Securities Law Prof Blog

Treasury Plans to Sell Off GM Stock Within 12-15 Months

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.

UBS Pays $1.5 Billion to Settle LIBOR Charges

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.

 

 

 

 

GAO Reports on Dodd-Frank Rule Making

The GAO released another report on Dodd-Frank rule making and cost benefit analysis, Agencies' Efforts to Analyze and Coordinate Their Rules (GAO-13-101, Dec 18, 2012).  Here is a summary:

Federal agencies conducted the regulatory analyses required by various federal statutes for all 54 regulations issued pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) that GAO reviewed. As part of their analyses, the agencies generally considered, but typically did not quantify or monetize, the benefits and costs of these rules. Most of the federal financial regulators, as independent regulatory agencies, are not subject to executive orders that require comprehensive benefit-cost analysis in accordance with guidance issued by the Office of Management and Budget (OMB). Although most financial regulators are not required to follow OMB's guidance, they told GAO that they attempt to follow it in principle or spirit. GAO's review of selected rules found that regulators did not consistently follow key elements of the OMB guidance in their regulatory analyses. For example, while some regulators identified the benefits and costs of their chosen regulatory approach in proposed rules, they did not evaluate their chosen approach compared to the benefits and costs of alternative approaches. GAO previously recommended that regulators more fully incorporate the OMB guidance into their rulemaking policies, and the Office of Comptroller of the Currency and the Securities and Exchange Commission have done so. By not more closely following OMB's guidance, other financial regulators continue to miss an opportunity to improve their analyses.

Federal financial agencies continue to coordinate on rulemakings informally in order to reduce duplication and overlap in regulations and for other purposes, but interagency coordination does not necessarily eliminate the potential for differences in related rules. Agencies coordinated on 19 of the 54 substantive regulations that GAO reviewed. For most of the 19 regulations, the Dodd-Frank Act required the agencies to coordinate, but agencies also voluntarily coordinated with other U.S. and international regulators on some of their rulemakings. According to the regulators, most interagency coordination is informal and conducted at the staff level. GAO's review of selected rules shows that differences between related rules may remain even when coordination occurs. According to regulators, such differences may result from differences in their jurisdictions or the markets. Finally, the Financial Stability Oversight Council (FSOC) has not yet implemented GAO's previous recommendation to work with regulators to establish formal interagency coordination policies.

Most Dodd-Frank Act regulations have not been finalized or in place for sufficient time for their full impacts to materialize. Recognizing these and other limitations, GAO took a multipronged approach to assess the impact of some of the act's provisions and rules, with an initial focus on the act's systemic risk goals. First, GAO developed indicators to monitor changes in certain characteristics of U.S. bank holding companies subject to enhanced prudential regulation under the Dodd-Frank Act (U.S. bank SIFIs). Although the indicators do not identify causal links between their changes and the act--and many other factors can affect SIFIs--some indicators suggest that since 2010 U.S. bank SIFIs, on average, have decreased their leverage and enhanced their liquidity. Second, empirical results of GAO's regression analysis suggest that, to date, the act may have had little effect on U.S. bank SIFIs' funding costs but may have helped improve their safety and soundness. GAO plans to update its analyses in future reports, including adding indicators for other Dodd-Frank Act provisions and regulations.

Treasury Sells Off Last of AIG Common Stock

U.S. Treasury is no longer a shareholder in AIG common stock, down from 1.655 billion shares (92 percent of outstanding common stock) in January 2011. The Treasury announced the last sale of its shares.  According to the press release, Treasury and the Federal Reserve have fully recovered the combined $182.3 billion they committed to stabilize AIG during the financial crisis – with an additional $22.7 billion positive return.

SEC Revokes Registration of Brokerage Firm for Allowing Manipulative Trading

The SEC charged Biremis, a Toronto-based brokerage firm, and its top two executives for failing to supervise overseas day traders who used the firm’s order management system to engage repeatedly in a manipulative trading practice known as layering. In layering, a trader places orders with no intention of having them executed but rather to trick others into buying or selling a stock at an artificial price driven by the orders, which the trader later cancels.

