This Week In Securities Litigation

by Dorsey & Whitney LLP
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The SEC – Musk disputed continued this week. In the latest round, the Commission escalated the claims, alleging that Mr. Musk never complied with the Court’s order requiring that material communications about the auto maker be approved before dissemination. These papers significantly alter the nature of the dispute which began with the look of a personal squabble. Mr. Musk has requested leave to file additional papers.

Enforcement actions filed by the Commission this week centered on offering fraud cases. One is based on a fraud by a CPA that ran for years. Another offering fraud was run by an oil and gas firm that lured investors with claims about assets that had been lost in a court action. Another was conducted by on-line registered Pastor, not long out of prison, at the Church of the Healthy Self. Finally, an action was brought against an investment adviser who worked both sides of a transaction, arranged a sham transaction and secured a profit for himself.

SEC

Proposals: The Commission approved Offering Reforms for Business Development Companies and Registered Closed-End Funds (March 20, 2019). The proposals implement certain provisions of the Economic Growth, Regulatory Relief and Consumer Protection Act. They build on approaches currently in use and are designed to improve access to capital for BDCs (here).

Rules: The agency adopted Rules to Implement FAST Act Mandate to Modernize and Simplify Disclosure. The amendments will increase flexibility in the discussion of historical matters in MD&A and allow firms to redact confidential information without making a confidential treatment request (March 20, 2019)(here).

Remarks: Commissioner Elad L. Roisman delivered the Keynote Remarks at the ICI Mutual Funds and Investment Management Conference, San Diego, California (March 18, 2019). His remarks focused on the proxy process (here).

Remarks: Dalia Blass, Director of Investment Management, delivered remarks at the ICI Mutual Funds and Investment Conference, San Diego, California (March 18, 2019). Her remarks focused on the agenda for the coming year which will build on recent rule makings such as those involving ETFs and proxy advisors (here).

Remarks: William Hinman, Director of Corporation Finance, delivered remarks titled “Applying a Principles-Based Approach to Disclosing Complex, Uncertain and Evolving Risks” at the 18th Annual Institute on Securities Regulation in Europe, London, England (March 15, 2019). His remarks focused on applying disclosure requirements to situations such as Brexit, environmental issues and cyber-security by, in part, keying on the risks to the enterprise (here).

SEC Enforcement – Filed and Settled Actions

The Commission filed 4 civil injunctive actions and 2 administrative proceedings this week, exclusive of 12j and tag-along actions.

Offering fraud: SEC v. Pedersen, Civil Action No. 19-cv-2069 (C.D.CA. Filed March 20, 2019) names as a defendant Carol Ann Pedersen, a California licensed CPA since 1977. Since at least 1991 Defendant has solicited clients for her investment funds. One fund supposedly purchased fixed-rate securities. The other claimed to put investor cash into instruments that had a high rate of return. Overall about $29.3 million was raised from 25 investors. In fact, Ms. Pedersen was operating a Ponzi scheme. The complaint alleges violations of each subsection of Securities Act Section 17(a), Exchange Act Section 10(b) and Advisers Act Sections 206(1), 206(2) and 206(4). The case is pending. The U.S. Attorney’s Office for the Central District of California filed parallel criminal charges. See Lit. Rel. No. 24430 (March 20, 2019).

Offering fraud: SEC v. Crawford, Civil Action No. 19-cv-1022 (S.D. Ohio Filed March 19, 2019). The oil and gas scheme was conducted by Defendant Timothy Crawford and his firm, Cardinal Group, Inc., also a defendant. Mr. Crawford served as the CEO of Cardinal Energy until 2012 when he resigned to become a consultant. The firm’s shares were listed on OTC Markets Group, Inc. In 2017 Cardinal lost control of two oil and gas leases that represented 87% of the firm’s revenue in a lawsuit. That action was filed in March 2017. In June of that year the Court entered a default judgment against the company. The month after the judgment was entered Cardinal filed reports with the Commission. Those filings represented that the firm still had the two leases lost in the Court action. Mr. Crawford signed the filings. Defendants subsequently raised about $1 million from investors in a private offering of Cardinal stock. Investors were not told that the Commission filings were false. They were also not told that the two leases had been lost. The complaint alleges violations of Exchange Act Sections 10(b), 13(a), 13(d) and 14(c) and Securities Act Section 17(a)(2). The case is pending. See Lit. Rel. No. 24427 (March 19, 2019).

