Investor Lawyers Blog

To The SEC: Why It Is Necessary to Change Public Reporting Requirements on Stockbrokers

Published on: June 11, 2009 | by Shepherd Smith Edwards & Kantas, LLP

Recently, Shepherd Smith Edwards & Kantas LTD LLP Founder and Securities Fraud Attorney William Shepherd wrote a letter to the Securities and Exchange Commission voicing his support for needed changes to the public reporting requirements on stockbrokers. His letter was published on the SEC’s Web site and included a number of key facts and statistics, including:

· The # of registered US brokers: Over 500,000 brokers · The # of investors: More than 50 million, and nearly all of them have recently lost money on their investments · The # of US securities fraud claims filed in arbitration: About 5,000 claims · The # of investors that file for recovery: 1 out of every 10,000 investors

· The # of investors that contact Shepherd Smith Edwards & Kantas LTD LLP each year about a possible stockbroker fraud case: About 5,000 investors · The # of stockbroker fraud cases our securities fraud law firm takes on each year: About 150 cases

Morgan Keegan, Charles Schwab and Others Fight as Wells Fargo Unit Settles Claims of Misrepresented Securities in Short Term Bond Funds

Published on: June 9, 2009 | by Shepherd Smith Edwards & Kantas, LLP

Evergreen Investment Management Company, a Wells Fargo unit, has agreed to a $40 million settlement with federal and state regulators over allegations that it misrepresented securities in short-term bond funds. The settlement could be a sign that other fund providers, including Morgan Keegan, Charles Schwab Corp., and Fidelity Investments, may face similar lawsuits. Already bond providers are facing securities fraud lawsuits and arbitration claims from clients that experienced heavy losses from investing in debts that were either high risk or became illiquid.

The Massachusetts Securities Division and the Securities and Exchange Commission had accused Evergreen and one of its affiliates of inflating the value of its Ultra Short Opportunities Fund by up to 17%. The SEC says that this inflated value allowed the fund in 2007 and 2008 to be ranked high compared to other peer funds, when its true value should have placed it closer to the bottom of its class. At the time of the alleged violations, Evergreen was a Wachovia Corp. subsidiary.

With the housing crisis getting worse, Evergreen is accused of not using the information it had access to about mortgage-backed securities when engaging in the valuation process. Evergreen dealt with the fund by adjusting the prices on specific holdings, but only notified a select number of investors about the reasons for the re-pricings, as well as the possibility of adjustments in the future.

The investors that were given this information managed to leave the fund before their shares’ value went down even more. However, the other shareholders that did not receive the preferential information were left at a disadvantage. In June 2008, Evergreen closed the Ultra Short Fund, which, at the time, had $403 million in assets.

By agreeing to settle, Evergreen is not admitting to or disagreeing with the SEC’s findings. As part of the agreement, the Wells Fargo unit will pay $33 million to fund shareholders, $3 million in disgorgement of ill-gotten gains, a $4 million SEC penalty, and $1 million to Massachusetts.

Evergreen settles state, US charges for $40 mln, Reuters, June 8, 2009
Settlement in Mutual Fund Case, NY Times, June 8, 2009 Continue Reading ›

UBS Financial Services Misled Investors about Lehman Brothers Securities, Says New Hampshire Regulators

Published on: June 4, 2009 | by Shepherd Smith Edwards & Kantas, LLP

According to New Hampshire securities regulators, UBS Financial Services Inc., a unit of UBS AG, misled investors regarding complex securities that were issued by Lehman Brothers before the latter filed for bankruptcy protection in 2008. The Bureau of Securities Regulation says investors were misled when the representatives for the UBS unit told them that the securities were safe, while failing to let them know that Lehman Brothers was in trouble. The state regulators are also accusing UBS of failing to properly supervise the employees that sold the structured products and of engaging in improper sales practices.

Some 42 New Hampshire investors could lose more than $2.5 million from securities underwritten by Lehman Brothers. State regulators have filed a cease-and-desist order against UBS and they are seeking an unspecified sum from the financial firm.

