This Week In Securities Litigation (Week ending Dec. 7, 2018)

The Supreme Court was the focus this week with oral argument in Lorenzo v. SEC, an action centered on ascertaining the dividing line between primary and secondary liability under Exchange Act section 10(b). The arguments were based on the application of two prior decisions of the Court, Janus regarding liability for false statements under Rule 10b-5(b) and Central Bank of Denver which held that if the conduct falls within the language of section 10(b) there is a primary violation of the statute.

The Commission filed enforcement actions this week based on insider trading and business development entities. The former centered on an the misappropriation of inside information by a foreign national at a Singapore entity. The latter two cases were based on the mischaracterization of distributions and a failure properly allocate expenses.

Supreme Court

The Supreme Court heard argument on the question frequently referred to in the circuit and district courts as scheme liability on Monday, December 3, 2018. Lorenzo v. SEC, No. 17-1077. Specifically, the question as framed by Petitioner Francis Lorenzo is “whether the D.C. Circuit erred in concluding a misstatement claim that does not meet the elements set forth in Janus [Janus Capital Group, Inc., v. First Derivative Traders, 564 U.S. 135 (2011)] can be repackaged and pursued as a fraudulent scheme claim under Section 10(b) of the Exchange Act . . . and Section 17(a)(1) of the Securities Act.” The D. C. Circuit and the Securities and Exchange Commission rejected the contention.

Frank Lorenzo was a director at investment bank Charles Vista, LLC in February 2009. The firm’s largest investment banking client was start-up W2Energy Holdings, Inc. Its business depended largely on the success of certain technology which failed. The firm attempted to raise about $15 million through the sale of convertible debentures with the assistance of Charles Vista. Mr. Lorenzo emailed two potential investors “several key point” about W2E’s pending debenture offering at the behest of his boss who settled. The emails failed to mention the recent devaluation of the firm’s assets.

Petitioner Lorenzo relied on Janus for the proposition that “only the maker of a misstatement can be held liable for that misstatement under Section 10(b) and Rule 10b-5.” While the lower court agreed that is the law under Janus, and that Mr. Lorenzo was not the “maker” of the statements, it found him liable. To reach that conclusion the D.C. Circuit concluded that Mr. Lorenzo “engaged in a deceptive act, artifice to defraud, or practice, for purposes of liability under Section 10(b) . . .” That was error since it directly undercuts the holding of Janus Petitioner argued.

Counsel for the Government focused first on the facts and then the holding of Central Bank. “Petitioner’s decision to send emails that grossly misrepresented the financial prospects of his client and to give illusory promises designed to deceive investors into backing a business that he knew was failing constitute a quintessential securities fraud. His conduct falls within the plain text and the common-sense meaning of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and subsections (a) and (c) of Rule 10b-5.” Since Central Bank held that if the conduct fell within the language of the statute, as here, there is primary liability counsel for the Government claimed.

SEC Enforcement – Filed and Settled Actions

Statistics: Last week the SEC filed 2 civil injunctive case and 2 administrative proceedings, excluding 12j and tag-along proceedings.

Insider trading: SEC v. Gannamaneni, Civil Action No. 18 CV 11390 (S.D.N.Y. Filed Dec. 6, 2018) is an action which names as a defendants Rajeshwar Gannamaneni, a citizen of India, his wife, Deepthi Gandra, and his father, Linga Gannameneni. Mr. Gannameneni was the information technology contractor at a prominent investment bank in Singapore. Over a period of about three years, beginning in late 2013, Mr. Gannameneni misappropriated inside information about 40 times and used it to trade while sharing it with his wife and father. About $600,000 in illicit profits resulted. The complaint alleges violations of Exchange Act sections 10(b) and 14(e). The case is pending.

Fraudulent trading: SEC v. Litvak, No. 313-CV-00132 (D. against Conn.) is a previously filed action against Jefferies & Co. Inc. trader Jesse Litvak. In a parallel criminal action Mr. Litvak was twice convicted. The convictions were reversed by the Second Circuit Court of Appeals in each instance. In August the U.S. Attorney’s Office dismissed the charges against Mr. Litvak. The Commission also elected to dismiss its compliant. See Lit. Rel. No. 24368 (Dec. 6, 2018).

Misappropriation: SEC v. Rothenberg, Civil Action No. 3:18-cv-05080 ((N.D. Cal.) is a previously filed action in which the Commission alleged that investment adviser defendant Michael Rothenberg misappropriated about $7 million from his clients, in part by overcharging them, to fund his other business ventures. The complaint alleged violations of Advisers Act sections 206(1) and 206(4). Defendant has agreed to resolve the charges. The settlement included a bar from the brokerage and investment advisory business with the right to reapply after 5 years. The court will determine the amount of the disgorgement. See Lit. Rel. No. 24367 (Dec. 6, 2018).

Misappropriation –EB5: SEC v. Chen, Civil Action No. 2:17-cv-06929 (C.D.C.A.) is a previously filed action which named as defendants Edward and Jean Chen, a husband and wife who promoted an EB-5 project. The complaint alleged that they raised about $22.5 million from 45 investors in China for the development of an EB-5 project. More than $12 million was misappropriated. Defendants settled with the Commission. The Court entered a final judgment resolving all claims which enjoins the defendants from violating Exchange Act section 10(b) and Securities Act section 17(a) as well as from participating in the offer and sale of any security which constitutes an investment in a commercial enterprise under the USCIS EB-5 visa program. The order also directs the disgorgement, on a joint and several basis, of $24,655,000 along with prejudgment interest of $1,273,098 and the payment of a penalty of $1,077,500. The final judgement also directs Paradise Investment Center LLC to pay, on a joint and several basis with the other defendants, disgorgement of $2,155 million along with prejudgment interest of $119,583 which is deemed satisfied by amounts already collected. See Lit. Rel. No. 24366 (Dec. 6, 2018).

