This Week In Securities Litigation (Week ending October 23, 2015)

The Manhattan U.S. Attorney announced the filing of motions to dismiss the insider trading conviction of Michael Steinberg, formerly a portfolio manager at SAC Capitol, and six others in the wake of the Second Circuit’s decision in Newman.

SEC released its enforcement statistics for the last fiscal year. The release highlights cases in a number of categories. It also breaks out the number of cases filed for the last three years by category – independent action, tag along and delinquent filings. The number of independent actions filed for the last fiscal year increased to 507 compared to 413 for the prior year and 341 for 2013.

This week the agency filed: two actions centered on offering frauds; one in which significant portions of an investor’s funds were misappropriated; another centered on a failure to disclose a shift in investment policy that eventually resulted in the demise of the fund; and one based on a cherry picking scheme.

SEC

Statistics: The SEC released its Enforcement statistics. The release highlights cases brought in a number of areas (here). It then breaks out its enforcement statistics in three categories: independent enforcement actions, follow-on actions and delinquent filings for 2013 -2015 by year. The number of independent actions is: 341 for 2013, 413 for 2014 and 507 for 216. That compares to totals of 676 for 2013, 755 for 2014 and 807 for 2015. Previously, the Commission did not break-out the number of cases into these categories, providing only the totals.

Remarks: Chair Mary Jo White delivered remarks titled “Taking Stock of Treasury Market Regulation” to the Evolving Structure of the U.S. Treasury Market Conference, New York City (October 20, 2015). Her remarks referenced the need for operational integrity, concerns about the vulnerability of electronic markets and the regulation of market intermediaries (here).

Remarks: Chair Mary Jo White delivered remarks titled “Five Years On: Regulation of Private Fund Advisers After Dodd-Frank” to the MFA Outlook 2015 Conference, New York City (October 16, 2015). Her remarks focused on the new insights obtained from the registration and reporting requirements and identified marketing, conflicts and fees as potential risk areas (here).

CFTC

Remarks: Chairman Timothy Massard delivered remarks to the Risk USA Conference (October 22, 2015). His remarks discussed clearing houses, recognition of U.S. clearing houses by European regulators, oversight of major market players and automated trading (here).

Remarks: Chairman Timothy Massard delivered remarks to the Conference on the Evolving Structure of the U.S. Treasury Market (October 21, 2015). His remarks included comments on “flash events” and the risks of electronic trading (here).

Remarks: Chairman Timothy Massad addressed the World Federation of Exchanges Annual Meeting, Doha, Qatar (October 19, 2015). His remarks included comments on the innovation in the futures markets and reforms in the swaps markets (here).

SEC Enforcement – Filed and Settled Actions

Statistics: During this period the SEC filed 2 civil injunctive cases and 3 administrative actions, excluding 12j and tag-along proceedings.

Offering fraud: In the Matter of Retirement Investment Advisors, Inc., Adm. Proc. File No. 3-16915 (October 21, 2015) is a proceeding which names as Respondents: the registered investment adviser; Research Holdings, LLC, a firm which manages five pooled investment funds; and Joseph Bowie, a co-founder and co-manager of Research Holdings and an affiliate of a registered broker-dealer affiliated with the majority owner of the investment adviser. Beginning in 2006, and continuing through 2009, Research Holdings and Mr. Bowie sold interests in five private funds co-managed by Mr. Bowie to advisory clients. The PPMs represented that the financial statements of the Funds would be prepared in accord with GAAP and, in two instances that they would be audited annually. These requirements were not met. The firm also valued investments at acquisition cost even though many had little or no value, contrary to the adviser’s valuation methodology in its policies and procedures. That resulted in an overcharge of the fees. The Order alleges violations of Advisers Act Sections 206(2), 206(4) and 204. Respondents resolved the proceeding. Retirement Investment entered into a series of undertakings including the retention of an independent consultant. Retirement Investment, Research Holdings and Mr. Bowie each consented to the entry of a cease and desist order based on, respectively: Advisers Act Section 206(4) and Sections 204; Advisers Act Sections 206(2) and 206(4); and Advisers Act Sections 204, 206(2), and 206(4). Both firms were censured. Retirement Investments will pay disgorgement of $144,243.09, prejudgment interest and a penalty of $37,500. Research Holdings will also pay a penalty of $37,500 while Mr. Bowie will pay $25,000. The disgorgement will be paid into a Disgorgement Fund.

