Investor Lawyers Blog

SEC Proposes Road Map For The Mandatory Adoption Of International Financial Reporting Standards

Published on: December 4, 2008 | by Shepherd Smith Edwards & Kantas, LLP

A few weeks ago, the Securities and Exchange Commission formally proposed a road map that could result in the mandatory adoption of international financial reporting standards by US domestic financial report filers. For the largest filers, this could start as soon as 2014.

Beginning November 14, the SEC has opened up a 90-day period for comment on the road map. The SEC’s 165-page report says that making IFRS mandatory should improve the comparability of financial data prepared by foreign companies and US public companies.

Seven “Milestones” Must Be Met in order to Allow IFRS use in the US, including:

• Improved quality of accounting standards at the IASB and Financial Accounting Standards Board.
• Progress toward a funding mechanism for the International Accounting Standards Committee Foundation that is safe, steady, and independent.
• Improved interactive data capabilities for IFRS reporting.
• Early, voluntary IFRS use to show how it will improve financial reporting comparability.
• Proper IFRS education and training for investors, accountants, and auditors.
• SEC rule making fits that with domestic IFRS use.
• Determining whether it makes sense to adopt mandatory IFRS use and figuring out the best ways to sequence it.

Under the SEC proposal, large companies that meet specific criteria would be allowed to apply voluntarily for IFRS in the US. The SEC says that the increase in competition between global markets to raise capital is a key reason for letting US companies use IFRS within the country. The SEC also notes the value of adopting a single, widely accepted set of standards that would benefit US investors and the international markets.

According to Stockbroker Fraud Attorney William Shepherd: “In early 2007, we commented on the “race to bottom” regarding de-regulation and the ever-looser accounting standards for global corporations. Since then, we have witnessed a global meltdown of the financial industry. Yet, deregulation champion SEC Chairman Chris Cox, who has apparently never met a white collar criminal he did not adore, is using his last few days in office to relinquish accounting standards to foreign control. This comes on the heels of George Bush granting co-control over U.S troops and contractors to a shaky Iraqi government. What happened to an administration that disdained the UN, for example, even appointing a US ambassador who openly stated the UN should be disbanded and the US should not pay its dues? This is the most hypocritical group of people who ever walked the face of the earth!”

Related Web Resources:

Roadmap for the Potential Use of Financial Statements Prepared in Accordance with International Financial Reporting Standards by U.S. Issuers, November 14, 2008, (PDF)

Submit Comments on File No. S7-27-08
Continue Reading ›

“Living Benefits” Annuity May Be Riskiest Product Ever Sold by Insurance Industry

Published on: December 3, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Variable annuities that guarantee “living benefits” could end up costing insurers a lot more than what they charge for them and may result in falling stock prices. These variable annuities come with a GMWB (guaranteed minimum withdrawal benefit). An investor’s money is placed in various mutual fund-like “sub-accounts” in return for a guaranteed minimum payout, as well as a higher return if your mutual funds’ values increase by over a certain amount
This means that even if a buyer sustains significant losses on an investment, he or she must still receive the fixed, minimum income benefits that were promised. It is also important to note, however, that there may not be an increase in future benefits.

Last summer, variable annuities became even more attractive to investors, as insurers competed with one another to generate more business. This move, however, is not boding well for insurance companies.

Fitch, AM Best, Standard & Poor’s, and Moody’s have all placed the life insurance industry in their “negative-outlook” columns. Even if insurers increase their prices or lower future guarantees, these moves may not suffice to cover the benefits they have promised.

Many GMWB annuities buyers had anticipated not having to withdraw from their annuities for a number of years, until their value had increased enough to pay more than the $5,000 annual minimum. Now, this won’t be possible until the annuity recovers everything lost plus yearly costs.

Related Web Resources:

Maximum Risk Didn’t Hurt These Investors, Bloomberg.com, December 3, 2008

The Cost Of Variable Annuity Guarantees, Investopedia.com Continue Reading ›

SEC Adopts Rules to Streamline Mutual Funds Disclosures But Delays Making Decision on Credit Ratings’ Final Rules

Published on: November 26, 2008 | by Shepherd Smith Edwards & Kantas, LLP

In a unanimous vote, the Securities and Exchange Commission agreed to adopt rule amendments to improve mutual fund disclosures. This includes letting investors receive a summary prospectus written in simple English. The SEC also adopted revisions to the mutual funds’ registration form known as form N-1A, including amendments that let exchange-traded funds use summary prospectuses.

