Monday, June 30, 2008
The number of new arbitration filings at FINRA are up somewhat over 2007, after dramatic decreases since the peak of 2003, and the increase in customer disputes has been largely attributed to auction rate securities (ARS) cases, where customers allege that they were sold the ARS on the representation that these were liquid securities and were not told of liquidity risks. Last week, as we reported, the Massachusetts Securities Division brought a complaint against UBS for its sales practices and conflicts of interest involving ARS, complete with internal memoranda where UBS employees spell out the aggressive sales efforts used to sell the ARS underwritten by UBS in the face of market resistence to them. Investment News reports that plaintiffs' tort attorneys are heavily advertising their services to represent investors whose ArS have become illiquid, much to the ire of the brokerage firms, who insist that they are trying to work out the difficulties with their customers. InvNews, Attorneys see gold in auction rate mire. The last time personal-injury lawyers sought out investors' arbitration claims was the tainted analysts scandal, when Eliot Spitzer released investment banks' internal emails that disparaged the securities the analysts were promoting. To the surprise of some attorneys, who saw these cases as easy picking, the outcomes did not go well for investors, as arbitration panels generally were skeptical that investors' losses were due to the analysts' reports, rather than the tech crash. It remains to be seen how the ARS claims will work themselves out.
Sunday, June 29, 2008
The Failure of Private Equity, by STEVEN M. DAVIDOFF, University of Connecticut School of Law; Ohio State University - Michael E. Moritz College of Law, was recently posted on SSRN. Here is the abstract:
Throughout the Fall 2007 and into the new year 2008 private equity firms repeatedly attempted to terminate pending acquisitions. The litigation surrounding these purported terminations and heightened scrutiny directed upon the terms of private equity agreements opened a revealing window on a number of supposed "flaws" in the private equity structure. This Article seeks to understand whether these failures existed, and if so, what caused them. It does so by examining the forces driving the construct and evolution of private equity and the rationale for private equity's structure and specific contractual terms. I find that the private equity contract, the structure of private equity, is a rich, textured environment. The terms of the contractual relationships between the private equity firm and the acquired company are analogous to an iceberg; they form only the publicly available view of a much deeper understanding between the parties. In the non-public sphere, parties to private equity contracts utilize norms, conventions, reputational constraints, language and relational bonding to fill contractual gaps, override explicit contractual terms, and achieve a negotiated solution beyond the four corners of the contract. The attorney as transaction cost engineer in the private equity context consequently structures the private equity contract by paying heed both to contractual terms and law, contractually created forces and non-legal factors. But attorney reliance on these extra-contractual factors and forces makes the private equity structure path dependent and resistant to change. In light of these findings, the failures of the pre-Fall 2007 private equity structure were particularly a failure by attorneys to innovate and negotiate terms in full contemplation of such events. Reliance upon extra-legal forces permitted attorneys to leave private equity contracts incomplete and otherwise justified sloppy and ambiguous drafting. The result was a number of contract breaches and purported terminations by private equity firms with uneconomic consequences for targets subject to these failed acquisition attempts.
Friday, June 27, 2008
The Fed released the minutes of its March 14 and March 16 meetings, in which it approved the rescue of Bear Stearns, which show that the members felt that its actions were necessary to prevent further instability in the markets.
Apparently the Senate confirmed the nominations of Troy Paredes, Luis Aguilar and Elisse Walter to the SEC today, since Chairman Cox referred to three new Commissioners, although it seems odd that he didn't name them:
"The President and the Senate have given the SEC three outstanding Commissioners. I look forward to welcoming them to their important positions of leadership in the finest securities regulatory agency in the world. The SEC has laid out an ambitious agenda to improve investor protection and financial markets regulation, and a full complement of Commissioners will help us achieve those important objectives."
Note the Chairman's reference to the SEC's "ambitious agenda." CFO.com has an interesting article disclosing internal SEC memoranda from Mr. Cox that express his displeasure at recent criticism of his less-than-central involvement in the bailout of Bear Stearns and reports of the agency's demise. CFO.com, Angry Cox Expects SEC to Grow, Not Die.
The SEC has posted to its website the text of its proposed amendments to Rule 15a-6, which provides conditional exemptions from broker-dealer registration for foreign entities engaged in certain activities involving certain U.S. investors. The purpose of the amendments, according to the SEC, is to reflect increasing internationalization in securities markets and advancements in technology and communication services. The proposed amendments would update and expand the scope of certain exemptions for foreign entities.
