What Is Placing?

What Is A Placing

Do you want to know what is placing? A placing (called a placement in the US) is the issue of new securities, which are sold directly to holders, usually institutions. Unlike a rights issue a placing of shares is not an offer to existing shareholders; simply to any suitable buyers who can be found. The advantage of a placing is that it is a cheap and simple method of raising money. It does not require the paper work and administrative overhead that a rights issue or an open offer does. The shares (or other securities) are simply issued to a small number of new shareholders who are willing to buy substantial amounts of the new shares.

Placings can be unfair to existing shareholders by allowing new shareholders to buy shares at a discount to the market price. There are regulatory restrictions on placing that are designed to protect the rights of existing shareholders. However, they are a cheap, fast and simple way of raising money. Placing is another way in which listed companies can raise capital, and is the issue of securities to selected persons. Listed companies usually employ a placing broker to help identify interested investors. Listed companies may ask shareholders for a general mandate allowing the board of directors to increase the company’s share capital by up to 20% each year. Most listed companies ask the shareholders to approve this kind of mandate in the annual general meeting. Once it has this mandate, and provided it does not exceed the limit approved by the shareholders, the board does not need to ask the shareholders for approval before making a placing at any time during the year. If the board wants to issue more than the approved amount, it must get approval from the shareholders first. When a listed company wants to conduct a placing, it must publish an announcement disclosing the details, such as the reasons for the placing and how the proceeds will be used.

Who can the company place shares with?

A company must satisfy the Stock Exchange that the places are independent, and has to disclose their names if there are less than 6 of them. If there are 6 or more places, the company has to give a generic description of the places. GEM companies have to make more specific disclosures if there are different groups of places.

How about top-up placing? OR What is Placing

• A company can also raise funds by way of “top-up placing”. Under this arrangement, the major shareholders place their existing shares with independent persons, then subscribe for additional new shares. Again, a placing broker usually helps identify interested investors.
• In a top-up placing, the new shares’ issue price cannot be lower than the old shares’ placing price. Also, the number of new shares to be issued to the major shareholders must not exceed the number of old shares placed by them.

• If the issue does not exceed the amount of the general mandate and the major shareholders’ complete subscription of the new shares within 14 days after executing an agreement to reduce their shareholdings in the class of the old shares being placed, shareholders’ approval is not needed.
• As with a placing, companies have to satisfy the Stock Exchange that the placees are independent. The disclosure requirements for places are the same as for a placing.
Fund raising activities are part of a listed company’s commercial decisions, and regulators are generally not in a position to intervene in them. However, companies must ensure that all rules and regulations are complied with when they go to the market to seek further funds.

What is private placement?

A private placement is a method for both public and private companies to raise capital through the private sale of corporate debt or equity securities, to a limited number of qualified investors (aka lenders); it is an alternative to traditional capital sources, such as bank debt, or issuing securities on the public bond market.

Advantages of private placement

One major advantage of private placement is that the issuer isn’t subject to the SEC’s strict regulations for a typical public offering. With a private placement, the issuing company isn’t subject to the same disclosure and reporting requirements as a publicly offered bond. Furthermore, privately placed bonds don’t require credit-agency ratings. Another advantage of private placement is the cost and time-related savings involved. Issuing bonds publicly means incurring significant underwriter fees, while issuing them privately can save money. Similarly, the process can be expedited when done in a private manner. Furthermore, private placement deals can be custom-built to meet the financial needs of both the issuer and investors.

Advantages of Raising Capital through Private Placement

Small businesses face the constant challenge of raising affordable capital to fund business operations. Equity financing comes in a wide range of forms, including venture capital, an initial public offering, business loans, and private placement. Established companies may choose the route of an initial public offering to raise capital through selling shares of company stock. However, this strategy can be complex and costly, and it may not be suitable for smaller, less-established businesses. As an alternative to an initial public offering, businesses that want to offer shares to investors can complete a private placement investment. This strategy allows a company to sell shares of company stock to a select group of investors privately instead of the public. Private placement has advantages over other equity financing methods, including less burdensome regulatory requirements, reduced cost and time, and the ability to remain a private company.

Regulatory Requirements for Private Placement

When a company decides to issue shares of an initial public offering, the U.S. Securities and Exchange Commission requires the company to meet a lengthy list of requirements. Detailed financial reporting is necessary once an initial public offering is issued, and any shareholder must be able to access the company’s financial statements at any time. This information should provide enough disclosure to investors so they can make informed investment decisions. Private placements are offered to a small group of select investors instead of the public. So, companies employing this type of financing do not need to comply with the same reporting and disclosure regulations. Instead, private placement financing deals are exempt from SEC regulations under Regulation D. There is less concern from the SEC regarding participating investors’ level of investment knowledge because more sophisticated investors (such as pension funds, mutual fund companies, and insurance companies) purchase the majority of private placement shares.

Saved Cost and Time

Equity financing deals such as initial public offerings and venture capital often take time to configure and finalize. There are extensive vetting processes in place from the SEC and venture capitalist firms with which companies seeking this type of capital must comply before receiving funds. Completing all the necessary requirements can take up to a year, and the costs associated with doing so can be a burden to the business. The nature of a private placement makes the funding process much less time-consuming and far less costly for the receiving company. Because no securities registration is necessary, fewer legal fees are associated with this strategy compared to other financing options. Additionally, the smaller number of investors in the deal results in less negotiation before the company receives funding.

Private Means Private

The greatest benefit to a private placement is the company’s ability to remain a private company. The exemption under Regulation D allows companies to raise capital while keeping financial records private instead of disclosing information each quarter to the buying public. A business obtaining investment through private placement is also not required to give up a seat on the board of directors or a management position to the group of investors. Instead, control over business operations and financial management remains with the owner, unlike a venture capital deal.
Reasons to issue a private placement

Privacy and Control

Private placements enable companies that value privacy to remain private. In contrast to public debt and equity offerings – which require public filings, disclosures of company information and financing documents and terms – private placement transactions are negotiated confidentially, and public disclosure requirements are limited. With a private placement, companies would not be beholden to public shareholders.

Long Maturities

Private placements provide longer maturities than typical bank financing arrangements. They are ideal for companies seeking to extend or layer their refinancing obligations out beyond the typical 3-5-year bank tenor. Additionally, longer maturities often allow for limited amortization, which can be attractive to companies seeking to invest in capital assets, acquisitions and/or invest in projects that have a longer investment return runway.

Fixed Rate

Typically, private placements are offered at a fixed-interest rate, minimizing interest rate risk. Through a fixed-rate financing, companies can avoid the concern commonly associated with floating-rate coupons, should underlying interest rates rise. A fixed coupon generally allows companies to allocate the cost of debt capital for specific project financings, acquisitions or large capital investment programs.

