This Week In Securities Litigation (Week ending April 9, 2016)
The Foreign Corrupt Practices Act was a key focus this week. The DOJ announced a new one year Pilot Program which holds the promise of a significant reduction in penalties if the firm self-reports and takes a series of steps. Those steps are designed to ensure, at least in part, that the DOJ obtains factual information to prosecute the individuals involved – the program is designed to boost compliance by prosecuting individuals.
The SEC announced the settlement of another FCPA Action. This case centered on a lack of internal controls at a gaming company with operations in Las Vegas and abroad. The Commission also brought actions centered on an offering fraud, a failure to supervise a false audit opinion and stock manipulation.
Remarks: Chair Mary Jo White delivered the Keynote address titled “Protecting Investors in an Innovative Financial Marketplace” at the SEC-Rock Center for Corporate Governance (March 31, 2016). Her remarks included comments on disclosures for pre-IPO financing, crowdfunding portals as gatekeepers, blockchain technology and robo-advisors (here).
Securities Class Actions
Cornerstone Research released a report on Securities Class Action Settlements, “Securities Class Action Settlements, 2015 Review and Analysis” (here). The Report notes that last year 80 cases settled, the highest number since 2010 when there were 85 settlements. Similarly, the total settlement dollars increased in 2015 to $3,034 million, compared to $1,069 the prior year. The number of mega settlements — those equal to or over $100 million — returned to historic levels with eight such settlements. Yet at the same time the percentage of nuisance settlements – those at or below $2 million — reached its highest single year level since 1997 at 26%. Finally, the number of class actions paralleled by an SEC enforcement action increased last year.
SEC Enforcement – Filed and Settled Actions
Statistics: During this period the SEC filed 2 civil injunctive actions and 5 administrative proceedings, excluding 12j and tag-along proceedings.
Manipulation: SEC v. Aubel, Civil Action No. 16-cv-10670 (D. Mass. Filed April 7, 2016) is an action which names as defendants David Aubel and Robert Raffa who are alleged to have manipulated the shares of Green Energy Renewable Solutions, Inc. Specifically, defendants are alleged to have concealed their ownership of a significant percentage of the firm, retained promoters in 2012 and 2013 to promote the stock and paid a kickback to a broker to buy shares. Ultimately the two men had profits of $1.6 million from the manipulative trading. The complaint alleges violations of Securities Act Sections 5(a), 5(a), 17(a)(1) and 17(a)(3) and Exchange Act Sections 10(b), 13(d) and 16(a). The case is pending. A parallel criminal case was also filed by the U.S. Attorney’s Office for the District of Massachusetts. See Lit. Rel. No. 23511 (April 7, 216).
False audit opinions: In the Matter of Thakkar CPA, PLLC, Adm. Proc. File No. 3-17201 (April 6, 2016) is a proceeding which names as Respondents the firm, Gregory Williford, a CPA, Mahesh Thakkar, a CPA and principal of the firm and his son, Poorvesh Thakkar, the vice president of operations for the firm. In 2013 Mr. Thakkar and his son formed Thakkar CPA and acquired David S. Hall, PC. Scott Williford was retained. During 2014 Williford authorized Thakkar CPA to issue 15 audit reports as the Hall Group CPAs. The firm also conducted 30 reviews of interim financial information. The individual Respondents knew the firm was not licensed in Texas where it operated or registered with the PCAOB. As the engagement partner, Mr. Willifored failed to comply with PCAOB standards when he authorized the firm to issue reports and, in addition, improperly issued a report where the firm lacked independence. The Order alleges violations of Exchange Act Section 13(a), Exchange Act rules 13a-1, 13da-13, rule 2-02(b)(1) of Regulation S-X and Section 102(a) of SOX. To resolve the action each Respondent consented to the entry of a cease and desist order based on the Sections and rules cited. Under rule 102(e) Thakkar CPA was denied the privilege of appearing or practicing before the Commission as was Messrs. Thakkar and Williford. Each may apply for reinstatement after five years. In addition, the firm will pay disgorgement of $285,355, prejudgment interest and a penalty of $64,000. Mr. Thakkar will pay a penalty of $32,000, Poorvesh Thakkar will pay $16,000 and Mr. Willifor will pay $32,000.
