Investor Lawyers Blog

SEC Issues “ComplianceAlert Letter” Citing Common Weaknesses and Deficiencies of Registered Firms

Published on: July 29, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has issued a staff letter reporting on the “common weaknesses and deficiencies” shared by SEC-registered companies. The findings were based on examinations given to the firms.

The “ComplianceAlert Letter” is intended to provide key information, encourage compliance officer to address these issues, and foster “robust compliance” within the industry. The letter, the second one sent in as many years by the SEC, is sectioned into distinct areas focusing on broker-dealers, investment advisers/mutual funds, and transfer agents.

Among the deficiencies:

• Failure to comply with procedures and polices
• Questionable personal trading practices
• Proxy service provider issues • Proxy voting • Valuation and liquidity issues • “Free lunch” seminars
Examiners recently finished a review of a number of big broker-dealers to evaluate their “valuation and collateral management practices” and how these impact subprime mortgage-related products. The SEC examiners noted that it had become increasingly difficult for firms to confirm inventory valuations because of insufficient market liquidity.

Issues of concern included:

• Inadequate staff and supervisory procedures • Insufficient documentation standards
• Pricing inconsistencies
• Lack of margin call processes
The agency also expressed concern that transfer agents may be engaged in a conflict of interest because they receive a partial search fee related to the search process for “lost” security holders and using third-party search companies.

Related Web Resources:

Read the SEC ComplianceAlert, July 2008
SEC Compliance Alert Warns Investment Advisers on Ethics, Hedgeco.net Continue Reading ›

Auction-Rate Securities Crisis Impacts Hospital Industry

Published on: July 28, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Hospitals across the US are experiencing the downside of depending on auction-rate securities to raise capital at a low rate. With the collapse of the auction-rate securities market, the interest rates that hospitals had to pay for capital increased from 2-3% to 9-15%.

While many hospitals tried to obtain letters of credit to refinance their debt, costs for these letters of credit also increased-even doubling in many instances-and fixed-rate loan expenses also grew. In the meantime, credit rating agencies downgraded bond insurers and banks.

One area in which hospitals may have to make cuts to help them get through the financial squeeze is in the areas of expansion and new construction. Investment income has suffered because of the market’s collapse, and many hospitals have had to decrease their bottom line.

While certain publicly traded hospitals systems, such as Universal Health Services and Tenet Healthcare, are able to access equity markets when they need to raise funds, this source of money has also been severely hampered by problems affecting the stock market.

This is the ‘flip side’ of the auction-rate securities debacle: Many issuers were persuaded to issue auction-rate securities and are now forced to pay higher rates on these securities than they would be paying if traditional bonds had instead been issued. If these issuers now attempt to refinance this debt they must do so at a rate much higher than when the auction-rate securities were issued. Furthermore, many of these issuers, including hospitals and municipalities, are being forced to pay Wall Street firms repeatedly for auctions they know will fail. Our law firm is currently reviewing the legal position of such issuers. Continue Reading ›

Judge Approves Citigroup Falcon Fund Investors’ Decision to Withdraw Lawsuit

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

In New York, a judge has approved the decision by investors of a Citigroup Falcon Fund to drop their lawsuit asking for more data about how the bank plans to liquidate the fund.

On February 22, Citigroup announced it was providing the Falcon Funds a $500 million line of credit and consolidating $10 billion in liabilities and assets.
Citigroup began suspending distributions and redeptions and started closing down the fund in March. The fund’s value dropped by 80% and Citigroup offered to pay investors 45 cents for every dollar.

The investors had been asked to tender shares of Falcon Strategies Two LLC, but they wanted corrections made to the offering memo because misleading and missing information made it impossible for them to value their stakes. U.S. District Judge Sidney Stein, who this week approved the withdrawal of the investors’ class action suit, rejected their motion to push forward the lawsuit about the tender offer. He said the plaintiffs were trying to turn the securities laws’ anti-fraud provisions into provisions of broad disclosure.

The Falcon Funds mainly invested in fixed-income securities and other debt instruments, and they may have been exposed to weaknesses in the mortgage, credit, and bond markets. Citigroup brokers are accused of recommending the funds to investors looking for conservative investments when, in fact, the funds may have been accompanied by a high level of risk.

Related Web Resources:

The Law Firm of Shepherd Smith Edwards & Kantas LTD LLP Investigates Losses in Falcon Hedge Funds, Primenewswire.com, July 2, 2008
Citigroup Alternative Investments LLC : Falcon Strategies Two B LLC Hedge Fund, Stanford Law School Continue Reading ›

New York Attorney General Files Securities Fraud Lawsuit Against UBS

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

New York State Attorney General Andrew Cuomo filed a securities fraud lawsuit today against UBS AG related to what he is alleging was the firm’s fraudulent promotion of auction-rate securities as safe investments. He is reportedly seeking to make UBS offer to purchase back at face value approximately $25 billion in ARS instruments held by UBS clients in New York and across the United States.

Sources report that UBS is not the only entity that Cuomo may file charges against in the wake of his office’s investigation of auction-rate securities debacle. Thousands of investors have complained that they were told that the securities were like cash and would yield a little higher than a money market account.

Cuomo’s probe has focused on whether UBS and other investment firms notified investors of the risks involved with investing in auction-rate securities. He began his investigation in April when he subpoenaed 18 institutions. Since then, Cuomo has sent subpoenas to 100 individuals and 30 entities, including JP Morgan Chase & Co, Citigroup Inc., Goldman Sachs Group, Inc., and Merrill Lynch and Co.

