Justia Securities Law Opinion Summaries
Korth v. Luther
The Supreme Court affirmed the judgment of the district court in favor of Defendants in two actions brought under Nebraska's Uniform Fraudulent Transfer Act (UFTA), Neb. Rev. Stat. 36-701 to 36-712, but reversed the court's grant of attorney fees as sanctions on the grounds that both actions were frivolous, holding that the fraudulent transfer actions lacked merit but that the district court abused its discretion in finding the actions as frivolous. The creditors here alleged that a blanket security agreement guaranteeing repayment of a loan by a wife to her husband was a fraudulent transfer under the UFTA. The district court concluded, after a trial, that there was no actual intent to hinder, delay, or defraud any creditor under the UFTA and that the wife had proved good faith. The court then granted the wife attorney fees. The Supreme Court (1) reversed the award of sanctions, holding that the actions were not frivolous under Neb. Rev. Stat. 25-824; and (2) affirmed the judgments of dismissal, holding that the creditors failed to identify and prove there was any "property" at issue in these cases and thus failed to prove that there was a "transfer" under the UFTA. View "Korth v. Luther" on Justia Law
Securities & Exchange Commission v. Williky
Imperial fraudulently purchased finished biodiesel and resold it while claiming government incentives and tax credits for producing biodiesel from raw feedstock. Imperial’s CEO (Wilson) hired Williky to artificially inflate Imperial’s stock by “wash and match trades” and “scalping” emails. In the 1990s, Williky had engaged in “wash and match trades” for another company led by Wilson. Williky acquired millions of shares of Imperial stock but failed to report his ownership levels when his shares surpassed five percent. By mid-2011, Williky knew Imperial misrepresented the source of its biodiesel to investors and, by November, knew the extent of Imperial’s fraud. Williky sold all of his Imperial shares and avoided a loss of $798,217. The SEC sued, seeking to permanently enjoin Williky from violating federal securities law and from acting as an officer or director of a public company; to disgorge his financial gains; and to impose a civil penalty for insider trading. Williky entered into a bifurcated settlement with the SEC, conceding his involvement in the fraudulent scheme and agreeing that the court would determine the financial remedies. The SEC requested the statutory maximum civil penalty of $2,394,651 for insider trading, calculated as three times Williky’s avoided losses. Williky argued that the SEC’s proposed judgment ignored his cooperation with governmental agencies. The district court entered a judgment of $1,596,434, equal to two times the avoided losses. The Seventh Circuit affirmed. The district court adequately assessed the value of Williky’s cooperation. View "Securities & Exchange Commission v. Williky" on Justia Law
Kilgour v. SEC
Petitioners challenged the SEC's denial of whistleblower awards following a $50 million settlement the SEC reached with Deutsche Bank AG. The Second Circuit denied the petitions for review, holding that it was not arbitrary or capricious for the SEC to conclude that Petitioner Doe's submissions did not provide "original information to the Commission that led to" a successful enforcement action, because Doe's submissions were not used by the Deutsche Bank team. Therefore, the SEC was not equitably estopped from denying Doe's award. The court also held that the SEC did not violate Doe's due process rights by failing to provide Doe with certain materials, and the SEC did not act arbitrarily or capriciously by favoring Claimant 2's submissions over Doe's. Furthermore, petitioners were not entitled to an award for the information they submitted in their Form TCR. Finally, the court held that petitioners' remaining claims were without merit. View "Kilgour v. SEC" on Justia Law
Posted in: Government & Administrative Law, Securities Law, US Court of Appeals for the Second Circuit
SEC v. Team Resources Inc.