The SEC’s investigation found that Biremis – whose worldwide day trading business enabled up to 5,000 traders on as many 200 trading floors in 30 countries to gain access to U.S. markets – failed to address repeated instances of layering by many of the overseas day traders using its system. The firm’s co-founders Peter Beck and Charles Kim ignored repeated red flags indicating that overseas traders were engaging in layering manipulations. Biremis served as the broker-dealer for an affiliated Canadian day trading firm, Swift Trade Inc.

Biremis and the two executives agreed to a settlement in which the firm’s registration as a U.S. broker-dealer is revoked and permanent industry bars are imposed on Beck and Kim, who also will pay a combined half-million dollars to settle the SEC’s charges.

According to the SEC’s order instituting settled administrative proceedings, Biremis, Beck, and Kim exercised substantial control over the overseas day traders. They backed the traders’ trading with capital from Biremis, determined the amount of Biremis capital available to each individual trader to purchase stocks, and set and enforced daily loss limits on each trader. They also wielded authority to reprimand, restrict, suspend, or terminate traders.

The SEC’s order found that many of the Biremis-affiliated overseas day traders engaged in repeated instances of layering from January 2007 to mid-2010. Beck and Kim learned from numerous sources – including three U.S. broker-dealers and a Biremis employee – that layering was occurring, yet they failed to take any steps to prevent it.

 

TheStreet.com Settles SEC Charges of Accounting Fraud

The Securities and Exchange Commission today charged TheStreet Inc., which operates the website TheStreet.com, and three executives for their roles in an accounting fraud that artificially inflated company revenues and misstated operating income to investors.

The SEC alleges that TheStreet Inc. filed false financial reports throughout 2008 by reporting revenue from fraudulent transactions at a subsidiary it had acquired the previous year.  The co-presidents of the subsidiary – Gregg Alwine and David Barnett – entered into sham transactions with friendly counterparties that had little or no economic substance.  They also fabricated and backdated contracts and other documents to facilitate the fraudulent accounting.  Barnett is additionally charged with misleading TheStreet’s auditor to believe that the subsidiary had performed services to earn revenue on a specific transaction when in fact it did not perform the services.  The SEC also alleges that TheStreet’s former chief financial officer Eric Ashman caused the company to report revenue before it had been earned.  

The three executives agreed to pay financial penalties and accept officer-and-director bars to settle the SEC’s charges.

 

Morgan Stanley & Massachusetts Settle Charges Related to Facebook IPO

The Massachusetts Securities Division fined Morgan Stanley $5 Million for investment banking’s allegedly improper influence over analysts in the Facebook IPO.  According to the consent order that Morgan Stanley entered into, the practices violated the undertakings made in the 2003 Analysts Settlement. (Download Dkt-2012-0042-Consent-Order)

SEC Settles FCPA Charges Against Germany-Based Allianz SE

The SEC charged Germany-based insurance and asset management company Allianz SE with violating the books and records and internal controls provisions of the Foreign Corrupt Practices Act (FCPA) for improper payments to government officials in Indonesia during a seven-year period. The SEC’s investigation uncovered 295 insurance contracts on large government projects that were obtained or retained by improper payments of $650,626 by Allianz’s subsidiary in Indonesia to employees of state-owned entities. Allianz made more than $5.3 million in profits as a result of the improper payments.

According to the SEC’s order instituting settled administrative proceedings against Allianz, the misconduct occurred from 2001 to 2008 while the company’s shares and bonds were registered with the SEC and traded on the New York Stock Exchange.

The SEC’s order found that Allianz violated the books and records and internal controls provisions of the FCPA, specifically Sections 13(b)(2)(A) and 13(b)(2)(B) of the Securities Exchange Act of 1934. Without admitting or denying the findings, Allianz agreed to cease and desist from further violations and pay disgorgement of $5,315,649, prejudgment interest of $1,765,125, and a penalty of $5,315,649 for a total of $12,396,423.