Misappropriation: SEC v. Williams, Civil Action No. 15-cv-819 (W.D. MO. Filed October 20, 2015) is an action which names as a defendant John Williams. Over a period of five years, beginning in 2009, Mr. Williams induced Investor A to invest in a series of four projects. Collectively, the Investor paid Mr. Williams $8.1 million. In reality Mr. Williams diverted about $3.1 million of the investor’s funds to his personal use. The complaint alleges violations of Securities Act Section 17(a) and Exchange Act Section 10(b). The case is pending. See Lit. Rel. No. 23390 (October 22, 2015).

Misappropriation: SEC v. Donnelly, Civil Action No. 15 6873 (E.D. Pa. Filed October 19, 2015). Michael Donnelly has been a registered investment adviser and registered representative since the mid-1990s. Over the years he formed Donnelly Advisors Group, Inc., a second firm called Donnelly Steen & Co. which did business as Coastal Investment Advisors, Inc. and later acquired broker Coastal Equities, Inc. Mr. Donnelly began misappropriating client funds in 2007. To effectuate his scheme Mr. Donnelly typically told clients that he planned to invest their funds in various financial instruments. He then had the client write a check to Donnelly Advisors Group to fund the transaction. Most had been clients for years and trusted him. Clients were familiar with the Donnelly Advisors Group and thus did not question the point. At the same time using that name shielded the transactions from Donnelly & Steen and Coastal IA. The funds were then misappropriated. Subsequently, Mr. Donnelly would tell the clients that the investments had been made and were doing fine. Frequently documents were fabricated to support the lies told to the client. From 2007 through 2014 Mr. Donnelly defrauded at least thirteen clients for a total of $1,990,150.54. The scheme unraveled when he used the account of a firm employee as part of an effort to cover his malfeasance. The firm then terminated him. The Commission’s complaint alleges violations of Securities Act Section 17(a) and Exchange Act Section 10(b). Mr. Donnelly settled the charges by admitting the conduct and consenting to the entry of a permanent injunction prohibiting future violations of the Sections cited in the complaint. In addition, he was ordered to pay disgorgement of $1.9 million and prejudgment interest. Those obligations will be deemed satisfied by the entry of an order of restitution in the parallel criminal case. He also consented to the entry of an order permanently barring him from the securities business.

Disclosure: In the Matter of UBS Willow Management L.L.C., Adm. Proc. File No. 3-16909 (October 16, 2015). UBS Willow Management, which ceased operations in 2014, was a registered investment adviser. The firm was a joint venture between registered investment adviser UBS Fund Advisor, L.L.C., and Bond Street Capital L.L.C., a third part portfolio manager. Fund Adviser, a subsidiary of UBS AG, is also a Respondent. Willow Management advised UBS Willow Fund L.L.C., a closed-end Fund. UBS Fund Adviser was the controlling member of Willow Management. Willow Management began offering the Fund in May 2000 and continued through mid-2012. The Offering Memorandum stated that the Fund primarily invested in distressed debt. The document also specified that the Fund invested in other types of securities, including derivatives for hedging and speculation. In 2008 it shifted the composition of the portfolio to about 25% CDS which substantially changed the risk. It also contributed to significant losses starting in early 2009 and eventually led to the liquidation of the Fund in 2012. None of the disclosure documents reflected the change. Fund Advisor was aware of the change. Nevertheless, it never directed Willow Management to reduce the Fund’s CDS exposure. Fund Advisor thus failed to reasonably supervise Willow Management. The Order alleges violations of Securities Act Sections 17(a)(2), 17(a)(3), Advisers Act Sections 206(1), 206(2) and 206(4) and Investment Company Act Section 34(b). To resolve the proceedings Respondents will compensate Fund investors. In addition, Willow Management consented to the entry of a cease and desist order based on the Sections cited in the Order. Both Respondents were censured. Respondents, jointly and severally, will pay disgorgement of $8,223,110 and pay prejudgment interest.

