Fee Rate Advisory #1 - SEC Sets Fee Rates for Fiscal Year 2009
The Securities and Exchange Commission today announced that in fiscal year 2009, the fees that public companies and other issuers pay to register their securities with the Commission will be set at $55.80 per million dollars. In addition, the fees applicable to most securities transactions will be fixed at $9.30 per million dollars.
As required by the Investor and Capital Markets Fee Relief Act, the Commission consulted with both the Congressional Budget Office and the Office of Management and Budget regarding the annual adjustment, which will not affect the amount of funding available to the Commission.
A copy of the Commission's order, including the calculation methodology, is available at http://www.sec.gov.
The Investor and Capital Markets Fee Relief Act requires that the Commission make annual adjustments to the rates for fees paid under Section 6(b) of the Securities Act of 1933 and Sections 13(e), 14(g), and 31 of the Securities Exchange Act of 1934.
Effective Oct. 1, 2008, or 5 days after the date on which the Commission receives its fiscal year 2009 regular appropriation, whichever date comes later, the Section 6(b) fee rate applicable to the registration of securities, the Section 13(e) fee rate applicable to the repurchase of securities, and the Section 14(g) fee rates applicable to proxy solicitations and statements in corporate control transactions will be set at $55.80 per million dollars. The Section 6(b) rate is also the rate used to calculate the fees payable with the Annual Notice of Securities Sold Pursuant to Rule 24f-2 under the Investment Company Act of 1940.
In addition, effective Oct. 1, 2008, or 30 days after the date on which the Commission receives its fiscal year 2009 regular appropriation, whichever date comes later, the Section 31 fee rate applicable to securities transactions on the exchanges and certain over-the-counter markets will be fixed at $9.30 per million dollars. The assessment on security futures transactions under Section 31(d) will remain unchanged at $0.0042 for each round turn transaction.
The Office of Interpretation and Guidance in the Commission's Division of Trading and Markets is available for questions on Section 31 fees at (202) 551-5777, or by e-mail at email@example.com.
The Commission will issue further notices as appropriate to keep the public informed of developments relating to the effective dates of the fee rates under Section 6(b), Section 13(e), Section 14(g), and Section 31. These notices will be posted at the Commission's Internet Web site at http://www.sec.gov. (Press Rel. 2008-70)
Closed Meeting - Thursday, May 8, 2008 - 10:00 a.m.
The subject matter of the closed meeting scheduled for May 8, 2008, will be: formal orders of investigation; institution and settlement of injunctive actions; institution and settlement of administrative proceedings of an enforcement nature; and an opinion.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551-5400.
Initial Decision Barring Byron S. Rainner Declared Final
The Commission declared final the initial decision of an administrative law judge barring Byron S. Rainner from association with any broker or dealer and from association with any investment adviser. The initial decision found that, on Nov. 20, 2006, the United States District Court for the Northern District of Georgia entered a judgment against Rainner for violation of 18 U.S.C. § 1343, and sentenced him to a thirty-month prison term, followed by three years of supervised probation and further ordered Rainner to make restitution in the amount of $2,036,134. The initial decision found that Rainner's criminal violation was egregious and involved a continuing course of conduct over a nine month period (August 2002 to April 2003), and that his conduct also involved a high degree of scienter. The law judge also found, that upon the conclusion of his prison sentence, continued employment in the securities industry would present Rainner with additional opportunities to violate securities laws. (Rel. IA-2731; File No. 3-12828)
In the Matter of Robert MacGregor
On April 30, the Commission issued an Order Instituting Administrative Proceedings Pursuant to Section 15(b) of the Securities Exchange Act of 1934, Making Findings, and Imposing Remedial Sanctions (Order) against Robert MacGregor. The Order finds that from November 2003 through at least January 2005, MacGregor was an employee of, and associated with, Duncan Capital LLC, a broker-dealer registered with the Commission, while MacGregor was not registered with the National Association of Securities Dealers (NASD). MacGregor, 42 years old, is a resident of New York, New York.
