July 29, 2010

Wall Street Whistleblowers May Be Eligible to Collect 10 – 30% of Money that The Government Recovers

Under the Dodd-Frank Wall Street reform law, Wall Street insiders who become whistleblowers may be eligible to receive 10 – 30% of the money that the government gets back. According to National Whistleblowers Center executive director Stephen Kohn, the prospect of collecting millions could provide potential tipsters with the incentive to act, while saving investors billions.

Under the new law, whistleblowers that provide the Commodity Futures Trading Commission or the Securities and Exchange Commission with “original information” will be allowed to stay anonymous. A securities attorney will then act as an intermediary between the whistleblower and the government. This helps maintain the tipster’s anonymity while allowing the securities fraud allegations to be made.

Already, the SEC has been taking more aggressive measures to award whistleblowers. Just last week, the SEC awarded $1 million to Karen and Glen Kaiser—the largest amount that the SEC has paid for insider information (this was administered under an earlier authority)—after they gave the agency key documents and information for its insider trading case against Pequot Capital.

Karen used to be married to former Microsoft employee David Zilkha. According to the SEC, in 2001, Zilkha tipped Pequot about an upcoming earnings report form his then-employer. Pequot Capital Management Chief Executive Arthur Samberg is accused of trading on the insider information and illegally making $14.8 million. Samberg eventually agreed to settle the SEC’s insider trading allegations against him for $28 million.

Under the Dodd-Frank provisions, whistleblowers that provide key information regarding securities fraud, insider trading, and commodities fraud cases are likely to get a lot more than $1 million.

Related Web Resources:
Connecticut couple gets $1 million SEC award for Pequot, Reuters, July 23, 2010

New Wave of Whistleblowers Could Become Millionaires, CNBC, July 26, 2010

SEC Charges Pequot Capital Management and CEO Arthur Samberg With Insider Trading, SEC, May 27, 2010

Dodd-Frank Wall Street reform law, Open Congress'

SEC

Commodity Futures Trading Commission

Continue reading "Wall Street Whistleblowers May Be Eligible to Collect 10 – 30% of Money that The Government Recovers" »

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July 28, 2010

Raymond James Ordered to Buy Back $2.5M in ARS by FINRA

A Financial Industry Regulatory Authority arbitration panel is ordering Raymond James & Associates Inc. and Raymond James Financial Services Inc. to buy back $2.5M in auction-rate securities from an investor. Greg Merdinger has accused Raymond James Financial Inc. of failing to warn him about the risks associated with ARS. In 2009, he filed a claim accusing the broker-dealer of breach of both contract and fiduciary duty.

Merdinger claims that from October 2006 to February 2008, Raymond James & Associates Inc. recommended that he purchase the securities while claiming that they were more liquid than money market funds, which Merdinger wanted to invest in until he was persuaded otherwise. He contends that Raymond James never told him that the ARS could become illiquid and that even into February 2008, when the market froze, Raymond James continued to advise him to buy the securities. One more purchase was even made.

Raymond James Financial’s General Counsel, Paul Matecki, has been quick to note that the broker-dealer has provided evidence that it did not know that the ARS market was at risk of failing before February 2008 when it did collapse. He also claims that there is no evidence indicating that any of its employees knew that the securities would fail.

However, Merdinger’s securities lawyer says there are copies of emails showing that Raymond James Financial managers knew the ARS market was experiencing difficulties way before it collapsed. Early last year, Raymond James chief executive and chairman issued a letter, filed with the Securities and Exchange Commission, apologizing to clients for the role the investment bank played in their ARS buys.

In addition to the $2.5M ARS repurchase, Merdinger has been awarded 5% interest on the amount until Raymond James buys back the securities. He is also to receive an additional $86,000.

Related Web Resources:
Raymond James faces $2.5 million payback ruling, BizJournals, July 27, 2010

Raymond James Ordered To Buy Back $2.5M in Auction-Rates, WSJ, July 26, 2010

Tom James apologizes for auction rate security purchases, BizJournals, January 5, 20009

Continue reading "Raymond James Ordered to Buy Back $2.5M in ARS by FINRA" »

July 23, 2010

Motion for Class Certification in Lawsuit Against J.P. Morgan Securities Inc. Over Alleged Market Manipulation Scam Granted in Part by Court

A district court has granted in part the motion for class certification in the securities fraud lawsuit against J.P. Morgan Clearing Corp. and J.P. Morgan Securities Inc. involving an alleged investment scam with Sterling Foster & Co. The alleged scheme involves the manipulation of the the market for ML Direct Inc. securities during and after an IPO. The JPM entities are named in their capacity as Bear Stearns & Co. Inc. and Bear Stearns Securities Corp. successors.

