January 27, 2012
New Residential Mortgage-Backed Securities Working Group Hopes to Restore America's Trust in Financial Sector
Here is more information on the joint state-federal mortgage abuse investigation unit announced by President Obama in the State of the Union address, from New York AG's website:
The new Residential Mortgage-Backed Securities Working Group ...brings together the Department of Justice (DOJ), several state law enforcement officials – led by Attorney General Schneiderman - and other federal entities to investigate those responsible for misconduct contributing to the financial crisis through the pooling and sale of residential mortgage-backed securities. It builds upon ongoing state and federal investigations, while also launching new ones.
The goals of this joint investigation will be to:
Hold accountable any institutions that violated the law;
Compensate victims and help provide relief for homeowners struggling from the collapse of the housing market, caused in part by this wrongdoing; and
To help us finally turn the page on this destructive period in our nation’s history.
...the new working group will include 55 Department of Justice attorneys, analysts, agents and investigators. As it begins its work, 15 attorneys – civil and criminal – and 10 FBI agents and analysts will be initially assigned to the working group. An additional 30 attorneys, investigators and other staff from U.S. Attorney’s Offices around the country will join the working group’s efforts, in addition to existing state and federal investigations into similar misconduct under those authorities.
January 26, 2012
SEC Charges Latvian Trader with Hacking into Customers' Accounts
The SEC charged a trader in Latvia for conducting a widespread online account intrusion scheme in which he manipulated the prices of more than 100 NYSE and Nasdaq securities and caused more than $2 million in harm to customers of U.S. brokerage firms. The SEC also instituted related administrative proceedings today against four electronic trading firms and eight executives charged with enabling the trader’s scheme by allowing him anonymous and unfiltered access to the U.S. markets.
According to the SEC’s complaint filed in federal court in San Francisco, Igors Nagaicevs broke into online brokerage accounts of customers at large U.S. broker-dealers and drove stock prices up or down by making unauthorized purchases or sales in the hijacked accounts. This occurred on more than 150 occasions over the course of 14 months. Nagaicevs – using the direct, anonymous market access provided to him by various unregistered firms – traded those same securities at artificial prices and reaped more than $850,000 in illegal profits.
According to the SEC’s orders instituting administrative proceedings against the four electronic trading firms, they allowed Nagaicevs to trade through their electronic platforms without first registering as brokers. Each of the trading firms provided him online access to trade directly in the U.S. markets through an account held in the firm’s name. These firms gave Nagaicevs a gateway to the U.S. securities markets while circumventing the protections of the federal securities laws, including requirements for brokers to maintain and follow adequate procedures to gather information about customers and their trading.
One firm and two individuals each agreed to settle the charges.
SIGTARP: TARP's Not Over
The Office of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) released its most recent Quarterly Report to Congress on Jan. 26, 2012 (Download SIGTARP.January_26_2012_Report_to_Congress), and it makes for interesting reading. From the executive summary:
TARP will continue to exist for years. TARP programs that support the housing market and certain securities markets are scheduled to last until as late as 2017, and Treasury can spend an additional $51 billion on these programs during those years. Taxpayers are still owed $132.9 billion in TARP funds, and taxpayers will never get back some of these funds. Some programs were designed as a Government subsidy with no return to taxpayers. Treasury has already written off or realized losses of $12 billion and Treasury predicts losses on other TARP investments. The Congressional Budget Office recently increased its estimated cost of TARP to $34 billion. One fallout of slow economic recovery is that it slows Treasury’s progress in recouping outstanding TARP funds. Unwinding Treasury investments in 458 institutions, including American International Group, Inc. (“AIG”), General Motors Corp. (“GM”), Ally Financial Inc. (“Ally Financial”), and community banks, in the near term could prove challenging as markets remain volatile and banks struggle to stay on their feet. Financial stress continues to pose obstacles to economic recovery, in part due to an 8.5% unemployment rate, decreased consumer confidence, nonperforming mortgages, and job cuts and asset sales by some of the nation’s largest institutions.
The U.S. Government continues to own 77% of AIG, 32% of GM and 74% of Ally. Unwinding these investments is "likely to take several years."