FINRA appears to be taking a broader view of its investor protection and education roles and has recently taken to giving investors advice/warnings about weathering tough financial times. In a recent Investor Alert, for example, FINRA warns about the dangers of excessive debt and cash-strapped individuals making ill-advised decisions such as prematurely deleting their retirement accounts, tapping into home equity through reverse mortgages, or selling their life insurance through life settlements. It also offers tips such as keeping track of expenses and paying off high-interest debt. FINRA CEO Mary Schapiro expressed similar warnings in a recent speech to a Women in Housing and Finance meeting in Washington, DC.
I have to confess I have a great deal of skepticism about FINRA's efforts. First, the message seems unlikely to reach its intended audience. Are cash-strapped individuals reading the FINRA website or paying attention to speeches in Washington D.C.? Second, I suspect that cash-strapped individuals who may have lost their homes to foreclosure, may be unable to pay for increasing food, gas and health costs, don't need to be told that cashing out their retirement savings (if any)and entering into life settlements or reverse mortgages are bad ideas. They make these decisions because they do not see any other solutions. Similarly, suggestions to cut expenses or pay down credit card debt are probably not feasible for many individuals. While these attempts at investor education may be benign, I think they are misguided. FINRA can't solve the problem of people who, for whatever reason, don't have enough money to live and don't know how to fund their retirement. Instead, FINRA should focus on its primary responsibility -- eliminating the financial professionals who prey on the financially insecure.
The U.S. Court of Appeals for the Seventh Circuit affirmed the convictions of Conrad Black and other senior executives of Hollinger International for mail and wire fraud. In an opinion authored by Judge Posner, the court rejected all of the defendants' arguments, finding that there was sufficient evidence for the jury to find that the defendants committed a conventional fraud, a theft of money from Hollinger by misrepresentations. The opinion focused, in particular, on defendants' arguments that they could not be convicted for scheming to deprive Hollinger of its right to the "honest services" of its corporate officers, for the purpose of "private gain," because their objective was to achieve a gain at the expense of the Canadian government (favorable tax treatment), not at the expense of Hollinger. The court rejected this as a "no harm-no foul" argument that "usually fare badly" in criminal cases. There was "no doubt that the defendants received money ... and very little doubt that they deprived Hollinger of their honest services." U.S. v. Black (7th Cir. June 25, 2008).
Thursday, June 26, 2008
On June 26 the SEC approved a one year extension of temporary rule and form amendments that postpone the date by which companies that are non-accelerated filers must begin to comply with the auditor attestation report on internal control over financial reporting (ICFR) mandated by Section 404(b) of the Sarbanes-Oxley Act of 2002. Under the extension, a non-accelerated filer will need to provide its first auditor's attestation report on internal control over financial reporting in an annual report for a fiscal year ending on or after December 15, 2009. The effective date of the amendments will be 60 days from their publication in the Federal Register.
The SEC released the text of its proposed rule that would set forth the standards for determining whether equity-indexed annuities (EIAs) are securities or insurance products. As the SEC describes in the release, the proposed rule would prospectively define certain indexed annuities as not being “annuity contracts” or “optional annuity contracts” under the statutory insurance exemption if the amounts payable by the insurer under the contract are more likely than not to exceed the amounts guaranteed under the contract. According to the release:
The proposed definition would hinge upon a familiar concept: the allocation of risk. Insurance provides protection against risk, and the courts have held that the allocation of investment risk is a significant factor in distinguishing a security from a contract of insurance. ...
Individuals who purchase indexed annuities are exposed to a significant investment risk – i.e., the volatility of the underlying securities index. ... Indexed annuities are attractive to purchasers because they promise to offer market-related gains. Thus, these purchasers obtain indexed annuity contracts for many of the same reasons that individuals purchase mutual funds and variable annuities, and open brokerage accounts.
The federal interest in providing investors with disclosure, antifraud, and sales practice protections arises when individuals are offered indexed annuities that expose them to securities investment risk. Individuals who purchase such indexed annuities assume many of the same risks and rewards that investors assume when investing their money in mutual funds, variable annuities, and other securities. However, a fundamental difference between these securities and indexed annuities is that – with few exceptions – indexed annuities historically have not been registered as securities. As a result, most purchasers of indexed annuities have not received the benefits of federally mandated disclosure and sales practice protections.
