What is Sauce for the Goose. . .

If a private litigant or its counsel were to lose critical documents in a lawsuit, or fail to take reasonable steps to preserve such documents, they would have to defend against charges of “spoliation of evidence” and face potential sanctions ranging from fines to adverse evidentiary presumptions, or even the entry of a default verdict. What happens when the NASD loses all the evidence submitted at an NASD arbitration proceeding and the tapes of the hearing? Not much.

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Seventh Circuit Reaffirms: Claims "Sounding In Fraud" Must Be Plead With Particularity

Last week the Seventh Circuit Court of Appeals affirmed dismissal of a complaint that failed to plead fraud and fraud-based claims with the heightened particularity required by Federal Rule of Civil Procedure 9(b). In a nutshell, the plaintiff, a former principal of a stock trading business, sued an investor in a new company started by plaintiff's former partners, alleging the investor colluded with the former partners to defraud plaintiff of his interest in the new company; plaintiff asserted claims for alleged violations of RICO, tortious interference with economic advantage, tortious interference with fiduciary relationship, civil conspiracy, and negligent spoliation of evidence. See Borsellino v. Goldman Sachs Group, Inc., 2007 WL 509385 (7th Cir., February 20, 2007).
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More Regulatory Focus on Annuity Sales to Seniors

Annuity sales practices continue to be a hot regulatory topic.  As Chris reported on this blog last week, the NASD has slapped Raymond James Financial with a $2.75 million fine for deficient supervision in the sales of annuities and mutual funds to seniors and other risk-adverse customers.  www.nasd.com/PressRoom/NewsReleases/2007NewsReleases/NASDW_018681. Continue Reading...

NASD Looking For Comments

Yesterday the NASD released a Notice to Members soliciting comments on two proposed rule changes. The proposed amendments appear driven by the NYSE and NASD's ongoing efforts to consolidate member regulation into a single SRO with the expectation and anticipation of reducing regulatory redundancy and inefficiency. Continue Reading...

Failure To Supervise 1100 Branch Managers Adds Up To 2.75 Million Dollar Fine For NASD Member Firm

Announced yesterday, the NASD fined Raymond James Financial Services, Inc. $2.75 million for failing to adequately supervise sales activities of 1000 producing branch managers dispersed throughout the United States.

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Investors Blast SEC Regarding Proposed Rule Limiting Investments in Hedge Funds

The SEC is currently accepting comments regarding a proposed rule change that would raise the minimum level of wealth required for natural persons to invest in most hedge funds. According to the SEC, the purpose of the rule is to provide an “objective and clear standard” for determining whether a purchaser has sufficient knowledge and financial sophistication to evaluate the merits and bear the economic risk of such an investment. The SEC is concerned that too many unsophisticated investors are risking too much of their money in high-risk, unregulated hedge funds.

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Investors Get Added Level of Protection With New "Best Practices" Guide

The Securities Industry and Financial Markets Association (SIFMA) has published “best practices” for the 650 financial services firms that are members of the association. The best practices are aspirational guideposts to assist the financial services industry in achieving the highest professional standards in consideration of the high level of trust investors place in these firms.

The best practices cover everything from an investor’s rights to the internal management of a firm to staying in compliance. Some of its more interesting provisions include a requirement that firms disclose significant conflicts of interest to investors. Additionally, another provision provides for firms to provide investors with an analysis of the risks and benefits of alternative investment options. 

Read more about the best practices in an article on FinanceCouncil.com

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Backdating Investigations Ramp Up

A front page story in the Wall Street Journal today highlights fast-moving backdating investigations across the country, as state and federal prosecutors and regulators alike wade through investigations of the 140 or so companies with options issues. 

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Conspiracy of Fools by Kurt Eichenwald

Conspiracy of Fools by Kurt Eichenwald is a fast-paced book about the rise and fall of Enron. Like the unfolding of a Greek tragedy, Eichenwald tells the tale of a company that became one of the largest and fastest growing public companies in the United States and then, through mismanagement, greed, and criminal fraud, imploded in the wake of media, regulatory, Congressional and criminal investigations. Following Bob Woodward's model in Veil about the CIA and his books on Iraq, Eichenwald tells the story through first person accounts, as if he can read the minds of the persons involved as the action unfolds. It is an incredible story, with detailed accounts of:

  • Ken Lay and his cozy relationships with President George G. W. Bush and President George W. Bush and other federal and state politicians;
  • The internal battles at Arthur Anderson between the rainmakers who wanted to mollify their biggest client and the technicians who raised questions about the legitimacy of the off-books special entities, and the mind numbing volume of document destruction that took place very late in the game; 
  • The lawyers and their meek deference to management;
  • Andrew Fastow, the CFO and architect of the special entities, and the millions he made without disclosure to the company of the public;
  • The failure of the Officers and the Board of Directors to address the conflicts of interest and other red flags concerning these off-books special entities.

This is the best investigative story about business fraud I have read since Michael Lewis' Liar's Poker and James Stewart's Den of Thieves. As the title indicates, Eichenwald appears to conclude that the fall of Enron was more the result of gross incompetence than criminal fraud.

Delaware Judge Allows Derivative Suit in Backdating Case to Proceed - Have the Flood Gates Been Opened?

Influential Delaware Chancery Court Judge William Chandler issued a strongly worded opinion last week that securities insiders believe will open the door for a flood of new shareholder derivative lawsuits against companies alleged to have backdated stock options. Until now, there have only been a handful of opinions on derivative suits in backdating cases, and in general they have swung in favor of defendants.

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SEC Opens Insider Trading Probe into Alleged Front-Running

The New York Times ran a front page story this week revealing that the SEC has begun a broad examination into whether Wall Street bank employees are providing tips about big trades to favored clients, such as hedge funds, in an effort to gain favor with those clients. 

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"Empty Voting" Catches Regulators' Attention

Reuters recently ran an article examining the practice of “empty voting.” The practice of “empty voting” entails borrowing shares prior to a record date, which then gives the borrower voting rights. Once the record date has passed, the borrower returns the shares and effectively controls a large number of votes without a continuing economic interest in the company.

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