October 13, 2007
The SEC's Policies on Disclosure
The New York Times has an article today that illustrates the SEC's schizophrenic approach toward disclosure. Chair Cox is working with Pfizer to design a user-friendly format for executive compensation disclosure, and the company unveiled a mock-up at a conference in D.C. hosted by Chair Cox. At the same time, Division of Market Regulation was criticizing the substance of Pfizer's disclosure. Indeed, just this week the SEC staff released a report on companies' compliance with the new executive compensation rules and found many deficiencies.
More generally, Chair Cox has been pushing "plain English" and interactive data in disclosure documents, which makes sense only if it is realistic to expect that most investors will read these documents. But most investors don't and rely on getting information from other sources -- their brokers, friends, neighbors, etc. Unless and until the SEC undertakes a serious investor education campaign, most investors won't read these documents and probably shouldn't even bother to try. Instead, the disclosure should be directed toward those intermediaries, who can understand and transmit the information to the general public. The information is complicated, and plain English and attractive graphs won't make it less so. NYTimes, Pfizer’s Attempt at Financial Clarity Gets Blurred.
October 12, 2007
SEC Opens Inquiries into Overseas Sales of Orthopedic Devices
Several manufacturers of orthopedic devices say that the SEC has opened informal investigations into possible violations of the Foreign Corrupt Practices Act in connection with overseas sales of medical devices. Johnson & Johnson previously reported to federal authorities that it believed improper payments had been made in two unidentified countries. WSJ, Several Orthopedic-Device Makers Get SEC Letters on Foreign Sales.
HSBC Bank Settles SEC Fraud Charges
The SEC announced judicial approval of its settlement of its action against HSBC Bank USA, N.A. ("HSBC"), imposing a $10 million penalty and ordering HSBC to pay disgorgement in the amount of $463,893, with prejudgment interest of $36,667, for allowing its name and logo to be used in connection with a Florida-based offering fraud by Pension Fund of America, L.C. (Pension Fund). The SEC alleged that from August 2003 to March 2005, HSBC served as trustee for the investment component of Pension Fund and its affiliated entities' trust plans. Since at least 1999, Pension Fund sold retirement and college "trust plans" that purportedly provided term life insurance and the opportunity to invest in one or more pre-selected mutual funds. However, Pension Fund failed to disclose, among other things, that it was taking up to 95 percent of the investors' funds to pay commissions and fees. Pension Fund raised at least $127 million from more than 3,400 investors, primarily from Central and South America. In 2005, the SEC filed an emergency action against Pension Fund and its principals to halt the offering fraud. According to the SEC's Complaint, HSBC allowed the use of its name and logo in Pension Fund's offering materials. HSBC also allowed Pension Fund to use marketing materials that falsely suggested that the trust plans were co-developed by HSBC and Pension Fund, and that investors' funds would be "totally safe" because the money would be deposited in a trust account at HSBC. In reality, Pension Fund deposited investors' funds in an ordinary checking account in its name at HSBC. Additionally, HSBC actively participated in the selection of offshore, high front-load mutual funds to be offered to prospective investors under a negotiated fee arrangement between HSBC and Pension Fund. However, neither the amount of the funds' sales loads, nor HSBC's role in the funds' selection, were disclosed to investors. In October 2003, shortly after HSBC became trustee for Pension Fund's plans, HSBC drafted a letter on its own letterhead announcing the new relationship and inviting certain of Pension Fund's existing investors to transfer their funds to HSBC. Pension Fund sent the letter to approximately half of its existing investors, and enclosed a form bearing HSBC's logo that listed new mutual fund selections available upon transfer to HSBC. Neither the letter nor the enclosure disclosed that investors would incur new front-load fees in connection with such transfers, or the amounts of those prospective costs.
SEC Investigates State Pension Plans
The SEC, in recent months, has opened inquiries into two state pension funds -- New York and New Jersey. In New York, allegations involve payments made by investment firms to friends and family of Alan G. Hevesi, the former Comptroller. The state's Comptroller serves as sole trustee of the $154 billion fund. The state of New York previously opened an investigation into the charges. The New Jersey plan is being investigated for accounting practices that allegedly overstated the amount of state contributions. NYTimes, New York Pension Fund Faces a Federal Inquiry.