Massachusetts Charges LPL Financial with Improper Sales of Non-Traded REITs

The Massachusetts Securities Division sued LPL Financial on Dec. 12, 2012, charging it with improper sales of non-traded REITs.  According to its complaint, the state received complaints from Massachusetts investors who invested in non-traded REITs, and upon investigation, found numerous violations of Massachusetts securities law, including (1) slales made in violation of specific state requirements, (2) sales made in violation of prospectus requirements, and (3) sales made in violation of LPL compliance practices.   The state alleges that representatives sold over 4 million dollars of non-traded REITs in violation of the law and prospectus requirements.

SEC Charges Hedge Fund Manager in Cherry-Picking Scheme

The SEC charged  Peter J. Eichler, Jr., and his firm Aletheia Research and Management, Inc. with conducting a "cherry-picking" scheme by steering winning trades to their own trading accounts and favored clients to the detriment of certain hedge fund investors. They are also charged with failing to disclose the firm's precarious financial condition to clients in a timely manner.  According to the SEC,  Eichler and his firm disproportionately allocated losing trades to the accounts of two hedge funds managed by the firm, resulting in monetary losses for those funds' investors. Meanwhile, they allocated winning trades to accounts owned by Eichler and Aletheia employees as well as accounts belonging to select clients.

According to the Commission's complaint filed in federal court in Los Angeles, Aletheia had more than $1.4 billion in assets under management and managed two hedge funds. By engaging in a cherry-picking scheme, Aletheia and Eichler violated the fiduciary duties they owed to their advisory clients. Aletheia failed to implement policies, procedures, or a code of ethics that could have prevented a cherry-picking scheme from occurring.

The Commission further alleges that Aletheia also breached its fiduciary duties and federal law when it did not disclose its financial troubles to clients until immediately before a bankruptcy filing. Aletheia was in a precarious financial condition in July 2012 after the state of California had filed a tax lien for more than $2 million against the firm for unpaid taxes and penalties. On Oct. 1, 2012, California suspended Aletheia's corporate status for non-payment. The firm filed for Chapter 11 bankruptcy on November 11.

The Commission's complaint seeks permanent injunctions, disgorgement of the defendants' ill-gotten gains plus pre-judgment interest, and penalties.

Oregon Adopts Fraud on the Market Presumption in State Securities Claims

Oregon has become one of the few (if not the only to date)states that have adopted the "fraud on the market" presumption of reliance under state securities law.  In Oregon v. Marsh & McLennan Companies, Inc. (Dec. 13, 2012), the Oregon Supreme Court held that the state's retirement plan that purchased defendant's shares in the open market could bring a state securities claim alleging materially misleading statements and establish reliance through the presumption.  ( Download Marsh&McLennan.121312)

Lowell Milken Institute for Business Law & Policy Accepting Applications for Fellowship

UCLA School of Law's Lowell Milken Institute for Business Law and Policy is now accepting applications for the Lowell Milken Institute Law Teaching Fellowship.  This fellowship is a full-time, year-round, one or two academic-year position (approximately July 2013 through June 2014 or June 2015). The position involves law teaching, legal and policy research and writing, preparing to go on the law teaching market, and assisting with organizing projects such as conferences and workshops, and teaching. No degree will be offered as part of the Fellowship program.

Additional information is available at the Institute's website.

