Securities Law Prof Blog

GM Repays $4.7 Billion TARP Debt

The U.S. Department of the Treasury today announced that General Motors (GM) has fully repaid its debt under the Troubled Asset Relief Program (TARP). GM paid the remaining $4.7 billion of the total $6.7 billion in debt owed to Treasury. The repayment comes five years ahead of the loan maturity date and ahead of the accelerated repayment schedule the company announced last year.

Total TARP repayments now stand at $186 billion – well ahead of last fall's repayment projections for 2010. With this repayment, less than $200 billion in TARP disbursements remain outstanding.

Treasury continues to own $2.1 billion in preferred stock and 60.8 percent of the common equity of GM. 

SEC Charges Yet Another Ponzi Scheme

The SEC filed an injunctive action against Nevin K. Shapiro, the president, Chief Executive Officer and sole shareholder of Capitol Investments USA Inc., (Capitol), a Miami Beach, Florida-based grocery diverter, alleging that he conducted a $900 million fraud targeting more than 60 investors nationwide.

The SEC's complaint alleges that from February 2003 through November 2009, Shapiro offered promissory notes claiming annual returns of 10 to 26% purportedly backed by purchase orders and receivables generated by Capitol's food brokerage business. In reality, Capitol was operating at a loss since late 2004 with virtually no operations by 2005. Beginning in January 2005 through November 2009, Shapiro operated a Ponzi scheme using new investor funds to pay principal and interest to earlier investors.

The SEC's Complaint further alleges that Shapiro also misappropriated at least $38 million of investor funds to finance outside business ventures unrelated to the grocery business, including a sport representation business and real estate ventures, and to fund his lavish lifestyle. He also used investor funds to pay large commissions to individuals who attracted additional investors.

The SEC seeks a permanent injunction, sworn accounting, disgorgement of ill-gotten gains with prejudgment interest, and a civil money penalty against the defendant. The SEC coordinated the filing of these charges with the United States Attorney for the District of New Jersey who charged Shapiro today with securities fraud and money laundering. Shapiro surrendered this morning to special agents of the Federal Bureau of Investigation and the Internal Revenue Service criminal investigation unit.

Geithner Testifies at House Financial Services Hearing on Lehman

More from the House Financial Services Hearing today on the Lehman Examiner's Report:

Treasury Secretary Tim Geithner Written Testimony before the House Financial Services Committee

Treasury Secretary Tim Geithner Opening Statement as Prepared for Delivery before the House Committee on Financial Services

Treasury Announces How It Voted Citigroup Shares

The U.S. Department of the Treasury announced that it has voted its approximately 7.7 billion shares of Citigroup Inc. common stock at the Citigroup Annual Meeting held today.  According to its release:

Treasury has exercised its discretionary voting power by voting only on matters that directly pertain to its responsibility under EESA to manage its investments in a manner that protects the taxpayer.   

Treasury voted in favor of all 15 director nominees at the annual meeting.  Since Treasury invested in Citigroup in the fall of 2008 through TARP, there has been a substantial change in the composition of the board.  In the spring of 2009, when Treasury was considering whether to convert its CPP investment into common shares, Citigroup's Chairman assured Treasury that a majority of the board would be comprised of new, independent directors.  Citigroup has now accomplished that task, as eight out of the fifteen directors have joined the board since that time.

Treasury also voted in favor of two Citigroup proposals that fall within its discretionary voting rights.  One is to permit the company to issue common shares to settle $1.7 billion of "common stock equivalent" awards to employees in lieu of cash incentive compensation.  Citigroup committed to the Federal Reserve that it would issue such shares as part of the terms under which it was permitted to repay a portion of its TARP assistance last December.  The second proposal is to permit a reverse stock split which will address the fact that the company has a much larger number of shares outstanding than is necessary to ensure adequate trading liquidity.

