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Court Upholds Ambac Assurance to Higher Burden of Proof in MRBS Fraud Case Against Countrywide

Published on: May 16, 2017 | by Shepherd Smith Edwards & Kantas, LLP

In Manhattan appeals court, a panel for the Appellate Division, First Department ruled that Ambac Assurance Corp. must prove all common law fraud elements in its mortgage-backed securities case against Countrywide Home Loans. The insurer, which underwrote 17 residential mortgage-backed securitizations, filed its RMBS fraud lawsuit against Bank of America’s (BAC) Countrywide in 2010.

Bank of America purchased Countrywide in 2008. That same year, the bank settled civil fraud charges related to questionable mortgage practices from before the 2008 financial crisis by agreeing to pay $16.65B to state and federal authorities.

According to the RMBS fraud case, Ambac put out insurance policies that were irrevocable and without conditions when it guaranteed a number of principal payments plus interest to investors that backed Countrywide RMBSs. The financial guaranty insurer is now accusing Countrywide of breaking warranties and contractual representations involving securitizations and its business practices, as well as of putting out false statements about its loans and operations and, as a result, fraudulently compelling Ambac to issue certain policies.

Ex-Essex Holdings CEO Gets 15 Years For $33M Ponzi Scams

Published on: May 16, 2017 | by Shepherd Smith Edwards & Kantas, LLP

A district court judge has sentenced Navin Shankar Subramaniam Xavier, formerly the CEO of Essex Holdings Inc., to 15 years behind bars because of his involvement in two fraud scams. Xavier pleaded guilty to two wire fraud counts in January.

He ran Essex Holdings from 9/2010 through 5/2014, raising over $30M from almost 100 investors who bought promissory notes that were supposedly for investments in shipping, sugar transportation, and iron ore mining in Latin America. Xavier used forged paperwork, including a bogus financial statement. He promised return rates to get prospective customers to participate. He used most of the funds for his and his wife’s expenses, including luxury cars and jewelry, cosmetic surgery, and wedding bills. He also used newer investors’ funds to pay earlier investors until the Ponzi scam failed. According to evidence brought to court, investors lost more than $29M.

In a separate fraud, Xavier used the company to secure $1.2M in payments and about $1.5M of commercial real estate from the South Carolina Coordinating Council for Economic Development (SCCCED). These were supposed to go toward developing an industrial property into a rice packaging facility and a diaper plant. Documents submitted in court indicate that the defendant gave the SCCCED fake financial documentation so the contract would go to him. He also provided other fake financial paperwork, including bogus contractor invoices, so he would get paid. He again used a chunk of the funds for his own living expenses.

SEC Investigates Statim Holdings After Hedge Fund Investors Are Promised They Won’t Lose Any Money

Published on: April 17, 2017 | by Shepherd Smith Edwards & Kantas, LLP

Bloomberg reports that according to sources, the US Securities and Exchange Commission has launched a probe into Statim Holdings. Inc., an Atlanta, Georgia-based financial firm, after the latter told investors in its main hedge fund that there was no risk of financial losses for investing. The regulator’s investigation comes in the wake of a state probe by the Georgia Securities Division. Statim is helmed by Joseph A. Meyer.

Meyer told investors in the Arjun fund’s main share class that they would never sustain financial losses. However, they have to commit their funds for a decade or lose 50% of their principal should they decide for early redemption.

The hedge fund manger has said that he uses a computerized system that he designed and he invests the bulk of clients’ funds in Treasury bonds. In 2015 Bloomberg News placed Arjun at number eight in its list of hedge funds that had assets ranging from $250M and $1B. BarclaysHedge has given 17 awards to Arjun.

Indiana Public Retirement System’s Institutional Investor Fraud Case To Be Heard by US Supreme Court

Published on: March 27, 2017 | by Shepherd Smith Edwards & Kantas, LLP

The US Supreme Court said that it will hear a securities fraud lawsuit accusing Leidos Inc. (LDOS) of leaving out key information, as well as misstating other important ones, in securities filings. The lead plaintiff in the case is the Indiana Public Retirement System, which brought its complaint in 2012.

