The FCPA and insider trading were the primary issues in
securities enforcement litigation this week. The largest FCPA sting case in
history was dismissed by the DOJ following two ill-fated trials. The set back
for the DOJ in their enforcement efforts comes at an interesting time since the
Department is writing guidance on the application of the Act which should be
issued later this year.
The filing this week of a pair of expert network insider
trading cases by the DOJ and the SEC put that investigation back in the
headlines. Criminal and civil charges were brought against a network operation.
In addition, one of that person's reputed sources of inside information pleaded
SEC Enforcement: Court decisions
Investment fund fraud: SEC v. Bard, Civil
Action No. 1:09-cv-1473 (M.D. Pa.) is an action brought against Robert Bard and
his company, Vision Specialist Group, LLC alleging violations of Securities Act
Section 17(a), Exchange Act Section 10(b) and Advisers Act Sections 206(1) and
206(2). The complaint alleged that Mr. Bard made false statements to his
investment advisory clients, assuring them that their funds would be invested
in safe instruments such as bonds and money market funds. In reality he lost
much of the investor money in risky investments. In an earlier ruling, the
court concluded that the defendants made false statements to 33 of their
advisory clients on 146 separate occasions about their investments. This week the
court imposed a $2.5 million civil penalty against the defendants on a joint
and several basis.
SEC Enforcement: Filings and settlements
Investment fund fraud: SEC v. Verde
Retirement LLC, Case No. 3:12-cv-00445 (S.D. Cal. Filed Feb.
21, 2012) is an action against Steven Hamilton, Verde Retirement LLC, Verde FX
Nevada, LLC and Covenant Capital Partners. The complaint alleges that from 2007
through 2011 Mr. Hamilton raised about $1.6 million from investors based on
various misrepresentations regarding how their money would be invested,
including that it would be put in real estate loans secured by deeds of trusts
or other instruments. All the representations were false, according to the
complaint. In fact Mr. Hamilton diverted the funds to his personal use and to
repay certain investors, according to the court paper. The complaint alleges
violations of Securities Act Sections 5 and 17(a) and Exchange Act Section
10(b). The case is pending.
Misappropriation: SEC v. Ming Zhao, Case
No. 12 CV 1316 (S.D.N.Y. Filed Feb. 22, 2012) is an action against the former
chairman and CEO of Puda Coal, Inc., Ming Zhao, and his successor, Liping Zhu.
Puda Coal, Inc. is a Delaware corporation with its principal office in the
Peoples Republic of China or the PRC. Its shares were traded on the NYSE from
September 2009 through August 2011. The primary asset of the company was Shaux
Coal, a coal mining company that was an indirect 90% owned subsidiary. Shortly
before an announcement on September 28, 2009 that Shanxi Coal would receive a
lucrative contract from a provincial government, defendant Zhao transferred all
of the company's interest in Shanxi Coal to himself. The next year he
transferred 49% of the coal company to CITIC Trust Co., a Chinese private
equity fund controlled by a large state owned entity. Mr. Zhao also arranged to
have Shanxi Coal pledge 51% of its assets to CITI Trust as collateral for a
loan of about $370 million. The Chinese entity which held the shares of the
coal company then sold interests in the holding vehicle to investors in the PRC
while Puda conducted two public offerings in the U.S., selling shares in what
was then an empty shell to the public. When the fraud was uncovered the share
price of Puda dropped from $17 to a few cents. The Commission's complaint
alleges violations of Securities Act Section 17(a) and Exchange Act Sections
10(b), 13(a), 13(b)(2)(A), 12(b)(2)(B), 13(b)-5 and 14(a). The action is
Insider trading: U.S. v. Kinnucan, 12-mj-00424
(S.D.N.Y. Unsealed Feb. 17, 2012) and SEC v. Kinnucan, Civil Action
12-cv-01230 (S.D.N.Y. Filed Feb. 17, 2012) are actions against John Kinnucan,
president of Broadband Research Corporation, an expert network company. Both
cases focus on June and July 2010 when Mr. Kinnucan is alleged to have obtained
information from an employee of F5 Networks, Inc. that the quarterly revenue
for the company would exceed street expectations. Mr. Kinnucan is alleged to
have immediately furnished this information to several clients at least three of
whom traded making profits or avoiding losses of about $1.58 million. In the
criminal case Mr. Kinnucan has been charged with one count of conspiracy to
commit securities fraud, one count of conspiracy to commit wire fraud and two
counts of securities fraud. In the civil case Mr. Kinnucan and the firm have
been charged with violating Exchange Act Section 10(b). Mr. Kinnucan has been
arrested. Both cases are pending.
Insider trading: Donald
Barneston, a former SanDisk Corporation executive, pleaded guilty to one count
of conspiracy to commit securities and wire fraud in connection with the
charges against John Kinnucan. Mr. Barnetson is alleged to have furnished
inside information to Mr. Kinnucan in July 2010 about the future earnings of
his company and again in September 2010 about confidential negotiations
regarding a dispute between SanDisk and Apple Inc.
U.S. v Goncalves, No.
09-cr-335 (D.D.C.) is the African sting FCPA cases. The action was brought
against 22 individuals based on the largest FCPA sting operation in history. To
facilitate trial the defendants were divided into groups. The first trial ended
in a hung jury and the second is a split decision with two defendants being
acquitted and a hung jury as to the others. The DOJ this week decided to
dismiss all of the remaining charges as to all defendants.
Guidance: Senators Amy
Klobuchar and Chris Coons sent a letter dated February 15, 2012 to Attorney
General Eric Holder regarding the forthcoming guidance on the FCPA. The letter
urges the attorney general to give clear guidance on the application of the Act
including: on the definition of foreign official; the benefits from
self-reporting and cooperation; the scope of internal investigations required
to cooperate; the requirements for adequate compliance programs; the
methodology used to calculate fines and disgorgements; the extent to which
companies may be held liable for the actions of subsidiaries and predecessor
entities; the level of intent required for liability; the methodology used to
determine if a payment is a reasonable and bona file expenditure directly
related to the promotion of products; and the applicability of the FCPA to
transactions of de minimis value.
A ₤1.5 million fine was imposed on Santander for failing
to properly identify in its customer literature the extent to which certain
structured products were covered by the Financial Services Compensation Scheme.
From late 2008 through January 2010 Santander sold ₤2.7 billion of the
products, including ₤1.2 billion after June 2009 when it concluded the coverage
would be limited. Santander acknowledged that it could have changed its product
literature and training materials more quickly to reflect the FSCS position
accurately. The customers here did not suffer any loss.
For more cutting edge commentary on
developing securities issues, visit SEC Actions, a
blog by Thomas Gorman.
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