Merrill's Risk Management Ability in Doubt
The announcement that Merrill Lynch will write down $4.5 billion in COS and another $463 million in leveraged loans has upset the confidence in the firm's ability to manage risk and in its CEO Stanley O'Neal. Since O'Neal became CEO, the stock price has lagged behind that of its competitors and the broker-dealer index. NYTimes, Merrill Painfully Learns the Risks of Managing Risk.
October 11, 2007
SEC's Donohue on Closed End Funds
Andrew J. Donohue, Director, Division of Investment Management, Securities and Exchange Commission, spoke on closed end fund issues at the 2007 ICI Closed End Fund Workshop, New York, New York, on October 11, 2007.
SEC Charges Misappropriation Scheme Against Seniors
The SEC charged Robert Ray White Samples ("Samples")with misappropriating investor funds through two fraudulent investment schemes. According to the Commission's complaint, filed October 4 in federal district court in Denver, Colorado, from at least September 2002 through September 2006, Samples, operating through his company, Pot O' Gold Financial Services, LLC ("POG"), used material misrepresentations to raise at least $1,033,597 from 31 investors, including seniors, in two pooled investments. On October 11, the Court entered an order, with the defendants' consent, granting a preliminary injunction against Samples and POG, and freezing their assets and ordering an accounting.
The complaint alleges that Samples represented to investors that funds placed in Private Capital Accounts would be pooled together and invested primarily in fixed income securities and secondarily in an auto loan program under Samples' management to generate returns. The complaint also alleges that Samples sold interests worth almost $65,000 in POG's Golden Investment Club ("Club"). Samples represented to Club investors that he would pool their funds together in a brokerage account for investment in securities, which he would manage in exchange for an advisory fee. According to the Commission's complaint, Samples' representations to investors were false and he misappropriated a large portion of the funds he received to pay for personal expenses such as a new home, two timeshare condominiums, automobiles, and personal credit cards.
SEC Asked to Investigate Countrywide CEO's Stock Sales
The SEC has previously stated that it was looking into Rule 10b5-1 plans that allow corporate executives to sell their company's shares under a prearranged plan. North Carolina's State Treasurer, who is trustee of state pension plans, has asked the SEC to investigate stock sales made by Countrywide Financial CEO Angelo Mozilo in the months before the Countrywide stock price dropped because of the subprime mortgage collapse. Beginning in October 2006, Mozilo sold shares under a Rule 10b5-1 plan and twice raised the number of shares that could be sold. Last week the company said that Mozilo would sell almost all his remaining shares before the plan expired. NYTimes, Stock Sales by Chief of Lender Questioned.
OFHEO Hearing Against Former Freddie Mac CEO Set to Begin
The Office of Federal Housing Enterprise Oversight (OFHEO)'s administrative hearing against Leland C. Brendsel, Freddie Mac's former CEO, is set to begin next week. OFHEO alleges that Brandsel is responsible for the financial manipulation of Freddie Mac exposed in 2003 and seeks fines and repayment of compensation and benefits. Brandsel denies that he is responsible. The parties' witness list includes Warren Buffett and C.E. Andrew, currently CEO of Sallie Mae, who was audit partner at Arthur Andersen at the time. WPost, For Brendsel, Court Wait Is Almost Over.
October 10, 2007
Morgan Stanley Settles SEC Charges Involving Noncompliant Trade Confirmations
On October 9, the SEC entered a settled Order against Morgan Stanley & Co. Incorporated. The order finds that from as early as 2000 until 2005, Morgan Stanley DW Inc., then a registered broker-dealer, failed to provide to its customers accurate and complete written trade confirmations for certain fixed income securities. The Order further finds that Morgan Stanley & Co., a registered broker-dealer, also provided its customers with noncompliant trade confirmations for certain fixed income securities. The Order censures Morgan Stanley & Co.,imposes a $7.5 million penalty, and requires it to retain an independent consultant to review its policies and procedures.
