April 28, 2011

SEC is Finalizing Its Whistleblower Rules, Says Chairman Schapiro

In an interview with AdviserOne, Securities and Exchange Commission chairman Mary Schapiro spoke about the agency’s new Whistleblower Office. The office was created per a Dodd-Frank mandate that entitles individuals who voluntarily give the Commission original information leading to an SEC enforcement action and other related actions a reward.

Schapiro says that the SEC is in the process of “finalizing” its whistleblower rules. She also noted that the agency’s newly acquired whistleblower authority is increasing the quantity of quality tips it is receiving, which should allow for better enforcement. The SEC receives thousands of tips annually.

Schapiro says that under a new Tips, Complaints, and Referral System, tips can all be placed in one database that will allow the information to be shared throughout the agency. She said that the previous inability to share information was a factor in the Madoff Ponzi scam that bilked investors of billions.

Prior to Dodd-Frank, the SEC could only award whistleblowers in insider trading cases. There was, however, a cap of 10% of the penaliteis collected in the action.

Whisteblower Awards
To be considered for an award, a whistleblower will have to provide information that results in successful enforcement action or an administrative one that leads to monetary sanctions of over $1 million. The whistleblower could receive 10-30% of the total sanctions collected. The amount awarded will depend on the type of help the whistleblower provided and the significance of the information given.

Also, the information from the whistleblower needs to either have led to a new investigation or examination, or if the alleged misconduct was already under investigation, then the whistleblower needs to have provided information that couldn’t have been obtained otherwise and was key to the action’s success.

Our securities fraud law firm represents victims of investment fraud and other financial scams.

Related Web Resources:
SEC's Mary Schapiro Talks About Whistleblower Office, 12b-1: Exclusive Interview, AdvisorOne, April 26, 2011

Potential whistleblowers have little to lose and millions to gain with the SEC's reward system, RiaBiz, April 14, 2011


More Blog Posts:
Ex-UBS Employee Can Proceed with Her Whistleblower Claim, Says District Court, Institutional Investor Securities Blog, February 15, 2011
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

Continue reading "SEC is Finalizing Its Whistleblower Rules, Says Chairman Schapiro" »

April 27, 2011

Texas Commodity Trading Advisor FIN FX LLC Now Subject to NFA Emergency Enforcement Action

The National Futures Association has taken an emergency enforcement action against FIN FX LLC (FINFX) and its principal Leon L. Wolmarans. FIN FX LLC is a Texas Commodity Trading Advisor.

According to NFA, FIN FX LLC and Wolmarans used misleading and false information to solicit customers. The advisor even allegedly published deceptive performance claims on its company Web side and not cooperating with the NFA during the latter’s examination of the financial firm.

NFA’s Executive Committee has issued an Associate Responsibility Action (ARA) and a Member Responsibility Action (MRA) against Wolmarans and FIN FX LLC. The two are also suspended from NFA membership and are not allowed to solicit or accept money from investors or customers or solicit investments from investment vehicles. They also cannot transfer or disburse funds from any commodities, securities, forex, or any other accounts without NFA approval first. The enforcement actions will stay in effect until FIN FX and its principal show that they are now in compliance with NFA requirements.

If you are someone who suffered financial losses because a financial adviser gave you misleading information, you may be the victim of investment adviser fraud. Our Texas securities fraud lawyers know how upsetting it can be to lose money after placing your trust in someone who should have been helping you make decisions that are in your best financial interests. Fortunately, there may be a way to recoup your losses.

Related Web Resources:
NFA takes emergency enforcement action against Texas CTA FIN FX LLC and its principal, ForexMagnates, April 26, 2011

National Futures Association


More Blog Posts:

Texas Securities Fraud: FINRA Suspends Pinnacle Partners Over Failure to Comply with Temporary Cease and Desist Order Involving “Boiler Room” Operation, Stockbroker Fraud Blog, April 19, 2011

Texas Securities Fraud Lawsuit Against MetroPCS Communications is Dismissed, Stockbroker Fraud Blog, April 11, 2011

Texas Securities Fraud: SEC Charges Talk Radio “MoneyMan” Over Promissory Note Offerings, Stockbroker Fraud Blog, April 4, 2011


Continue reading "Texas Commodity Trading Advisor FIN FX LLC Now Subject to NFA Emergency Enforcement Action" »

April 26, 2011

Ameriprise to Sell Securities America Even as it Finalizes Securities Settlement with Investors of Medical Capital Holdings and Provident Royalties Private Placements

In its first quarter earnings report, Ameriprise Financial (NYSE: AMP) says it intends to sell Securities America. The news comes while the financial firm is still in the process of finalizing its securities fraud settlement with investors accusing the brokerage unit of selling allegedly fraudulent private placements of Medical Capital Holdings and Provident Royalties.

