This Week In Securities Litigation

by Dorsey & Whitney LLP
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The DOJ reiterated its Yates policy this week under which cooperation credit is conditioned on furnishing the Department with the identity of individuals involved in corporate wrongdoing. Officials also noted that part of cooperation involves furnishing the facts from witness interviews but not privileged memoranda. The SEC announced that to secure a DPA or an NPA the person must self-report.

The Commission prevailed on summary judgment in a prime bank fraud action. It also filed actions involving the custody rule, insider trading, market manipulation, false adverting by an adviser and misrepresentations.

SEC

Testimony: Chair Mary Jo White gave testimony titled “The SEC”s Agenda, Operations, and FY 2017 Budget Request” before the House Committee on Financial Services (Nov. 18, 2015). Her testimony reviewed plans to complete rule making projects; discussed Enforcement’s efforts to leverage its tools, the execution of the admissions policy, focusing on key areas and the whistleblower program; building on new initiatives for capital formation; the disclosure review; monitoring the asset management industry; and enhancing market structure (here).

Remarks: Andrew Ceresney, Director, Division of Enforcement delivered the Key Note Address at the American Conference Institute’s FCPA Conference (Nov. 17, 2015)(here); (portions of his remarks and those of DOJ officials at the conference are discussed here).

Proposed rules: The Commission proposed rules designed to enhance transparency and oversight of ATSs. The new rules would require the venues to file detailed disclosures about their operations and the activities of their broker-dealer operators and affiliates (here).

CFTC

Remarks: Chairman Timothy Massad delivered remarks to the Exchequer Club of Washington, D.C. (Nov. 18, 2015). He reviewed the de minimis threshold rule for swap dealers and major swap participants and previewed the upcoming meeting on automated trading (here).

SEC Enforcement –Litigated Actions

Prime bank fraud: SEC v. Cooper, Civil Action No. 1:13-cv-05781 (D.N.J. ) is a previously file action against Brent Cooper and his entities. It is based on three alleged fraudulent schemes. The first, according to the complaint, was a prime bank fraud scheme in which Mr. Cooper raised about $1.4 million by claiming to have special access to programs that allowed individuals to pool their funds and obtain an investment opportunity typically only available to Wall Street insiders. In the second Mr. Cooper offered investors the opportunity to participate in the purchase and trade of a $100 million bank guarantee if the investor funds were pooled in an attorney trust account. The third involved the sale of a claimed Brazilian sovereign bond. An investor was told that $50,000 was necessary as a fee to locate and open a brokerage account to market the bond. The documents for the account were forged. The complaint alleged violations of Securities Act Section 17(a) and Exchange Act Sections 10(b) and 15(a). In its opinion granting the SEC’s motion for summary judgment the Court conclude that Mr. Cooper, through his companies, lured investors into fictitious “Prime Bank” or “High-Yield” investment contracts with the promise of extraordinary returns. The Court also concluded that Mr. Cooper participated in a finder’s fee fraud scheme through one of his entities. Overall the Court concluded that Mr. Cooper knew that each of the three investment schemes was a fiction. Over a period of at least four years Mr. Cooper repeatedly violated the law, taking investor funds and using them for his own purposes. The Court entered a final judgment against Mr. Cooper (and his firms by default), entering permanent injunctions prohibiting future violations as to Mr. Cooper based on Exchange Act Section 15(a) and all defendants based on Securities Act Section 17(a) and Exchange Act Section 10(b). The judgment also directs the payment of disgorgement, on a joint and several basis, in the amount of $2,146,160 and prejudgment interest. In addition, it requires that Mr. Cooper pay a penalty of $2,447,639, Global Funding Systems LLC pay $308,667, Dream Holdings, LLC, $1,264,272, Fortitude Investing, LLC, $320,468, Peninsula Waterfront Development, LP, $500,216 and REOP Group, Inc., $500,216. See Lit. Rel. No. 23406 (Nov. 12, 2015).

SEC Enforcement – Filed and Settled Actions

Statistics: During this period the SEC filed 2 civil injunctive cases and 4 administrative proceeding, excluding 12j and tag-along proceedings.