Kickbacks: In the Matter of Steve Pappas, Adm. Proc. File No. 3-17194 (April 5, 2016). Mr. Pappas is the Chairman and CEO of Xemex Group, Inc., a penny stock firm. The action centers on a scheme in which insiders such as Mr. Pappas paid secret kickback to a purported corrupt hedge fund manager who was an under cover FBI agent in exchange for the Fund Manager’s purchase of restricted shares of the firm. The Order alleges violations of Exchange Act Section 10(b). Respondent resolved the action by consenting to the entry of a cease and desist order based on the Section cited in the Order and to the entry of a penny stock bar. In addition, he will pay a penalty of $50,000.
Failure to supervise: In the Matter of Cambridge Investment Research Advisors, Inc., Adm. Proc. File No. 3-17195 (April 5, 2016) is a proceeding which names as a Respondent the registered investment adviser. The action centers on the misappropriation over a two year period beginning in 2011 of $300,000 by Richard Sandru, the principal of a CIRA Office of Supervisory Jurisdiction and an investment adviser representative with the firm. While Mr. Sandru was supposed to be on heightened supervision in fact the firm lacked the appropriate procedures. The Order alleges violations of Advisers Act Section 206(4). To resolve the proceeding the firm consented to the entry of a cease and desist order based on the Section cited in the Order and to a censure. It also agreed to implement a series of undertakings which include the retention of a compliance consultant. The firm will pay a $225,000 penalty. See also In the Matter of Alexander H. Bastron, Adm. Proc. File No. 3-17196 (April 5, 2106)(proceeding against Regional Director of Cambridge based on the same facts; resolved with an order suspending Respondent from the securities business for twelve months and the payment of a penalty in the amount of $20,000) .
Offering fraud: SEC v. Paul, Civil Action No. 2:16-cv-01320 (E.D. Pa Filed April 1, 2016). Named as defendants are: Joseph Paul, a former registered representative; John Ellis, also a former registered representative; James Quay, an attorney convicted of tax fraud, disbarred and later enjoined in a Commission fraud action and ordered to pay over $2 million; and Donald Ellison, also a former registered representative. Messrs. Paul and Ellis are the co-founders of Paul-Ellis Investment Associates LLC, registered as an investment adviser with the Commission in 2009 despite its apparent ineligibility. In 2011 the Commission cancelled the registration. Aptus Planning LLC was operated by Messrs. Quay and Ellison as an estate planning service. Over a two year period beginning in 2010 Messrs. Clark and Ellis marketed themselves as experienced money managers with a highly successful track record in ETFs through their advisory firm, PEIA. Using a variety of offering materials, the two men claimed to have investment strategies that generated returns from over 8% to as high as 56%. Those strategies, investors were told, were implemented through PEIA which supposedly had over $150 million in AUM. In early 2011 Messrs. Clark and Ellison marketed their expertise and that of their firm to Summit Trust Company, a Las Vegas based, state chartered trust company. The trust company invested over $2.6 million but later the same year withdrew its investment at a 28% loss, exclude about $9,000 in fees. Later the firm and its principles were named in a Commission fraud action. Messrs. Paul and Ellis also began marketing PEIA to Messrs. Quay and Ellison and Aptus in 2011. PEIA marketing materials were furnished to Aptus and its principals regarding a claimed investment program. Without doing any due diligence on the fraudulent materials, Messrs. Quay and Ellison recommended the program to their clients using mass mailings and dinner seminars. Mr. Quay used an assumed identity to conceal his background. Fourteen investors put almost $1.3 million in the program. Portions of the funds were misappropriated by Messrs. Paul and Ellis. Other portions were lost as a result of unauthorized trading. The complaint alleges violations of Securities Act Section 17(a), Exchange Act Section 10(b), and Advisers Act Sections 206(1), 206(2), 206(4) and 207. The case is pending. See Lit. Rel. No. 23510 (April 4, 2016).
