This Week In Securities Litigation (December 12, 2014)

The Second Circuit took center stage this week, handing down a decision which reversed the insider trading convictions of two remote tippees. The decision circumscribes tippee liability by defining the elements of a claim and resurrecting the personal benefit test crafted by the Supreme Court in Dirks as a protection for analysts.

SEC enforcement brought another insider trading case as an administrative proceeding, number seven since September. In addition, the agency brought actions which include violations of the auditor independence rules, a claim of failure to properly supervise market access by a Wall Street bank, accounting violations by a regional bank and violations of the broker registration provisions.

Finally, the OECD published a report which provides an analysis of over 400 FCPA cases, giving insight into trends in this area.

SEC

Remarks: Chair Mary Jo White delivered remarks at the NYT DealBook Opportunities for Tomorrow Conference titled Enhancing Risk Monitoring and Regulatory Safeguards for the Asset Management Industry, New York, New York (Dec. 11, 2014). Her comments focused on improving the information used to assess risk; ensuring that registered funds enhance their controls; and steps to ensure firms have a plan to transition client assets if necessary (here).

Remarks: Norm Champ, Director, Division of Investment Management, addressed the ICI 2014 Securities Law Developments Conference, Washington, D.C. (Dec. 10, 2014). The Director commented on the Division’s efforts to better monitor risk, the increasing use of technology and specialized expertise by the Division, efforts to provide transparency into their work, innovative new products and promoting a culture of compliance (here).

CFTC

Testimony: Chairman Timothy Massad testified before the Senate Committee on Agriculture, Nutrition and Forestry. His remarks review the work of the agency over the last six months on implementing Dodd-Frank, cross boarder issues, enforcement and the budget (here).

SEC Enforcement – Filed and Settled Actions

Statistics: This week the SEC filed 0 civil injunctive actions and 16 administrative proceedings, excluding 12j and tag-along-actions.

Conflicts/misappropriation: SEC v. Crafton, Civil Action No. 3:14-cv-02916 (S.D. Cal. Filed Dec. 10, 2014) is an action against Bill Crafton, the owner of Martin Kelly Capital Management. Through that entity Mr. Crafton delivered investment and wealth administration services to current and former major league athletes. In doing so he failed to disclose that he received over $1.5 million in undisclosed compensation and brokerage commissions from the principals of certain funds and businesses in exchange for the recommendations. In addition, he arranged through forged wire transfer authorizations for two clients to purchase a third client’s $700,000 position in a fund. Mr. Crafton knew at the time he arranged the transaction that the fund was subject to an SEC freeze order based on a fraud claim. The complaint alleges violations of Securities Act Section 17(a), Exchange Act Sections 10(b) and 15(a) and Advisers Act Sections 206(1), 206(2) and 206(3). Mr. Crafton resolved this issues, agreeing to the entry of a permanent injunction based on the Sections cited in the complaint and to the entry of an order requiring that he pay $1,505,952 in disgorgement plus prejudgment interest which it is anticipated he will pay in a related criminal case. He also agreed to the entry of an order barring him from the securities business and from participating in any penny stock offering. See Lit. Rel. No. 23155 (Dec. 11, 2014).

Misrepresentations: In the Matter of Reliance Financial Advisors, LLC, Adm. Proc. File No. 3-16311 (Dec. 10, 2014); In the Matter of Scott M. Stephan, Adm. Proc. File No. 3-16312 (Dec. 10, 1014). Reliance names as Respondents the registered adviser and its two co-founders, Timothy Dembski and Walter Grenda, Jr. Scott Stephan, the Respondent in the second proceeding was hired by his long time friend Timothy Dembski to work at Reliance in 2007. In 2010 Messrs. Dembski and Grenda helped Scott Stephan start a hedge fund. The idea was to trade using an algorthim that would frequently be changed. Despite having little experience and the high risk nature of the venture, the co-founders of Reliance recommend that their clients invest in the new fund. Both men knew, or were reckless in not knowing, that the PPM they furnished clients greatly exaggerated Mr. Stephan’s experience. Some clients were lead to believe that institutional investors would invest in the new fund. Clients of Mr. Dembski invested about $4 million while those of Mr. Grenda put in about $8 million. The fund was not successful. A number of clients withdrew. Before it closed Mr. Grenda borrowed $175,000 from two clients based on a misrepresentation that the money would help grow the business. The Order in Reliance alleges violations of Securities Act Section 17(a), Exchange Act Section 10(b) and Advisers Act Sections 206(1) and (2) and 206(4). The Reliance proceeding will be set for hearing. Mr. Stephan partially settled the proceeding in which he is named as a Respondent, consenting to the entry of a cease and desist order based on violations of Securities Act Section 17(a), Exchange Act Section 10(b) and Advisers Act Section 206(4). He also agreed to be barred from the securities business and from participating in any penny stock offering. A hearing will be set latter to consider monetary sanctions.