Investors sustained about $400 million in losses after taking part in Medical Capital Holdings-sponsored debt sales and shale gas investments with Provident Royalties. Although originally Securities America had about $400 million in outstanding obligations, the proposed settlement is worth $150 million. The independent broker-dealer unit is accused of failing to do proper due diligence on millions of dollars in investments that it sold, which later proved to be worthless.

Investors who filed securities arbitration cases against Securities America will receive $70 million. Those who are seeking to get back their losses through a class action securities lawsuit will get $80 million. The financial firm could be facing over $300 million more in arbitration claims over the fraudulent placements.

There is speculation over why Ameriprise's decision to sell comes now. Does this mean that the financial firm has other issues of concern, beside the securities allegations, with Securities America? The sale may also mean that Ameriprise has decided to focus on its core business.

Per the earnings report, Securities America entered into the settlement agreements last month. This has resulted in a $118 million pre-tax charge for Ameriprise during 2011's first quarter, as well as the $40 million pretax charge it incurred during last year’s fourth quarter.

Related Web Resources:
Securities America Agrees To Settlement With Investors-Sources, The Wall Street Journal, April 13, 2011

Ameriprise profit up, selling Securities America, AP/Bloomberg Businessweek, April 25, 2011

Ameriprise profit up, selling Securities America, Bloomberg Business Week, April 25, 2011


More Blog Posts:
Texas Securities Fraud: Three FINRA Cases Against Securities America Over Sale of Private Placements Halted, Stockbroker Fraud Blog, February 22, 2011

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

Securities America & Ameriprise Financial Inc. Sued For Selling Allegedly Faulty Private Settlements, Stockbroker Fraud Blog, November 10, 2009


Continue reading "Ameriprise to Sell Securities America Even as it Finalizes Securities Settlement with Investors of Medical Capital Holdings and Provident Royalties Private Placements" »

April 24, 2011

Morgan Keegan Ordered by FINRA to Pay RMK Fund Investors $881,000

A Financial Industry Regulatory Authority arbitration panel is ordering Morgan Keegan to pay a group of investors $881,000 for losses they sustained in Morgan Keegan’s proprietary funds that were concentrated in high-risk subprime mortgage assets. Customers lost about $2 billion.

The Morgan Keegan funds that investors had placed their money in included the:
• RMK High Income Fund
• RMK Multi-Sector High Income Fund
• RMK Advantage Income Fund
• RMK Select Intermediate Bond Fund
• RMK Strategic Income Fund

The claimants alleged misrepresentations and omissions, unsuitable investments, breach of fiduciary duty, failure to supervise, negligence, vicarious liability, breach of contract, FINRA rule violations, and Securities and Exchange Act violations. The FINRA panel found Morgan Keegan liable to the claimants on a number of the claims and ordered the financial firm to pay the following in compensatory damages:

• $33,382 to Palmer and Kathy Albertine
• $105,844 to Jon Albright
• $254,642 to Susan and Sam Davis
• $458,625 to Kendall and Peter Tashie

FINRA also ordered Morgan Keegan to pay $26,850 for all of the forum fees for the arbitration against the financial firm, $28,500 for the Claimaints’ expert witness fee, and $600 for the portion of the filing fee that is non-refundable. Morgan Keegan is a Regions Financial Corporation subsidiary.


Related Web Resources:
FINRA Rules

Securities and Exchange Act of 1934, Cornell University Law School

More Blog Posts:
Morgan Keegan & Co. Inc. Must Pay $250K to Couple that Lost Investments in Hedge Fund with Ties to Bernard L. Madoff Investment Securities, Stockbroker Fraud Blog, March 16, 2011

Morgan Keegan to Pay $9.2M to Investors in Texas Securities Fraud Case Involving Risky Bond Funds, Stockbroker Fraud Blog, October 6, 2010

Morgan Keegan & Co., Inc., Morgan Asset Management, and Two Employees Face Subprime Mortgage Securities Fraud Charges by SEC, Stockbroker Fraud Blog, April 8, 2010


Continue reading "Morgan Keegan Ordered by FINRA to Pay RMK Fund Investors $881,000 " »

April 22, 2011

Citigroup Chair Says Bank's Crisis is Over

At the financial firm’s annual shareholder meeting, Citigroup chairman Richard D. Parsons says that even though there will be challenges this year, the investment bank is “clearly through the crisis.” Parsons statement reflects a significant shift for Citibank from last April when the financial firm made its first profit since the 2007 financial collapse and the government was still in possession of a large ownership stake. Citigroup, which received three government bailouts, has since paid back the Treasury Department and reported profits for five quarters in a row. Most recently, the investment bank has just reported a $3 billion profit.

The New York Times says that unlike in recent years when Citigroup shareholders that attended the annual meeting would complain about board members or former US Treasury Secretary Robert E. Rubin, this year, the shareholders that did show up primarily complained that Citi’s stock price would have to hit almost $600 for them to break even on shares.