UBS disputes the Bureau of Securities Regulation’s allegations. The investment bank claims it didn’t do anything improper when it sold the Lehman products to UBS clients and that its employees engaged in the proper sales practices, followed all regulatory guidelines, abided by client disclosure guidelines, as well as followed firm procedures and industry regulations. The investment bank contends that any losses experienced by investors occurred because Lehman Brothers failed unexpectedly. UBS vows to combat the New Hampshire regulators’ allegations.

Already, a number of investors have filed claims against Lehman Brothers. Last year, with $613 billion in debt, Lehman filed the largest bankruptcy in US history. Globally, the collapse of Lehman Brothers resulted in investor losses worth billions of dollars. Many clients have blamed lenders for failing to warn them that Lehman was in trouble.

Meantime, Credit Suisse has offered to pay $140.7 million to compensate more than 3,700 of its retail clients for their Lehman financial products that now have no value.

Securities Fraud Attorney Sam Edwards, partner of the law firm of Shepherd Smith Edwards & Kantas LTD LLP says: “While many smaller investors into Auction Rate Securities have now been paid, our firm is representing a number of larger investors, many of whom have millions of dollars that have been frozen for more than a year. Many of these are business which have been crippled by the loss of liquidity of these funds and are seeking resulting business losses.”

Related Web Resources:
UBS says will fight New Hampshire Lehman case, Reuters, June 4, 2009
UBS Sold Unsuitable Lehman Securities, New Hampshire Alleges, Bloomberg.com, June 4, 2009
Bureau of Securities Regulation
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FINRA Orders RD Capital Group and Its President to Pay $1 Million for Fraudulent STRIPS Markups

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

The Financial Industry Regulatory Authority says that RD Capital Group, based in Puerto Rico, and its president Ramon Luis Dominguez have agreed to pay $950,000 in restitution plus interest to three clients over fraudulent and excessive markups involving the sale of U.S. Treasury Separate Trading of Registered Interest and Principal Securities, also known as STRIPS. The firm and Dominguez are also to pay a $50,000 fine, while the latter was suspended for 30 days as a principal and in every capacity for 5 business days.

According to FINRA, RD Capital and Dominguez sold more than $34 million in US treasury STRIPS to three clients between August and August 2005. They made the sale while charging $1,289,727 in total markups. However, FINRA says that Dominguez neglected to tell the clients how much of a markup they got-from 3.5 – 6.2%-and that these markups were fraudulent and too much because they were more than what the market conditions warranted.

STRIPS are zero-coupon securities created from U.S. Treasury bonds by “stripping” the future interest payment oblitations from the final principle payment obligation on those bonds, then selling each of these separately at a discount. FINRA mandates that firms make sure customers are fairly charged for STRIPS transactions, with the cost for effectuating the sale, profit by the dealer or broker and the expertise provided, the total cost of the transaction, the financial product’s availability, the instrument’s yield or price, and other factors taken into consideration.

By agreeing to the terms of the settlement agreement, RD Capital Group and Dominguez are not admitting to or denying wrongdoing.

More about STRIPS:

• STRIPS can be bought or held via government securities dealers and brokers.
• STRIPS cannot be sold or issued directly to an investor.
• An investor receives payment from STRIPS upon maturity.

Related Web Resources:
RD Capital Group and Firm President Ordered to Pay $1 Million in Fines, Restitution for Fraudulent Markups of U.S. Treasury STRIPS, FINRA, May 11, 2009
TreasuryDirect.gov
Continue Reading ›

Auction-Rate Securities Probes Lead to More Enforcement Actions and Final Settlements with Investment Firms

Published on: June 1, 2009 | by Shepherd Smith Edwards & Kantas, LLP

Another state has filed an individual enforcement against brokerage and investment banking firm Stifel, Nicolaus, & Co. Inc. On May 7, Virginia’s State Corporation Commission’s ‘s Division of Securities and Retail Franchising filed its civil lawsuit accusing the broker-dealer of making misrepresentations and false statements related to the sale of auction-rate securities, as well as failing to properly supervise its sales representatives that sold ARS to Virginia residents.

