This Week In Securities Litigation (Week ending July 18, 2014)

by Dorsey & Whitney LLP

The SEC’s insider trading probe regarding the House Ways and Means Committee and a senior staff member, also involves 44 investment funds and other entities, according to a Bloomberg news report citing recently filed court papers. The investigation is on-going.

The Commission suffered another courtroom loss. This time the agency lost an insider trading claim brought in the Wyly case which was tried to the court after a jury found in favor of the SEC on other claims involving the concealment of the brothers’ shareholdings.

This week the SEC filed an insider trading action centered on a golf group, two stock manipulation cases and a group of actions centered on a claim that the identity of the real control persons of an issuer was concealed in view of their prior law enforcement difficulties. A settled action alleging that EY violated the auditor independence rules was also filed.


Remarks: Commissioner Michael S. Piwowar addressed the AEI Conference on Financial Stability, Washington, D.C. (July 15, 2014). His remarks focused on the FSOC and his concerns that the organization and some of its members are encroaching on the Commission’s area (here).


Commissioner Scott D. O’Malia addressed the Quadrilateral Meeting of the European Financial Markets Lawyers Group, Financial Law Board, Financial Markets Law Committee and Financial Markets Lawyers Group at the Federal Reserve Bank of New York in remarks titled Regulators Must First Do No Harm (July 15, 2015). His remarks focused on fragmented markets, arguing for a holistic approach (here).

SEC Enforcement – Litigated Actions

Insider trading: SEC v. Wyly, Civil Action No. 10-cv-5760 (S.D. N.Y.) is an action in which the SEC prevailed on fraud claims presented to the jury. The agency lost on its insider trading claim which was tried to the court because the penalty was time barred. The claim centered on arrangements to sell Sterling Commerce in the Fall of 1999 and the idea of the Wyly brothers from the summer of that year that they would sell Sterling Commerce and Sterling Software. Between 1992 and 1996 Sam and Charles Wyly created a number of IOM trusts which typically followed their investment recommendations. The brothers had also co-founded Sterling Software in 1981 which later spun off its electronic commerce division which became Sterling Commerce. Both brothers continued as board members for each company.

In September 1999 there were discussions about taking a long position in Sterling Software among advisors to the brothers. Through a series of complex transactions in October 1999 the trusts owned the equivalent of 2 million shares of Sterling Software.

During the summer of 1999 Sam Wyly decided he wanted to sell both Sterling Software and Sterling Commerce. It was his belief that the tech area had reached “euphoric proportions.” No significant steps were taken to sell Sterling Software until November 1999, after which it merged with Computer Associates. In contrast, there were significant efforts to sell Sterling Commerce dating to the Summer 1999, including retaining an investment bank.

The insider trading claim, however, was tied to the sale of Sterling Software and the stock purchases. The agency argued that at the time of the securities acquisitions in October 1999 the Wylys were in possession of material non-public information. Specifically, the SEC claimed that “as Chairman and vice-Chairman of Sterling Software . . . [they] had agreed and resolved that the sale of Sterling Software to an external buyer should be pursued.” Stated differently, the brothers had an idea. The Court rejected this claim, concluding as a matter of law that the information was not material and thus could not be the predicate for an insider trading claim.

SEC Enforcement – Filed and Settled Actions

Statistics: This week the Commission filed, or announced the filing of, 3 civil injunctive actions, DPAs, NPAs or reports and 5 administrative proceedings (excluding follow-on and Section 12(j) proceedings).

Manipulation: SEC v. Discala, Civil Action No. CV 14-4346 (E.D.N.Y. Filed July 17, 2014) is an action against Abraxas Discala and Marc Wexler, respectively, the CEO and president of merchant bank OmniView Capital Advisors LLC; Matthew Bell and Craig Josephberg, registered representatives at a broker; and Ira Shapiro, CEO of CodeSmart Holdings, Inc., a firm created from a reverse merger with minimal assets and a loss from operations. The case centers on a pump and dump scheme in which a substantial number of shares were dumped in the market, the price of the stock was inflated to about $4.60 giving the shell a market capitalization of over $86 million and then the stock was dumped with the price crashing to about 10 cents. Messrs. Discala and Wexler reaped millions of dollars while Messrs. Bell and Josephberg made over $500,00. The Commission’s complaint alleges violations of Exchange Act Sections 9(a) and 10(b), Securities Act Sections 5(a) and (c) and each subsection of Section 17(a). The case is pending. Parallel criminal charges were brought. See Lit. Rel. No. 23046 (July 17, 2014).

