Author Archives: David Weintraub

The SEC charged Fabrizio Neves and Jose Luna, former brokers in Miami, with fraud for overcharging customers approximately $36 million by using undisclosed, excessive fees on structured notes transactions.  The SEC alleged that Neves conducted the scheme while working at LatAm Investments, LLC, a broker-dealer that is no longer in business.  The affected customers were two Brazilian public pension funds, and a Colombian institutional investor.

According to the complaint, from November 2006 to September 2009, Neves negotiated with several U.S. and European commercial banks to structure 12 notes on his customers’ behalf.  Neves, as the funds’ portfolio manager, was authorized to make all trading decisions on the funds’ behalf.  Instead of purchasing structured notes worth approximately $70 million, Neves engaged in a scheme that included trading the notes with one or more accounts in the names of offshore nominee entities that he and Luna controlled, to later buy the same notes at an excessive, baseless mark up price for their customers.  Respondents also altered the structured notes’ term sheets by whiting out or electronically cutting and pasting the markup amounts, over the actual price and trade information, and providing the forged documents to clients.  As a result, the Brazilian funds and the Colombian investor were charged markups as high as 67%, totaling approximately $36 million in overpaid, undisclosed, excessive fees.  Both Neves and Luna enjoyed inflated salaries and commissions stemming from their scheme.

The SEC also instituted an administrative proceeding against LatAm’s former president, Angelica Aguilera, alleging that she failed to reasonably supervise Neves and Luna.  The SEC said, “Neves lined his pockets with millions of dollars by charging customers exorbitant, fraudulent markups…Neves and Luna thought they could hide their scheme and evade regulators by using offshore nominee companies and forged documents, but they thought wrong.”

Without admitting or denying the charges, Luna has agreed to pay disgorgement of $923,704.85, prejudgment interest of $241,643.51, plus a penalty amount to be determined.

The SEC charged Manouchehr Moshayedi, chief executive officer and chairman of the board of directors of STEC, Inc., with insider trading in a secondary offering of STEC shares.  STEC is a California based company that designs, manufactures and markets computer storage devices.   According to the complaint, Moshayedi engaged in an insider trading scheme by making false and misleading representations and omissions in connection with the sale of 9 million shares of STEC stock.

The SEC alleges that during the first half of 2009, STEC’s stock rose more than 800%, as the company reported its increased revenues, sales and margins for its products.  On July 16, 2009, the company also made public its unique supply agreement with its largest customer, EMC Corporation.  The agreement committed EMC to purchase $120 million worth of STEC products in the third and fourth quarters of 2009.  In order to take advantage of the run-up in the stock price, Moshayedi and his brother decided to sell a significant portion of their STEC holdings in a secondary offering.  A few days before the scheduled secondary offering, Moshayedi learned of critical non-public information that was likely to have a negative impact on the stock price.  Instead of calling off the offering and abstaining from selling his shares, Moshayedi engaged in a fraudulent scheme to hide the truth through a secret side deal.

According to the complaint, On August 3, 2009, Moshayedi and his brother each sold 4.5 million shares of their STEC stock, and each received gross proceeds, before expenses, of $133,920,000.  Three months later, after Moshayedi disclosed part of the material, non-public information he possessed when he sold his shares, STEC’s price plummeted 38.9%.  The SEC stated, “Moshayedi put his own self-interest ahead of his responsibility to lead a public company, and shareholders who placed their trust in him suffered as a result.”

The SEC charged five physicians with insider trading in the securities of a Michigan based holding company.  According to the complaint, Apparao Mukkamala served as chairman of the board of directors of American Physicians Capital, Inc. (“ACAP.”).  As chairman of the board, he owed a fiduciary duty of trust and confidence to ACAP and its shareholders.

According to the SEC, between March 12, 2010 and July 8, 2010 Mukkamala illegally disclosed material non-public information concerning the anticipated sale of ACAP, to four fellow physicians.  Between April 30 and July 7, 2010, Mukkamala and the other four purchased nearly $2.2 million of ACAP stock based on the non-public confidential information learned by Mukkamala.   On July 8, 2010, after The Doctors Company publicly announced its acquisition of ACAP, Defendants collectively realized more than $623,000 in profits from their illegal trading in ACAP.

Without admitting or denying the SEC allegation, the five physicians consented to the entry of final judgments ordering them to pay more than $1.9 million to settle the SEC’s charges.  The SEC stated, “These physicians made numerous purchases of ACAP shares that were detected as highly unusual when compared to their past trading patterns… [b]oard chairmen and other insiders should never choose greed over duty when possessing confidential information about the companies they serve.”

The Honorable Timothy C. Batten Sr. granted the SEC’s request for a temporary restraining order and entered an asset freeze for the benefit of investors against Aubrey Lee Price, PFG, LLC, PFGBI, LLC – the funds he managed – and his affiliated entities.  The SEC alleged that after sending a letter dated June 2012 titled “Confidential Confession for Regulators – PFG, LLC and PFGBI, LLC Summary,” Price went into hiding.  In the 22-page letter, Price admitted that he “falsified statements with false returns” in order to conceal between $20-23 million dollars in investor losses.