The bank’s shares, which used to trade at over $50 each, now trade at under $5 dollars. After the reverse share split, share prices will rise to approximately $45. Each investor’s total, however, will go down by 90%.

Over 95% of shareholders had approved the stock split. At the meeting, Citi’s chief executive Vikram S. Pandit explained that while the share count was changing the value of ownership position was not. He also spoke of the benefits of drawing in institutional investors who couldn’t buy shares of companies that had stock that traded under $10. Pandit said there was potential for short-sellers to beat down the stock.

Related Web Resources:
Citi’s Annual Meeting Ceases to Be a Battleground, New York Times, April 21, 2011

Citi CEO tries to shed bank's "survivor" image, Reuters, April 21, 2011


More Blog Posts:

Citigroup Ordered by FINRA to Pay $54.1M to Two Investors Over Municipal Bond Fund Losses, Stockbroker Fraud Blog, April 13, 2011

Ex-Smith Barney Adviser Pleads Guilty to Securities Fraud In $3.25M Scam to Bilk Citibank and Firm Clients, Stockbroker Fraud Blog, December 13, 2010

Securities Fraud Lawsuit Against Citigroup Involving Mortgage-Related Risk Results in Mixed Ruling, Institutional Investor Securities Blog, November 30, 2010

Continue reading "Citigroup Chair Says Bank's Crisis is Over " »

April 21, 2011

Auction-Rate Securities Investigations by SEC and NY Attorney General Are Ongoing

The Securities and Exchange Commission and the New York Attorney General’s office are still investigating whether auction-rate securities market participants knew they were misleading investors about the complexity and liquidity of debt instruments leading up to the market collapse in 2008. Officials for both agencies told BNA about the ongoing probes last month.

It was these misrepresentations to investors that prompted the Financial Industry Regulatory Authority to issue a concept proposal that, should it become a rule, would hold research analysis and reports that analyze debt securities accountable to FINRA requirements. A federal regulator told BNA that the SRO is concerned about misrepresentations that may have been made to retail investors as early as in late 2007 when, even as institutional investors were buying less ARS—causing the market to lose liquidity—ARS sellers were being pushed by underwriters to get retail clients to buy the securities under the guise that the bonds were very liquid and like cash. Also, underwriters and others allegedly knew that the market conditions were headed toward illiquidity despite their claims that the instruments were highly liquid.

The New York Attorney General’s office reported that says that as of last month, financial institutions have agreed to repurchase $60 billion of the ARS. The financial firms have also agreed to pay about $597 million in fines. Among the investment banks that the SEC has reached settlement agreements with are Citigroup Inc. (C), Wachovia Securities LLC, Royal Bank of Canada subsidiary RBC Capital Markets Corp., UBS AG, Merrill Lynch & Co., TD Ameritrade Online Holding Corp. (AMTD, Bank of America Corp. (BAC), and Deutsche Bank AG.


Related Web Resources:
SEC, New York Continuing ARS Probes;
Retail ARS Risk Behind FINRA Proposal, BNA, March 23, 2011

Auction Rate Securities, SEC


More Blog Posts:
Class Auction-Rate Securities Lawsuit Against Raymond James Financial Survives Dismissal, Stockbroker Fraud Blog, September 27, 2010

Securities Fraud Lawsuit Against Calamos Investments Filed on Behalf of Calamos Convertible Opportunities and Income Fund Shareholders, Stockbroker Fraud Blog, September 17, 2010

Raymond James Must Pay $925,000 Over Auction-Rate Securities Dispute, Institutional Investor Securities Blog, September 1, 2010

Continue reading "Auction-Rate Securities Investigations by SEC and NY Attorney General Are Ongoing " »

April 20, 2011

Investments Advisers Told to Look at Recent SEC Enforcement Actions When Preparing for Exams

Securities and Exchange Commission’s Office of Compliance Inspections and Examinations deputy director Norm Champ says that when preparing to be examined, investment advisers should look at recent SEC enforcement actions stemming from problems found during previous exams at other advisers. Champ made this suggestion last month at an American Law Institute-American Bar Association-organized investment adviser conference in New York. Champ says that his views were his own and that he wasn’t speaking for the SEC.

Two cases that he cited as ideal examples were SEC v. Venetis and In re AXA Rosenberg Group LLC. Champ said that three AXA Rosenberg entities ended up paying over $240 million over SEC administrative proceedings because of a key computing error in the Venetis case, which involved a multi-million dollar fraud scam over the sale of bogus promissory notes. Although senior management discovered the mistake, they decided not to tell the SEC. The commission suspected there was a problem when its examiners were prohibited from entering certain rooms.