Market access: In the Matter of Morgan Stanley & Co., LLC, Adm. Proc. File No. 3-16310 (Dec. 10, 2010) is a proceeding against the broker dealer for violations of the market access rule. Specifically, on October 25, 2012 the firm increased the monetary limit for market access for Rochdale Securities from $200 million to $500 million and then to $750 million for a trader who planned to purchase $1 billion of Apple stock. The plan, which was a fraud, was to order 1,625 shares and, if the price increased, take the profits and if it decreased claim the order was an error. When the price went down Rochdale was left with a huge loss which pushed the firm below its net capital. Morgan Stanley increased the market access limits without making any investigation or inquiry. The Order alleges violations of Exchange Act Section 15(c)(3). Morgan Stanley consented to the entry of a cease and desist order based on the Section cited in the Order and to a censure. The firm will also pay a penalty of $4 million.

Insider trading: SEC v. Holley, Civil Action No. 3:11-cv-00205 (D.N.J.) is a previously filed action against George Holley, the former Chairman of Home Diagnostics, Inc. The complaint alleged that in 2010 Mr. Holley tipped six of his friends, relatives and employees about the impending acquisition of the company. Previously he pleaded guilty in a parallel criminal case and was sentenced to serve three years of probation and fined $250,000. This week the Court entered a final judgment which permanently enjoins Mr. Holley from future violations of Exchange Act Sections 10(b) and 14(e) and bars him from serving as an officer or director. The order also directs him to pay $66,100 in disgorgement, prejudgment interest and a civil penalty of $312,440. See Lit. Rel. No. 23153 (Dec. 9, 2014).

Independence: In the Matter of BKD, LLC, Adm. Proc. File No. 3-16299 (Dec. 8, 2014) is one of eight proceedings which charge auditors of broker-dealers with independence violations. BKD is an accounting and auditing firm registered with the PCAOB. During the fiscal years 2010 through 2012 BKD served as the independent public accountant for 21 broker-dealer audit clients. For at least “one audit performed for nine of its broker-dealer audit clients . . . BKD prepared the financial statements and/or notes to the financial statements that were filed with the Commission . . .” according to the Order. The example in the Order involved Broker-Dealer A. There, for fiscal 2011, the audit firm created the financial statements of the client. Those statements were filed with the Commission with an opinion from the firm stating the audit was in accord with GAAS. In fact it was not because the independence rules preclude an auditor from preparing the financial statements that are the subject of the audit. The audit firm also caused its client to violate Exchange Act Section 17(a) because it knew, or should have known, that its conduct contributed violations of Exchange Act Section 17(a) and Rule 17a-5. In resolving the action BKD, entered into a series of undertakings. The firm also consented to the entry of a cease and desist order based on Exchange Act Section 17(a) and Rule 17a-5 and a censure. BKD will pay a penalty of $15,000.

Registration violations: In the Matter of BTC Trading, Corp., Adm. Proc. File No. 3-16307 (Dec. 8, 2014) is a proceeding which names as Respondents BTC Trading and Ethan Burnside, a computer programmer. BTC Trading operated LTC Global Virtual Stock Exchange and BTC Virtual Stock Exchange. The two exchanges operated as unregistered, online, virtual currency-denominates securities exchanges and broker dealers from August 2012 through October 2013. Each had a website and solicited persons to open accounts. Account holders could buy and sell securities of businesses listed on the website using virtual currencies Bitcoin and Litecoin. The websites also offered shares in unregistered transactions in exchange for bitcoins and litecoins in LTC-Global and LTC Mining, another virtual currency enterprise founder by Mr. Burnside. During the period about 2,655 users opened accounts and about 60,496 trades were made through LTC. About 7,050 users opened accounts at BTC and approximately 3,66,490 trades were made. The Order alleges violations of Securities Act Sections 5(a) and 5(c) and Exchange Act Sections 5 and 15(a). The Respondents settled the action. Mr. Burnside consented to the entry of a cease and desist order based on Securities Act Sections 5(a) and 5(c) and to the entry of an order barring him from the securities business with the right to reapply after 2 years. He will also pay disgorgement of $55,000, prejudgment interest and a penalty of $10,000. BTC Trading consented to the entry of a cease and desist order based on Exchange Act Sections 5 and 15(a). In resolving the action the Commission considered the cooperation and remedial efforts of the Respondents.