Diversify Capital Sources

Private placements help diversify a company’s sources of capital and capital structure. The stable investment appetite shown by insurance companies and other large institutional investors in the private placement market is typically independent from many of the market variables that impact bank market lending activity. Since the terms of private placements can be customized, these transactions are typically crafted to complement existing bank credit facility capacity as opposed to directly competing with these relationships. Creating capital access in both the private debt and bank markets can allow companies to optimize their access to debt capital. Diversification of financing sources becomes particularly important during market cycles when bank liquidity may be tight.

Additional Capacity

Many companies issue private placements because they have outgrown their borrowing capacity and need capital beyond what their existing lenders (banks, private equity firms, etc.) can provide. Private placements typically focus on cash flow lending metrics and can be completed on either a secured or unsecured basis, depending on the issuer’s existing capital structure.

Buy-and-Hold

Private placements are typically “buy-and-hold,” meaning the debt investment wouldn’t be purchased with the intent to sell to another investor. Thus, private placement borrowers benefit from the ability to create a long-term relationship with the same investor throughout the life of the financing.

Ease of Execution

Private placement financings are regularly completed by both privately-held, middle-market companies as well as large public companies. These transactions provide issuers with access to capital on a scale that rivals underwritten public debt offerings, but without certain preconditional requirements, such as ratings, public registrations or minimum size restrictions. For public companies, private placements can offer superior execution relative to the public market for small issuance sizes as well as greater structural flexibility.

Cost Savings

A company can often issue a private placement for a much lower all-in cost than it could in a public offering. For public issuers, the Security and Exchange Commission (SEC) related registration, legal documentation and underwriting fees for a public offering can be expensive. Additionally, in contrast to banks that often rely on ancillary services and fee generation to enhance investment return, private placement lenders rely exclusively on the yield from the notes that they purchase. Taking into consideration the yield-equivalent savings on avoided underwriting fees, in conjunction with the yield premium often associated with first time issuers and small issuance premiums, private placements can provide a very attractive alternative to the public debt market.

Fewer Investors

Unlike issuing securities on the public market, where companies issuing debt securities often deal with hundreds of investors, private placement transactions typically involve fewer than 10-20 investors, and in many cases, are completed with a single large institutional investor. This approach can materially simplify the investor tracking burden for issuers as well as allow them to concentrate their investor-relationship efforts on a few key financial partners.

Familiar Pricing Process

The process for pricing private placements debt transactions is very similar to that of public securities. The coupon set for fixed-rate notes issued reflects the underlying U.S. Treasury rate corresponding to the tenor of the notes issued, plus a credit risk premium (a “credit spread”). This process allows for general transparency as to the approach that institutional investors undertake when establishing the economics of the transaction.

Speed of Execution

The growth and maturity of the private placement market has led to improved standardization of documentation, visibility of pricing and terms as well as increased capacity for financings. As a result, the private market can accommodate transactions as small as $10 million and as large as $1-$2 billion. That, when combined with standardized documentation and a smaller universe of investors, fosters quick execution of an investment, generally within 6-8 weeks (for an initial transaction, with follow-on financings executed within a shorter time frame). As noted, it can be much faster to issue a private placement versus a public corporate bond (particularly for first-time issuers) due to the elimination of prospectus drafting, rating agency diligence and registering requirements with the SEC.

Securities Placing Lawyer Free Consultation

When you need legal help with a placing in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

 

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

 

Ascent Law LLC

 

 

 

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What Are The Advantages Of Private Placement?

What Are The Advantages Of Private Placement

The private placement definition is the process of raising capital directly from institutional investors. A company that does not have access to or does not wish to make use of public capital markets can issue stocks, bonds, or other financial instruments directly to institutional investors. Private placement occurs when a company makes an offering of securities to an individual or a small group of investors. Since such an offering does not qualify as a public sale of securities, it does not need to be registered with the Securities and Exchange Commission (SEC) and is exempt from the usual reporting requirements. Private placements are generally considered a cost-effective way for small businesses to raise capital without going public through an initial public offering (IPO). Institutional investors include the following:

• Mutual funds,
• Pension funds
• Insurance companies
• Large banks
You do not have to register private placement issuances with the Securities and Exchange Commission (SEC). In addition, you do not have to provide a detailed prospectus. The issuing company and the purchasing investors negotiates the terms and conditions are negotiated. You cannot trade private placement securities on public markets, but they can be traded privately among institutional investors after they have been issued by the issuing company. A private placement is in contrast to a public offering, which is issued in public capital markets, requires a detailed prospectus, must be registered with the SEC, and can be traded by the investing public in the secondary markets.

Advantages of Private Placement

Many business owners like the idea of raising cash via an initial public offering, but the expense and complexity of going public usually make it impractical for most small businesses. A simpler, less expensive alternative to raise capital and still maintain a high degree of control over the distribution of shares is a private placement. A private placement is similar to an IPO except that rather than being sold to the general public, ownership shares are sold to a small group of private investors, usually large banks, mutual funds, insurance companies, and pension funds. Also known as nonpublic offerings, most private placements do not have to be registered with the Securities and Exchange Commission.

In addition, businesses do not typically need to disclose detailed financial information, and the need for a prospectus is often waived. For these and other reasons, private placements are usually significantly less complicated and expensive than public offerings. Private placements offer small businesses a number of advantages over IPOs. Since private placements do not require the assistance of brokers or underwriters, they are considerably less expensive and time-consuming. In addition, private placements may be the only source of capital available to risky ventures or start-up firms. A private placement may also enable a small business owner to hand-pick investors with compatible goals and interests. Since the investors are likely to be sophisticated business people, it may be possible for the company to structure more complex and confidential transactions. If the investors are themselves entrepreneurs, they may be able to offer valuable assistance to the company’s management. Finally, unlike public stock offerings, private placements enable small businesses to maintain their private status.

The primary advantage of the private placement is that it bypasses the stringent regulatory requirements of a public offering. You have to conduct public offerings in accordance with SEC regulations; however, investors and the issuing company privately negotiate the private placements. Furthermore, they do not have to register with the SEC, do not require the issuing company to publicly disclose its financial statements, and ultimately avoid the scrutiny of the SEC. Another advantage of private placement is the reduced time of issuance and the reduced costs of issuance. Issuing securities publicly can be time-consuming and may require certain expenses. It forgoes the time and costs that come with a public offering. Also, because the investors and the issuing company privately negotiate private placements, they can be tailored to meet the financing needs of the company and the investing needs of the investor. This gives both parties a degree of flexibility. Small businesses face the constant challenge of raising affordable capital to fund business operations. Equity financing comes in a wide range of forms, including venture capital, an initial public offering, business loans, and private placement. Established companies may choose the route of an initial public offering to raise capital through selling shares of company stock. However, this strategy can be complex and costly, and it may not be suitable for smaller, less-established businesses. As an alternative to an initial public offering, businesses that want to offer shares to investors can complete a private placement investment. This strategy allows a company to sell shares of company stock to a select group of investors privately instead of the public. Private placement has advantages over other equity financing methods, including less burdensome regulatory requirements, reduced cost and time, and the ability to remain a private company.