Champ is suggesting that before an exam, investment advisers should figure out their risk areas and review compliance and control procedures. He says that the SEC chooses which advisers to examine based on complaints, tips, referrals, prior exam history, third party data (including information from regulators), commission filing data, affiliated business activity, firm size, disciplinary history, pay arrangements, and time between exams. Exam teams study the investment adviser’s control environment, engage with senior management, pay attention to interactions within the financial firm, and look at conflicts of interest, valuations, portfolio management, advertising, trade allocations, and custody of assets.

Our stockbroker fraud attorneys are dedicated to helping investors recoup their financial losses caused by investment adviser fraud.

Related Web Resources:
Securities and Exchange Commission

Office of Compliance Inspections and Examinations


More Blog Posts:
AXA Rosenberg Entities Settle Securities Fraud Charges Over Computer Error Concealment for Over $240M, Stockbroker Fraud Blog, February 10, 2011
FINRA Will Customize Oversight to Investment Adviser Industry if Chosen as Its SRO, Stockbroker Fraud Blog, April 8, 2011

Custodial Firms Get Tougher About Registered Investment Adviser Compliance, Institutional Investor Securities Blog, December 28, 2010

Continue reading "Investments Advisers Told to Look at Recent SEC Enforcement Actions When Preparing for Exams" »

April 19, 2011

Texas Securities Fraud: FINRA Suspends Pinnacle Partners Over Failure to Comply with Temporary Cease and Desist Order Involving “Boiler Room” Operation

The Financial Industry Regulatory Authority says it is has suspended San Antonio adviser Pinnacle Partners Financial Corp. and its president, Brian K. Alfaro. Both are accused of not complying with a temporary cease and desist order that barred fraudulent misrepresentations.

FINRA issued the temporary order last January over Pinnacle and Alfaro’s alleged written and oral misrepresentations related to their offer and sale of oil and gas joint interests. In December, the SRO filed a complaint accusing Alfaro and Pinnacle of running a boiler room involving brokers who made thousands of calls each week to solicit investments in these ventures, which Alfaro either controlled or owned.

In its Texas securities fraud complaint, FINRA claims that Pinnacle raised over $100 million from over 100 investors and that Alfaro used some of that money for his personal expenses and unrelated business. Some of the funds that Alfaro allegedly misused came from customers that he convinced to let him move their money into fraudulent offerings. He is even accused of collecting over $500,00 in subscription costs for a well that was never drilled.

FINRA contends that Alfaro and Pinnacle grossly inflated natural gas prices, estimated gross returns and monthly cash flows, projected natural gas reserves, and purposely tried to mislead investors by giving them doctored maps that didn’t include dry, abandoned, or plugged wells and getting rid of unfavorable information in well operator reports.

Related Web Resources:
FINRA Suspends Pinnacle Partners and its President Brian Alfaro, FINRA, April 19, 2011

FINRA Suspends San Antonio Advisory Firm for Operating a “Boiler Room”, Financial Planning, April 19, 2011

Read the Cease and Desist Order (PDF)


More Blog Posts:
Texas Securities Fraud Lawsuit Against MetroPCS Communications is Dismissed, Stockbroker Fraud Blog, April 11, 2011

Texas Securities Fraud: SEC Charges Talk Radio “MoneyMan” Over Promissory Note Offerings, Stockbroker Fraud Blog, April 4, 2011

Motion to Dismiss SEC Lawsuit Accusing Dallas Billionaire Brothers of $500,000 Securities Fraud Denied, Stockbroker Fraud Blog, April 1, 2011

Continue reading "Texas Securities Fraud: FINRA Suspends Pinnacle Partners Over Failure to Comply with Temporary Cease and Desist Order Involving “Boiler Room” Operation" »

April 16, 2011

SEC Charges Subprime Auto-Loan Provide Inofin Inc. with Securities Fraud

The U.S. Securities and Exchange Commission has filed securities fraud charges against Inofin Inc. and three of its executives. The SEC contends that they diverted millions of investor funds’ for their personal use and misled investors. For example, the agency contends that Kevin Mann and Michael Cuomo used about third of the investors’ money to start several real-estate property developments and open four used car dealerships.

The agency claims that Mann, Cuomo, & Melissa George acted illegally when the raised $110 million from hundreds of investors in the District of Columbia and 25 states. They allegedly did this with unregistered notes that they told investors were going to be used only for funding subprime auto loans. Meantime, the subprime auto-loan provider’s clients were told that 9-15% returns could be expected because Inofin charged 20% interest rates on average to subprime borrowers.

Inofin is accused of misrepresenting its financial performance between 2006 and 2010, while its executives allegedly prepared and submitted false financial statements to the Massachusetts Division of Banks. SEC says that Inofin’s worsening financial state was caused by the company’s failure to disclose its business activities and because management decided to sell part of its auto loan portfolio at a considerable discount to deal with cash shortages. Meantime, Inofin and its key officers kept selling Inofit securities while allowing investors to keep believing that it was a profitable business and a solid investment.

