This Week In Securities Litigation (Week ending February 12, 2015)
The Commission resolved its actions against the PRC based affiliates of five major accounting firms for failure to produce audit work papers. The settlement contains a series of procedures designed to facilitate production in the future tied to the MOU the PCAOB previously negotiated with PRC officials on that subject.
The SEC continued its trend of filing insider trading actions as administrative proceedings. The contested action is based on tipping tied to a tender offer. The agency also brought actions centered on the custody rule, false filings, excessive commissions, the sale of unregistered securities and the SOX claw-back provisions.
Rules: The Commission adopted its Security-Based Swap Data Repository rules (here). Commissioners Gallagher and Pinowar dissented because after approval an extensive comment letter was discovered that was not considered or included in the public file (here).
Proposed Rules: The SEC proposed rules for hedging disclosure. The proposed rules are designed to enhance corporate disclosure of hedging policies for officers, directors and employees (here). Commissioners Gallagher and Pinwowar issued a separate statement noting that while they voted for the proposal they are not offering unqualified support (here).
Remarks: Keith F. Higgins, Director, Division of Corporation Finance, addressed the PLI Program on Corporate Governance, New York, New York (Feb. 10, 2015). His remarks focused on shareholder proposals and related litigation (here).
Testimony: Chairman Timothy G. Massad testified before the House Appropriations Committee, Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies, Washington, D.C. (February 11, 2015). The testimony reviewed the priorities of the agency and the budget (here).
SEC Enforcement – Filed and Settled Actions
Statistics: During this period the SEC filed 2 civil injunctive action and 4 administrative proceedings, excluding 12j and tag-along-actions.
Custody rule: In the Matter of Water Island Capital LLC, Adm. File No. 3-16385 (Feb. 12, 2015) is a proceeding which names the registered investment adviser as a Respondent. From at least January to September 2012 the adviser failed to ensure that certain assets of the managed Funds were maintained in the custody of its qualified bank as required by the custody rule. Rather its broker-dealer counterparties held about $247 million in cash collateral. The Funds’ policies and procedures regarding Rule 12b-1 also were not implemented following adoption. Those policies required that the adviser implement procedures to ensure that any broker selected to execute securities transactions was chosen in accord with the rule. As a result Water Island caused the Funds to violate the rule. The adviser also violated Rule 38a-1 of the Investment Company Act by failing to adopt and implement policies and procedures to prevent violations of the Federal securities laws. The adviser settled the proceeding, consenting to the entry of a cease and desist order based on Sections 12(b) and 17(f) of the Investment Company Act and Rules 12b-1 and 38a-1 under that Act. Respondent also agreed to pay a penalty of $50,000.
Insider trading: In the Matter of Charles L. Hill, Jr., Adm. Proc. File No. 3-16383 (Feb. 11, 2015). The action centers on the tender offer by NCR Corporation for Radiant Systems, Inc., announced on July 11, 2011 after the close of the markets. The deal began in early May 2011when NCR’s CEO called that CEO of Radiant and expressed an interest in a possible deal. Later that month Radiant’s board authorized discussions. Following discussions and due diligence the deal was structured as a tender offer in an agreement executed on July 11, 2011. Radiant’s COO, the brother of the CEO, learned about the deal in early May. Subsequently, he continued to discuss the matter with his brother. COO also negotiated his employment terms in the event that the deal was consummated. The COO’s had a Friend with whom he shared material, non-public information about the pending tender offer. The COO had been known Friend since childhood. They routinely shared confidential information. Friend also knew the position COO held at Radiant. Friend had a close personal relationship with Charles Hill. While the two frequently spoke, there is no allegation that they routinely exchanged confidential information. During the deal period the Order alleges that Friend furnished Mr. Hill with material, non-public information about the pending tender offer for Radiant. Mr. Hill “was aware of the relationship” between Friend and COO. Mr. Hill was also acquainted with COO. There is no allegation that Friend received any benefit for transmitting the information. Mr. Hill made a series of purchases of Radiant stock beginning on June 1, 2011. Eventually he acquired over 100,000 shares of a stock he had not purchased over the last four years. By July 8, 2011 the shares had a value of over $2.2 million. At the time of the purchases Mr. Hill knew, or had reason to know, that the information he obtained was material and non-public, according to the Order, and he had reason to know it came directly or indirectly form Radiant, or an officer, director or employee of the company. Each of the purchases was made after NCR had taken substantial steps to commence the tender offer. Following the deal announcement the share price of Radiant increased over 30%. Mr. Hill had profits of about $744,000. The Order alleges violations of Exchange Act Section 14(e) but not 10(b). The proceeding will be set for hearing.
