Articles Posted in SEC

BP Oil Spill Payouts Recipients May Be Targeted by Investment Scam Fraudsters, Says SEC

Published on: October 22, 2010 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission is warning small businesses and individuals to watch out for fraudsters out there that may be targeting the recipients of BP oil spill payments with investment opportunities that promise high returns at little or no risk or involve complex or secretive strategies. Because of their tendency to share information with each other and the high level of trust that exists among its members, professional organizations, ethnic communities, religious groups, and other close-knit affinity groups may be likely targets.

The SEC says that one way to avoid becoming involved in this type of investment fraud is to ask lots of questions and then double check the with the agency or an unbiased source. Also. it is important to make sure that the investment is registered and the seller is licensed.

According to SEC Chairman Mary Schapiro, “We are on the lookout for any securities scams in the Gulf area.” Following Hurricane Katrina, the SEC discovered a number of scams targeting individuals that were compensated by their insurance companies. Fraud schemes included promoters claiming that their companies were taking part in clean-up efforts, trading programs that made false promises of high returns, and Ponzi scams.

SEC Warns of Potential Investment Scams Targeting Recipients of BP Oil Spill Payouts, SEC, October 13, 2010
Investor Alert – BP Payout Recipients: Be on the Lookout for Investment Scams
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Combatting Elder Financial Fraud: SEC, NASAA, & FINRA Update Their Best Practices to Protect Senior Investors

Published on: August 29, 2010 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority, the Securities and Exchange Commission, and the North American Securities Administrators Association have updated their 2008 report regarding financial firms’ best practices when serving elderly investors. The security regulators remain committed to making sure that seniors are given a “fair market” with responsible sales practices and suitable products. The 2008 report, called “Protecting Senior Investors: Compliance, Supervisory and Other Practices Used by Financial Services Firms in Serving Senior Investors,” gave investment firms steps they could take to improve their procedures and policies when working with senior clients.

The 2010 addendum concentrates on several categories, including:
• Effective communication.
• Better employee training regarding issues that specifically affect seniors.
• Establishing internal processes to deal with issues that arise.
• Surveillance, supervision, and compliance reviews that focus on seniors.
• Making sure investments offered to elderly investors are appropriate for them.

The SEC is also tackling regulatory measures related to financial products that target retirees and seniors. Last month, the SEC put out a staff report suggesting that Congress define life settlements as securities to make sure that investors receive protection under federal securities law. Also, in an attempt to enhance target date fund disclosures, the SEC recently proposed rule amendments.

Regulators report that there are nearly 40 million people in the US that belong to the age 65 and older age group. By 2050 that number is expected to hit 89 million.

It is important that the necessary steps are taken protect seniors from elder financial fraud. With their retirement funds, elderly seniors are at risk of becoming the target of securities fraud. As MetLife (MET) Mature Market Institute notes, elder financial abuse “has been called the ‘crime of the 21st century.” She noted for every dollar lost, the victims often suffer related financial losses resulting from health issues and stress.

Related Web Resources:
Protecting the Elderly From Financial Fraud, Minyanville, June 16, 2010
SEC, NASAA, FINRA Update Best Practices for Serving Seniors, Wealth Manager, August 13, 2010
Read the 2008 Report (PDF)
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SEC Settles Wrongful Termination Lawsuit with Whistleblower Gary Aguirre for $755,000

Published on: July 15, 2010 | by Shepherd Smith Edwards & Kantas, LLP

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:
Pequot to pay $28 million to settle insider trading case, Reuters, May 27, 2010 Continue Reading ›

SEC’s Division of Investment Management to Make 12b-1 Fee and Form ADV Recommendations Soon

Published on: May 16, 2010 | by Shepherd Smith Edwards & Kantas, LLP

According to the director of the Securities and Exchange Commission’s Division of Investment Management Andrew Donohue, its staff is close to recommending that the SEC adopt a proposed rule mandating that mutual funds give clients better information about the uses of Rule 12b-1 distribution fees and their amounts. The fees are automatically taken out of investor mutual fund balances and used as compensation for financial professionals’ expenses, including broker commissions, promotions, and distributions. More than $13 billion in Rule 12b-1 fees were collected in 2008.