The SEC has also charged two sales agents, Thomas K. (Kevin) Keough and David Affeldt, because they allegedly offered to sell company securities even though they were not SEC-registered broker-dealers. The agency says that between 2004 and 2009 the men were unjustly enriched by referral fees of over $500,000.

Related Web Resources:
SEC Charges Subprime Auto Loan Lender and Executives with Fraud, SEC, April 14, 2011

Mass. auto lender, executives charged with fraud, Businessweek/Bloomberg, April 14, 2011

Massachusetts Division of Banks


More Blog Posts:
FINRA Orders UBS Financial Services to Pay $8.25M for Misleading Investors About Security of Lehman Brothers Principal Protected Notes, Stockbroker Fraud Blog, April 15, 2011

Wells Fargo Settles SEC Securities Fraud Allegations Over Sale of Complex Mortgage-Backed Securities by Wachovia for $11.2M, Institutional Investor Securities Blog, April 7, 2011

Continue reading "SEC Charges Subprime Auto-Loan Provide Inofin Inc. with Securities Fraud" »

April 15, 2011

FINRA Orders UBS Financial Services to Pay $8.25M for Misleading Investors About Security of Lehman Brothers Principal Protected Notes

The Financial Industry Regulatory Authority is ordering UBS Financial Services to pay $8.25 million in restitution and a $2.5 million fine for misleading investors about Lehman Brothers principal protected notes (PPNs). The SRO says that the financial firm presented the investments in a way that caused clients to think that the notes came with 100% principal protection. Many brokers said that the notes, which were a hybrid financial product made up of currencies, bonds, stocks, commodities, and derivatives, were low-risk investments even though they knew (or should have known) that Lehman Brothers was in financial trouble. Also, investors did not know that the notes were only protected to the extent that Lehman Brothers was capable of paying. When Lehman Brothers filed for bankruptcy in September 2008, the PPNs became virtually worthless.

FINRA claims that UBS issued statements and made omissions that did not stress that the PPN’s were unsecured obligations of Lehman Brothers. The SRO is also questioning whether UBS fully understood the complexity of the notes and if this caused some of their mistakes when selling the financial product. FINRA says that not only did UBS lack the adequate supervisory system to overseee its financial advisers that were handling the Lehman notes, but also, the investment firm did not have appropriate suitability procedures to determine whether certain investors could handle the risks involved with the PPNs.

Numerous individual securities fraud arbitration claims and lawsuits have been submitted for investors over the Lehman Brothers structured notes. There was also a UBS class action complaint filed for all Lehman brothers PPN investors in 2008.

Our stockbroker fraud law firm want to remind you that filing your individual claim through FINRA arbitration increases your chances of recovering more than if you were a member of a securities class action case. If you sustained financial losses after investing in Lehman Brothers Principal Protected Notes, do not hesitate to contact Shepherd Smith Edward and Kantas, LLP and ask for your free case evaluation.

UBS Financial Services Fined $2.5M and Ordered to Pay $8.25M Over Lehman Brothers-Issued 100% Principal-Protection Notes, Institutional Investor Securities Blog , April 12, 2011

UBS to Pay $2.2M to CNA Financial Head for Lehman Brothers Structured Product Losses, Stockbroker Fraud Blog, January 4, 2011

Lehman Brothers Lawsuit Claims Its Bankruptcy Was In Part Due to JP Morgan Chase’s Seizure of $8.6 Billion in Cash Reserves, Stockbroker Fraud Blog, June 14, 2010


Continue reading "FINRA Orders UBS Financial Services to Pay $8.25M for Misleading Investors About Security of Lehman Brothers Principal Protected Notes" »

April 13, 2011

Citigroup Ordered by FINRA to Pay $54.1M to Two Investors Over Municipal Bond Fund Losses

In what is being called the largest award that a major Wall Street broker-dealer has been ordered to pay individual investors, the Financial Industry Regulatory Authority has ordered Citigroup to pay $54.1 million to investors Suzanne Barlyn and Randall Smith over investment losses they sustained on high risk municipal bond funds that lost 77% of their value during the financial crisis.

Richard Zinman, formerly of Citi’s Smith Barney unit, was the broker for Murdock, a venture capital investor, and Hosier, a retired patent lawyer. Zinman left Citi soon after the funds blew up. During the arbitration hearing, he testified on behalf of the two men, saying that Citi did not tell its brokers how risky and volatile the funds in fact were. Zinman now works for Credit Suisse Group.

Citigroup has been under fire for awhile now over its municipal bond funds. Geared towards wealthier clients, investments were a minimum of $500,000. The bond funds were supposed to deliver returns a few percentage points above that of municipal bonds by borrowing up to $7 for every $1 invested. The proceeds were placed in mortgage debt and municipal bonds. Unfortunately, the municipal bond funds' value dropped when the mortgage market started to fail. After Citi brokers complained, however, the financial firm offered share buybacks that lowered investor losses to approximately 61%.