Treasury voted its shares proportionately with respect to all other issues on the ballot.  These included two proposals to amend the charter and by-laws on matters of broader corporate governance. These proposals raise important issues of corporate governance that deserve careful consideration as a matter of public policy.   Indeed, the Securities and Exchange Commission has promulgated a rule on proxy access and Treasury has expressed and will continue to express its views on many issues of corporate governance in connection with regulatory reform. However, Treasury believes that it would be inappropriate to use its power as a shareholder to advance a position on matters of public policy and believes such issues should be decided by Congress, the SEC or through other proper governmental forums in a manner that applies generally to companies.  For this reason, and because voting on such matters was not necessary in order to fulfill its EESA responsibilities, Treasury refrained from exercising a discretionary vote. 

Treasury also voted proportionately on the "say on pay" resolution, under which shareholders may cast an advisory vote as to whether they approve of Citigroup's 2009 executive compensation.  The Treasury strongly supports the concept that shareholders should have the ability to vote on executive compensation, and included the "say on pay" requirement in its regulatory reform legislative proposal.  Treasury has the responsibility to oversee compensation for the highest paid employees at companies that received exceptional assistance under TARP, and the Office of the Special Master set the compensation (or the compensation structures) for the highest-paid 100 employees of Citigroup in 2009.   Treasury's proportional vote enabled other Citigroup shareholders to have a more meaningful opportunity to vote on the say on pay resolution.  Executive compensation matters are also outside of the core areas on which Treasury retained discretionary voting rights. 

Schapiro Testifies on Lehman Failure

Testimony Concerning the Lehman Brothers Examiner's Report, by SEC Chairman Mary L. Schapiro Before the House Financial Services Committee, April 20, 2010

SEC and Schottenfeld Group Settles Insider Trading Charges

On April 19, 2010, The Honorable Jed S. Rakoff, United States District Judge, United States District Court for the Southern District of New York, issued an order approving a settlement with Schottenfeld Group, LLC ("Schottenfeld Group") in SEC v. Galleon Management, LP, et al., an insider trading case the Commission filed on October 16, 2009. Schottenfeld Group, a New York limited liability company and registered broker-dealer based in New York, New York, has consented to the entry of a final judgment.

The Commission charged Schottenfeld Group with violations of the antifraud provisions of the federal securities laws, alleging:

Schottenfeld Group proprietary trader Gautham Shankar obtained inside information about a July 2007 earnings announcement at Google, Inc. Shankar traded on such information in Schottenfeld Group accounts.
 
Schottenfeld Group proprietary traders Shankar and Zvi Goffer obtained inside information about The Blackstone Group's 2007 purchase of Hilton Hotels Corp. Goffer and Shankar traded on such information in Schottenfeld Group accounts.
 
Schottenfeld Group proprietary traders Shankar, Goffer and David Plate obtained inside information about a March 2007 announcement regarding Hellman & Friedman's acquisition of Kronos Inc. Shankar, Goffer and Plate traded on such information in Schottenfeld Group accounts.

The final judgment against Schottenfeld Group permanently enjoins it from violating the antifraud provisions of the federal securities laws and orders Schottenfeld Group to disgorge $460,475.28, representing its share of profits gained and/or losses avoided as a result of the conduct alleged, together with prejudgment interest thereon in the amount of $72,202.72. In addition to disgorgement of profits, the judgment orders a civil penalty representing fifty percent of the disgorgement amount, a discount from a one-time penalty, in recognition of Schottenfeld Group's agreement to cooperate in the Commission's investigation.

In addition, Schottenfeld Group has agreed to implement enhanced policies and procedures to prevent securities law violations such as those alleged. It will retain an independent consultant to review its policies and procedures within 1 year, and to report its findings to the Commission staff.

SEC Charges New York Investment Advisory Firm with Internet Scam

The SEC charged Gryphon Holdings Inc., a Staten Island, N.Y.-based investment advisory firm, its owner, and four associates with operating an Internet-based scam that misleads investors into paying fees for phony stock tips and investment advice from fictional trading experts. The SEC obtained an emergency court order to freeze the assets of the firm and individuals involved.

