This Week In Securities Litigation (Week ending January 15, 2016)

The Commission resolved actions with SAC Capital founder Steven Cohen and the former Chairman of Dewey & Leboeuf in addition to filing settled actions against Goldman Sachs and State Street. The agency also filed another insider trading case as an administrative proceeding and actions centered on undisclosed conflicts, failure to supervise and the market crisis.

SEC

Examinations: OCIE announced its 2016 examination priorities (here)

SEC Enforcement – Filed and Settled Actions

Statistics: During this period the SEC filed 2 civil injunctive cases and 5 administrative proceeding, excluding 12j and tag-along proceedings.

Short sales systems: In the Matter of Goldman, Sachs & Co., Adm. Proc. File No. 3-17053 (January 14, 2016). This action centers on Goldman’s automated system for handling “locates” – the Regulation SHO requirement that the firm have reasonable grounds to believe the security can be borrowed to cover a short sale. The firm had a system tied to select inventory from large institutional customers. When that inventory depleted, typically toward the end of the day, the system labeled the request “pending.” As demand for “locates” increased, the firm essentially reprocessed the “pending” items through the system which had already indicated it had been depleted. In addition, Goldman’s records were deficient because they did not differentiate between those requests initially processed through the systems and those made after a pending response was received. The Order alleged violations of Rule 203(b)(1) of Regulation SHO and Exchange Act Section 17(a). To resolve the proceeding Goldman consented to the entry of a cease and desist order based on the Section and Rule cited in the Order and to a censure. The firm will also pay a $15 million fine.

Pay-to-play: In the Matter of State Street Bank and Trust Company, Adm. Proc. File No. 3-17055 (January 14, 2016); In the Matter of Vincent J. DeBaggis, Adm. Proc. File No. 3-17054 (January 14, 2016). Respondent is a subsidiary of State Street Corporation. Mr. DeBaggis was formerly a senior vice president and head of public funds at the firm. Beginning in early 2010 Mr. DeBaggis entered into an arrangement with Amer Ahmad, the Deputy Treasurer of the State of Ohio, to make illicit cash payments and political campaign contributions in exchange for lucrative custodian contracts made by the State. Over about a one year period the bank paid approximately $160,000 in purported lobbying fees, a substantial portion of which were kickbacks to Ahmad. With the assistance of State Street lobbyist Robert Crow, Mr. DeBaggis arranged for at least $60,000 in political contributions to the Treasurer’s election campaign. State Street was awarded contracts for three Ohio pension funds which generated millions of dollars of revenue for the institution. The actions were taken in violation of firm policies. State Street became aware of the issue in April 2010. Over the next few months newspapers ran articles on the subject. Following the issuance in January 2011 of a document subpoena by DOJ the firm launched an internal investigation and later took remedial steps and cooperated with the staff. The Order as to the Bank alleges violations of Exchange Act Section 10(b). To resolve the proceeding the Bank consented to the entry of a cease and desist order based on the Section cited. It also agreed to pay a penalty of $8 million. The Order as to Mr. DeBaggis also alleged violations of Exchange Act Section 10(b). He resolved the action, agreeing to the entry of a cease and desist order based on the Section. In addition, he agreed to pay disgorgement of $150,000, prejudgment interest and a civil penalty of $100,000. See also SEC v. Crowe, Civil Action No. 2:16-cv-00036 (S.D.Ohio Filed January 14, 2016)(related action against Mr. Crowe which did not settle).