Hedge Fund Settles Improper Short Sales Allegations
The SEC today announced a settled enforcement action against New York hedge fund adviser Sandell Asset Management Corp. (SAM), its chief executive officer, and two other employees for engaging in improper short sales in connection with trading in the securities of Hibernia Corporation in the immediate aftermath of Hurricane Katrina.
Hibernia was a New Orleans-based bank holding company and the subject of an acquisition agreement with Capital One Financial Corporation at the time Katrina occurred. As part of its merger arbitrage investment strategy, SAM held a large long position in Hibernia. According to the Commission's Order, SAM personnel believed that Capital One would lower its offering price for Hibernia shares in the wake of Katrina. In an attempt to offset an anticipated loss to a client, SAM personnel began to sell short as many shares of Hibernia stock as possible, improperly marking certain sales orders as "long" or misrepresenting to the broker-dealers executing some of the trades that they had located stock to borrow.
Without admitting or denying the Commission's findings, SAM agreed to pay more than $8 million to settle the charges, including $6,716,683.93 in disgorgement, $730,811.74 in prejudgment interest, and a $650,000 civil penalty. Also charged were the firm's CEO Thomas Sandell, senior managing director Patrick Burke, and head trader Richard Ecklord, all of whom consented to the Commission's Order without admitting or denying wrongdoing. Sandell, Burke and Ecklord were ordered to pay civil penalties of $100,000, $50,000 and $40,000, respectively
Former Qwest CEO Appeals Insider-Trading Conviction
Joseph Nacchio, former Qwest CEO, filed his appeal brief before the 10th Circuit, seeking to overturn his conviction on insider-trading charges. The brief argues that Nacchio did not know at the time he sold his stock that the company's projections of future earnings were wrong. It also argues that Nacchio was not permitted to introduce classified evidence as part of his defense that he knew the company had entered lucrative defense contracts. WSJ, Nacchio Appeal Argues Qwest Woes Unforeseeable.
Former Milberg Weiss Partner Pleads Guilty
Steven Schulman, a former partner at Milberg Weiss, pleaded guilty in Los Angeles for his role in the firm's payment of kickbacks to individuals to serve as lead plaintiffs in securities class actions. NYTimes, Ex-Partner at Law Firm Pleads Guilty in Kickback Case.
October 9, 2007
Stoneridge Oral Argument
The transcript of the oral argument in Stoneridge Investors is posted at the Supreme Court website. There is very little in the questioning of the Justices that could give the petitioners any basis for encouragement. Chief Justice Roberts made it clear that the Court wasn't in the business of implying causes of action anymore and asked petitioners' attorney why the Court shouldn't be guided by what Congress's decision to create an aiding and abetting cause of action for the SEC only. Justice Alito said he saw absolutely no difference between the petitioners' theory and aiding and abetting. Justice Kennedy expressed concern that he saw no limitation on petitioners' theory, because there are any number of kickbacks and mismanagements and petty frauds that go on in business that affect stock prices. Only Justice Ginsberg, in her questioning of respondent's attorney, wanted to explore a possible third category between primary liability and the Central Bank facts.
SEC Staff Issues Report on Executive Compensation Disclosure
The SEC staff published a report discussing the principal themes that emerged from its initial review of the disclosure of 350 public companies for compliance with the Commission’s new and enhanced rules for executive compensation and related disclosure. Two principal themes emerged from these reviews. First, companies should provide more focused disclosure of how and why they made specific executive compensation decisions. Second, the manner of presentation is important, and companies can use it to provide more direct, specific, clear and understandable executive compensation disclosure.
The staff’s reviews of the 350 companies are ongoing. Not less than 45 days after it completes each review, the staff will post the correspondence containing the comments and company responses to comments on the SEC’s EDGAR system.
