Auction-Rate Securities

Two Former Credit Suisse Brokers Charged With Fraud and Conspiracy Related to Auction-Rate Securities Scam

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

The Securities and Exchange Commission and the US Attorney’s Office in Brooklyn are charging Eric Butler and Julian Tzolov, two ex-Credit Suisse brokers, with coming up with an auction-rate securities scam to mislead customers and increase their commissions. The fraud and conspiracy charges relate to the alleged deceptive sales of subprime-related auction-rate debt, and charges include violation of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The SEC is seeking permanent injunctive relief, disgorgement of ill-gotten gains, civil money penalties, and prejudgment interest.

Butler and Tzolov are accused of deceiving customers into thinking that ARS were backed by federally guaranteed securities loans that were a safe and liquid investment choice when, in fact, the securities that the men bought for clients were backed by collateralized debt obligations, subprime mortgages, and other non-student loan collateral.

The SEC says ARS scam resulted in clients purchasing over $1 billion in subprime-related securities. According to the complaint, Butler and Tzolov sent out e-mail confirmations to foreign corporate customers with short-term cash management accounts that included the terms “Education” and “St. Loan” added to the names of securities that were not related to student loans. The terms “Mortgage” and “CDO” were deleted from the emails.

As a result, investors were left holding over $800 million in illiquid securities once the market started to collapse. The value of their ARS have dropped significantly since then.

Credit Suisse says it is working with authorities on the case. The investment bank says it suspended the two men after they found out they were involved in prohibited activities. The SEC investigation is part of a larger probe into whether potential market manipulation, fraud, and breaches of fiduciary duty played a role in the problems the credit markets are experiencing.

Related Web Resources:

Ex-Credit Suisse Brokers Charged With Subprime, Bloomberg.com, September 3, 2008
SEC Charges Two Wall Street Brokers in $1 Billion Subprime-Related Auction Rate Securities Fraud, SEC, September 3, 2008
Read the SEC Complaint (PDF)
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US Labor Department Wants Whistleblower To Show that Sarbanes-Oxley Act Covers UBS Financial Services

Published on: September 2, 2008 | by Shepherd Smith Edwards & Kantas, LLP

Whistleblower and former UBS Financial Services Senior Vice President Timothy Flynn has been asked to show that the UBS AG subsidiary falls under the federal whistleblower statute. According to Flynn’s attorney, The US Department of Labor made the request. The department is in charge of enforcing the Sarbanes-Oxley Act’s whistleblower protection for employees who report alleged wrongdoings that occur publicly traded companies.

While UBS AG is publicly traded, the labor department wants Flynn to show that subsidiary UBS Financial Services is integrated into the Zurich-based company and is therefore covered by the act. Flynn’s lawyer, however, says that when a whistleblower is employed by the subsidiary of a publicly traded company, the subsidiary, along with the entire company, is subject to the same securities laws.

Flynn filed his whistleblower complaint against UBS Financial Services last June. He alleges that after he told Massachusetts regulators that the company did not tell its advisors that there were liquidity issues brewing within the auction-rate securities market, UBS financial services retaliated by locking him out of his office, preventing staff members from interacting with him, and suspending him from his job.

Last May, UBS Financial Services said it would return $37 million to the Massachusetts Turnpike Authority and the state municipalities that invested in ARS. The repayments are part of the settlement the company reached with the Massachusetts Attorney General. The agreement was reached after Flynn, the broker for many of these clients, testified.

Related Web Resources:

Labor Asks Whistleblower to Show Why Act Covers UBS Subsidiary, Wall Street Journal, August 31, 2008
Ex-UBS broker sues, alleging firm retaliated, Boston.com, July 3, 2008
The Sarbanes-Oxley Act

Same broker tied investors to UBS, May 16, 2008 Continue Reading ›

SEC Reaches Preliminary Settlement with Merrill Lynch, Pierce, Fenner & Smith to Liquidate About $8.5 Billion in Auction Rate Securities

Published on: September 1, 2008 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission says it has reached a preliminary settlement agreement with Merrill Lynch, Pierce, Fenner & Smith to liquidate about $8.5 billion in auction-rate securities that are still held by the firm’s institutional and retail investors. Small businesses, individual investors, and charities have until January 15, 2010 to accept Merrill’s offer to repurchase at par value some $7.5 billion in ARS. The investment bank will provide liquidity to some $1.5 billion in ARS that were purchased by institutional investors.

Merrill has “agreed in principal” to the terms of the agreement and is not agreeing to or denying the SEC allegations by settling. The SEC has accused Merrill of misleading thousands of clients into thinking that ARS were highly liquid and equivalent to cash or money market instruments even when the investment bank knew that the market was in trouble.