In the Matter of Las Vegas Sands Corp., Adm. Proc. File No. 3-17204 (April 7, 2016) is an action which names as a Respondent a firm that owns and operates integrated resorts and casinos in the United States and Asia, operated through a network of subsidiaries. The action centers on violations of Exchange Act Sections 13(b)(2)(A) and 13(b)(2)(B). Specifically, the Order alleges that the firm failed to devise and maintain controls over its operations in China and Macao from 2006 through 2011. As a result over $62 million was transferred to a consultant in China over a series of transactions which frequently lacked supporting documentation and/or proper authorization. The lack of controls also impacted other transactions such as gifts and entertainment for foreign officials, employee and vendor expenses and reimbursements and customer comps. To resolve the action the firm agreed to implement a series of undertakings, including the retention of an independent consultant. It also consented to the entry of a cease and desist order based on the Sections cited in the Order and will pay a penalty of $9 million.
Pilot Program: The DOJ initiated a Pilot Program designed to enhance FCPA enforcement and compliance. The program, keyed to self-reporting and furnishing all of the facts regarding the wrongful conduct, offers discounts off the bottom of the fine range calculated under the sentencing guidelines of up to 50% when the facts regarding the participation of individuals are furnished. The enhanced enforcement promised by the program results from prosecuting individuals (here).
Comments: The Board is requesting comments on AS No. 7, Engagement Quality Review. That review analyzes significant judgments made by the engagement team. The request for comment seeks to determine if the standard is accomplishing its purpose.
Report: The Board issued a report on inspection observations regarding Communications with Audit Committees per AS No. 16/AS1301. The report notes that most firms have incorporated the standard into their process. Deficiencies were reported in about 7% of the engagements reviewed.
Fraudulent commissions: Ross McLellan and Edward Pennings, both employees of a Boston-based financial services company, were charged in U.S. District Court in Boston in a five count indictment with conspiring to commit securities fraud and wire fraud and two counts each of securities fraud and wire fraud. The indictment alleges that beginning in February 2010, and continuing until September 2011, the two executives added secret commissions to fixed income and equity trades done for six clients in the bank’s transition management business. That group helps institutional clients move their investments between and among asset managers or liquidate large invest portfolios. The commissions were added to fees charged the clients and despite written instructions to the contrary.
Ratings: The Securities and Futures Commission reprimanded Moody’s Investor Service of Hong Kong Limited and fined the firm $11 million in connection with its ratings. The regulator found that Moody’s assessed 49 non-financial Chinese entities against 20 warning signs it called “red flags” to identify possible corporate governance and accounting risks. The report highlighted and discussed six companies which received the highest number of red flags, identified as negative outliers As a result the share price of each firm as listed on the Hong Kong exchange dropped significantly. The regulator found that the report failed to adequately explain the red flags and their meaning and that Moody’s did not have in place sufficient internal control procedures to ensure its business activities were adequately conducted.
Disclosure: The SFC has initiated proceedings against Yorkey Optical International and its CEO, Nagal Michio, and its CFC, Ng Chi Ching, for failing to disclose as soon as reasonably practicable material non-public information. Contrary to the published expectations of the firm’s management of significant growth and increasing profitability, internal records demonstrate that the firm would experience significant material losses in the second half of 2012 and hence for the year. The proceedings are continuing.
Electronic trading: Edwin Schooling Latter, Head of Markets Policy, Financial Conduct Authority, delivered remarks titled “Electronification of trading” at the FIX 2016 EMEA Trading Conference. His remarks focused on electronic trading and volatility (here).