As part of this case, Citi must pay $17 million in punitive damages, $3 million in legal fees, and $21,600 for the hearing free expense, which is normally divided between the parties involved. Prior to this award, the largest one Citi was ordered to pay against a bond-fund claimant was $6.4 million.

Related Web Resource:
Citigroup Loses Muni Case, The Wall Street Journal, April 13, 2011

Muni bonds hit by more selling on default fears, Los Angeles Times, January 12, 2011


More Blog Posts:
SEC to Examine Muni Bond Market Issues During Hearings in Texas and Other States, Stockbroker Fraud Blog, February 9, 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

Federal Judge to Approve Citigroup’s $75M Securities Settlement with SEC Over Bank’s Subprime Mortgage Debt Reporting to Investors, Institutional Investor Securities Blog, September 29, 2010


Continue reading "Citigroup Ordered by FINRA to Pay $54.1M to Two Investors Over Municipal Bond Fund Losses" »

April 11, 2011

Texas Securities Fraud Lawsuit Against MetroPCS Communications is Dismissed

A district court judge has dismissed the Texas securities fraud case against MetroPCS Communications Inc. (PCS). The telecom services provider is accused of putting out false or misleading statements about its 2009 earnings guidance, which was issued in November 2008 and reaffirmed for the duration of the class period.

The plaintiff also claimed that MetroPCS or its executives made misleading and false statements about the strength of the companies business model, the effect of competition on the cell phone provider, and the relationship between churn, which is the percentage of subscribers that stop using the company’s services during a given time frame, and subscriber growth, such as how the $49 handset promotion was likely to (and did) increase churn when it brought in customers who were likely to leave MetroPCS when the promotional period was over. When MetroPCS eventually lowered its guidance, its stock price dropped to $6.01/share, which was a lot lower than its $18.85 class period high.

In his ruling, Judge A. Joe Fish said that the lead plaintiff did not sufficiently allege scienter and the lawsuit did not plead fraud with the requisite specificity in regards to certain claims. He also said that certain challenged statements were either immaterial puffery or forward-looking statements protected under the Private Securities Litigation Reform Act's safe harbor.

In dismissing the case, the court said while the plaintiffs emphasized three allegations that allegedly support a solid inference of scienter, which their 1934 Securities Exchange Act claims require, these alone were not enough support. That said, the court noted that even if the allegations of scienter did suffice, it would have still dismissed the Texas securities fraud lawsuit. The court also noted that allegations regarding churn-related misrepresentations weren’t specific enough.

Related Web Resources:
Telecom Services Provider Wins Dismissal of Investor Securities Suit, BNA Daily Securities, March 31, 2011

Hopson v. MetroPCS Communications Inc.


More Blog Posts:
Texas Securities Fraud: SEC Charges Talk Radio “MoneyMan” Over Promissory Note Offerings, Stockbroker Fraud Blog, April 4, 2011

Motion to Dismiss SEC Lawsuit Accusing Dallas Billionaire Brothers of $500,000 Securities Fraud Denied, Stockbroker Fraud Blog, April 1, 2011

FBI Arrests Texas Leader of Pump-and-Dump Scheme, Stockbroker Fraud Blog, March 23, 2011

Continue reading "Texas Securities Fraud Lawsuit Against MetroPCS Communications is Dismissed" »

April 10, 2011

No Need for New SRO Overseeing Investment Advisers, Says NASAA Official to Congress

Florida's Office of Financial Regulation’s securities director Frank Widman says Congress should ignore calls for a new SRO to help the Securities and Exchange Commission oversee any investment advisers. Widmann spoke last month at the North American Securities Administrators Association's public policy conference in DC.

Widmann, who previously served as NASAA president said that rather than set up a new SRO for IA’s, Congress should concentrate on making sure that state regulators and the SEC are fully funded so they are able to do their job. Widmann says that unlike the SEC, the federal regulator, and state securities regulators, SROs aren’t sovereign. Widmann says that giving SROs too much independence has proven problematic in the past.

As our stockbroker fraud law firm reported previously, SEC staff recently put out a report recommending that Congress either set up at least one SRO to oversee investment advisers, impose user fees on industry members to support Office of Compliance Inspections and Examination’s probes, or appoint the Financial Industry Regulatory Authority as the SRO for investment advisers. FINRA is already the SRO for broker-dealers.

Also at the NASAA Conference was SEC Commissioner Luis Aguilar, who said that the federal regulator was in the process of putting into place a system to gather and examine data from money market funds. He says funding limitations at the SEC have impeded the system’s implementation. Aguilar called on the financial services industry to “re-dedicate itself to basic principles,” including those of meaningful disclosure, fair dealing, integrity, and good business practices.

