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Hyperdynamics Resolves FCPA Investigation with SEC Settlement
On September 29, Hyperdynamics Corp. announced a settlement with the SEC, fully resolving the SEC’s FCPA investigation into the Houston-based oil and gas company’s operations in the Republic of Guinea. The SEC proceeded via an administrative cease and desist order. Hyperdynamics consented to the SEC’s order without admitting or denying the findings, and agreed to pay a $75,000 penalty. The SEC’s order describes books and records and internal control offenses based on the lack of supporting documentation related to $130,000 the company paid for public relations and lobbying services in the Republic of Guinea during 2007 and 2008.
Hyperdynamics first disclosed that the DOJ was investigating alleged FCPA violations by the company in the Republic of Guinea in 2013. In May of this year, the company announced that the DOJ’s investigation had concluded without enforcement action, and released the DOJ’s declination letter, which noted Hyperdynamics’s cooperation with the investigation. At that time, the company acknowledged that a parallel SEC investigation was ongoing. Previous BuckleySandler coverage of this investigation can be found here.
Hitachi Settles SEC FCPA Case for $19M
On September 28, the SEC filed a settled complaint in Washington, D.C. federal court against Tokyo-based Hitachi, Ltd. for alleged FCPA books and records and internal controls offenses. According to the SEC’s Complaint, the company failed to accurately report payments made to the African National Congress (ANC), South Africa’s ruling political party, in connection with a multi-billion dollar plan to build new power stations in the country. Hitachi purportedly sold a 25-percent stake in a South African subsidiary to a company that was a front to funnel funds to the ANC. The SEC alleges that Hitachi was (i) aware that it had partnered with a “funding vehicle” for the ANC; (ii) encouraged the front company to continue using its political influence to obtain additional government contracts; and (iii) agreed to pay “success fees” to the front company. Hitachi did not admit wrongdoing in the settlement and agreed to pay a $19 million penalty.
In its announcement, the SEC’s Director of Enforcement, Andrew Ceresney, cited Hitachi’s “lax internal control environment” as the factor that led to the conduct described in the complaint. Continuing the trend of international cooperation in FCPA investigations, the SEC also thanked the African Development Bank and the South African Financial Services Board for their assistance with the investigation.
New Jersey Resident Charged with Securities and Wire Fraud
On October 1, the U.S. Attorney for the Southern District of New York filed a complaint against New Jersey fund manager William J. Wells charging him with running a “Ponzi” scheme which raised over $1.5 million from investors. According to the complaint, Wells “engaged in a fraudulent scheme to obtain investments by falsely representing that he had achieved consistently positive trading returns in the U.S. equity markets, including through the successful use of options to hedge risk.” Wells allegedly misled investors by claiming that (i) his trading was generating positive returns when it was not; (ii) investors held investments in certain stocks when, in fact, neither Wells nor his firm did; and (iii) sub-accounts had been created for clients, but no such sub-accounts were ever funded. Wells was charged with one count of securities fraud and one count of wire fraud, each carrying a maximum prison sentence of 20 years and a maximum fine of $5 million, or two times the gross gain or loss from the offense.
In a parallel action, the SEC filed a complaint charging Wells with violations of the Securities Act, the Securities Exchange Act, and the Investment Advisers Act.
SEC Appoints New Head of Examination Program in Atlanta Regional Office
On September 29, the SEC named William Royer as the Atlanta Regional Office’s Associate Director of the examination program. Since June of this year, Royer has served as the examination program’s Acting Associate Director. In his role, Royer will supervise staff responsible for the examination of broker-dealers, investment advisers, investment companies, transfer agents, along with other SEC registrants. Prior to joining the SEC in 2013 as an Assistant Director within the Office of Compliance and Inspections and Examinations’ Office of the Chief Counsel, Royer worked as a securities attorney in private practice and served as General Counsel for two international investment management firms.
Legislation Seeking Better Transparency in Federal Agency Settlements Passes Unanimously in U.S. Senate
On September 21, Senate Bill 1109, the Truth in Settlements Act, passed in the U.S. Senate with amendments by unanimous consent and has now been referred to the U.S. House of Representative’s Committee on Oversight and Government Reform for consideration. Originally introduced in January 2014 and sponsored by Elizabeth Warren (D-MA), the Truth in Settlements Act would require federal agencies to post online, in a searchable format, a list of each covered settlement agreement, criminal or civil, with payments totaling $1 million or more. The list would entail, among other things, (i) the names of the settling parties and the amount each must pay; (ii) a description of the claims each party settled; (iii) whether a portion of the settlement amount is tax-deductible; and (iv) any actions the settling parties must take under the settlement agreement in lieu of payment. If enacted, the bill would require agencies to publicly explain via written statement why confidentiality is justified for certain instances. The bill, co-sponsored by Senators James Lankford (R-OK) and Tammy Baldwin (D-WI), aims to provide greater transparency and oversight regarding settlements reached by federal enforcement agencies.
SEC Penalizes Investment Adviser over Inadequate Cyber-Risk Program Prior to Data Breach
On September 22, the SEC ordered a Missouri-based investment adviser to pay a $75,000 penalty, settling allegations that the investment adviser failed to implement required written cybersecurity policies and procedures prior to a data breach affecting the firm’s clients. According to the SEC, in July 2013, the investment adviser’s third party-hosted web server was hacked by a then unknown source compromising the personally identifiable information of more than 100,000 individuals. Subsequent investigations determined that the breach originated in China, and, to date, the firm’s clients have suffered no financial injury. In addition to the $75,000 penalty, the firm was censured and agreed to cease and desist from committing or causing any future violations of the Safeguards Rule.