Just this March, Missouri Secretary of State Robin Carnahan had sued Stifel, Nicolaus, accusing the investment firm of making misrepresentations to over 100 ARS clients that were told that the securities were liquid, conservative investments. In May, Carnahan reached an agreement with two Bank of America Corp subsidiaries. Under the agreement, the bank would pay a $1.37 million fine and provide relief to numerous Missouri entities that bought $400 million in ARS.

Meantime, state officials are looking into whether TD Ameritrade Holding Corp., Charles Schwab Corp., and E*Trade Financial Corp also engaged in ARS-related violations. Broker-dealers that have reached preliminary settlements with federal and state regulators over their misrepresentation of ARS to clients include Citigroup Inc., Deutsche Bank AG, Credit Suisse Group, JP Morgan Chase & Co, Goldman Sachs Group Inc., Merrill Lynch & Co. Inc., Royal Bank of Canada, Morgan Stanley, Wachovia Corp, and UBS AG.

Per the agreements, settlement parties would repurchase up to $56 billion in illiquid ARS at par from charities, retail investors, and mid-sized and small businesses, as well as pay $522 million in penalties. The agreements with Bank of America, Wachovia, and Citigroup have been finalized.

Last month, the Financial Industry Regulatory Authority announced final settlements reached with NatCity Investments Inc. of Cleveland (a $300,000 fine), M & T Securities Inc. of Buffalo (a $200,000 fine), M & I Financial Advisors Inc. of Milwaukee (a $150,000 fine), and Janney Montgomery Scott LLC of Philadelphia (a $200,00 fine). FINRA also announced that SunTrust Investment Services Inc. and SunTrust Robinson Humphrey Inc. decided not to finalize their preliminary settlements. FINRA is still investigating both firms’ activities pertaining to ARS.

Related Web Resources:
Virginia sues Stifel, Nicolaus & Co. over auction rate securities, St Louis Business Journal, May 15, 2009
FINRA Announces Agreements with Four Additional Firms to Settle Auction Rate Securities Violations, FINRA, May 7, 2009
Carnahan Finalizes $400 Million Bank of America Auction Rate Securities Settlement, Missouri Secretary of State, May 14, 2009
Carnahan sues Stifel Nicolaus over auction rate securities, St Louis Business Journal, March 12, 2009 Continue Reading ›

Texas Securities Fraud: Court Grants SEC’s Request to Freeze Defendants’ Assets Following $40 Million Investment Scam

Published on: May 29, 2009 | by Shepherd Smith Edwards & Kantas, LLP

The U.S. District Court for the Northern District of Texas has issued an order granting the Securities and Exchange Commission’s request for an asset freeze against Excel Lease Fund, Inc. and its owner, Benny L. Judah. Both are accused of being involved in a $40 million Texas securities fraud scheme that affected hundreds of investors.

In the consent order, the defendants did not admit to or deny the SEC’s allegations. Judah, a Texas business person, also agreed to an injunction barring him and any of his entities from issuing securities. He has control over 78 Texas businesses and plays a leadership role in almost 50 of them.

The SEC says that beginning January 2006, the defendants made a high-yield debenture offering to investors, while telling them that their money would go toward a number of “legitimate business” uses, including helping to retire a series of earlier debentures. The agency contends that Judah actually used the funds for non-Excel business purposes, as well as for his personal use. Investigators say at least $5 million of the funds may have been lost through day trading.

In addition, the SEC is accusing the defendants of overstating by at least 30% the value of assets behind the debentures, neglecting to disclose about $20 million in related-party loans to other Judah-owned companies, and overstating Excel’s assets through the use of some $15 million in bogus lease contracts. The SEC wants to obtain permanent injunctions, fines, and disgorgement against the defendants.

Over the years, our Texas securities fraud lawyers have helped many investment fraud victims recoup their losses.

Related Web Resources:
Benny L. Judah and Excel Lease Fund, Inc., SEC.gov, April 21, 2009
Feds freeze assets of Lubbock businessman Benny Judah, NewsChannel11, April 22, 2009
Read the SEC Complaint (PDF)
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Merrill Lynch Life Agency to Pay Illinois Division Of Insurance $18 Million Over Funeral Trust Scam Allegations

Published on: May 27, 2009 | by Shepherd Smith Edwards & Kantas, LLP

Merrill Lynch Life Agency Inc. will pay $18 million to the Illinois Division of Insurance to settle the state’s investigation into the investment firm’s involvement with a trust fund overseen by the Illinois Funeral Directors Association. The trust was supposed to cover funeral costs for about 49,000 consumers that had prepaid for funeral contracts. The $18 million will be placed in a special fund and will be used to offset losses by association members when delivering on their funeral contract commitments to consumers.