According to the complaint, Price raised approximately $40 million from approximately 115 investors, living primarily in Georgia and Florida.  The SEC alleged that Price began his scheme in 2008, selling membership interests in two unregistered investment funds, PFG, LLC and PFGBI, LLC (“the Funds.”)  The funds were managed by Price.  According to PFG’s private placement memorandum, the investment objective was to achieve “positive total returns with low volatility” by investing in a variety of opportunities, including equity securities traded on the U.S. markets.  Instead, Price used investors funds to invest in South America real estate and a troubled South Georgia bank.  Furthermore, PFG’s offering documents stated that investors’ funds would be kept in a custodial account at Goldman Sachs Execution & Clearing, L.P.   Between 2009 and 2011, more than 90% of PFG investor funds, around $36.9 million, were placed in a securities trading account at Goldman Sachs  The account suffered massive trading losses in addition to the frequent wire-transfers to PFG’s operating bank account.  By mid-May 2012, the remaining $480,000 in PFG’s Goldman Sachs account was transferred to PFG’s operating account, at which time the Goldman Sachs trading account was closed.  To conceal the depletion of the fund’s assets, Price created and provided false Goldman Sachs account statements and representation letters to investors and bank regulators, indicating fictitious investment returns.

The SEC filed a complaint in U.S. District Court for the Northern District of Georgia charging him with securities fraud.  The SEC stated, “Price raised nearly $40 million from investors and made woeful financial transactions that he hid from them … [n]ow both the money and Price are missing.”

The SEC charged Peter Madoff with fraud, making false statements to regulators, and falsifying books and records, in order to create the illusion that Bernard L. Madoff Investment Securities LLC’s (“BMIS”) had a functioning compliance program in place.  The SEC alleged that Peter Madoff was responsible for creating compliance manuals, written supervisory procedures, reports of annual compliance reviews, and compliance certifications which were never implemented or performed.  The documents were merely created to paper the file.

According to the complaint, from 1969 through December 11, 2008, Peter created compliance materials for the sole purpose of papering the firm’s files.  Peter’s misconduct was instrumental up until the BMIS’s final collapse, when Bernie Madoff allegedly told Peter that there were insufficient funds to pay investors and recruited Peter to help him decide which family, friends and employees to receive what was left of the clients’ funds.  At the same time, Peter rushed to withdraw approximately $200,000 for himself from BMIS’s bank account.

In a parallel action, the U.S. Attorney’s Office for the Southern District of New York announced that criminal charges were filed against Peter Madoff.  The SEC stated, “Peter Madoff helped Bernie Madoff create the image of a functioning compliance program purportedly overseen by sophisticated financial professionals … [t]ragically, the image was merely an illusion supported by Peter’s sham paperwork and false filings for which he was rewarded with tens of millions of dollars in stolen investor funds.”  According to the SEC, Peter used these fraudulent proceeds to support a luxurious lifestyle at the expense of BMIS’s clients.

The SEC charged New York-based hedge fund adviser Philip A. Falcone and his advisory firm, Harbinger Capital Partners, LLC, for conduct that included misappropriation of client assets, market manipulation, and betraying clients.  The SEC filed three separate civil actions and opened an administrative proceeding against Falcone and his firm, for a variety of fraud charges.  It is unclear at this time whether investors in Falcone managed hedge funds will be able to initiate FINRA arbitrations against broker-dealers who sold the hedge funds.

According to the SEC, Falcone and Harbinger engaged in a fraudulent scheme to misappropriate $113.2 million from a Harbinger fund in order to pay Falcone’s personal tax obligation.  In 2009 Falcone declined to pursue other financing options to pay his obligation, such as pledging his personal property as collateral for a bank loan, instead Falcone took out a loan from Harbinger Capital Partners Special Situations Fund, L.P.    The transfer of the fund’s assets to Falcone was structured as a loan and concealed from fund investors for approximately five months.  In 2011, after the SEC initiated its investigation, Falcone repaid the loan.

The SEC alleged that in another breach of Defendants’ fiduciary duties to their investors, Falcone and Harbinger implemented a ‘vote buying’ scheme.  In early 2009, following the credit crisis of the previous year, one of Harbinger’s funds experienced a sharp decline in assets under management.  As a result of the investment losses, many investors were seeking to redeem their interests.  Falcone and Harbinger, in an attempt to stabilize the situation, proposed an amendment to impose more stringent redemption restrictions on investors.  The proposed change required investor approval.  To secure consent, Falcone and Harbinger made side deals with certain strategically-important investors, providing those investors with favorable redemption and liquidity terms in return for their favorable vote for the amendment.  Falcone and Harbinger allegedly permitted the preferential investors to withdraw a total of approximately $169 million.  These quid pro quo agreements to buy votes were concealed form fund investors and the fund’s board of directors.

In a separate cease and desist administrative proceeding, the SEC found that between April and June 2009, Harbinger violated anti-manipulation securities laws while engaged in illegal trades in connection with the purchase of common stock in three public offerings after having sold the same securities short during a restricted period.  The SEC reached a settlement with Harbinger for unlawful trading.  Without admitting or denying any of the Commission’s findings, Harbinger will pay disgorgement in the amount of $857,950, prejudgment interest in the amount of $91,838, and a civil monetary penalty of $428,975.