The SEC alleges that Gryphon Holdings Inc., owner Kenneth E. Marsh, and the Gryphon associates induced investors to pay fees of up to $250,000 for securities recommendations that they falsely claim are based on sound research and successful strategies of trading experts with superior knowledge. In an effort to lend legitimacy to the firm's advisory business, Gryphon touts trading experts with fake names who boast millions of dollars in trading riches as well as top-notch educational backgrounds and prominent experience at major Wall Street firms. Gryphon representatives even fabricated glowing testimonials from George Soros and purported clients who profited by trading securities the firm recommended.

According to the SEC's complaint, filed in U.S. District Court for the Eastern District of New York, investors who followed the guidance of Gryphon's purported experts have suffered significant losses by trading on those tips or, in at least one instance, by allowing Gryphon to trade on their behalf.

The Honorable Jack B. Weinstein of the U.S. District Court for the Eastern District of New York granted the SEC's request for a temporary restraining order and asset freeze against the Defendants and six others named as Relief Defendants.:

FINRA Releases Guidance on Reg D Offering Duties

FINRA announced the publication of guidance for FINRA-registered firms about their obligations regarding customer suitability, disclosures and other requirements for selling private placements to customers.  FINRA Regulatory Notice 10-22 reinforces and details a broker-dealer's obligation to conduct a reasonable investigation of an issuer and its securities that it recommends in offerings made pursuant to Regulation D under the Securities Act of 1933, also known as "private placements." The Notice also highlights private placement red flags and supervisory requirements, and suggests practices to help ensure that firms adequately investigate the private placements that they recommend.

 According to a recent estimate by the Securities and Exchange Commission (SEC), in 2008, companies intended to issue approximately $609 billion of securities in Regulation D offerings.  Private placements under Regulation D are usually sold to "accredited" investors and a limited number of non-accredited investors. While accredited investors must meet certain income or asset tests, the Notice emphasizes that a broker-dealer's suitability obligations require it to conduct a reasonable investigation whenever it makes a recommendation in a private placement under Regulation D.

Recent problems uncovered by FINRA in Regulation D offerings have resulted in firms being sanctioned for providing private placement memoranda and sales materials to investors that contained inaccurate statements or omitted information necessary to make informed investment decisions.

 FINRA has brought three enforcement actions in recent months involving private placement offering violations. They include a complaint charging McGinn, Smith & Co. of Albany and its president with securities fraud in the sales of tens of millions of dollars in unregistered securities; the expulsion of Dallas-based Provident Asset Management for marketing a series of fraudulent private placement offered by an affiliate in a massive Ponzi scheme; and, fines totaling $750,000 against Pacific Cornerstone Capital, Inc. of Irvine, CA, and its former CEO for failing to include complete information in private placement offering documents and marketing material, as well as for advertising violations and supervisory failures.

Fuld Says Examiner and Press Distorted Facts about Repo 105

Richard Fuld, former Lehman CEO, will testify tomorrow before the House Financial Services Committee.  Here is an excerpt from his written testimony about the much-criticized Repo 105:

The Examiner did take issue, though, with Lehman’s “Repo 105” sale transactions.

As to that, I believe that the Examiner’s report distorted the relevant facts, and the press, in turn, distorted the Examiner’s report. The result is that Lehman and its people have been unfairly vilified.

* * *

The Examiner himself acknowledged that the Repo 105 transactions were not inherently improper and that Lehman vetted those transactions with its outside auditor. He also does not dispute that Lehman appropriately accounted for those transactions as required by Generally Accepted Accounting Principles.

Bankruptcy Examiner Anton Valukas' written statement has unflattering words about the SEC:

We believe it clear, then, that the SEC was in fact Lehman’s primary regulator.  The SEC told us that were constantly monitoring Lehman’s risk and liquidity.  But there was little if any actual regulation; we observed no instance in which the SEC did anything, in Chairman Cox’s words, to “act quickly in response to
financial or operational weaknesses” at Lehman.

