Securities Law Blog

Robert Khuzami is making big moves in his first year at the helm of the Securities and Exchange Commission (SEC)’s enforcement division. The director has helped to lead the largest overhaul of the SEC in the last thirty years. Trying to move on from the SEC’s devastating missteps surrounding the Madoff scam, the changes in the enforcement division will seek to stop financial criminals in their tracks.

Khuzami’s new “whistle-blower initiative” aims to catch crooks before they have caused too much damage. The initiative is directed at individuals involved in perpetrating the scams. For those who participate in fraudulent schemes but now wish to turn in their co-conspirators, the SEC is offering escalated levels of protection. The whistle-blower’s help will be taken into consideration when taking enforcement action in what the SEC is calling “cooperation agreements.” These agreements could exempt the whistle-blower from SEC suits and provide legal help if the U.S. Department of Justice were to launch its own criminal case.

Another part of Khuzami’s revitalization efforts include pushing for legislation to add whistle-blower payments and protections to U.S. securities laws. The proposed legislation would offer big economic incentives for securities tattletales. If passed into law, an individual who provided crucial information that led to the capture of a felon could collect an award worth up to 30% of the amount regulators later recover from the scam.

According to Khuzami, having an insider will make uncovering the well-hidden tracks of white-collar criminals much easier.

“People who engage in a lot of white-collar crimes are often planning their defense at the same time as they are planning their offense,” Khuzami said.

The SEC restructuring comes after one of the worst years for securities fraud. According to “Select SEC and Market Data 2009”, the SEC:

*Obtained orders in SEC judicial and administrative proceedings requiring securities violators to disgorge illegal profits of approximately $2.09 billion and to pay penalties of approximately $345 million.

*Sought emergency relief from federal courts in the form of temporary restraining orders to halt ongoing fraudulent conduct in 71 actions, and sought asset freezes in 82 actions.

*In SEC-related criminal cases, prosecutors filed indictments, informations, or contempts in the 2009 fiscal year in 154 cases.

The regulatory agency has never before caught as many crooks or ordered as much money returned to investors. The numbers also reflect that millions of investors lost billions of dollars before the crooks were caught, and will be lucky to recover what little they can.

What could derail the SEC and Khuzami’s entire initiative? The current federal prison sentence being served by former international banker, Bradley Birkenfeld. Birkenfeld turned in his bosses at Swiss banking agent UBS, leading to one of the largest IRS settlements in history. Supporters of Birkenfeld are seeking a pardon for him as a reward for his cooperation with the government. Despite his cooperation, the Justice Department sought prison time for Birkenfeld, saying he turned in his superiors but did not disclose his own role in helping one of his clients.

Although Khuzami had no role in the Birkenfeld case, the SEC could face problems in launching a successful whistle-blower program while one whistle-blower is sitting in federal prison.

In an effort to create more clarity for financial services firms surrounding the use of social media networks, the Financial Industry Regulatory Authority (FINRA) released a Regulatory Notice on January 25, 2010 entitled “Guidance on Blogs and Social Networking Web Sites”.

While the industry regulator does not codify any direct actions that need to be taken by financial firms, they do make several suggestions that could protect a firm’s liability when communicating over the internet. Organized in a Question and Answer format, FINRA sheds light on potential compliance issues and offers possible policies and procedures that firms could adapt in order to deal with supervisory and recordkeeping responsibilities.

The main message for firms throughout the Notice seems to be, if you plan on using it, you better be able to supervise it, we don’t care how or what you use to do it but it better be done and it better be done right.

Some key points in the Notice:

*If a firm communicates or allows its employees to communicate through social media sites, it is the firm’s responsibility to keep records of communications that relate to “business as such”. Firms need to ensure that associated personnel using social media sites for business purposes are adequately supervised, have necessary training in such activities, and do not present undue risk to investors.

*Requirements set forth by Federal securities laws and FINRA rules may be triggered when registered representative’s communications include recommending specific investment products. Additional disclosures should be made available to the customer to prevent any skepticism that a firm’s associate was misleading in anyway. FINRA suggests that firms should prohibit all interactive electronic communications that recommend a specific product unless a registered principal has previously approved the content.

*For static information, which could include profile, background or wall information, on social networking sites that are established by the firm or a registered representative, a registered principal of the firm must approve all information before it is posted. It is advised that these approvals also be documented.

*For interactive electronic communication, it is not required to have a registered principal’s approval, but it still must be supervised by the firm. FINRA suggests that firms adopt supervisory procedures similar to those used for electronic correspondence. It is up to the firm to develop policies that address communication liability and ensure that they are “reasonably designed to ensure that interactive electronic communications do not violate FINRA or SEC rules”.

*It is also the firm’s responsibility to prohibit personnel from engaging in business communication on social media sites that are not subject to firm’s supervision, and to take disciplinary action if firm policies are violated.

The overall goal of the Notice is to protect investors from misleading representations and allow firms to take part in the benefits of social media while effectively and appropriately supervising their associated persons’ involvement with these sites.

The collapse of Bernard Madoff’s estimated $65 billion dollar Ponzi scheme in 2008, was the precursor to the “Year of the Ponzi” in 2009. Defrauded investors saw an estimated $16.5 billion dollars disappear as more than 150 pyramid schemes unraveled, according to the Associated Press analysis of scams in all fifty states. Madoff’s very public decline brought a heightened public awareness and increased scrutiny to Ponzi schemes. But he wasn’t the only securities fraudster who made headlines.

