Monday, January 28, 2013
The Special Inspector General for the TARP Program released a report, Treasury Continues Approving Excessive Pay for Top Executives at Bailed-Out Companies (Download 2013_SIGTARP_Bailout_Pay_Report). The title essentially says it all, but here are some snippets offering more detail:
SIGTARP found that once again, in 2012, Treasury failed to rein in excessive pay. In 2012, OSM approved pay packages of $3 million or more for 54% of the 69 Top 25 employees at American International Group, Inc. (“AIG”), General Motors Corporation (“GM”), and Ally Financial Inc. (“Ally,” formerly General Motors Acceptance Corporation, Inc.) – 23% of these top executives (16 of 69) received Treasury-approved pay packages of $5 million or more, and 30% (21 of 69) received pay ranging from $3 million to $4.9 million. Treasury seemingly set a floor, awarding 2012 total pay of at least $1 million for all but one person. Even though OSM set guidelines aimed at curbing excessive pay, SIGTARP previously warned that Treasury lacked robust criteria, policies, and procedures to ensure those guidelines are met. Treasury made no meaningful reform to its processes. Absent robust criteria, policies, and procedures to ensure its guidelines were met, OSM’s decisions were largely driven by the pay proposals of the same companies that historically, and again in 2012, proposed excessive pay. With the companies exercising significant leverage, the Acting Special Master rolled back OSM’s application of guidelines aimed at curbing excessive pay.
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There are two lessons to be learned from OSM’s 2012 pay-setting process and decisions:
First, guidelines aimed at curbing excessive pay are not effective, absent robust policies, procedures, or criteria to ensure that the guidelines are met. This is the second report by SIGTARP to warn that the Office of the Special Master, after four years, still does not have robust policies, procedures, or criteria to ensure that pay for executives at TARP exceptional assistance companies stays within OSM’s guidelines. ...
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Second, while historically the Government has not been involved in pay decisions at private companies, one lesson of this financial crisis is that regulators should take an active role in monitoring and regulating factors that could contribute to another financial crisis, including executive compensation that encourages excessive risk taking....
Thursday, January 24, 2013
It is now official -- President Obama has nominated Mary Jo White to chair the SEC. By picking a lawyer who made her reputation as an effective, aggressive prosecutor (former U.S. District Attorney for Southern District of New York), he clearly wants to send a message about the importance of tough enforcement. In his brief remarks, according to the Washington Post, the President said that while much has been done "we also need cops on the beat to enforce the law" and that "You don't mess with Mary Jo." If confirmed, she would be the first prosecutor to head up the agency.
The President also nominated Richard Cordray, a former attorney general of Ohio, to continue to head up the Consumer Financial Products Bureau. Mr. Cordray was a recess appointment in 2011, because Republicans made clear that they would not confirm him.
Wednesday, January 23, 2013
Monday, January 21, 2013
The "buzz" is that President Obama will nominate Mary Jo White as the next SEC Chair. The nomination would send a message of the importance of SEC enforcement, as Ms. White would be the first prosecutor to serve as Chair. Ms. White served as U.S. Attorney in Manhattan from 1993-2002, where she made her reputation prosecuting terrorists and Mafia figures. Currently she represents corporate defendants as the head of the litigation department at Debevoise & Plimpton. Here is her bio from the firm's website:
When Mary Jo White left her post as US Attorney for the Southern District of New York in January, 2002, she was acclaimed for her nearly nine years as the leader of what is widely recognized as the premier US Attorney’s office in the nation. She had supervised over 200 Assistant US Attorneys in successfully prosecuting some of the most important national and international matters, including complex white collar and international terrorism cases. Ms. White rejoined Debevoise in 2002, and became Chair of the firm's over 225 lawyer Litigation Department. She is a Fellow in the American College of Trial Lawyers and the International College of Trial Lawyers. Ms. White is the recipient of numerous awards and is regularly ranked as a leading lawyer by directories that evaluate law firms. In addition, Ms. White has served as a Director of The Nasdaq Stock Exchange, and on its Executive, Audit and Policy Committee. She is also a member of the Council on Foreign Relations
Friday, January 18, 2013
The Wall St. Journal reports that NASAA has found 9,001 website names containing the word "crowdfund." The association has reviewed about 2000 of these site names and concluded that about 200 warrant a closer watch. WSJ has reviewed the list and find that many of the names apparently are designed to appeal to certain groups based on gender, race or religion, i.e. "christiancrowdfunds"; others apparently are looking for the investor hoping to get rich, i.e., "getrichcrowdfunding" and "crowdfundingjackpot."
Meanwhile, the SEC has not yet promulgated crowdfunding rules, having missed a January 1 deadline.