The SEC made a few recommendations or directions here and there, but in general it simply collected data; it did not direct action, it did not regulate.

It is one thing for Lehman to have exercised the business judgment, although in retrospect clearly bad judgment, to forge ahead and take on excessive risk. But it was quite another for the supposed regulator – a regulator who had been told by Lehman that its risk controls were binding and not meant to be exceeded under any circumstances – to stand by idly and simply acquiesce to management’s decision. The SEC’s mission – clearly stated on its own website – is “to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.” The SEC’s role was not to simply absorb and acquiesce to Lehman’s decisions; the SEC’s role was to supervise and regulate to protect investors and
the markets.

Written statements  from other scheduled witnesses are available at the Financial Services Committee website.

SEC Split on Whether to Sue Goldman

More on the Goldman fraud charges, from the Wall St. Journal:

The SEC split 3-2 on whether to bring the fraud charges, with Chair Schapiro joining Democrats Walter and Aguilar and Republican Commissioners Casey and Paredes voting against.  WSJ, SEC Split on Party Lines over Goldman Case

WSJ also has posted on its website Goldman's submissions last Sept. in response to the SEC's Wells Notice.  Essentially, it argued: no material misrepresentations; no evidence of negligence, much less scienter; and broker-dealers owe their clients a duty not to disclose their positions and strategy.

FINRA Proposes Expanded Disclosure in BrokerCheck

FINRA has filed with the SEC a proposed rule change to amend FINRA Rule 8312 (FINRA BrokerCheck Disclosure) that will significantly expand the information released through BrokerCheck, both in terms of scope and time disclosed.  In addition, the new rule would establish a process to dispute the accuracy of (or update) information disclosed through BrokerCheck.

SEC and Stockman Settle Collins & Aikman Fraud Charges

The SEC reached settlements in SEC v. Collins & Aikman Corp., et al., No. 07-CV-2419 (SAS) (S.D.N.Y.) with defendants David A. Stockman ("Stockman"), J. Michael Stepp ("Stepp"), Elkin B. McCallum ("McCallum"), David R. Cosgrove ("Cosgrove"), and Paul C. Barnaba ("Barnaba"), all former executives or board members of Collins & Aikman Corporation ("C&A"), an auto parts supplier that went bankrupt in 2005. The proposed settlements are subject to Court approval.

The SEC's complaint alleges that Stockman participated in fraudulent rebate transactions, joined by Stepp, McCallum, Cosgrove, and Barnaba, to inflate C&A's reported income between 2001 and 2004. The complaint alleges that Stockman and other defendants obtained false documents from suppliers designed to mislead C&A's external auditors and caused C&A to file financial statements with the SEC that materially misrepresented C&A's financial results. According to the complaint, during the time Stockman was engaged in this conduct, he was collecting millions of dollars in management fees C&A paid Stockman's private equity fund, Heartland Industrial Partners.

Pursuant to the settlement, Stockman has agreed to pay $7.2 million, comprised of $400,000 in civil penalties, disgorgement of $4,424,000, and prejudgment interest of $2,376,000, with the disgorgement and prejudgment interest obligations subject to an offset of up to $4.4 million for payments Stockman makes to settle two securities class action lawsuits against him seeking recovery of the same money as the Commission. Stepp and McCallum have each agreed to pay a civil penalty of $75,000, Cosgrove has agreed to pay a civil penalty of $40,000, and Barnaba has agreed to pay a civil penalty of $20,000.

NASAA Seeks Reforms in Reg D Rule 506 Offerings

NASAA Statement on Reforms Needed to Protect Investors in Regulation D Rule 506 Offerings:

State securities regulators urge the Senate to protect investors by amending the Banking Committee's recently approved reform package to stop securities law violators from conducting private securities offerings under the SEC's Regulation D Rule 506 provisions.

The bill's current language offers an unworkable regulatory review process ...,

Rather, we believe the legislation should instead reinstitute the authority of states to use their so-called ‘bad boy’ provisions to disqualify recidivist securities violators who are now legally allowed to conduct private securities offerings under Regulation D Rule 506.