Following the breakdown of Ponzi schemes nationwide, there was a drastic increase in federal securities fraud investigations opened in 2009. The FBI alone increased its securities fraud investigations by 1,750 from 2008. The Securities and Exchange Commission (SEC)’s Ponzi scheme investigations now make up 21 percent of the SEC’s enforcement workload. The Commodity Futures Trading Commission more than doubled its amount of civil actions in Ponzi cases this past year.

In its continuing effort to avoid being burned by another major Ponzi scheme, the SEC is developing new investigative units to improve its enforcement. A major focus will be to encourage companies and individuals to cooperate more closely in providing information, and to better analyze tips and complaints the SEC receives. The cooperation efforts will include similar incentives that have been used by the Justice Department in its criminal investigations. Included in these incentives will be written cooperation agreements under which SEC attorneys recommend leniency for parties providing information in their proposals to the SEC commissioners.

With the surge of federal fraud investigations in 2009 and those that date back to the credit crisis in 2007, an increase in federal prosecutions of financial crimes is expected to follow in 2010.

Last week saw the first FINRA arbitration claim filed in connection with promissory notes issued by Medical Capital Holdings Inc. The industry expects to see many more such arbitrations in the coming months. On July 16, 2009, the Securities and Exchange Commission filed an emergency court action seeking to enjoin halt an alleged $77 million offering fraud perpetrated by defendants Medical Capital Holdings, Inc. ("MCHI"), Medical Capital Corporation ("MCC"), Medical Provider Funding Corporation VI ("MP VI"), Sidney M. Field, and Joseph J. Lampariello. The SEC's complaint, filed in federal court in Orange County, California, alleges that the defendants defrauded investors by misappropriating about $18.5 million of investor funds and by misrepresenting to investors that no prior offerings had defaulted on or been late in making payments to investors of principal and/or interest.

MCHI is a medical receivables financing company that operates through MCC, its wholly-owned subsidiary, to administer several Special Purpose Corporations ("SPCs"), including MP VI. Field and Lampariello are directors of MCHI, MCC, and MP VI, with Field also serving as the defendant entities' CEO and Lampariello serving as their president and COO. The SEC's complaint alleges that, since 2003, MCHI, MCC, Fields, and Lampariello have raised over $2.2 billion through offerings of notes in MP VI and five other similarly structured SPCs. As of March 31, 2009, MP VI and its affiliated SPCs had over $1.2 billion in notes outstanding, and since August 2008, five of the SPCs have been in default or late in paying principal and/or interest on $992.5 million in notes.

As alleged in the SEC's complaint, the defendants defrauded investors by misappropriating approximately $18.5 million of the $76.9 million raised through the sale of MP VI notes to pay administrative fees to MCC. The complaint alleges that these fee payments were contrary to representations in MP VI's original offering documents, which stated that administrative fees would not be paid out of proceeds from the sale of notes. The complaint also alleges that these fee payments were contrary to representations in MP VI's May 27, 2009 supplemental offering documents that less than $4 million had been used for purposes other than purchasing accounts receivables.

In addition, the SEC's complaint alleges that the defendants defrauded investors by misrepresenting in MP VI's offering documents that none of the SPCs affiliated with MP VI had defaulted on or been late in making payments of principal and/or interest to their respective investors. In fact, two MP VI-affiliated SPCs began defaulting on interest and/or principal payments in the same month that MP VI began its offering, and recently two other MP VI-affiliated SPCs have defaulted or been late in making interest payments.

The SEC's action seeks emergency relief, including an order temporarily enjoining all defendants from future violations of the antifraud provisions and freezing the assets of and appointing a temporary receiver over MCHI, MCC, and MP VI. The SEC also seeks preliminary and permanent injunctions, disgorgement, and civil penalties against all defendants.

Claims against broker-dealers who recommended the MCHI notes no doubt will focus on those firms’ due diligence of the sponsor and offerings.

S.Cheryl Bauman and Atlanta-based broker-dealer J.P. Turner & Company, LLC, were charged with having violated Rule 30(a) of Regulation S-P ("Safeguard Rule") between 2001 to 2006. The SEC specifically noted that JP Turner:

• failed to failed to adopt and implement policies and procedures designed reasonably to safeguard customer records and information as required by Rule 30(a);
• because it allegedly never complied with Rule 30(a), among other things, the firm never gave its managers or brokers guidance on how to protect customer records or how to dispose properly of such records when they no longer are needed.
• in September 2006, the account records of over 5,000 brokerage customers were left abandoned for several weeks at curbside outside the former home of a JP Turner RR in Alpharetta, GA.

About J.P. Turner & Co. and Ms. Bauman. The B/D has been registered with the SEC since 1997. It has 488 brokers, and over 150 branches located throughout the U.S. During the relevant period, Ms. Bauman served as either chief compliance officer or assistant chief compliance officer. As a compliance officer, the SEC notes that Ms. Bauman had been delegated responsibility for ensuring that the firm complied with the above Safeguard Rule requirements. Having failed to carry out those responsibilities, Ms. Bauman herself was herself deemed to have violated the Safeguard Rule.

Abandoned Customer Records. JP Turner's failure to comply became apparent in September 2006. In connection with a residence change, a then-RR placed records of more than 5,000 current and former JP Turner customers curbside at his residence in suburban Atlanta, for pick up by a trash hauler with whom he had contracted to retrieve and destroy the records. The customer records contained names, addresses, DOBs, SSNs, bank account numbers and account statements. However, the hauler never collected the records, which remained abandoned until JP Turner retrieved them two weeks later. To date, there's been no indication any customer has become a victim of identity or other financial crime.

Ms. Bauman, among other things, will cooperate fully with the SEC in any and all investigations, litigations or other proceedings relating to or arising from these matters. [SEC Administrative Proceeding 3-13551, 7/17]