Friday, December 14, 2007
The SEC announced today that on December 11, 2007, Robert Bradbury (Bradbury), the chairman, and a principal shareholder of, Dolphin & Bradbury, Incorporated (D&B), a Philadelphia broker-dealer, was indicted by a grand jury convened by the United States Attorney for the Eastern District of Pennsylvania. The nine count criminal indictment charges Bradbury with defrauding four Pennsylvania school districts by selling them high-risk securities that were unlawful and inappropriate investments for the districts. According to the indictment, Bradbury concealed from the school districts the true nature of and risks associated with the high-risk bond anticipation notes, issued to finance a speculative golf course project known as Whitetail. According to the indictment, the notes eventually defaulted in September 2004, and the four school districts collectively lost approximately $10.5 million as a result of the fraud. If convicted, Bradbury faces a maximum of 160 years imprisonment and a $2 million fine.
FINRA announced today that its Board of Governors approved a rule proposal that would impose expungement procedures requiring arbitrators to take specific steps, including issuing a written explanation, before recommending expungement of information related to arbitration cases from a registered person's Central Registration Depository (CRD) record. This proposal is designed to assure that expungement occurs only when one of the narrow grounds specified in the FINRA rules—factual impossibility, no involvement by the registered person or falsity—is determined and documented by the arbitrators.
The proposed rule would require arbitrators considering an expungement request to hold a recorded hearing session by telephone or in person and provide a brief written explanation of the reasons for ordering expungement. In cases involving a settlement, arbitrators would be required to review the settlement documents to evaluate culpability by examining the amounts paid to any party and any other terms and conditions of the settlement before awarding expungement.
Expungement has been an ongoing controversy. Investors' advocates say it rewrites history and that customers are entitled to know if their brokers have been in disputes with their customers, while industry representatives say that brokers need protection against frivolous complaints or simple misunderstandings. The Nw York Times had an article today, reviewing the respective positions. NYTimes, Site That Tracks Brokers Questioned on Erased Cases.
When all other investment banks are reporting big losses because of subprime mortgages, Goldman Sachs is expected to report record net annual income of more than $11 billion. A good share of those profits comes because its proprietary traders bet that the subprime mortgage market would collapse. This presents the question -- why did Goldman continue to sell CDOs to its customers, when its own traders were betting they would fall? WSJ, How Goldman Won Big On Mortgage Meltdown.
Citigroup, shifting course under its new management, announced a rescue of seven affiliated structured investment vehicles (SIVs). It will provide emergency support if they can't find buyers for their short- and medium-term debt. This means Citigroup will bring about $49 billion of SIV assets on its balance sheet, putting further strain on its tight capital situation. Citigroup's move is widely seen as the deathknell for the Treasury Dept.-sponsored bailout by major banks, which has not gotten off the ground. NYTimes, Big Rescue of Funds by Citigroup; WSJ, Citigroup Alters Course, Bails Out Affiliated Funds.
Jet Blue Airways becomes the latest struggling U.S. company to get a cash influsion from overseas, as Lufthansa announced it would take a 19% stake in the discount airline for $300 million. Lufthansa is purchasing 42 million common shares at $7.27, a premium over yesterday's close of $6.25. It will also have the right to nominate one director. The deal is subject to regulatory approval. WSJ, Lufthansa to Buy 19% Stake in JetBlue.
Thursday, December 13, 2007
The SEC announced that it filed settled securities fraud charges against Michael J. Nolan, a former Chief Financial Officer of United Rentals, Inc. (URI). The SEC alleged that, from 2000 through 2002, Nolan engaged in a series of fraudulent transactions undertaken in order to meet URI's earnings forecasts and analyst expectations. The complaint alleges that Nolan and others carried out the fraud through a series of interlocking three-party transactions, structured as "minor sale-leasebacks," to allow URI to recognize revenue prematurely and to inflate profits generated from the sales. As a result of the fraud, URI materially overstated its financial results in its Forms 10-K for fiscal years 2000 and 2001, and its Forms 10-Q for the periods ended June 30, 2001, and March 31, 2002, as well as in other public releases.
The complaint further alleges that shortly after URI announced 2001 and 2002 year-end results, Nolan sold approximately $11 million of URI stock that he owned, knowing that the company's announced financial results were materially overstated.
