April 6, 2011
SEC Approves Changes to FINRA Discovery Guide
The SEC approved a proposed rule change filed by FINRA making amendments to the Discovery Guide and Rules 12506 and 12508 of the Code of Arbitration Procedure for Customer Disputes. Publication is expected in the Federal Register during the week of April 4, 2011.
SEC Announces Filing of Limit Up-Limit Down Proposal to Address Extraordinary Market Volatility
The SEC announced that national securities exchanges and the Financial Industry Regulatory Authority (FINRA) today filed a proposal to establish a new “limit up-limit down” mechanism to address extraordinary market volatility in U.S. equity markets. Under the proposal, trades in listed stocks would have to be executed within a range tied to recent prices for that security. If approved by the Commission, the new limit up-limit down mechanism would replace the existing single stock circuit breakers, which were approved on a pilot basis shortly after the market events of May 6, 2010.
The SEC will seek comment on the proposed plan, which is subject to Commission approval following a 21-day public comment period.
The proposed “Limit Up-Limit Down” mechanism would prevent trades in listed equity securities from occurring outside of a specified price band, which would be set at a percentage level above and below the average price of the security over the immediately preceding five-minute period. For stocks currently subject to the circuit breaker pilot, the percentage would be 5 percent, and for those not subject to the pilot, the percentage would be 10 percent.
The percentage bands would be doubled during the opening and closing periods, and broader price bands would apply to stocks priced below $1.00. To accommodate more fundamental price moves, there would be a five-minute trading pause – similar to the pause triggered by the current circuit breakers – if trading is unable to occur within the price band for more than 15 seconds.
If approved, all trading centers, including exchanges, ATSs, and broker-dealers executing internally, would have to establish policies and procedures reasonably designed to prevent trades from occurring outside the applicable price bands, to honor any trading pause, and to otherwise comply with the procedures set forth in the plan. The exchanges and FINRA have requested that the SEC approve the plan as a one-year pilot program.
EC CHARGES CORPORATE ATTORNEY AND WALL STREET TRADER IN $32 MILLION INSIDER TRADING RING
The SEC charged a corporate attorney and a Wall Street trader with insider trading in advance of at least 11 merger and acquisition announcements involving clients of the law firm where the attorney worked over the past 5 years. According to the SEC, Matthew H. Kluger, who formerly worked at Wilson Sonsini Goodrich & Rosati, and Garrett D. Bauer did not have a direct relationship with each other, but were linked only through a mutual friend who acted as a middleman to facilitate the illegal scheme. In a parallel criminal action, the U.S. Attorney’s Office for the District of New Jersey today announced the arrests of Kluger and Bauer.
According to the SEC’s complaint, Kluger accessed information on 11 mergers and acquisitions involving the law firm’s clients and then tipped the middleman. In at least nine instances, the middleman passed the information on to Bauer, who illegally traded for illicit profits totaling nearly $32 million. Kluger, Bauer and the middleman deliberately structured their communications and trading so that Kluger and the middleman could share in the insider trading proceeds while Bauer could illegally trade and profit without being connected to Kluger as a possible source of information. Bauer withdrew cash from his bank accounts and kicked back hundreds of thousands of dollars to the middleman, who in turn delivered at least $500,000 to Kluger for his role in the scheme.
The SEC is seeking permanent injunctions, disgorgement of ill-gotten gains with prejudgment interest, and financial penalties.
April 5, 2011
SEC Historical Society's April 28 Webcast on Pay to Play
FIRESIDE CHAT with the SEC Historical Society presents: Pay to Play, With
David Clapp, Retired Partner, Goldman, Sachs & Co.
and former Chairman, Municipal Securities Rulemaking Board
Ronald Stack, Managing Director, Wells Fargo
and former Chairman, Municipal Securities Rulemaking Board
Moderated by Professor Lisa Fairfax, The George Washington University Law School
Live Audio Broadcast, Thursday April 28th • 2:00 p.m. ET
Send in your questions for the Fireside Chat by April 27th.