The Consumer Financial Protection Bureau is considering whether it has the authority to protect retirement savings, reports Bloomberg. Richard Cordray, bureau director, provided no additional details. The Bureau's concern is that retirees may fall prey to financial scams as they confront the difficulties of inadequate savings and low investment returns. The SEC and the Dept of Labor have authority to regulate many types of retirement savings funds, but investor advocates have expressed concern about the vigor of their efforts. Bloomberg, Retirement Savings Accounts Draw U.S. Consumer Bureau Attention
The U.S. Department of the Treasury is moving forward with its plan to sell its approximately 300.1 million remaining shares of General Motors (GM) common stock with the initiation of a pre-arranged written trading plan. According to the press release,
Under the plan, Treasury will proceed with its December 2012 announcement that it intends to sell its shares into the market in an orderly fashion and fully exit its remaining GM investment within the next 12-15 months, subject to market conditions. That previous announcement was made in connection with GM’s repurchase of 200 million shares of GM common stock from Treasury, which was also completed in December 2012.
Treasury’s sale of its GM common stock is part of its continuing efforts to wind down the Troubled Asset Relief Program (TARP).
Monday, January 14, 2013
Professor John Coffee (Columbia) recently wrote a column, SEC enforcement: What has gone wrong?, in which he asserts that:
A disturbingly persistent pattern has emerged in U.S. Securities and Exchange Commission enforcement cases that involves three key elements: (1) The commission rarely sues individual defendants at large financial institutions, settling instead with the entity only; (2) when it does sue individual defendants, it frequently loses; and (3) the penalties collected by the commission from corporate defendants are declining and, in any event, are modest in proportion to the profits obtained.
In the view of Professor Coffee, the SEC simply does not have the resources to investigate cases as deeply as the private bar (both defense and private plaintiffs' bar) can. He suggests that the SEC retain private counsel on a contingent-fee basis to litigate large cases that the agency cannot adequately staff.
Robert Khuzami, the exiting Director of the SEC's Enforcement Division, and Deputy Director George Canellos, have now responded. In Unfair claims, untenable solution, they assert that Coffee has his facts wrong on all three assertions. (1) he inaccurately stated that the median SEC settlement dropped in amount; (2) he is wrong to suggest that the SEC rarely sues individuals; and (3) his suggestion that the SEC frequently loses cases against individual defendants is "dramatically at odds with the facts." Not surprisingly, then, the SEC lawyers disagree with Coffee's proposed solution.
[Coffee] proposes that for big litigation matters the SEC engage private lawyers compensated based on a percentage of the monies they collect. However, that solution assumes that the SEC's general goal is to sue as many deep-pocketed parties, and collect as much in penalties, as possible. But, as enforcer of the nation's securities laws, the SEC's goal is aggressively to uphold the law and serve the interests of justice. That means evaluating each case fairly, suing only those whom the evidence shows violated the law, assessing relative culpability of different participants, and assessing a penalty that is appropriate for the particular violation — which could be anything from a serious fraud to an unintentional violation of a more technical requirement.
Moreover, assessing penalties is by no means the only objective of the SEC. In cases against individuals, other forms of relief can be of great importance, such as banning a violator from the securities industry or from serving as an officer or director of a public company. Similarly, in cases against companies, the SEC frequently seeks to achieve meaningful corporate reform, such as effecting changes in management, improving the company's culture of compliance and enhancing the company's policies and procedures.
Khuzami and Canellos close by referring to "the existing limits on the SEC's authority" and suggest that recently proposed legislation to expand the SEC's power to assess penalties could address Coffee's concerns about the inadequacy of penalties.
Friday, January 11, 2013
BATS Exchange reported that in the past four years there have been numerous instances where trades were not executed at the best available price. The trades affected about 250 customers and cost about $420,000.
The Wall St. Journal reports on the impact on BATS and more generally on investor confidence in the trading markets and the regulators that regulate them. The SEC reportedly met on Thursday to discuss. WSJ, Now Up to BATS: Damage Control
Wednesday, December 19, 2012
The U.S. Dept. of Treasury announced that, as part of its continuing efforts to wind down its investments in the Troubled Asset Relief Program (TARP), it intends to fully exit its investment in General Motors (GM) within the next 12-15 months, subject to market conditions.
Treasury currently holds 500.1 million shares of GM common stock. It intends to exit that investment through the following means:
•GM will purchase 200 million shares of GM common stock from Treasury at $27.50 per share. This transaction is expected to close by the end of the year. (GM also issued a press release to this effect.)
Treasury intends to sell its other remaining 300.1 million shares through various means in an orderly fashion within the next 12-15 months, subject to market conditions. Treasury intends to begin its disposition of those 300.1 million common shares as soon as January 2013 pursuant to a pre-arranged written trading plan.
