Securities and Exchange Commission

SEC Sues Ex-Superior Bank Executives and Board Members

Published on: January 18, 2016 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. Securities and Exchange Commission has filed a lawsuit against eleven ex-Superior Bank executives and board members. The regulator says that the bankers took part in numerous scams to hide just how bad the loan losses were at the bank after the financial crisis struck. Nine of the individuals have consented to settle the SEC’s charges.

The SEC is accusing the directors and officers of purposely misleading regulators and investors by using fake appraisals, straw borrowers, and insider deals to make the bank’s financial health seem more robust than what was actual. Bank officials are accused of improperly renewing, extending, and rolling over loans that were bad, in part to avoid having to report loan and lease losses.

Because of this, Superior Bank overstated its net income by 99% in public filings for 2009 and by 50% in 2010. The bank failed in 2011 and the Office of Thrift Supervision closed it last year. The Federal Deposit Insurance Corporation was appointed as its receiver.

State Street To Pay $12M To Resolve Pay-to-Play Scam Charges Involving Ohio Pension Funds

Published on: January 16, 2016 | by Shepherd Smith Edwards & Kantas, LLP

The SEC said that State Street Bank and Trust Company will pay $12M to resolve civil charges accusing the firm of involvement in a pay-to-play scam. The regulator is accusing State Street of trying to gain contracts so it could do business with Ohio pension funds.

Vincent Debaggis, who helmed the public funds group of State Street Corp., is accused of entering into a deal with the deputy treasurer of Ohio. The arrangement allegedly included both illicit payments and political campaign contributions. In return for the money, State Street is accused of obtaining sub-custodian contracts that involved keeping the investment assets of certain Ohio pension funds safe and effecting the securities transaction settlements of the funds.

DeBaggis and State Street have agreed to the SEC’s order without denying or admitting to the regulator’s findings. The $12M that State Street will pay includes an $8M penalty and $4M in prejudgment interest and disgorgement. Meantime, DeBattis will pay over $174K in disgorgement plus prejudgment interest and a $100K penalty.

SEC Probes High-Yield Funds in the Wake of Third Avenue’s Junk Bond Fund Collapse, Says Reuters

Published on: January 13, 2016 | by Shepherd Smith Edwards & Kantas, LLP

Reuters is reporting that the Securities and Exchange Commission is examining the possible liquidity risks involved in high-yield bond funds. The probe comes following the collapse of the Third Avenue’s Focused Credit Fund (TFCVX) in early December. That has been touted as the largest mutual fund failure since the financial crisis of 2007.

The fund failed because of its inability to meet so many investor redemption request following heavy losses in the junk bond market. When the fund couldn’t find more buyers, it ended up having to suspend the redemptions and liquidate.

Now, regulators want to look into the ways in which mutual funds deal with liquidity risks and how such disruptions can impact not just shareholders but also the wider market. Reuters said that last month the SEC notified mutual funds and exchange-traded funds that it wants information about how securities that are less liquid are priced and whether certain parties have questioned these prices.

In particular, reports the news agency, the Commission has specifically asked for daily internal illiquidity calculations from 8/31/15 to 12/15/15, the names of large fund shareholders, disclosures related to liquidity, redemption activity, portfolio composition quality for each fund, and the daily outflow and inflow of information. Fund mangers were reportedly given only 24 hours to provide a little over half of the information requested and another week to hand over the rest of the documents.

SEC’s Report Evaluates The Definition of An Accredited Investor

Published on: December 31, 2015 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. Securities and Exchange Commission (SEC) has put out a report assessing the definition of who qualifies as an accredited investor. The 2010 Dodd-Frank Act mandates that this definition be reevaluated every four years.

Accredited investors are allowed to take part in investment opportunities that are typically not available to non-accredited investors. The definition helps to identify who has the financial sophistication to get involved in such investments, as well as handle the possible risks involved in investing in hedge funds, private companies, venture capital funds, private equity funds, and other such investments.

Currently, anyone who has a yearly income over $200K or a total net worth greater than $1M is allowed to qualify as an accredited investor. (As of 2010, an investor’s main residence may no longer be included in the calculation of his/net worth.) In the report, prepared by staff from the Divisions of Corporation Finance and Economic Risk and Analysis, the Commission is asked to consider a number of suggestions, including revising the financial threshold qualifications for natural persons who meet the accredited investor definition, as well as modifying the list-based approach that allows entities to satisfy the definition. Other suggestions:

– Subject to investment limitations, keeping the current thresholds for net worth and current income as criteria for who can qualify.
– Establish new thresholds for inflation-adjusted income and net worth that are not impacted by investment limitations.
– Allow spousal equivalents to put together their money to qualify as accredited investors.
– Modify the accredited investor definition as it applies to entities by using a $5M investments test instead of a $5M assets test.

Morgan Stanley to Pay $8.8M in Parking Scam

Published on: December 19, 2015 | by Shepherd Smith Edwards & Kantas, LLP

Morgan Stanley Investment Management (MISM) will pay $8.8 million to resolve SEC charges accusing a firm portfolio manager of engaging in a parking scheme that gave preferential treatment to certain client accounts. Also, as part of the settlement, SG Americas, who is accused of helping in the fraud, will pay over $1 million to resolve the charges.

The portfolio manager, Sheila Huang, has consented to an industry bar. According to an SEC probe, while overseeing accounts that had to liquidate certain positions in 2011 and 2012, Huang arranged for the sale of mortgage-backed securities to Yimin Ge, an SG Americas subsidiary, at prices that were predetermined so she could buy back the positions at small markups in other accounts that Morgan Stanley advised.