SEC CHARGES SATYAM COMPUTER SERVICES WITH FINANCIAL FRAUD
The SEC announced today that it filed a settled civil action against Satyam Computer Services Limited (“Satyam”), a foreign private issuer based in India, charging the company with fraudulently overstating the company’s revenue, income and cash balances by more than $1 billion over five years. The SEC’s complaint, filed in U.S. District Court in Washington, D.C., alleges that former senior officials at Satyam – an information technology services company based in Hyderabad, India – used false invoices and forged bank statements to inflate the company’s cash balances and make it appear far more profitable to investors. Although Satyam’s shares primarily traded on the Indian markets, its American depository shares traded on the New York Stock Exchange during the relevant period.
According to the SEC’s complaint, shortly after the fraud came to light in January 2009, the India government seized control of the company by dissolving Satyam’s Board of Directors and appointing new government-nominated directors; removed former top managers of the company; and oversaw a bidding process to select a new controlling shareholder in Satyam. In addition, Indian authorities filed criminal charges against several former officials.
In addition to the actions taken by the Indian authorities, Satyam, whose new leadership cooperated with the SEC’s investigation, has agreed to pay a $10 million penalty to settle the SEC’s charges, require specific training of officers and employees concerning securities laws and accounting principles, and improve its internal audit functions. In addition, it agreed to hire an independent consultant to evaluate the internal controls Satyam is putting in place.
The settlement also requires Satyam to hire an independent consultant and comply with certain undertakings.
In a related settlement, the Commission issued an Administrative Order that sanctioned Satyam’s former independent auditors for violations of federal securities laws and improper professional conduct while auditing the company’s financial statements from 2005 through January 2009. The PW India affiliates agreed to settle the SEC’s charges and pay a $6 million penalty, the largest ever by a foreign-based accounting firm in an SEC enforcement action.
Wells Fargo Settles Charges Involving Sales of CDOs by Wachovia
The SEC announced that Wells Fargo Securities LLC agreed to settle charges that Wachovia Capital Markets LLC engaged in misconduct in the sale of two collateralized debt obligations (CDOs) tied to the performance of residential mortgage-backed securities as the U.S. housing market was beginning to show signs of distress in late 2006 and early 2007.
The SEC’s order found that Wachovia Capital Markets violated the securities laws in two respects. First, Wachovia Capital Markets charged undisclosed excessive markups in the sale of certain preferred shares or equity of a CDO called Grand Avenue II to the Zuni Indian Tribe and an individual investor. As detailed in the order, Wachovia Capital Markets marked down $5.5 million of equity to 52.7 cents on the dollar after the deal closed and it was unable to find a buyer. Months later, the Zuni Indian Tribe and the individual investor paid 90 and 95 cents on the dollar. Unbeknownst to them, these prices were over 70 percent higher than the price at which the equity had been marked for accounting purposes.
Second, Wachovia Capital Markets misrepresented to investors in a CDO called Longshore 3 that it acquired assets from affiliates “on an arm’s-length basis” and “at fair market prices” when, in fact, 40 residential mortgage-backed securities were transferred from an affiliate at above-market prices. Wachovia Capital Markets transferred these assets at stale prices in order to avoid losses on its own books. The SEC’s order does not find that Wachovia Capital Markets acted improperly otherwise in structuring the CDOs or in the way it described the roles played by those involved in the structuring process.
Wachovia Capital Markets has since been renamed Wells Fargo Securities. Wells Fargo Securities agreed to settle the SEC’s charges by paying more than $11 million in disgorgement and penalties, much of which will be returned to harmed investors through a Fair Fund.
April 4, 2011
Senate Committee Schedules Hearing on Accounting Profession's Role in Preventing Financial Crises
The Senate Banking Committee will hold a public hearing on The Role of the Accounting Profession in Preventing Another Financial Crisis, on April 6, 2011.