The U.S. Dept of Justice announced criminal charges against UBS Securities Japan for scheming to manipulate the LIBOR rate. The company has agreed to plead guilty, admit to criminal conduct and pay a $100 million fine. The parent company, UBS AG, agreed to pay a $400 million penalty, admit and accept responsibility for its misconduct, and continue cooperating with the DOJ. In all, UBS will pay about $1.5 billion in criminal and regulatory penalties and disgorgement. In addition, the government announced that two former UBS traders have been charged with conspiracy. As described by Assistant AG Lanny Breuer:
The bank’s conduct was simply astonishing. Hundreds of trillions of dollars in mortgages, student loans, credit card debt, financial derivatives, and other financial products worldwide are tied to LIBOR, which serves as the premier benchmark for short-term interest rates. In short, the global marketplace depends upon an accurate LIBOR. Yet UBS, like Barclays before it, sought repeatedly to fix LIBOR for its own ends – in this case, so UBS traders could maximize profit on their trading positions, and so the bank wouldn’t appear vulnerable to the public during the financial crisis.
In addition to UBS Japan’s agreement to plead guilty, two former UBS traders – Tom Alexander William Hayes and Roger Darin – have been charged, in a criminal complaint unsealed today, with conspiracy to manipulate LIBOR. Hayes has also been charged with wire fraud and an antitrust violation. There was nothing subtle about these traders’ alleged conduct. In one instance, according to the complaint, Hayes explained to a junior rate submitter that he and Darin “generally coordinate” and “skew the libors a bit.” In another instance, according to the complaint, Hayes told a trader at another bank that, “3m libor is too high cause i have kept it artificially high.”
The scope of the misconduct admitted to by UBS AG and UBS Japan is far-reaching. For years, traders at UBS sought to manipulate the bank’s LIBOR submissions for their own profit. The traders had positions in interest rate swaps that depended on UBS’s LIBOR submissions. And, on numerous occasions, they caused UBS to make LIBOR submissions that directly benefited their own trading books. UBS’s manipulation was extensive, and covered several currencies and interest rates.
Make no mistake: for UBS traders, the manipulation of LIBOR was about getting rich. As one broker told a UBS derivatives trader, according to the statement of facts appended to our agreement with the bank, “mate yur getting bloody good at this libor game . . . think of me when yur on yur yacht in monaco wont yu.”
The CFTC also issued a press release.
Tuesday, December 18, 2012
Tuesday, December 11, 2012
The U.S. Department of the Treasury announced that it has agreed to sell all of its remaining 234,169,156 shares of American International Group, Inc. (AIG) common stock at $32.50 per share in an underwritten public offering. The aggregate proceeds to Treasury from the common stock offering are expected to total approximately $7.6 billion. According to the Treasury's press release:
Giving effect to today's offering, the overall positive return on the Federal Reserve and Treasury's combined $182 billion commitment to stabilize AIG during the financial crisis is now $22.7 billion. To date, giving effect to the offering, Treasury has realized a positive return of $5.0 billion and the Federal Reserve has realized a positive return of $17.7 billion.
Wednesday, December 5, 2012
Monday, November 26, 2012
SEC Chairman Mary Schapiro announced that she will leave the Commission on Dec. 12, concluding her nearly four-year tenure. The SEC release notes that she is one of the longest serving SEC chairman, having served longer than 24 of the previous 28. The release also include a list of SEC accomplishments under her tenure. The White House has already named current SEC Commissioner Elisse B. Walter as the new Chair. Several other names had been floated, but Ms. Walter gets the top job. Her appointment does not require Senate confirmation, since she is a sitting Commissioner.
Here is Ms. Walter's bio from the SEC website:
Elisse B. Walter was appointed by President George W. Bush to the U.S. Securities and Exchange Commission and was sworn in on July 9, 2008. Under designation by President Barack Obama, she served as Acting Chairman during January 2009.
Prior to her appointment as an SEC Commissioner, Ms. Walter served as Senior Executive Vice President, Regulatory Policy & Programs, for FINRA. She held the same position at NASD before its 2007 consolidation with NYSE Member Regulation.
Ms. Walter coordinated policy issues across FINRA and oversaw a number of departments including Investment Company Regulation, Member Education and Training, Investor Education and Emerging Regulatory Issues. She also served on the Board of Directors of the FINRA Investor Education Foundation.
Prior to joining NASD, Ms. Walter served as the General Counsel of the Commodity Futures Trading Commission. Before joining the CFTC in 1994, Ms. Walter was the Deputy Director of the Division of Corporation Finance of the Securities and Exchange Commission. She served on the SEC's staff beginning in 1977, both in that Division and in the Office of the General Counsel. Before joining the SEC, Ms. Walter was an attorney with a private law firm.
