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Bank to pay $1 billion to settle investors’ compliance claims
Last month, the U.S. District Court for the Southern District of New York preliminarily approved a securities litigation settlement that would require a national bank to pay $1 billion to resolve class claims that it misrepresented its progress in overhauling its internal controls and compliance processes. The required overhauls relate to consent orders entered between the bank and its regulators in 2018 concerning alleged improper banking practices and corporate oversight deficiencies. The settlement would resolve investors’ claims that the bank’s allegedly misleading statements artificially inflated the price of the bank’s common stock, which declined when additional information was revealed. The bank expressly denies that the lead plaintiffs “have asserted any valid claims,” and denies “any and all allegations of fault, liability, wrongdoing, or damages.” If granted final approval, the bank would be required to pay $1 billion into a fund to be distributed to certain affected investors.
SEC fines Dutch medical supplier $62 million to settle FCPA charges
The SEC recently announced that a global Dutch manufacturer of health technology products agreed to pay more than $62 million to settle claims that it allegedly violated the FCPA with respect to the sale of medical diagnostic equipment in China. According to the SEC’s order, between 2014 and 2019, the manufacturer’s agents in China “engaged in improper conduct to influence foreign officials in connection with tender specifications in certain public tenders to increase the likelihood that [the manufacturer’s] products were selected.” Certain agents also allegedly engaged in a variety of improper bidding practices that unjustly enriched the manufacturer by $41 million. Special pricing discounts were given to distributors, which created a corruption risk that the increased distributor margins could be used to fund improper payments to government-owned hospital employees, the SEC claimed. During this time, the SEC found that the manufacturer lacked sufficient internal accounting controls to prevent and detect the conduct, and allegedly failed “to provide reasonable assurances” that transactions were accurately recorded in the Chinese agents’ books and records, which were consolidated into the manufacturer’s books and records.
The SEC stated that the manufacturer was previously charged with similar misconduct in Poland between 1999 and 2007, and that despite taking remedial efforts, the manufacturer failed to implement sufficient internal accounting controls relating to its sales of health technology products in China. The manufacturer consented to the SEC’s order without admitting or denying allegations that it violated the books and records and internal accounting control provisions of the Securities Exchange Act and agreed to pay $15 million in civil penalties and more than $47 million in disgorgement and prejudgment interest. The SEC recognized the company’s cooperation and remedial efforts.
SEC’s $279 million whistleblower award is largest ever
On May 5, the SEC announced the Commission’s largest-ever award—nearly $279 million—awarded to a whistleblower for providing information and assistance leading to the successful enforcement of SEC and related actions. The SEC noted that this award is more than double the previous record-holding $114 award issued in October 2020. According to the redacted order, the whistleblower voluntarily provided original information, which caused enforcement staff to expand the scope of the investigation and saved the SEC significant time and resources. The whistleblower also provided substantial ongoing assistance, including providing multiple written submissions, communications, and interviews, the SEC said, finding also that the whistleblower satisfied the requirements under Rules 21-F-3(b)(1) for related actions awards as the related successful enforcement actions were partly based on the same information provided to the Commission. However, in the same order, the SEC affirmed denial of two other claimants’ award claims after determining, among other things, that the individuals did not submit information leading to the successful enforcement of the covered action.
SEC orders crypto ATM operator to pay $3.9 million for selling unregistered tokens
On April 28, the SEC settled with a cryptocurrency ATM operator for allegedly selling unregistered tokens in order to raise money to expand its bitcoin ATM network. Described as a “token sale,” the SEC claimed the respondents in total raised crypto assets during an initial coin offering valued at roughly $3.65 million. According to the SEC, the company offered and sold its token as investment contracts, which qualified it as a security since investors would have reasonably expected to obtain future profits from the token’s rise in value based upon the respondents’ efforts. By offering and selling securities without having on file a registration statement with the SEC or qualifying for an exemption, the respondents violated Sections 5(a) and 5(c) of the Securities Act, the SEC said. Additionally, one of the respondents and its CEO were also accused of violating Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 by making materially false and misleading statements and engaging in other fraudulent conduct connected to the offer and sale of the token. The respondents neither admitted nor denied the SEC’s findings, but agreed to pay a collective $3.92 million civil penalty and said they would cease and desist from committing violations of the Securities Act and the Securities Exchange Act. One of the individual respondents also received a three-year officer and director ban.