The Report also summarizes the findings of its previously released report examining executive compensation determinations made by the Office of the Special Master for TARP Compensation (Kenneth Feinberg), which found that
former Special Master Kenneth Feinberg could not effectively rein in excessive compensation at these companies because he was under the constraint that his most important goal was to get the companies to repay TARP.
SIGTARP goes on to paint a gloomy picture and epress continuing concerns about executive compensation:
There has been little fundamental change in the compensation structures at the largest institutions. The integrity of our financial system remains at risk, with many former TARP recipients now designated as systemically important financial institutions (“SIFIs”) that continue with compensation structures that may encourage risk taking. The implicit guarantee that came from the Government’s unprecedented intervention resulted in moral hazard, and companies continue to engage in risky behavior. SIFIs have a responsibility to discipline risk taking that could potentially trigger systemic consequences, including as it relates to compensation. Because companies generally have shown little or no appetite for reforming executive compensation practices, the economy remains at risk that compensation could play a material role in the event of a future crisis.
New York AG Will Head New Mortgage Investigation Unit
In his State of the Union Address, President Obama announced that he would create a financial crimes unit to crack down on fraud:
We’ll also establish a Financial Crimes Unit of highly trained investigators to crack down on large-scale fraud and protect people’s investments.
This surprised me because I thought that's what the DOJ and the SEC were supposed to do, and, according to their officials, are doing.
President Obama also announced a state-federal coalition to deal with mortgage fraud:
And tonight, I’m asking my Attorney General to create a special unit of federal prosecutors and leading state attorney general to expand our investigations into the abusive lending and packaging of risky mortgages that led to the housing crisis. (Applause.)
This new unit will hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans.
Again, one can question why an aggressive investigation on either the state or federal level has not taken place before. Nevertheless, more information is emerging about this state-federal investigation, which apparently will be led by New York State AG Eric Schneiderman. After the State of the Union Address, AG Schneiderman released the following statement:
"I would like to thank President Obama for his leadership in the creation of a coordinated investigation that marshals state and federal resources to bring justice for the victims of the misconduct that caused the mortgage crisis.
"In coordination with our federal partners, our office will continue its steadfast commitment to holding those responsible for the economic crisis accountable, providing meaningful relief for homeowners commensurate with the scale of the misconduct, and getting our economy moving again.
"The American people deserve a robust and comprehensive investigation into the global financial meltdown to ensure nothing like it ever happens again, and today's announcement is a major step in the right direction."
Bloomberg reports that the mortgage investigation unit will focus on bank conduct that caused the housing bubble and bust, including the securitization of loans. The unit will include DOJ, SEC and IRS officials and will be part of a task force created in 2009 to investigate and prosecute financial fraud cases. Bloomberg, Obama Creates Unit to Probe Mortgage Misconduct by Banks
January 25, 2012
FINRA Fines Merrill Lynch for Not Letting Brokers Arbitrate Bonus Disputes
FINRA fined Merrill Lynch, Pierce, Fenner & Smith $1 million for failing to arbitrate disputes with employees relating to retention bonuses. Registered representatives who participated in the bonus program had to sign a promissory note that prevented them from arbitrating disagreements relating to the note, forcing the registered representatives to resolve disputes in New York state courts, which greatly limits the ability of defendants to assert counterclaims in such actions.
FINRA found that Merrill Lynch, after merging with Bank of America in January 2009, implemented a bonus program to retain certain high-producing registered representatives and purposely structured it to circumvent the requirement to institute arbitration proceedings with employees when it sought to collect unpaid amounts from any of the registered representatives who later left the firm. In January 2009, Merrill Lynch paid $2.8 billion in retention bonuses structured as loans to over 5,000 registered representatives. Also, Merrill Lynch structured the program to make it appear that the funds for the program came from MLIFI, a non-registered affiliate, rather than from the firm itself, allowing it to pursue recovery of amounts due in the name of MLIFI in expedited hearings in New York state courts to circumvent Merrill Lynch's requirement to arbitrate disputes with its associated persons. Later that year, after a number of registered representatives left the firm without repaying the amounts due under the loan, Merrill Lynch filed over 90 actions in New York state court to collect amounts due under the promissory notes, thus violating a FINRA rule that requires firms to arbitrate disputes with employees.