Huang sold more bonds at prices that were above market so she would not suffer losses for certain accounts. She then bought the positions back at prices that were unfavorable in a fund she oversaw without disclosing this to the client whose fund had been disadvantaged.

Huang is accused of engaging in prearranged transactions for five bond trade sets. As a result of her parking scam, some Morgan Stanley clients benefited more than others. Purchasing clients were generally the ones that profited from the market saving, while buying and selling clients did not.

J.P. Morgan Chase Settles SEC and CFTC Charges Alleging Client Steering for $307M

Published on: December 18, 2015 | by Shepherd Smith Edwards & Kantas, LLP

J.P. Morgan Chase & Co. (JPM) will pay $307M to resolve Securities and Exchange Commission and Commodity Futures Trading Commission charges accusing two of its units of not telling wealthy clients about certain conflicts of interest. The JPM businesses are J.P. Morgan Securities LLC, its wealth management investment advisory business that offers investment products to clients that have a net worth of $250K – $5M, and JPMorgan Chase Bank N.A., its U.S. private bank that deals with clients that have a $5M net worth or greater.

According to the agreement, the investment advisory service did not tell wealth management customers that its Chase Strategic Portfolio, which is a program for wealth management customers, favored mutual funds managed by the firm. For several years, the program put about $10 billion of $32.6 billion in proprietary funds, and until the earlier part of 2012, at least 47% of the assets were in such funds.

The private bank also showed a similar preference toward the bank’s products. It was not until 2011 that it told clients that language in its disclosures noting that it preferred managers affiliated with JPM had been “mistakenly” removed. The language was not put back until last year.

Alleged Immigration Scams Lead to SEC Fraud Charges

Published on: December 8, 2015 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has filed enforcement actions against a number of attorneys for offering EB-5 investments even though they are not registered brokers. As SEC Enforcement Division Director Andrew J. Ceresney noted, individuals who conduct certain services and get commissions when raising funds for EB-5 projects have to be officially registered.

Under the EB-5 Immigrant Investor Program, foreign investors are given an opportunity to gain U.S. residency if they invest in a designated projected that preserves or establishes at least 10 jobs for workers in this country. In its complaint, the SEC accused Hui Feng and his firm, the Law Offices of Feng & Associates of acting as unregistered brokers when selling EB-5 investments to over 100 investors. The Commission said that they bilked clients by not disclosing that they were paid commissions on the investments, which is a breach of their legal and fiduciary obligations. The regulator also said that they bilked certain entities that do offer such investments. Feng and his law offices are based in New York.

The SEC also filed charges against Mehorn P. Azarmehr and his Azarmehr Law Group, Michael Bander and his Bander Law Firm, Miami, Fla. lawyer Roger Bernstein, Hoboken, NH lawyer Allen Kaye, Los Angeles-based lawyers Taraneh Khorrami, Mike Manesh and this firm Manesh and Mizrahi, and Kefei Wang, who is based on China. All of these individuals and entities have agreed to cease and desist from acting as unregistered brokers. Most of them have consented to pay disgorgement, prejudgment interest, and/or a penalty.

SEC Investigating Whether Banks Were Involved in Credit Swap Collusion

Published on: December 5, 2015 | by Shepherd Smith Edwards & Kantas, LLP

Bloomberg reports that the U.S. Securities and Exchange Commission is looking into whether financial firms colluded together so that prices in the $6 trillion credit default swaps indexes market became skewed. According to the news outlet’s source, the regulator is trying to figure out whether dealers misrepresented index prices. The SEC is reportedly examining indexes that are less-liquid and actively traded.

With the credit-default swaps benchmark, investors can make bets on whether companies, mortgage-backed securities, or countries will default. Trading in swaps index contracts has increased in recent years because investors have been looking for easy ways to make bets via speculation.

At the conclusion of every trading day, benchmark prices for indexes are calculated by third-party providers according to dealer quotes. This sets the level at which traders are able to make their positions. This process resembles the way markets that don’t trade on exchanges establish benchmark prices.

SEC Sets Deadline for New Fiduciary Standard

Published on: November 28, 2015 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission’s Office of Management and Budget says to expect the notice of proposed rulemaking for the Personalized Investment Advice Standard of Conduct in October 2016. The SEC’s fiduciary standard rule has been anticipated ever since 2010 when the Dodd-Frank Act gave the regulator the authority to proceed with such a rule.

A new fiduciary rule would mandate that both advisers and brokers who give financial advice do so in their clients’ best interests. Now that the proposed rule isn’t expected for nearly another year, the SEC will be able to see what happens with the Department of Labor’s own proposed fiduciary rule, which is expected to be finalized early in 2016.

SEC, CFTC Look to Enhance Oversight of Alternative Trading Systems, High Speed Trading

Published on: November 27, 2015 | by Shepherd Smith Edwards & Kantas, LLP

The Securities and Exchange Commission has voted to propose rules to make enhancements to the regulatory oversight and operational transparency of Alternative Trading Systems (ATSs). The proposal would mandate that a ATS trading through the National Market System (NMS) submit detailed disclosures regarding: operations and broker-dealer operator and affiliated-related activities, the kinds of orders and market data used on these trading systems, and procedures regarding priority and execution. The information would be submitted on the newly proposed-Form ATS. ATSs trade stocks on national securities exchanges, such as dark pools.

The SEC’s proposal would make the disclosures at issue are available to the public on the regulator’s website. This could make it easier for market participants to be able to better assess whether to do business with an ATS. The disclosures could also allow participants to have more information when assessing decisions made by their brokers regarding their orders.

Also, the proposals would give the commission a process for qualifying NMS stock ATS for the exemption that they operate under and allow them to review disclosures submitted on Form ATS.

Following the proposal’s publication on the federal register, the SEC has allotted 60 days for comments.