Advantages Of Using Private Placements

There are several advantages to using private placements to raise finance for your business. They:

• allow you to choose your own investors – this increases the chances of having investors with similar objectives to you and means they may be able to provide business advice and assistance, as well as funding
• allow you to remain a private company, rather than having to go public to raise finance
• provide flexibility in the amount and type of funding – eg allowing a combination of bonds and equity capital, with amounts ranging from less than £100,000 to several million pounds
• allow you to make a return on the investment over a longer time period – as private placement investors will be prepared to be more patient than other investors, such as venture capitalists
• require less investment of both money and time than public share flotations
• provide a faster turnaround on raising finance than the venture capital markets or public placements

As a result, private placements are sometimes the only source of raising substantial capital for more risky ventures or new businesses.

Disadvantages Of Using Private Placements

There are also some disadvantages of using private placements to raise business finance. For example, there will be:

• a reduced market for the bonds or shares in your business, which may have a long-term effect on the value of the business as a whole
• a limited number of potential investors, who may not want to invest substantial amounts individually
• the need to place the bonds or shares at a substantial discount to compensate investors for their greater risk and longer-term returns
Additionally, although it isn’t a mandatory requirement, having a credit rating can be an advantage. However, this is time consuming and will be an added cost to the process.

Regulatory Requirements for Private Placement

When a company decides to issue shares of an initial public offering, the U.S. Securities and Exchange Commission requires the company to meet a lengthy list of requirements. Detailed financial reporting is necessary once an initial public offering is issued, and any shareholder must be able to access the company’s financial statements at any time. This information should provide enough disclosure to investors so they can make informed investment decisions. Private placements are offered to a small group of select investors instead of the public. So, companies employing this type of financing do not need to comply with the same reporting and disclosure regulations. Instead, private placement financing deals are exempt from SEC regulations under Regulation D. There is less concern from the SEC regarding participating investors’ level of investment knowledge because more sophisticated investors (such as pension funds, mutual fund companies, and insurance companies) purchase the majority of private placement shares.

Saved Cost and Time

Equity financing deals such as initial public offerings and venture capital often take time to configure and finalize. There are extensive vetting processes in place from the SEC and venture capitalist firms with which companies seeking this type of capital must comply before receiving funds. Completing all the necessary requirements can take up to a year, and the costs associated with doing so can be a burden to the business. The nature of a private placement makes the funding process much less time-consuming and far less costly for the receiving company. Because no securities registration is necessary, fewer legal fees are associated with this strategy compared to other financing options. Additionally, the smaller number of investors in the deal results in less negotiation before the company receives funding.

Private Means Private

The greatest benefit to a private placement is the company’s ability to remain a private company. The exemption under Regulation D allows companies to raise capital while keeping financial records private instead of disclosing information each quarter to the buying public. A business obtaining investment through private placement is also not required to give up a seat on the board of directors or a management position to the group of investors. Instead, control over business operations and financial management remains with the owner, unlike a venture capital deal.

Restrictions Affecting Private Placement

The SEC formerly placed many restrictions on private placement transactions. For example, such offerings could only be made to a limited number of investors, and the company was required to establish strict criteria for each investor to meet. Furthermore, the SEC required private placement of securities to be made only to “sophisticated” investors—those capable of evaluating the merits and understanding the risks associated with the investment. Finally, stock sold through private offerings could not be advertised to the public and could only be resold under certain circumstances. In 1992, however, the SEC eliminated many of these restrictions in order to make it easier for small companies to raise capital through private placements of securities. The rules now allow companies to promote their private placement offerings more broadly and to sell the stock to a greater number of buyers. It is also easier for investors to resell such securities. Although the SEC restrictions on private placements were relaxed, it is nonetheless important for small business owners to understand the various federal and state laws affecting such transactions and to take the appropriate procedural steps. It may be helpful to assemble a team of qualified legal and accounting professionals before attempting to undertake a private placement.

Many of the rules affecting private placements are covered under Section 4(2) of the federal securities law. This section provides an exemption for companies wishing to sell up to $5 million in securities to a small number of accredited investors. Companies conducting an offering under Section 4(2) cannot solicit investors publicly, and the majority of investors are expected to be either insiders (company management) or sophisticated outsiders with a preexisting relationship with the company (professionals, suppliers, customers, etc.). At a minimum, the companies are expected to provide potential investors with recent financial statements, a list of risk factors associated with the investment, and an invitation to inspect their facilities. In most respects, the preparation and disclosure requirements for offerings under Section 4(2) are similar to Regulation D filings. Regulation D—which was adopted in 1982 and has been revised several times since—consists of a set of rules numbered 501 through 508.

Rules 504, 505, and 506 describe three different types of exempt offerings and set forth guidelines covering the amount of stock that can be sold and the number and type of investors that are allowed under each one. Rule 504 covers the Small Corporate Offering Registration, or SCOR. SCOR gives an exemption to private companies that raise no more than $1 million in any 12-month period through the sale of stock. There are no restrictions on the number or types of investors, and the stock may be freely traded. The SCOR process is easy enough for a small business owner to complete with the assistance of a knowledgeable accountant and attorney. It is available in all states except Delaware, Florida, Hawaii, and Nebraska.

Rule 505 enables a small business to sell up to $5 million in stock during a 12-month period to an unlimited number of investors, provided that no more than 35 of them are non-accredited. To be accredited, an investor must have sufficient assets or income to make such an investment. According to the SEC rules, individual investors must have either $1 million in assets (other than their home and car) or $200,000 in net annual personal income, while institutions must hold $5 million in assets. Finally, Rule 506 allows a company to sell unlimited securities to an unlimited number of investors, provided that no more than 35 of them are non-accredited. Under Rule 506, investors must be sophisticated. In both of these options, the securities cannot be freely traded.

Private Placement Law Free Consultation

When you need legal help with a PPM in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Shareholder Rights and Derivative Actions

Shareholder Rights and Derivative Actions

Sometimes a CEO or other corporate insider puts the value of a company at risk by committing crimes such as wire fraud or embezzlement. When a shareholder believes that a director or officer has harmed the corporation by breaching a contract or breaching their duties, the shareholder can assert their rights and seek relief. One option is to file a derivative lawsuit. This article discusses shareholders rights and derivative actions, including information on the following:

  • The shareholder’s role in the corporation
  • The requirements for filing a derivative action
  • Shareholder activism

Corporate Roles

The shareholders (also called stockholders) are investors who own shares in the corporation. The directors have obligations and duties to both the shareholders and the corporation itself. This role differs from that of the officers and executives who handle corporate governance by running the operations of the corporation, although the roles can overlap.

Derivative Actions and Shareholder Rights

Being a shareholder comes with certain duties, responsibilities, and rights. Shareholders have a general range of rights concerning the corporation, which include:

  • ownership in a portion of the company;
  • ownership transfer rights;
  • voting rights; and
  • an entitlement to dividends.