Reform of Rule 12b-1 is likely to steer up a lot of controversy between industry participants and consumer interest groups. Adopted under the 1940 Investment Company Act in 1980, 12-b 1 fees’ use has changed significantly since then. At an American Bar Association function last month, Donohue said that the division hopes to recommend a reform proposal that is more investor-oriented, allows clients to have additional knowledge about how much the fees are and how they will be used, and better reflects today’s market environment.

The division is also close to recommending to the SEC that it adopt revisions to Part 2 of Form ADV, which is the main disclosure document that clients get from investment advisors. Under the proposal, registered investment advisers would have to give current and prospective clients a brochure written in plain English that provides important information about the services they are getting and who is representing them.

Donohue noted that the division is also working on a proposal regarding summary prospectus for variable annuities that would also give investors key information in English that is easy to understand, as well access to more information via the Internet. He also noted that because of the increased use of “derivatives (including collateralized debt obligations and credit default swaps) and sophisticated financial products” and the ability of a fund’s manager to put together a portfolio in so many different ways that are not necessary related to how much has been invested or the kinds of instruments in the fund, the division is compelled to examine investment companies derivative activities and what they mean for the “regulatory framework.”

SEC’s Handling of Credit Rating Agencies Oversight and Failure to Detect Madoff and Stanford Ponzi Scams Questioned at Senate Appropriations Financial Services Subcommittee

Published on: May 8, 2010 | by Shepherd Smith Edwards & Kantas, LLP

At a recent hearing, US Senator Richard Durbin (D-Ill), who is chairman of the Senate Appropriations Financial Services subcommittee, told Securities and Exchange Commission Chairman Mary Schapiro that he was “puzzled” by the SEC’s request for funds to start aggressive oversight of credit ratings agencies in 2011. Earlier this year, the White House asked Congress to fund the SEC $1.234 billion for FY 2011-that’s $123 million more than the actual funding received by SEC during the previous year. Noting that over the past two years Congress had already given the SEC $143 million more than what the White House had recommended, Durbin wanted to know why, if the SEC considers overseeing credit rating agencies such a “huge priority,” the agency hadn’t already devoted some of that extra money to CRA oversight.

Schapiro responded by saying that not only is the SEC extremely committed to “aggressive” CRA oversight (and wants to examine all such agencies regularly) but that the agency had already begun this process. However, Securities Fraud Lawyer William Shepherd considers Shapiro’s statement “strange,” especially as it was “made by someone who, prior to taking over at the SEC, was in charge of the National Association of Securities Dealers, Inc (now called the Financial Industry Regulatory Authority). Under Ms. Shapiro, the NASD had the duty to regulate registered financial firms and was on the front line to govern the actions at the Madoff securities firm, as well as Bear Stearns, Lehman Brothers, and, for that matter, Goldman Sachs.” Mr. Shepherd is the founder of Shepherd Smith Edwards & Kantas LTD LLP, a stockbroker fraud law firm.

Durbin and Sen. Susan Collins (R-Maine) also questioned Schapiro about oversights that took place during the investigations into ponzi masterminds Allen Stanford and Bernard Madoff illegal activities, the status of its whistleblower program, the role of the SEC’s new chief compliance officer, and the fates of the staffers who were caught watching porn while on the job.

Schapiro said that 15 of the 20 SEC staffers that were implicated in an inspector general’s report for failing catch Madoff’s ponzi scam are no longer with the agency. The remaining five will be subject to “fair” and “appropriate” disciplinary responses. She also provided details on new efforts that the SEC is implementing to make sure that illegal activities such as those that Stanford and Madoff practiced will most certainly be detected in the future. Schapiro also talked about new, “across the board” leadership and a committee that lets staffers submit tips if it appears that certain colleagues have failed to take specific actions.

Related Web Resources:
Senators Say No to SEC Self-Funding, The Wall Street Journal, April 28, 2010
S.E.C. Employees’ Porn Problem, CBS, April 23, 2010
Senate Appropriations Financial Services subcommittee

US Securities and Exchange Commission
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SEC Warns that Disclosure of a “Possible Risk” is Misleading When the Event has Already Occurred

Published on: February 3, 2010 | by Shepherd Smith Edwards & Kantas, LLP

According to the US Securities and Exchange Commission, the Private Securities Litigation Reform Act’s safe harbor as it applies to certain forward-looking statements isn’t triggered by cautionary remarks made by defendants over the impact of “potential deterioration in the high-yield sector” if, per the plaintiffs’ claim, the defendants knew the deterioration was taking place. The SEC made its comments in an amicus curiae brief to the U.S. Court of Appeals for the Second Circuit.

