This Week In Securities Litigation (Week ending July 27, 2018)
The Commission brought a series of cases this week which involved: Insider trading; offering fraud; compliance/Confidential information; compliance/Pre-release ADRs, and misrepresentations.
Criminal actions were based on: Offering fraud; manipulation; insider trading; crypto currency/cyber security and manipulation.
Finally, the Australian Securities and Investment Commission filed an insider trading action. The Hong Kong Securities and Futures Commission prevailed in one action alleging illegal short selling and lost another. The agency also published its annual Asset and Wealth Management Activities Survey.
Proposal: The Commission agreed to propose amendments to rules designed to simplify and streamline the financial disclosures required to register debt offerings for guarantors and issuers of guaranteed securities. Also included would be affiliates whose securities collateralize a registrant’s securities (here).
Order: The Commission entered an order extending the thirty day halt for the commencement of administrative proceedings. The new order directs it will continue for another thirty days or until further order.
Cyber: The DOJ published the report of its Cyber-Digital Task Force, created in February 2018. The Report is divided into chapters which cover topics that include an explanation of the foreign influence on operations and transactions, cyber threats, the efforts of the Department in these areas and the role of the FBI (here).
Securities Class Actions
The filing of securities class actions continued at a brisk pace in the first half of 2018. Specifically, 204 cases were filed in the first half of 2018 compared to 189 in the second half of last year and 223 in the first half of last year. From 1997 to 2017 an average of 102 securities class actions were filed for a half year period. There were also seven initial coin offerings in the first half of this year compared to five in the second half of 2017. Cornerstone Research, Securities Class Action Filings, 2018 Midyear Assessment (here).
SEC Enforcement – Filed and Settled Actions
Statistics: Last week the SEC filed 5 civil injunctive cases and 6 administrative proceedings, excluding 12j and tag-along proceedings.
Insider trading: SEC v. Cunniffe, Civil Action No. 1:18-cv-06667 (S.D.N.Y. Filed July 25, 2018) names market professional Richard Cunniffe as a defendant. The case is a follow-on action to insider trading charges brought in U.S. v. Stewart, No. 1:15-cr-00287 (S.D.N.Y.), a case which named Perella Weinberg investment banker Sean Stewart as a defendant. See also U.S. v. Robert Stewart, No. 15-cr-287 (S.D.N.Y.); SEC v. Stewart, Civil Action No. 1:15-cv-03719 (S.D.N.Y.)(naming father and son as defendants). Over a four year period Sean Stewart tipped his father, Robert regarding pending acquisition deals in six instances. Robert Steward recruited Richard Cunniffe to trade for him on four occasions as part of his efforts to conceal his actions. Mr. Cunniffe, who cooperated with the government, also traded. The complaint alleges violations of Exchange Act section 10(b) and 14(e). Mr. Cunniffe pleaded guilty in a parallel criminal case and settled with the Commission, consenting to the entry of a permanent injunction and the payment of disgorgement and prejudgment interest but no penalty. See Lit. Rel. No. 24215 (July 26, 2018).
Insider trading: In the Matter of Yao Li, Adm. Proc. No. 3-18614 (July 24, 2018) names as a Respondent, the Vice President of Technology for Alliance Fiber Products, Inc. The firm sells fiber optic products. From June 2014 to February 2016 Mr. Li learned through regular business meetings that for three different quarters the firm’s financial performance would likely miss guidance. In each of those quarters – Q2 2014, Q3 2015 and Q4 2015 – Mr. Li sold his firm’s stock short. In each instance he profited. The Order alleges violations of Securities Act section 17(a) and Exchange Act section 10(b). To resolve the proceedings, Mr. Li consented to the entry of a cease and desist order based on the sections cited in the Order. He will also be prohibited for a period of five years from acting as an officer or director of any issuer. In addition, Mr. Li will pay disgorgement of $196,203, prejudgment interest of $23,062 and a penalty equal to the amount of his trading profits.