One of the most significant shareholder rights is the right to sue an officer or a director who has harmed the corporation. This type of litigation is referred to as a shareholder derivative action or lawsuit. Unlike a securities class action suit, where individual investors and shareholders are seeking relief, the derivative action includes the interests of all shareholders and permits them to file on behalf of the corporation.

Shareholders often bring derivative suits against their corporation to try to resolve conflicts between the shareholders and the officers, directors, or board members who have harmed the corporation through mismanagement or other wrongdoing. For instance, a shareholder of the fast food corporation Wendy’s filed a derivative action against its directors and officers for its security practices that ultimately led to a massive data breach.

Requirements for Shareholder Derivative Lawsuits

Many states require that a plaintiff must be a stockholder at the time of the alleged improper conduct in order to file a derivative action. Others require that the shareholder own stock at the time of the improper conduct and continuously throughout the resolution of the lawsuit; this is referred to as the “continuous ownership requirement.”

Notice Requirements

Prior to filing the suit, the affected shareholders must demonstrate that they informed the company’s management of the problems in writing and that the directors decided against pursuing any action. If management fails to comply, the shareholders must show that the management’s conduct adequately harmed their position and that they refused to resolve the issues.

The shareholder must give notice (on their own or at the expense of the corporation if ordered by the court) to the other shareholders that the action has been initiated, providing them the opportunity to join the lawsuit.

Damages for the Corporation

If a shareholder prevails, they won’t recover individually; any recovery obtained from a derivative action is for the corporation only. However, a shareholder will generally receive legal expenses from the corporation.

Shareholder Activism

While a derivative suit is a very specific way to affect corporate governance, shareholder (or stockholder) activism is another more broader means to promote interests through shareholder rights, especially voting rights. Shareholder activism occurs when shareholders attempt to use their power to pressure management and affect a corporation’s behavior resulting in favorable results for the shareholder or to promote broader political or social causes, As an example, some Apple investors have sought to pressure the company to address smartphone addiction, especially among children. This can be achieved through various actions including litigation, proxy contests, publicity campaigns, and more.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Lawyer for Excessive Use of Margin

Purchasing securities “on margin” equates to investing with borrowed funds. The risks of trading on margin are unsuitable for many investors. If a financial adviser encourages margin trading without regard for a client’s investment profile, or without a client’s full understanding of the risks involved, the client can potentially seek to recover any money lost as a result of the margin transaction.

Lawyer for Excessive Use of Margin

WHAT IS BUYING ON MARGIN?

An investor can buy securities using money borrowed from a brokerage firm (rather than paying for the securities in full). This is known as “buying on margin.”

Buying on margin requires opening a margin account and depositing an initial amount of purchased securities. The initial account equity (margin) is used as collateral to borrow money and purchase additional securities. Like other types of loans, interest is charged on the amount borrowed until it is repaid.

MARGIN TRADING RISKS

The risks involved with trading on margin include:

  • Securities purchased on margin do not break even, or earn at least the amount of interest charged on the loan, resulting in the loss of funds.
  • Securities used as collateral drop in price and the firm issues a “margin call,” which requires the customer to repay all or part of the loan. The customer is not entitled to a time extension on a margin call.
  • The client has limited control over their margin account. For example, the firm can force the sales of margin account securities without notice, sell securities without contacting the client, and increase margin requirements at any time.

MARGIN ACCOUNT ABUSE

Margin investing isn’t an appropriate strategy for most investors. Margin loans, however, can be highly profitable for brokerage firms (because of the interest paid on borrowed money) and for brokers, who might be paid a fee based on the size of the client’s loan.

Investment professionals must understand a client’s investment profile, including their willingness and ability to incur risk. Before a client opens a margin account, they should fully understand how margin transactions could affect their portfolio.

If your broker misrepresented the risks of a margin account, opened an unauthorized account in your name, or made excessive trades in your account, any lost money may be recoverable through a legal claim.

HEDGE FUND INVESTMENTS

Once reserved strictly for wealthy, financially sophisticated investors, hedge funds have become increasingly popular investment vehicles for traditional investors. Often, this is achieved through investment in “funds of hedge funds.” Because I’m a securities lawyer, I’ve seen both good and bad from this.

Both hedge funds and funds of hedge funds have risks that are inappropriate for most investors. Financial advisers may make exaggerated and misleading claims about these funds in order to lure potential investors. Hedge fund managers have also been known to defraud investors.

HOW HEDGE FUNDS WORK

Hedge funds are a type of investment fund. Like mutual funds, hedge funds pool the money of many investors and follow a specific investment strategy. But that is about as far as the similarities go.

Unlike mutual funds, hedge funds are not regulated by the Securities and Exchange Commission (SEC), and therefore do not offer many of the investor protections that mutual funds and other registered investment products do.

FUNDS OF HEDGE FUNDS

Hedge fund investment is usually limited to wealthy individuals and institutional investors. But funds of hedge funds—an indirect way of investing in hedge funds—typically require lower minimum investments that make them accessible to a broader investor class.

While funds of hedge funds may be registered SEC products, the underlying hedge funds are not. Funds of hedge funds thus carry the same investment risks that hedge funds do.

HEDGE FUND RISKS

The risks of investing in hedge funds and funds of hedge funds include:

  • Not SEC Registered: Because hedge funds are not required to be SEC registered, they are not subject to mandatory reporting rules. As a result, it can be very difficult for investors to gauge a hedge fund’s performance. This can make it easier for a hedge fund manager to commit fraud.
  • Speculative Investing: Hedge fund managers are paid based on the fund’s performance, which gives them an incentive to maximize positive performance. This can lead to sophisticated (read: risky) investment strategies such as short selling, derivatives investment, leveraging, and hedging.
  • Illiquidity: Hedge fund investors may be unable to recoup their investment money if they want to opt out of the fund.
  • Expensive: Hedge funds usually have numerous fee layers and impose higher investor costs than mutual funds.
  • Tax Complexity: Hedge funds’ complex tax structure can present delays and difficulties during tax season.

WHEN YOU MAY HAVE A CLAIM FOR HEDGE FUND INVESTMENT LOSSES TALK TO A SECURITIES LAWYER

Hedge fund misconduct commonly occurs in the context of how the fund was sold.

Unless you are a wealthy, financially sophisticated investor, a hedge fund is mostly likely an unsuitable investment. And even if you are an accredited investor, an adviser must accurately present important information about the hedge fund. Any misrepresentations or omissions of material facts could constitute misconduct.

For non-accredited investors, funds of hedge funds may be suitable investments—however, their growth forecasts, risks, and drawbacks must be accurately presented.

Absent any misconduct in the sales stage, hedge fund managers and operators can commit investment fraud. Examples of fraudulent hedge fund conduct include providing phony account statements, not disclosing conflicts of interest, misappropriating investor funds, and operating Ponzi schemes.