House Financial Services Committee Announces Hearing on Lehman Bankruptcy Report

Sometimes I wonder how Geithner, Bernanke and Schapiro can ever get any work accomplished, since they spend so much of their time testifying before Congressional committees and panels.  Tomorrow the House Financial Services Committee will hold a hearing on “Public Policy Issues Raised by the Report of the Lehman Bankruptcy Examiner.” Additional witnesses are the banruptcy examiner himself, Anton R. Valukas, and two former Lehman people, Richard S. Fuld, Jr., former Chairman and Chief Executive Officer, and Thomas Cruikshank, former member of the Board of Directors and chair of Lehman Brothers’ Audit Committee.

Here is Bernanke's written testimony, Lessons from the failure of Lehman Brothers Before the Committee on Financial Services, U.S. House of Representatives, Washington, D.C. April 20, 2010

Goldman Defense: We Lost $90 Million on the Deal

From the Goldman Sachs press release about the SEC allegations:

We are disappointed that the SEC would bring this action related to a single transaction in the face of an extensive record which establishes that the accusations are unfounded in law and fact.

We want to emphasize the following four critical points which were missing from the SEC’s complaint.

• Goldman Sachs Lost Money On The Transaction.  Goldman Sachs, itself, lost more than $90 million.  Our fee was $15 million.  We were subject to losses and we did not structure a portfolio that was designed to lose money.

• Extensive Disclosure Was Provided.  IKB, a large German Bank and sophisticated CDO market participant and ACA Capital Management, the two investors, were provided extensive information about the underlying mortgage securities.  The risk associated with the securities was known to these investors, who were among the most sophisticated mortgage investors in the world. These investors also understood that a synthetic CDO transaction necessarily included both a long and short side.

• ACA, the Largest Investor, Selected The Portfolio.  The portfolio of mortgage backed securities in this investment was selected by an independent and experienced portfolio selection agent after a series of discussions, including with Paulson & Co., which were entirely typical of these types of transactions.  ACA had the largest exposure to the transaction, investing $951 million.  It had an obligation and every incentive to select appropriate securities. 

• Goldman Sachs Never Represented to ACA That Paulson Was Going To Be A Long Investor.  The SEC’s complaint accuses the firm of fraud because it didn’t disclose to one party of the transaction who was on the other side of that transaction.  As normal business practice, market makers do not disclose the identities of a buyer to a seller and vice versa. Goldman Sachs never represented to ACA that Paulson was going to be a long investor.

SEC's Inspector General: Fort Worth Enforcement Knew of Stanford's Ponzi Scheme Since 1997

I mentioned yesterday that the SEC Chair issued a response to the SEC Inspector General's critical report on the handling of the Stanford matter.  Here is the report itself.  The OIG was charged with looking into what, if any, indications the agency had prior to 2006 that Stanford was operating a Ponzi scheme and what, if any, were its responses.  Here's a brief summary of the sad saga:

Examination teams at the SEC's Fort Worth office suspected illegal activity at Stanford as early as 1997, two years after the Stanford Group Company registered with the SEC.  Over the next eight years the examiners conducted four examinations of Stanford's operations, finding in each examination that it was "highly unlikely" that the returns Stanford claimed could have resulted from the purported investment strategy and concluding that Stanford was likely running a Ponzi scheme.  While the examination group endeavored to persuade the Fort Worth enforcement office to conduct an investigation, no meaningful effort was made by Enforcement until late 2005.  However, even then, Enforcement missed an opportunity to bring an enforcement action against SGC, in part because the new head of Fort Worth enforcement was not apprised of the findings in earlier examinations.  The report states:

The OIG did not find that the reluctance on the part of the SEC’s Fort Worth
Enforcement group to investigate Stanford was related to any improper professional,
social or financial relationship on the part of any former or current SEC employee. We
found evidence, however, that SEC-wide institutional influence within Enforcement did
factor into its repeated decisions not to undertake a full and thorough investigation of
Stanford, notwithstanding staff awareness that the potential fraud was growing. We
found that senior Fort Worth officials perceived that they were being judged on the
numbers of cases they brought, so-called “stats,” and communicated to the Enforcement
staff that novel or complex cases were disfavored. As a result, cases like Stanford, which
were not considered “quick-hit” or “slam-dunk” cases, were not encouraged.

