Friday, March 29, 2013
The SEC announced that a Chinese businessman and his wife whose trading accounts were frozen last year as part of an insider trading case have agreed to settle charges that they loaded up on the securities of Nexen Inc. while in possession of nonpublic information about an impending announcement that the company was being acquired by China-based CNOOC Ltd.
The SEC obtained an emergency court order in July 2012 to freeze multiple Hong Kong and Singapore-based trading accounts just days after the Nexen acquisition was announced and suspicious trading in Nexen stock was detected. The SEC’s complaint alleged that in the days leading up to the announcement, Hong Kong-based firm Well Advantage Limited and other unknown traders purchased Nexen stock based on confidential details about the acquisition.
The SEC’s investigation has identified Ren Feng and his wife Zeng Huiyu as previously unknown traders charged in the complaint as well as Ren’s private investment company CT Prime Assets Limited and four of Zeng’s brokerage customers on whose behalf she traded. They made a combined $2.3 million in illegal profits from Nexen stock trades made by Ren and Zeng.
The settlement, which is subject to court approval, requires the traders to pay more than $3.3 million combined.
In October 2012, the SEC announced a settlement with Well Advantage, which agreed to pay more than $14.2 million to settle the insider trading charges. U.S. District Court Judge Richard J. Sullivan of the Southern District of New York approved that settlement.
The SEC alleges that Steinberg's illegal conduct generated more than $6 million in profits and avoided losses. Steinberg received illegal tips from Jon Horvath, an analyst who reported to him at Sigma Capital. Horvath was charged last year among several hedge fund managers and analysts as part of the broader investigation into expert networks and the trading activities of hedge funds.
The SEC announced the agenda for its April 16 roundtable to discuss potential ways to improve the transparency and efficiency of fixed income markets. Panelists will be announced at a later date.
The roundtable will be divided into four panels.
The first panel will address current market structure for municipal securities, and the second panel will discuss current market structure for corporate bonds and asset-backed securities.
The third panel will focus on whether potential steps can be taken to improve the transparency, liquidity, or efficiency of the market structure for municipal securities. The fourth panel will focus on whether potential steps can be taken to improve the transparency, liquidity, or efficiency of the market structure for corporate bonds and asset-backed securities.
Thursday, March 28, 2013
Wednesday, March 27, 2013
Tuesday, March 26, 2013
The SEC charged Matthew Teeple, a California-based hedge fund analyst, with insider trading in advance of a merger of two technology companies based on nonpublic information he received from his friend, David Riley, an an executive at one of the companies. The SEC also charged Riley and another trader in the $29 million insider trading scheme.
According to the SEC, Teeple was tipped in advance of a July 2008 announcement that Foundry Networks Inc. had agreed to be acquired by Brocade Communication Systems Inc. for approximately $3 billion. Teeple’s source was Foundry’s chief information officer David Riley. Teeple then caused the San Francisco-based hedge fund advisory firm where he works to buy Foundry shares in large quantities in the days leading up to the public announcement, and the hedge funds managed by the firm reaped millions of dollars in profits when Foundry’s stock value increased upon the news. Teeple also tipped a Denver-based investment professional John Johnson whom he befriended through a previous working relationship, and Johnson made illegal trades based on the nonpublic information. Riley also tipped Teeple in advance of at least two other major announcements by Foundry, and Teeple’s firm traded on the nonpublic information to make profits or avoid losses.
In a separate action, the U.S. Attorney’s Office for the Southern District of New York today announced criminal charges against Teeple, Riley, and Johnson.