Merrill Lynch & Co. Inc, between 1986 and 1999, had marketed and sold tax-exempt variable universal life insurance policies as investments within the pre-need trust. Unfortunately, in 2007, the trust imploded, and its value dropped from over $300 million to approximately $250 million.

The Illinois Department of Financial and Professional Regulation then conducted a probe into the trust and discovered that the funds’ trustees had used the policies as investments within the trust. Also state comptroller Dan Hynes is asking the association to account for $10 million that trustees allegedly obtained from the trust as excess management fees.

According to state regulators, Merrill Lynch Life registered representative Edward L. Schainker, who served as the association’s investment advisor, recommended and sold over 300 policies to its members. The policies were to offer tax-exempt investment returns. Merrill Lynch’s life insurance division put forth 120 policies and received over $32 million in premiums that were invested in bonds and stocks that over the years have dropped in value and placed the trust’s solvency at risk.

Schainker is accused of violating Illinois insurable-interest laws and of failing to determine whether his investment plan could provide the needed revenue to cover trust liabilities. The Illinois secretary of state’s office has suspended his broker’s license and the state’s insurance division is seeking to revoke Schainker’s insurance license. He also has been ordered to pay civil penalties of $100,000.

By settling, Merrill Lynch Life is not admitting to the allegations made by the state of Illinois.

Related Web Resources:
Merrill Lynch to pay $18 million to halt state probe into funeral trust fund, Chicago Tribune, May 20, 2009
Illinois slams Merrill Lynch Life to the tune of $18M for funeral trust scam, Investment News, May 21, 2009
Illinois Funeral Directors Association

Illinois Department of Financial and Professional Regulation
Continue Reading ›

VSR Financial Services Settles FINRA Claim Over Improper Securities Sales Made to Senior Investors

Published on: May 25, 2009 | by Shepherd Smith Edwards & Kantas, LLP

VSR Financial Services, an investment firm, has agreed to pay $10.3 million to settle a FINRA claim that it failed to properly supervise two ex-brokers accused of improperly selling risky investments to 249 customers. The agreement ends the litigation brought by the investors, many of them retirees, against VSR and its two ex-brokers, Rebecca Engle and Brian Schuster.

Although a number of securities fraud lawsuits have been filed against Schuster, Engle, and VSR, most of the investment fraud victims opted to pursue their cases through arbitration because the terms of their investment agreements prevented them from filing lawsuits. The claimants have accused the former VSR brokers of selling them investments that were inappropriate and high-risk.

The majority of investors who were defrauded say that because they were already either retired or about to retire, they had wanted to place their money in investments that were conservative and low risk. Instead, they claim that Schuster and Engle made high-risk investments for them, selling them securities in Royal Palm Capital Group and American Capital Corp while failing to explain the risks involved. Schuster and Engle allegedly promoted these investments as “mini Berkshire Hathaways” and “can’t miss” opportunities when the companies were actually startups that had limited operating histories. According to criminal complaints and court documents, the investment fraud victims lost at least $20 million.

Engle and Schuster have been charged with eight felony counts of securities fraud. They worked together a number of times between 2000 and 2007 and have also been affiliated with Wachovia Securities LLC and Capital Growth Financial LLC. More arbitration claims against the other companies they’ve been associated with are pending.

Employer to pay $10M, CayCompass.com, May 24, 2009
VSR Financial Services settles securities claims, Kansas City, May 20, 2009 Continue Reading ›

Texas Securities Fraud: Ex-Dallas Football Player Charged with Alleged Involvement in $24 Million Investment Scheme

Published on: May 22, 2009 | by Shepherd Smith Edwards & Kantas, LLP

Earlier this month, in U.S. District Court for the Northern District of Texas, ex-Dallas Cowboys football player Michael Kiselak and three other defendants were charge for their alleged involvement in a $24 million investment fraud scheme. The US Securities and Exchange Commission is suing the defendants, which include Kiselak, who is now a money manager, his Texas-based investment firm Kiselak Capital Group LLC, Jeffrey Sykes, and Gemstar Capital Group Inc, a venture capital company.