Offering fraud: In the Matter of Edward M. Daspin, Adm. Proc. File No. 3-16509 is a previously filed action in which Respondent Lawrence Lux settled with the SEC. The other Respondents in the proceeding, initially filed on April 23, 2015, are Edward Daspin, founder and control person of three related Companies, and Luigi Agostini, a director and COB of the Companies. Related entities include three Companies and two entities that are consultants to the three Companies. Beginning in December 2010, and continuing for another 18 months, two of the Companies raised about $2.47 million from seven investors, at least $2 million of which was raised fraudulently. Mr. Daspin, the organizer of the scheme, targeted unemployed professional and solicited them for what was called a job interview. At the interview the executives were solicited to invest in the Companies with a series of false statements. The Companies never generated any revenue and quickly burned through the investor funds. Respondent Lux served as a director and CEO of the Companies. He was aware, according to the Order, that they were controlled by Mr. Daspin. He also knew that Mr. Daspin had a criminal conviction and a string of failed ventures. A key part of Mr. Lux’s job was to solicit investors. He thus acted, along with Mr. Daspin, as an unregistered broker. The Order alleged violations of Exchange Act Sections 10(b) and 15(a) and Securities Act Sections 5(a), 5(c) and 17(a)(2) and (3). The action was initially to be set for hearing. Mr. Lux settled with the Division, consenting to the entry of a cease and desist order based on Securities Act Sections 5(a), 5(c) and 17(a)(3) and Exchange Act Section 15(a). He also agreed to be barred from the securities business and from engaging in any penny stock offering. In addition, Mr. Lux will pay disgorgement of $36,853.21 and prejudgment interest. Payment is waived based on financial condition. In addition to cooperating, Mr. Lux agreed to accept service of a subpoena from the staff and appear for testimony.

Offering fraud: SEC v. Lester, Civil Action No. 1:15-cv-02301 (D. Colo. Filed October 167, 2015). Defendant Donald Lester controlled the group of companies at the center of the claimed fraud. Defendant Rubicon Alliance, LLC, formed for the central purpose of managing alternative investments, is controlled by Mr. Lester. It also owns Defendants CFI Fund LLC and NuPower, LLC. CFI, a pooled investment vehicle, claims to be engaged in the business of investing in securities. It does not have any employees or a board of directors. NuPower claims to be to be in the business of investing in securities. It does not have any employees or a board of directors. Equity Edge, named as a relief defendant, is also controlled by Rubicon. It is a group of affiliated companies. Rubicon began in 2006 as a private equity firm. Beginning in January 2010 it conducted offerings for CFI and NuPower, raising about $10.5 million. By about 2010 Equity Edge was unable to generate sufficient revenue to pay its operational expenses and the interest owed to its investors. Thus, in late 2010 Rubicon transferred NuPower to Equity Edge. No consideration was paid. CFI purchased a 50% interest in NuPower from Equity Edge. The purchase price was $2.8 million. Both the purchase and conflict of interest imbedded in the transaction were concealed from CFI investors. The purchase was also contrary to the offering memorandum. The CFI and NuPower offerings were not registered. Nor were they covered by any exemption. Both firms acted as unregistered investment companies. Mr. Lester and Rubicon acted as unregistered brokers. The complaint alleges violations of each subsection of Securities Act Sections 5(a), 5(c) and 17(a), Exchange Act Sections 10(b), 15(a) and 20(a), Advisers Act Sections 206(1), 206(2) and 206(4) and Investment Company Act Section 7(a). The case is in litigation. See Lit. Rel. No. 23388 (October 16, 2015).

Cherry picking: In the Matter of Welhouse & Associates, Inc., Adm. Proc. File No. 3-1657 (October 16, 2015) is a proceeding which names as Respondents the state registered investment adviser and its owner, principal and CCO, Mark Welhouse. Beginning in February 2010, and continuing for the next three years, Respondents engaged in a cherry picking scheme regarding trades in an S&P 500 ETF called SPY. Respondents disproportionately allocated profitable options trades to his personal and business account and others to client accounts. He did this by purchasing options in an omnibus account and delaying allocation of the purchases until later in the day. The Order alleges violations of Exchange Act Section 10(b) and Advisers Act Sections 206(1) and 206(2). To resolve the proceeding each Respondent consented to the entry of a cease and desist order based on the Sections cited in the Order. The firm was censured while Mr. Welhouse was barred from the securities business. Respondents will also pay disgorgement of $418,141, prejudgment interest and, on a joint and several basis, a penalty of $300,000.

FINRA

Discounts: The regulator fined twelve firms a total of $2.6 million and directed them to collectively pay $4 million for failing to apply available sales charge discounts to customer purchases of Unit Investment Trusts. A list of the firms in here.

Australia

Misuse of position: The Australian Investment Commission announced that Oliver Wood, formerly a company director, was convicted on three counts of misusing his position dishonestly for personal advantage. He also pleaded guilty to four counts of making false statements in a document filed with the ASIC. Mr. Wood was sentenced to serve 10 months in prison which was suspended on a $5,000 bond to be of good behavior for 10 months. He was also fined $40,000.

New articles

Venue selection: David Zaring, Enforcement Discretion at the SEC, forthcoming in Texas L. Rev. [available SSRN]. The article argues that suits challenging the SEC’s forum selection decisions are without merit.