The Order further finds that on April 11, 2008, a final judgment was entered by consent against MacGregor, permanently enjoining him from aiding and abetting future violations of Section 15(b)(7) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 15b7-1 thereunder, in the civil action entitled Securities and Exchange Commission v. Michael W. Crow, et al., Civil Action Number 07 Civ. 3814 (CM), in the United States District Court for the Southern District of New York. In that action, the Commission's first amended complaint (complaint) alleges that, during the relevant period, Duncan Capital's sole business was arranging private investment in public equity (PIPE) offerings for small cap companies. As the placement agent, Duncan Capital solicited investors and received a fee from the issuers based on the amounts it raised. MacGregor allegedly conducted brokerage activities for Duncan Capital on many of these PIPE offerings even though he knew that he was not registered with, and that he was required to be registered with, the NASD, and knew that he had not passed the examinations required in order to conduct his activities. The complaint further alleges that MacGregor received hundreds of thousands of dollars in commissions as a result of his brokerage activities.
As a result of the foregoing, the Order bars MacGregor from association with any broker or dealer with the right to reapply for association after one year to the appropriate self-regulatory organization, or if there is none, to the Commission. MacGregor consented to the issuance of the Order without admitting or denying any of the findings in the Order. For more information see SEC v. Michael W. Crow, Duncan Capital LLC, Duncan Capital Group LLC, Robert David Fuchs, and Robert MacGregor, 07-Civ-3814 (CM)(S.D.N.Y.), (LR-20535). (Rel. 34-57745; File No. 3-13029)
In the Matter of Banc of America Investment Services, Inc., and Columbia Management Advisors, LLC, as Successor in Interest to Banc of America Capital Management, LLC
May 1, the Commission instituted a settled action against Banc of America Investment Services, Inc. (BAISI) for failing to disclose to clients that, in selecting investments for discretionary mutual fund wrap fee accounts, it favored two mutual funds affiliated with BAISI. BAISI selected the two affiliated mutual funds based on a methodology that was contrary to the firm's disclosures to clients and which had the effect of favoring those funds. The Commission also charged Columbia Management Advisors, LLC (Columbia), as successor to Banc of America Capital Management, LLC (BACAP), with aiding and abetting, and causing certain of BAISI's violations. As part of the settlement, BAISI and Columbia agreed to pay a total of nearly $10 million in disgorgement and penalties. The Commission ordered BAISI to distribute the settlement amount to affected clients.
The Commission's Order finds that, from July 2002 through December 2004, BAISI made material misrepresentations and omissions to clients who had given BAISI discretion to select mutual funds for them. The clients participated in an asset-based or "wrap" fee program in which they paid BAISI a fee based upon the amount of their assets in exchange for BAISI providing advisory and other account services. BAISI had a fiduciary duty to act in the best interests of its clients, which required BAISI to disclose material information concerning conflicts of interest, and precluded it from undisclosed use of its clients' assets to benefit itself or its affiliates. In the Order, the Commission finds that BAISI purchased at least two proprietary "Nations Funds" for clients with discretionary wrap fee accounts using a methodology that was contrary to BAISI's disclosures to those clients. The Order also finds that BAISI omitted to disclose the scope of its and BACAP's conflict of interests, and their bias in the recommendation and selection process. BACAP earned additional fees as a result of these violations because it was paid management and other fees based on the total assets of Nations Funds.
