THOSE THINGS YOU NEVER READ

There may be many documents that qualify for this blog entry, but I am writing specifically about your brokerage account statements. Sure, you may take a peek at the bottom line now and then, but actually reading the entire statement—who does that?! Let me suggest that next month it will be YOU! 

Brokerage statements hold information your brokerage firm is required to provide to you on a regular basis. They hold key information about your life investments and how they are being managed. The Financial Industry Regulatory Authority (“FINRA”) has provided helpful insight to consumers regarding understanding brokerage statements and the importance of the information contained in those statements. Additionally, most regulators are going to agree that staying on top of your brokerage accounts is extremely important in ensuring your accounts are being handled in an appropriate manner. 

This doesn’t mean you have to know a lot about investments, but, according to FINRA, “Not only do these documents help you stay on top of your investment holdings, but they also provide valuable information that can alert you to errors, or even misconduct by your broker or brokerage firm such as unauthorized trading or overcharging customers for handling transactions.” So, even if you don’t know everything a particular Mutual Fund holds, your statements can bring to light problems you might not otherwise notice in a timely manner. Some examples of “red flags” are: Information or transactions in the account summary that you did not authorize or expect, or income that appears on your statement, but has not been deposited in your account. 

FINRA has provided a helpful key information guide that breaks down sections of an account statement and provides information about why it is important and what activity might qualify as a red flag. 

Many consumers are overwhelmed by the thought of reviewing financial information on a regular basis. Either they lack confidence that they will understand the statements and their holdings, or they fear activity in the market may have decreased their balance so they just avoid opening the statement all together. If you start out slow, only focusing on certain portions of your statement until you feel like you have an understanding of what should be there and what it means, you can progress to fully reading the account statement. While it may be uncomfortable and time consuming, it is an important step in overseeing how your hard earned money is being managed. It is a way to protect yourself from fraud and other unsavory activity and, should you come across something on your statement you are concerned about, FINRA recommends that you “immediately call the firm that issued the statement or confirmation about any transaction or entry [you] do not understand or did not authorize, and re-confirm any oral communication in writing with the firm.” 

So the next time that statement comes in the mail, think positive—this is an opportunity to protect your assets and you can start out slow—just be sure to start!

SEC’s Whistleblower Rewards Program – Who are the Real Bounty Hunters?

The U.S. Securities and Exchange Commission (“SEC”) made its first payout of $50,000 to a whistleblower since a program was created last year to reward people who provide regulators with evidence of securities fraud. 

The SEC set up a whistleblower program in August 2011 to reward individuals who provide evidence of securities law violations which lead to SEC sanctions of more than $1 million. The program was authorized in the 2010 financial-regulation overhaul. Potential awards could range from 10 percent to 30 percent of the money collected. 

The unnamed whistleblower helped the SEC bring an enforcement action that resulted in more than $1 million in sanctions.  The SEC rewarded the anonymous whistleblower 30% of the recovery.  So far the SEC has only collected $150,000 but as more of the sanctions are recovered, the whistleblower’s reward will increase.  The SEC believes the announcement of its first reward payout will give the program a boost.  However a second person in the same matter was denied a whistleblower reward because the information provided by the person did not lead to or significantly contribute to the enforcement action. 

While the program is supposed to encourage individuals to come forward with information relating to securities fraud, Peter Sivere, a former compliance officer at JPMorgan Chase had a much different experience with his efforts to “do the right thing.”  To be clear, the story of Peter Sivere occurred from 2003 to 2005 before the whistleblower program was adopted by the SEC. 

During an SEC investigation of whether a New Jersey hedge fund, a big client of JPMorgan, was late trading mutual funds, Sivere was allegedly terminated from JPMorgan for turning over emails to the SEC and expressing concerns that JPMorgan was not fully cooperating with the investigation.  The emails indicated that JPMorgan had provided a $105 million line of credit to the hedge fund that it used to facilitate its late trading in mutual funds.  Late trading occurs when one buys shares at the day’s final price even though the market has closed. 

Before his termination, Sivere contacted SEC lawyer George Demos by email seeking to become a whistleblower and inquiring whether he would be able to collect a reward for his information.  Even though Demos informed him that a “bounty” would not be available, Sivere turned the emails over to the SEC anyways.  Sivere was later fired and JPMorgan reported on his U-5 that he was terminated for “accessing e-mails without authorization.”  JPMorgan later agreed in a settlement to amend his U-5 to state his employment ended as a result of a “disagreement regarding the scope of [Sivere’s] authority.” 

Sivere reported the alleged retaliation to the Occupational Safety and Health Administration (“OSHA”) and it was discovered during their investigation that Demos informed JPMorgan’s lawyers that Sivere had asked the SEC for a whistleblower bounty and Demos even encouraged JPMorgan to use this information in the lawsuit between Sivere and JPMorgan.  While Demos’ behavior violates SEC protocol, and the allegations were confirmed by the SEC’s inspector general, no disciplinary action was taken against Demos.  In fact, Demos held his position with the SEC until 2009.
 
More recently, a whistleblower’s identity was inadvertently revealed during an SEC investigation of Pipeline Trading Systems, LLC when an SEC lawyer shared the whistleblower's notebook with one of Pipeline’s executives.  The executive recognized the whistleblower's handwriting.  The whistleblower, Peter Earle, was a former employee of one of Pipeline’s trading affiliates and expressed his disappointment in the SEC’s failed efforts to keep his identify private.

The new whistleblower rewards program is supposed to guarantee anonymity, yet the SEC has scars from the past which might be counter intuitive for the program, especially since no action was taken against Demos for the confidentiality violation. 

