Wednesday, April 25, 2012

Has the SEC Stepped Up to the Plate on Fraud Enforcement Actions?

The Securities and Exchange Commission’s (“SEC”) mission is “to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.”  The SEC believes that its “investor protection mission is more compelling than ever” since more first-time investors have turned to the market to invest in their future.  Therefore, it goes without saying that the SEC’s enforcement authority is crucial in maintaining investor protection.  But, has the SEC stepped up to the plate considering the negative impact the 2008 financial crisis has had on investors?

The 2008 financial crisis had devastating effects on our economy which caused massive job losses and a growing number of American families at risk of foreclosure and poverty.  However, some companies made substantial profits from the financial collapse and many top executives received considerable bonuses (some from government bailout money) after millions of families’ investments dwindled or even disappeared. 
Most recently, the SEC filed civil fraud charges in Texas against former Chief Executive Anthony Nocella and former Chief Financial Officer J. Russell McCann of Franklin Bank Corp. for concealing the deterioration of the bank’s finances during the mortgage crisis.  Specifically, the SEC alleged that in 2007, Nocella and Man used aggressive loan modification programs to hide the bank’s non-performing loans and artificially boost profits.  See SEC Complaint

Despite having charged over 100 people and firms with fraud tied to the financial crisis, critics of the SEC believe the agency hasn’t buckled down hard enough.  Yet SEC enforcement chief, Robert Khuzami, believe these numbers show the agencies effectiveness in “tackling financial-crisis wrong-doing.”  Of the 74 cases filed against individuals, 55 are chief executives, finance chiefs or other top officers.  Khuzami believes this “sends a strong deterrent message.”  

Many of the SEC critics note that about 24 of the people charged by the SEC have avoided trial by reaching “weak” settlements.  Senator Grassley from Iowa stated, “The lack of accountability from Wall Street encourages recidivism.” 

For instance, Angelo Mozilo, Chief Executive of Countrywide Financial Corp., agreed to a settlement of $67.5 million ($22.5 million penalty and $45 million disgorgement), while denying any wrongdoing.  These sanctions are supposed to compensate investors for their losses.   However, the repayment of illegal profits is tax-deductible and can be covered by some corporate insurance policies.  In Mozilo’s case, nearly half of the $45 million payment came from Countrywide's current owner, Bank of America Corp.  It can be difficult for the SEC to challenge indemnification rights in employment contracts or insurance policies.

According to The Wall Street Journal, in the 24 crisis-related cases where the SEC reached a settlement with an individual, the median sanction was $203,751.  These same defendants paid a combined $80.7 million in penalties.  Most of those penalties came from executives at collapsed mortgage lenders such Countrywide, American Home Mortgage Investment Corp. and New Century Financial Corp.; yet, their investors sustained losses of about $31 billion based on the three companies' peak stock-market value before the financial crisis began.  These penalties arguably pale in comparison to investor losses. 
Even some federal judges have criticized the large gaps between investor losses and the penalty.  For example, U.S. District Judge Frederic Block in New York, said $1.05 million in penalties paid by two former Bear Stearns Cos. hedge-fund managers, Ralph Cioffi and Matthew Tannin, in a proposed settlement of civil-fraud charges against them was “chump change” compared with the $1.8 billion lost by investors. The judge has not yet approved the proposed settlement.

While to some, the above penalties may seem like an inadequate punishment for the charges, Cioffi and Tannin have agreed to a temporary ban from the securities industry.  Khuzami believes the SEC’s power to expel people from the securities industry or from serving as directors of public companies is “probably one of the most powerful sanctions [it has].” 

Furthermore, when reaching settlements, the SEC has to weigh the likelihood of losing to a jury, along with the amount the agency can show was a direct result of the wrongdoing.  In some cases, it can be hard to say with certainty how much of investor losses were caused by fraud or illegal conduct, or if any fraud or illegal conduct actually took place.  Usually, defendants argue the financial losses were due to a failure to predict the meltdown, rather than any fraud on their part.  The answer is not always clear cut and pushing for stricter penalties across the board may not be appropriate for each case. 

Nevertheless, we can only hope that Americans’ trust in our banking and financial systems can once again be restored. 

Thursday, April 12, 2012

Finra Sends Out a Busy Signal to Telemarketing

The Financial Industry Regulatory Authority (“Finra”) recently  announced the approval of new Finra Rule 3230 by the U.S. Securitiesand Exchange Commission (“SEC”), thereby replacing NASD Rule 2212. Finra Rule 3230 speaks directly to the telemarketing activities of Finra member firms and their associated persons and has an effective date of June 29, 2012.