Diversion of funds: In the Matter of Lakeside Capital Management, LLC, Adm. Proc. File No. 3-15976 (July 17, 2014) is a proceeding naming as respondents the registered investment adviser and its owner and portfolio manager, Dennis H. Daugs, Jr. From 2008 through 2012 Mr. Daugs diverted over $8 million in client assets to his use. First he invested $3.1 million of a client’s funds in a loan to himself. Second, he used over $560,000 from a private fund to make settlement payments to several of his clients. The funds were eventually repaid. The Order alleges violations Exchange Act Section 10(b) and Advisers Act Sections 206(1), (2) and (4). The Respondents resolved the action, with each consenting to the entry of a cease and desist order based on the Sections cited in the Order. Mr. Daugs was barred from the securities business with a right to reapply after five years. Respondents, jointly and severally, will also pay disgorgement of $302,451, prejudgment interest and a civil penalty of $250,000.

Misappropriation: SEC v. Pearson, Civil Action No. 1:14-cv-03875 (N.D. Ill.) is a previously filed action against Robert Pearson and Illinois Stock Transfer Company from which he misappropriated about $1.3 million. The defendants consented to the entry of a permanent injunctions prohibiting future violations of Exchange Act Sections 10(b) and 17A(d)(1). Issues concerning disgorgement and penalties will be decided in the future on motion by the Commission. See, Lit. Rel. No. 23043 (July 11, 2014).

Concealed control: In the Matter of Natural Blue Resources, Inc. Adm. Proc. File No. 3-15974 (July 16, 2014); In the Matter of Erik H. Perry, Adm. Proc. File No. 3-15975 (July 18, 2014); In the Matter of Toney Anaya, Adm. Proc. File No. 3-15973 (July 16, 2014). This is a group of proceedings center on OTC traded Natural Blue, an issuer which filed reports with the SEC. The proceeding against the company also names as Respondents James Cohen and Joseph Corazzi. Messrs. Cohen and Corazzi created the company. Each had a consulting agreement. From August 2009 through late January 2011 Mr. Anaya was the CEO of the company after which Mr. Perry assumed that role. In fact Messrs. Cohen and Corazzi secretly ran the company. Both had backgrounds which included violations of the law for fraud. Investors were thus not told who was running the company, which also maintained a website that contained false statements. The Order as to the company and Messrs. Cohen and Corazzi alleges violations of each subsection of Securities Act Section 17(a) and Exchange Act Sections 10(b) and 15(d). That case will be set for hearing. The proceeding as to Mr. Anaya alleges violations of Securities Act Section 17(a)(2). Mr. Anaya entered into a cooperation agreement with the SEC. He also consented to the entry of a cease and desist order based on the Section cited in the Order. He was barred from participating in any penny stock offering with a right to apply for reentry after five years. A hearing will be held to determine any monetary sanctions. The proceeding against Mr. Perry alleged violations of Securities Act Section 17(a) and Exchange Act Section 10(b). Mr. Perry resolved the action, consenting to the entry of a cease and desist order based on the Sections cited in the Order. Mr. Perry was also barred from serving as an office or director of a public company and participating in a penny stock offering. In addition, he was directed to pay a penalty of $150,000.

Investment fund fraud: SEC v. Rooney, Civil Action No. 11-8264 (N.D. IL.) is a previously filed action brought against Patrick Rooney and his controlled entity, Solaris Management, LLC. The complaint alleged that the defendants radically changed the investments of the managed fund, contrary to its documents, by becoming wholly invested in a financially troubled company of which Mr. Rooney was chairman. Previously, the defendants settled, agreeing to the entry of consent injunctions based on Securities Act Section 17(a), Advisers Act Sections 206(1) and (2) and Exchange Act Sections 10(b) and 13(d). This week the Court entered an order requiring the defendants to pay disgorgement of $715,700, prejudgment interest and a civil penalty equal to the disgorgement. Mr. Rooney was also barred from operating a private investment fund and serving as an officer or director of any public company except the one involved here since he is CEO and Chairman. See Lit. Rel. No. 23045 (July 16, 2014).