The court says that one day after the IPO’s start, ML Direct stock’s price more than doubled because Sterling Foster had bought most of it. The firm then sold over 3.375 million ML Direct at about $14 to $15 a share. Because only 1.1 million shares in the IPO were for sale, the court says that Sterling Foster sold 2.3 million more shares than it owned. The other available ML Direct shares were held by insiders, who had a lock-up agreement barring them from selling their shares within the first year of the IPO unless they obtained underwriter Patterson Travis Inc.’s consent.

Sterling Foster and the insiders allegedly became involved in an undisclosed agreement that allowed the brokerage firm to buy the insiders' stock at the $3.25/share offering. Sterling Foster then bought their securities, which were delivered to Bear Stearns. The court says that as a result, the brokerage firm made a $24 million profit.

The plaintiffs are saying that the offering documents misled the investing public into thinking that significantly less ML Direct shares were being offered and that the market had set the $13 to $15/share price when Sterling Foster had artificially created it and then bought shares from insiders at the lower share price. The plaintiffs claim that Bear Stearns, as Sterling Foster’s clearing house, knowingly took part in the investment scam.

The plaintiffs moved to certify a class so they could pursue their Section 10(b) and Section 20(a) claims. The court granted the motion as to the Section 10(b) antifraud claims but denied the latter, which involves claims for control person liability.


Related Web Resource:
Levitt v. JP Morgan Securities Inc, Law.com

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July 20, 2010

Securities Class Action Against Morgan Stanley by Xerox and Kodak Retirees Dismissed by Appeals Court

The U.S. Second Circuit Court of Appeals in New York has upheld a lower court’s ruling to dismiss that the securities class action filed by Eastman Kodak Co. and Xerox Corp. against Morgan Stanley. The plaintiffs, retirees from both companies, are accusing the broker-dealer of advising them that if they retired early their investments would be enough to support them during retirement. They also claim that the investment bank persuaded them to open accounts that cost them the bulk of their wealth. According to the plaintiffs’ attorney, the retirees gave up job security and employment rights after they were told that if they retired early they could avail of a 10% withdrawal rate from their individual retirement accounts.

However, upon retiring, the retirees that invested lump-sum retirement benefits with Morgan Stanley experienced “disastrous” value declines. Also, they had invested with two Morgan Stanley broker, Michael Kazacos and David Isabella, that were later barred from the securities industry. Last year the broker-dealer settled FINRA charges over the two men’s activities by paying over $7.2 million.

The appeals court says that because of the 1998 Securities Litigation Uniform Standards Act, the plaintiffs are precluded from pursuing class state law claims, including misrepresentation claims. While the statute lets plaintiffs file lawsuits in state court to get around 1995 Private Securities Litigation Reform Act’s securities fraud pleading requirements, federal preemption of class actions claiming “misrepresentations in connection with the purchase or sale of a covered security” are allowed. The three-judge panel also said that because the retirees waited too long to file their securities fraud lawsuit, they cannot raise other federal securities law claims.

Related Web Resources:
Xerox, Kodak retirees lose Morgan Stanley appeal, Reuters, June 29, 2010

Morgan Stanley to Pay More than $7 Million to Resolve FINRA Charges Relating to Misconduct in Early Retirement Investment Promotion, FINRA, March 25, 2009

1998 Securities Litigation Uniform Standards Act, The Library of Congress

Continue reading "Securities Class Action Against Morgan Stanley by Xerox and Kodak Retirees Dismissed by Appeals Court " »

July 15, 2010

SEC Settles Wrongful Termination Lawsuit with Whistleblower Gary Aguirre for $755,000

The US Securities and Exchange Commission and former SEC attorney Gary Aguirre have settled his wrongful termination lawsuit for $755,000. Aguirre has contended that he was fired in 2005 after accusing his supervisors of mishandling an insider trading probe against hedge fund Pequot Capital Management and trying, without success, to interview John Mack, Morgan Stanley’s then chief executive officer, as part of the probe.