Conflicts/sham transaction: In the Matter of Talimen, LLC, Adm. Proc. File No. 3-19108 (March 15, 2019). Talimen is a Commission registered investment adviser. Its CEO, and a member of the investment committee, is Grant Gardner Rogers, named as a Respondent in a related proceeding cited below. Over a three year period, beginning in 2012, Talimen served as the collateral manager and investment adviser to several collateralized debt obligations or CDOs. The assets held by the CDOs included participations in a $57.2 million first mortgage on a Chicago hotel. The participations entitled the CDOs to a stream of income from the mortgagees. By early 2014, however, the mortgage loan was in default. In June 2014 Talimco created a Fund and became its adviser. The Fund focused on real estate investments. By the end of the year the Fund had acquired all but one of those interests, valued at about $10 million. In April 2015 the Fund sought to acquire the final participation related to the Chicago hotel. The Fund was acting on the advice of Talimco. At the same time Talimco was advising the collateral manager. In compliance with the CDO operating documents, Talimco advised the Fund to bid 50% of the face value. The adviser also arranged for four market makers to bid in the auction. The market makers were reluctant to become involved in the auction but agreed. The Fund prevailed in the auction, not the market makers. Ultimately, in December 2015 Talimco caused the Fund to sell the mortgage loan participations for $43.5 million to the highest bidder at an auction. Each participation had been acquired at 50% of face value. The Fund realized a profit of about $14.9 million. Mr. Rogers personally realized profits of about $14,000 on the sale of the approximately $10 million participation. Talimco also received about $74,000 in management and performance fees attributable to the purchase of the approximately $10 million mortgage loan participation from the CDO by the Fund. The CDO that sold the last loan participation was unable to repay all of its debts, including about $410,000 in principal owed to CDO noteholders.

The Order alleges violations of Advisers Act Section 206(2). In resolving the matter, the adviser agreed to cooperate fully with the Commission. The adviser consented to the entry of a cease and desist order based on the section cited in the Order and to a censure. Talimco will also pay disgorgement of $74,000, prejudgment interest of $8,758.80 and a penalty of $325,000. See also In the Matter of Grant Gardner Rogers, Adm. Proc. File No. 3-19107 (March 15, 2019)(COO of adviser settled action based on the same facts, consenting to the entry of a cease and desist order based on Advisers Act Section 206(2), a 12 month suspension from the securities business and the payment of a $65,000 penalty).

Deceptive scheme: SEC v. Volkswagen Aktiengesellschaft (C.D. Cal. Filed March 15, 2019) names as defendants the firm, CEO Martin Winterkorn and VW Credit, Inc. In 2005 VW made a strategic decision to launch a large promotion of diesel vehicles in the United States. The German manufacture claimed to be developing “clean diesel,” a product that would meet the demands for environmentally-friendly vehicles. Other manufactures such as Toyota and GM chose a different path – hybrids. Two years later Mr. Winterkorn became CEO and Chairman of the Board of Management. VW’s recently installed leader launched a new initiative – Strategy 2018. The plan called for VW to be the largest, most profitable and most environmentally friendly car maker in the world by 2018. An important cog in the plan was the sale of diesel cars in the U.S. Over the next several years VW’s U.S. sales numbers increased. By 2012, for example, 100,000 vehicles were being sold in the United States. World-wide sales were climbing. By 2015 VW passed both GM and Toyota in global sales. The company became the largest carmaker in the world, a key goal of CEO Winterkorn’s initiative. That initiative was fueled, at least in part, by the U.S. capital markets. Millions of dollars in securities were sold in offerings to finance the expansion of the company to the top. For example, between May 2014 and June 2015 the company conducted three separate bond offerings, raising over $8 billion from U.S. investors. The vehicle and the securities sales, according to the SEC’s complaint, were based on “clean diesel.” In fact, it did not exist. Rather, a “defeat device” existed which made it appear that the autos met emission standards when being tested. While the CEO participated in a meeting with engineers where the device was discussed and senior company officials warned the scheme could damage the firm, it went forward and became the predicate for the car sales and the funds raised in the U.S. capital markets. Eventually the fraud was exposed, largely through university researchers who defeated the defeat device. By March 10, 2017, VW was compelled to plead guilty to three criminal felony counts in U.S. District Court. A $2.8 billion billon criminal penalty was imposed on the firm. Penalties were also paid to the EPA and various states. U.S. investors have not, however, been repaid the billions of dollars they spent to further the false tale of “clean diesel.” The complaint alleges violations of Exchange Act Section 10(b) and Securities Act Sections 17(a)(2) and (3). The case is in litigation.