The witnesses on Panel I will be: Mr. James R. Doty, Chairman, Public Company Accounting Oversight Board; Ms. Leslie F. Seidman, Chairman, Financial Accounting Standards Board; and Mr. James L. Kroeker, Chief Accountant, U.S. Securities and Exchange Commission. The witnesses on Panel II will be: Mr. Anton R. Valukas, Chairman, Jenner & Block LLP; Ms. Cynthia M. Fornelli, Executive Director, Center for Audit Quality; Mr. Thomas Quaadman, Vice President, Center for Capital Markets Competitiveness, U.S. Chamber of Commerce; and Mr. Lynn E. Turner, Former Chief Accountant, U.S. Securities and Exchange Commission.
All hearings are webcasted live
TARP Special Master Releases 2011 Compensation Determinations at 4 "Exceptional Assistance" Recipients
On April 1, 2011, the Acting Special Master for TARP Executive Compensation, Patricia Geoghegan, released 2011 compensation determinations for the “top 25” executives at the four remaining companies that received exceptional TARP assistance—AIG, Ally Financial (formerly GMAC), Chrysler and GM. The report finds:
- No increase in CEO compensation.
- 2011 pay packages follow the framework established in 2009 and 2010.
- Companies have made progress in repaying taxpayer investments.
- ‘Top 25’ compensation packages: Overall the cash compensation for these 98 individuals decreased 18.2 percent, and their total direct compensation decreased 1.3 percent from 2010 levels. For the individuals in the “top 25” in both 2010 and 2011, cash compensation increased 4.7 percent and total direct compensation increased 4.4 percent. For the individuals new to the “top 25” group for 2011, cash compensation decreased 39 percent as compared to the cash they received for 2010, and total direct compensation decreased 9.6 percent as compared to 2010.
U Missouri Call for Papers: International Dispute Resolution Conference
The University of Missouri School of Law has put out a call for papers and proposals in connection with the annual symposium hosted by the award-winning Center for the Study of Dispute Resolution. This year’s symposium is international in scope and is entitled “Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration.” The conference features world-renowned author, arbitrator and advocate Gary Born as keynote speaker as well as expert panelists from Canada, Austria, Switzerland and the United States. The symposium will be held on October 21, 2011, with papers to be published in the Journal of Dispute Resolution.
The call (Download Call - combined (2)) relates to two events that are being organized in connection with this year’s symposium:
• A works-in-progress conference for academics to be held on October 20, 2011, the day prior to the symposium itself (proposals due May 20, 2011); and
• A student writing competition with a $300 prize sponsored by the Chartered Institute of Arbitrators (CIArb) North American Branch (papers due August 15, 2011).
Additional details are available on the symposium website: http://www.law.missouri.edu/csdr/symposium/2011/. Submissions and questions should be directed to Professor S.I. Strong at firstname.lastname@example.org.
London-based keynote speaker Gary Born was recently honored by the American Society of International Law (ASIL) for his scholarship and was named "Advocate of the Year" by the Global Arbitration Review at the annual GAR awards dinner in Seoul, Korea. Mr. Born is the author of a number of leading publications on international arbitration and litigation, including International Commercial Arbitration (Kluwer 2009), International Forum Selection and Arbitration Agreements: Drafting and Enforcing (Kluwer 2010), International Arbitration: Cases and Materials (Aspen 2011), and International Civil Litigation in US Courts (Aspen 2007). Mr. Born has taught at Harvard Law School, Stanford Law School, St. Gallen University, Georgetown University Law Center, University of Virginia College of Law, University College London and the University of Arizona College of Law.
FINRA Expels AIS Financial for Disregarding AML Responsibilities
A FINRA hearing panel expelled AIS Financial, Inc., a broker-dealer based in Westlake Village, CA, for failing to implement and enforce an anti-money laundering (AML) program. AIS disregarded its AML responsibilities by ignoring prominent red flags and blatant suspicious activity for an extended period of time for financial gain. The hearing panel found that from November 2005 to December 2007, AIS failed to identify, investigate and report suspicious penny stock activity in three instances. Motivated by commissions the firm received from allowing its customers to liquidate billions of shares of penny stocks from numerous accounts, AIS turned a blind eye to the suspicious activity and concealed the activity from regulatory authorities.