Conflicts: In the Matter of Everhart Financial Group, Inc., Adm. Proc. File No. 3-17051 (January 14, 2016) names as Respondents EFG, a registered investment adviser, its founder and majority owner, Richard Everhart, and its COO and minority owner, Matthew Romero. The proceeding centers on the selection of mutual fund shares from one complex by the adviser. The complex offered two classes of shares, one which carried 12b-1 fees and one which did not. Despite significant differences in price, some advisers almost always put individual non-retirement investor funds in shares that charged a 12b-1 fee which was paid to the adviser’s owners. This created an undisclosed conflict of interest. The adviser also failed to have annual compliance reviews for several years and made insufficient disclosures regarding the fees. The Order alleged violations of Advisers Act Sections 204, 206(2) 206(4) and 207. To resolve the proceeding the adviser agreed to implement a series of undertakings, including the retention of a consultant. In addition, the adviser consented to the entry of a cease and desist order based on Sections 204, 206(2), 206(4) and 207 and a censure. Mr. Everhart consented to a cease and desist order based on the same Sections, except 207, and to a censure. Mr. Romeo consented to the entry of a cease and desist order based on Sections 204, 206(2) and 207 and a censure. The three Respondents, on a joint and several basis, will pay disgorgement of $201,985.66 and prejudgment interest. The adviser will pay a penalty of $80,000, while Mr. Everhart will pay $40,000 and Mr. Romeo $20,000.

Market crisis: SEC v. Bailey (N.D. Fla. Filed January 13, 2016) is an action centered on a fraud at Superior Bank and its holding company. Named as defendants are: Charles Bailey, CEO and chairman of holding company Superior Bancorp; William Caughran, general counsel of the bank and its holding company; John Figlewski, former president; George Hall, president of the bank’s Florida operations; Dewaye Maddox, market executive of the bank; William McKinnon, senior vice president; Robert Parrish, senior vice president and commercial loan officer; Kenneth Pomeroy, president of the Central Florida region for a period; Charles Roberts, president of the Central Florida region; Charles Scott, a credit officer; and James White, CFO of the holding company. From 2006 through 2011 the defendants engaged in an accounting fraud centered on its loan portfolio. Specifically, when it became apparent that numerous loans were backed by collateral that was insufficient to protect the bank, and that a number of borrowers for the bank’s largest loans would no longer make payments, a cover-up commenced. Defendants engaged in various schemes to extend or roll-over the loans. By taking these actions the bank avoided properly classifying the loans as impaired and increasing the Allowance of Loan and Lease Losses. Additional fraudulent actions were taken with respect to the bank’s loans held for sale and its treatment of a deferred tax asset. These schemes resulted in the filing of false reports with the Commission and concealing the true financial condition of the bank. For example, in fiscal year 2009 the bank’s pretax income was misstated by 71%. The next year its pretax income was misstated by about 54%. The complaint alleges violations of Securities Act Section 17(a) and Exchange Act Sections 10(b), 13(a), 13(b)(2)(A), 13(b)(2)(B), 13(b)5, 14(a) and 20(a). Each of the defendants settled except Messrs. Pomeroy and McKinnon. Each of the settling defendants agreed to be barred from serving as an officer or director of a public company. Mr. Baily will pay a penalty of $250,000; Messrs. White and Maddox, $200,000 each; Mr. Caughran, $150,000; and Messrs. Roberts and Parris $100,000 each. Messrs. Scott, Figlewski and Hall have each agreed to bifurcated settlements in which the court will determine financial penalties at a later date.

Insider trading: In the Matter of Reid A Hackney, CPA, Adm. Proc. File No. 3-17-47 (January 12, 2016). Mr. Hackney served as the Chief Financial Officer and Senior Vice President of the Dress Barn subsidiary of Ascena Retail Group, Inc. from November 2011 through March 2012. On January 1, 2012 Mr. Hackney was notified in an email of the weekly and monthly sales figures for the firm’s subsidiaries. The comparable sales for the month of December had increased 12%. Two days later Mr. Hackney purchased 15 Ascena call options. On January 5, 2012 the firm issued a press release announcing strong holiday sales and raising EPS guidance. The stock closed up 5.64%. Mr. Hackney sold his call options, realizing profits of $3,300. By late March 2012 the company had taken substantial steps toward a cash tender offer for all of the shares of Charming Shoppers common stock. On or before March 27 Mr. Hackney became aware of the proposed deal. He purchased 350 Charming Shoppers call options.Following the deal announcement on May 2, 2012 the options were sold. Mr. Hackney realized profits of $44,750. The Order alleges violations of Exchange Act Sections 10(b) and 14(e). To resolve the proceeding Mr. Hackney consented to the entry of a cease and desist order based on the Sections cited in the Order. He also agreed to the entry of an order denying him the privilege of appearing and practicing before the Commission as an accountant. He was barred from serving as an officer or director for a period of five years. Mr. Hackney will pay disgorgement of $48,050, prejudgment interest and a penalty equal to the amount of the disgorgement.

