, CFTC, October 27, 2010
Read the Complaint (PDF)

Texas Securities Fraud, Stockbroker Fraud Blog
Institutional Investor Securities Blog
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Insider Trading: Likely on the Rise and Harder to Detect

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

At a recent New York City Bar gathering, U.S. Attorney for the Southern District of New York Preet Bharara said that not only is insider trading “rampant” and likely “on the rise,” but also, that identifying, probing, and prosecuting this securities fraud crime has become much harder. Bharara’s speech was titled “The Future of White Collar Enforcement: A Prosecutor’s View.”

Bharara noted that because of the “sheer volume” and “complexity” of stock trading, it is harder to identify when a specific transaction occurs because inside information was obtained. Also, such illicit trades, he said, are “subject to plausible deniability.”

Bharara said that similar reasons make it easy for “pre-textual trading,” which is used to foil enforcement efforts, to occur. Also, the high volume of information that is now available through tweets, Web sites, blogs, and feeds can make it easier for someone to claim that trades were based on information obtained from “reports somewhere” rather than from an insider. Bharara pointed out that blurred lines have developed between white-collar crimes and street crimes and that the globalization of crime has made it easier for offenders to hide their illegal gains. Meantime, it has become easier for fugitives to seek refuge abroad.

Bharara vowed that probing and prosecuting insider trading remains a priority for the Federal Bureau of Investigation, the Department of Justice, and the US Securities and Exchange Commission. He said his office will use every legal tool of investigation at its disposal even if it means obtaining the court’s authority to use wiretaps.

The Future of White Collar Enforcement: A Prosecutor’s View, New York City Bar, October 20, 2010 (PDF)

Insider Trading, Stockbroker Fraud Blog

Investment Adviser Southridge Capital Management and Its Hedge Fund Manager Face SEC Securities Fraud Charges for Allegedly Overvaluing Portfolio Assets

Published on: November 5, 2010 | by Shepherd Smith Edwards & Kantas, LLP

Along with Connecticut regulators, the Securities and Exchange Commission is charging Southridge Capital Management and its hedge fund investment manager Stephen M. Hicks with financial fraud. The two are accused of fraudulently overvaluing portfolio assets.

According to the SEC, Hicks fraudulently misstated the assets’ acquisition price when he overvalued the largest position that the funds held. Hicks also allegedly arranged a transaction involved the sale of a Southridge fund-acquired telecommunications company (when the company defaulted on a $769,000 note) to Fonix Corporation, which made the purchase in exchange for securities that were valued at $33 million in 2004.

The SEC claims that the asset sold and the securities obtained were not accurately valued, Fonix’s position was wrongfully valued at its acquisition cost, and since 2004 the funds have accrued or paid hundreds of thousands of dollars in management fees. The SEC also contends that Hicks fraudulently solicited clients to place their money in new funds and told them that most of their money would be placed in free trading shares that were unrestricted, near cash, or cash. However, by 2007 many of the investors were having a difficult time redeeming their money from what were significantly illiquid securities. The SEC is seeking disgorgement of profits, injunctive relief, financial penalties, and prejudgment interest.

Meantime, in Connecticut, Banking Commissioner Howard F. Pitkin is charging Southridge and Hicks with overvaluing assets that they managed and lying to investors. The state is accusing the investment firm of purposely using bogus financial statements to overvalue the assets of five funds so that clients could be charged larger fees. State regulators contend that the alleged securities misconduct allowed Hicks and Southridge to collect over $26 million in fees.

Related Web Resources:
SEC Charges Connecticut-Based Hedge Fund Manager with Fraud in Valuing Portfolio Assets, Making Misrepresentations to Investors, and Misuse of Investor Assets, SEC.gov, October 25, 2010
Southridge Capital Management Founder Charged With Fraud Though He May Not Know It Yet, Dealbreaker, October 25, 2010
Institutional Investor Securities Blog
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