December 12, 2008
SEC Charges Bernard Madoff with Running a Ponzi Scheme
Following on the arrest of Bernard L. Madoff for criminal securities fraud, the SEC charged Madoff and his investment firm, Bernard L. Madoff Investment Securities LLC, with securities fraud for a multi-billion dollar Ponzi scheme that he perpetrated on advisory clients of his firm. The SEC is seeking emergency relief for investors, including an asset freeze and the appointment of a receiver for the firm.
The SEC's complaint, filed in federal court in Manhattan, alleges that Madoff yesterday informed two senior employees that his investment advisory business was a fraud. Madoff told these employees that he was "finished," that he had "absolutely nothing," that "it's all just one big lie," and that it was "basically, a giant Ponzi scheme." The senior employees understood him to be saying that he had for years been paying returns to certain investors out of the principal received from other, different investors. Madoff admitted in this conversation that the firm was insolvent and had been for years, and that he estimated the losses from this fraud were at least $50 billion.
According to regulatory filings, the Madoff firm had more than $17 billion in assets under management as of the beginning of 2008. It appears that virtually all assets of the advisory business are missing.
Madoff founded the firm in 1960 and has been a prominent member of the securities industry throughout his career. Madoff served as vice chairman of the NASD, a member of its board of governors, and chairman of its New York region. He was also a member of NASDAQ Stock Market's board of governors and its executive committee and served as chairman of its trading committee.
December 11, 2008
FBI Arrests Bernie Madoff
The Wall St. Journal reports that Bernard L. Madoff, founder of Bernard L. Madoff Investment Securities, was arrested by the FBI and charged with criminal securities fraud. The complaint states that he told some employees that his business was a "giant Ponzi scheme." WSJ, Madoff Charged With Securities Fraud.
SEC Open Meeting Dec. 17
SEC Open Meeting - December 17, 2008 - 10:00 a.m.
The subject matter of the open meeting will be:
The Commission will consider whether to approve the 2009 budget of the Public Company Accounting Oversight Board and will consider the related annual accounting support fee for the Board under Section 109 of the Sarbanes-Oxley Act of 2002.
The Commission will consider whether to adopt amendments to provide for companies’ financial statement information to be filed with the Commission in interactive data format, according to a specified phase-in schedule.
The Commission will consider whether to adopt amendments to provide for mutual fund risk/return summary information to be filed with the Commission in interactive data format. The Commission will also consider whether to adopt amendments to permit investment companies to submit portfolio holdings information under the Commission’s interactive data voluntary program without being required to submit other financial information.
The Commission will consider whether to adopt amendments that would define terms related to annuity contracts under the Securities Act of 1933, and whether to adopt amendments related to periodic reporting requirements under the Securities Exchange Act of 1934.
SEC and Zurich Financial Services Settle Fraud Action
The SEC announced the filing and settlement of charges against Zurich Financial Services Group for aiding and abetting a fraud by Converium Holding AG involving the use of finite reinsurance transactions to inflate improperly Converium’s financial performance. Under the settlement, Zurich consents to the entry of a final judgment directing it to pay a $25 million penalty plus $1 in disgorgement and, in a related administrative proceeding, consents to the entry of a cease-and-desist order against it.
The Commission’s complaint, filed today, alleges that beginning in 1999, the management of Zurich’s reinsurance group, which operated under the name Zurich Re, developed three reinsurance transactions for the purpose of obtaining the financial benefits of reinsurance accounting. However, in order for a company to obtain the benefits of reinsurance accounting, the reinsurance transaction must transfer risk. Here, Zurich Re management designed the transactions to make them appear to transfer risk to third-party reinsurers, when, in fact, no risk was transferred outside of Zurich-owned entities. For two of the transactions at issue, Zurich Re ceded risk to third-party reinsurers, but took it back through reinsurance agreements – known as retrocessions – with another Zurich entity. For the third transaction, Zurich Re ceded the risk to a third-party reinsurer but simultaneously entered into an undisclosed side agreement with the reinsurer pursuant to which Zurich Re agreed to hold the reinsurer harmless for any losses realized under the reinsurance contracts. Because the ultimate risk under the reinsurance contracts remained with Zurich-owned entities, these transactions should not have been accounted for as reinsurance.
