This Week In Securities Litigation

by Dorsey & Whitney LLP
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The SEC brought another custody rule action this week – against the outside auditors alleging that one examination was insufficient and the others incomplete thereby causing the client to violate the surprise audit requirement of the rule. failing the surprise audit requirement. The agency also brought another suspicious trading action, alleging the required elements on “information and belief. A third action claimed that two firms involved in the EB-5 program acted as unregistered brokers. In addition, the Commission brought two cases centered on claims of selling unregistered securities and another tied to compliance failures.

SEC

Remarks: Chair Mary Jo White delivered remarks titled “Building Meaningful Communication and Engagement with Shareholders” to the Society of Corporate Secretaries and Governance Professionals 69th National Conference, Chicago, Illinois (June 25, 2015). Her remarks focused on preliminary voting results and unelected directors (here).

Remarks: Commissioner Luis Aguilar delivered remarks titled “A Threefold Cord – Working Together to Meet the Pervasive Challenge of Cyber-Crime” to the SINET Innovation Summit, New York, New York (June 25, 2015). He reviewed the issues relating to cyber-crime, the current regulations and guidance from the agency and possible future legislation and SEC efforts in the area (here).

Remarks: Commissioner Daniel Gallagher delivered remarks titled “Activism, Short-Term, and the SEC” at the 21st Annual Stanford Directors’ College (June 23, 2015). In his remarks the Commissioner addressed the SEC role regarding activism, shareholder proposals, proxy firms and the future (here).

SEC Enforcement – Filed and Settled Actions

Statistics: During this period the SEC filed 3 civil injunctive cases and 4 administrative actions, excluding 12j and tag-along proceedings.

Custody rule: In the Matter of Michael S. Wilson, CPA, Adm. Proc. File No. 3-16652 (June 25, 2015) names as Respondents Mr. Wilson, a 50% shareholder in audit firm Cotterman-Wilson CPAs, Inc., also named in the proceeding. Professional Investment Management, Inc., a registered investment adviser with custody of client assets retained Cotterman-Wilson to conduct the surprise audits required by the custody rule. The firm conducted the required audits from 1999 to 2008. In 2009 it did work but its opinion lacked a reasonable basis and the firm failed to file Form ADV-E as required. In 2010 and 2011 Respondents failed to complete the exams and did not timely withdraw or file the required form. This caused Professional Investment to violate the Rule. The Order alleges violations of Advisers Act Section 206(d). To resolve the matter both the firm and Mr. Wilson consented to the entry of a cease and desist order based on the Section cited in the Order. In addition, Mr. Wilson was denied the privilege of appearing and practicing before the Commission and ordered to pay a $50,000 penalty. The firm was also denied the privilege of appearing and practicing before the Commission but with the right to apply for re-entry after three years. The firm was ordered to pay disgorgement of $10,868 along with prejudgment interest.

Suspicious trading: SEC v. Luo, (S.D.N.Y. Filed June 23, 2014) is a “suspicious” trading case. The action centers on the buy-out announcement for Qihoo 360 Technology Co, Ltd, by its Chairman and CEO and a consortium of other affiliates, announced on June 17, 2015. Defendant Hijian Luo is a resident of Guangzhou, China. He is the CEO of 4399 Co., Ltd., an online game company that provides single, multiplayer and children’s games along with animation through the internet. Qihoo 360 is a Cayman Islands entity with its principal executive offices in Beijing, China. The firm, which conducts business through a number of subsidiaries and affiliates, is a leading internet company in China. The firm listed its ADSs on the NYSE in March 2011. The next month it conducted an IPO and trades under the symbol QIHU. Mr. Luo opened an account with the San Francisco office of Credit Suisse Securities (USA) LLC on March 6, 2015. The account was not funded until May 18, 2015 when Mr. Luo wired in $720,000. The next day he purchased 2,250 QIHU out of the money call options at a total price of $711,778.

The options purchased by Mr. Luo became in the money as of June 11 when the stock traded at a high of $67 and closed at $65.95. Mr. Luo did not sell. Following the buy-out announcement, which was for all of the outstanding shares and the ADSs, the share price of the company rose to $66.05 at the close on June 16, 2015. The next day the share price increased again, closing at $70.15. All of Mr. Luo’s options were sold following the deal announcement. This resulted in a realized profit of about $1,019,537. On June 22 Mr. Luo transmitted wire instructions for the transfer of $600,000 to a bank in Singapore. The key insider trading and tipping elements were alleged on “information and belief.” The complaint alleges violations of Exchange Act Section 10(b). The Commission obtained a freeze order. The case is pending.

Unregistered broker: In the Matter of Ireeco, LLC, Adm. Proc. File No. 3-16647 (June 23, 2015). Respondents in the proceeding are Ireeco, LLC and Irecco Limited. LLC is a Florida limited liability company, while Limited in a Hong Kong entity. Between January 2010 and May 2012 LLC solicited foreign investors who wished to invest in the EB-5 program which provides a path to a permanent green card in return for job creating investments. Here those investments were made through regional centers – an entity involved with the promotion of economic growth approved by the USCIS to administer projects. Applicants through a center are only required to invest $500,000 rather than $1 million. The firm earned fees under the “referral partner agreements” it had with regional centers for brining in customers. The fee was paid once a conditional green card was approved by USCIS. The fee was a commission based on a fixed portion of the administrative fee the investor paid to the center, on average about $35,000 per investor. From January 2010 to present Respondents were paid fees for actively soliciting 158 foreign investors. The applicants invested about $79 million in the regional centers. The Order alleges violations of Exchange Act Section 15(a)(1). To partially resolve the proceeding Respondents consented to the entry of a cease and desist order based on Exchange Act Section 15(a). They also agreed to a censure. A hearing will be conducted to determine if it is appropriate to order disgorgement and/or civil penalties.