2nd Circuit addresses preclusion standard in dismissal of RMBS actions
On April 26, the U.S. Court of Appeals for the Second Circuit upheld the dismissal of three residential mortgage-backed securities lawsuits tied to losses incurred during the 2008 financial crisis. The plaintiffs, issuers of collateralized debt obligations secured by RMBS certificates, sued several trust entities in separate lawsuits over the losses. According to the opinion, the district courts in each action assumed the plaintiffs had Article III standing but determined that they “were precluded from relitigating the issue of prudential standing” due to a related case they had previously brought against a different bank.
The 2nd Circuit explained that the district court in the related case had determined that the plaintiffs lacked standing because they had “conveyed all right, title, and interest in the RMBS certificates”—including the full power to file lawsuits—to third parties when issuing their notes, which were secured by certificates in RMBS trusts, among other assets. Following the decision, the third parties reassigned the litigation rights associated with the RMBS certificates back to the plaintiffs, but the court granted summary judgment in favor of the bank, holding that the plaintiffs lacked both Article III and prudential standing. The 2nd Circuit “affirmed on the ground that the assignments were champertous and that [p]laintiffs thus lacked prudential standing,” assuming but not deciding the issue of Article III standing.
With respect to the current lawsuits, the district court premised its dismissal on the finding that the plaintiffs were precluded from relitigating the issue of prudential standing by the holding in the related action. “In resolving an issue of first impression in this Circuit, we join the [9th] Circuit in concluding that the district courts permissibly bypassed the question of Article III standing to address issue preclusion, which offered a threshold, non-merits basis for dismissal,” the appellate court wrote. “In short, we fully agree with the district courts that [p]laintiffs were not entitled to a second bite at the prudential-standing apple after the [related] action. The district courts therefore did not err in taking this straightforward, if not ‘textbook,’ path to dismissal.”
District Court orders fintech to pay $2.8 million to settle claims of price manipulation of crypto-assets security
On April 20, the U.S. District Court for the Southern District of New York entered a final judgment in which a fintech company and its former CEO (collectively, “defendants”) have agreed to pay the SEC more than $2.8 million to settle allegations that they manipulated the price of their crypto-assets security. The SEC filed charges against the defendants last September for “perpetrating a scheme to manipulate the trading volume and price” of their digital token, and for effectuating the unregistered offering and sale of such token. The complaint also contended that the defendants hired a third party to create the false appearance of robust market activity for the token and inflated the token’s price in order to generate profits for the defendants. According to the SEC, the defendants allegedly earned more than $2 million as a result. The SEC charged the defendants with violating several provisions of the Securities Act of 1934 and Rule 10b-5, as well as certain sections of the Exchange Act. At the time the charges were filed, the third party’s CEO consented to a judgment (without admitting or denying the allegations), which permanently enjoined him from participating in future securities offerings and required him to pay disgorgement and prejudgment interest.
The defendants, while neither admitting nor denying the allegations, consented to the terms of the April final judgment. The company agreed to pay nearly $2.8 million, including more than $1.5 million in disgorgement of net profits, a civil penalty of more than $1 million, and roughly $240,000 in prejudgment interest. The former CEO agreed to pay more than $260,000, representing disgorgement, prejudgment interest, and a civil penalty. Both defendants are permanently enjoined from engaging in future securities law violations, and are restricted in their ability to engage in any offering of crypto asset securities.
