Saturday, September 8, 2007
The preliminary Form S-4 filed for the acquisition of Dow Jones by News Corp. states that advisers to the publisher contacted 21 "potential transaction partners," but generated no counter-offers to Murdoch's $60 per share bid. The document also sets forth a detailed chronology of events from the initial contact in March until the announcement of the merger on August 1. The Dow Jones shareholders meeting is expected to be held in October. WSJ, Dow Jones Didn't Get A Viable Rival Offer.
Friday, September 7, 2007
The SEC announced that NYSE Euronext is the first stock exchange to submit financial reporting information using interactive data, joining more than 40 public companies that are leading the way in making filings more accessible and understandable to investors. The SEC's voluntary interactive data filing program allows public companies to submit documents in eXtensible Business Reporting Language (XBRL) format as exhibits to periodic reports and investment company act filings. Participants in the program provide the SEC with feedback on benefits or deficiencies involved with submitting XBRL filings. The SEC staff, in return, provides expedited reviews of all of their registration statements and Form 10-Ks.
Former Enron CEO Jeffrey Skilling, convicted of multiple counts of securities fraud and sentenced to more than 24 years in prison, has requested a new trial, claiming "Profound, inherent weaknesses in the government's case -- not just gaps in its evidentiary proof, but doubts about its basic theories of criminality -- motivated the government to resort to novel and incorrect legal theories, demand truncated and unfair trial procedures, and use coercive and abusive tactics" in his appeal to the Fifth Circuit. WSJ, Former Enron CEO Skilling Makes Appeal for New Trial.
The SEC Historical Society has posted on its website a number of interesting programs, including a Fireside Chat on Accounting Aspects of the FCPA on Sept. 18 at 3 p.m. moderated by Professor Theresa Gabaldon at GW Law School.
Drexel University's Program in Business & Entrepreneurship Law is presenting a faculty colloquium with Professor Thomas Brennan entitled "Impossible Frontiers" on Friday Sept. 28 at 10:30 a.m. (this is a change from a previously posted date). Here is the abstract of Professor Brennan's paper:
A key concept of the Capital Asset Pricing Model is the Mean-Variance Efficient Frontier, the collection of portfolios of n assets having mean-variance characteristics that cannot be improved upon. We study Mean-Variance Efficient Frontiers for which every portfolio on the frontier has at least one negative weight, i.e., for every portfolio, at least one asset is sold short. We call such a frontier an "impossible frontier" because the CAPM requires that the market portfolio—the portfolio of all n assets where the weight of each asset is proportional to that asset’s market capitalization—lie somewhere on the efficient frontier. Whether a frontier is impossible depends upon the particular values of the set of expected returns and covariances of the assets. In the two-asset case, we find that impossible frontiers occur only under certain unusual circumstances. However, for three assets or more, we find impossible frontiers in more common situations. Moreover, as the number of assets grows, we show that the probability that a generically chosen frontier is impossible tends to one. In fact, we find that for large n, nearly a quarter of all assets on a frontier are expected to have negative weights for every portfolio on the frontier. We also show that the expected minimum amount of short selling across points on frontiers grows linearly with n. Finally, we find that an impossible frontier remains impossible even if constraints are placed on the amount of short selling allowed in each portfolio.
More information is available at Drexel's website.
Shareholders of H&R Block elected Richard C. Breeden and two of his candidates to the board. Breeden, former SEC Chair and current activist hedge fund manager, wants the company to return to its core tax preparation business and has criticized management for not getting out of the subprime mortgage business sooner. NYTimes, Critic of H&R Block’s Performance Is Elected to Board; WSJ, H&R Block Holders Vote To Install Breeden Picks.
The SEC and several state regulators (including New York and Ohio) are investigating the performance of the rating agencies and its effect on the subprime mortgage market. The agencies have been criticized because of their slowness in downgrading their ratings of subprime debt. Regulators are looking into the conflicts of interest, since the agencies assist in the marketing of the debt by assigning ratings that enable them to be sold. WSJ, Ratings Firms' Practices Get Rated.