While SEC's enforcement action against defendants was pending, the Supreme Court decided Kokesh v. SEC, 137 S. Ct. 1635, 1643 (2017), which held that disgorgement in SEC proceedings is a "penalty" under 28 U.S.C. 2462 and thus subject to a five-year statute of limitations. The Fifth Circuit held that Kokesh did not overrule the court's established precedent recognizing district courts' authority to order disgorgement in SEC enforcement proceedings. Accordingly, the court affirmed the district court's disgorgement order. The court also held that the district court did not deprive defendants of discovery; the district court did not abuse its discretion by ruling on the SEC's remedies motion without holding an evidentiary hearing; and the district court did not abuse its discretion in determining the amount of disgorgement in this case. View "SEC v. Team Resources Inc." on Justia Law
In Re Verizon Insurance Coverage Appeals
In 2006, Verizon divested its print and electronic directories business to its stockholders in a tax-free “spin-off” transaction. As part of the transaction, Verizon created Idearc, Inc. and appointed John Diercksen, a Verizon executive, to serve as Idearc’s sole director. Verizon then distributed Idearc common stock to Verizon shareholders. Idearc launched as a separate business with $9.1 billion in debt. In connection with the Idearc spinoff, Verizon and Idearc purchased primary and excess Executive and Organizational Liability Policies (“Idearc Runoff Policies"). The Idearc Runoff Policies covered certain claims made against defined insureds during the six-year policy period that exceeded a $7.5 million retention. Relevant here, Endorsement No. 7 to the policies stated that “[i]n connection with any Securities Claim,” and “for any Loss . . . incurred while a Securities Claim is jointly made and maintained against both the Organization and one or more Insured Person(s), this policy shall pay 100% of such Loss up to the Limit of Liability of the policy.” “Securities Claim” was defined in pertinent part as a “Claim” against an “Insured Person” “[a]lleging a violation of any federal, state, local or foreign regulation, rule or statute regulating securities (including, but not limited to, the purchase or sale or offer or solicitation of an offer to purchase or sell securities).” Under the policy, Verizon could recover its “Defense Costs” when a Securities Claim was brought against it and covered directors and officers, and Verizon indemnified those directors and officers. Idearc operated as an independent, publicly traded company until it filed for bankruptcy in 2009; a litigation trust was set up to pursue claims against Verizon on behalf of creditors. Primary amongst the allegations was Dickersen and Verizon saddled Idearc with excessive debt at the time of the spin-off. This appeal turned on the definition of a "Securities Claim;" the Superior Court found the definition ambiguous. Using extrinsic evidence, the court held that fiduciary duty, unlawful dividend, and fraudulent transfer claims brought by a bankruptcy trustee against Verizon Communications Inc. and others were Securities Claims covered under the policy. The Delaware Supreme Court disagreed, finding that, applying the plain meaning of the Securities Claim definition in the policy, the litigation trustee’s complaint did not allege any violations of regulations, rules, or statutes regulating securities. Thus, the Superior Court’s grant of summary judgment to Verizon was reversed and that court directed to enter summary judgment in favor of the Insurers. View "In Re Verizon Insurance Coverage Appeals" on Justia Law
Vermont, et al. v. Quiros, et al.
This case arose from a series of plans overseen by defendants to develop several real estate projects in the Northeast Kingdom of Vermont. Work on these projects spanned eight years, including fundraising and planning stages, and involved several limited partnerships and other corporate entities (the Jay Peak Projects). The Jay Peak Projects, at the direction of defendants Ariel Quiros and William Stenger, raised investment funds largely through a federal program known as the EB-5 Immigrant Investor Program (EB-5 Program). In April 2016, the U.S. Securities and Exchange Commission filed a lawsuit alleging securities fraud, wire fraud, and mail fraud against the Jay Peak Projects developers, Ariel Quiros and William Stenger. The Vermont Department of Financial Regulation also filed suit against Quiros and Stenger, alleging similar claims. On the basis of these and other allegations, plaintiffs, all foreign nationals who invested in the Jay Peak Projects, filed a multi-count claim against ACCD and several individual defendants. Intervenors, a group of foreign investors who were allegedly defrauded by defendants, appealed an order denying their motion to intervene in the State’s enforcement action brought against defendants. The Vermont Supreme Court affirmed because the motion to intervene was untimely. View "Vermont, et al. v. Quiros, et al." on Justia Law
Sutton, et al. v. Vermont Regional Center, et al.