Financial fraud: In the Matter of Miller Energy Resources, Inc., Adm. Proc. File No. 3-16729 (January 12, 2016) is a previously filed proceeding naming as Respondents the firm, Paul Boyd, David Hall and Carlton Vogt. The Order alleged that the firm acquired certain oil and gas assets for $2.25 million in cash, along with the assumption of certain liabilities it valued at about $2 million in a bankruptcy auction. Subsequently, the company valued those assets at $480 million and recognized a one-time “bargain purchase” gain of $277 million for its third quarter of January 2010 and the fiscal year ended April 2010. The Order alleges that the firm failed to properly value the assets in accord with GAAP and violated Securities Act Sections 17(a)(2) and (3) and Exchange Act Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B). To resolve the proceeding the company consented to the entry of a cease and desist order based on the Sections cited in the Order. It also agreed to pay a penalty of $5 million.

Financial fraud: SEC v. Davis, Civil Action No. 14-cv-01528 (S.D.N.Y.) is a previously filed action against Steven H. Davis, formerly the chairman of Dewey & LeBoeuf, LLP. The complaint alleged that in 2008 and 2009 Mr. Davis was aware of, and supported, efforts by employees and officers of the firm to materially falsify the firms financial statements in order to meet certain covenants with lenders. In 2010 he authorized the use of those financial statements in connection with a $150 million private placement. To resolve the case Mr. Davis consented to the entry of a permanent injunction based on Securities Act Section 17(a) and Exchange Act Section 10(b). The judgment also prohibits Mr. Davis from acting as an officer or director of any issuer and provides for the payment of disgorgement, prejudgment interest and penalties to be determined. See Lit. Rel. 23443 (January 11, 2016).

Failure to supervise: In the Matter of Steven A. Cohen, Adm. Proc. File No. 3-15382 (January 8, 2016). This is the settlement of the failure to supervise charge brought against Mr. Cohen, the founder of SAC Capital, built on two criminal insider trading cases that were then pending against current or former employees of the firm. In one case a former employee – Matthew Martoma — was convicted and the case is on appeal. In the other a then current employee — Michael Steinberg – the case was dropped after conviction based on Newman. In the settlement Mr. Cohen consented to the entry of an order which precludes him from being associated in a supervisory capacity with any broker, dealer, or investment adviser until December 31, 2016. He also agreed to comply with certain undertakings. Those include the retention of a consultant, the adoption of the consultant’s recommendations and the retention of a monitor until the termination of the bar order. No cease and desist order or penalty was imposed.

Australia

Falsification of documents: The Australian Securities and Investment Commission banned Ben Cheung, an authorized representative of Australian New Zealand Banking Group from the securities financial services business for ten years. The action was based on forging client signatures and creating false documents.

Hong Kong

Concealed trading: The Securities and Futures Commission banned Steven Barnett, formerly affiliates with two firms, from reentering the industry for 10 months. The action was taken after he was found to have concealed a personal securities trading account from his employers.

U.K.

Bribery: Printing company Smith and Quzman Ltd. was sentenced following its conviction for making corrupt payments of £395,074 to public officials for business contracts in Kenya and Mauritania following a Serious Frauds Office investigation. The firm was fined a total of £2.2 million. The conviction was based a verdict fining violations of the Prevention of Corruption Act of 196.