SEC Appoints a Director of Interactive Disclosure
SEC Chair Christopher Cox continues his campaign for interactive financial reporting by announcing the creation of a new office to lead the transformation to interactive financial reporting by public companies, and tapping an 11-year veteran of McGraw-Hill, whose career includes seven years with the firm’s Standard & Poor’s division, as the agency’s Director of Interactive Disclosure.
David Blaszkowsky, 45, of Boston, served S&P in New York, starting in 2001, as Director of Global Market Development for Institutional Market Services, and as a Senior Director in Equity Research Services led S&P’s Corporate Markets and Investor Relations Services businesses.
At the SEC, Blaszkowsky will coordinate the agency-wide disclosure modernization program, and will work with investor groups, analysts, journalists, and preparers of financial statements as well as other key public and private sector stakeholders in the United States and around the world to advance the use of interactive data in financial reporting.
Stoneridge Oral Argument Today
Oral argument is today before the Supreme Court in Stoneridge Investors, and the Wall St. Journal has a front-page story about the campaigns conducted by both the plaintiffs' bar and business groups to influence opinion. Over thirty amici briefs were filed in the case. WSJ, Big-Money Battle Pits Business vs. Trial Bar. SEC Commissioner Paul Atkins has an op-ed piece in the WSJ, the title of which summarizes his view, Just Say 'No' to the Trial Lawyers.
Sallie Mae Sues Over Buyout
Sallie Mae filed suit in Delaware Chancery Court to compel the consortium of private equity firms and banks that agreed to buy the company for $25 billion to go through with the deal or pay the $900 termination fee. Citing the "material adverse effect" clause based on the federal government's cut of student loan subsidies, the buyers have sought to renegotiate the price. NYTimes, Sallie Mae Sues to Force a Buyout; WSJ, SLM Escalates Battle, Sues J.C. Flowers Group.
October 8, 2007
Former Dynergy Exec Cites Prosecutors' Misconduct in Appeal
Attorneys for Jamie Olis, a former Dynergy executive convicted of fraud and conspiracy in 2003, filed a writ of habeas corpus, citing new evidence of prosecutorial misconduct. They are relying on Judge Korman's actions in the KPMG case, dismissing charges against a number of KPMG employees after finding that the government pressured the firm to cut off their attorneys' fees. Olis's attorneys allege comparable misconduct in his case. WSJ, Attorneys Seek Release Of Former Dynegy Official.
15 Firms Fined for Failure to Deliver Prospectuses
NYSE Regulation announced today that as a result of an industry–wide review of prospectus delivery procedures, it has censured and fined 14 member firms and one former member firm a total of $10.425 million. The firms’ violations include failures to ensure delivery of prospectuses to customers who purchased securities and mutual funds, to deliver product descriptions to customers who purchased Exchange Traded Funds (“ETFs”), and to establish and maintain appropriate procedures of supervision and control with respect to these activities. Two of the firms also failed to ensure delivery of certain documents to customers, such as trade confirmations. The individual fines ranged from $375,000 to $2.25 million. The NYSE website sets forth the names of the firms and the amount of the fines. In addition, each firm member agreed to certify that its current policies and procedures are reasonably designed to ensure compliance with the current federal securities laws and NYSE rules in these areas.
From July 1, 2003 to October 31, 2004 (the “relevant period”), and in certain cases continuing through 2005, firms experienced varying deficiencies relating to the delivery of prospectuses and/or product descriptions to many customers who purchased securities, stemming in part from the failure to have appropriate policies and procedures in place.
Enforcement conducted this review after it learned in other investigations that prospectuses were not being sent to customers as required by federal securities laws and NYSE rules. As detailed in the decisions announced today, numerous firms experienced one or more deficiencies in connection with one or more offerings and/or products. The nature and extent of the misconduct, in conjunction with other aggravating or mitigating circumstances unique to each firm, such as the level of cooperation, the self-reporting of the deficiencies, and the remediation efforts undertaken by the firms determined the level of the penalties.
NYSE Regulation Enforcement staff that was responsible for these cases has now transferred to the Financial Industry Regulatory Authority (“FINRA”). In settling these charges brought by NYSE Regulation, the firms neither admitted nor denied the charges.