Free Consultation with a Utah Securities Attorney

When you need legal help about business or securities issues, call Ascent Law and get your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Misleading Investors in Structured Notes

The Securities and Exchange Commission announced that Merrill Lynch has agreed to pay a $10 million penalty to settle charges that it was responsible for misleading statements in offering materials provided to retail investors for structured notes linked to a proprietary volatility index.

Misleading Investors in Structured Notes

According to the SEC’s order instituting a settled administrative proceeding, the offering materials emphasized that the notes were subject to a 2 percent sales commission and 0.75 percent annual fee.  Due to the impact of these costs over the five-year term of the notes, the volatility index would need to increase by 5.93 percent from its starting value in order for investors to earn back their original investment on the maturity date.  But the offering materials failed to adequately disclose a third cost included in the volatility index known as the “execution factor” that imposed a cost of 1.5 percent of the index value each quarter.

The notes were issued by Merrill Lynch’s parent company Bank of America Corporation, and Merrill Lynch had principal responsibility for drafting and reviewing the retail pricing supplements.  The SEC’s order finds that Merrill Lynch did not have in place effective policies or procedures to ensure its personnel drafted and approved disclosures that adequately disclosed the impact of the execution factor.

This is the agency’s second case involving misleading statements by a seller of structured notes. In October 2015, UBS AG agreed to pay $19.5 million to settle charges that it made false or misleading statements and omissions in offering materials provided to U.S. investors in structured notes linked to a proprietary foreign exchange trading strategy.

“This case continues our focus on disclosures relating to retail investments in structured notes and other complex financial products.  Offering materials for such products must be accurate and complete, and firms must implement systems and policies to ensure investors receive all material facts,” said Andrew J. Ceresney, Director of the SEC Enforcement Division.

Michael J. Osnato, Chief of the SEC Enforcement Division’s Complex Financial Instruments Unit, added, “This case demonstrates the SEC’s ongoing commitment to creating a level playing field when it comes to the sale of highly complex financial products to retail investors.”

The SEC’s order finds that Merrill Lynch violated Section 17(a)(2) of the Securities Act of 1933, which prohibits obtaining money or property by means of material misstatements and omissions in the offer or sale of securities.  Without admitting or denying the findings, Merrill Lynch agreed to cease and desist from committing or causing any similar future violations and pay a penalty of $10 million.

THE BURDEN FOR PLAINTIFFS IN CLAIMS OF BREACH OF FIDUCIARY DUTY

In Houseman v. Sagerman, the Delaware Chancery Court’s dismissal of the stockholder plaintiff’s claim for breach of fiduciary duty underscores the heightened pleading standard necessary to support such a claim by plaintiffs against a corporation’s directors arising out of allegations that the directors breached their duty in the process taken to approve the transaction.

The plaintiffs alleged that Universata’s board of directors conducted an imperfect process in regards to obtaining of the best price for stockholders. Two years after the merger between Universata, Inc. and Healthport Technologies, Inc. closed, the plaintiffs filed, among two other causes of action, the claim of breach of fiduciary duty. The plaintiffs allege that the director acted in bad faith by “knowingly and completely fail[ing] to undertake their responsibilities” to maximize shareholder value.

The Court, however, did not agree with the plaintiffs. The Court noted that the directors had, in fact, satisfied their duty of loyalty by taking into account, and acting upon, the advice of both their legal counsel and their financial advisor, Keyblanc. The allegations in the complaint showed that the Board had ultimately decided, after considering bids from several additional interested parties and negotiating the terms with Healthport, that it had obtained everything that the Board felt it could get.

Additionally, the plaintiffs failed to allege any facts that would prove a motive on the part of the directors to act in “bad faith.” The Court observed that the directors had a personal financial interest in obtaining the best price possible, dispelling the notion that the directors’ interests were not aligned with the interests of the company’s public stockholders.

According to the Court, the plaintiffs failed to plead sufficient facts to show that the board of directors of Universata “utterly failed to undertake any action to obtain the best price for stockholders.” The motion to dismiss, filed by certain directors and financial advisors of Universata, was therefore granted by the Court.

The Court, while recognizing that the approach the Board took was “less then optimal,” nevertheless granted the motion to dismiss, as the plaintiffs failed to meet the pleading standard. The decision in Houseman serves as a reminder to plaintiffs to be mindful of the high pleading burden that must be met to support a claim of breach of fiduciary duty.

 

EMPLOYERS: MAKE SURE YOUR STOCK OPTION PLAN ALLOWS YOUR GRANTEES THE ABILITY TO DEFER TAXABLE INCOME

The Code 83 regulations contain an important exception to the non-transferability rule that arises mostly with stock option grants, despite the fact that restricted stock grants are the type most often impacted by Code Section 83.

The exception to the regulations relates to profits realized under “short-swing” transactions. Under Section 16(b) of the Securities Act of 1934, any profit realized by an insider on a “short-swing” transaction must be disgorged by the company or a stockholder acting on the company’s behalf. “Short-swing” transactions are the non-exempt purchases and sales (or sales and purchases) of companies’ equity securities within a period of less than six months. In the event that a company grants a stock option that is not made under the applicable Section 16(b) exemption, it is deemed a non-exempt purchase.” Generally, the shares underlying the option are subject to the Section’s restrictions for six months after the date of the grant. Any sale of these shares within the six-month period following the grant date could be matched with the “purchase” and violate the Section.

With fairness in mind, it seems to follow that if a sale of shares would subject someone to potential SEC penalties, taxation on those shares would be delayed until the risk of liability lapses. Section 83 of the Code has always recognized this point. The Code Section 83 also recognizes that if a seller is restricted from selling shares of stock previously acquired in a non-exempt transaction within the past six months because of potential liability under Section 16(b), the shares are deemed to be subject to a substantial risk of forfeiture. This risk of forfeiture does not lapse, and as a result, the grantee will not realize taxable income until six months after which the acquisition of the shares by the grantee took place.

A question remained, however, regarding whether a subsequent non-exempt purchase could further extend the substantial risk of forfeiture. The final regulations answers this question, explaining with a new example that the Internal Revenue Service and the Treasury to not respect this type of strategy. The new example clearly notes that any options granted in a non-exempt manner will only be considered subject to substantial risk of forfeiture for the first six months after the date of the grant of the shares.

This new example means that the risk of disgorging any profits under Section 16(b) generally will not have any impact on the substantial risk of forfeiture analysis.

With this new example, the IRS is essentially eliminating any opportunity to abuse the Section 16(b). The IRS is reminding grantees that transfer restrictions alone cannot delay taxation. As a result, employers should be careful to ensure that their grants contain a valid substantial risk of forfeiture to allow the grantees the ability to defer taxable income.

Free Consultation with a Utah SEC Lawyer

If you are here, you probably have a business law or securities law matter you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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SEC Charges Pastor with Defrauding Retirees

The Securities and Exchange Commission announced fraud charges and an emergency asset freeze obtained against a Michigan-based pastor accused of exploiting church members, retirees, and laid-off auto workers who were misled to believe they were investing in a successful real estate business.