A recent opinion from the S.D.N.Y. granted class certification to a class of investors in several mutual funds in the Smith Barney Family of Funds because the plaintiffs successfully invoked the Affiliated Ute presumption of reliance. The allegations stemmed from a previous SEC settlement alleging that the Funds failed to disclose that they did not pass along cost savings achieved by reducing transfer agent fees to the Funds, but instead allowed an affiliated firm to pocket the difference. In re Smith Barney Transfer Agent Litigation (05 Civ. 7583 (WHP) dec. Mar. 21, 2013) (Download SmithBarney.032113)
Defendant argued that class certification was unwarranted because there was no class-wide reliance presumption available. Plaintiffs conceded that the fraud-on-the market presumption was not available because the securities did not trade in an efficient market and instead relied on the less commonly invoked Affiliated Ute presumption, which is available only in claims "involving primarily a failure to disclose." As the court observed, the distinction between misstatements and omissions is often illusory. Noting that the Affiliated Ute presumption is a "pragmatic one," the court found that the heart of plaintiffs' claim is the failure to disclose the transfer agent scheme that generated profits for the affiliate at the Funds' expense. Moreover, class representatives had testified that disclosure of the transfer agent scheme would have affected their investment decisions.
As part of the earlier settlement, the SEC had established a Fair Fund and distributed more than $100 million to the Funds. Defendant argued that the claims of named plaintiffs who participated in the Fair Fund distribution were atypical. The court, however, rejected this argument; typicality focuses on the nature of plaintiffs' claims, not on possible defenses to the claims. In addition, while the securities law prohibits double recovery, there is no evidence that the named plaintiffs had been fully compensated.
Judge Scheindlin (S.D.N.Y.) addressed an important securities law issue that is the subject of academic debate more often than the basis of a judicial opinion: how to rebut the fraud on the market (FOTM) presumption of reliance. GAMCO Investors, Inc. v. Vivendi, S.A. (09 Civ. 7962 (SAS) decided Feb. 28, 2013) (Download VivendiSDNYopinion) presented that issue in a case where Vivendi was collaterally estopped from denying any of the elements of plaintiffs' section 10(b) claims except for reliance; plaintiffs were entitled to the FOTM presumption of reliance; and neither truth on the market nor allegations of no price impact were available as defenses to the presumption. Moreover, the parties agreed that during the relevant period plaintiffs did not possess non-public corrective information about Vivendi's misstatements; the plaintiffs did not directly rely on Vivendi's material misstatements; during the relevant period, the market for Vivendi's ADS's was efficient. In short, the only issue was whether Vivendi could rebut the FOTM presumption of reliance. A bench trial was held on this issue, after which the court concluded that indeed Vivendi had successfully rebutted the presumption because the plaintiffs "did not rely on the inflated market value of Vivendi ADS's as an 'unbiased assessment of [their] value.'"
The plaintiffs, a number of companies affiliated with Gabelli Asset Management, Inc.,purchased Vivendi securities during a period when Vivendi made misstatements to cover up its liquidity crisis. Plaintiffs allege that the misstatements inflated the market price of Vivendi ADS's and consequently harmed the plaintiffs when they relied on the inflated price in making their purchases. The court, however, found that plaintiffs' investment philosophy was based on the intrinsic "Private Market Values" of a company, i.e., "the price that an informed industrialist would be willing to pay for it, if each of its segments were valued independently in a private market sale." Plaintiffs' investment philosophy was to invest in companies whose PMVs are substantially higher than their market capitalizations.
The court specifically found that plaintiffs believed that Vivendi's liquidity crisis was a short-term concern that made it a more attractive investment because it reduced the market price of Vivendi securities without reducing its PMV. Consistent with this, plaintiffs were increasing their Vivendi holdings during the period when corrective disclosures about the liquidity crisis were introduced into the marketplace. Accordingly, Vivendi's liqudity crisis was irrelevant to plaintiffs' decision to purchase Vivendi securities.
The court cautioned that this was an "extraordinary case" because Vivendi was able to rebut the FOTM presumption in an efficient market by establishing that plaintiffs did not, in fact, rely on the inflated market value of the securities and that "it cannot be said that but for Vivendi's misstatements and omissions about its liquidity condition, Plaintiffs would not have transacted in Vivendi ADS's." The court further stated that the holding was "sharply limited to its unusual facts, and should not be taken to suggest that sophisticated institutional investors or value-based investors are not entitled to the [FOTM] presumption in general."