The complaint also alleges that, in March 2001, Zurich announced its intent to spin off its reinsurance group in an initial public offering. Zurich then created and capitalized Converium, which assumed the rights and obligations of Zurich’s assumed reinsurance business. On December 11, 2001, Zurich spun off Converium in an IPO. At the conclusion of the IPO, the members of Zurich Re management responsible for the three reinsurance transactions ceased to be affiliated with Zurich. As a result of the improper accounting treatment the reinsurance transactions received, the historical financial statements in Converium’s IPO documents, including the Form F-1 it filed with the Commission, were materially misleading. Among other things, Converium understated its reported loss before taxes by approximately $100 million (67%) in 2000 and by approximately $3 million (1%) in 2001. In addition, for certain periods, the transactions had the effect of artificially decreasing Converium’s reported loss ratios for certain reporting segments – the ratio between losses paid by an insurer and premiums earned that is frequently cited by analysts as a key performance metric for insurance companies.
The complaint further alleges that Converium’s misstatements relate to fact that were material to investors who purchased shares in the IPO. Through the IPO, which was the largest reinsurance IPO in history, Zurich raised significantly more than it would have raised had Zurich and Converium not improperly inflated Converium’s financial performance.
The Commission’s complaint alleges that Zurich aided and abetted Converium’s violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.
In connection with the settlement, Zurich has agreed, without admitting or denying the allegations in the Commission’s complaint, to pay a $25 million penalty, plus $1 in disgorgement. In a related administrative proceeding, Zurich has also agreed, without admitting or denying the Commission’s findings, to the issuance of an order that requires Zurich to cease and desist from committing or causing any violation and any future violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.
SEC Settles Charges Against 8 Former Fidelity Brokers
The SEC announced settlements of an enforcement action against eight former employees of Fidelity Investments' equity trading desk, who will collectively pay more than $1 million to settle SEC charges for improperly receiving travel, entertainment, and gifts paid for by outside brokers courting business from Fidelity. The SEC instituted administrative proceedings on March 5, 2008, against 10 former Fidelity employees, including former vice president and head of the trading desk, Scott E. DeSano. The SEC's orders issued today find that DeSano and former Fidelity equity traders Timothy J. Burnieika, David K. Donovan, Edward S. Driscoll, Jeffrey D. Harris, Christopher J. Horan, Steven P. Pascucci and Kirk C. Smith violated the federal securities laws by accepting prohibited compensation from brokers including among them private jet trips, lodging and premium sports tickets. In addition, the Commission also found that DeSano was a cause of Fidelity's failures to seek best execution for its clients and to disclose conflicts of interest to its clients, and that DeSano failed to supervise the 10 traders.
SEC Finalizes ARS Settlements with Citi and UBS
The SEC finalized settlements with Citigroup Global Markets, Inc. (Citi) and UBS Securities LLC and UBS Financial Services, Inc. (UBS), that will provide nearly $30 billion to tens of thousands of customers who invested in auction rate securities before the market for those securities froze in February. The settlements resolve the SEC's charges that both firms misled investors regarding the liquidity risks associated with auction rate securities (ARS) that they underwrote, marketed and sold. Previously, on August 7 and 8, 2008, the Commission's Division of Enforcement announced preliminary settlements with Citi and UBS, respectively.
The settlements, which are subject to court approval, will restore approximately $7 billion in liquidity to Citi customers who invested in ARS, and $22.7 billion to UBS customers who invested in ARS.
Without admitting or denying the SEC's allegations, Citi and UBS agreed to be permanently enjoined from violations of the broker-dealer fraud provisions and to comply with a number of undertakings.
The Citi settlement provides:
Citi will offer to purchase ARS at par from individuals, charities, and small businesses that purchased those ARS from Citi, even if those customers moved their accounts.
Citi will use its best efforts to provide liquidity solutions for institutional and other customers, including, but not limited to, facilitating issuer redemptions, restructurings, and other reasonable means, and will not take advantage of liquidity solutions for its own inventory before making those solutions available to these customers.
Citi will pay eligible customers who sold their ARS below par the difference between par and the sale price of the ARS.
Citi will reimburse eligible customers for any excess interest costs associated with loans taken out from Citi due to ARS illiquidity.
The UBS settlement provides:
UBS will offer to purchase at par from all current or former UBS customers who held their ARS at UBS as of February 13, 2008, or purchased their ARS at UBS between October 1, 2007 and February 12, 2008, even if they moved their accounts. Different categories of customers will receive offers from UBS at different times.
UBS will not liquidate its own inventory of a particular ARS without making that liquidity opportunity available, as soon as practicable, to customers.
UBS will pay eligible customers who sold their ARS below par the difference between par and the sale price of the ARS.