Related Web Resources:
NASAA Official Says Congress Should Ignore Calls to Create New SRO, BNA Securities Law Daily, March 29, 2011


Speech by SEC Commissioner Luis Aguilar, SEC, March 28, 2011

North American Securities Administrators Association


More Blog Posts:
FINRA Will Customize Oversight to Investment Adviser Industry if Chosen as Its SRO, Stockbroker Fraud Blog, April 8, 2011

SEC Staff Wants an SRO to Oversee Investment Advisers, Stockbroker Fraud Blog, January 31, 2011

Continue reading "No Need for New SRO Overseeing Investment Advisers, Says NASAA Official to Congress " »

April 8, 2011

FINRA Will Customize Oversight to Investment Adviser Industry if Chosen as Its SRO

Financial Industry Regulatory Authority CEO and Chairman Richard Ketchum says that if the SRO is chosen to regulate investment advisers, it will tailor its oversight to that industry. At a compliance conference run by the Financial Market Association and the Securities Industry last month, Ketchum said that advisers’ concerns that FINRA would not comprehend the IA model are “simply wrong.”

FINRA oversees some 4,560 brokerage firms. Ketchum says that the SRO would set up a separate affiliate that would supervise investment advisers, who would not be subject to the same rules as broker-dealers. He stressed the needs for more examinations to discourage securities fraud and check on compliance as two of the reasons why FINRA should become the regulatory agency over investment advisers.

Per a Securities and Exchange Commission study mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, the agency’s Office of Compliance Inspections and Examinations only examines about 9% of the investment adviser industry each year. On average, an adviser is examined by the SEC once every 11 years. The study offered recommendations:

• The creation of a new SRO for investment advisers
• Giving FINRA jurisdiction over investment advisers
• Using user fees to fund the SEC’s exam program

Many investment advisers do not want FINRA to become their SRO and are pushing for lawmakers to increase SEC funding. Also opposing FINRA as the advisers’ SRO is the Investment Adviser Association, which alleges lack of accountability, transparency, and a bias toward the broker-dealer model.

Our investment fraud lawyers represent clients that have suffered financial losses because of investment adviser misconduct.


Related Web Resources:
FINRA: We Understand Investment Advisers, OnWallStreet, March 27, 2011

FINRA, if Empowered to Regulate Advisers, Will Tailor Oversight to Industry, Chair Says, BNA Broker/Dealer Compliance Report, March 30, 2011

FINRA


More Blog Posts:
SEC Needs to Keep a Closer Eye on FINRA, Says Report, Stockbroker Fraud Blog, March 15, 2011

SROs Immune from Broker-Dealer’s Lawsuit Over Bylaw Changes Related to Creation of FINRA, Says Appeals Court, Stockbroker Fraud Blog, March 7, 2011

FINRA Investigating Whether Broker-Dealers Providing Adequate Risk Controls to High-Frequency Traders, Stockbroker Fraud Blog, September 19, 2010

FINRA CEO Ketchum's Speech, FINRA, March 22, 2011

Continue reading "FINRA Will Customize Oversight to Investment Adviser Industry if Chosen as Its SRO" »

April 7, 2011

Dow Corning Corp.’s $165M Securities Fraud Lawsuit Against Merrill Lynch & Co. Can Proceed, Says District Court Judge

The U.S. District Court for the Southern District of New York’s Chief Judge Loretta A. Preska says that Dow Corning Corp. can sue Merrill Lynch & Co. for securities fraud. Dow Corning is claiming $165 million in auction-rate securities losses. Dow Corning says that it still has not been able to sell its ARS. The company and two affiliates, its Devonshire Underwriters unit and Hemlock Semiconductor Corp., had filed their complaint against the Bank of America-owned Merrill for falsely misrepresenting the ARS, for which Merrill acted as managing broker and underwriter.

Preska denied Merrill’s motion to dismiss the complaint, noting that this securities fraud lawsuit is different from other ARS lawsuits, in which motions to the defendants' motions to dismiss were granted. Unlike other ARS cases, Dow Corning is challenging certain omissions and statements that Merrill allegedly made to reassure the company that the investments were safe even while knowing the ARS market was failing. The court says that for purposes of its ruling, it is taking the allegations to be true.

Dow Corning says Merrill’s actions violated the Michigan Uniform Securities Act, the 1934 Securities Exchange Act’s Section 10(b), and breached a number of common law duties. The contends that Merrill knew as far back as early 2007 that trouble was brewing with the ARS market yet the broker allegedly stepped up efforts to sell ARS to investors. Even though Dow Corning asked questions about possible issues with the market, the broker is accused of not revealing the information it had and, instead, making reassuring statements that were actually misleading misstatements. The court says Merrill was obligated to “speak truthfully.”