The Massachusetts Securities Division has filed a complaint against UBS Securities LLC and UBS Financial Services, alleging violations of the Massachusetts Uniform Securities in connection with the sale of auction rate securities (ARS) to retail customers. According to the complaint, the sales were typically made with the express representation that the investments were liquid, safe, money-market instruments, whose interest rates would reset at periodic auctions, and that they could be sold at the next auction. Instead, as UBS knew, no true auctions existed for many of these securities. In addition, UBS failed to disclose to its customers the conflicts of interest because of UBS's dual role in underwriting the securities and selling them to their customers. The requested relief includes requiring UBS to offer rescission of the ARS sales at par, censure, and administrative fines. In re UBS Securities, LLC (filed June 26, 2008).
Wednesday, June 25, 2008
The battle between the New York State Attorney General and Richard A. Grasso, the former CEO of the NYSE, over his outsize compensation continues, and Grasso achieved a significant victory today, as the New York Court of Appeals threw out four claims in the AG's complaint that were based on the common law and not the New York not-for-profit statute. The trial court had held that the AG could bring these claims under the parens patriae doctrine to vindicate the interests of the investing public. A majority of the Appellate Division reversed because it saw the non-statutory claims as an attempt to circumvent the fault-based claims of the statute. New York's highest court unanimously agreed with the Appellate Division and dismissed the four nonstatutory claims. In a opinion written by Chief Judge Kaye, that largely walked through the relevant statutory provisions and compared them with the AG's nonstatutory claims, the court emphasized that the statutory provisions provided the directors and officers with the protections of the business judgment rule and were essentially fault-based. In contrast, the AG's nonstatutory claims attempted to impose liability based on the size of Grasso's compensation. To allow the AG to do so would override the fault-based system created by the legislature and would permit the AG to reach beyond the bounds of his authority. The court also noted that as a matter of separation of powers policy this extension would be especially troublesome: "Although the Executive must have flexibility in enforcing statutes, it must do so while maintaining the integrity of calculated legislative policy judgments." The People &c. v. Grasso (N.Y. June 25, 2008).
What happens next? The defendant has not contested the AG's authority to bring two of the statutory claims; the AG's authority to maintain the other two statutory claims is the subject of another appeal pending in the Appellate Division. Will the current AG, Andrew Cuomo, fold and view this case as an unfortunate legacy of his predecessor Eliot Spitzer? Let's wait and see.
At its open meeting the SEC also considered a recommendation from the Division of Trading and Markets to amend Rule 15a-6 under the Exchange Act. Rule 15a-6 provides a framework under which U.S. investors can obtain services from foreign broker-dealers. The SEC adopted Rule 15a-6 in 1989 in response to the increasing internationalization of the securities markets, to address how non-U.S. broker-dealers fit into the statutory scheme. The staff followed up throughout the 1990s with no-action letters. According to Chairman Cox,
the staff today is recommending that the Commission propose that Rule 15a-6 be overhauled and updated. Of greatest significance is that foreign broker-dealers would be able to interact with U.S. institutional investors with $25 million or more in investments. Currently, such foreign broker-dealers may only interact with institutions with financial assets of more than $100 million. In addition, the staff recommends extending the ability to interact with U.S. customers to include natural persons who own or control investments of more than $25 million.
Under the proposal, foreign broker-dealers would also be able to provide more services directly to U.S. investors. Currently, any contact by a foreign broker-dealer with a U.S. institution must be chaperoned by a person registered with a U.S. broker-dealer when providing services to U.S. investors. In practice this requirement has proven unwieldy as investors face significant inconvenience caused by differences in time zones and limitations on when investors could be contacted. In many cases, it amounted to simply making them pay twice. Further difficulties for U.S. investors arise because U.S. registered broker-dealer personnel have to be available for visits from and oral communications with foreign broker-dealers. Taken together, these limitations seriously hamper the service of U.S. investors and, in its most acute form, also effectively limit access to certain foreign investments.
The proposal would modify the chaperoning requirement so that foreign broker-dealers meeting the rule's conditions could effect all aspects of a transaction. For example, they could maintain the custody of funds and assets. Customers could be contacted directly and without restrictions on the time of day in which contacts could be made. Foreign broker-dealers providing such services would be required to disclose that they are not regulated by the SEC. They also would be required to disclose that U.S. bankruptcy and account segregation provisions, as well as protections under the Securities Investor Protection Act, would not apply. Importantly, foreign broker-dealers would be required to conduct a "foreign business" where at least 85% of its business was in foreign securities.