Thursday, September 6, 2007
The SEC announced a settled civil action against two Arizona-based scammers alleging their participation in an elaborate market manipulation scheme that involved unlawfully taking public seven microcap companies, inflating their share prices, and dumping millions of shares into the public market. The defendants, Mesa, Ariz.-based recidivist Michael Saquella (a.k.a., Michael Paloma), 47, and Scottsdale, Ariz.-based trader Lawrence Kaplan, 63, agreed to be permanently enjoined, barred from future penny stock deals, and to disgorge nearly $3 million in ill-gotten gains. In a related criminal action, the U.S. Department of Justice announced today that Paloma and Kaplan have pleaded guilty in federal court in Alexandria, Virginia for their participation in stock manipulation schemes. On August 20, 2007, Paloma pleaded guilty to a criminal information charging him with one count of conspiracy to commit securities fraud and one count of electronic mail fraud. On July 25, 2007, Kaplan pleaded guilty to a criminal information charging him with one count of conspiracy to commit securities fraud. Each of these charges carries a maximum sentence of five years in prison. The written plea agreements and supporting documentation for both defendants were unsealed yesterday.
The Commission's complaint alleges that, over the past four years, Paloma repeatedly passed himself off to principals of private, cash-strapped companies as a legitimate financier, persuading company principals to issue to Paloma-affiliated entities large controlling blocks of stock. Paloma then obtained bogus opinions of counsel that permitted transfer agents to issue share certificates to his entities free of legends restricting resale. The Commission further alleges that, once his entities acquired the "free-trading" shares, Paloma then coordinated manipulative public trading — carried out, in part, by Kaplan — which artificially inflated the value of each issuer's stock. With the appearance of an active trading market established, Paloma coordinated the dissemination of millions of false and/or misleading blast fax and spam e-mails touting the companies' shares. Ultimately, Paloma and Kaplan dumped stock of the microcap issuers into the public market at the artificially inflated prices, realizing profits of $2,155,000 and $677,000, respectively. After Paloma and Kaplan liquidated their holdings of each company's stock, they ceased trading and the market for the shares collapsed.
The Securities and Exchange Commission and three other organizations today announced the panelists and agenda for an upcoming Seniors Summit at the SEC to combat investment fraud and abusive sales practices against older Americans.
The second annual Seniors Summit will help older Americans identify and avoid common scams, better assess "free lunch" investment seminar invitations and other sales practices, and better protect themselves from the social persuasion tactics used by fraudsters. The SEC will host the event on Sept. 10 with the North American Securities Administrators Association (NASAA), the Financial Industry Regulatory Authority (FINRA), and AARP.
More from the SEC on crackdowns against senior fraud: it settled enforcement actions against Commonwealth Equity Services, LLP, based in Waltham, Mass.; Detwiler, Mitchell, Fenton & Graves, Inc., based in Boston; and James X. McCarty, a resident of South Dennis, Mass. for failing to reasonably supervise former registered representative Bradford J. Bleidt, who engaged in a multi-million dollar fraud while they were overseeing him. At least forty of Bleidt's victims were over age 70 at the time the Commission charged him. Bleidt was associated with Commonwealth from 1991 to 2001 and with Detwiler from 2001 to 2004. In 2004, he was charged by the Commission and the Massachusetts Securities Division with securities fraud stemming from a scheme in which he misappropriated more than $31 million from over 100 victims. Bleidt is currently serving an 11-year jail term as a result of related criminal charges brought by the United States Attorney's Office in Boston. He pled guilty to those charges in 2005. The SEC's Order against Commonwealth finds that it failed to establish reasonable policies and procedures for responding to red flags related to Bleidt's outside business activities.