Related Web Resources:
Merrill Loses Bid to Throw Out Dow Corning Auction-Rate Lawsuit, Bloomberg, March 30, 2011

Dow Corning Suit Against Merrill Lynch Over ARS Losses Survives Motion to Dismiss, BNA Securities, April 4, 2011


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Continue reading "Dow Corning Corp.’s $165M Securities Fraud Lawsuit Against Merrill Lynch & Co. Can Proceed, Says District Court Judge" »

April 4, 2011

Texas Securities Fraud: SEC Charges Talk Radio “MoneyMan” Over Promissory Note Offerings

The Securities and Exchange Commission has charged Daniel Frishberg, a Houston businessman and the host of Business Radio Network’s “The MoneyMan” show, with fraudulent conduct related to promissory note offerings that his investment advisory firm made to clients. Frishberg, who founded BizRadio and heads up Daniel Frishberg Financial Services (DFFS), has agreed to settle the Texas securities fraud charges with a $65,000 penalty. By settling, Frishberg is not denying or admitting to the alleged wrongdings. He has, however, agreed to an entry of permanent injunction and consented to a bar from associating with certain registered entities, including other investment advisers.

DFFS allegedly advised clients to invest in notes that BizRadio had issued. Some $11 million promissory notes were put out. The offering reportedly generated approximately $5.5 million between April 2008 and September 2009.

According to the SEC, Frishberg did not tell clients that his media company was in poor financial health or that the note offerings helped pay his salary at BizRadio. Instead, he allegedly approved high risk recommendations without properly disclosing the conflicts and risks. Frishberg also “personally benefited” from these investments.

Also offering the notes was Kaleta Capital Management, whose owner, Albert Fase Kaleta, jointly controls BizRadio with Frishberg. In 2009, Kaleta and his financial firm were charged with securities fraud. Frishberg is accused of knowing that prior complaints had been made about Kaleta and his handling of sales representations related to other investments yet still opting to have him recommend the promissory notes.

The SEC contends that Frishberg has violated the Investment Advisers Act of 1940’s Section 206(2). He also allegedly abetted and aided violations of Sections 206(1) and 206(2) of the Advisers Act.

Related Web Resources:
SEC Charges Houston-Area Businessman and Talk Radio "MoneyMan" for Fraudulent Conduct at Advisory Firm, SEC, March 25, 2011

SEC charges radio personality with fraud, Investment News, April 5, 2011

The Money Man Report

Investment Advisers Act


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Continue reading "Texas Securities Fraud: SEC Charges Talk Radio “MoneyMan” Over Promissory Note Offerings" »

April 1, 2011

Motion to Dismiss SEC Lawsuit Accusing Dallas Billionaire Brothers of $500,000 Securities Fraud Denied

A district court has denied Charles and Samuel and Wyly’s motion to dismiss the SEC lawsuit accusing them of insider trading and running a 13-year securities fraud that generated $550 million in undisclosed gains. U.S. District Judge Shira Scheindlin says that the SEC did an adequate job of alleging the Texas billionaire brothers’ liability for fraud. She also said the federal agency adequately pled the concealment of sales in Michaels Stores Inc, Sterling Software, Scottish Annuity & Life Holdings Ltd., and Sterling Commerce Inc.

Last year, the SEC accused the brothers of setting up sham offshore trusts in the Cayman Islands and the Isle of Man to hide 13 years of stock sales, valued at over $750 million, in four companies that they founded.

The allegations were made following a six-year investigation. The SEC contends that with their improper gains, the brothers were able to acquire almost $100 million of real estate, purchase tens of millions of dollars in jewelry, art, and collectibles, and donate a great deal of money to charity. The agency also claims that the brothers either knew or were reckless if they didn’t know what their legal obligations were as public company owners directors and beneficial owners who owned more than 5%. Under the law, such persons have to report trading and holdings in their companies securities on Form 4 and Schedule 13D to the SEC. The SEC says that the brothers either knew or should have known that such disclosures are used by the investing public to get a sense of how a public company’s shareholders and insiders feel about prospects and financial conditions and that they depend on these disclosures to make investment decisions.

Judge Scheindlin also said that the SEC can pursue a claim accusing Dallas-based brothers of making $31.7 million from the alleged insider trading that they engaged in after they decided to sell Sterling Software in 1999.

Related Web Resources:
Billionaire Wyly Brothers Lose an Effort to Dismiss Insider-Trading Charges, NY Times, April 1, 2011

Wyly brothers lose bid to dismiss SEC fraud suit, Reuters, March 31, 2011

SEC Charges Corporate Insider Brothers With Fraud, SEC, July 29, 2010

Billionaire Brothers Samuel and Charles Wyly Charged With $550 Million Fraud, Daily Finance, July 30, 2010


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Continue reading "Motion to Dismiss SEC Lawsuit Accusing Dallas Billionaire Brothers of $500,000 Securities Fraud Denied" »