The case is Slayton v. American Express Co. The class securities fraud action alleges that the defendant engaged in faulty disclosures related to losses in its high-yield investment portfolio. A district court dismissed the complaint over failure to plead scienter. The plaintiffs appealed the case, and the Second Circuit heard oral argument lat October.

The SEC’s statements address the application of the statutory safe harbor to specific statements that Amex made in its May 2001 Form 10-Q’s Management’s Discussion and Analysis section. Amex stated that the $182 million in high-yield losses was a reflection of it high-yield portfolio’s ongoing deterioration. Amex also stated that total investment losses for the rest of 2001 were expected to be significantly lower than losses sustained during the first quarter.

The parties disagreed about whether the cautionary language that Amex used was “meaningful” enough for the purposes of safe harbor.

According to the SEC, forward-looking statements in the MD & A, which isn’t part of a financial statement that abides by generally accepted accounting principals, doesn’t fall within the statutory exclusion for these kinds of statements. It also noted that Amex’s statement about the “potential deterioration in the high-yield sector” wasn’t enough for safe-harbor purposes because the defendants were warning about a possible deterioration that they knew was already happening. The SEC says that “It is misleading and therefore insufficient for a company to warn of a  potentiality that it is aware currently exists.” Also, “If the speaker knows that any of the implied representations is false,  then the speaker knows that the statement is misleading.”

Misstatements and omissions by an investment adviser, a broker, or an investment firm, can be grounds for a securities fraud claim or lawsuit if financial losses were sustained by others.

Related Web Resources:
Read the SEC’amicus curiae brief (PDF)

Private Securities Litigation Reform Act, Lectlaw Continue Reading ›

SEC is working on issues related to asset-backed securities, credit ratings, and money market mutual funds, says Schapiro

Published on: January 31, 2010 | by Shepherd Smith Edwards & Kantas, LLP

According to Securities and Exchange Commission Chairman Mary Schapiro, the agency is dealing with a number of credit crisis-related issues associated with money market mutual funds, asset-backed securities, and credit ratings. She also said that the SEC is working on ABS rule proposals that would allow the interests of investors and sellers to align.

The proposals, and other measures, would seek to give investors easier access to loan level data, allow them more time to review products before they invest, create a mechanism to allow for continuous disclosure, and modify “shelf” offerings eligibility standards. Schapiro says that the proposals are meant to be preemptive and would tackle certain areas where issues similar to the ones that surfaced during the current financial crisis might arise in the future.

American and European regulators have been closely examining collateralized debt obligations, mortgage-backed securities, and other ABS because of the large parts they played during the financial collapse. The SEC is reviewing ABS regulations and ABS-related disclosures and reporting. The agency is also seeking to impose more stringent credit quality and maturity requirements for market mutual funds, as well as put into place substantial liquidity standards. Members will be voting on proposed rule amendments meant to strengthen the money market mutual funds’ framework. The SEC is in the process of taking out credit rating references in a number of its regulations and rules.

SEC Office of Administrative Services’ Office of Acquisitions Has Shortfalls that Could Impede Operation, Says Audit

Published on: October 8, 2009 | by Shepherd Smith Edwards & Kantas, LLP

According to an external audit of the SEC Office of Administrative Services’ Office of Acquisitions (OA), there exists “significant risk areas” that could affect operation and lead to improper accounting of federal resources. OA is responsible for the SEC’s contracting and procurement functions.

Shortfalls revealed included:

• Failure to submit accurate information in the Federal Procurement Data System • Failure to keep accurate information and records about contracting and procurement • Failure to engage in contract close-out procedures that are in accordance with Federal Acquisition Regulation and SEC regulations.
• Failure to properly manage and supervise personnel training and contract activities at regional offices
Per the report, shortfalls appear to have occurred due to a number of issues, including insufficient data for properly managing operations, poorly trained employees, and operational procedures that are not consistent.

Also, after checking the SEC’s Office of Financial Management records, the Audit found $13 million in contracts that were not identified in OA’s consolidated spreadsheet. In certain cases, OA had marked certain contracts as closed when OFM still noted them as open.