UBS will reimburse customers for any excess interest costs incurred by using UBS's ARS loan programs.
The Commission alerts investors that, in most instances, they will receive correspondence from Citi and UBS, and that they must advise the respective firm that they elect to participate in these settlements, or they could lose their rights to sell their ARS. Further, if eligible customers incurred consequential damages because of the illiquidity of their ARS, they may participate in special FINRA arbitrations.
Both Citi and UBS will also be permanently enjoined from violating the provisions of Section 15(c) of the Exchange Act of 1934, which prohibit the use of manipulative or deceptive devices by broker-dealers. Both firms also face the prospect of financial penalties to the Commission. After the buy back periods are substantially complete, the Commission may consider imposing a financial penalty against Citi and/or UBS based on the traditional factors the Commission considers for penalties and based on whether the individual firm has fulfilled its obligations under its settlement agreement.
December 9, 2008
SEC Publishes Municipal Bond Disclosure Amendments
The SEC published on its website its recently adopted amendments to a rule under the Securities Exchange Act of 1934 (“Exchange Act”) relating to municipal securities disclosure. This final rule amends certain requirements regarding the information that the broker, dealer, or municipal securities dealer acting as an underwriter in a primary offering of municipal securities must reasonably determine that an issuer of municipal securities or an obligated person has undertaken, in a written agreement or contract for the benefit of holders of the issuer’s municipal securities, to provide. Specifically, the amendments require the broker, dealer, or municipal securities dealer to reasonably determine that the issuer or obligated person has agreed: to provide the information covered by the written agreement to the Municipal Securities Rulemaking Board (“MSRB” or “Board”), instead of to multiple nationally recognized municipal securities information repositories (“NRMSIRs”) and state information depositories (“SIDs”); and to provide such information in an electronic format and accompanied by identifying information as prescribed by the MSRB. The Commission’s rulemaking is intended to improve the availability of information about municipal securities to investors, market professionals, and the public generally. Concurrently, the SEC approved a companion proposal by the MSRB relating to its Electronic Municipal Market Access(“EMMA”) system for municipal securities disclosures. Finally, the SEC withdrew proposed amendments to the Rule, issued in 2006, that would have eliminated the MSRB as a location to which issuers could submit certain municipal disclosure documents.
December 8, 2008
Cox Speaks to Accountants
SEC Chairman Christopher Cox spoke today before the AICPA National Conference on Current SEC and PCAOB Developments.
SEC Charges Moscow Broker Dealer with Soliciting Sales of Russian Stock
The SEC charged a Moscow-based unregistered broker-dealer for registration and reporting violations, alleging that it solicited institutional investors in the U.S. to purchase and sell small cap stocks of Russian companies without registering as a broker-dealer with the SEC or meeting the requirements for an exemption.
In addition to instituting administrative proceedings against OOO CentreInvest Securities (CI-Moscow), the SEC charged its registered U.S. affiliate, CentreInvest, Inc. (CI-New York) and four individuals: CI-Moscow's former executive director Dan Rapoport, CI-New York's former managing director, FINOP and CFO Svyatoslav Yenin, CI-New York's former head of sales Vladimir Chekholko, and CI-New York's chief compliance officer William Herlyn. In the administrative proceeding, the SEC's Division of Enforcement alleges that from about 2003 through November 2007, CI-Moscow and Rapoport solicited investors in the U.S. both directly, and indirectly, through CI-New York, Yenin, Chekholko and Herlyn. CI-Moscow and Rapoport were not registered as a broker-dealer as required by law, nor did they meet the requirements for the exemption from registration for foreign broker-dealers.
The SEC's Division of Enforcement also alleges that Yenin and Herlyn were responsible for the filing of amendments to CI-New York's broker-dealer disclosure form that failed to disclose CI-Moscow and Rapoport's control of CI-New York, or that the license of the CI-New York's parent company had been revoked by the Cyprus SEC. The Division further alleges that CI-New York either failed to maintain business-related emails, or failed to produce them at the request of the Commission's staff as required by law, and that Yenin was responsible for CI-New York's failure to maintain these business-related e-mails.
The SEC's Division of Enforcement is seeking cease-and-desist orders, orders directing respondents to provide accountings, pay disgorgement and financial penalties, and orders imposing any remedial action appropriate in the public interest, including, but not limited to, bars from association with any broker or dealer, or revocation of registration. A hearing will be held before an Administrative Law Judge to determine whether the allegations of the Enforcement Division in the SEC's order are true, and if so, what relief is appropriate. The Commission ordered the Administrative Law Judge to issue a decision not later than 300 days from the date of service of the order.