Improper accounting: In the Matter of Hampton Roads Bankshares, Inc., Adm. Proc. File No. 3-16296 (Dec. 5, 2014); In the Matter of Neal A. Petrovich, CPA, Adm. Proc. File No. 3-16297 (Dec. 5, 20154). Hampton Roads is a bank holding company for Bank of Hampton Roads and Shore Bank, its primary subsidiaries. Mr. Petrovich was the Executive Vice President and CFO of Hampton Roads until his resignation, effective June 4, 2010. Prior to 2008 Hampton Roads did not record significant deferred tax assets. In 2008 as its loan portfolio deteriorated and loan losses increased, the firm recorded a deferred tax assets of $32.6 million. As the firm’s losses increased, the deferred tax asset grew. By the first quarter of 2010 it was $70.32 million. The vast majority of the assets recorded in 2009 and the first quarter of 2010 related to the firms loan losses. The only valuation allowance record by the company during the period was for $1 million related to capital losses realized. While the firm performed an analysis that projected a return to profitability shortly so the deferred tax assets could be used and a valuation reserve would not be needed, operating results and other data suggested otherwise. On August 13, 2010 Hampton Roads issued an amended Form 10K/A for 2009 and an amended Form 10Q/A for the first quarter of 2010, restating the financial statements for those periods. The restated financial statements reflected a valuation allowance against the entire deferred tax asset. The valuation allowance question also impacted the firm’s capitalization level. Prior to the restatement the financial institution reported that it was “adequately capitalized” as of December 31, 2009 and “undercapitalized” as of March 31, 2010. Following the restatement Hampton Roads reported that it was “undercapitalized” as of December 31, 2009 and “significantly undercapitalized” as of March 31, 2009. These changes are material to investors. The Order alleges that the projections relied on by Hampton Roads were not reasonable in view of the totality of the evidence. Each proceeding alleges violations of Exchange Act Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B). To resolve the proceeding the bank consented to the entry of a cease and desist order based on the Sections cited in the Order. It also agreed to pay a penalty of $200,000. Mr. Petrovich resolved the proceeding which names him as a Respondent. He undertook to pay a penalty of $25,000 and consented to the entry of a cease and desist order based on the same Sections as Hampton Roads.

Municipal bonds: SEC v. City of Harvey, Civil Action No. 1:14-cv-4744 (N.D. Ill.) is a previously filed action against the City and its comptroller, Joseph Letke. The action alleged that the city had engaged in a scheme over several years to improperly divert the proceeds from prior bond offerings. The action was filed during another offering. The City settled the action, consenting to the entry of a permanent injunction prohibiting future violations of Securities Act Section 17(a) and Exchange Act Section 10(b). An independent consultant and an independent audit firm will be retained to enhance transparency into the financial condition of the City for future bond investors. The action continues as to Mr. Letke. See Lit. Rel. No. 23149 (Dec. 5, 2014).

Insider trading: In the Matter of Robert A. Hemm, Adm. Proc. File No. 3-16298 (Dec. 5, 2014). This case centered on a tender offer for SFN Group, Inc. by Randstad Holding nv, announced on July 20, 2011. SFN was a strategic workforce solutions provider which offered temporary and permanent staffing solutions. Randstad is a Dutch multinational human resource consulting firm. On July 12, 2011 a relative of Mr. Hemm’s began working on the tender offer for one of the involved parties. Prior to the announcement of the tender offer Mr. Hemm spoke with the relative several times. Some of those telephone calls took place on July 20, 2011. During the afternoon of July 20, 2011 Mr. Hem purchased 5,000 shares of SFN stock at an average price of $9.23 per share in his and his wife’s brokerage accounts. After the market closed on July 20, 2014 the tender offer was announced. The next trading day SFN’s stock price close up 51%. On August 8, 2011 Mr. Hemm sold his shares for $21,763. The Order alleges violations of Exchange Act Sections 10(b) and 14(e). Mr. Hemm settled the action, consenting to the entry of a cease and desist order based on the Sections cited in the Order. He also agreed to disgorge his trading profits, pay prejudgment interest and a penalty equal to the amount of the trading profits.

