This Week In Securities Litigation (Week ending Dec. 29, 2017)
This is the first of two articles reviewing events that took place during the holidays. Specifically, this article reviews key events concerning securities enforcement litigation from December 23, 2017 through the last business day of 2017. An article appearing tomorrow will review enforcement actions for the first week of the new year, January 1, 2018 through January 5, 2018.
Report: The Staff made available its annual report on credit rating agencies, mandated by Dodd-Frank. Overall the report reflects improvement by the agencies (here).
Accounting: The staff provided regulatory guidance for the impact of the recent tax cuts and the JOBS Act (here).
SEC Enforcement – Filed and Settled Actions
Statistics: Last week the SEC filed 1 civil injunctive case and 4 administrative proceedings, excluding 12j and tag-along proceedings.
Misappropriation: SEC v. Gaughran, Civil Action No. 17 cv 24022 (S.D.N.Y. Filed Dec. 26, 2017) is an action which names as defendants Robert Gaughran and Kevin Clune, respectively, counsel to the Decedent, the Estate of Decedent, and the Foundation and the accountant to the Estate, Foundation and to John Rogicki, former principal of investment bank Train, Babcock Advisors, LLC or TBA. Mr. Rogicki is a defendant in a related Commission enforcement action based on the conduct underlying this action and pleaded guilty in a parallel criminal case. Defendants are charged with aiding and abetting the misappropriation of about $9 million by Mr. Rogicki from the account of TBA’s client, the Foundation, which had been established by the Decedent and which was funded by assets from her Estate. Through their respective positions as counsel and accountant, each Defendant was aware of the amounts of money involved that that should have been at TBA and flowed through the Estate to the Foundation. Each ignored repeated red flags over a period of years which facilitated the misappropriation. Mr. Gaughran, with the assistance of Mr. Clune, also provided false withdrawal figures to the Foundation’s outside auditor that understated the amount being taken out of the charity. The complaint alleges violations of Advisers Act Sections 206(1) and 206(2) and Exchange Act Section 10(b). The case is in litigation. See Lit. Rel. No. 24022 (Dec. 26, 2017). See also In the Matter of Train, Babcock Advisors LLC, Adm. Proc. File No. 3-18324 (Dec. 22, 2017)(action against the investment bank involved in conduct alleged above; settled with an agreement to withdraw registration, consent to a cease and desist order based on Exchange Act Section 10(b) and Advisers Act Sections 206(1), 206(2), 206(4) and 207, a censure and the payment of disgorgement in the amount of $331,957, prejudgment interest and a penalty of $1,335,000).
Custody rule: In the Matter of Southwind Associates of NJ Inc., Adm. Proc. File No. 3-18323 (Dec. 22, 1017) is a proceeding which names as Respondents: The registered investment adviser; William Villarfanco, the firm’s sole owner and President; and Anthony Laperuta, the CCO. The Order centers on three violations that were identified by staff inspections but which had not been adequately addressed: 1) A custody rule violation tied to a failure to have a surprise exam; 2) a failure to ensure that audited financial statements prepared by a PCAOB auditor were timely distributed; and 3) a violation of the Safeguards Rule by failing to adopt written policies and procedures to safeguard client records and information. Mr. Villafranco became aware of the underlying conduct but failed to take adequate steps to ensure it was addressed. Mr. LaPeruta aided and abetted the underlying conduct by allowing it to continue despite a compliance report from an outside firm and the inspection reports. He also misrepresented the progress being made in addressing the issues. The staff exams were conducted in 2003, 2006 and 2013. The Order alleges violations of Advisers Act Sections 204(a), 206(4) and the related rules and rule 30(a) of Reg. S-P. In resolving the matter the firm agreed to certain undertakings, including the retention of an independent consultant. Each Respondent consented to the entry of a cease and desist order based on the Sections and rules cited in the Order. The firm was censured and Mr. LaPeruta is barred from serving in a supervisory capacity in the securities business. In addition, the firm and Mr. Villafranco will pay, on a joint and several basis, a penalty of $50,000.