Woody on Conflict Minerals Legislation

Conflict Minerals Legislation: The SEC's New Role as Diplomatic and Humanitarian Watchdog, by Karen E. Woody, Independent, was recently posted on SSRN.  Here is the abstract:

Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the article suggests that the presence of conflict minerals in a company’s product is not inherently material information, and that the Dodd-Frank provision statutorily renders non-material information material. The provision, thus, forces the SEC to expand beyond its congressional mandate of protecting investors and ensuring capital formation by requiring issuers engage in additional non-financial disclosures in order to meet the provision’s humanitarian and diplomatic aims. Further, the article posits that the conflict minerals provision is a wholly ineffective means to accomplish its stated humanitarian goals, and likely will cause more harm than good in the Democratic Republic of Congo. In conclusion, this article proposes that a more efficient regulatory model for conflict minerals is the Clean Diamond Trade Act and the Kimberley Process Certification Scheme.

Pollman on Marketplaces for Trading Private Company Stock

Information Issues on Wall Street 2.0, by Elizabeth Pollman, Loyola Law School Los Angeles, was recently posted on SSRN.  Here is the abstract:

Billions of dollars have flooded new online marketplaces for trading private company stock. These marketplaces stand poised to become important, lasting features of the private company world as they provide a central meeting place for buyers and sellers and potentially increase the liquidity of private company stock. Increased liquidity is particularly important to investors in start-up companies, as these companies have faced longer periods of time before going public or being acquired. The new marketplaces also raise significant information issues, however, that threaten their legitimacy and efficiency. This Article is the first to examine these information issues — lack of information, asymmetric information, conflicts of interest, and insider trading — as well as possible solutions that would allow the markets to continue to evolve while promoting their integrity and investor protection goals. Specifically, the Article proposes establishing a minimum information requirement for secondary trading in private company stock and reexamining the thresholds for accredited investor status in order to ensure that market participants can fend for themselves without additional protections. The Article also examines potential responses to insider trading in these markets, arguing that a case exists for the SEC to take action in the private market context, since harm may be cognizable and the arguments for regulating insider trading are as strong in the private market arena as in the public.

SEC Releases Annual Report on NRSROs

SEC Staff Released its Annual Report on Nationally Recognized Statistical Rating Organizations As Required by Section 6 of the Credit Rating Agency Reform Act of 2006.( Download Nrsroannrep1212)

The Act requires the Commission to submit an annual report to the Committee on Banking, Housing, and Urban Affairs of the U.S. Senate and the Committee on Financial Services of the U.S. House of Representatives that, with respect to the year to which the report relates:

• Identifies applicants for registration as nationally recognized statistical rating
organizations (“NRSROs”) under Section 15E of the Securities Exchange Act of 1934
(“Exchange Act”);
• Specifies the number of and actions taken on such applications; and
• Specifies the views of the Commission on the state of competition, transparency, and
conflicts of interest among NRSROs.

This report relates to the period from June 26, 2011 to June 25, 2012 (the “reporting
period”) and provides an overview of Commission rulemaking and other actions relating to NRSROs and addresses the items specified in Section 6 of the Rating Agency Act for the reporting period.

BBB & FINRA Foundation Launch Website on Smart Investing

Can a website make us better investors?  The Better Business Bureau and the FINRA Investor Education Foundation hope so.  They have launched a new consumer website, BBB Smart Investing, which is "designed to help investors make smarter investing decisions while avoiding fraud, risky investments and unlicensed brokers."

 According to the Federal Trade Commission and the Canadian Anti-Fraud Centre, consumers reported losing more than $1.5 billion to all types of scams in 2011. FINRA Foundation research has found that investors are overconfident in their knowledge of financial management, particularly baby boomers, who are most often the target of investment scams. A telephone survey found that 92 percent felt "somewhat" or "very" confident about managing their finances, with almost 80 percent describing themselves as "somewhat" or "very" knowledgeable about investing. But only 44 percent got a passing grade on a basic financial literacy knowledge test.

 

 

 

 

 

 

FINRA Issues Guidance on Suitability Rule's Definition of "Customer" and "Investment Strategy"

FINRA issued further Guidance on FINRA's Suitability Rule (Regulatory Notice 12-55).  Its revised Rule 2111became effective in July 2012, and FINRA previously issued Regulatory Notice 12-25 to address frequently asked questions.  This most recent Notice addresses two issues:  the scope of the terms "customer" and "investment strategy."  FINRA has also created a suitability web page to consolidate information about the Rule.