Unregistered broker: In the Matter of David Mura, Adm. Proc. File No. 3-15045 (Dec. 5, 2014). The Order alleges that Mr. Mura acted as an unregistered broker-dealer in connection with the solicitation of investors in certain promissory notes issued by a number of limited liability companies. At the time he was a registered representative at a broker-dealer. He also directed Edward Tackaberry, an employee of the limited liability entities and who worked under his supervision, during the solicitations. Through the efforts of Mr. Tackaberry and an individual identified as Investor I, several individuals eventually invested in the promissory notes. Specifically, 17 investors invested about $850,000 in the notes between July 2007 and September 2009. Mr. Mura played an active role in a number of the solicitations. The Order alleges violations of Exchange Act Section 15(a). The proceeding will be set for hearing.

Criminal cases

Investment fund fraud: U.S. v. Tomazin (S.D.N.Y.) is an action alleging one count of securities fraud and one count of commodities fraud against Ryan Tomazin. The action centers around trading in R2 Capita which began in 2008. Subsequently, the fund created a commodity pool with $2.2 million. In 2010 it initiated trading on behalf of that pool and quickly lost most of its assets. Mr. Tomazin then solicited an investor who put in $1 million on the representation that the fees would be limited to half of the trading profits. Again the fund experienced significant losses. Trading stopped by June 2011. Nevertheless, Mr. Tomazin sent false statements to the investor showing trading profits. Mr. Thomazin and others associated with the fund caused $850,000 to be withdrawn from bank accounts associated with the pool for their benefit. The CFTC filed a separate action in U.S. District Court in Colorado against Mr. Tomazin.

Investment fund fraud: U.S. v. OHara, No. 1:10-cr-00228 (S.D.N.Y.) is an action in which Daniel Bonventre, the former Director of Operations for Bernard L. Madoff Investment Securities LLC, was sentenced to 10 years in prison stemming from his role in the Madoff Ponzi scheme. Mr. Boneventre worked for the firm for 40 years, serving as its Director of Operations since 1978. As part of his role of maintaining and supervising the production of the principal internal accounting documents for the firm, he directed that falsified entries be made in the books which concealed in part the scope of the fraud. Since the general ledger was false filings made with the SEC were also false.

FCPA

Report: The OECD issued a report on international bribery. The report analyzed the results in over 400 cases worldwide. Those cases involved companies and individuals from 41 signatory countries. Bribes were promised, offered or given most frequently to employees of state-owned enterprises, followed by customs officers, health officials and defense officials. In 57% of the cases bribes were paid to obtain public procurement contracts. Another 12% of the cases involved payments for clearance of customs procedures while 6% related to taxes. About 41% of the cases involved management level employees while only 12% of the actions involved CEOs. Intermediaries were involved in three out of four bribery cases. Overall the length of time to resolve cases is increasing. In 1999 the average case took two years to resolve. Currently the typical case takes just over seven years.

Court of appeals

Insider trading: U.S. v. Newman, Nos. 13-1837-cr, 13-1917 (2^nd Cir. Decided December 10, 2014). Defendants Todd Newman and Anthony Chaisson were portfolio managers at, respectively, Diamondback Capital Management, LLC and Level Global Investors, L.P. Both were convicted of insider trading in the shares of Dell and NVIDIA following a six week trial. Both were remote tippees. With regard to the trading in Dell, the inside information went down a chain: Company employee Rob Ray transmitted the earnings information to analyst Sandy Goyal, who in turn tipped Diamondback analyst Jesse Tortora who then told Mr. Newman and Global Level analyst Sam Adondukis who told Mr. Chaissom. Each portfolio manager traded.

The inside information regarding NVIDIA traveled a similar, lengthy path to the two portfolio managers. It began with company insider Hyung Lim who passed the information to Danny Kuno who furnished it to Messrs. Tortora and Adondukis who transmitted it to, respectively, Mr. Newman and Mr. Chaisson. Each portfolio manager traded in NVIDA shares.