Improper distribution: In the Matter of KCAP Financial, Inc., Adm. Proc. File No. 5-18912 (Dec. 4, 2018) is a proceeding which names as a Respondent the firm which is a closed end investment company that is regulated as a business development firm. As such the firm distributed about 98% of its investment income. Over a four year period, beginning in 2010, the firm distributed about $35.8 million received from its wholly-owned Asset Manager Affiliates. The distribution was inappropriate because it was paid from current or accumulated tax basis earnings and profits. A restatement resulted. During the process the firm concluded its internal controls were not effective. The Order alleges violations of Exchange Act sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) and Investment Company Act section 19(a). To resolve the proceedings Respondent consented to the entry of a cease and desist order based on the sections cited in the Order.

Misallocation: In the Matter of Fifth Street Management, LLC, Adm. Proc. File No. 3-18909 (Dec. 3, 2018) is a proceeding which names as a Respondent the previously a registered investment adviser. In 2013 and 2014 the Order alleges that the adviser improperly allocated rent and overhead expenses to the business development clients as well as certain compensation expenses. The adviser also failed to conduct quarterly valuation models for illiquid assets which ultimately resulted in the overvaluing of two portfolio companies and incorrect financial statements. The adviser did not properly implement written policies and procedures. The Order alleges violations of Securities Act section 17(a)(2) and Exchange Act sections 13(a), 13(b)(2)(A), 13(b)(2)(B) and Advisers Act sections 206(2), 206(4), 207 and 204A. To resolve the proceedings the adviser consented to the entry of a cease and desist order based on the sections cited in the Order and to a censure. The Adviser also agreed to pay disgorgement of $1,999,115.86, prejudgment interest of $334,545.65 and a penalty of $1,650,000.

Offering fraud: SEC v. Suleymanov, Civil Action No. 18-68545 (E.D.N.Y. Filed Dec. 3, 2018). Mark Suleymanov, operating under the business name SpotFN, offered and sold binary options to customers throughout the United States on a series of websites over a period of four years beginning in 2012. The binary options offered by SpotFN were short term contracts tied to the price of stocks and stock indexes or other financial assets. The options offered and sold required an investor to choose if the given stock’s price, for example, would be above or below a specific price at a certain time. If the investor made a correct determination, he or she won a specified amount. If not, the investor received nothing. Mr. Suleymanov represented that the binary options sold were legitimate, using the NASDAQ logo. In fact they were rigged so that investors could almost never win. Not only were the returns not 88% in favor of the investor as claimed, Mr. Suleymanov manipulated the software that ran the options program so that the chance for investors to secure a favorable result were diminished. In addition, while investor funds were supposedly held in segregated accounts, in fact they were not. Rather, investor funds were co-mingled and at times used for the payment of expenses by Defendant. The complaint alleges violations of Securities Act sections 5 and 17(a) and Exchange Act section 10(b). Defendant Suleymanov agreed to the entry of a permanent injunction based on the sections cited in the complaint. Issues regarding disgorgement, prejudgment interest and a civil penalty will be considered by the Court. See Lit. Rel. No. 24364 (Dec. 3, 2018).

Anti-Corruption Cases

U.S. v. Ho, No. 1:17-cr-00779 (S.D.N.Y.) is an action in which defendant Chi Ping Patrick Ho, A/k/a Patrick C.P. Ho, was found guilty by a jury of participating in a multi-year multimillion dollar scheme to bribe top officials of Chand and Uganda to obtain certain business advantages for CEFC China Energy Company Limited. Mr. Ho was found guilty of conspiracy to violate the FCPA, conspiracy to engage in international money laundering, violating the FCPA and engaging in international money laundering. The scheme had two facets designed to aid CEFC China, a Shanghai-based multibillion business conglomerate that operates in oil, gas, and banking. Mr. Ho was at the center of the scheme as the head of a non-governmental based Hong Kong and Arlington, Virginia based China Energy Fund Committee which held “Special Consultative Status” with the U.N. Economic and Social Council. It was funded by China. Under both facets of the scheme Mr. Ho payed bribes to government officials to secure benefits.

U.S. v. Jiminez Aray, No. 9:18-cr-80054 (S.D. Fla. Sentenced Nov. 29, 2018). Gabriel Arturo Jimenez Aray, a Venezuelan business man and the former owner of Banco Peravia, was sentenced following his earlier guilty plea under seal to one count of conspiracy to commit money laundering. Mr. Jamenez admitted as part of the plea to participating in the scheme with Mr. Gorrin and others to acquire Banco Peravia. He then used the bank to launder bribe money. Mr. Jimenez admitted facilitating illegal transactions and bribe payments to foreign officials using bank issued credit cards, cash disbursements, wire transfer and through other transactions, according to his admissions. U.S. v. Jiminez Aray, No. 9:18-cr-80054 (S.D. Fla. Sentenced Nov 29, 2018).

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