The SEC charged the former Chairman and CEO of Schnitzer Steel Industries, Inc., with violating anti-bribery provisions of the Foreign Corrupt Practices Act (FCPA) by approving cash payments and other gifts to officials at Chinese government-owned steel mills to entice their business. Without admitting or denying the allegations, Robert W. Philip of Portland, Ore., agreed to pay more than $250,000 to settle the SEC’s charges. The SEC alleges that from at least 1999 through 2004, Philip authorized payment of more than $200,000 in cash bribes and other gifts to managers at government-owned steel mills in China to induce them to purchase scrap metal from Portland-based Schnitzer. The Commission alleges that Schnitzer generated more than $96 million in revenue and more than $6.2 million in profits from sales to customers who had received the improper payments. The complaint further alleges that Philip authorized more than $1.7 million in payments to managers of privately owned steel mills in both China and South Korea, generating more than $500 million in additional revenue for the company.
FINRA today announced that it fined J.P. Morgan Securities, Inc. $500,000 for failing to disclose to the Municipal Securities Rulemaking Board (MSRB) that it had used consultants to obtain numerous municipal securities offerings and had made payments to consultants connected to particular offerings. FINRA is responsible for enforcing MSRB rules. J.P. Morgan inaccurately stated in its filings with the MSRB that no municipal securities business had been obtained by its consultants and that it had made no payments to consultants connected with particular transactions. In fact, FINRA found, during the period from January 2002 through June 2004, J.P. Morgan used 16 different consultants to obtain at least 70 separate underwritings and paid at least $750,000 to six consultants connected to particular transactions.
During the time period at issue in this case, MSRB Rule G-38 required firms to disclose in quarterly filings with the MSRB any municipal securities business obtained or retained by a consultant. The rule also required firms to disclose payments made to consultants connected to particular municipal securities offerings. The rule is intended to address potential abuses in connection with the awarding of municipal securities business. It was revised in August 2005 to prohibit payments to any person not affiliated with a firm to solicit municipal securities business on behalf of the firm.
In settling this matter, J.P. Morgan neither admitted nor denied the charges, but consented to the entry of FINRA's findings.
In testimony before the U.S. Senate Committee on Banking, Housing, and Urban Affairs, NASAA President Karen Tyler said investment fraud, a year-round problem, hits home during the holidays when consumers may face a financial crunch with increased expenses from holiday gifts and travel, or may be considering end-of-year investment or tax-savings opportunities. State securities regulators are concerned that this predatory conduct, combined with a convergence of financial challenges - higher gasoline prices, a volatile stock market, lower housing values, and general economic unrest - may lead individuals to make hasty, ill-informed decisions in the pursuit of higher returns on their investments. NASAA urges investors to be especially vigilant in protecting their assets from Internet, telephone and in-person promotions for alternative investment opportunities.
Mutual fund investors filed a federal class action in Tennessee against Morgan Keegan Asset Management, charging that it misrepresented the securities in the portfolios of two funds, an intermediate bond fund and a high income fund. Both funds have lost about one-half their value this year. WSJ, Morgan Keegan Sued Over Mutual-Fund Woes.
The well-publicized litigation between Ron Perelman and Morgan Stanley is now over, as the Florida Supreme Court refused to hear Perelman's appeal. In 2005 a jury awarded Perelman $1.58 billion in his claim that Morgan Stanley defrauded him in a deal in which he purchased Sunbeam Corp. stock, that ultimately became worthless. Earlier this year the appeals court threw out the verdict, saying that Perelman had not proved his damages. NYTimes, Florida Court Rejects Claim, a Boon for Morgan Stanley.
Wednesday, December 12, 2007
The SEC published the final rules amending Rule 144 and Rule 145. The primary changes to Rule 144 include shortening the holding period to six months for restricted securities that are subject to the reporting requirements and substantially easing the restrictions on resales by non-affiliates. The Rule 145 amendment eliminates the presumptive underwriter provision.