SEC Charges Pastor with Defrauding Retirees

The SEC alleges that Larry Holley, the pastor of Abundant Life Ministries in Flint, Mich., cloaked his solicitations in faith-based rhetoric, replete with references to scripture and biblical figures.  Holley allegedly told prospective investors that as a person who “prayed for your children,” he was more trustworthy than a “banker” with their money.  According to the SEC’s complaint, Holley held financial presentations masked as “Blessed Life Conferences” at churches nationwide during which he asked congregants to fill out cards detailing their financial holdings, and he promised to pray over the cards and invited attendees to have one-on-one consultations with his team.  He allegedly called his investors “millionaires in the making.”

According to the SEC’s complaint, which also charges Holley’s company Treasure Enterprise LLC and his business associate Patricia Enright Gray, approximately $6.7 million was raised from more than 80 investors who were guaranteed high returns and told they were investing in a profitable real estate company with hundreds of residential and commercial properties.

According to the complaint, Gray advertised on a religious radio station based in Flint and singled out recently laid-off auto workers with severance packages to consult her for a “financial increase.”  Gray allegedly promised to roll over investors’ retirement funds into tax-advantaged Individual Retirement Accounts (IRA) and invest them in Treasure Enterprise.  The SEC alleges that no investor funds were deposited into IRAs, and Treasure Enterprise struggled to generate enough revenue from its real estate investments to support the business and make payments owed to investors.  Treasure Enterprise owes investors an estimated $1.9 million in past due payments, according to the SEC’s complaint.

“As alleged in our complaint, Holley and Gray targeted the retirement savings of churchgoers, building a bond of trust purportedly based on faith but actually based on false promises,” said David Glockner.

According to the SEC’s complaint, Holley, Gray, and Treasure Enterprise were not registered to sell investments.  The SEC encourages investors to check the background of anyone offering to sell them investments by doing a quick search on the SEC’s investor website.

The SEC has obtained a temporary restraining order in U.S. District Court for the Eastern District of Utah that freezes the assets of Holley, Gray, and Treasure Enterprise.  The court’s order also appoints a receiver and imposes other emergency relief.

The SEC’s complaint alleges violations of Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5.  The complaint seeks disgorgement of ill-gotten gains plus interest, penalties, and permanent injunctions.

The SEC’s investigation, which is continuing, is being conducted by Ana P. Doncic, Delia L. Helpingstine, and Sruthi Koneru of the Utah office.  The case is being supervised by Steven L. Klawans, and the litigation is being led by Jonathan S. Polish.

SEC ADOPTS JOBS ACT AMENDMENTS TO HELP ENTREPRENEURS AND INVESTORS

The Securities and Exchange Commission today announced that it has adopted amendments to increase the amount of money companies can raise through crowdfunding to adjust for inflation.  It also approved amendments that adjust for inflation a threshold used to determine eligibility for benefits offered to “emerging growth companies” (EGCs) under the Jumpstart Our Business Startups (JOBS) Act.

“Regular updates to the JOBS Act, as prescribed by Congress, ensure that the entrepreneurs and investors who benefit from crowdfunding will continue to do so,” said SEC Acting Chairman Michael S. Piwowar. “Under these amendments, the JOBS Act can continue to create jobs and investment opportunities for the general public.”

The SEC is required to make inflation adjustments to certain JOBS Act rules at least once every five years after it was enacted on April 5, 2012.  In addition to the inflation adjustments, the SEC adopted technical amendments to conform several rules and forms to amendments made to the Securities Act of 1933 (“Securities Act”) and the Securities Exchange Act of 1934 (“Exchange Act”) by Title I of the JOBS Act.

The Commission approved the new thresholds March 31. They will become effective when they are published in the Federal Register.

BACKGROUND ON THE SEC JOBS ACT

Section 101 of the JOBS Act added new Securities Act Section 2(a)(19) and Exchange Act Section 3(a)(80) to define the term “emerging growth company” (“EGC”).  Pursuant to those sections, every five years the SEC is directed to index the annual gross revenue amount used to determine EGC status to inflation to reflect the change in the Consumer Price Index for All Urban Consumers (“CPI-U”) published by the Bureau of Labor Statistics (“BLS”).  To carry out this statutory directive, the SEC has adopted amendments to Securities Act Rule 405 and Exchange Act Rule 12b-2 to include a definition for EGC that reflects an inflation-adjusted annual gross revenue threshold.  The JOBS Act also added new Securities Act Section 4(a)(6), which provides an exemption from the registration requirements of Section 5 under the Securities Act for certain crowdfunding transactions.  In October 2015, the SEC promulgated Regulation Crowdfunding to implement that exemption.  Sections 4(a)(6) and 4A of the Securities Act set forth dollar amounts used in connection with the crowdfunding exemption, and Section 4A(h)(1) states that such dollar amounts shall be adjusted by the SEC not less frequently than once every five years to reflect the change in the CPI-U published by the BLS.  The SEC has adopted amendments to Rules 100 and 201(t) of Regulation Crowdfunding and Securities Act Form C to reflect the required inflation adjustments.

In addition, Sections 102 and 103 of the JOBS Act amended the Securities Act and the Exchange Act to provide several exemptions from a number of disclosure, shareholder voting, and other regulatory requirements for any issuer that qualifies as an EGC. The exemptions reduce the financial disclosures an EGC is required to provide in public offering registration statements and relieve an EGC from conducting advisory votes on executive compensation, as well as from a number of accounting and disclosure requirements.  The regulatory relief provided under Sections 102 and 103 of the JOBS Act was self-executing and became effective once the JOBS Act was signed into law.  The technical amendments that the SEC is adopting conform several rules and forms to reflect these JOBS Act statutory changes.

Free Initial Consultation with a Securities Lawyer

When you need help with an SEC or Securities matter, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Shake Shack’s IPO

Shake Shack's IPO

You can tell a lot about different companies from their initial public offerings and private placement offerings. Just ask the nation’s corporate securities law firms, and IPO attorneys. Though it’s unclear whether it worked with a securities law firm or not, fast food chain Shake Shack recently filed their own plans for a $100 million initial public offering, which, as you might have guessed, revealed some interesting facts about the company. Here are just a few.

More Burgers.

According to its filings, Shake Shack plans to open 10 new company owned domestic locations per year, expanding to at least 450 outlets long-term. Maybe there will be a new Shake Shack coming to a town near you.

Fine Casual

Shake Shack is shaking off its fast casual brand for a “fine casual” one. It plans to source premium, sustainable ingredients, like all-natural, hormone and antibiotic-free beef.

Strong ROI

Shake Shacks that aren’t located in Manhattan typically need about 3.2 years to recoup the original investment, while any new Shake Shacks opened in Manhattan only need 1.2 years to earn enough money to pay back its original investment. This might sound like a long time, but it’s really quite fast.