DFPI cracks down on crypto platforms’ AI claims
On April 19, the California Department of Financial Protection and Innovation (DFPI) announced enforcement actions against five separate entities and an individual for allegedly offering and selling unqualified securities and making material misrepresentations and omissions to investors in violation of California securities laws. According to DFPI, the desist and refrain orders allege that the subjects (which touted themselves as cryptocurrency trading platforms) engaged in a variety of unlawful and deceptive practices, including promising investors high yield returns through the use of artificial intelligence to trade crypto assets, falsely representing that an insurance fund would prevent investor losses, and using investor funds to pay purported profits to other investors. The subjects also allegedly took measures to make the scams appear to be legitimate businesses through the creation of professional websites and social media accounts where influencers and investors shared testimonials about the money they were supposedly making. The orders require the subjects to stop offering, selling, buying, or offering to buy securities in the state, and demonstrate DFPI’s continued crackdown on high yield investment programs.
SEC opens comment period on defining “exchange”
On April 14, the SEC reopened the comment period on proposed amendments to the statutory definition of “exchange” under Exchange Act rule 3b-16, which now includes systems that facilitate the trading of crypto asset securities. (See also SEC fact sheet here.) The comment period was reopened in response to feedback requesting information about how existing rules and the proposed amendments would apply to systems that trade crypto asset securities and meet the proposed definition of an exchange, or to trading systems that use distributed ledger or blockchain technology, including such systems characterized as decentralized finance (DeFi). The SEC also provided supplement information and economic analysis for systems that would now fall under the new, proposed definition of exchange. The reopened comment period allows an opportunity for interested persons to analyze and comment on the proposed amendments in light of the supplemental information. Comments are due 30 days after publication in the Federal Register.
“[G]iven how crypto trading platforms operate, many of them currently are exchanges, regardless of the reopening release we’re considering today,” SEC Chair Gary Gensler said. “These platforms match orders of multiple buyers and sellers of crypto securities using established, non-discretionary methods. That’s the definition of an exchange—and today, most crypto trading platforms meet it. That’s the case regardless of whether they call themselves centralized or decentralized.” He added that crypto-market investors must receive the same protections that the securities laws afford to all other markets. Commissioners Mark T. Uyeda and Hester M. Peirce voted against reopening the comment period. Uyeda cautioned against expanding the definition of an “exchange” in an “ambiguous manner,” saying it could “suppress further beneficial innovation.” Peirce also dissented, arguing that the proposal stretches the statutory definition of an “exchange” beyond a reasonable reading in an attempt to “reach a poorly defined set of activities with no evidence that investors will benefit.”
California joins multistate settlement with securities brokerage
On April 6, the California Department of Financial Protection and Innovation (DFPI) joined a multi-state settlement with a securities brokerage company stemming from an investigation spearheaded by state securities regulators from Alabama, Colorado, California, Delaware, New Jersey, South Dakota, and Texas relating to certain alleged operational and technical failures. According to DFPI, the investigation was triggered by a March 2020 incident in which the brokerage company experienced several platform outages during a period in which hundreds of thousands of investors relied on the company’s app to make trades, thus preventing some users from being able to process trades. The settlement order sets out multiple alleged violations by the brokerage company, including negligently disseminating inaccurate information to customers, failing to have a “reasonably designed customer identification program,” inadequately supervising critical technology, having a deficient system for dealing with customer inquiries, failing to exercise due diligence before approving certain option accounts, and failing to report all customer complaints to FINRA and state securities regulators.
While the company neither admitted nor denied the findings, it agreed to pay up to $10.2 million in penalties and will continue to implement recommendations to address the alleged misconduct. DFPI noted in its announcement that it “found no evidence of willful or fraudulent conduct” by the company, and said the company fully cooperated with the investigation.
SEC awards whistleblowers more than $12 million
On March 31, the SEC announced awards totaling more than $12 million to two whistleblowers whose information and assistance led to a successful SEC enforcement action. According to the redacted order, the first whistleblower prompted the opening of the investigation and provided information on violations that would otherwise have been difficult to detect, including by identifying key witnesses and helping enforcement staff understand complex fact patterns and issues concerning the matters under investigation. This information was also used to create an investigative plan and craft initial document requests. Citing the first whistleblower’s persistent efforts to remedy the issues, and the fact that the information was received several years before the second whistleblower’s information, the SEC said the first whistleblower will receive more than $9 million. The second whistleblower will receive $3 million for submitting important information “as a percipient witness” during the course of the investigation on topics that went beyond what the first whistleblower had been able to provide.