Some investors have questioned whether the synergies are really there at the universal banks, or whether they would be more profitable if broken up into their constituent parts. At least to date, however, the three universal banks -- Citigroup, J.P. Morgan, and Bank of America -- are outperforming investment banks. When the credit and mortgage markets are under stress, they can fall back on traditional banking business. WSJ, Do-It-All Banks' Big Test.
Jennifer Wang, a former finance vp at Morgan Stanley, and her husband, Ruben Chen, a former hedge fund analyst at ING, pleaded guilty to insider trading charges. The couple was arrested in May as part of a federal crackdown. According to the complaint, they netted about $600,000 trading on advance information about the acquisition of Genesis Health Care. NYTimes, Guilty Plea for Couple in Insider Trading Case; WSJ, Couple Plead Guilty To Insider Trading.
Wednesday, September 5, 2007
Testimony today before the Senate Special Committee on Aging included:
SEC Chair Cox, Protecting Senior Citizens from Investment Fraud
NASAA President Borg, Advising Seniors About Their Money: Who Is Qualified - and Who Is Not?
SIFMA issued a press release on the topic.
Erik R. Sirri, Director of Market Regulation, SEC testified today on Recent Events in the Credit and Mortgage Markets and Possible Implications for U.S. Consumers and the Global Economy, before the Financial Services Committee, U.S. House of Representatives.
On September 5, the SECfiled a civil injunctive action charging Saks Incorporated, owner of luxury department store Saks Fifth Avenue among other retail chains, with violating the financial reporting, books-and-records, and internal control provisions of theSecurities Exchange Act of 1934. Saks has agreed to settle the case,without admitting or denying the Commission's allegations, and has agreed to an injunction barring future violations of these provisions. The Commission's complaint, filed in federal court in Manhattan, alleges that from the mid-1990s until 2003, certain employees of the company's Saks Fifth Avenue Enterprises division (SFAE) engaged in two deceptive practices in order to achieve their financial targets for the month, quarter or retail season and that these practices resulted in the company's overstatement of income by material amounts in its financial statements for its 2000, 2001, and 2002 fiscal years and for two quarters in fiscal 2001 and 1999. According to the complaint, the improper accounting by Saks resulted from aggressive financial targets the company set for SFAE, the belief by some SFAE buyers that they were expected to achieve their targets by deceptive means, if necessary, and Saks' lack of adequate internal controls. The deceptive practices consisted of the intentional over-collection of vendor allowance, or VA, and the improper deferral -- or rolling -- of markdowns of goods whose value was impaired. As a result of the vendor allowance over-collection, Saks overstated its net income for the fiscal year ended Feb. 3, 2001 by 7.0%; overstated its net income for the fiscal year ended Feb. 2, 2002 by 32.3%; overstated its net income for fiscal year ended Feb. 1, 2003 by 42.6%; and overstated its net income by 3.6% for the fiscal year ended Jan. 31, 2004. As a result of the markdown rolling, Saks overstated its net income in the second quarter of fiscal year 1999 by 86.5%; and understated its loss in the second quarter of fiscal year 2001 by 10.4%.
On September 4, the SEC issued an Order Instituting Administrative Proceedings Pursuant to Section 203(f) of the Investment Advisers Act of 1940, Making Findings, and Imposing Remedial Sanctions (Order) against Brent William Federighi, who previously ran two San Francisco-based hedge funds known as Ilytat and Gage Capital. The Order finds that on Aug. 22, 2007, a final judgment was entered by consent against Federighi, permanently enjoining him from future violations of Rule 10b-5. The Commission's complaint alleged that from 2000 to 2003, Federighi, who co-managed the Ilytat hedge fund and later managed the Gage hedge fund after Ilytat closed, deliberately exploited a loophole in the mutual fund order entry system used by the hedge funds' broker in order to place mutual fund trades after the 4:00 p.m. (Eastern time) market close while still receiving the current day's mutual fund price. Some trades were placed as late as 5:45 p.m. (Eastern time). Based on the above, the Order bars Federighi from association with any investment adviser with the right to reapply after 18 months. Federighi consented to the issuance of the Order without admitting or denying any of the findings, except he admitted to the entry of the
injunction. (Rel. IA-2641; File No. 3-12743).