Finra Rule 3230

NASD Rule 2212, NYSE Rule 440A and NYSE Rule Interpretation 440A/01 were all invalidated by the SEC’s approval of Rule 3230. That said, however, the new rule does adopt certain provisions of NYSE Rule 440A and its Interpretation and is substantively similar in context to FTC rules and regulations dealing with telemarketing activities and other such deceptive and abusive practices.

FinraRule 3230 contains several components, each of which is highlighted below.

  1. General Telemarketing Requirements

Rule 3230 states that no Finra member firm or associated person of a member firm may initiate an outbound telephone call to any personal residence prior to 8:00am or after 9:00pm local time at the location of the called individual. However, such a call is permissible if the member firm meets one of the following exceptions:

  • The member has an established business relationship with the person being called;
  • The member has received the person’s prior permission or invitation; or,
  • The person phoned is a broker or dealer.

If one of the defined exceptions is not met, such a call would be deemed a rule violation.

In addition, no member firm or associated person may make an outbound telephone call to a person whom has previously requested to not be contacted by the member firm or who has registered his/her telephone number with the FTC national Do-Not-Call Registry.

  1. Do-Not-Call Registry

The rule states that a member firm telemarketing calls will not be held to have committed a violation of 3230(a)(3) by phoning a person on a phone number registered with the national Do-Not-Call Registry if:

  • The member has an established business relationship with the recipient of such a call (It should be noted, a request to be placed on the firm’s Do-Not-Call list ceases the business relationship, even if the person continues to conduct business with the firm.);
  • The member has obtained the prior express written consent of the recipient to receive such a call; or,
  • The associated person placing the call has a personal relationship with the recipient of the call.

  1. Safe Harbor Provision

A member firm or associated person of a member will be deemed to not be liable of violating 3230(a)(3) if the member can demonstrate that such violation is the result of an error and that the member meets the following benchmarks:

  • The member has established and implemented written procedures to comply will the rules and requirements of the national Do-Not-Call registry;
  • The member has trained its personnel and any 3rd parties assisting with the member’s compliance on the member’s procedures established pursuant to the national Do-Not-Call registry;
  • The member has maintained and recorded a listing of all telephone numbers which it may not contact; and,
  • The member utilizes a process or procedure whereby it seeks to prevent any outbound telephone call to any telephone number on any Do-Not-Call registry, using a version of the national Do-Not-Call registry obtained from the administrator of the registry not more than 31 days prior to the date any such call is made, and the member maintains records documenting such a process.

  1. Procedures

Prior to employing telemarketing activities, a member firm must first develop and establish procedures to comply with Rule 3230. Such procedures must, at a minimum, satisfy the following:

  • Members must have a written policy for the maintenance of a Do-Not-Call registry.
  • Personnel of a member that engage in telemarketing activities must be informed of and trained on the use of such a Do-Not-Call registry.
  • A member who receives a request from a person not to receive calls from that member must record the request and place the person's name, if provided, and telephone number on the firm's Do-Not-Call registry at the time the request received. Members must honor such a request within a reasonable time, not to exceed 30-days from the date the request is made. A member will be held liable for the failure to honor such a request, even if such requests are recorded or maintained by a 3rd party placing calls on behalf of a member.
  • A member or associated person of a member making an outbound telephone call must provide the call recipient with the name of the individual caller, the name of the member, an address or telephone number at which the member may be contacted, and inform the recipient that the purpose of the call is to solicit the purchase of securities or related services. In addition, the telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges.
  • Unless specifically requested to the contrary, a person's do-not-call request shall apply to the member making the call and will not apply to any affiliated entities unless the consumer reasonably would expect such affiliated entities to be included given the identification of the caller and the product being advertised.

  1. Wireless Communications

All provisions of the rule shall also apply to calls made by the member and its associated persons to wireless telephone numbers.

  1. Outsourcing Telemarketing

A member shall still remain accountable for certifying compliance with the provisions of the rule, even if it should outsource some or all of its telemarketing services to an outside party.

  1. Called ID Information

Any member that engages in telemarketing activities must ensure that the telephone numbers used and, where available, the name of the member is appropriately displayed on any caller ID devices utilized by the recipient of an outbound call. Such a telephone number provided must be available during normal business hours for a recipient of such a call to make a Do-Not-Call request.

  1. Unencrypted Consumer Account Numbers

No member or associated person shall disclose or receive, for consideration, unencrypted consumer account numbers for use in the member’s telemarketing activities. The term “unencrypted” shall mean not only complete, visible account numbers, but also encrypted information with a key to its decryption.

