Federal Securities Law Source

SEC forces Mickelson to return $1 million from insider trading

PGA golfer Phil Mickelson agreed to forfeit almost $1 million that the Securities and Exchange Commission (SEC) said was obtained through insider trading. Mickelson was named as a “relief defendant” in a criminal case, filed in the Southern District of New York against professional gambler William Walters and a former director of Dean Foods, Thomas Davis. Mickelson was not criminally charged but is subject to a SEC civil action requiring a claw back of profits he made from the improper trades.

According the SEC complaint, Walters received non-public, insider information from 2008 through 2012 about Dean Foods, the nation’s largest milk producer, from his long-time friend Davis, who was at the time chairman of Dean Foods. The inside information concerned plan to spin off subsidiary WhiteWave Foods Co.

In 2012, Mickelson received a telephone tip from Walters that Mickelson should purchase Dean Foods stock because the company was about to spin off its profitable subsidiary. At the time of the call, Mickelson owed Walters money over sports gambling bets. Walters is considered by many as the most successful sports bettor in the country. Continue Reading

Delaware Courts continue scrutiny of “disclosure only” settlements in M&A litigation

On Jan. 22, 2016, the Delaware Court of Chancery released its opinion in In re Trulia Stockholder Litigation in which it rejected a “disclosure only” settlement of a shareholders’ suit challenging an M&A transaction. This decision confirms the trend of increasing hostility of the Delaware courts towards “disclosure only” settlements and serves as a warning to plaintiffs firms that they will find it increasingly difficult to extract attorneys’ fees from companies in these types of settlements.

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Supreme Court to review insider trading case

The Supreme Court has agreed to consider something that lies at the center of nearly every insider trading case: what prosecutors need to prove to win an insider trading conviction. This case aims to determine exactly what benefits corporate insiders need to receive for tips they disclose to traders to be illegal. It is expected to resolve a split in federal appeals courts and will review a July ruling regarding trades made by Bassam Salman from the California-based 9th U.S. Circuit Court of Appeals. Specifically, the court will review whether prosecutors had to prove that Salman’s brother-in-law, Maher Ara, a Citigroup investment banker, disclosed the information in exchange for a personal benefit.

Salman was convicted in 2014 and received a three-year sentence. On appeal, Salman relied upon the recent decision in the U.S. Court of Appeals for the 2nd Circuit, United States v. Newman (Newman), to challenge his conviction. The 9th Circuit rejected the 2nd Circuit’s reasoning in Newman and upheld the conviction.

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Article sheds light on practice of private equity sponsored borrowers selecting lenders’ counsel

Andrew Ross Sorkin wrote an interesting article in Tuesday’s New York Times regarding the practice of private equity firms designating the legal counsel to be used by its lenders in a leveraged buyout financing. In other words, the private equity firms engaging in this practice are hand selecting, and paying the fees of, the lawyers that will be on the other side of the transaction negotiating on behalf of the banks against the private equity sponsored borrowers. This practice constitutes a clear conflict of interest that tilts the negotiations of the financing in favor of the private equity sponsored borrowers.

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Recent litigation illustrates the importance of keeping accurate stock records

Earlier this month, The Wall Street Journal published an article on the ongoing litigation in the wake of the 2014 sale of Tibco Software Inc. to Vista Equity Partners. The Tibco litigation involved an error in the calculation of the number of shares outstanding that resulted in Tibco shareholders receiving approximately $100 million less than the buyer was actually willing to pay. The Tibco litigation illustrates the importance of sound corporate record keeping, particularly with respect to stock issued and outstanding and the capitalization table of a company. Continue Reading

Diverse companies receive SEC approval to raise funds with Regulation A+

The SEC has approved 12 Regulation A+ offerings (and about 40 initial Form 1-A filings have been made) since the new Regulation A+ rules became effective in June. The companies now raising money under Regulation A+ include a dental device manufacturer, technology companies, an automaker, a cannabis company and a bank. Regulation A+ allows private companies to raise up to $50 million by selling debt or equity to the public without having to meet all of the requirements of a traditional initial public offering.

Many of the companies using Regulation A+ are true startups, but some are existing businesses with customer revenue and operations. Dental device manufacturer Sun Dental Holdings is notable because it is using a registered broker-dealer placement agent to conduct its offering. Many of the approved offerings seek to publicly sell securities that likely will not result in loss of control for the current owners or require mandatory distributions or dividends, despite potentially raising millions.

Below is a summary of the SEC-approved Regulations A+ offerings.  Continue Reading

Corruption and conspiracy charges hit sports world: DOJ indicts additional FIFA officials in corruption conspiracy

While the latest happenings in the governing world of soccer are not a typical blog topic for us, the legal issues and impacts are worth considering in a broader context. Soccer fan or not, certainly interesting times.