If you think you have information that may lead to a recovery under the whistleblower program, contact the attorneys at Cosgrove Law Group, LLC to have your rights represented and your identity protected.

Second Circuit Finds Existence of Indirect Contract and Tort Liability by Adviser to Investors Under Investment Management Contract

In Bayerische Landesbank v. Aladdin Capital Management LLC, 11-4306-cv (2nd Cir. August 6, 2012), Plaintiffs-Appellants Bayerische Landesbank (“Bayerische”) and Bayerische Landesbank New York Branch (collectively “Plaintiffs”) filed an action against Defendant-Appellee Aladdin Capital Management LLC (“Aladdin”) for breach of contract and gross negligence based on Aladdin’s alleged disregard of its obligation to manage a portfolio in favor of investors.

Aladdin was the manager of an investment portfolio containing collateralized debt obligations ("CDOs").  A CDO is a financial instrument that sells interests (in this case, in the form of “Notes”) to investors and pays the investors based on the performance of the underlying asset held by the CDO.  The CDO at issue in this case, called the Aladdin Synthetic CDO II (“Aladdin CDO”), was a “synthetic” CDO, meaning that the asset it held for its investors was not a traditional asset like a stock or bond, but was instead a derivative instrument, i.e., an instrument whose value was determined in reference to still other assets.  The derivative instrument the Aladdin CDO held was a “credit default swap” entered into between the Aladdin CDO and Goldman Sachs Capital Markets, L.P. based on the debt of approximately one hundred corporate entities that were referred to as the “Reference Entities” and comprised the “Reference Portfolio.”

Aladdin's formal responsibilities were spelled out in the Portfolio Management Agreement (“PMA”), an agreement between Aladdin and the "shell issuer" created by Aladdin and Goldman Sachs.  The PMA was not signed by the "Noteholders," such as Plaintiffs.   In fact, Plaintiffs did not enter into any direct contract with Aladdin.  Plaintiffs purchased $60 million of the total $100 million worth of notes from Goldman Sachs, which underwrote the CDO.  Plaintiffs alleged that, following the issuance of the Aladdin CDO, Aladdin managed the portfolio in a grossly negligent fashion, causing Plaintiffs’ Notes to default.

On the basis of the foregoing, the Amended Complaint assertd two claims: (1) a claim in contract alleging that Aladdin breached its obligations under the PMA; and (2) a claim in tort alleging that Aladdin’s conduct was grossly negligent, resulting in harm to the Noteholders.

The district court held that, because of a provision of the contract limiting intended third-party beneficiaries to those “specifically provided herein,” Plaintiffs could not bring a third-party beneficiary breach of contract claim, and held also that plaintiffs could not “recast” their failed contract claim in tort. The Second Circuit Court of Appeals disagreed.

With regard to the breach of contract claim, the court noted that under New York law "a third party may enforce a contract when 'recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and . . . the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.'” Levin v. Tiber Holding Corp., 277 F.3d 243, 248 (2d Cir. 2002) (quoting Restatement (Second) of Contracts § 302).   The court found that portions of the PMA plausibly demonstrated an intent to benefit the Noteholders by defining Aladdin’s obligations and delineating the scope of its liability to the Noteholders.  Therefore, the Plaintiffs' breach of contract claim survived the motion to dismiss.

The court next turned to Plaintiffs' second, alternative, claim: that Aladdin breached a duty of care, in tort, to the Noteholders, by engaging in acts that amounted to gross negligence in its management of the Reference Portfolio. The court noted that, under New York law, a breach of contract will not give rise to a tort claim unless a legal duty independent of the contract itself has been violated. See, e.g., Clark-Fitzpatrick v. Long Island R.R. Co., 70 N.Y.2d 4 382, 389 (1987).  Such a “legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent on the contract.” Id.  Where an independent tort duty is present, a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct.  See Hargrave v. Oki Nursery, Inc., 636 F.2d 897, 898-99 (2d Cir. 1980) (citing Channel Master Corp. v. Aluminum Ltd. Sales, Inc., 4 N.Y.2d 403, 408 (1958)).

The court found that the allegations in the Amended Complaint were sufficient to withstand a Fed. R. Civ. P. 12(b)(6) motion to dismiss.  In light of Plaintiffs allegations that it detrimentally relied on Aladdin's representations of how it would select the Reference Portfolio and manage the portfolio for the life of the CDO, Plaintiffs sufficiently established that “[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties’ relationship” in this case. Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 551 (1992). This legal duty, though assessed largely on the standard of care and the other obligations set forth in the contract, would arise out of "the independent characteristics of the relationship between Bayerische and Aladdin, and the circumstances under which Bayerische purchased the notes linked to the Reference Portfolio that Aladdin, under the PMA, was to manage."

While Aladdin argued that the noteholders failed to allege facts that plausibly show Aladdin’s conduct amounted to gross negligence, the court disagreed.  Specifically, the court found that accepting below-market spreads on risky entities appeared to have been contrary to how Aladdin explicitly represented it would manage the portfolio on behalf of the Noteholders.  After discovery, the court noted that facts could come to light which may show a different story.  But at the preliminary motion-to-dismiss stage, drawing all inferences in Plaintiffs' favor, Plaintiffs plausibly alleged that Aladdin’s gross negligence exposed Plaintiffs to greater risk that they would lose their entire investment than would have otherwise been the case.

This case is important in that it demonstrates how a poorly drafted provision in an investment management agreement can open the door to third-party beneficiaries claiming a breach of contract and, in addition, how advisers may be exposed to indirect tort liability in a securitization.