Offering fraud: SEC v. McFarland, Civil Action No. 1:18-cv-06634 (S.D.N.Y. Filed July 24, 2018). The action names as defendants William Z. McFarland, the promoter of the so-called Frye Festival along with his firms, Frye Media, Inc. and Magnises, Inc. Also named as defendants are Grant Margolin, Fyre Media’s chief marketing officer and Magnises’ Vice President of Marketing and Branding, and Daniel Simon, a contractor for each of Mr. McFarland’s businesses. From 2013 through 2017 Mr. McFarland, with assistance from the other defendants, raised over $27.4 million from over 100 investors to promote the Frye Festival, supposedly a one-in-a-lifetime musical event. Investors were solicited with a series of false representations. Those concerned the finances of the enterprise and key collateral for securitized investments in Fyre Festival. Mr. McFarland diverted portions of the investor funds to personal use. The complaint alleges violations of Securities Act sections 5(a), 5(c) and each subsection of 17(a) and Exchange Act sections 10(b) and 15(a). To resolve the action Mr. McFarland admitted to the allegations against him and agreed to a permanent officer and director bar as well as to pay $27.4 million in disgorgement, deemed satisfied by the forfeiture ordered in the parallel criminal case. The other defendants each agreed to settle without admitting or denying the allegations in the complaint. Mr. Margolin agreed to the entry of a seven year director and officer bar and will pay a penalty of $35,000. Mr. Simon agreed to the entry of a three year director and officer bar and will pay $15,000 in disgorgement and penalties. See also U.S. v. McFarland, No. 1:18-cr-00446 (S.D.N.Y.)(in which Mr. McFarland, who pleaded guilty in the parallel criminal case based on the Frye Festival (U.S. v. McFarland, No. 1:17-00600 (S.D.N.Y.) also pleaded guilty this week to conducting a fraudulent ticket scheme he engaged in while on bail for the Frye Festival case; in the ticket scheme he solicited investors to buy interests in a firm that supposedly owned exclusive tickets to Broadway shows and sports events; there were no such tickets; he pleaded guilty to one count of wire fraud while on pretrial release, one count of bank fraud and one count of making false statements; he is awaiting sentencing).
Insider trading: SEC v. Brunstrum, Civil Action No. 1:18-cv-05035 (N.D. Ill. Filed July 24, 2018) is an action which names as defendants Matthew Brunstrum, a financial analyst in the mergers and acquisitions department of Stericycle, Inc., and his mother, Susan Brunstrum. In April 2016 Mr. Brunstrum learned through his employment that the firm’s quarterly results would be worse than expected. He traded and tipped his mother who also traded. Following the earnings announcement the share price dropped 22%. Mr. Brunstrum avoided losses and realized gains of $159,904 while his mother avoid losses and had gains of $170,252. The complaint alleges violations of each subsection of Securities Act section 17(a) and Exchange Act section 10(b). To resolve the action each defendant consented to the entry of a permanent injunction based on the sections cited in the complaint and will pay disgorgement equal to their ill-gotten gains. The court will determine the civil penalty amounts. See Lit. Rel. No. 24212 (July 24, 2018). See also U.S. v. Brunstrum, No. 1:18-cr-00446 (N.D. Ill. Filed July 24, 2018).
Pre-release ADRs: In the Matter of Melanie Ryan, Adm. Proc. File No. 3-18613 (July 24, 2018) is an action which names as a Respondent Ms. Ryan, the Chief Compliance Officer BIMI Securities Corp. Over a four year period beginning in 2011 the firm loaned pre-release ADR securities without taking reasonable steps to determine that the requisite number of shares was owned and custodied by the person on whose behalf the pre-released ADRs were being obtained. According, in many instances the pre-release ADRs were not backed by the securities. Although Ms. Ryan helped create the firm’s compliance procedures for these transactions she made misrepresentations to the Depositories that were contrary to firm procedures, causing the firm to violate Securities Act section 17(a)(3). To resolve the proceedings Ms. Ryan consented to the entry of a cease and desist order based on the section cited in the Order. She also agreed to pay a penalty of $10,000.