SEC Approves FINRA Rule Change on Use of Subpoenas and Orders of Appearance in Arbitration

The SEC has approved a non-controversial FINRA rule change relating to the use of subpoenas and orders of appearance in arbitration proceedings.  Specifically, the rule change amends the Customer and Industry Codes of Arbitration Procedure (1) to provide that when FINRA member firms and/or
employees or associated persons of FINRA members who are parties to an arbitration (collectively, “Member Parties”) seek the appearance of witnesses by, or the production of documents from, FINRA members (and individuals associated with the member) who are not parties to the arbitration (collectively, “Non-Party Members”), FINRA arbitrators shall (unless circumstances dictate otherwise) issue orders for the appearance of witnesses or the production of documents, instead of issuing subpoenas; (2) to add procedures for any non-party (Non-Party Member or otherwise) receiving a subpoena to object to the subpoena; (3) to provide that if an arbitrator issues a subpoena to a Non-Party Member at the request of a Member Party, the Member Party making the request is (unless the panel directs otherwise) responsible for paying the reasonable costs of the appearance of witnesses by or the production of documents from the Non-Party Member; (4) to add procedures for any party to an arbitration to file a motion requesting arbitrators issue an order for the appearance of any employee or associated person of a FINRA member (collectively, “Associated Persons”) or the production of documents from such Associated Persons or members; (5) to add procedures for any party to an arbitration receiving a motion for an order and draft order to object to the order; (6) to add procedures for how the party to the arbitration that requested the order must serve the order (if issued); (7) to add procedures for any Non-Party Member receiving an order to object to the order; and (8) to add procedures for how parties to an arbitration must share documents received in response to an order issued to a Non-Party Member. ( Download 34-68404)

Hedge Fund Manager Agrees to Pay $44 Million for Illegal Trading in Chinese Stocks

The SEC charged  Sung Kook “Bill” Hwang, the founder and portfolio manager of Tiger Asia Management and Tiger Asia Partners, with conducting a pair of trading schemes involving Chinese bank stocks and making $16.7 million in illicit profits. He and his firms have agreed to pay $44 million to settle the SEC’s charges.  In a parallel action, the U.S. Attorney’s Office for the District of New Jersey today announced criminal charges against Tiger Asia Management.

According to the SEC, Hwang and the funds committed insider trading by short selling three Chinese bank stocks based on confidential information received in private placement offerings. Hwang and his advisory firms then covered the short positions with private placement shares purchased at a significant discount to the stocks’ market price. They separately attempted to manipulate the prices of publicly traded Chinese bank stocks in which Hwang’s hedge funds had substantial short positions by placing losing trades in an attempt to lower the price of the stocks and increase the value of the short positions. This enabled Hwang and Tiger Asia Management to illicitly collect higher management fees from investors.

The SEC also charged Raymond Y.H. Park for his roles in both schemes as the head trader of the two hedge funds involved.  Park also agreed to settle the SEC’s charges. 

The SEC further alleges that on at least four occasions from November 2008 to February 2009, Hwang and his firms, with Park’s assistance, attempted to manipulate the month-end closing prices of Chinese bank stocks publicly listed on the Hong Kong Stock Exchange.

The settlements, which are subject to court approval, require Hwang, Tiger Asia Management, and Tiger Asia Partners to collectively pay $19,048,787 in disgorgement and prejudgment interest — including $16,257,918 that Tiger Asia Management will pay directly to criminal authorities. Each of them has agreed to pay a penalty of $8,294,348 for a grand total of $44 million. Park agreed to pay $39,819 in disgorgement and prejudgment interest, and a penalty of $34,897. With the exception of Tiger Asia Management, the defendants neither admit nor deny the charges.

Treasury Agrees to Sell Remaining AIG Shares

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.