Custody rule: In the Matter of Sands Brothers Asset Management, LLC, Adm. Proc. File No. 3-16223 (November 19, 2015); In the Matter of Christopher R. Kelly, Esq., Adm. Proc. File No. 3-16996 (November 19, 2015). The proceeding naming the firm as a Respondent also named Steven Sands and Martin Sands. The firm provides advisory services to various pooled investment vehicles. Steven and Martin Sands are the controlling persons of the adviser. Mr. Kelly (also listed in the caption of the Order naming the firm) was the firm’s chief compliance officer, chief operating officer and a partner from 2008 through May 2014. The Order alleges that from 2010 through 2012 the firm failed to timely distribute audited financial statements to the investors in a timely manner as required by the custody rule. Messrs. Sands aided and abetted those violations. They were also in violation of an earlier cease and desist order against the firm and Messrs. Sands for similar violations. Mr. Kelly is also charged with aiding and abetting the violations. In an order on summary disposition the firm and Messrs. Sands were found liable as was Mr. Kelly. The Orders allege violations of Advisers Act Section 206(4). To resolve the charges the firm agreed to certain undertakings which include the retention of a monitor for three years. The firm and Messrs. Sands were each ordered to cease and desist from committing or causing any violations and any future violations of the Section cited in the Order. They were also suspended from acting as an investment adviser to any new clients or raising any money on behalf of the funds from new or existing investors for a period of twelve months. Those three Respondents will pay, on a joint and several basis, a penalty of $1 million. Mr. Kelly was denied the privilege of appearing or practicing before the Commission as an attorney for twelve months after which he can request that the agency consider permitting him to resume appearing and practicing.

Insider trading: SEC v. Watson, Civil Action No. 1:15-cv-13868 (D. Mass. Filed November 17, 2015). The action centers on the proposed acquisition of Cooper Tire and Rubber Company by Apollo Tyres Ltd., announced on June 12, 2013. The defendant is Steven Watson, a consultant for SW Associates. Beginning in late 2012 Apollo began its efforts to acquire Cooper Tire. In the Spring of 2013 negotiations became serious. Mr. Watson was friends with Amit Kanodia, the husband of Appollo’s General Counsel who was involved in the negotiations. By April 2013 Mr. Kanoda had misappropriated inside information regarding the proposed deal from his wife and furnished it to his friend, defendant Watson. Mr. Watson traded, purchasing shares and options. When the deal was announced the share price of Cooper Tire increased 41%. Mr. Watson liquidated all of his positions, yielding a profit of $170,000. In accord with their agreement, Mr. Watson paid Mr. Kanodia over $22,000, his percentage of the profits. The complaint alleges violations of Exchange Act Section 10(b). To resolve the action Mr. Watson consented to the entry of a permanent injunction prohibiting future violations of Exchange Act Section 10(b). As part of that settlement Mr. Watson made certain admissions, including the fact that he traded while in possession of inside information and that he knew his conduct violated the federal securities laws. Earlier he pleaded guilty to criminal charges brought by the U.S. Attorney’s Office for the District of Massachusetts based on the same conduct. See Lit. Rel. No. 23408 (November 17, 2015).

Manipulation: SEC v. Jammin’ Java Corp., Civil Action No. 2:15-cv-08921 (C.D. Cal. Filed November 17, 2015) names as defendants the company, Shane Whittle, Wayne Weaver, Michael Sun, Rene Berlinger Stephen Wheatley, Kevin Miller, Mohammed Al-Barwani, Alexander Hunter and Thomas Hunter. The company operated under the name Marley Coffee and was licensed to use the Bob Marley trademarks. It was formed through a reverse merger with Global Electronic Recovery Corp., supposedly a waste management company. The shares were quoted in the OTC BB. Mr. Whittle served as CEO, Treasurer, Secretary and director of the company. Each of the other named defendants is a foreign national. Beginning in 2010 Mr. Whittle, who arranged the reverse merger and held a controlling block of stock, exploited his position by coordinating an illegal offering and fraudulent promotion of the stock. The firm published a false financing arrangement, followed by false promotional releases. The defendants sold 45 million shares into the artificially inflated market yielding millions of dollars in profits. The complaint alleges violations of Securities Act Sections 5(a) and 5(c) and Exchange Act Sections 10(b), 13(d), 16(a) and 17(b). The case is pending.