In concluding this settlement, the firm neither admitted nor denied the charges, but consented to the entry of FINRA's findings.
Class Action Waiver in FLSA Case Remains Unenforceable After Concepcion, According to S.D.N.Y.
The Southern District of New York recently denied a motion to reconsider a prior ruling that refused to send a matter to arbitration because an individual arbitration would prevent the plaintiff from vindicating her statutory rights. Sutherland v. Ernst & Young, 10 Civ. 3332 (MHD) (Jan. 13, 2012). Judge Wood rejected E&Y's argument that the U.S. Supreme Court's opinion in AT&T Mobility v. Concepcion (which held that California's Discover Rule, striking down class waivers as unconscionable in contracts of adhesion, was preempted by the FAA) mandated a reversal of her earlier decision. In Sutherland, the plaintiff brought a class action against her former employer charging violations of the Fair Labor Standards Act. E&Y sought to send the matter to arbitration based on an arbitration agreement that required arbitration on an individual basis only. Judge Wood had previously held that the plaintiff would be unable to vindicate her statutory rights on an indvidual basis because of the costs associated with an individual claim in relation to any expected recovery (Sutherland asserted her losses were approximately $1800.) She based her decision on the Second Circuit's opinion in Italian Colors Restaurant v. American Express Travel Related Services Co., 634 F.3d 187 (2d Cir. 2011) (AmEx II), which held that the enforceability of a class action waiver must be determined on a case-by-case basis, including the cost of vindicating the claim when compared to the plaintiff's potential recovery.
In its motion for rehearing, E&Y argued that Concepcion overruled the case-by-case analysis set forth in the Second Circuit's AmEx II opinion and required the court to give effect to the class waiver provision. Judge Wood, however, did not agree. Although she acknowledged that the applicability of Concepcion to her previous order was "a close question," she found that the facts in the present case were significantly different from those in Concepcion, because, unlike the Concepcions, Sutherland was not able to vindicate her statutory rights absent a collection action. She noted that the Supreme Court emphasized the provision in the AT&T arbitration agreement that would ensure that the Concepcions would be able to obtain redress for their claims and, in fact, were better off in arbitration than as members of a class action. In contrast, Sutherland demonstrated that she would not be able to obtain representation or vindicate her rights on an individual basis because of the small amount of her claim. Accordingly, Sutherland's case is analogous to situations where the Supreme Court has stated that it would not enforce contractual agreements that would operate "as a prospective waiver of a party's right to pursue statutory remedies."
In addition, Judge Wood relied on the fact that while the Discover Rule was a state common law contract doctrine and accordingly preempted by the FAA, the analysis under AmEx II is based on federal courts' interpretation of the FAA itself.
It is interesting to note that the Second Circuit itself may not be so confident about the continuing validity of AmEx II after Concepcion. In light of the Supreme Court's decision the Second Circuit panel that decided AmEx II announced that it "is sua sponte considering rehearing" (Aug. 2, 2011). It has not spoken on the subject since issuing that statement.
January 23, 2012
Diamondback Settles Insider Trading Charges; SEC Cites Its Cooperation
The SEC announced that Diamondback Capital Management LLC has agreed to pay more than $9 million to settle insider-trading charges brought by the Commission on Jan. 18. The SEC said it considered the substantial cooperation that Diamondback provided, including conducting extensive interviews of staff, reviewing voluminous communications, analyzing complex trading patterns to determine suspicious trading activity, and presenting the results of its internal investigation to federal investigators. As part of the proposed settlement, the hedge fund adviser also has entered into a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of New York.
Under the proposed settlement, Diamondback will give up more than $6 million of allegedly ill-gotten gains and pay a $3 million civil penalty. In addition, Diamondback consented to a judgment that permanently enjoins it from future violations of federal anti-fraud laws. The proposed settlement would resolve charges of insider trading by Diamondback in shares of Dell Inc. and Nvidia Corp. in 2008 and 2009.