  1. Submission of Billing Information

For any telemarketing transaction, a member or its associated person must obtain the express consent of the person to be charged.
In any telemarketing transaction involving preacquired account information and a free-to-pay conversion feature, the member must:

  • Obtain from the customer, at a minimum, the last four digits of the account number to be charged;
  • Obtain from the customer an express agreement to be charged; and,
  • Make and maintain an audio recording of the entire telemarketing transaction.

In any other telemarketing transaction involving preacquired account information not described above, the member must:

  • Identify the account to be charged with sufficient specificity for the customer to understand what account will be charged; and,
  • Obtain from the customer an express agreement to be charged and to be charged using the account number identified.

  1. Abandoned Calls

No member shall “abandon” any outbound telemarketing call. An outbound call is considered to be “abandoned” if a person answers it and the call is not connected to a person associated with a member within two seconds of the person's completed greeting.

A member shall not be liable for violating this provision of the rule if:

  • The member employs technology that ensures abandonment of no more than three percent of all telemarketing calls answered by a person, measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period or portion thereof that the campaign continues;
  • The member allows the telephone to ring for at least 15 seconds or four rings before disconnecting an unanswered call;
  • Whenever a person associated with a member is not available to speak with the person answering the telemarketing call within two seconds after the person's completed greeting, the member plays a recorded message that states the name and telephone number of the member or person associated with the member on whose behalf the call was placed; and,
  • The member retains records establishing compliance with this provision of the rule.

  1. Pre-recorded Messages

No member shall initiate an outbound telemarketing call that delivers a prerecorded message other than a prerecorded message permitted for compliance with the call abandonment safe harbor unless:
  • The member has obtained from the recipient of the call an express written agreement that:
    • The member obtained only after a clear and conspicuous disclosure that the purpose of the agreement is to authorize the member to place prerecorded calls to such person;
    • The member obtained without requiring, directly or indirectly, that the agreement be executed as a condition of opening an account or purchasing any good or service;
    • Evidences the willingness of the recipient of the call to receive calls that deliver prerecorded messages by or on behalf of the member or its associated persons; and,
    • Includes such person's telephone number and signature (which may be obtained electronically under the E-Sign Act);
  • The member allows the telephone to ring for at least 15 seconds or four rings before disconnecting an unanswered call; and within two seconds after the completed greeting of the person called, plays a prerecorded message that promptly provides the disclosures above, followed immediately by a disclosure of one or both of the following:
  • For a call that could be answered by a person, that the person called can use an automated interactive voice and/or keypress-activated opt-out mechanism to assert a do-not-call request at any time during the message. Such a mechanism must:
    • automatically add the number called to the member's Do-Not-Call registry;
    • Once invoked, immediately disconnect the call; and,
    • Be available for use at any time during the message.
  • For a call that could be answered by an answering machine or voicemail service, that the person called can use a toll-free telephone number to assert a do-not-call request. The number provided must connect directly to an automated interactive voice or keypress-activated opt-out mechanism that:
    • Automatically adds the number called to the member's Do-Not-Call registry;
    • Immediately thereafter disconnects the call; and,
    • Is accessible at any time throughout the duration of the telemarketing campaign; and,
  • The member complies with all other requirements of Rule 3230 and other applicable federal and state laws.

  1. Credit Card Laundering

Except as expressly permitted by the applicable credit card system, no member or person associated with a member shall:

  • Present for payment, a credit card sales draft generated by a telemarketing transaction that is not the result of a telemarketing credit card transaction between the cardholder and the member;
  • Employ, solicit, or otherwise cause a merchant, or an employee, representative or agent of the merchant, to present for payment, a credit card sales draft generated by a telemarketing transaction that is not the result of a telemarketing credit card transaction between the cardholder and the merchant; or,
  • Obtain access to the credit card system through the use of a business relationship or an affiliation with a merchant, when such access is not authorized by the merchant agreement or the applicable credit card system.

  1. Definitions

Finra Rule 3230 adopts definitions that are substantially similar to the FTC’s

Supplementary Material

Rule 3230 also includes as Supplementary Material a provision that is similar to NYSE Rule Interpretation 440A/01 and which reminds members that the rule does not affect the obligation of any member or its associated person that engages in telemarketing to comply with relevant state and federal laws and rules.
Cosgrove Law, LLC welcomes guest blogger Jeffery Barton.  Mr. Barton is able to offer a variety of compliance consulting services which can be used as an extension of the compliance services offered by Cosgrove Law, LLC.