As the nation’s leading securities law firms can tell you, IPOs, such as Shake Shack’s, are an important part of the nation’s economy. In 2014, securities law firms were able to help companies complete an astounding 275 IPOs, topping 2013’s total of 222 by over 23% and shattering its high-water mark of $55 billion with a whopping $85 billion in proceeds. This is quite the impressive feat, as seven of the IPOs securities law firms were able to help complete were in excess of a billion dollars.

SEC Cracking Down on Illegal Finders

The Securities and Exchange Commission charged two men with pocketing investor money they raised for limited liability companies they owned and controlled that purportedly held warrants to purchase the common stock of a technology startup company.

The SEC alleges that James R. Trolice and Lee P. Vaccaro raised approximately $6 million from more than 100 investors by creating a false sense of urgency and exclusivity around the offering, claiming that only a limited amount of warrants were available and that they eventually could be exercised at a very profitable price. Trolice further lured investors by showcasing his apparent wealth and hosting elaborate investor parties at his multi-million-dollar home. He also touted his purported track record of bringing startup companies public and obtaining high returns for investors.

Meanwhile, Trolice allegedly used investor funds to pay his mortgage along with other bills for a credit card, car lease, college tuition, and landscaping. Vaccaro allegedly spent at least a quarter-million dollars in investor funds at Utah casinos.

The SEC further alleges that neither Trolice nor Vaccaro was registered with the SEC or any state regulator.  Investors can quickly and easily check whether people selling investments are registered by using the SEC’s investor.gov website.

“We allege that Trolice and Vaccaro lied to investors about the nature of the investment, created a phony aura of success, and ultimately funded their own lifestyles rather than investing all the money as promised,” said Andrew M. Calamari. “The SEC continues to pursue and investors should continue to be aware of unregistered brokers selling investments.”

The SEC’s complaint, filed today in federal court in Newark, N.J., also charges former stockbroker Patrick G. Mackaronis, who received commissions for bringing prospective investors to Trolice and Vaccaro so they could close the sales. Mackaronis ignored fraud risks and blindly touted the opportunity to family members, friends, and brokerage clients while knowing very little about the investments themselves. Mackaronis has agreed to settle the SEC’s charges by disgorging the $85,000 in commissions he received plus paying $8,486.91 in interest and a $50,000 penalty. Mackaronis also agreed to a three-year bar from the securities industry. The settlement is subject to court approval.

In parallel actions, the U.S. Attorney’s Office for the District of Utah today announced criminal charges against Vaccaro, and the New Jersey Bureau of Securities announced civil charges against Trolice, Vaccaro, and Mackaronis.

The SEC’s complaint charges Trolice and Vaccaro with violations of Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933, Sections 10(b) and 15(a) of the Securities Exchange Act of 1934 and Rule 10b-5. Vaccaro is additionally charged with violations of Sections 206(1) and 206(2) of the Investment Advisers Act of 1940.

SEC Votes to Renew Equity Market Structure Advisory Committee

The Securities and Exchange Commission announced that the Commission voted to renew the Equity Market Structure Advisory Committee’s charter until August 2017 with the current membership.  The committee’s charter was originally scheduled to expire in February 2017.

The committee provides a formal mechanism through which the Commission can receive advice and recommendations specifically related to equity market structure issues.  The committee has met seven times since it was established in February 2015.

“The Equity Market Structure Advisory Committee’s renewal enables the next Chair and the next Commission to benefit seamlessly from this vital resource for our ongoing assessment of equity market structure issues and potential enhancements,” said SEC Chair Mary Jo White.

Since its inception, the committee has considered a range of issues, including Regulation NMS and a structure for an access fee pilot, the governance framework for national market system plans, transparency for investors of broker-dealer order handling practices, and market-wide volatility moderators.  The Commission-approved committee members come from different sectors of the financial services industry, academia, and from public interest groups.

Free Consultation with a Securities Lawyer

When you need help from a SEC Lawyer, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Improper Withdrawal from Funds

PRIVATE EQUITY ADVISER BARRED FROM INDUSTRY FOR IMPROPER WITHDRAWAL FROM FUNDS

The Securities and Exchange Commission announced that a private equity adviser has been permanently barred from the securities industry and must pay a $1.25 million penalty to settle charges that he withdrew improper fees from two private equity funds he managed.

The SEC’s order finds that Scott M. Landress formed the funds to invest in real estate trusts with underlying investments in properties throughout the UK.  His investment advisory firm SLRA Inc. earned management fees based on the net asset value of the underlying investments.  SLRA’s fees shrank and its management costs increased as real estate property values fell during the financial crisis, and the funds’ limited partners declined several requests by Landress for additional compensation to cover the shortfalls.

According to the SEC’s order, Landress directed SLRA to withdraw 16.25 million pounds from the funds in early 2014, purportedly as payment for several years of services provided by an affiliate.  He subsequently transferred the money to his personal account.  SLRA and Landress did not disclose the related-party transaction and the resulting conflicts of interest until after the money had been withdrawn.

According to the SEC’s order, Landress and SLRA returned the withdrawn service fees to the funds after the SEC began its investigation. Sometimes, having the right SEC Lawyer
on your side can make all the difference.

“Private equity fund advisers have a duty to act in the best interest of their clients, but Landress and SLRA helped themselves to millions of dollars’ worth of fees to which they had no legitimate claim,” said Scott W. Friestad, Associate Director of the SEC’s Division of Enforcement.

Landress and SLRA agreed to the SEC’s cease-and-desist order without admitting or denying the findings.

SEC CHARGES MEXICO-BASED HOMEBUILDER IN $3.3 BILLION ACCOUNTING FRAUD

The Securities and Exchange Commission announced that Mexico-based homebuilding company Desarrolladora Homex S.A.B. de C.V. has agreed to settle charges that it reported fake sales of more than 100,000 homes to boost revenues in its financial statements during a three-year period.

The SEC used satellite imagery to help uncover the accounting scheme and illustrate its allegation that Homex had not even broken ground on many of the homes for which it reported revenues.

The SEC alleges that Homex, one of the largest homebuilders in Mexico at the time, inflated the number of homes sold during the three-year period by approximately 317 percent and overstated its revenue by 355 percent (approximately $3.3 billion).  The SEC’s complaint highlights, for example, that Homex reported revenues from a project site in the Mexican state of Guanajuato where every planned home was purportedly built and sold by Dec. 31, 2011.  Satellite images of the project site on March 12, 2012, show it was still largely undeveloped and the vast majority of supposedly sold homes remained unbuilt.

According to the SEC’s complaint, Homex filed for the Mexican equivalent of bankruptcy protection in April 2014 and emerged in October 2015 under new equity ownership.  The company’s then-CEO and then-CFO have been placed on unpaid leave since May 2016.  Homex has since undertaken significant remedial efforts and cooperated with the SEC’s investigation.

“As alleged in our complaint, Homex deprived its investors of accurate and reliable financial results by reporting key numbers that were almost completely made up,” said Stephanie Avakian, Acting Director of the SEC’s Enforcement Division.  “The settlement takes into account that the fraud occurred entirely under the watch of prior ownership and management, the company’s new leaders provided critical information regarding the full scope of the fraudulent conduct, and the company continues to significantly cooperate with our ongoing investigation.”