SEC Subpoenas Over 50 Hedge Fund Advisors in Probe of Whether Stock Price Manipulation Affected Bear Stearns and Lehman Brothers Shares

Published on: July 21, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has subpoenaed over 50 hedge fund advisors, including SAC Capital Advisors, Goldman Sachs Group Inc., and Citadel Investment Group, as part of its probe into whether rumors affected the shares of Bear Stearns and Lehman Brothers.

The SEC is looking for information related to options trading and short-selling involving the two investment firms. The subpoenas are part of a wider investigation about trades in bank securities and the communications between the hedge funds and others. The SEC has reassured the parties being subpoenaed that they are not necessarily direct targets of the probe.

Last week, regulators announced that they are investigating whether certain managers had spread rumors to cause share prices to drop. Investigators are also trying to figure out whether correct policies and training procedures had been put in place to detect market manipulation.

Securities Regulators Arrive At Wachovia Securities Headquarters to Conduct Auction-Rate Securities Investigation

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

In St. Louis, Missouri, 10 securities regulators probing the auction-rate securities crisis arrived at Wachovia Securities today. The firm has reportedly failed to fully comply with requests related to the investigation, which is what prompted the onsite visit.

The investigators, from Missouri, Massachusetts, New Jersey, Illinois, Pennsylvania, and other US states, arrived to conduct interviews and demand documents regarding Wachovia’s marketing and sales practices.

The Missouri Securities Division investigation into Wachovia Securities began last April, and the office of Missouri Secretary of State Robert Carnahan has subpoenaed over a dozen Wachovia Securities executives and agents in search of more information related to the company’s auction-rate securities business. Carnahan says that hundreds of Missouri investors have contacted her office frustrated that they cannot access their money.

Scottrade Agrees to $950,000 Civil Penalty To Resolve SEC Charges of Fraudulent Misrepresentation Regarding Nasdaq Pre-Open Order Executions

Published on: July 16, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Scottrade Inc. agreed to pay a $950,000 civil penalty to settle Securities and Exchange Commission charges that it made fraudulent misrepresentations to clients related to the execution of Nasdaq pre-open orders. The brokerage firm is not admitting to or denying wrongdoing by settling the charges. Scottrade is, however, agreeing to cease and desist from committing future violations.

Pre-open orders are normally placed after the market closes for execution when the market opens next. The SEC alleges that Scottrade made fraudulent misrepresentations when Scottrade told customers it would direct their orders based on a number of factors, including liquidity at market opening.

The SEC says that when a broker-dealer accepts customer orders, the firm is impliedly representing that it will make sure to review the quality of execution on orders. SEC Enforcement Director Linda Thomsen says that Scottrade not only failed to regularly and properly review the execution process but it neglected to consider the way technological advances were impacting the orders.

Senators’ Bill Calls for Added $50,000 Fine For Defrauding Elderly Investors

Published on: July 15, 2008 | by Shepherd Smith Edwards & Kantas, LLP

US Senators Herbert Kohl (Wisc) and Robert Casey (Pa) have introduced the Senior Investor Protections Enhancement Act, a bill that would add a $50,000 fine to any penalties that came with defrauding investors over 62 years of age. The legislation defines a senior as anyone 62 years of age or older. This is the age group that the majority of retirement savings can now be accessed for investments.

The two men emphasized that while seniors over 65 control about $15 trillion, over 50% of complaints made to state securities regulators come from this age group.

The bill proposes the additional penalty for every securities law violation that directly targets or is committed against a senior investor. However, it won’t intervene with situations involving legitimate investment advisors that make appropriate investment recommendations to their elderly clients.

Deutsche Bank Securities Unit Must Defend Itself Against Xethanol Corp. Lawsuit Related to Auction-Rate Securities Losses

Published on: July 9, 2008 | by Shepherd Smith Edwards & Kantas, LLP

This week, U.S. District Judge Alvin K. Hellerstein announced that the securities arm of Deutsche Bank AG will have to defend itself against a lawsuit alleging that it lost almost $1.6 million in auction-rate securities.

Xethanol Corp., which filed the securities lawsuit, alleges that Deutsche Bank Securities let the alternative-energy company buy the securities even though it didn’t fulfill the requirements for the transaction to take place as a private investment. Xethanol says it ended up selling its positions in two auction-rate securities at a $1.59 million loss last September. The company claims it acquired the positions for $13.3 million last June.

However, Deutsche Bank Securities says it never interacted directly with Xethanol. A third-party broker bought the securities from Deutsche Bank before selling them to Xethanol. The broker is not named as a defendant in the case.

Ex-Broker Files Whistle-Blower Complaint Against UBS Financial Services

Published on: July 7, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Timothy P. Flynn, an ex-UBS broker, has filed a whistle-blower complaint. Flynn alleges that UBS Financial Services forced him to resign as part of the firm’s retaliation because he cooperated with regulators. Flynn, who sold $30 million in auction-rate securities to the Massachusetts municipalities, testified earlier this year at the request of Massachusetts Attorney General Martha Coakley. who was investigating the sale of auction-rate securities to Massachusetts municipalities.

Flynn told investigators that UBS had told its brokers that the auction-rate securities were safe alternatives to cash. Flynn claims that UBS shut him out of his office and work e-mail files soon after he gave testimony and he was told to resign or face termination.

In his lawsuit, Flynn alleges that UBS knew the market could be on the brink of collapse but kept telling brokers to inform customers that the securities were safe investments. He filed his whistle-blower complaint with the Occupational Safety and Health Administration in New York. The former broker’s lawyer says his client filed the complaint to preserve his reputation and enforce his rights.