The investor fraud lawsuit is related to a kickback scam that took place when Leidos, it was called Science Applications International Corp (SAIC) at the time, was constructing a computerized payroll system for New York City. The scam resulted in fraud charges being brought against two SAIC employees. The government contractor ended up paying over $500M in fines to settle related charges.

The Indiana retirement fund contends that SAIC failed to dislose its liability connected to the fraud when it submitted its filings to the US Securities and Exchange Commission and that it only made the necessary disclosures in June 2011, which was months after the scam collapsed. Under SEC provision Item 303, companies must disclose uncertainties and trends that may impact their business. The retirement fund also is accusing SAIC of misstatements regarding ethics and internal controls, including the alleged misstatement that the contract with NY was immaterial to its operations.

FINRA Orders UBS to Pay Shepherd, Smith, Edwards & Kantas Client $9 Million Over Puerto Rico Municipal Bond and Fund Investment Losses

Published on: February 24, 2017 | by Shepherd Smith Edwards & Kantas, LLP

Shepherd Smith Edwards and Kantas, LLP (“SSEK”) is pleased to announce that a Financial Industry Regulatory Authority (“FINRA”) arbitration panel has awarded an SSEK client a net of almost $9 million for his losses in Puerto Rico bonds and Puerto Rico Bond Funds. SSEK client, Dr. Luiz Romero Lopez, won his securities arbitration claim against UBS Puerto Rico with the FINRA panel awarding him a net of almost $8 million in compensatory damages and an additional $1 million in punitive damages.

According to the FINRA arbitration panel, UBS exhibited “extreme recklessness and indifference” to the consequences of abuses in its “non-purpose” loan program in Puerto Rico. The panel accused UBS of either purposely using a “non-purpose” loan to be “recycled” in a manner that violates Regulation U or doing so with “reckless” indifference to the consequences that could arise from such abusive loans.

The FINRA arbitration panel found that the loan created “additional excessive leverage.” Because of this, when the market dropped in 2013, the Claimant lost more money than if his funds had been more suitably invested with “less leverage.”

Purshe Kaplan Sterling Investments Must Pay Native American Tribe $3.4M Over Excessive Sales Charges Involving Nontraded REITs and BDCs

Published on: February 22, 2017 | by Shepherd Smith Edwards & Kantas, LLP

The Financial Industry Regulatory Authority is ordering Purshe Kaplan Sterling Investments (PKS) to pay almost $3.4M in restitution to a Native American tribe. The tribe had paid excessive sales fees for the purchase of Business Development Companies (BDCs) and non-traded Real Estate Investment Trusts (REITs).

Gopi Vungarala was the Purshe Kaplan Sterling registered representative for the tribe from 7/2011 through at least 1/15/15. He was also the tribe’s Treasury Investment Manager at the same time. It was his job was to oversee the group’s investment portfolio.

FINRA’s case against Vungarala in this matter has yet to be resolved. However, Purshe Kaplan Sterling must also pay $750K for its purportedly inadequate supervision of nontraded REIT and BDC sales.

Securities Fraud: Prison Sentence Issued in $39M Ohio Penny Stock Scam, SIPC Warns About Fraud Invoking Its Name, & Investors Sue Banc of California

Published on: February 10, 2017 | by Shepherd Smith Edwards & Kantas, LLP

Eight People Implicated in $39M Penny Stock Fraud Get Prison Sentences, Must Pay Restitution
In Ohio, eight people were sentenced to prison terms ranging from almost two years to a dozen years for their involvement in a penny stock scam that caused investors to suffer $39M in losses. One of the defendants, Zirk de Maison, received the 12-year sentence. He was ordered to pay $39.1M in restitution. The other defendants also were ordered to pay restitution in lower amounts.

