Articles Posted in U.S. 7th Circuit Court of Appeals

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Walsh and Martin, principals of a futures and foreign currency trading company that acted as a “futures commission merchant” and as a “forex dealer member,” used customer funds for personal expenses, then concealed the company’s insolvency and their criminal conduct by misleading customers about the company’s ability to meet its obligations. Existing customers got account statements that falsely stated their available margin funds, and they solicited new customers by making false statements. They also used a Ponzi-like scheme for redemptions. Shortly before it was shut down, the company had $17,654,486 in unpaid customer liabilities and only $677,932 in assets. Walsh and Martin pleaded guilty to wire fraud, tax evasion, and to making false statements in a report to the Commodities Futures and Trading Commission, a Commodities Exchange Act (7 U.S.C. 6d(a)) violation. The district court sentenced them to terms of imprisonment of 150 and 204 months, respectively, and ordered each to pay $16,976,554 in restitution. The Seventh Circuit affirmed, rejecting challenges to a finding as to the amount of loss and restitution and to application of a sentencing enhancement based upon a finding that each was an officer or director of a futures commission merchant. View "United States v. Walsh" on Justia Law

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Bauer served as an officer in investment companies, on the pricing committee, and as chief compliance officer, implementing policies to prohibit employees from trading on nonpublic information regarding the securities held in the companies’ portfolios. Following trades for her personal account, the Securities and Exchange Commission charge Bauer with insider trading in connection with mutual fund redemption. The district court granted the SEC summary judgment. The Seventh Circuit reversed, noting that the SEC rarely brings insider trading claims in connection with mutual fund redemption and that no federal court has ruled on the issue. The district court must determine whether Bauer’s alleged conduct properly fits under the misappropriation theory of insider trading, under which a corporate outsider misappropriates confidential information for securities trading purposes in breach of a duty owed to the source of the information. The court noted that Bauer did not argue that mutual fund redemptions cannot entail deception under the classical theory, but conceded that insider trading liability could attach to mutual fund redemptions if it could be shown that she knew the product was priced incorrectly, but that the issue must be resolved at the trial court level. View "Sec. & Exch. Comm'n v. Bauer" on Justia Law

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PFG and Acuvest had an agreement (later terminated) under which guaranteed Acuvest’s customers that Acuvest would conform its conduct to CEA mandates. Acuvest advised Prestwick with respect to an investment on which it suffered a substantial loss. Prestwick sued PFG, Acuvest, and two of Acuvest’s principals, alleging violations of the Commodity Exchange Act (CEA), 7 U.S.C. 1, a breach of fiduciary duty against the Acuvest defendants, and a guarantor liability claim against PFG. Prestwick argued that termination of PFG’s guarantee of Acuvest’s obligations under the CEA did not terminate protection “for existing accounts opened during the term of the guarantee.” The district court awarded summary judgment to PFG and dismissed the remaining defendants with prejudice so that Prestwick could appeal. The Seventh Circuit affirmed, stating that contracts between the parties were definitive and rejecting Prestwick’s assertion public policy and estoppel to overcome a decision that the guarantee agreement was properly terminated. View "Prestwick Capital Mgmt., Ltd. v. Peregrine Fin. Grp., Inc." on Justia Law

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After accumulating a fortune in the technology business, Patel became a hedge fund manager. He formed a fund, and Sitara to serve as the fund’s investment adviser, and named himself managing director of Sitara. His acquaintances purchased interests in the fund. After initial success, Patel invested $6.8 million, nearly all of the fund’s assets, in Freddie Mac common stock in 2008, after the beginning of the subprime mortgage crisis. The fund incurred devastating losses. Owners of limited partnership interests sued Patel and Sitara, claiming federal and state securities fraud, fraudulent misrepresentation, and fraudulent inducement. Their second amended complaint asserted only failure to register securities in violation of federal law, failure to register as an investment advisor under Illinois law, and breach of fiduciary duty under ERISA, 29 U.S.C. 1109(a). Plaintiffs sought to file a third amended complaint, based upon purported misrepresentations discovered while deposing Patel: an offering memorandum statement that Patel “intends to contribute no less than one hundred thousand dollars” and Patel’s oral statement that he was investing some of the $18 million from the sale of a former business at the inception of the fund. Patel did not invest any proceeds from the sale of his company at the inception. The district court denied the motion. The Seventh Circuit affirmed. The new claims suffered from deficiencies that rendered the proposed amendment futile. View "Shailja Gandhi Revocable Trust v. Sitara Capital Mgmt., LLC" on Justia Law

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Loffredi’s securities brokerage firm offered investments in certificates of deposit, mutual funds, and Treasury bills. Instead of actually purchasing investments requested by customers, Loffredi diverted their money to his personal expenses and business debts. He fraudulently misappropriated about $2.8 million over four years. A customer alerted the Securities and Exchange Commission to irregularities in his financial statements. After an investigation, Loffredi was charged with five counts of mail fraud, 18 U.S.C. 1341. He pleaded guilty to one count. The judge applied a two-level upward adjustment under U.S.S.G. 2B1.1(b)(2)(A)(i) for an offense involving at least 10 victims and imposed a sentence of 78 months. The presentence report counted as victims each of the 14 defrauded customers whose funds Loffredi had misappropriated. Loffredi argued that the only victim of the offense was his broker-dealer parent firm, which had reimbursed the losses of 12 of the 14 customers (Loffredi reimbursed the other two). The Seventh Circuit affirmed, noting that Loffredi never asserted that his fraud was painless for his customers and rejecting his “all-or-nothing” defense that the customers cannot be victims if they were reimbursed. View "Unted States v. Loffredi" on Justia Law