The SEC also filed charges against a second hedge fund advisory firm and seven individuals, including a former Diamondback analyst and former Diamondback portfolio manager.
January 22, 2012
Spindler on Mandatory Long Term Compensation
Hidden Costs of Mandatory Long Term Compensation, by James C. Spindler, University of Texas School of Law; McCombs School of Business, University of Texas at Austin, was recently posted on SSRN. Here is the abstract:
After the 2008 financial panic, long term compensation measures have gained favor as a way to limit managerial opportunism and excessive risk-taking. These measures, which may become mandatory for systemically important institutions, include restriction (i.e., deferral) of stock grants for a period of years, and, in the event of performance reversals, divestment of deferred stock and clawbacks of bonus compensation. These measures are considered uncontroversial enough that some have suggested that all public companies, not just systemically important firms, should adopt them.
In this article, I argue that benefits of long term compensation have been overstated while the potential downsides have been largely ignored. Restricted periods for equity grants must be large compared to the executive’s tenure in order to have a great effect upon behavior overall, and mandatory clawback provisions end up transferring what would have been bonus pay into salary. Further, to the extent that long-term compensation does affect behavior, these consequences are not necessarily good. I show that given fairly reasonable assumptions of executive risk aversion, information content of long term and short term price signals, and managerial control over the timing of project execution and disclosure, a long-term focus can have significant negative effects.
McDonnell on Too Big To Fail
Financial Regulation Reform and Too Big to Fail, by Brett McDonnell,
University of Minnesota Law School, was recently posted on SSRN. Here is the abstract:
Perhaps the leading critique of the Dodd-Frank Act is that it does too little to address the problem of too big to fail (“TBTF”) financial institutions. The critique of TBTF institutions has two main components. The economic argument focuses on a major moral hazard problem. The political argument focuses on the political clout of TBTF institutions. There are important truths in both the economic and the political argument against TBTF institutions. However, there are also important limits to the truth of both arguments. I believe the limits are more central than the truths, and that if anything Dodd-Frank has gone too far in focusing on TBTF institutions. This paper first explores the truths and limits of the economic argument, and then does the same for the political argument. It then lays out a map for my own preferred approach to the TBTF problem. In the short run, we need relatively modest but firm regulation. Dodd-Frank looks pretty good in many ways, but still needs some important fixes. The longer run is more daunting: we need to find ways to develop alternative financial and other institutions that are smaller and more focused on community and other stakeholder interests.
Nelson on Say on Pay and Derivative Shareholder Litigation
Ending the Silence: Shareholder Derivative Suits and Amending the Dodd-Frank Act so 'Say on Pay' Votes May Be Heard in the Boardroom, by William Alan Nelson II, George Washington University - Law School, was recently posted on SSRN. Here is the abstract:
The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) has broad and deep implications that will touch every corner of the financial services industry, as well as multiple other industries. This article is the first to fully examine shareholder derivative lawsuits filed after a negative “say on pay” vote on executive compensation under the Dodd-Frank Act. The article begins by providing a history of “say on pay” votes and examining the “say on pay” provisions of the Dodd-Frank Act. The article transitions into a discussion of how the Dodd-Frank “say on pay” provisions are currently being utilized by shareholders in derivative lawsuits. Specifically, the article will analyze in detail the legal theories raised and remedies sought by the litigants in the only two post-Dodd-Frank decisions that have been handed down by courts to date.
Based on this analysis, the article provides recommendations for companies on how to re-write their “pay for performance” executive compensation policies and how to respond positively and actively to a negative “say on pay” vote on executive compensation. The article concludes by proposing an amendment to the Dodd-Frank Act which, if promulgated, would provide that a second successive negative “say on pay” vote (50% or more of shareholder votes cast against the proposed executive compensation package) on executive compensation would prompt a vote on a “spill” resolution and, if that resolution passes, all directors, except for the managing director, must stand for re-election at a special “spill” meeting within 90 days of the annual shareholder meeting where the “spill” resolution passed.