Unregistered securities: SEC v. Mulholland (E.D.N.Y. Filed June 23, 2015) is an action against Gregg Mulholland, a recidivist who is past due on a $5.3 million judgment owed to the Commission for selling unregistered securities. This complaint alleges that Mr. Mulholland sold at least 83 million unregistered shares of Vision Plasma through nine offshore international business corporations in 2012. There was no registration statement in effect. The complaint alleges violations of Securities Act Sections 5(a) and 5(c). The case is pending. A parallel criminal action has been filed. See Lit. Rel. No. 23293 (June 25, 2015).

Compliance: In the Matter of Pekin Singer Strauss Asset Management Inc., Adm. Proc. File No 3-16646 (June 23, 2015). Named as Respondents are the firm, a registered investment adviser and Ronald Strauss, until recently the president of the firm, and William Pekin and Joshua Stauss, both portfolio managers for Appleseed Fund. The Order alleges that from 2009 through 2011 the firm failed to timely conduct annual compliance program reviews and to implement and enforce provisions of its policies and procedures and code of ethics. In addition, from 2011 through early 2014 Respondents kept or placed a number of clients in the investor share class of Appleseed who were eligible for less expensive shares. The additional fee of 25 basis points went to the firm. The Order alleges violations of Advisers Act Sections 206(2), 204A, 206(4) and 207. Respondents resolved the claims with each Respondent consenting to the entry of a cease and desist order. The firm’s order is based on Advisers Act Sections 204A, 206(2), 206(4) and 207; the order as to Mr. Strauss is based on the same Sections except 206(2); and as to Messrs. Pekin and Strauss, it is based on Sections 206(2) and 207. In addition, the firm and Messrs. Pekin and Strauss were censured. The firm will pay a penalty of $150,000 while each of the individuals will pay $45,000.

Investment fund fraud: SEC v. Williamson, Civil Action No. 1:15-cv-22080 (S.D. Fla.) is a previously filed action against investment adviser Phil Williamson. Using Sterling Investment Fund, which purportedly invested in mortgages and property, Mr. Williamson solicited largely public sector retirees to invest in what was actually a Ponzi scheme. Mr. Williamson settled with the Commission and the Court entered a final judgment permanently enjoining him from future violations of Advisers Act Sections 206(1), (2) and (4) and directing the payment of disgorgement in the amount of $748,050. A parallel criminal case is pending. See Lit. Rel. No. 23291 (June 23, 2015).

Unregistered securities: In the Matter of Ironridge Global Partners, LLC, Adm. Proc. File No. 3-16649 (June 23, 2015) is a proceeding which names as Respondents Ironridge and Ironridge Global IV, Ltd. which was, until recently a wholly owned subsidiary of Ironridge Global Partners. Beginning in 2011, and continuing through early 2014, the two firms implemented a business model in which microcap issuers were solicited for a liabilities for equity financing program. Under the so-called LIFE program, Respondents acquired claims against microcap issuers which were then resolved through with unregistered shares under a state court order. Utilizing Securities Act Section 3(a)(10) , which exempts from registration shares acquired in a court approved exchange for bona fide outstanding claims, Respondents received and sold about 5.5 billon shares of stock, realizing about $22 million. The Order alleges violations of Exchange Act Section 15(a). The case will be set for hearing.

Investment fund fraud: SEC v. Capital Cove Bancorp LLC, Civil Action No. SACV 15 00980 (C.D. Cal. Filed June 18, 2015) is an action which names as defendants Capital Cove, formerly a registered investment adviser, and Christopher Lee, the firm’s owner. The defendants are alleged to have raised about $1.9 million from 15 U.S. investors over a two year period. Most of the money was misappropriated. To effectuate their schemes defendants formed two investment funds, soliciting investors with false claims that the funds invested in real estate. One of the investors they solicited was an undercover FBI agent. They also sold membership interests in a fund. The complaint alleges violations of Securities Act Sections 5(a), 5(c) and 17(a), Exchange Act Section 10(b) and Advisers Act Sections 207 and 203A. The case is pending. See Lit. Rel. No. 23292 (June 24, 2015).

Australia

Disclosure: The Australian Securities and Investment Commission announced civil penalty proceedings against Padbury Mining Limited and two of its directors. The proceeding is based on the firm’s failure to comply with its continuous disclosure obligations based on an April 11 2014 announcement that $6 billion in funding had been secured to develop the Oakejee port and rail project. The announcement followed execution of an agreement with Superkite Pty Ltd. and Super Holdings Pty Ltd regarding funding. The funding agreement was terminated by the parties. The firm failed to disclose that the agreement was subject to significant conditions precedent which had not been met.

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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