Offering fraud: SEC v. Whitney, Civil Action No. 8:19-cv-499 (C.D. Cal. Filed March 13, 2019). A scheme targeting Vietnamese investors was operated in part by Defendant Kent Whitney, a former commodity broker then recently released from prison on wire fraud charges who had become an on-line minister. Minister Whitney became pastor of The Church for the Healthy Self, a/k/a/ Defendant CHS Trust which was related to CHS Asset Management Inc., another defendant. Defendant David Parrish, a friend of Pastor Whitney, also became a pastor at the Church for the Healthy self. The two Pastors, along with the Church and its related entity, used presentations, radio and television advertisements and YouTube videos, to solicit investors for their investment fund. Specifically, potential investors were told there would be at least 12% annual returns that were tax deductible, guaranteed and FDIC and SIPIC insured. Potential investors were assured that the investment was safe and growing tax free. The fund was supposedly managed by Wall Street Investors, audited by KPMG and a well-run company. Indeed, part of the returns were donated to charity. The claims, which generated over $25 million in investments from investor savings and retirement accounts, were false. The majority of the investor cash was misappropriated by Defendants. This scheme is on-going today. The complaint alleges violations of Securities Act Section 17(a) and Exchange Act Section 10(b). The Court granted the Commission’s request for a freeze order. See Lit. Rel. No. 24426 (March 18, 2019).

Criminal cases

Offering fraud: U.S. v. Montoya, No. 1:18-cr-10225 (D. Mass.) is an action in which former hedge fund manager Raymond Montoya was sentenced to serve 175 months in prison followed by three years of supervised release. Mr. Montoya pleaded guilty to three counts of wire fraud, five counts of mail fraud and two counts of conducting an unlawful monetary transaction. Between 2009 and 2017 Mr. Montoya operated a pooled fund called Strategic Opportunity Fund, LLC. When soliciting investors that included friends and family, he touted the success of the fund. In fact, the fund was losing money. As new investor funds came in Defendant diverted much of the money to other uses.

Cyber-security/insider trading: U.S. v. Korchensky, No. 15-cr-381 (E.D.N.Y.). Defendant Vitaly Korchevsky was sentenced to serve 60 months in prison and ordered to pay $14.4 million in forfeiture and a fine of $250,000. He was convicted by a jury after a four week trial of conspiracy to commit wire fraud, conspiracy to commit securities fraud and computer intrusion, conspiracy to commit money laundering and two counts of securities fraud. The charges are based on a scheme in which the Defendant, along with another, hacked into three newswire services and stole press releases containing inside information. That information was used to trade securities. The trades netted the defendants about $30 million in illegal trading profits.

Offering fraud: U.S. v. Booy, No. 1:16-cr-00839 (N.D. Ill. Sentencing March 18, 2019). Defendant Richard Booy, the founder of Principal Financial Strategies LLC and Safe Financial Strategies Inc., was sentenced to serve 60 months in prison after pleading guilty to one count of wire fraud. Over a four year period, beginning in 2012, Mr. Booy lured 15 investors to entrust him and his firms with over $1.4 million. Investors were told that the investment was riskless. Many of those who entrusted their funds to Mr. Booy believing his firm was affiliated with Principal Financial Group, which it was not. In fact, Mr. Booy continued soliciting investors even after that company obtained an injunction against him.

Offering fraud: U.S. v. Pollak, No. 3L18-cr-00200 (D. Conn. Plea March 18, 2019). Defendant Leonid Pollak operated a business in Norwalk, Connecticut that conducted trade shows across the U.S. In mid-2013 he convinced an investor to help finance a new business venture that would conduct similar expositions in the Ukraine. He then misappropriated the investor funds for other purposes. He pleaded guilty to one count of wire fraud. Sentencing is scheduled for June 10, 2019.

Hong Kong

Frozen assets/manipulation: The Securities and Futures Commission issued notices to nine brokerage firms freezing certain assets. Specifically, the notices stated that although the firms were not under investigation they could not dispose of the assets – cash and/or securities – in certain client accounts. The assets were suspected of being tied to market manipulation activity.

Compliance: The SFC imposed a penalty of HK $10 million on BOCI Securities Ltd. for internal systems failures tied to its investment product selling practices. Specifically, the firm’s policies and procedures failed to prevent improper practices that included failing to assess client risk tolerance and strategy, ensure clients had sufficient net worth for certain product, conduct appropriate product due diligence prior to a recommendation and implement and maintain effective controls and systems to supervise the sale and distribution of investment products to clients in compliance with the applicable regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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