Compliance/Confidential information : In the Matter of Mizuho Securities USA LLC, Adm. Proc. File No. 3-18609 (July 23, 2018). Respondent Mizuho Securities is a registered broker-dealer that is an indirect, majority owned subsidiary of Mizuho Financial Group, Inc., a foreign private issuer whose shares are listed on the NYSE. The firm’s U.S. Desk was responsible for facilitating U.S. equity trades for its largely institutional customers. The International Desk accepted customer orders in securities traded on markets in Asia, routing them to affiliates. That desk was also responsible for handling corporate repurchases or buybacks of its securities. The broker-dealer’s policies and procedures designated each of its business units as either “private side” or “public side.” The former referred to the fact that the unit had been designated by management and compliance as having access to material nonpublic information. The latter meant the unit had not received such a designation. Barriers were in place between the private and public sides. The U.S. Desk and the International Desk were both designated as public side. During the two year period involved here beginning in 2012 Mizuho’s International Desk executed as many as fifteen issuer buybacks per day. Those transactions were typically executed in a manner that complied with Exchange Act rule 10(b)-18 which provides a safe-harbor from manipulation. Typically Mizuho executed buyback transactions before market open. The order information was entered into a management system that was linked to trading algorithms at two third party broker-dealers whose contracts contained confidentiality clauses. Prior to market open the International Desk “routinely shared buyback order information with the U.S. Desk,” according to the Order. The head execution trader on the U.S. Desk frequently conveyed the information about the buybacks to the sales traders on the desks. Customers were also periodically told about the orders. Those communications contravened the firm’s policies. Exchange Act section 15(g) requires that registered broker-dealers establish, maintain and enforce written policies and procedures, reasonably designed in view of the firm’s business, to prevent the misuse of inside information. Here the firm failed to comply with the dictates of this rule by not properly implementing its systems. To resolve the proceedings, Respondent consented to the entry of a cease and desist order based on the section cited in the Order and to a censure. The firm will also pay a penalty of $1.25 million.
Compliance: In the Matter of Deutsche Bank Trust Company Americas, Adm. Proc. File No. 3018605 (July 20, 2018). Deutsche Bank Trust, a subsidiary of Deutsche Bank AG, failed to act on a series of red flags over a five year period beginning in 2011 regarding its handling of pre-release ADRs. ADRs are negotiable instruments that represent an ownership interest in a specific number of foreign securities held in a depositary. The ADR holder has a right to the shares in the Depositary. Pre-release ADRs represent a newly issued instrument in which the market participant obtains the ADR in connection with a pre-release agreement. That agreement provides that the acquirer of the instrument beneficially owns the corresponding shares which have not yet been deposited with the depository. Typically the agreements are used where there are timing differences that may stem, for example, from a purchase or sale transaction where delivery will be made within a brief period. In effect, the holder of the shares maintains them for the benefit of the ADR owner until they are deposited. Over the five year period here Deutsche Bank Trust failed in a number of instances to take reasonable steps to ensure that “they or their counterparties complied with the pre-release obligations.” The Depositary Receipts Group of Deutsche Bank and Trust was aware of, or negligent in not realizing, that many of the pre-release brokers and counterparties with whom they were dealing were not complying with their obligations. The timing of the transactions in terms of the length of time the agreements lasted and the economics of the deals should have, at a minimum, indicated to the Depositary Receipts Group that those involved in the transactions may not be complying with their obligations. For example, while the agreements should only have been required for at most a few days because of possible closing timing issues, often the arrangements continued for a much longer period. In other instances the economics of the transactions suggested possible non-compliance. This would occur, for example, when a party was required to remit dividends to the beneficial owner of the shares net of the applicable withholding taxes and pay fees to the firm which made the transaction uneconomical if all requirements of the pre-release agreement were met. The firm voluntarily ended these practices after the staff opened its investigation but prior to the receipt of any subpoena. The firm also cooperated with the staff’s investigation by voluntarily highlighting documents of interest, furnishing summaries of materials and expanding the scope of its document collection. In addition, Deutsche Bank and Trust executed tolling agreements. The Order alleges violations of Securities Act section 17(a)(3). To resolve the proceedings the firm consented to the entry of a cease and desist order based on the section cited in the Order. In addition, the firm agreed to pay disgorgement of $44,458,001.08, prejudgment interest of $6,597,826.59 and a penalty of $22,229,000.54. See also In the Matter of Deutsche Bank Securities, Inc., Adm. Proc. File No. 3-18606 (June 20, 2018)(proceeding against the registered broker-dealer based on similar facts alleging a failure to supervise; settled with the entry of a censure and the payment of disgorgement in the amount of $995,506.60, prejudgment interest of $155,006.02 and a penalty in the amount of $487,753.30).