Sunday, March 24, 2013
The Fiduciary Obligations of Financial Advisors Under the Law of Agency, by Robert H. Sitkoff, Harvard Law School, was recently posted on SSRN. Here is the abstract:
This paper considers how agency fiduciary law might be applied to a financial advisor with discretionary trading authority over a client's account. It (i) surveys the agency problem to which the fiduciary obligation is directed; (ii) examines the legal context by considering how the fiduciary obligation undertakes to mitigate this problem; and (iii) examines several potential applications of agency fiduciary law to financial advisors, including principal trades and the role of informed consent by the client, organizing the discussion under the great fiduciary rubrics of loyalty and care. This paper was sponsored by Federated Investors, Inc.
The Supercharged IPO, by Victor Fleischer, University of Colorado Law School; University of San Diego, and Nancy C. Staudt, USC Gould School of Law, was recently posted on SSRN.. Here is the abstract:
A new innovation on the IPO landscape has emerged in the last two decades, allowing owner-founders to extract billions of dollars from newly-public companies. These IPOs — labeled supercharged IPOs — have been the subject of widespread debate and controversy: lawyers, financial experts, journalists, and Members of Congress have all weighed in on the topic. Some have argued that supercharged IPOs are a “brilliant, just brilliant,” while others have argued they are “underhanded” and “bizarre.”
In this article, we explore the supercharged IPO and explain how and why this new deal structure differs from the more traditional IPO. We then outline various theories of financial innovation and note that the extant literature provides useful explanations for why supercharged IPOs emerged and spread so quickly across industries and geographic areas. The literature also provides support for both legitimate and opportunistic uses of the supercharged IPO.
With the help of a large-N quantitative study — the first of its kind — we investigate the adoption and diffusion of this new innovation. We find that the reason parties have begun to supercharge their IPO is not linked to a desire to steal from naïve investors, but rather for tax planning purposes. Supercharged IPOs enable both owner-founders and public investors to save substantial amounts of money in federal and state taxes. With respect to the spread of the innovation, we find that elite lawyers, especially those located in New York City, are largely responsible for the changes that we observe on the IPO landscape. We conclude our study by demonstrating how our empirical findings can be used to 1) advance the literature on innovation, 2) assist firms going public in the future, and 3) shape legal reform down the road.
Is the Corporate Director's Duty of Care a 'Fiduciary' Duty? Does it Matter?, by Christopher M. Bruner, Washington and Lee University - School of Law, was recently posted on SSRN. Here is the abstract:
While reference to "fiduciary duties" (plural) is routinely employed in the United States as a convenient short-hand for a corporate director's duties of care and loyalty, other common-law countries generally treat loyalty as the sole "fiduciary duty." This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware's convoluted and problematic framework for evaluating disinterested board conduct been facilitated by styling care a "fiduciary" duty? If so, then how should Delaware lawmakers and judges respond moving forward?
I argue that styling care a "fiduciary" duty has impacted Delaware's duty of care analysis in ways that are not uniformly positive. Historically, loyalty has been aggressively enforced, while care has hardly been enforced at all - the former approach aiming to deter conflicts of interest through probing analysis of "entire fairness," while the latter aims to promote entrepreneurial risk-taking through a hands-off judicial posture embodied in the business judgment rule. Conflation of these differing concepts as "fiduciary duties," however, has facilitated a tendency toward over-enforcement of care, periodically threatening to impair entrepreneurial risk-taking until arrested by a countervailing legislative or judicial response. Additionally, their conflation threatens to erode the duty of loyalty by fueling the contractarian argument that the sole utility of such "fiduciary duties" is to fill contractual gaps, and that corporations therefore ought to possess latitude to "opt out" of loyalty to the degree already permitted with respect to care.
While I concede that there may be good reasons not to abruptly recharacterize Delaware's duty of care as "non-fiduciary," I conclude that the analytical problems described in this essay can otherwise be remedied only through a statutory provision more clearly distinguishing these differing duties and enforcement strategies. Specifically, I advocate a statutory damages rule declaring once and for all that monetary damages may be imposed on a corporate director for care, but not loyalty, breaches - an approach effectively discarding much of Delaware's multi-layered and convoluted mode of care analysis, while insulating the duty of loyalty from future erosion.