Summary Prospectus

The summary prospectuses, which are voluntary, may include important information about investment strategies and goals, past fund performance, risks, and fees. As long as the statutory prospectus, summary prospectus, and other essential data can be accessed online, mutual funds that send investors a summary prospectus will be fulfilling their prospectus delivery requirements. Key data, such as selling and buying procedures, financial intermediary compensation, and tax consequences must also be included. The SEC expects approximately 75% of all mutual funds to use summary prospectuses.

Securities Fraud Class Action Lawsuit Against Hartford Financial Services Group Inc. is Reinstated in Appeals Court

Published on: November 25, 2008 | by Shepherd Smith Edwards & Kantas, LLP

This month, the U.S. Court of Appeals for the Second Circuit issued a decision granting class action plaintiffs another opportunity to make their securities fraud claims against Hartford Financial Services Group Inc. The district court had previously dismissed the class action lawsuit as untimely under the 1934 Securities Exchange Act.

That court had found that based on all media reports, regulatory filings, and information about several lawsuits available, the plaintiffs could have and should have filed their securities fraud lawsuit before the two-year statute of limitations had run out on July 25, 2001. Instead, the plaintiffs filed their complaint more than one year after the deadline had passed.

The securities fraud lawsuit, filed by Steve Staehr and a number of other plaintiffs who had acquired Hartford stock between August 6, 2003 and October 13, 2004, accuses the life and property/casualty insurer of acting fraudulently by concealing price manipulation and kickbacks involving insurers and commercial brokers. The plaintiffs also claim that because of the firm’s misrepresentations, omissions, and fraudulent concealments, they acquired Hartford stocks at artificially inflated prices. They filed their lawsuit soon after then-New York Attorney General Eliot Spitzer filed a lawsuit against Marsh, Inc., a Hartford broker.

Second Circuit Judge Colleen McMahon reversed the district court’s decision saying the information the plaintiffs had was not enough to place them on notice by July 2001 that Hartford was likely going to be investigated for “contingent” commissions. The appeals court also noted that Spitzer’s lawsuit connected Hartford to Marsh’s activities and that in 2003, Hartford revealed it paid brokers $145 million in kickbacks.

Related Web Resources:

Securities Fraud Class Action Lawsuit Against Hartford Financial Services Group Inc. is Reinstated in Appeals Court, Reuters, November 17, 2008
N.Y. Attorney General Spitzer Sues Marsh Over Contingent Commissions, Insurance Journal, October 25, 2004 Continue Reading ›

The Financial Regulation Reform Act of 2008 Seeks to Regulate Investment-Bank Holding Companies and Credit Default Swaps

Published on: November 24, 2008 | by Shepherd Smith Edwards & Kantas, LLP

US Senator Susan Collins (R-Maine) has introduced a new bill to regulate investment-bank holding companies, credit default swaps, and other financial instruments that state and federal regulators have yet to regulate. Collins says the bill, called the Financial Regulation Reform Act of 2008, seeks to restore public faith in the US financial system in the wake of current credit difficulties-problems that have led to plunging home prices, a decrease in consumer sales, an increase in foreclosure rates, and significant losses in retirement savings.

Collins says the new legislation will get rid of any gaps in the government’s oversight of the financial markets and develop more reforms of the financial regulatory system.

The Bill Proposes Three Main Reforms:

• Giving the Federal Reserve supervisory authority over investment-bank holding companies.
• Creating a national commission on financial regulation reform to evaluate, make recommendations, and implement changes to the current regulatory structure.
• Create transparency and oversight in the credit default swaps market by requiring that the Commodity Futures Trading Commission be notified about CDS contracts and mandating that parties make trades using a federally approved clearing house.

Credit Default Swaps
CDS are insurance-like contracts involving one party promising to cover losses on certain securities if a default occurs. Sold by hedge funds, banks, and other entities, they usually apply to mortgage securities, municipal bonds, and corporate debt.

Many CDS’s are represented as safe investments, when in fact, their risks often far outweigh their benefits. It was the unregulated credit default swaps market, a trillion-dollar-market, that reportedly led to the collapse of Lehman Brothers and AIG.