According to the SEC, Kiselak, acting on behalf of KCG, obtained about $24 million from 14 investors. However, the SEC says that the former professional football player misrepresented the way the funds would be invested, promised inflated returns, and failed to tell investors that his company would receive a 35% performance fees on any profits from trades. The SEC is also accusing Kiselak of telling investors that his company made a 2.25% month profit trading Treasury bills when he actually invested more than 90% of their funds in Gemstar.

KCG reportedly gave the SEC a brokerage statement showing that as of the end of March 2009, Gemstar had more than $23 million in segregated accounts that it was holding for KCG. The SEC contends, however, that the actual amount was closer to $20 million, and the funds had not been segregated to benefit KCG’s investors. The SEC now says that as of May 9, the amount in the account is about $19 million. As of May 12, KCG reportedly could not account for approximately $7 million of the investors’ funds.

The SEC is seeking permanent injunctions, disgorgement of ill-gotten gains, prejudgment interest, civil money penalties, and the appointment of a receiver to take charge of both firms’ assets. Judge John McBryde has frozen the defendants’ assets and granted a temporary restraining order.

Now a registered broker, Kiselak was a Dallas Cowboys football player from 1998 to 2000.

Related Web Resources:
Ex-Dallas Cowboy Defrauded Fund Investors, SEC, Bloomberg.com, May 12, 2009
SEC sues former Dallas Cowboys player Michael Kiselak and his financial firm, WFAA, May 12, 2009 Continue Reading ›

Wells Fargo Sued Over ARS Sales by California Attorney General for $1.5 Billion

Published on: May 21, 2009 | by Shepherd Smith Edwards & Kantas, LLP

California Attorney General Edmund G Brown, Jr. is suing Wells Fargo Investments LLC, Wells Fargo Institutional Securities, and Wells Fargo Brokerage Services for $1.5 billion. Brown is accusing the Wells Fargo affiliates of violating state securities laws and misleading California investors with false statements about auction-rate securities.

According to the California Attorney General’s securities fraud lawsuit, the Wells units engaged in fraud and deception to sell the securities, neglected to properly train and supervise the agents that sold the ARS, marketed the securities to investors that shouldn’t have been investing in them, and regularly misrepresented the securities when marketing them.

Brown says that nearly 40% of the ARS that the Wells defendants sold are owned by Californians. ARS investors included individuals, non-profits, small businesses, and others that were never fully informed about the risks of investing in theses securities.

ARS sales pitches by Wells Fargo representatives reportedly continued even though there were warnings as early as 2005 from the Financial Accounting Standards Board and others that auction-rate securities should not be considered cash-like equivalents. In November 2007, a Wells Fargo Bank’s Trust Department reportedly sent a memo warning against buying ARS.

Following the collapse of the $330 billion ARS market in February 2008, some 2,400 Californians, who were told that their ARS were liquid like cash, were unable to access their investments that ranged in worth from $25,000 to millions.

Brown says he is suing the Wells units because unlike Citigroup, UBS, Wachovia, and Merrill Lynch, the affiliates have not been able restore the securities’ cash value. The California Attorney General wants Wells Fargo to restore the securities’ value, disgorge any associated profits, and pay civil penalties at $25,000/violation.

Wells Fargo Chief Executive Officer Charles W. Daggs says the investment bank is disputing the claims made in the California Attorney General’s lawsuit. He also noted that Wells was among the first in the investment bank industry to voluntarily give clients with frozen securities significant liquidity. Daggs says that since April 2008, these clients have been able to access 90% of their ARP holdings’ par value via non-recourse loans with favorable rates.

Related Web Resources:
Calif. AG sues Wells Fargo for $1.5 billion, News Daily, April 23, 2009
Read the Attorney General’s Complaint Against Wells Fargo (PDF)
Continue Reading ›