False advertising: In the Matter of Virtus Investment Advisers, Inc., Adm. Proc. File No. 3-16959 (November 16, 2015). Respondent Virtus has been a registered investment adviser since 1969. F-Squared had been a registered investment adviser since March 2009. That same year Virtus and F-Squared began talks to have F-Squared serve as a sub-adviser for two Virtus-advised mutual funds. Those funds would then adopt the AlphaSector strategy originated by F-Squared. F-Squared launched its first AlphaSector index in late 2008. The firm claimed it had actual test results for the index back to 2001. In fact they were back-tested. Nevertheless, Virtus recommended the firm to the boards of two funds using the false materials. The false claims were also incorporated into advertising materials. Respondent ignored warning signs about the claims and had no procedures for evaluating them. The Order alleges violations of Advisers Act Sections 204, 206(2) and 206(4) and Investment Company Act Section 34(b). To resolve the proceedings Respondent agreed to implement certain undertakings, including the retention of a compliance consultant. The firm also consented to the entry of a cease and desist order based on the Sections cited in the Order and to a censure. It will pay disgorgement of $13.4 million, prejudgment interest and a civil penalty of $2 million.

Misrepresentations: In the Matter of Metis Wealth Advisors, LLC, Adm. Proc. File No. 3-16955 (November 12, 2015) is a proceeding naming as Respondents the firm, a state registered investment adviser for a period, and Juan Montermoso, at one time a FINRA registered representative. Later he was permanently barred from the securities business by FINRA. In 2010 Mr. Montermoso, after forming Metis, had a client from a former firm transfer her account to him so he could “manage the liquidation” of her positions rather than telling the client the liquidations could be done by her existing broker. He then mishandled the liquidation by, among other things, delaying for a substantial period and then taking part of the proceeds as an advisory fee he would not have been entitled to but for the delays. Likewise, he mishandled and deceived a second client regarding her account. While at one point it had paid monthly stipends, he failed to tell the client it did not generate sufficient income for that and began sending her distributions which dissipated the remaining capital. To conceal that fact, he created a false brokerage account showing assets. He also did not tell her that his advisory registration lapsed. The Order alleges violations of Exchange Act Section 10(b) and Advisers Act Sections 206(1) and 206(2). To resolve the proceeding Respondents consented to the entry of a cease and desist order based on the Sections cited in the Order. The firm also consented to a censure. Mr. Montermoso is barred from the securities business. Respondents will pay, jointly and severally, disgorgement of $5,812.95, prejudgment interest and penalties of $65,000.

FINRA

Reg SHO: The regulator fined Deutsche Bank Securities Inc. $1.4 million for violating Regulation SHO and short interest reporting rules. Regulation SHO permits firms to track certain trading operations or desks separately through the use of an aggregation unit. The positions of non-U.S. broker dealer affiliates are not to be included. Deutsche Bank, however, has been including the non-U.S. broker dealer affiliates in the aggregation units for 10 years. The firm also improperly reported its short positions on a net rather than gross basis from April 2004 to September 2012 and failed to have the necessary supervisory systems in place.

Records: The regulator fined Scottrade, Inc., $2.6 million for failing to retain a large number of securities-related electronic records in the requested format. The firm also failed to retain certain categories of outgoing email. From 2011 to 2014 Scottrade did not have centralized document retention processes and procedures. Nobody was charged with responsibility for the document retention system.

Criminal cases

Market manipulation: Gary Kershner and Roy Sanachaisere were convicted in the Eastern District of New York by a jury of conspiracy to commit securities fraud, conspiracy to commit wire fraud, two counts of securities fraud, four counts of wire fraud and two counts of making false statement. The case centered on a $95 million international pump-and-dump scheme.

Hong Kong

Research: The Securities and Futures Commission banned registered representative Gong Yueyue from the securities business for fifteen years based on his conviction. The court concluded that in March 2014 Mr. Gong accepted $100,000 for the publication of a research report. A third party had asked him to prepare the report and after reviewing a draft adjusted the target price for the shares up at the suggestion of the third party .

UK

Cherry picking: The Financial Conduct Authority fined Mothahir Hiah, formerly an analyst at Aviva Investors Global Services Limited, £139,000 for exploiting flaws in the internal procedures to engage in a cherry picking scheme regarding trades he placed. Profitable trades were allocated to his account while others went to fund accounts. He was also banned from the securities business.

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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