Audit failure: In the Matter of Child, Van Wagoner & Bradshaw, PLLC, Adm. Proc. File No. 3-15965 (Initially filed July 8, 2014) is a previously filed proceeding against the audit firm and two of its partners. The proceeding is based on two audits of a PRC based issuer which are, in essence, audit failures (here). Respondents resolved the action, with the firm and Respondent E. Anderson consenting to the entry of a cease and desist order based on Exchange Act Sections 10A(a)(1) and (2) and Rule 2-02(b)(1) of Regulation S-X. The firm and Mr. Anderson were also denied the privilege of appearing and practicing before the Commission as an accountant. Mr. Anderson may apply for reinstatement after three years based on certain conditions. They will also pay disgorgement of $78,000, on a joint and several basis along, with prejudgment interest. Mr. Anderson will pay a civil money penalty of $40,000. Respondent Marty Van Wagoner is also denied the privilege of appearing and practicing before the Commission. He may apply for reinstatement after three years based on certain conditions.
False filings: In the Matter of Nicholas Toms, Adm. Proc. File No. 3-16384 (Feb. 11, 2015) is a proceeding naming Mr. Toms, formerly the CEO and president of DecisionPoint Systems, Inc., as a Respondent. While he held those positions – from 1981 through 1989 – he beneficially owned and sold more than 2.3 million shares of the firm’s stock. He did this by using his secretary as a nominee for the shares and then making materially false filings with the Commission and certifying to the accuracy of those filings. The Order alleges violations of Exchange Act Section 10(b). The proceeding will be set for hearing.
Excessive commissions: SEC v. Lax, Civil Action No. 2:15-cv-01070 (D.N.J. Filed Feb. 10, 2015) is an action against Craig Lax, formerly the CEO of G-Trade Services LLC, a registered broker dealer and wholly-owned subsidiary of ConvergEx, a Bermuda broker-dealer. The initial complaint against the firm alleged a scheme in which customers were caused to pay substantially higher commissions (here). Mr. Lax supervised a subsidiary that participated in the scheme. He settled with the SEC, consenting to the entry of a judgment precluding future violations of Exchange Act Section 109b). He also entered into a cooperation agreement and agreed to be barred from the securities business for at least five years. The amount of any financial penalty, in addition to the $783,297 in disgorgement and prejudgment interest he will pay, will be determined at a future date. See Lit. Rel. No. 23194 (February 10, 2015).
Claw-back: In the Matter of William Slater, CPA, Adm. Proc. File No. 3-16381 (Feb. 10, 2015) is a proceeding which names as Respondents Mr. Slater and Peter Williams II, former CFOs of Saba Software, Inc. The SOX claw-back action is based on a financial fraud at the firm which began in 2008 and continuing through the second quarter of fiscal 2012. It centered on falsifying the time records of the firm to meet certain metrics. As a result, over a period from October 2007 through January 2012 the firm overstated reported pre-tax income by about $70 million. The company announced a restatement but it has not been prepared. Its shares have been delisted. The claw-back action alleges that as former CFOs Messrs. Slater and Williams, during the twelve month period following the filing of periodic reports requiring restatement, were paid bonuses and realized profits from the sales of Saba stock. Neither has reimbursed the company as required by Section 304 of the Sarbanes-Oxley Act. Each Respondent resolved the action, consenting to the entry of a cease and desist order based on Section 304. Mr. Slater agreed to pay the company $337,375. Mr. Williams agreed to reimburse Saba $141,992. See also In the Matter of Saba Software, Inc., Adm. Proc. File No. 3-16159 (September 24, 2014)(settled action against the company and two officers); In the Matter of Babak Yazdani, Adm. Proc. File No. 3-16160 (September 24, 2015)(settled claw-back action against former CEO).