Sen Collins Introduces Legislation to Strengthen Financial Regulation and Oversight, Collins.Senate.gov, November 18, 2008
Credit Default Swaps: The Next Crisis?, Time, March 17, 2008 Continue Reading ›

Massachusetts Top Securities Regulator Charges Oppenheimer & Co with Unethical Conduct and Fraud

Published on: November 20, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Massachusetts Secretary of State William Galvin is charging Oppenheimer & Co. with unethical conduct and fraud. The state’s top securities regulator is accusing the investment bank of continuing to market and sell auction rate securities to clients even as Oppenheimer executives were getting rid of their own ARS holdings, worth $3 million, before the collapse.

Galvin says that Oppenheimer Chairman and Chief Executive Albert Lowenthal and other firm executives kept clients and other firm employees “in the dark” about the collapsing ARS market. His office is seeking to revoke Lowenthal’s broker-dealer registration in Massachusetts because he says that the CEO and other Oppenheimer executives “betrayed” their clients’ trust. This is the first time that a state regulator has charged one of the smaller brokers for its alleged involvement in the sale of auction-rate securities while the market was failing.

Galvin says that Oppenheimer clients in Massachusetts are unable to access some $56 million because their ARS investments have been frozen since February. Also named in Galvin’s complaint are ARS Managing Director Greg White and Senior Managing Director Robert Lowenthal.

Oppenheimer and its firm executives are denying Galvin’s allegations. On Tuesday, the investment bank issued a statement claiming that its employees had no knowledge of the kinds of actions that their larger firm counterparts engaged in that contributed to the ARS market collapse. The investment bank also maintains that its executives personally bought and sold ARS during the period noted in Galvin’s complaint, and they continue to hold a number of these securities.

Oppenheimer says it is working with financing sources and regulators to help investors cash out of their ARS.

Related Web Resources:

Massachusetts sues Oppenheimer & Co over ARS sales, Reuters, November 18, 2008
Galvin blasts Oppenheimer & Co. over auction-rate securities, Boston Herald, November 18, 2008

Related Web Resources:

View the Exhibits (PDF)

Oppenheimer & Co.
Continue Reading ›

NASAA Says Investors with Frozen Auction-Rate Securities Should Ask Investment Firms About Buyback Opportunities

Published on: November 19, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The North American Securities Administrators Association is reminding investors to ask the investment firms that sold them any now-frozen auction-rate securities about repurchase opportunities. Following the ARS market collapse, securities regulators in 12 US states joined together to form a multi-state Task Force dedicated to finding out whether Wall Street investment firms had misled investors when persuading them to invest in the ARS market.

As part of their settlement agreements reached with the firms in question, 11 major Wall Street investment banks have said they will buy back over $51 billion in ARS from charities, retail investors, and small companies. However, these repurchase offers may not be available indefinitely.

NASAA President Fred Joseph says the best way to avail of any redemption offers is to contact the investment firms as soon as possible. So far, 11 firms have agreed in principle to buy back over $50 billion in ARS. NASAA says additional repurchase opportunities are expected to become available in the coming months.

Investment Firms with ARS Hotlines:

Bank of America 1-866-638-4183 Deutsche Bank 1-866-926-1437 Citi 1-866-720-4802 JP Morgan 1-866-450-8470 Goldman Sachs 1-888-350-2857 Merrill Lynch 1-888-706-1381 UBS 1-800-253-1974 Morgan Stanley 1-800-566-2273 Wachovia 1-866-283-794
Meantime, more investigations are under way into the sales practices of US firms that marketed and sold auction-rate securities to investors. Unfortunately, many investors who were told ARS were liquid investments are now dealing with frozen securities and cannot access their funds.

If you invested in the auction-rate securities industry and your ARS became frozen during the market’s collapse, you may be the victim of securities fraud.

Related Web Resources:
Small firms caught in ARS buyback vise, November 16, 2008 Continue Reading ›

Citigroup Global Markets Ordered to Pay FINRA Fine for Inadequate Supervision

Published on: November 17, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority Inc. says it is fining Citigroup Global Markets Inc. $300,000 for its failure to reasonably supervise the commissions that clients were charged for stock and options trades. Citigroup Global Markets is Citigroup Inc’s brokerage and securities arm.

FINRA says that between April 2002 and January 2006, then-Citigroup representative Juan Carlos Hernandez charged 27 clients unreasonable commissions that substantially exceeded the firm’s calculated rate for appropriate charges. One client was reportedly overcharged about $1.2 million.