According to prosecutors, the defendants conspired to bilk investors and potential ones in a number of public issuers. They did this by putting out millions of shares and artificially controlling the price and volume of the shares that were traded. This was accomplished through undisclosed commissions paid to brokers, boiler room operators, and promoters who got investors to invest, as well as through the fraudulent concealment of ownership interests in the companies in which the funds were invested.

In some instances, brokers and ex-brokers were paid illegal kickbacks of sometimes up to 50%. Clients were not told of these payments. The co-conspirators used most of investors’ money to enrich themselves. Some of the defendants were boiler room owners.

Aon Hewitt Accused of Kickback Scam with Financial Engines in 401(K) Lawsuit

Published on: February 5, 2017 | by Shepherd Smith Edwards & Kantas, LLP

A 401(K) participant is suing Aon Hewitt for its purported involvement in a kickback scam involving Financial Engines. Aon Hewitt is not the first company to be subject to such allegations involving the 401(K) advice provider.

According to a participant in the Caterpillar 401(k) Retirement Plan, the alleged “covert kickback operations” cost retirement savers millions of dollars as a result of the excessive fees paid to Financial Engines for managed-account services. The complaint contends that the service fees were much higher than needed because of an agreement between Aon Hewitt and Financial Engines in which the latter paid the former kickbacks.

The kickbacks were purportedly a substantial percentage of the fees that Financial Engines charged, even though Hewitt and its sister companies, which are also defendants in the 401(K) lawsuit, didn’t provide any investment advisory services in exchange for the payments. According to plaintiff Cheryl Scott, Aon Hewitt received a 20-25% kickback.

SEC Charges NY-Based Brokers with Fraud, Excessive Trading

Published on: January 9, 2017 | by Shepherd Smith Edwards & Kantas, LLP

The US Securities and Exchange Commission is charging two brokers with securities fraud. The regulator claims that Donald J. Fowler and Gregory T. Dean fraudulently employed an in-and-out trading strategy that was not suitable for customers so that they could make more in commissions. Because of their actions, 27 customers alleged lost substantial amounts of money. Fowler and Dean are accused of violating the Securities Act of 1933 and the Securities Exchange Act of 1934, and Rule 10-B5.The Commission said that they examine trading patterns involving over two dozen of the brokers’ customer accounts.

The SEC contends that the two men did not engage in any due diligence to figure out whether their investment strategy could help customers obtain even the smallest profit. With their strategy, they engaged in the frequent purchase and sale of securities, which would both take place within a two-week or shorter timeframe. They charged customers a commission for every transaction. Meantime, Fowler and Dean were the only ones who had a chance of making a profit.

SEC Warns Investors to Look Out for Excessive Trading, Churning

Along with its announcement of this securities case, the SEC put out an Investor Alert cautioning the public about churning and excessive trading. In its alert, the regulator warned about red flags that may be signs of these types of fraud, including trading that a customer did not authorize, which is known as unauthorized trading, trading that happens more often than seems reasonable for a customer’s investment objectives and/or the level of risk that the portfolio can handle, and suspicious and/or unusually high fees.

SEC Cases: IT Specialist Settles Insider Trading Charges For Over $375K, San Francisco Firm Pays $80K for Unregistered Swaps Sales Involving Pre-IPO Companies, and EB-5 Fraud Cases Lead to Settlement for Florida Businessman and Civil Charges For California Lawyer

Published on: December 31, 2016 | by Shepherd Smith Edwards & Kantas, LLP

IT Specialist Accused of Hacking Expedia Executives and Insider Trading

The U.S. Securities and Exchange Commission has filed civil insider trading charges against Jonathan Ly, who worked as a technology specialist for online travel company Expedia. According to the regulator, Ly hacked senior company executives and traded on company secrets ahead of nine announcements between 2013 and 2016.

As a result of his alleged insider trading, Lyn made almost $350K in profits. To settle the SEC case against him, Ly will pay over $348K of disgorgement and more than $27K in interest. This is a deal that still has to be subject to court approval.

Meantime, the U.S. Attorney’s Office for the Western District of Washington has filed parallel criminal charges against Ly.