Change of investment strategy: In the Matter of Team Financial Asset Management, LLC, Adm. Proc. File No. 3-18320 (Dec. 22, 2017) is a proceeding which names as Respondents the previously registered investment adviser or Management, Team Financial Managers, Inc., also a previously registered investment adviser or Managers, and James Dailey, the owner and managing member of Management, and the co-owner and portfolio manager of Managers. The managed fund was a series of the Valued Advisers Trust, a registered investment company. The investment strategy utilized from inception in 2009 was a variation of one previously used by Mr. Dailey. Beginning in 2012 the strategy was altered to include a large amount of derivative trading for speculation and short selling, all of which changed the risk profile. Losses resulted. In fiscal 2012 the losses were 22%, grew to 80% the next year and resulted in liquidation in fiscal 2013. Misrepresentations were made about the strategy while investors were not adequately told about the derivatives and short selling or the related risks. Mr. Dailey also directed that certain separately managed accounts be included in the new strategy. The Order alleges violations of Advisers Act Sections 204(a), 206(2), 206(4) and 207, Securities Act Sections 17(a)(2) and 17(a)(3) and Investment Company Act Section 34(b) and rule 38a-1. To resolve the proceeding Management and Mr. Dailey each consented to the entry of a cease and desist order based on each Section cited in the Order except Advisers Act Section 206(2) and Investment Company Act rule 38a-1. In addition, each Respondent consented to the entry of a cease and desist order based on Advisers Act Section 206(2) and Management consented to the entry of a cease and desist order based on Investment Company Act rule 38a-1. Both entity Respondents were censured while Mr. Dailey is barred from the securities business and ordered to pay disgorgement of $65,062, prejudgment interest and a penalty of $130,000.
Abuse of position: In the Matter of Alan Shortall, Adm. Proc. File No. 3-18322 (Dec. 22, 2017) is an action which names as a Respondent Mr. Shortall, the founder, CEO, Chairman and a significant shareholder of Unilife Corporation, a medical device producer. The Order alleges that between 2011 and 2015 Mr. Shortall made misrepresentations which included: Claiming that a director who was also the vice chairman was “independent” when he was not; arranging for the firm to improperly advance funds to him; arranging for the company to loan money to the director; and failing to disclose the fact that his shares were encumbered by a large loan and that he had transferred the beneficial ownership of a block of his stock. The Order alleges violations of Securities Act Sections 17(a)(1) and (3) and Exchange Act Sections 10(b), 13(d)(2), 13(k) and 16(a). In resolving the matter Respondent submitted an affidavit of inability to pay which was considered by the Commission in setting the monetary amounts. Mr. Shortall consented to the entry of a cease and desist order based on the Sections cited in the Order. He is also prohibited from serving as an officer or director of a public company for five years and is required to pay a penalty of $15,000.
Ratings: The regulator fined Citigroup Global Markets Inc. $5.5 million and is requiring the firm to pay at least $6 million in compensation to retail customers for displaying inaccurate research ratings for numerous equity securities. Specifically, over a four year period beginning in February 2011, the firm displayed to brokers, retail customers and supervisors inaccurate research ratings on over 1,800 equity securities – about 38% of those covered by the firm. While the firm’s actual reports were not impacted, the inaccurate displays resulted in incorrect statements to customers, incorrect recommendations, recommendations on securities not covered by the firm, and transactions in the portfolios of certain funds that were not in accord with the applicable guidelines. FINRA took into account the fact that the firm self-reported and cooperated with the inquiry.
Customer protection: The regulator fined J.P. Morgan Securities LLC $2.8 million for violations of the customer protection rule and supervisory failures. The customer protection rule requires that firms holding client assets segregate certain of those assets for customer protection in the event of insolvency. From March 2008 through June 2016 J. P. Morgan did not have reasonable processes in place to ensure that its possession or control systems were operating properly. As a result shares that should have been segregated were available to the firm. The firm thus created deficits for foreign and domestic securities that were valued at hundreds of millions of dollars.
Misappropriation: U.S. v. Greebel, No. 15-cr-637 (E.D.N.Y. verdict Dec. 27, 2017) is an action against former Katten Muchin Rosenman LLP partner Evan Greebel in which the Defendant was found guilty by a jury of two counts of conspiracy to commit securities fraud and conspiracy to commit wire fraud following an eleven week trial. The charges centered on a scheme that took place over a three year period beginning in 2011 in which Mr. Greebel conspired with his client, Martin Shkreli and others, to misappropriate assets from publically traded Retrophin Inc., a biopharmaceutical company. Specifically, the charges centered on a scheme to use the assets of Retrophin to pay off millions of dollars in debt to defrauded investors of MSMB Capital Management LP and MSMB Healthcare Management LP, two hedge funds of Mr. Shkreli. The payments were made through sham settlement agreements with the defrauded investors that were funded from the assets of Retrophin. At the time of the transactions Mr. Greebel was serving as outside counsel to Retrophin while Mr. Shkreli was the CEO of the firm. Mr. Shkreli was previously convicted of securities fraud and securities conspiracy and is awaiting sentencing.