The firms consented, without admitting or denying the Commission's findings, to the issuance of the Commission's Order. Pursuant to the Order, BAISI must cease and desist from violating Sections 17(a)(2) and 17(a)(3) of the Securities Act, Sections 206(2), 206(4), and 207 of the Advisers Act, and Rule 206(4)-1(a)(5) thereunder. Columbia is ordered to cease and desist from violating Section 206(2) and 206(4) of the Advisers Act and Rule 206(4)-1(a)(5) thereunder. In addition, both firms are censured and BAISI must comply with various remedial undertakings. Additionally, BAISI is ordered to pay disgorgement of $3,310,206 and prejudgment interest of $793,773, and Columbia is ordered to pay disgorgement of $2,143,273, and prejudgment interest of $516,382. BAISI and Columbia are also ordered to pay penalties of $2 million and $1 million, respectively. The undertakings, among other things, require BAISI to distribute all disgorgement, prejudgment interest, and penalties to affected clients, and to review its methods for recommending and selecting mutual funds in discretionary programs and the adequacy of its disclosures in this area. (Rels. 33-8913; 34-57748; IA-2733; IC-28261; File No. 3-13030)
Three Former Nortel Vice Presidents Settle Financial Fraud Charges With the SEC
The Commission today announced that Craig A. Johnson, James B. Kinney and Kenneth R.W. Taylor - who were the vice presidents of finance for the Wireline, Wireless, and Enterprise business units of Nortel Networks Corporation (Nortel), respectively - agreed to settle the Commission's charges against them arising from their alleged involvement in Nortel's earnings management fraud during 2002 and 2003. Each has consented, without admitting or denying the Commission's allegations against them, to the entry of a final judgment in the Commission's litigation pending in the U.S. District Court for the Southern District of New York. The final judgments, which are subject to approval by the Honorable Loretta A. Preska, order each individual to pay a $75,000 civil penalty and to pay disgorgement in the amount of $66,845 (Johnson) and $52,000 (each for Kinney and Taylor), along with prejudgment interest in the amount of $21,186 (Johnson) and $16,481 (each for Kinney and Taylor). The final judgments also bar each individual from acting as an officer or director of any public company for five years and permanently enjoin each individual from violating the antifraud and falsification of books and records provisions of the federal securities laws - Section 17(a) of the Securities Act of 1933 (Securities Act), Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 (Exchange Act), and Exchange Act Rules 10b-5 and 13b2-1 - and from aiding and abetting violations of the reporting, books and records and internal controls provisions of the federal securities laws - Exchange Act Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) and Exchange Act Rules 12b-20, 13a-1 and 13a-13.
As part of this settlement, and following the entry of the proposed final judgment against him, Kinney (who is a Certified Management Accountant in Canada) has also consented, without admitting or denying the Commission's allegations against him, to the issuance of an administrative order pursuant to Rule 102(e) of the Commission's Rules of Practice, suspending him from appearing or practicing before the Commission as an accountant, with the right to apply for reinstatement after five years.
The Commission's complaint in the federal court action alleges that Johnson, Kinney and Taylor improperly maintained reserves during the fourth quarter of 2002, which they knew, or were reckless in not knowing, were no longer needed. The complaint also alleges that Johnson, Kinney and Taylor, acting upon the orders of former Nortel corporate executives - defendants Frank Dunn, Douglas Beatty and Michael Gollogly - manipulated Nortel's earnings by (i) establishing approximately $37 million in unnecessary reserves during the fourth quarter of 2002 in order to suppress an unexpected profit and smooth Nortel's consolidated financial results, and (ii) releasing approximately $213 million in excess reserves into income in order to generate fictitious profits for the first and second quarters of 2003, which in turn triggered the payment of so-called "return to profitability" bonuses to Nortel's employees and officers.