Plaintiff-investors appealed the dismissal of their claims against the Vermont Agency of Commerce and Community Development (ACCD) and current and former state employees arising from the operation of a federally licensed regional center in the United States Customs and Immigration Services (USCIS) EB-5 program. USCIS designated ACCD as a regional center in 1997, and ACCD began operating the Vermont Regional Center (VRC). In 2006, the VRC partnered with a series of projects led by Ariel Quiros and William Stenger (referred to as the “Jay Peak Projects”). ACCD entered into a memorandum of understanding (MOU) with the Jay Peak Projects for each project. Employees of ACCD, including James Candido and Brent Raymond, both former executive directors of the VRC, and John Kessler, general counsel for ACCD, traveled with Jay Peak representatives to EB-5 tradeshows, at which they would share a table and jointly solicit investors and promote the Projects. ACCD employees represented to prospective investors, including plaintiffs, that the added protections of state approval and oversight made the Jay Peak Projects a particularly sound investment. However, unbeknownst to the investors, but known to VRC officials, no such state oversight by the VRC existed. In 2014, about twenty investors, including plaintiff Antony Sutton, sent complaints to Brent Raymond alleging that the Jay Peak Projects was misappropriating investor funds. In April 2016, the U.S. Securities and Exchange Commission filed a lawsuit alleging securities fraud, wire fraud, and mail fraud against the Jay Peak Projects developers, Ariel Quiros and William Stenger. The Vermont Department of Financial Regulation also filed suit against Quiros and Stenger, alleging similar claims. On the basis of these and other allegations, plaintiffs, all foreign nationals who invested in the Jay Peak Projects, filed a multi-count claim against ACCD and several individual defendants. The trial court granted plaintiffs’ motion to amend their complaint for a third time to a Fourth Amended Complaint, and then dismissed all thirteen counts on various grounds. Plaintiffs appealed. The Vermont Supreme Court reversed dismissal of plaintiffs’ claims of negligence and negligent misrepresentation against ACCD, gross negligence against defendants Brent Raymond and James Candido, and breach of contract and the implied covenant of good faith and fair dealing against ACCD. The Court affirmed dismissal of plaintiffs’ remaining claims. View "Sutton, et al. v. Vermont Regional Center, et al." on Justia Law
Fed. Home Loan Bank of Seattle v. Credit Suisse Sec. (USA) LLC
This case stemmed from the 2007-2009 financial crisis and recession. In 2005 and 2007, Federal Home Loan Bank of Seattle purchased for residential mortgage-backed securities (RMBS) from investment bank Credit Suisse. Federal Home Loan also bought certificates from Barclays Bank. In 2009, Federal Home Loan separately brought suit under the Securities Act against Credit Suisse and Barclays. Federal Home Loan alleged Credit Suisse and Barclays each had made untrue or misleading statements relating to the certificates it purchased. n each case, the investment banks moved for summary judgment, which was granted. Federal Home Loan sought review of each case, arguing that reliance on the statements wasn't an element under the Act. The Washington Supreme Court concurred and concluded a plaintiff need not prove reliance under the Act. the Court of Appeals was reversed and the matter remanded for further proceedings. View "Fed. Home Loan Bank of Seattle v. Credit Suisse Sec. (USA) LLC" on Justia Law
Securities and Exchange Commission v. Gentile
Gentile, the owner of a New York broker-dealer, was involved in two pump-and-dump schemes to manipulate penny stocks in 2007-2008. Gentile was arrested in 2012 and agreed to cooperate, but the deal fell apart in 2016. The indictment was dismissed as untimely. Gentile was still the CEO of a Bahamas-based brokerage and the beneficial owner of a broker-dealer; he had expressed an intention to expand that brokerage and hire new employees. The SEC filed a civil enforcement action eight years after Gentile’s involvement in the second scheme, seeking an injunction against further securities law violations and an injunction barring participation in the penny stock industry. A five-year statute of limitations applies to any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise,” 28 U.S.C. 2462. The Supreme Court has held that “[d]isgorgement in the securities-enforcement context” is a “penalty” subject to that five-year limitations period. The district court dismissed, holding that those remedies were penalties. The Third Circuit vacated; 15 U.S.C. 78u(d) does not permit the issuance of punitive injunctions, so the injunctions at issue do not fall within the reach of section 2462. The court remanded for a determination of whether the injunctions sought are permitted under section 78u(d). View "Securities and Exchange Commission v. Gentile" on Justia Law
Daly v. Citigroup Inc.
Plaintiff filed suit against Citigroup, alleging gender discrimination and whistleblower retaliation claims under several local, state, and federal statutes, including the Dodd‐Frank and Sarbanes‐Oxley Acts. The Second Circuit affirmed the district court's judgment and held that the district court appropriately compelled arbitration of all but plaintiffʹs Sarbanes‐Oxley claim, including her Dodd‐Frank whistleblower retaliation claim, because her claims fall within the scope of her employment arbitration agreement and because she failed to establish that they are precluded by law from arbitration. The court also held that plaintiff's Sarbanes‐Oxley claim was properly dismissed because the district court lacked subject matter jurisdiction over it inasmuch as plaintiff failed to exhaust her administrative remedies under the statute. View "Daly v. Citigroup Inc." on Justia Law
Posted in: Arbitration & Mediation, Labor & Employment Law, Securities Law, US Court of Appeals for the Second Circuit