SEC Commissioner Aguilar Addresses Reverse Mergers by Chinese Companies
In a speech before the Council of Institutional Investors Annual Conference, SEC Commissioner Luis Aguilar addressed the investor protection problems presented by the recent trend of foreign private issuers going public in the U.S. market through the "back door" of a reverse merger. As explained by Commissioner Aguilar:
In recent years, we have seen a spike in private companies merging with a public shell company as a way of going public. While it is Chinese companies that have grabbed recent headlines, the problems coming to the forefront would not necessarily be limited to companies based in China.
A common but lesser known way of accessing the public markets is the reverse merger into a public shell, or where a public shell merges into a private company, a so-called “backdoor registration.” For those of you not familiar with these types of mergers, what typically happens is a private company seeking to go public merges with a public shell company. Before the transaction, the public shell company no longer has substantive operations, but its public company registration remains in effect. The transaction gives the formerly private company the credibility and access to capital of being registered as a public company, without any of the vetting from underwriters and investors that companies undergo when they perform a traditional IPO.
Since January of 2007, there have been over 600 backdoor registrations. Over 150 of these have been by companies from China and the China region. Notwithstanding the SEC rulemaking of a few years ago to respond to abuses involving shell companies, we are seeing increasing problems. While the vast majority of these Chinese companies may be legitimate businesses, a growing number of them are proving to have significant accounting deficiencies or being vessels of outright fraud.
As just one example of this phenomenon, two companies that were numbers 1 and 2 on the Investor’s Business Daily 100 have now been shown to have significant issues. One of these companies had to restate its earnings and was delisted just last week. The other has admitted that at the very least that two of its manufacturing contracts didn’t actually exist. Just last Friday, the SEC suspended trading in another Chinese company that became public in the United States through a shell. This was the second SEC trading suspension imposed on Chinese companies in this situation in the month of March alone. Additionally, NASDAQ and NYSE Amex have recently suspended trading in several of these companies.
Commissioner Aguilar went on to discuss recent findings by the PCAOB on audit concerns involving companies from the China region.
April 3, 2011
Fried on Executive Pay
Share Repurchases, Equity Issuances, and Optimal Design of Executive Pay, by Jesse M. Fried, Harvard Law School, was recently posted on SSRN. Here is the abstract:
This paper identifies a potential cost to public investors of tying executive pay to the stock’s future value - even its long-term value. In particular, such an arrangement can incentivize executives to engage in share repurchases (when the current stock price is low) and equity issuances (when the current stock price is high) that reduce “aggregate shareholder value”: the amount of value flowing to all the firm’s shareholders over time. The paper also puts forward a mechanism that ties executive pay to aggregate shareholder value and thereby eliminates the identified distortions.
Sjostrom on the 500 Equity Holder Trigger
Questioning the 500 Equity Holder Trigger, by William K. Sjostrom Jr., University of Arizona - James E. Rogers College of Law, was recently posted on SSRN. Here is the abstract:
The article provides a brief overview of Section 12(g) of the Securities Exchange Act of 1934 and argues that the SEC should adopt a new rule exempting from its application private companies with no active secondary trading in their securities, regardless if they have 500 or more shareholders.
Dallas on Short-Termism and the Financial Crisis
Short-Termism, the Financial Crisis and Corporate Governance, by Lynne Dallas, University of San Diego School of Law, was recently posted on SSRN. Here is the abstract:
This paper is a comprehensive exploration of why financial and non-financial firms engage in short-termism with particular attention given to the financial crisis of 2007-2009. Short-termism, which is also referred to as earnings management or managerial myopia, consists of the excessive focus of corporate managers, asset (portfolio) managers, investors and analysts on short-term results, whether quarterly earnings or short-term portfolio returns, and a repudiation of concern for long-term value creation and the fundamental value of firms. This paper examines how market and internal firm dynamics contribute to short-termism by considering various structural, informational, behavioral and incentive problems operating within firms and markets.