Melissa Hodgman, Associate Director of the SEC’s Enforcement Division, added, “We used high-resolution satellite imagery and other innovative investigative techniques to unearth that tens of thousands of purportedly built-and-sold homes were, in fact, nothing but bare soil.”

The SEC separately issued a trading suspension in the securities of Homex.

Without admitting or denying the allegations in the SEC’s complaint filed in U.S. District Court for the Southern District of Utah, Homex consented to the entry of a final judgment permanently enjoining the company from violating the antifraud, reporting, and books and records provisions of the federal securities laws, and the company agreed to be prohibited from offering securities in the U.S. markets for at least five years.  The settlement is subject to court approval.

SEC CHARGES FUEL CELL COMPANY AND OFFICERS WITH DEFRAUDING INVESTORS

The Securities and Exchange Commission charged a Utah-based penny stock company and four corporate officers with misleading investors about the research, development, and profitability of their purported business to manufacture power generation products such as fuel cells.

The SEC alleges that while raising approximately $7.9 million from investors in Terminus Energy Inc., the company and its officers claimed to have a viable prototype capable of being sold and earning revenue.  According to the SEC’s complaint, Terminus did not have the fuel cell technology or the funding to match their claims, and the officers were instead converting substantial amounts of investor funds to their own use.

According to the SEC’s complaint, the company failed to disclose to investors that Terminus’s operations manager George Doumanis is a convicted felon who went to prison for securities fraud and was secretly acting as an officer of the company despite being barred from participating in penny stock offerings.  Emanuel Pantelakis served on the Terminus board of directors despite having been permanently barred by the Financial Industry Regulatory Authority.  Also charged in the SEC’s complaint are Terminus’s CEO Danny B. Pratte and its former president, director, and legal counsel Joseph L. Pittera.

Terminus also allegedly used unregistered brokers to sell its securities and paid them more than twice as much in commissions than was disclosed to investors in offering documents.  Joseph Alborano is charged in the SEC’s complaint with soliciting and selling investments for which he received more than $1 million in commissions.

“As alleged in our complaint, these company insiders spent massive, undisclosed amounts of investor funds and left the company with no realistic chance of developing a fuel cell product,” said Eric I. Bustillo.

In a parallel action, the U.S. Attorney’s Office for the Southern District of Utah today filed criminal charges against Pratte, Doumanis, and Pantelakis.

The SEC’s complaint seeks disgorgement of ill-gotten gains plus interest and penalties as well as officer-and-director bars and penny stock bars.

Free Consultation with a Securities Attorney

When you have a SEC law issue you need help with, call Ascent Law for your free tax law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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We are experienced Securities Lawyers engaged in securities disputes, registrations, compliance and litigation.

securities lawyer

At Ascent Law, we stands for both investors and companies across the country in FINRA arbitrations. Our goal is to recoup financial investment losses for our customers from broker-dealers and monetary experts. Our customers are generally the victims of protections fraudulence, improper financial investment approaches, misrepresentations, as well as inappropriate account management. Our lawyers can assist you determine if safeties losses were the outcome of unreasonable or unlawful techniques in the brokerage firm market.

Cases prompted behalf of customers consist of suitability, churning, unauthorized trading, breach of fiduciary duty, scams, as well as negligent misrepresentation. However, protections fraudulence could take lots of forms as well as could not be quickly visible. Some advisors put their investors in high threat, high commission products without adequately divulging the threats of those products to their customers. They also engage in churning the account to generate money for themsevles. We have represented clients before NYSE Arbitration panels. A number of these financial investment items could drain client accounts, are typically illiquid, and also can annihilate retirement planning.

We can help you in regards to:

Securities Registration

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Commercial Litigation

Breach of Fiduciary Duty

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Free Consultation with a Securities Lawyer

If you are here, you probably have a securities issue you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Why Do We Have Securities Laws in Utah 801-676-5507

https://www.ascentlawfirm.com

Why Do We Have Securities Laws in Utah?

Attorney Greg Lyle answers this question:

As Greg explains in that video, there is a reason the Securities & Exchange Commission exists. There is a federal SEC and there is a Utah SEC.

The USA Securities and also Exchange Commission was started in 1934 in action to the wonderful stock exchange crash of 1929. Congress created the SEC in the hopes that it would serve as an independent and non-partisan agency that would certainly assist manage the handling of securities in the UNITED STATE. Many thanks to the accident of 1929, Congress additionally established numerous brand-new securities laws that the SEC was created to impose.

The primary task of the SEC is to apply a collection of laws, a lot of them established from 1933-1940 that help safeguard capitalists of securities and also the economic climate in its entirety. Congress has offered the SEC the right to bring civil cases against companies that they really feel have actually committed a collection of criminal offenses, such as expert trading, scams, or business that have provided incorrect information. The SEC additionally works together with neighborhood cops, the FBI or the CIA in pursuing criminal fees when the correct laws have actually been damaged.

One of the manner in which the SEC collects information about numerous business to ensure that it could see if any of them have actually broken the law is be calling for that openly held firms submit records four times a year and afterwards a yearly record, as well, revealing their economic numbers. The companies likewise file records with the SEC that lay out how the business did that year and just how it anticipates to do in the future.

These records are absolutely crucial to capitalists when aiming to determine which company to purchase. The funding markets are infamous for upheaval and these reports are crucial for investors who are aiming to figure out which companies are risk-free to buy and which ones aren’t.

The SEC allows anyone to read these records as well as they are available through an on the internet system to review at any moment. The SEC also utilizes this same system to ensure that specific capitalists could submit issues against a firm that they really feel might be breaking the law. This permits each day citizens the chance to call attention to a potentially crooked firm.

A recent pop culture recommendation to the SEC originated from the now-defunct TV program Apprehended Advancement, when the pilot episode featured the SEC boarding a private yacht to confiscate files connected to the Bluth family organisation.

The SEC is a crucial federal government firm that aids firms stroll the straight and narrow as well as assists individual financiers make enlightened choices concerning the ideal companies to buy. If you’re thinking about investing in a company, you should see what is on the SEC online system for that company.

Lawyer Gregory B. Lyle and other attorneys that work with him at Ascent Law LLC are some of the very best attorneys that do securities law in the State of Utah. There are different securities questions you might have, such as what type of offering do I have to do to raise money. Just how much can I get for my brand-new business. What types of forms have to be completed and submitted with the SEC as well as State of Utah so I don’t enter trouble and also avoid going to jail. Ascent Law also litigates with the SEC and also shields you from the government by maintaining you in conformity and also helping you deal with problems when they show up.

Call Greg Lyle if you have a securities law issue in the State of Utah. 801-676-5507

#GregLyle #AscentLaw

Why Do We Have Securities Laws in Utah?
Why Do We Have Securities Laws in Utah?

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah84088United States

Telephone: (801) 676-5506