Work paper production: In the Matter of BDO China Dahua CPA Co., Ltd., Adm. Proc. File No. 3-15116 (Dec. 3, 2012) is a previously filed proceeding which named as Respondents the PRC based affiliates of five major accounting firms: BDO China, Ernst & Young Hau Ming LLP, KPMG Huazhen (Special General Partnership), Deloitte Touche Tohmatsu Certified Public Accountants Ltd. and PricewaterhouseCoopers Zhong Tian CPAs Ltd. The proceeding was based on Rule 102(e)(1)(iii) and Section 106 of the Sarbanes-Oxley Act which requires that a PCAOB registered firm that audits the financial statements of a U.S. issuer consents to produce its work papers on request by either the Board or the SEC. Here each Respondent is registered with the PCAOB. Each Respondent did not produce audit work papers when requested, citing PRC regulations which precluded production. Following the hearing the Law Judge issued an initial decision on January 22, 2014. In that decision, much of which was redacted, the Law Judge found that each firm should be censured. In addition, each firm, except BDO, was suspended from practicing before the SEC for six months. The Commission then granted petitions for review filed by Deloitte, EY, KPMG and PwC as well as the Division. BDO China, Deloitte, EY, KPMG and PwC settled with the SEC, admitting certain facts which are the predicate of the proceedings as set forth in Annex A. Under the terms of the settlement each Respondent is censured and will pay a penalty of $500,000. The Order provides for a stay of the current proceedings for a period of four years. The continuation of the stay is contingent on the implementation of certain undertakings tied to the execution of future requests for work papers. Specifically, the undertakings provide that in the future the SEC will make requests for assistance to the CSRC under international sharing mechanisms which include the IOSCO MMOU. Documents can be withheld based on privilege and local secrecy laws. In the event of a failure to produce the proceeding may either be restarted or proceed in a summary fashion depending on the circumstances.
Unregistered securities: SEC v. Caledonian Bank Ltd., Civil Action No. 15-cv-00894 (S.D.N.Y. Filed Feb. 6, 2015) is an action against five off-shore entities centered on the alleged sale of unregistered securities. The defendants – Caledonian Bank Ltd, Caledonian Securities Ltd., Clear Water Securities, Inc., Legacy Global Markets S.A. and Verdmont Capital, S.A. – are alleged to have sold millions of shares of unregistered penny stock, raising over $75 million. The shares were initially registered with the Commission using a Form S-1 but, contrary to representations, were never actually sold. Rather, they were deposited in brokerage accounts and later sold as “free trading” after a promotional campaign. The complaint alleges violations of Securities Act Sections 5(a) and 5(c). A temporary freeze order was entered on filing. See Lit. Rel. No. 23195 (Feb. 11, 2015).
Investment fund fraud: U.S. v. Ekdeshman, No. 1:14-cr-00427 (S.D.N.Y.). Alex Ekdeshman was the CEO of Paramount Management, LLC. Over a two year period beginning in May 2011 the firm solicited investors. The firm claimed to be investing in foreign exchange currency transactions or forex from its offices in New York City. Investors were assured their money would only be invested in forex. About 115 investors put $1.58 million into Paramount Management. Unfortunately, about two thirds of the money was never put into the currency markets. Rather, Mr. Ekdeshman invested the funds in himself, his family and his other business expenses as well as firm employees. As a result the investors lost their funds. Mr. Ekdeshman pleaded guilty to one count of commodities fraud. He is awaiting sentencing. See also CFTC v. Ekdeshman, Civil Action No. 1:13-cv-04436 (S.D.N.Y.). Mr. Ekdeshman is awaiting sentencing.
U.S. v. Lakian, No. 1:15 Cr-0043 (E.D.N.Y.) involved two schemes perpetrated by John Lakian and Diane Lamm, according to the charging papers. The schemes ran over a four year period beginning in early 2009. In the first $11 million was raised. Investors were promised that their funds would be used to purchase, consolidate and sell registered investment advisory businesses. Again, however, much of the investor money was invested in the promoters. Specifically, the money was used to pay Mr. Lakian’s home mortgage and for other expenses. The second scheme involved the management of funds for about 100 investors in a North Carolina based investment fund. When the fund was liquidated the proceeds were supposed to go to the investors. Again the money went to the promoters – Mr. Lakian and Ms. Lamm for restaurant businesses they controlled. The two defendants were also charged with obtaining more than $8 million in bank loans using forged and fraudulent documents. The defendants were charged with conspiracy to commit securities, wire and bank fraud and two counts of substantive securities fraud. The cases are pending.
Misappropriation: Melinda Scott, formerly the operator of Roach Graham Scott Pty Ltd., a financial planning and investment subsidiary of Australian and New Zealand Banking Group Limited, was sentenced to serve six years and three months for defrauding 150 clients of over $5.9 million over a period of 20 years. The investment firm was involved largely with superannuation and annuities products. Most of the firm clients were not impacted. The parent company commenced a remediation program to ensure that those who were impacted are compensated.
Bribery: Christopher Smith, chairman of Smith and Ouzman Ltd, and Nicholas Smith, the sales and marketing director of the company, were sentenced to, respectively, 18 months, suspended for two years, and three years imprisonment following their conviction at trial. Christopher Smith was convicted on two counts of corruptly agreeing to make payments. He was also sentenced to 250 hours of unpaid work and has been given a three month curfew. Nicholas Smith was convicted on three counts of corruptly agreeing to make payments. These are the first convictions under a corporate for foreign bribery following a contested trial.