SEC Charges New York Attorney with Selling Bogus Notes
On December 8, 2008, the SEC filed a civil injunctive action in United States District Court for the Southern District of New York alleging that New York attorney Marc S. Dreier engaged in an elaborate scheme, that violated the antifraud provisions of the federal securities laws and raised at least $113 million from the sale of bogus promissory notes. According to the SEC's complaint, Dreier is the founder and managing partner of Dreier LLP, a 250-attorney law firm headquartered in Manhattan.
According to the SEC, since at least October 2008, Dreier has been marketing fake promissory notes, including bogus notes of a New York-based real estate development company, to hedge funds and other private investment funds, and has closed at least three sales. According to the complaint, Dreier created an elaborate charade designed to convince purchasers that the notes were genuine. He allegedly distributed phony financial statements and audit opinion letters of a reputable accounting firm, and recruited confederates to play the parts of representatives of legitimate companies involved in the transactions, even creating dummy email addresses and telephone numbers.
According to the Commission's complaint, Dreier directed that two purchasers of the bogus notes wire payment to what appeared to be his law firm's escrow account. At least one note purchaser discovered the fraud and demanded, and received, the return of its investment. Approximately $100 million in known proceeds from the sale of the bogus notes remains unaccounted for.
The SEC's complaint alleges that, among other fake securities, Dreier has been offering fictitious promissory notes of a New York-based real estate development company (the "developer"), a former client of Dreier and his firm. Since at least October of this year, Dreier has approached at least three different investment funds with an offer to sell them, at a deep discount, various short-term, unsecured promissory notes supposedly issued by the developer. Two of the investment funds agreed to purchase the notes (one fund purchased notes in two separate transactions) and forwarded approximately $113 million to an account in the name of "Dreier LLP Attorney Trust Account" in payment. A third fund was offered the notes, but declined to participate.
As alleged in the complaint, all of the offers were accompanied by documents that Dreier subsequently admitted he knew were fabricated. Dreier offered the notes for sale even though he knew that the developer had never issued the notes, had not authorized Dreier to market them and indeed knew nothing of their existence or Dreier's offers or sales.
The complaint further alleges that in marketing the notes, Dreier provided the hedge funds with fabricated documents including a "form" note and related agreements, "audited financial statements," and purported audit letters, which bore the forged signature of the developer's auditor, but which were printed on purported stationary of the developer's auditing firm. Dreier did not tell representatives from the hedge funds that the notes were bogus, that the "audited financial statements" and audit opinion letters were fabricated, or that the developer had never issued the notes or authorized Dreier to market them, despite Dreier's knowledge of these matters.
The Commission seeks emergency and preliminary relief, including the asset freeze, appointment of a receiver and temporary restraining order and preliminary injunction, as well as a final judgment permanently enjoining Dreier from committing future violations of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, ordering him to pay civil penalties and disgorgement of ill-gotten gains with prejudgment interest, and provide an accounting.
Investors in Municipal Bonds Get Their Own EDGAR
It's about time -- the SEC announced that it has unanimously approved measures to provide greater transparency in the municipal securities market, so that investors can obtain free, readily accessible information online on municipal bonds. Unlike investors in corporate securities who have direct access to free company information through the SEC’s EDGAR system, average investors in municipal securities currently have no free and convenient way to get important information about the municipal bonds in which they invest. Currently, municipal securities investors who want ongoing disclosure information about a municipal bond first must locate it on their own at one of the four Nationally Recognized Municipal Securities Information Repositories (NRMSIRs). Then once they find a source, investors have to pay significant fees to get the information they want and may experience considerable delays while waiting for the documents to be delivered to them by mail or fax.
The rule amendments approved by the SEC designate the MSRB as the central repository for ongoing disclosures by municipal issuers. Under a separate MSRB rule change, its Electronic Municipal Market Access (EMMA) system would make these disclosures available to investors in the same manner that the SEC’s EDGAR system does for corporate disclosures. EMMA will operate as a consolidated, online portal where investors can instantly access, for free, all of the key information produced by municipal bond issuers about their bonds. Offering documents, real-time trade prices, and education resources already are available on EMMA at http://www.emma.msrb.org/.
In order to provide adequate transition time, the SEC’s rule amendments and the MSRB’s rule change will be effective on July 1, 2009.