To coincide with the announcement, the SEC also issued an Investor Alert, “Identity Theft, Data Breaches, and Your Investment Accounts,” which provides actions retail investors can take to protect their investment accounts in the event of a data breach or identity theft.
Imaging Company Offers $1.6 Million to Settle FCPA Investigation
Analogic Corp., a manufacturer of airport security equipment, offered the SEC $1.6 million to settle the agency’s FCPA investigation of the company, according to a company press release. The company previously reported that the DOJ and SEC had “substantially” completed their investigations of potential bribery involving transactions by the company’s Danish subsidiary, BK Medical ApS. The transactions at issue involved distributors paying BK Medical more than was owed, and then BK Medical transferring the excess money to third parties identified by the distributors. At the time of its 2011 disclosure of the potentially problematic transactions, the company stated that it had not ascertained the ultimate beneficiaries or purpose of the transfers. According to the company it had not yet engaged in similar settlement discussions with the DOJ or Danish government.
Traders Who Allegedly Profited from Hacked News Releases Settle With SEC for $30 Million
On September 14, the SEC announced that it had reached a $30 million settlement with two defendants who allegedly profited from trading based on information hacked from newswire services. The settlement stems from an SEC complaint filed in August against 34 defendants for their alleged involvement in an international scheme that generated over $100 million in illegal profits over a five-year period. According to the SEC charges, defendants hacked into newswire services and transmitted stolen data to a network of international traders. The SEC claims that the parties to the settlement made $25 million in illicit profits by buying and selling contracts-for-differences (CFDs) based on hacked press release information they received from other defendants. In the proposed settlement offer, which requires court approval, the two defendants neither admit nor deny the SEC’s allegations, but agree to be enjoined from violating U.S. and SEC securities antifraud provisions, and to return $30 million in alleged illegal profits. The Chief of the SEC Enforcement Division’s Complex Financial Instruments Unit stated that the discovery and prosecution of the scheme “should serve as a shot across the bow of any trader who thinks that CFDs traded outside the United States can be used to mask their unlawful conduct,” and demonstrates the SEC’s “ability to police this opaque market.” The SEC’s case against the remaining 32 defendants remains pending.
Former Chief Credit Officer Sentenced to Over Eight Years in Prison for Role in Securities Fraud Scheme
On September 1, Ebrahim Shabudin, the former Chief Credit Officer of a San Francisco-based bank, was sentenced to 97 months in prison for his involvement in a securities fraud scheme stemming from the bank’s 2009 financial collapse. In 2008, the Troubled Asset Relief Program (TARP) gave the bank roughly $298 million in federal funds. The FDIC took over the bank in 2009 and stated that it was “the ninth largest failure since 2007 of a bank insured by the FDIC’s Deposit Insurance Fund.” In 2013, the FDIC estimated that the bank would accrue losses exceeding $1.1 billion; however, with the United States’ economic recovery, the estimated loss dropped to approximately $677 million.
The DOJ charged Shabudin with “conspiring with others within the bank to falsify key bank records as part of a scheme to conceal millions of dollars in losses and falsely inflate the bank’s financial statements.” Shabudin allegedly falsified records filed with the SEC and the FDIC pertaining to the bank’s 2008 third and fourth quarters and year-end earnings per share. On March 25, 2015, Shabudin was found guilty on seven charges: (i) conspiracy to commit securities fraud; (ii) securities fraud; (iii) falsifying corporate books and records; (iv) false statements to accountants; (v) circumventing internal accounting controls; (vi) conspiracy to commit false bank entries; and (vii) false bank entries. In addition to the prison sentence, U.S. District Judge White ordered the former Chief Credit Officer to undergo three years of supervised release and pay $348,000 in restitution. Both the bank’s CFO and Senior Vice President pleaded guilty to similar charges last year and currently await sentencing.
DOJ and SEC Announce Parallel Action Against Former Investment Banking Analyst and Two Individuals for Alleged Involvement in Insider Trading Scheme
On August 25, the DOJ unsealed an indictment charging three defendants each with (i) one count of conspiracy to commit securities and tender offer fraud; (ii) 13 counts of securities fraud; (iii) 13 counts of tender offer fraud; and (iv) three counts of wire fraud. In a parallel action, the SEC filed a complaint in the Central District of California against the same three individuals, asserting that the three individuals violated certain provisions of the Securities Exchange Act by participating in a scheme that involved “coordinated, illegal trading in stock and stock options of two separate companies that participated in merger activity” in which the same investment bank played an advisory role. According to the SEC, having learned of impending acquisitions involving two of the investment bank’s clients and other companies, one of the investment bank’s former analysts allegedly provided information regarding the transaction to a friend before any public announcements were made. The friend then communicated the information to a third individual, and the two made a series of trades in the two companies’ securities. When the acquisitions were publicly announced, both companies’ stock prices increased, resulting in profits of more than $670,000 for the two individuals on the receiving end of the former analyst’s inside information. The SEC’s complaint seeks a final judgment ordering the three defendants “to pay disgorgement of their ill-gotten gains plus prejudgment interest and penalties, and permanent injunctions from future violations of [certain] provisions of the federal securities laws.”