Late Thursday Attorney General Loretta Lynch announced that 16 additional defendants have been indicted in the on-going probe of FIFA, soccer’s world governing body. The superseding indictment names several high-ranking FIFA officials and charges corruption involving two generations of soccer officials in South and Central America over a 24 year period. The corruption scheme involves more than $200 million in bribes to win media and marketing rights for major tournaments. Continue Reading

Real estate developers use Regulation A+ to raise capital

Regulation A+ is a potentially attractive way for real estate developers to raise up to $50 million for specific projects by selling debt or equity to the public without having to meet all of the requirements of a traditional initial public offering.

Several investment platforms for real estate development allow developers to market investment offerings to investors. At least two platforms, Fundrise and Groundfloor, have launched Regulation A+ offerings to raise capital, and the SEC has approved two of the Groundfloor offerings (a third was filed November 19). In fact, the second Groundfloor offering was approved in just 22 days from the date the offering statement was filed. Groundfloor claims to be the first real estate lending marketplace open to non-accredited investors. Fundrise claims to be the first online real estate investment available to anyone in the United States regardless of net worth. Below is a description of Regulation A+ and summaries of the types of real estate development offerings using Regulation A+ to raise capital.

 Regulation A+

Amended Regulation A, effective June 19, 2015 (Regulation A+) allows issuers to make public offerings up to $50 million in a 12-month period using general solicitation of, and advertising to, accredited and non-accredited investors. The issuer must file an offering statement and the offering circular with the SEC, which the SEC must approve (a “qualification”) before any sales can be made. Issuers are permitted to “test the waters” with potential investors to see if they are interested before filing with the SEC.

Securities sold under Regulation A+ are not restricted securities and can be freely sold by non-affiliates. Offerings over $20 million in a 12-month period (“Tier 2”) are exempt from state registration and qualification requirements. Offerings below $20 million in a 12-month period (“Tier 1”) must comply with state blue sky registration and qualification requirements unless the issuer chooses to comply with the Tier 2 requirements. All Regulation A+ offerings must disclose two years of financial statements, but the Tier 2 financial statements must be audited.

A non-accredited investor in a Tier 2 offering cannot invest more than 10% of the greater of his or her annual income or net worth. There is no investment limitation in Tier 1 offerings.

Tier 2 issuers must file current, semiannual, and annual reports that are less burdensome than (but analogous to) Exchange Act reports for public companies. But there is no requirement to provide the costly auditor’s attestation of the effectiveness of internal control over financial reporting or to comply with the costly disclosure obligations of the Exchange Act and the Sarbanes-Oxley Act.

Tier 1 issuers must file an exit report after the offering is terminated or completed. Tier 2 issuers can stop Tier 2 reporting after completing reporting for the fiscal year in which the offering was qualified if the issuer has fewer than 300 record holders and the offering is complete.

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DOJ explains rule changes in light of Yates memo

The U.S. Department of Justice (DOJ) detailed new rules that would focus investigations of corporations on responsible individuals and warned that companies cannot abuse the attorney-client privilege to hide key facts in criminal investigations.

On Monday, Deputy Attorney General Sally Yates, who issued the so-called Yates Memoranda in September, detailed DOJ policy on how the department will pursue criminal cases. Yates’ comments, at the ABA’s Money Laundering Enforcement Conference, specified changes to the United States Attorney’s Manual which establish objectives for criminal and civil investigations of corporations.

In prepared remarks, Yates provided a new mission statement for DOJ investigations: not to recover the largest amount of money from the greatest number of corporations but to “seek accountability from those who break our laws and victimize our citizens.” The changes make clear the practical impact of the shift to prosecuting individuals, not just corporations. Yates also cited a number of steps that prosecutors are expected to take to maximize the opportunity to pursue individual wrongdoers. Continue Reading

Commodities trader found guilty in first “spoofing” prosecution

A Chicago jury took one hour to find a trader guilty of “spoofing” some of the world’s largest commodities futures markets by deceptive electronic trading. On Tuesday, Michael Coscia was found guilty of 12 counts of fraud and “spoofing” by attempting to flood the gold, corn, soybean and crude oil futures markets with small orders, which he intended to cancel prior to execution. This case marked the first test of anti-spoofing legislation which was enacted in the 2010 Dodd-Frank Act.

Spoofing occurs when traders rapidly place orders with the intent to cancel them before the trades can be executed – all with the intent to deceive other investors to believe that there is a spike in demand for the commodity. This tactic has become increasingly prevalent with the emergence of electronic trading which has taken the place of face-to-face trading in commodity “pits.” Federal authorities, and market experts, believe that this type of activity could not have occurred in face-to-face trading, but “spoofers,” like Coscia, can now use the anonymity of electronic trading to manipulate demand.  Continue Reading

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