The OIG goes on to make serious allegations against the former head of Enforcement in Fort Worth:

The OIG investigation also found that the former head of Enforcement in Fort
Worth, who played a significant role in multiple decisions over the years to quash
investigations of Stanford, sought to represent Stanford on three separate occasions after
he left the Commission, and in fact represented Stanford briefly in 2006 before he was
informed by the SEC Ethics Office that it was improper to do so.

The report states the former head of enforcement in Fort Worth apparently violated state bar rules:

The OIG investigation found that the former head of Enforcement in Fort Worth’s
representation of Stanford appeared to violate state bar rules that prohibit a former
government employee from working on matters in which that individual participated as a
government employee. Accordingly, we are referring this Report of Investigation to the
Commission’s Ethics Counsel for referral to the Office of Bar Counsel for the District of
Columbia and the Chief Disciplinary Counsel for the State Bar of Texas, the states in
which he is admitted to practice law.

Schapiro Releases Response to Agency's Performance in Stanford Fraud

The SEC's Office of Inspector General has apparently released a report critical of the agency's performance in failing to detect the Stanford fraud earlier.  I can't find the report on the OIG website, but Chair Schapiro has released a response to it -- essentially, "long ago and far away":

This report recounts events that occurred at the Commission between 1997 and 2005. Since that time, much has changed and continues to change regarding the agency's leadership, its internal procedures and its culture of collaboration. The report makes seven recommendations, most of which have been implemented since 2005. We will carefully analyze the report and implement any additional reforms as necessary for effective investor protection.

It also released a Fact Sheet.

SEC Charges Goldman with Fraud in Structuring and Marketing CDO Tied to Subprime Mortgages

The big news this afternoon is the SEC complaint filed in S.D.N.Y. raising serious allegations about Goldman Sachs in structuring and marketing a synthetic CDO that hinged on the performance of subprime residential mortgage-backed securities.  According to the complaint, Goldman failed to disclose the role that a major hedge fund, Paulson & Co., played in the portfolio selection process and the fact that the hedge fund had taken a short position against the CDO.  The SEC alleges that Paulson & Co. paid Goldman $15 million to structure and market a transaction in which the fund could take short positions against mortgage securities chosen by Paulson & Co.  The SEC alleges that Goldman VP Fabrice Tourre was principally responsible for the CDO known as ABACUS 2007-AC1.  Investors are alleged to have lost more than $1 billion.  The SEC is seeking injunctive relief, penalties and disgorgement of profits.

Schapiro Makes the Case for SEC Self-Funding

Here is Mary Schapiro's recent statement making the case for self-funding.

I was recently asked what I thought about self-funding for the SEC, and I confess that I am undecided on the issue.   Certainly in the past the agency has gone through periods of substantial under-funding, and even when Congress ups its funding, as it did post-Enron, the budget will be cut when money gets tight and the Congressional focus shifts.  However, I am somewhat concerned about decreasing the level of Congressional oversight and accountabililty that control over the purse strings provides.  I'd be interested in hearing other views on this.

Business Groups Oppose Corporate Governance Measures

A number of influential business groups, including the U.S. Chamber of Commerce, have signed on to a Multi-industry letter regarding the so-called "corporate governance" provisions of the "Restoring American Financial Stability Act."  According to the signatories, a right to proxy access, a say-on-pay advisory vote, and other corporate goverance measures would:  federalize corporate law, threaten shareholder wealth creation, unleash an onslaught of shareholder activists, and saddle the SEC with additional responsibilities.