The Second Circuit reversed, concluding that the jury instructions were inadequate and that the evidence on tippee liability was insufficient. The Court began its analysis by reviewing the basic tenants of the classical and misappropriation theories of insider trading. The elements of tipping liability are the same regardless of the theory utilized, the Court noted. Under Dirks the test for determining if there has been a breach of fiduciary duty is “’whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty . . .’” the Court stated, quoting Dirks v. S.E.C., 463 U.S. 646 (1983). The tippee’s liability stems directly from that of the insider. Since the disclosure of inside information alone is not a breach, “without establishing that the tippee knows of the personal benefit received by the insider in exchange for the disclosure, the Government cannot meet its burden of showing that the tippee knew of a breach.”

Based on these principles, the elements of tippee liability are: “(1) the corporate insider was entrusted with a fiduciary duty; (2) the corporate insider breached his duty by (a) disclosing confidential information to a tippee (b) in exchange for a personal benefit; (3) the tippee knew of the tipper’s breach, that is, he knew the information was confidential and divulged for personal benefit; and (4) the tippee still used that information to trade. ..” Since the jury instructions did not incorporate these elements they were incorrect.

Finally, in reviewing the sufficiency of the evidence, the Court gave definition to the personal benefit test. That test is broadly defined to include pecuniary gain and also reputational benefit that will translate into future earnings and the benefit one, would obtain from making a gift of confidential information to a relative or friend. While the test is broad it does not include, as the Government argued, “the mere fact of a friendship, particularly of a casual or social nature.” A personal benefit can be inferred from a personal relationship but “such an inference is impermissible in the absence of proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature. In other words . . . this requires evidence of a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the latter.” (internal quotes omitted). Here the evidence is not sufficient to meet this test.

FINRA

Conflicts: The regulator fined 10 firms a total of $43.5 million for allowing equity research analysts to solicit investment banking business for a proposed IPO for Toys “R” Us. Specifically, Toys “R” Us was contemplating and IPO. In connection with that proposal it invited 10 firms and their analysts to make presentations to determine if the coverage would be in sync with the plan. Each firm either implicitly or explicitly offered favorable research coverage in return for a role in the IPO. Ultimately the firm did not conduct the offering. Those fined were: Barclays Capital Inc., $5 million; Citigroup Global Markets Inc., $5 million; Goldman Sachs & Co. $5 million; JP Morgan Securities LLC, $5 million; Deutsche Bank Securities Inc., $4 million; Merrill Lynch Pierce, Fenner & Smith Inc. , $4 million; Morgan Stanley & Co. LLC, $4 million; Wells Fargo Securities, LLC, $4 million; Needham & Company LLC, $2.5 million.

Australia

Compliance: The Australian Securities and Investment Commission accepted an undertaking to not participate in the securities business for one year from former Professional Investment Services Pty Ltd. representative Seamus O’Brien. The ASIC found that he did not have a reasonable basis for investment advice, did not provide reasonable replacement product advise to clients and failed to keep certain records and comply with the Statement of Advice requirements. If he elects to reenter the business it must be under strict supervision.

Hong Kong

Undisclosed account: The Securities and Futures Commission banned Lee Wai Keung, a representative at Glory Sky Global Markets Ltd., for 12 months from the securities business. From October 2007 through June 2013 he traded through a secret account in the name of his sister-in-law. The SFC considers the conduct plainly dishonest.

IPO subscriptions: The SFC suspended the license of Dick Ma Tore Fok, the former responsible officer of ICBC International Securities Limited for eight months for failures related to the IPO for Powerlong Real Estate Holdings Limited in 2009. ICBC served as one of the joint lead managers for the listing. While the firm referred several people for subscriptions, the appropriate due diligence on potential subscribers was not conducted. Mr. Ma also failed to perform ongoing scrutiny to ensure that the subscriptions were consistent with his knowledge of the purchaser’s financial condition.

UK

Investment fraud: Gary West, James Whale and John Stone, formerly senior executives of Sustainable AgroEnergy plc or its parent, Sustainable Growth Group were convicted of using false representations in connection with the selling and promotion of SAE investment products based on “green biofuel” largely to self-invested pensions. Mr. West was sentenced to serve 13 years in prison, Mr. Whale 9 years and Mr. Stone 6 years. Messrs. West and Whale were also disqualified from being a director for 15 years while Mr. Stone was disqualified for 10 years.