Misstatements: In the Matter of Beverly Hills Wealth Management, Adm. Proc. File No. 3-18607 (July 20, 2018) is a proceeding which names as Respondents the registered investment adviser and its majority owner, Margaret Mulligan Black. The Order is based on two misrepresentations. First, in April 2016 the firm withheld prepaid, unearned advisory fees of $131,000 from 63 departing clients who requested termination of the relationship, claiming that a “wet” signature was required despite representations in the firm ADV brochures and advisory agreements to the contrary. Second, from March 2013 through April 2018 the firm represented that its financial condition was not impaired when in fact the advisory had borrowed $700,000 just to stay afloat. The Order alleges violations of Advisers Act sections 204(a), 206(2) and 207. To resolve the proceedings each Respondent consented to the entry of a cease and desist order based on the sections cited in the Order and to a censure. The firm will pay a penalty of $100,000. The firm will comply with its undertakings which include correcting its filings. Ms. Black will pay a penalty of $50,000.
Offering fraud: SEC v. Rudden, Civil Action No. 1:18-cv-01842 (D. Colo. Filed under seal July 19, 2018) is an action which names as defendants Daniel Rudden and his firms, Financial Visions, Inc. and three of its affiliates. The complaint alleges that since 2010 or 2011 Mr. Rudden and his firms have raised about $55 million from 150 investors. Investors were solicited to purchase promissory notes for a venture that supposedly loaned money to individuals for funeral expenses in return for repayment plus additional charges secured by their insurance policy. Investors were supposed to be paid 12% annual returns on the notes. In reality the business was unprofitable, contrary to representations made by Defendants, and it operated like a Ponzi scheme. The complaint alleges violations of Securities Act section 17(a) and Exchange Act section 10(b). The court entered a temporary freeze order at the time the complaint was unsealed. The case is pending. See Lit. Rel. No. 24216 (July 26, 2018).
Offering fraud: U.S. v. Pagartanis, No. 18-cr-374 (E.D.N.Y.) is an action in which Richard Donoghue is charged with running a multi-year Ponzi scheme. Specifically, beginning in January 2000 and continuing through March 2018 Mr. Donoghue raised over $13 million from largely elderly investors, falsely telling them that their funds would be invested in real estate and pay returns that he typically claimed would be 4.5 to 8% annually. In fact he misappropriated the funds, using them in part to make investor payments and in part for his personal use. False account statements were furnished to investors to help cover-up the fraud. Mr. Pagartanis, formerly a licensed financial advisor and an affiliate of a registered broker-dealer, has been charged with securities fraud, mail and wire fraud conspiracies and money laundering. The case is pending.
Manipulation: U.S. v. Vorley (N.D. Ill.) is an action charging U.K. resident James Vorley and France and UAE resident Cedric Chanu, with manipulation on the Comex while being employed as traders at Deutsche Bank AG. Specifically, the charges allege that the two traders, and others placed fraudulent orders that they did not intend to execute to create the appearance of false supply and demand to deceive other traders. The two traders are each charged with one count of conspiracy to commit wire fraud affecting a financial institution and one count of wire fraud affecting a financial institution. See also CFTC v. Vorley, Civil Action No. 1:18-cv-00603 (N.D. Ill.).
Crypto-currency/cyber: U.S. v. Montroll, No. 1:18-mj-1372 (S.D.N.Y.). Defendant Jon Montroll was the operator of WeExchange Australia, Pty, Ltd. and BitFunder.com The former was a bitcoin depository and currency exchange service. The latter facilitated transactions in virtual shares of entities that listed on BitFunder. Over a period of seven month beginning in December 2012 Mr. Montroll misappropriated a portion of investor bitcoins on the WeExchange. Subsequently, in July 2013 he began promoting Likyo.Loan, a security that Mr. Montroll urged investors to view as “a sort of round-about investment” in BitFunder and WeExchange, as well as a loan. The interests could also be redeemed at face value. Hackers penetrated BitFunder’s programing code during the summer of 2013, causing the program to credit their accounts and leaving Mr. Montroll with insufficient bitcoins to cover those owed to users. Mr. Montroll did not disclose the hack to investors but did continue to promote Likyo.Loan. Later, when the SEC investigated he produced a doctored screenshot regarding what he falsely claimed was his bit coin inventory and gave false testimony regarding the hack. Mr. Montroll pleaded guilty this week to one count of securities fraud and one count of obstruction of justice. The date for sentencing has not been set. See also SEC v. Montroll, Civil Action No. 1:18-cv-01582 (S.D.N.Y. Filed Feb. 21, 2018).