Following the audit, 10 recommendations were issued, including establishing new internal review processes, revising recordkeeping procedures, modifying operational processes, and coming up with a training plan for contracting obligations and personnel performing procurement duties.

SEC Inspector General H. David Kotz also issued a separate audit which found problems within the SEC’s Office of Freedom of Information. His audit found that the SEC had compliance issues with the Freedom of Information Act, which outlines procedures that have to by abided by when members of the public ask the federal agency for information.

Deficiencies included a lack of written procedures and policies for handling such requests, improper or inadequate procedures for disclosing documents that are not in compliance, failing to properly manage certain information, discriminating against certain entities asking for data, the improper processing of certain request, and failure to comply by rules requiring that an information request receives a response within 20 days.

Related Web Resources:
Watchdog:Flaws In SEC Acquisitions,Freedom Of Information Offices, Dow Jones, September 25, 2009
SEC Office of Administrative Services’ Office of Acquisitions

SEC FOIA/PA Program, The Freedom of Information & Privacy Act Office, SEC.gov Continue Reading ›

SEC Warns Broker-Dealers to be Mindful of Their Recruiting Bonuses

Published on: September 10, 2009 | by Shepherd Smith Edwards & Kantas, LLP

Securities and Exchange Commission Head Mary Shapiro is warning broker-dealers to be careful of the recruiting tactics they employ-especially those involving recruiting bonuses. She cautioned that attractive compensation packages can compel registered representatives to watch out for their own self-interests over the interests of investors, resulting in acts of securities fraud. For example, Shapiro cautioned that a broker who knows that she or he will be given a larger compensation for meeting certain commission goals might make unsuitable investment recommendations, churn customer accounts, or take part in other commission-revenue focused actions that aren’t necessarily in the clients’ benefit.

Shapiro is also asking broker-dealer heads to watch over big up-front bonuses. Brokerage firms continue to offer large recruiting bonuses to top registered representatives at rival investment banks. Recruiting packages at wirehouses Merrill Lynch, UBS, Morgan Stanley, and Wells Fargo Advisers are between 200-250% of trailing 12-month production. In many instances, an investment adviser who satisfies production targets and brings in a certain percentage of assets is frequently rewarded.

Shapiro’s letter to the firm’s CEOs reminded them that it is the broker-dealer’s responsibility to “police such conflicts” and supervise broker-dealer activities, especially those related to sales practices. She reminded the broker-dealers that when a sales group expands, it is the investment bank’s responsibility to not just supervise advisers but to make sure the compliance structure maintains the adequate capacity. She noted that investor interests must always be of prime importance when investment products, such as securities, are sold.

Unfortunately, there are brokers who choose to place their own financial gain over the interests of their clients. This can result in securities fraud losses for investors. A few examples of broker misconduct include churning, misrepresentation, negligence, breach of fiduciary duty, and unauthorized trading.

Related Web Resources:
Read Shapiro’s Letter (PDF)

Schapiro Message to B-D CEOs: Watch Your Recruiting Tactics, Research Mag, September 1, 2009
Chairman Mary Schapiro, SEC Continue Reading ›

SEC, NASD, FINRA & SIPC: New SEC Report Card on Madoff Catastrophy Further Reveals How Investor Protection Is Severely Flawed!

Published on: September 3, 2009 | by Shepherd Smith Edwards & Kantas, LLP

A new report by the Inspector General at the Securities Exchange Commission recounts 16-years of failures at the SEC which led to the financial crime of the century perpetrated by Bernard Madoff and his firm. The report states that the agency “never properly examined or investigated Madoff’s trading and never took the necessary, but basic, steps to determine if Madoff was operating a Ponzi scheme.”

The IG confirms that the SEC failed to heed direct warnings and warning signs as early as 1992 which “could have uncovered the Ponzi scheme well before Madoff confessed” to the $50 billion fraud, leading to his 150 year prison sentence.

Critics of cecurities regulators and the securities regulatory system have for years complained that the system is not only inept but perhaps corrupt. Accusations have included that regulators overlook wrongdoing by Wall Street insiders while “rounding up the usual suspects” to appear as if they are doing their jobs. Madoff may be the poster child for this theory.