Regarding structural problems, this paper explores how the internal dynamics of traditional and shadow banks contribute to short-termism. It also explores the contribution of short-term (high turnover) trading, including momentum and high frequency trading, to short-termism. It examines the role of "dumb money" (noise traders) in causing overvalued equity resulting in over-investments by non-financial firms, and the role of transient institutional investors in contributing to earnings management by managers of non-financial firms. It also addresses the ability of activist shareholders through the use of shareholder voting rights or takeovers to use non-financial firms as short-term arbitrage opportunities.
Fanto et alia on Board Diversity
Justifying Board Diversity, by James A. Fanto, Brooklyn Law School; Lawrence M. Solan, Brooklyn Law School; and John M. Darley, Princeton University, was recently posted on SSRN. Here is the abstract:
In this Article, we point out that advocates for board diversity in public companies feel pressure to justify it in terms of its contribution to shareholder value. This pressure is not surprising, insofar as the dominant social identity of boards, which itself is partly a creation of the discipline of finance, views shareholder value as the ultimate criterion for any company action, including eligibility for the board. We observe, however, that accepting this criterion poses a problem for diversity advocates, because the empirical evidence for a diverse board’s contribution to shareholder value is not strong or definitive, and the chain of causation from a diverse board to increased shareholder value is a long and tenuous one. We similarly note that there is no conclusive evidence that a diverse board addresses well-known pathologies of boards as decision-making groups and thus improves board functioning. We draw parallels between this quandary of diversity advocates in satisfying the shareholder value mandate and recent anti-discrimination law jurisprudence, which, in discriminatory impact settings, makes business necessity determinative of the outcome of cases. We believe, however, that the lack of strong empirical support for board diversity with respect to shareholder value or board performance does not necessarily doom the cause of diversity advocates. We argue that diversity advocates should endorse justifications and normative frameworks other than shareholder value to support diverse boards. Corporate law allows boards to base their decisions with respect to many matters, including board composition, on business-related grounds that are only loosely connected to shareholder value. In our view, diversity advocates should take advantage of this freedom, although we acknowledge the resistance to, and risks associated with, any questioning of shareholder value. We contend that, if diversity advocates, as well as non-diverse board members and others, justify board diversity on other grounds and norms, they could promote a transformation in the social identity of boards. This transformed identity might improve board functioning, but it is enough for us that it reflects and promotes anti-discriminatory norms.
Harris on Politics of Shareholder Voting
The Politics of Shareholder Voting, by Lee Harris, University of Memphis - Cecil C. Humphreys School of Law, was recently posted on SSRN. Here is the abstract:
Economic theory that suggests that under-performing boards of directors should be fearful of an ouster vote by shareholders under-appreciates the complexity of shareholder voting decisions. Skill at enhancing firm value has less to do with whether directors win votes and stay at the helm of public companies than previous commentators have acknowledged. Instead, like an incumbent politician, managers of some of the largest US firms tend to stay in charge of the firm because they understand - and take advantage of - the political dynamics of corporate voting. Thus, this Article presents a competing theory of shareholder voting decisions that suggests that the process of arriving at a voting decision for shareholders in corporate elections is not dissimilar from how citizens vote in political elections. Next, the Article presents the evidence. Using a hand-collected dataset from recent elections for board seats, the Article compares the explanatory power of a standard economic variable (long-term stock price returns) and a political variable (money spent on campaigning) on election outcomes. Based on the data, directors’ ability to enhance firm value (as measured by stock price returns) is not significantly related to whether they win re-election. Rather, the likelihood of being returned to office appears to be a function of typical election politics - how much was spent by challengers to put on a campaign. These findings have at least two considerable implications. First, the theory that shareholder voting may be politicized helps point the way to how the SEC ought to craft reforms - and, just as important, how not to craft them. Recent SEC reforms have the laudable goals of creating conduits for shareholders to participate in firm affairs, get shareholder-nominated candidates elected to the board, and discipline incumbent managers. However, the results of this study suggest that these reforms will not achieve the stated goals. Second, the evidence and theory about shareholder voting presented here has significant implications for understanding mergers and acquisitions, particularly hostile acquisitions.