The SEC has been subject to much deserved criticism over its slow review process of SRO rule-making. Today at its open meeting the SEC took up a proposal from its Division of Markets and Trading to streamline the process. According to Chairman Cox, in his opening statement,
the staff has recommended that the Commission take aggressive action in this regard. The staff has recommended that the Commission amend its internal rules of procedure to require that any proposed rule change submitted for review under Section 19(b)(2) be published within 15 business days of having been filed by an SRO. In the rare instance where a rules change raises unusually complex or novel issues, the Director of the Division of Trading and Markets would be able to personally make exceptions to this 15-day requirement. This authority could not be sub-delegated, and the Commission, which would be notified of such exceptions, could direct the publication if appropriate.
To further address concerns about delay, the staff also has recommended that the Commission issue new interpretive guidance. This guidance would elaborate on the Commission's views regarding proposed rule changes that may properly be filed for immediate effectiveness, and specifically, those proposed rule changes filed pursuant to Exchange Act Rule 19b-4(f)(6), under which "non-controversial" rule changes may be filed.
First, the guidance would address the proposed changes to rules governing exchange trading systems that could be filed for immediate effectiveness. If these changes implicated any policy issues, they would have to be addressed consistently with how the Commission has dealt with them in the past. The guidance provides many helpful examples in this regard. Additional changes that also could be filed for immediate effectiveness would include, first, those relating to an SRO's minor rule violation plan and, second, so-called "copycat" rule filings relating to proposed rule changes other than trading rules.
This guidance should encourage SROs to file greater numbers of rule changes for immediate effectiveness where appropriate. Importantly, however, SROs should understand that, as the volume of such rule changes increases, so may the possibility that certain rule changes could be abrogated. Undoubtedly, many market participants affected by such rule changes might try to persuade the Commission that a rule change filed for immediate effectiveness should be abrogated and re-filed for full Commission review. In my view, this would be a healthy outcome and one fully contemplated by the framework established under the Exchange Act.
In anticipation of this change in the Commission's processes, the staff also has recommended that the Commission now consider any such abrogations directly. Accordingly, the staff has recommended removing the provision delegating this authority to the Division of Trading and Markets. This change would enhance the Commission's involvement in this area, where industry and Commission practice likely will undergo a period of rapid transition over the coming months and years. Once the Commission and industry have had a chance to adjust to the new process and it has become more routinized, the Commission could once again call on the staff to administer abrogations by delegation.
For several years regulators, in particular NASAA, have raised the alarm about abusive sales practices used in the marketing of equity-indexed annuities to investors, particularly senior citizens, for whom this product may be unsuitable. EIAs are a complex hybrid of insurance and securities that are difficult to understand and involve high fees, particularly high surrender charges. An unresolved issue is whether EIAs are securities under the federal securities laws. The SEC has proposed a new rule that would establish — on a prospective basis — the standards for determining when equity indexed annuities are not considered annuity contracts under the Securities Act of 1933 and therefore are securities and thus are subject to the investor protections afforded by the securities laws.
At the SEC's June 25, 2008 open meeting, the Commission took up a proposal to increase investor protection by reducing reliance on credit ratings. According to Chairman Cox's opening statement:
The recommendations we consider today are designed to ensure that the role we assign to ratings in our rules is consistent with the objective of having investors make an independent judgment of the risks associated with a particular security.
The concern is that because of the references to credit ratings throughout the SEC's rules, investors have come to place undue reliance on the credit ratings, instead of conducting their own due diligence.
The federal district court for the Western District of New York granted the SEC's motion for preliminary injunction and other relief against defendants Watermark Financial Services Group, Inc. ("Watermark Financial"), Watermark M-One Holdings, Inc. ("Watermark Holdings"), M-One Financial Services, LLC ("M-One"), Watermark Capital Group, LLC ("Watermark Capital"), Guy W. Gane, Jr., and Lorenzo Altadonna. The SEC's complaint, filed on May 15, 2008, alleges that from at least May 2005 to the present, Gane and M-One orchestrated a securities offering fraud that has raised at least $5.7 million from approximately 90 investors, including a number of senior citizens, through the sale of debentures and promissory notes issued by the various entity defendants. Gane is a principal of each of the issuing entities. The complaint further alleges that the defendants told investors that their money would be used to purchase or develop real estate, but instead Gane: (i) used new investor funds to pay back earlier investors; (ii) misappropriated investors' funds by using them to pay himself, his family, and others; and (iii) transferred substantial portions of investor funds to Denkon, Inc., Guy W. Gane, III, and Jenna Gane for no apparent consideration. In addition, the complaint alleges that the debentures offering was not registered with the Commission and that Gane violated the broker-dealer registration provisions of the federal securities laws.