Manipulation: U.S. v. Bercoon, No. 1:15-cr-00022 (N.D.Ga.) names as defendants Marc Bercoon and William Goldstein. The case centers on two fraudulent transactions. The first involved a pump-and-dump scheme in March and May 2010 involving the shares of MedCareers Group, Inc. During the period Defendants and others had the firm issue a series of false press releases and SEC filings. In addition, mass emails were distributed, touting the stock. While the stock price was artificially high, Defendants sold their shares, using multiple nominee accounts. The second involved a private company that supposedly was going to develop an internet search engine named Find.com. About $1.5 million was raised from investors based on representations that the funds would be used to develop the engine and that only small commissions would be paid. Both representations were false. Portions of the investor funds were misappropriated. Following a jury trial each defendant was convicted on 12 counts of conspiracy, mail fraud, wire fraud and securities fraud. This week the court sentenced each Defendant to serve 10 years in prison followed by three years of supervised release. Each Defendants was ordered to pay restitution of $1,496,733. The Court also entered a forfeiture order as to each Defendant in the amount of $1,953,974.
Insider trading: U.S. v. Bonthu, No. 11-cr-00237 (N.D. Ga. Filed June 28, 2018). Sudhakar Reddy Bonthu was a software development manager and a member of Equifax’s Global Consumer Services team. In the summer of 2017 the manager was given information regarding the massive breach by his employer, although he was not specifically told about the hack. Indeed, the firm took steps to cabin that information. On August 25, 2017, however, Mr. Bonthu was told that the target date for publically announcing what happened was September 6, 2017. Through his position at the firm Mr. Bonthu learned other information about the breach. On September 1, 2017 Mr. Bonthu purchased 86 put options in Equifax stock. The expiration date was September 15, 2017. His employer announced the data breach six days later on September 7, 2017. The share price of Equifax stock fell the next day. Mr. Bonthu was able to exercise his put options, realizing a profit of more than $75,000. This week Mr. Bonthu pleaded guilty to insider trading charges. Sentencing is scheduled for October 18, 2018. See also SEC v. Bonthu, (N.D. Ga. Filed June 28, 2018).
Insider trading: The Australian Securities and Investment Commission charged Gregory Campbell, a former executive of Healthe Care Pty, with insider trading in the shares of Pulse Health. That firm announced a takeover bid for his former employer on October 20, 2016. On October 7, 2016 the executive purchased 350,000 shares of Pulse Health; the next week he purchased another 300,000; and shortly thereafter another 392,257. The hearing is set for October 10, 2018.
Short selling: The Securities and Futures Commission secured the conviction of Hui Kwok Piu and fined him $231,000 for illegal short selling in the shares of Coslight Technology Group Limited. The agency alleged that on 33 occasions between August 3 and 25, 2015 Mr. Hui placed orders to sell Coslight shares through his account at his employer, China Goldjoy Securities Limited, when he did not have sufficient quantities of the shares to sell. He later bought back the shares to cover his short sales, making profits of $226,307.
Short selling: The SFC previously charged Wong Hung, a licensed representative, with illegal short selling on 20 occasions between January 6 and 20 2012 in five stocks. The charges were based on the allegation that he sold more shares than he held. The court found him not guilty, concluding that Mr. Wong had placed a large number of orders each day, did not make any profit and was in probability careless in placing the orders.
Report: The SFC released its annual Asset and Wealth Management Activities Survey. The report shows that the assets and wealth management in Hong Kong amounted to over $24 billion (U.S. $3.1 billion). Overseas investors remained a major source of funding for the asset and wealth management business (here).