Manipulation—financial fraud: U.S. v. Tuzman, No. 1:15-cr-00536 (S.D.N.Y. verdict Dec. 26, 2017) is an action which named as defendants Kaleil Isaza Tuzman, the former chairman and CEO of KIT Digital Company, and Omar Amanat, an associate of Mr. Tuzman. Following a six week trial the jury returned verdicts of guilty against each defendant. Specifically, Mr. Tuzman was found guilty of conspiracy to commit securities fraud and conspiracy to commit wire fraud with respect to a market manipulation scheme and conspiracy to commit securities fraud and of making false statements in SEC reports and to the auditors with respect to a financial fraud scheme. Mr. Amanat was found guilty of conspiracy to commit wire fraud, one count of wire fraud and one count of aiding and abetting investment advisor fraud and one count of conspiracy to commit securities fraud, all in relation to a market manipulation scheme. The case was built on allegations relating to three schemes. First, with respect to Maiden Capital, an unregistered investment advisory firm, between February 2009 and June 2012 Mr. Amanat and others carried out a scheme to conceal the fact that firm clients suffered losses from an investment in Enable, an investment vehicle for which he had raised capital using a series of misrepresentations. The second scheme involved a market manipulation involving the shares of KITD, traded on the OTC Bulletin Board and on NASDAQ. Maiden, at the request of Messrs. Tuzman and Amanat, purchased and sold shares of the firm for the purpose of manipulating the price and creating the illusion of investor activity. Over $1.1 million was invested in the scheme which was designed to raise the share price when KITD was seeking to obtain additional capital and shortly before the shares were listed on NASDAQ. The third scheme involved an accounting fraud that took place over a two year period beginning in 2010. This scheme, designed to fraudulently inflate the revenue of KITD, involved the use of improper revenue recognition from certain license contracts and sham round trip transactions. Mr. Amanat is scheduled to be sentenced on April 25, 2018 while Mr. Tuzman is scheduled for April 26, 2018.
FCPA – Anti-corruption
U.S. v. KOM USA (E.D.Va. Filed Dec. 22, 2017) is an action in which the firm, the U.S. subsidiary of Keppel Offshore & Marine Ltd., a Singapore-based operator of shipyards and which makes repairs and upgrades vessels, pleaded guilty. The plea was part of an overall resolution in which the firm’s parent entered into a deferred prosecution agreement with the DOJ based on an information that charged the company with one count of conspiracy to violate the FCPA. Overall the firm will pay a criminal fine of $422,216,980 with a penalty due to the U.S. of $105,554,245. That includes a criminal fine paid by the U.S. subsidiary in the amount of $4,725,000. The total settlement involved regulators in Brazil and Singapore in addition to the U.S. In connection with the resolution a senior member of KOM’s legal department pleaded guilty. He is awaiting sentencing.
The settlement is based on a multi-year scheme that began in 2001 and continued to about 2014. During that period about $55 million in bribes were paid to officials at the Brazilian state-owned oil company, Petrobras, and to the then governing political party in Brazil to win 13 contracts with Petrobras and another Brazilian entity. The payments were made under the guise of consulting agreements.
In reaching the resolution the DOJ gave KOM and KOM USA credit for their substantial cooperation with the U.S. investigation and for taking extensive remedial measures. Those included terminating and disciplining employees involved in the criminal conduct and enhancing the firm’s internal controls and related systems. The penalty represents a 25% reduction off the bottom of the applicable U.S. Sentencing Guidelines fine range.
MOU: The SFC entered into a supervisory and enforcement cooperation agreement with The China Securities Regulatory Commission or CSRC with respect to futures. The agreement calls for supervisory assistance, enforcement cooperation and information exchange on matters including cross-boundary derivative, futures exchanges and futures brokers. In 1995 the two regulators first entered into a cooperation agreement. In view of the increased interaction between Hong Kong and the Mainland futures markets it was concluded that the agreement should be amended.
Client authorization: The Securities and Futures Commission banned Mr. Ng Chau, previously an account executive at Nice Securities Limited, for a period of six months. Over a period of about one year, beginning in October 2013, Mr. Ng engaged in transactions in the account of a client on a discretionary basis despite not having written authorization. While the client acknowledged giving the registered representative authorization orally, the lack of written instructions prevented Nice Securities from monitoring the transactions. In resolve the case the Commission considered the cooperation of the Respondent and his clean record.