This settlement does not exempt Merrill from being named in civil lawsuits filed by investors seeking restitution for their losses. As part of its agreement with the SEC, Merrill says it will not deny liability for liquidity loss. The SEC is also evaluating whether an additional fine needs to be imposed on Merrill.

Merrill, along with Goldman Sachs Group Inc. and Deutsch Bank AG, also reached an auction-rate securities market settlement with New York Attorney General Andrew Cuomo. As part of its agreement with the NY AG, Merrill will buy back from retail clients, with account balances up to $4 million, up to $12 billion of illiquid ARS at par. It will also pay a $125 million penalty fee.

Related Web Resources:

SEC Enforcement Division Announces Preliminary Settlement With Merrill Lynch to Help Auction Rate Securities Investors, SEC, August 22, 2008
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Charles Schwab, Fidelity, and Other Downstream Brokerages are Subpoenaed as NY Attorney General Cuomo’s Auction-Rate Securities Probe Expands

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

As part of his widening investigation into the auction-rate securities market collapse, New York Attorney General Andrew M. Cuomo has subpoenaed Charles Schwab, Fidelity, E*Trade Financial, TD Ameritrade, Oppenheimer & Co., and other ‘downstream’ brokerages that sold the securities to clients even if they did not underwrite them.

The Regional Bond Dealers Association had told Cuomo, in an August 15 letter, that entities that sold ARS to its clients but had nothing to do with managing their issuance should not be made to repay clients back at par illiquid the way financial services firms, such as Citigroup Inc., Morgan Stanley, Wachovia Corp, JP Morgan Chase and Co, UBS AG, and Goldman Sachs Group Inc., are now required to do, so per their settlements with federal and state regulators. The RBDA says downstream brokerages did not know that ARS were illiquid, rather than “highly liquid cash equivalents” that many Wall Street firms presented them to be.

The NY AG Special Assistant Benjamin Lawsky, however, says that the downstream brokerages’ culpability will depend on what their probe reveals. He says the NY AG’s probe has already discovered some “disturbing facts” that contradict the downstream brokerages’ claims of innocence.

Federal and state regulators have maintained that financial firms told their clients that ARS were highly liquid and easily redeemable at auctions. The ARS auctions started failing in February, which made it impossible for investors to sell their securities. Many investors have been unable to recoup their investments since then.

Related Web Resources:

Auction-rate securities probe expands to nearly 40 brokerages, Los Angeles Times,
August 22, 2008

NY Attorney General Cuomo’s Office
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NY Attorney General Coumo Estimates that Wall Street Firms Have Only Agreed to Repurchase 18% of ARS Securities

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

The nearly $35 billion in auction-rate securities-related frozen debt that Wachovia Corp, Citigroup Inc, JP Morgan Chase & Co, UBS AG, and Morgan Stanley have agreed to repurchase consists of less than 18% of the $200 billion that New York Attorney General Andrew Cuomo says is outstanding. Charities, individuals, and small businesses are the ones expected to benefit from the repurchase agreements made with the Wall Street firms.

Meantime, corporate finance officers that also purchased auction-rate securities because banks had marketed the securities to them as safe investments have not been offered the same commitment. Only Wachovia and UBS have agreed to buy back securities from institutional investors-Wachovia has set its date in June 2009, while UBS said it would begin repurchasing frozen securities from institutions starting June 2010. Google Inc, United Parcel Service Inc., and Texas Instruments Inc. are among the companies that have taken significant markdowns on over $32 billion in auction-rate securities holdings.

During the press conference announcing that Morgan Stanley & JP Morgan agreed to buy back $7.5 billion of the auction-rate securities, Cuomo said that he was making it a priority to return the money of retail investors. He also said that institutional investors needed “to be fairly compensated.” He and other state securities regulators have called on Wall Street firms to help institutional investors convert their securities into cash.

However, the settlements reached could worsen the situations for companies with debt. If banks buy back the securities from individual investors and end up selling the securities at reduced rates, companies may have to mark down their portfolios even more.

Related Web Resources:

Attorney General Cuomo Announces Settlements with JP Morgan and Morgan Stanley to Recover Billions for Investors in Auction Rate Securities, NY Attorney General
Cuomo Snubs Treasurers in Auction-Rate Debt Rescue, Bloomberg.com, August 21, 2008 Continue Reading ›

Arbitration Claims for Consequential Damages on Auction Rate Securities (ARS)

Published on: August 22, 2008 | by Shepherd Smith Edwards & Kantas, LLP

After months of uncertainty and delays, investors in Auction Rate Securities continue to receive conflicting news about their situation. While some investors may have access to funds in the near future, many have been severely damaged by this debacle and the delays. In settlements with regulators several firms were forced to acknowledge such “consequential damages” by investors

A special arbitration program is currently being designed to determine claims for “consequential damages” in which some firms have agreed not to contest their own liability. The arbitrations will be conducted through the Financial Industry Regulatory Authority (FINRA), formerly the National Association of Securities Dealers (NASD).