Entered on June 18, 2008, the court's order continues in place various forms of interim relief initially ordered by the court on May 16, 2008, when the court granted the Commission's application for a temporary restraining order and other relief to halt the fraud orchestrated by Gane and the other defendants. The litigation is pending.
The SEC announced a Fair Fund distribution totaling more than $5.6 million to 534 investors who were victims of a fraudulent pump-and-dump scheme involving the stock of tool maker Spear & Jackson, Inc. The SEC stated that the Fair Fund distribution represents a 100 percent return of losses to defrauded investors who bought Spear & Jackson stock during the fraudulent touting period from February 2002 through April 2004.
In April 2004, the SEC charged Spear & Jackson, its then-chairman and CEO Dennis Crowley, and two stock promoters in connection with the fraudulent scheme. The complaint alleged that Crowley secretly acquired hundreds of thousands of shares of stock of Spear & Jackson and its predecessor through three nominee companies based in the British Virgin Islands that he clandestinely controlled. The complaint further alleged that Crowley then hired stock promoters to distribute false and misleading information about Spear & Jackson to the brokerage community in order to drive up the company's share price while he dumped his shares on the market.
The SEC ultimately obtained significant relief against all parties by consent. Crowley paid more than $4 million in disgorgement and prejudgment interest and a $2 million civil penalty, and the stock promoters paid a combined total of approximately $800,000 in disgorgement and civil penalties.
In a follow-up action that arose out of this same case, the SEC last year instituted public administrative proceedings against broker-dealer Park Financial Group, Inc., and its principal, Gordon Cantley, alleging that they aided and abetted Crowley's violations of the securities laws by allowing him to buy and sell Spear & Jackson stock through the nominee companies' accounts at Park Financial. Park Financial and Cantley also were charged with failing to file Suspicious Activity Reports (SARs) in connection with Crowley's transactions, marking the first time that the Commission had brought a case against a broker-dealer for failing to file SARs.
In December 2007, the Commission issued an order by consent against Park Financial and Cantley. Without admitting or denying the SEC's allegations, Park Financial and Cantley were ordered to cease and desist committing securities law violations and to pay disgorgement and civil penalties. In addition, the Commission censured Park Financial and barred Cantley from association for a broker or dealer with the right to reapply in two years.
FINRA Dispute Resolution expanded its voluntary discovery arbitrator pilot, which it first launched in its Southeast and Western Regional hearing locations in 2005, to address concerns about discovery in arbitration. FINRA has also added non-public arbitrators to the pilot for certain intra-industry cases. Under the pilot, the Director of Arbitration appoints a single discovery arbitrator to resolve all discovery disputes before the hearing. The discovery arbitrators do not serve on the panels that decide the cases; they only decide the parties' discovery disputes. Parties participating in the pilot have described it as cost effective with arbitrators providing consistent decisions on discovery issues.
If parties wish to participate in the pilot, they must sign a stipulation and be represented by counsel.
Tuesday, June 24, 2008
The SEC issued orders today granting the registration of Realpoint LLC as a nationally recognized statistical rating organization under the Credit Rating Agency Reform Act of 2006 and simultaneously granting a temporary exemption of Realpoint LLC from the Conflict of Interest Prohibition in Rule 17a-5(c)(1) under the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of June 23.
SEC Chairman Christopher Cox announced a wide-ranging internal inquiry, called the "21st Century Disclosure Initiative," to examine fundamental questions about the way the SEC acquires information from public companies, mutual funds, brokers, and other regulated entities and the way it makes that information available to investors and the markets. The goal is to outline the attributes of the disclosure system for the future that incorporates technology, the new ways in which investors get their information, and recent developments in how companies compile and report the information in their SEC-mandated disclosures. The first phase of the study will be completed by the end of 2008, when a follow-on advisory committee will be appointed to consider the questions in more detailed fashion through a public and consultative process.
The study will be undertaken by a staff of experts to be led by Dr. William D. Lutz of Rutgers University. Dr. Lutz previously played an important role in advancing the SEC's Plain English initiative by preparing the SEC's Plain English Handbook., a manual to help mutual funds and public companies write clear and understandable SEC filings.
The study will include a review of all existing SEC forms and reporting requirements, as well as the manner in which information is provided to the Commission, with a special focus on needless redundancy. It will also include consideration of various alternative strategic approaches to acquiring and publishing disclosure information. In addition, the study will consider ways that regulatory requirements for the collection of information might be tailored to get the best real-time distribution of financial and narrative disclosure to investors. Finally, the study will examine how best to integrate public disclosure with the SEC's proposed new post-EDGAR architecture for investor search, assembly, and comparison of data.