Citigroup let Hernandez go in February 2006 and one month later, without admitting to or denying FINRA charges, he consented to the findings made against him and was barred by FINRA.

FINRA contends that Hernandez was able to overcharge clients because Citigroup neglected to properly supervise him. FINRA also found that it wasn’t until October 2007 that Citigroup told its brokers about its calculated commission rates or that they weren’t allowed to charge commissions higher than these rates. In the cases when commissions were greater than Citigroup’s calculated rates, FINRA says the firm lacked the proper procedures and policies for determining whether a commission was inappropriate.

By agreeing to settle, Citigroup is consenting to FINRA’s findings but is not admitting or denying the charges. The firm offered to reimburse customers who were affected.

Former UBS Executive Director Must Forfeit $15.81 Million in Illegal Profits and Serve 6 1/2 Year Prison Term for Insider Trading

Published on: November 13, 2008 | by Shepherd Smith Edwards & Kantas, LLP

In the U.S. District Court for the Southern District of New York, former UBS Securities LLC Executive Director Mitchell Guttenberg was ordered to forfeit $15.81 million in alleged illegal profits, as well as serve 78 months in prison. Guttenberg is accused of taking part in an insider trading scheme that generated millions of dollars for its participants. Earlier this year, he pleaded guilty to six counts of securities fraud and conspiracy.

Guttenberg allegedly sold material nonpublic data provided by UBS stock analysts regarding upgrades and downgrades before the information became available to the public. Tips included ratings change information about numerous stocks, including Whole Foods Market Inc, Amgen Corp, Caterpillar Inc., and Union Pacific Corp.

Trader David Tavdy, hedge fund manager Erik Franklin, and others allegedly paid Guttenberg for the information, as well as a share of their profits. Tavdy and Franklin, who are codefendants in the insider trading scam case, are among those who then passed on the data to other individuals.

Hundreds of trades took place because of the nonpublic data provided by Guttenberg. The trades resulted in over $15 million in illegal profits for the former UBS executive director, while others made over $17.5 million.

Guttenberg and 12 other individuals, mostly former employees at Morgan Stanley, Bank of America Corp, and Bear Stearns Co., Inc., were criminally charged for their involvement in the insider trading ring. Investigators say the participants tried to conceal their illegal actions by conducting meetings at restaurants, using disposable cellular phones, and coming up with coded text messages. Continue Reading ›

District Court Confirms Merrill Lynch Arbitration Award in Investor Dispute

Published on: November 12, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Merrill Lynch, Pierce, Fenner & Smith, Inc. and a number of its workers have won an arbitration dispute filed by a couple that invested in a money market mutual fund. In U.S. District Court for the Southern District of New York, Judge George Daniels confirmed the award.

Konstantinos Karetsos and Greta Rothstein began their New York Stock Exchange arbitration in February 2006. The married couple accused Merrill Lynch and several of its employees of alleged deceit, fraud, conspiracy, deceptive practices, misrepresentation, obstruction of justice, material omissions, unauthorized transactions, unsuitable investments, gross negligence, breach of fiduciary duty, and account management related to their money market fund purchase.

Arbitration proceedings took place over a six-day period. On the 4th day, the arbitration panel dismissed claims against three Merrill Lynch employees with prejudice. At the end of the proceedings, more claims against Merrill Lynch and a fourth employee were dismissed with prejudice.

The arbitration panel also found that claims against one Merrill Lynch employee were obviously erroneous and that the couple had filed claims against another employee who did not take part in the “alleged investment-related sales practice violations.”

According to the district court, the opposition that was noted in the couple’s pro se pleadings appeared to be based on many of the arguments they made in arbitration. Judge Daniels also said that the couple’s “vague and conclusory” terms” impugned the arbitration panel’s “integrity and neutrality.”

Commenting on Merrill Lynch’s arbitration award, Securities Arbitration Attorney William Shepherd said, “Investors who do not hire a lawyer, or hire one without experience in securities arbitration, fare very poorly in claims against brokerage firms. While securities arbitration has less formalities than court cases, investors simply cannot alone understand how to properly present their claims to the arbitrators.”

Related Web Resources:

Rothstein et al v. Fung et al, Justia
Change in Arbitration Panels Will Allow Investors Only, NY Times, July 25, 2008 Continue Reading ›