What is FINRA Arbitration?

FINRA Rolls Out New Arbitration Process for Auction-Rate Securities Claims

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

The Financial Industry Regulatory Authority says it has set up an arbitration process designed to resolve claims involving auction-rate securities. Parties now have the option to have their claims reviewed by an arbitration panel with members that are not connected with any firm that may have recently sold the securities.

FINRA says the process was developed following the system it set up for Citigroup’s settlement with the Securities and Exchange Commission. Earlier this month, Citigroup Inc. reached an agreement with state and federal regulators to redeem $7.3 million in illiquid auction rate securities that retail investors had purchased, as well as pay $100 million in fines. The agreement was to settle charges over misconduct related to sales practices.

FINRA Dispute Resolution President Linda Fienberg says it is only fair that all investors with auction-rate securities claims be given the opportunity to resolve their disputes in the same way. She said that FINRA would work hard to put the process in place so that claims wouldn’t be delayed unnecessarily. Persons that since January 1, 2005 have sold auction-rate securities, worked for a company that sold the securities, or supervised the selling of the securities cannot be on the panels.

FINRA Creates Process for Arbitrations Involving Auction Rate Securities, Marketwatch.com, August 7, 2008
Citigroup Returning $7 Billion To Auction-Rate Securities Investors, The Star, August 8, 2008
FINRA
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Pluris Valuation Survey Finds Auction-Rate Securities Write-Downs Totaling $2.1 Billion

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

In its most recent survey of auction-rate securities holders, Pluris Valuation Advisors LLC found that 281 out of 460 public companies have taken write-downs on auction-rate securities worth $2.1 billion (a total par value of $32.2 billion). However, the remaining 179 companies still have to file 10-Q second quarter reports, and Pluris estimates that approximately 100 more companies will take impairments this month.

The filings with write-downs have increased from 40% to about 80%. The increasing write-downs signify a definite trend, but there is no consistency in the size of discounts, which have ranged from 98% to close to 0.

The survey also provides information about write-downs by audit-firms. For example, Deloitte and Touche, LLP’s fraction with write-down was 77% with an average 7% discount, KPMG write-down was 80% with a 13%average discount, Ernst & Young’s fraction-write down was 83%, with a 12% average discount. PricewaterhouseCoopers average discount was 12% with a fraction with write-down of 93%.

Pluris Valuation Advisors says that overall, the data from the survey indicates that all holders have not realized the full impact resulting from the loss of liquidity of the auction-rate securities market.

Auction-Rate Securities
Auction-rate securities include corporate bonds, municipal bonds, and preferred stocks with interest rates or dividend yields that re-set periodically through auctions. Prior to the crisis in 2008, the ARS market grew to over $300 billion. Many investors were told that ARS were “equivalent to cash,” and have been dismayed that they have been unable to access their money since the market collapse. Continue Reading ›

Massachusetts Slaps Merrill Lynch with Auction-Rate Securities Fraud-Related Charges

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

The Massachusetts Secretary of the Commonwealth has filed securities fraud-related charges against Merrill Lynch for allegedly promoting the sale of auction rate securities while providing misleading information about market stability.

According to Secretary William Galvin, Merrill Lynch aggressively sold ARS to investors while telling research analysts to downplay market risks in its reports until the moment the company had to pull” the plug on its auctions.” The majority of auctions failed a day later. Galvin says that Merrill Lynch’s investors had no idea that potential trouble was brewing with their investments until it was too late for them to take action.

Galvin is also accusing Merrill Lynch of pressuring its research analysts, who are supposed to be neutral, into redacting or rewriting any reports that did not profile ARS positively. His complaint alleges that Merrill Lynch made approximately $90 million from the auction-rate securities market between 2006 and 2007. He wants Merrill Lynch to “make good” on the sales of the securities by making restitution to investors that sold their securities at below par.

Merrill Lynch issued a statement expressing disappointment that Massachusetts had filed its complaint. The company maintains that its advisers sold ARS because they thought that the securities would provide a higher return to investors.

Last week, Merrill Lynch said it would sell over $30 billion in toxic mortgage-related assets at a huge loss to help alleviate its own debt issues. A question to consider is whether Merrill Lynch, a large investment firm known for its powerhouse brand, can recoup its once solid reputation.

Related Web Resources:

Secretary Galvin Charges Merrill Lynch with Fraud in Auction Rate Securities Dealings (The Complaint)

Massachusetts sues Merrill Lynch over auction securities, USA Today, August 1, 2008
Merrill Lynch
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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 ›