Aguirre claimed that the SEC tried to overlook signs that Pequot had used insider information to trade in Microsoft shares. He also accused the agency of not wanting to interview Mack because of his “political” influence. The SEC had accused Aguirre of insubordination and fired him.

His allegations, however, led to the SEC’s inspector general conducting two internal probes that eventually found that the SEC not only botched its probe of Pequot, but also that it improperly terminated Aguirre from his job. The agency was even accused of strategizing to discredit Aguirre. As for the Pequot investigation, last month the hedge fund and its chief executive Arthur Samberg agreed to settle the SEC’s insider trading case for $28 million.

A Merit Systems Protection Board administrative law judge has finalized the wrongful termination settlement and says it is possibly the largest “of its kind.” Government Accountability Project Legal Director Tom Devine has said that “[u]nfortunately, this large settlement is the exception that proves the rule.” He is calling on Congress to offer “real protections” for regulatory employees. In the meantime, he contends that the existing law will continue to allow “government regulators to turn a blind eye.”

Related Web Resources:
SEC settles with Gary Aguirre over firing during Pequot Capital Management probe, Washington Post, June 29, 2010

SEC Agrees to Pay Aguirre $755,000 Over His Firing, Bloomberg Businessweek, July 15, 2010

Pequot to pay $28 million to settle insider trading case, Reuters, May 27, 2010

Continue reading "SEC Settles Wrongful Termination Lawsuit with Whistleblower Gary Aguirre for $755,000" »

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July 14, 2010

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

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

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

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

Related Web Resources:
Goldman Sachs Shorted 1% of its Mortgage Bonds, CDOs, Cohn Says, Business Week, June 30, 2010

Goldman's Cohn: Firm Didn't Drive Down Mortgage-Asset Marks, Bloomberg.com, June 30, 2010

Financial Crisis Inquiry Commission

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

July 12, 2010

Morgan Stanley Settles Massachusetts Lending Case for $102 Million

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

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

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

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


Related Web Resources:
Morgan Stanley Settles Massachusetts Subprime Loan Probe, ABC News, June 24, 2010

Morgan Stanley to Pay $102 Million in Subprime Accord, Bloomberg Businessweek, June 24, 2010

Massachusetts Attorney General Martha Coakley

Continue reading "Morgan Stanley Settles Massachusetts Lending Case for $102 Million" »

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July 9, 2010

Refusal to Grant Prevailing Party of Securities Fraud Case Attorneys’ Fees and Costs is Affirmed by Appeals Court

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

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

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

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

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


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

Private Securities Litigation Reform Act

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July 8, 2010

France and Germany Press EU to Ban Naked Short Selling of Stocks and Limit Credit Default Swaps

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

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

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

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


Related Web Resources:
Merkel And Sarkozy Want EU To Ban High-Risk Trading, World News, June 11, 2010

EU leaders ask for short selling, CDS rules, Business Week, June 17, 2010

European Commission

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July 6, 2010

Court Orders Southridge Partners Limited Partnership Dispute to Arbitration

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

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

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

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

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

Delaware Revised Uniform Limited Partnership Act

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July 1, 2010

Texas Securities Fraud Alleged in SEC Lawsuit Against Former Advanced Materials Group Inc. CFO

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

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

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

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

Related Web Resources:
SEC sues ex-president of Garland-based Advanced Materials Group, Dallas News, June 10, 2010

SEC Charges Former Advanced Materials Group, Inc. CFO with Securities Fraud and Misappropriation of Hundreds of Thousands of Dollars, SEC.gov, June 9, 2010

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June 28, 2010

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

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

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

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

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

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

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

Related Web Resources:
Cases against Wall Street lag despite Holder's vows to target financial fraud, Washington Post, June 18, 2010

Mortgage Scams Targeted in Sweep, The Wall Street Journal, June 18, 2010

CEO of mortgage giant, Lee Bentley Farkas, indicted in $1.9B massive fraud scheme, NY Daily News, June 16, 2010

Financial Fraud Enforcement Task Force

Eric H. Holder, US Department of Justice

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