Ms. Walter is a member of the Academy of Women Achievers of the YWCA of the City of New York and the inaugural class of the ABA's DirectWomen Institute. She also has received, among other honors, the Presidential Rank Award (Distinguished), the SEC Chairman's Award for Excellence, the SEC's Distinguished Service Award, and the Federal Bar Association's Philip Loomis and Manuel F. Cohen Younger Lawyer Awards.
She graduated from Yale University with a B.A., cum laude, in mathematics and received her J.D. degree, cum laude, from Harvard Law School. Ms. Walter is married to Ronald Alan Stern, and they have two sons, Jonathan and Evan.
Press accounts frequently describe Schapiro's four years as "bruising" (e.g. NYTimes, Schapiro, Head of S.E.C., Announces Departure ). She was charged with the task of restoring the agency's reputation after the Madoff scandal, restoring investor confidence in the securities markets after the financial crisis, and implementing reforms called for in the Dodd-Frank Act. She is credited with re-invigorating the Enforcement Division, among other accomplishments. However, she was frequently called to testify at Congressional oversight hearings that questioned the agency's competence on various issues, and an important SEC rule on proxy access was thrown out by the D.C. Circuit for insufficient analysis of the costs of the rule. Most recently, the Commission was unable to reach consensus on additional regulation of money market funds.
Wednesday, November 21, 2012
Two Rhode Island lawyers, Joseph Caramadre and Raymond Radhakrishnan, pleaded guilty to fraud in federal district court, for selling variable annuities to help investors profit off the deaths of terminally ill people. Authorities said that the men concealed from the terminally-ill individuals and their families that their identities would be used on annuities purchased by Caramadre and others. They were also charged with lying to insurers and the broker-dealers that processed the annuity applications.
Monday, November 19, 2012
Joseph Collins, former Mayer Brown partner and outside counsel for failed futures firm Refco, Inc., was convicted last week by a Manhattan jury for the second time of fraud. His prior conviction had been tossed because of communications between a juror and the trial judge without the presence of Collins' attorney. The jury convicted him on seven counts on charges he helped Refco executives defraud investors by hiding transactions that concealed losses.
Friday, November 16, 2012
On Nov. 12, a federal district judge in California convicted David Tamman, a former partner at the law firm Nixon Peabody LLP for obstructing an SEC investigation into whether one of the law firm's former clients was running a Ponzi scheme. Tamman was convicted on all ten counts on which he was tried: one count of conspiring to obstruct justice, five counts of altering documents, one count of being an accessory after the fact to co-defendant John Farahi’s mail and securities fraud crimes (via NewPoint Financial Services), and three counts of aiding and abetting Farahi’s false testimony before the SEC.
According to the SIGTARP press release:
The evidence at trial showed that immediately after the SEC made a surprise inspection of Farahi’s business, Tamman met with Farahi and began altering and backdating documents to make it appear that Farahi had been disclosing to investors that Farahi was himself taking the majority of investors’ funds. Those altered documents were later produced to the SEC and falsely represented by Farahi to be the actual documents that had earlier been given to investors. The evidence at trial also showed that Tamman created and backdated promissory notes and supplemental disclosure documents and lied to his partners and co-counsel about the creation and alteration of documents that the SEC was seeking.
Thursday, November 15, 2012
The staff report prepared for the House Subcommittee on Oversight & Investigations, Committee on Financial Services, investigating the collapse of MF Global was released today. (Download MFGlobalStaffReport111512) The report finds that Jon Corzine caused MF Global's bankruptcy and put customer funds at risk through his excessively risky business model and lack of systems and controls. The report recommends that Congress consider enacting legislation that imposes civil liability on officers and directors who sign a FCM's financial statements or authorize specific transfers from customers' segregated accounts for regulatory shortfalls.
In addition, the report reopens the perennial debate over whether the SEC and CFTC should be merged. It finds that "The SEC and the CFTC Failed to Share Critical Information about MF Global
with One Another, Leaving Each Regulator with an Incomplete Understanding." It recommends:
The apparent inability of these agencies to coordinate their regulatory oversight efforts or to share vital information with one another, coupled with the reality that futures products, markets and market participants have converged, compel the Subcommittee to recommend that Congress explore whether customers and investors would be better served if the SEC and the CFTC streamline their operations or merge into a single financial regulatory agency that would have oversight of capital markets as a whole.
Monday, November 12, 2012
The SEC lost an important enforcement action against Bruce Bent and his son Bruce Bent II, who were charged with misleading investors in attempts to stop a run on their Reserve Fund in September 2008. The fund "broke the buck." The jury found that two of the Bents' companies violated securities laws, but cleared both Bents of federal securities charges -- the son was found liable on one negligence count. This is yet another example of the regulators' inability to persuade juries to hold individuals responsible for their actions during the financial crisis.