Fried & Shilon on Excess-Pay Clawbacks
Excess-Pay Clawbacks, by Jesse M. Fried, Harvard Law School, and Nitzan Shilon, Harvard Law School, was recently posted on SSRN. Here is the abstract:
The Dodd-Frank Act mandates that public firms adopt a policy requiring the clawback of certain types of “excess pay” – such as bonuses generated by inflated earnings. Academic commentators have criticized this requirement, arguing that private ordering will yield better arrangements than government fiat. Analyzing the clawback policies voluntarily adopted by S&P 500 firms prior to Dodd-Frank, we find that nearly 50% of S&P 500 firms had no excess-pay clawback policy whatsoever. In the remaining firms, clawback policies were designed to let executives keep excess pay in a wide variety of circumstances. Our findings suggest that private ordering did not yield adequate clawback arrangements before Dodd-Frank and that the Act will improve such arrangements at most public firms. We also suggest what boards should do about the types of excess pay not reached by Dodd-Frank.
NYSE Will Review NADAQ-ICE Proposal "Consistent with its Fiduciary Duties"
NYSE Euronext confirmed on April 1 that it received an unsolicited proposal from Nasdaq OMX Group, Inc. and IntercontinentalExchange Inc. to acquire all outstanding shares of NYSE Euronext for a combination of $14.24 in cash, 0.4069 shares of Nasdaq stock and 0.1436 shares of ICE stock per NYSE Euronext share. According to the release,
Consistent with its fiduciary duties, and in consultation with its independent financial and legal advisors, NYSE Euronext’s Board will carefully review the proposal. NYSE Euronext urges shareholders not to take any action with respect to the proposal.
Securities America Proposes to Settle Arbitration Claims
Readers of this blog know that I have been following the Securities America litigation that involves complicated questions about the relationship between litigation and arbitration claims when numerous investors are pursuing claims against a brokerage firm with limited assets (but a wealthy parent Ameriprise in the background). Previously a federal district court judge exercised his power under the All Writs Act to enjoin ongoing arbitrations to allow the parties in a class action involving similar claims to negotiate a settlement. About a week ago, the judge rejected the settlement and lifted the injunction, thus sending all parties into mediation. Meanwhile, Ameriprise sent out mixed messages about its willingness to provide financial assistance to its subsidiary.
On March 30, 2011 Reuters reported that Securities America had reached a preliminary settlement that would offer claimants in arbitrations as much as 48% of their claims. The settlement rejected by the judge would have offered class members about 20% of their claims. The negotiators of the proposed settlement are now polling claimants and attorneys to see if there is support for the settlement.
If anyone out there has additional information, I'd appreciate hearing it.
Raj Rajaratnam Trail: Week 4
The fourth week of Raj Rajaratnam's criminal trial for insider trading followed the pattern of the previous weeks. The goverment presents a witness who testifies he participated in the alleged trading scheme with RR and backs up the testimony with incrminating tapes of phone conversations, and the defense attempts to undermine the witness's credibility. Most of the week's testimony came from Adam Smith, a former Galleon fund manager who earlier this year pleaded guilty to insider trading and is now cooperating with the government. Mr. Smith is the first former Galleon employee to testify.
Smith testified that he cultivated contacts for RR's network of consultants and corporate insiders to access nonpublic information that would give Galleon an edge in trading. This was the first time that expert-network firms were mentioned, the subject of another federal investigation. He specifically testified about arrangements to pay cash in exchange for inside information at several companies, including Intel, ATI, and AMD, all companies that have been previously mentioned at the trial. In addition, Smith testified about RR's "pipeline" to Goldman Sachs via a then-Goldman director, Rajat Gupta.
On cross-examination, the defense continued its consistent defense. It introduced emails and other communications to show that stock trades were based, not on illegal stock tips, but research based on public information. The defense also sought to undermine the credibility of Smith by asking questions about any deal he struck with the government for his testimony in exchange for a reduced sentence.