Independence: In the Matter of Ernst & Young, Adm. Proc. File No. 3-15970 (July 14, 2014). In 2000 EY acquired Washington Counsel, P.C., a legislative advisory services provider. In 2009 EY, through Washington Counsel, provided legislative advisor services for Firm A and Firm B. For example, for Firm A Washington Counsel urged the passage of legislation to congressional staff on behalf of the client on two different occasions. For Firm B on one occasion the advisory firm attempted to persuade congressional offices to withdraw support for a proposal that would have been detrimental to the client. In both instances Washington Counsel acted as an advocate for the Firms. Both Firms were audit clients of E&Y. At the time EY had issued audit opinions for each Firm, representing that it was independent despite the fact that the audit firm was not since it was acting as an advocate for each client. The Order alleges violations of the independence rules. Specifically, it alleges violations of Rule 2-02(b)(1) of Regulation S-X. It also alleges that the audit firm caused violations of Exchange Act Section 13(a) and Rule 13a-1 by the two audit clients. To resolve the proceeding EY consented to the entry of a cease and desist order based on the provisions cited in the Order and to a censure. The firm also agreed to pay disgorgement of $1,240,000, prejudgment interest and a civil penalty of $2,480,000.

Insider trading: SEC v. McPhail, Civil Action No. 1:14-cv-12958 (D. Mass Filed July 11, 2014) names as defendants Eric McPhail and a group of his friends, Douglas Parigian, John Gilmartin, Douglas Clapp, James “Andy” Drohen, John Drohen and Jamie Meadows. Mr. McPhail became close friends with an Executive at American Superconductor through their country club. The two men frequently played golf together and socialized. Over time they became close and shared confidences with the understanding that the information would be kept confidential. Beginning in July 2009 Mr. McPhail periodically obtained inside information from his friend the Executive. He circulated that to his other friends through e-mail. Mr. McPhail and various of his friends repeatedly traded on the information. The complaint alleges violations of Exchange Act Section 10(b). Messrs. Gilmartin, Clapp, Andy Drohen and John Drohen settled with the Commission, with each consenting to the entry of a permanent injunction prohibiting future violations of Exchange Act Section 10(b). In addition, each paid disgorgement, prejudgment interest and a civil penalty equal to their trading profits: Mr. Gilmartin $23,713 in disgorgement; Mr. Clapp, $11,848 in disgorgement; Andy Drohen $22,543 in disgorgement; and John Drohen $8,972 in disgorgement. See Lit. Rel. No. 23040 (July 11, 2014).

Manipulation: SEC v. Affa, Civil Action No. 1:14-cv-12959 (D. Mass. Filed July 11, 2014) names as defendants Michael Affa, Andrew Affa, Mitchell Brown, Christopher Putnam and Christopher Nix. The scheme centers on trading in the shares of Amogear Inc. in the over-the-counter markets beginning in August 2012. Amogear is a shell which has no business operations. During the period it was controlled by a Confidential FBI Informant. At one point the CFO of the company was an undercover FBI agent. Messrs. Nix and Putnam put together a scheme to manipulate the stock price and trading of Amogear. Mr. Nix owned a promotional firm called Global Marketing Media LLC and websites that touted and promoted penny stocks. Messrs. Nix and Putnam planned a promotional campaign for Amogear shares. The plan was to run a pump and dump scheme. Various defendants had specific roles such as manipulative trading. The defendants and the Confidential Informant agreed that the scheme would kick-off in early February 2014. On the kick-off date the websites controlled by Global Marketing Media released e-mail blasts containing misrepresentations about the company. On the same date the Commission suspended trading in the shares of the company. The Commission’s complaint alleges violations of Exchange Act Section 10(b) and Securities Act Sections 17(a)(1) and (3). The action is in litigation. Parallel criminal charges were brought by the U.S. Attorney’s Office.

Prime bank fraud: SEC v. Butts, Civil Action No. 13-23115 (S.D. Fla.) is a previously filed action against, among others, attorney Bernard H. Butts who served as the escrow agent for the scheme. The Court entered an order directing Mr. Butts to pay disgorgement of $1,691,608, prejudgment interest and a penalty of $2,059,284.19. Mr. Butts also consented to the entry of an order barring him from the securities business, from participating in any penny stock offering and suspending him from practicing as an attorney on behalf of any entity regulated by the SEC. See Lit. Rel. No. 23044 (July 15, 2014).


U.S. v. Pomponi (D. Conn.) is an action in which William Pomponi, formerly vice president of regional sales at Alstom Power Inc., pleaded guilty to a criminal information charging conspiracy to violate the FCPA in connection with the awarding of the Tarahan power project in Indonesia. In the underlying scheme the defendant, and others, paid bribes to officials in Indonesia, including a member of Parliament and high-ranking members of Perusahaan Listrik Negara or PLN, the state owned and controlled electricity company, in exchange for assistance in securing a $118 million contract known as the Tarahan project to provide power related services. Mr. Pomponi is the fourth Alstrom executive to plead guilty.

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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