The SEC settled an enforcement action against the Boston Stock Exchange and its former president James B. Crofwell for failing to enforce Exchange rules to prevent specialists from trading for their own accounts ahead of marketable customer orders. The Commission's Order against the Exchange and Crofwell finds that the Exchange's failure allowed hundreds of violations per day to go undetected even after the Commission staff had repeatedly warned the Exchange it needed to improve its surveillance systems. According to the Commission's Order, from 1999 to 2004, the Exchange and Crofwell failed to enforce Exchange rules that prohibited Exchange dealer specialist firms from trading securities for their own benefit at the expense of their customers. Without admitting or denying the findings in the Commission's Order, the Exchange and Crofwell each consented to a censure and an order to cease and desist from future violations of Section 19(g) of the Exchange Act, which requires exchanges to enforce rules governing member firms. The Exchange further agreed to comply with specific undertakings contained in the Order, including expenditure of at least $1 million to retain a third-party consultant to conduct comprehensive audits of the Exchange's surveillance, examination, investigation and disciplinary programs relating to trading, and implementation of the consultant's recommendations.
Fraud against seniors is certainly in the news these days. The SEC today filed charges stemming from a $428 million securities fraud that victimized thousands of seniors and other investors throughout the United States. The SEC's action, filed in federal district court in Chicago, Ill., charges 26 defendants and alleges that they participated in a massive fraud that involved the sale of securities in the form of "Universal Leases." The investments were structured as timeshares in several hotels in Cancun, Mexico, coupled with a pre-arranged rental agreement that promised investors a high, fixed rate of return. The fraudulent Universal Lease scheme eventually collapsed, leaving investors with losses that exceed $300 million. The SEC alleges that Michael E. Kelly and those working with him duped thousands of U.S. investors into using their retirement savings to buy Universal Leases on the false promise of safe and guaranteed returns. The SEC alleges that from 1999 until 2005, Kelly and others raised at least $428 million through the Universal Lease scheme from investors throughout the United States, with more than $136 million of the funds invested coming from IRA accounts. The SEC further alleges that a nationwide network of unregistered salespeople who sold the Universal Leases collected undisclosed commissions totaling more than $72 million. For most of the scheme, the complaint alleges, Kelly and his organization used new investor funds raised in the scheme to make illusory "rental income" payments to Universal Lease investors. The SEC also alleges that Kelly and others ran the scheme from Cancun through a number of foreign entities in Mexico and Panama. According to the SEC's complaint, Kelly and others told investors that Universal Leases would generate guaranteed income through the leasing of investor timeshares by a large, independent leasing agent. In fact, the complaint alleges, the leasing agent was a small Panamanian travel agency controlled by Kelly, and for most of the scheme its payments to investors came from accounts funded by money raised from new investors. Further, the complaint alleges that Kelly and the other defendants failed to disclose several key facts about the Universal Lease investment, including the risks of the investment and that more than $72 million in investor funds were used to pay commissions as high as 27 percent to the selling brokers.
FINRA has launched what it describes as "one of the most comprehensive, content-rich, free online information resources for retail investors - and the only one with a strong emphasis on fixed-income securities." The new Market Data section of its website includes detailed data on equities, options, mutual funds and a wide range of bonds - corporate, municipal, Treasury and Agency. It offers a full profile for every exchange-listed company, including company description, recent news stories and Securities and Exchange Commission filings, and an interactive list of domestic securities the company issues. In addition to information on individual securities, the site also provides familiar equities indices and the FINRA-Bloomberg Active U.S. Corporate Bond Indices for investment-grade and high-yield bonds. It also features U.S. Treasury Benchmark yields, market news an economic calendar and other information indicating current market conditions.