The SEC announced that it obtained an emergency order temporarily freezing the assets of Terry E. Provence (Provence) and DT Capital LLC (DT Capital), in connection with their alleged roles in a fraudulent options trading scheme. The SEC alleges that no later than March 2007 and continuing until at least August 2007, Provence pitched a sham index option trading program to primarily inexperienced investors with false promises that their principal would be safe and created DT Capital as a vehicle to marshal investor funds and promote the options program. The Complaint further alleges that Provence and DT Capital falsely represented that a major brokerage firm guaranteed the safety of investor principal, that the actual options trader, Fredrick J. Kunen (Kunen), was a licensed securities trader and director at the brokerage firm, that the options program had a successful ten-year track record, and that investors could expect extraordinary returns. The Complaint alleges that Provence and DT Capital raised at least $3.5 million from approximately forty investors and that Provence and DT Capital profited by at least $130,000.
SEC Chair Cox testified before the House Committee on Small Business on 404 Compliance for smaller public companies. As expected, he announced that he would propose to the full Commission a further one-year postponement on final implementation of 404. He also announced that the agency would conduct a cost benefit analysis of 404 compliance under the new auditing standard and mangement guidance, including a web-based survey and in-depth interviews.
The SEC announced today that it will host two roundtable discussions in December on issues surrounding the growing prevalence of International Financial Reporting Standards (IFRS). The first roundtable, on Dec. 13, 2007, will address the issues arising from the current co-existence of two accounting standards in the U.S. markets — a development that has been accelerated by Europe's decision to mandate IFRS for all public companies beginning in 2005. The second roundtable, on Dec. 17, 2007, will focus on the practical issues surrounding the possible future use of IFRS by U.S. companies.
The agenda and list of participants for each roundtable is at the SEC's website.
Tanya Solov, Director of the Illinois Securities Department, testified on behalf of NASAA in support of the Arbitration Fairness Act of 2007 introduced by Sen. Russ Feingold, saying that it is “a positive step in the right direction” toward improving the fairness of the system of securities arbitration.
“NASAA believes that securities arbitration system should be truly voluntary, that more meaningful and accurate statistics concerning arbitration outcomes should be compiled and disseminated, and the balance in the composition of arbitration panels should be restored,” Solov testified.
Solov said FINRA should require its member firms to offer their customers a meaningful choice between binding arbitration and civil litigation. “If arbitration really is fair, inexpensive, and quick, as its adherents claim, then these benefits will prompt investors to choose arbitration,” Solov testified. “If, on the other hand, arbitration does not offer these advantages, then this mode of dispute resolution should not be forced upon the investing public.”
NASAA also suggested changes to the current securities arbitration system:
Removing mandatory industry arbitrators from the arbitration process, and for public arbitrators to have no ties to the industry.
Improving the statistics that FINRA collects and disseminates on arbitration, particularly with respect to outcomes. Currently, FINRA statistics treat any award of damages to a customer as a "win," even if the amount is a small percentage of what was asked for.
SLM Corp. (Sallie Mae), which is suing private equity firm J.C. Flowers for backing out of a deal to buy SLM, said that the firm turned down its invitation to renegotiate the terms. The $25.3 billion LBO was one of the biggest to blow up in the face of the credit markets collapse. WSJ, Flowers Won't Make New SLM Bid.
The Wall St. Journal reports that Dow Jones shareholders have approved the company's sale to Rupert Murdoch's News Corp. at $60 per share. The shareholders' meeting will be held tomorrow. WSJ, Count of Proxy Votes Shows Dow Jones Holders Approving Sale.
SEC Chair Cox is expected to tell the House Small Business Committee today that the SEC will delay for another year the requirement that smaller public companies comply with section 404 of Sarbanes-Oxley. The ultimate decision on whether to require compliance will depend in part on an SEC study of costs. NYTimes, S.E.C. Planning to Delay Accounting Rules for Small Companies.
Tuesday, December 11, 2007
The SEC today adopted amendments to Form S-3 and Form F-3 that will permit smaller public companies (below a $75 million public float) to use shelf registrations, so long as they do not offer securities worth more than one-third of their public float (up from the 20% in the original proposal). Shell companies, chronic late filers, and companies not listed on an exchange are not eligible. It is expected that about 1400 companies will be able to take advantage of the amendment. CFO.com, The SEC Wraps a Small-Biz Gift.