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Jacob was convicted of selling an unregistered security, 15 U.S.C. 77e(a), and was sentenced to 14 months’ imprisonment and $241,630.95 in restitution. He was granted permission to travel to Australia two weeks after sentencing. He had been traveling to Australia for work while on bond before sentencing, had returned to be sentenced, and pledged to earn additional money to pay restitution. Five days after he was to report, the probation office informed the court that Jacob had failed to surrender as ordered, and his attorney suggested that he may have fled the country. The government then moved to dismiss Jacob’s pending appeal under the fugitive disentitlement doctrine. Jacob failed to respond to his attorney’s motion to withdraw, missed his deadline to file an opening brief, sent the court a rambling email arguing the merits of his appeal, and told his probation officer that he had no intention of returning to the U.S. The Seventh Circuit dismissed his appeal. View "United States v. Jacob" on Justia Law

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Plaintiffs filed a putative class action, claiming that fiduciaries for their retirement plans violated the Employee Retirement Income Security Act, 29 U.S.C. 1001, by continuing to offer employer stock as an investment option while the stock price dropped. The individual retirement account plan at issue allowed employees to choose among more than 20 investment funds with different risk profiles that had been selected by plan fiduciaries. ERISA imposes on the fiduciaries a duty to select only prudent investment options. One of the investment options in the Plan was the M&I Stock Fund, consisting of M&I stock, under an Employee Stock Ownership Plan. In 2008- 2009, M&I’s stock price dropped by approximately 54 percent. The district court applied a presumption of prudence, found that plaintiffs’ allegations could not overcome it, and dismissed without addressing class certification. The Seventh Circuit affirmed, stating that plaintiffs’ theory would require the employer and plan fiduciaries to violate the plan’s governing documents and “seems to be based often on the untenable premise that employers and plan fiduciaries have a fiduciary duty either to outsmart the stock market, which is groundless, or to use insider information for the benefit of employees, which would violate federal securities laws.” View "White v. Marshall & Ilsley Corp." on Justia Law

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Plaintiffs filed a class action on behalf of stock purchasers, alleging that Boeing committed securities fraud under the Securities Exchange Act of 1934, 15 U.S.C. 78j(b), and SEC Rule 10b-5. The suit related to statements concerning the new 787-8 Dreamliner, which had not yet flown, and did not specify a damages figure. At argument the plaintiffs’ lawyer indicated that the class was seeking hundreds of millions of dollars. The district court dismissed the suit under Rule 12(b)(6) before deciding whether to certify a class. Plaintiffs appealed the dismissal; Boeing cross-appealed denial of sanctions on the plaintiffs’ lawyers for violating Fed. R. Civ. P. 11. The Seventh Circuit affirmed dismissal with prejudice, but remanded for consideration under 15 U.S.C. 78u-4(c)(1), (2), of Rule 11 sanctions on the plaintiffs’ lawyers. No one who made optimistic public statements about the timing of the first flight knew that their optimism was unfounded; there is no securities fraud by hindsight. Plaintiffs’ lawyers had made confident assurances in their complaints about a confidential source, their only barrier to dismissal of their suit, even though none of them had spoken to the source and their investigator had acknowledged that she could not verify what he had told her. View "City of Livonia Emps' Ret. Sys. v. Boeing Co." on Justia Law

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In 2000 the SEC charged violation of securities law. The court appointed a receiver to distribute assets among victims of the $31 million fraud. The receiver found that assets had been used to acquire oil and gas leases. SonCo claimed an interest in the leases. In 2010, the district court issued an “agreed order,” requiring SonCo to pay $600,000 for quitclaim assignment of the leases and release of claims in Canadian litigation. Alco operated the wells and had posted a $250,000 cash bond with the Texas Railroad Commission. Alco could get its $250,000 back if replaced by new operator that posted an equivalent bond. The $250,000 had come, in part, from defrauded investors. Alco was incurring environmental liabilities, with little prospect of offsetting revenues. SonCo was to replace Alco, but failed to so, after multiple extensions. The district judge held SonCo in civil contempt, ordered it to return the leases, and allowed the receiver to keep the $600,000. The Seventh Circuit upheld the finding of civil contempt. Following remand, the Seventh Circuit affirmed the sanction; considering additional environmental compliance costs and receivership fees, a plausible estimate of the harm would be $2 million. ”SonCo will be courting additional sanctions, of increasing severity, if it does not desist forthwith from its obstructionist tactics.” View "Sec. & Exch. Comm'n v. First Choice Mgmt Servs., Inc." on Justia Law

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In 2011, BEST fired Aslin, a securities broker, to remain compliant with the Financial Industry Regulatory Authority “Taping Rule,” which requires securities firms to adopt monitoring measures when too many of their brokers have recently worked for “Disciplined Firms.” Instead of adopting such measures, the employer may terminate brokers. FINRA, a private corporation, is registered with the Securities and Exchange Commission as a “national securities association.” The Maloney Act provides for establishment of private self-regulatory organizations to oversee securities markets, 15 U.S.C. 78o. The SEC must approve FINRA’s rules and may abrogate, add to, and delete FINRA rules. Aslin filed suit alleging that FINRA violated his due process rights by including him on the list of brokers from Disciplined Firms without providing him the opportunity to challenge the designation. The district court dismissed, concluding that Aslin failed to state a claim because he was not deprived of a protected property or liberty interest. The Seventh Circuit affirmed Since Aslin sought only injunctive and declaratory relief to prevent application of the rule to him, the controversy ended in 2012, after which Aslin was no longer included on the list of brokers from Disciplined Firms and the case was moot. View "Aslin v. Fin. Indus. Regulatory Auth., Inc." on Justia Law