The Commission's litigation against five other former Nortel executives involved in Nortel's accounting fraud is ongoing. See Litigation Release No. 20036 (March 12, 2007) / Accounting and Auditing Enforcement Release No. 2576 (March 12, 2007); and Litigation Release No. 20275 (Sept. 12, 2007) / Accounting and Auditing Enforcement Release No. 2676 (Sept. 12, 2007). The Commission also previously announced settled enforcement proceedings against Nortel and its principal operating subsidiary, Nortel Networks Limited, in connection with an accounting fraud which ran from 2000 through 2003. See Litigation Release No. 20333 (Oct. 15, 2007) / Accounting and Auditing Enforcement Release No. 2740 (Oct. 15, 2007). [SEC v. Frank A. Dunn et al., Civil Action No. 07-CV-2058 (S.D.N.Y.) (LAP)] (LR-20546; AAE Rel. 2818)
SEC Charges McCann-Erickson Worldwide, Inc., Interpublic Group of Companies and Two Former Executives
Defendants Agree to Settle; McCann Agrees to Pay $12 Million Penalty
The Commission today filed a civil injunctive action against McCann-Erickson Worldwide, Inc. (McCann) and the Interpublic Group of Companies, Inc. (IPG). The Commission alleged that McCann committed securities fraud when it misstated its financial results by failing to expense properly intercompany charges. IPG negligently failed to address the intercompany problems at its largest subsidiary, McCann. IPG also violated the reporting, internal controls and books and records provisions of the securities laws in connection with a variety of issues that were reflected in various restatements IPG issued from August 2002 through September 2005 totaling more than $600 million. IPG and McCann agreed to settle the Commission's charges, and McCann agreed to pay a $12 million civil penalty.
The Commission's complaint named the following defendants.
The Commission also brought settled charges against Salvatore LaGreca and Brian Watson (in a separate complaint) for their role in failing to reconcile intercompany accounts that resulted in the 2002 restatement.
The Commission's complaints alleged the following:
From August 2002 through September 2005, IPG issued numerous restatements that together totaled more than $600 million. The restatements corrected misstatements in IPG's financial statements that emanated from numerous substantive areas in a variety of geographic regions, and reflected conduct ranging from inaccurate books and records and lack of internal controls to fraud.
Initially, in the Fall of 2002, IPG restated its financial results in an amount of $181 million for the period 1997 to 2002. The largest component of this restatement (approximately $101 million) was attributable generally to the fact that McCann recorded as receivables intercompany charges that should have been expensed. McCann officers and employees, including LaGreca and Watson, failed to ensure McCann reconciled its intercompany accounts for at least six years. At times, LaGreca and Watson purposely delayed reconciling intercompany accounts because they knew a reconciliation would result in write-offs that would interfere with McCann's efforts to hit internal annual profit targets. Because McCann never fully reconciled its intercompany accounts and failed to expense properly intercompany charges, McCann's financial results were inaccurate. By 2002, McCann's intercompany accounts were misstated by approximately $101 million. As LaGreca and Watson knew, IPG then incorporated McCann's financial results in IPG's consolidated financial statements.
IPG's financial management negligently ignored indications McCann was improperly accounting for intercompany transactions. Accordingly, IPG negligently ignored the risk that McCann's results were materially misstated, with the result that IPG's own financial results were materially misstated.
IPG's financial reporting problems were not resolved in 2002. In September 2005, IPG again restated its pre-tax income for the years 2000 through 2003, and the nine months ended 2004, in the amount of $420 million. According to the complaint, a large portion of this restatement was related to $199 million of improperly recognized revenue related to Agency Volume Bonifications (AVBs) and other vendor discounts and credits that IPG took in violation of its contracts with certain of its clients. The 2005 restatement was necessary because there had been a substantial breakdown of internal controls at IPG, and its numerous subsidiaries, including McCann.
IPG filed numerous Forms 10-K, Forms 10-Q, Forms 8-K, and registration statements that contained misrepresentations due to the intercompany issues, the AVB issues, and the various other issues that were reflected in the 2002 and 2005 restatements. For example, in its 2002 Form 10-K, IPG reported net income of $99.5 million. This figure, however, was improperly inflated by $82.8 million, and IPG's actual income, as reflected in the restatements, was only $16.7 million (a 496% overstatement).
IPG, McCann, LaGreca and Watson agreed to settle the Commisssion's charges without admitting or denying the allegations in the Commission's complaint.
IPG consented to a final judgment permanently enjoining it from future violations of Sections 17(a)(2) and (3) of the Securities Act of 1933 (Securities Act) and Sections 13(a) and 13(b)(2)(A) and (B) of the Securities Exchange Act of 1934 (Exchange Act) and Rules 12b-20, 13a-1, 13a-11 and 13a-13 thereunder.
McCann consented to a final judgment permanently enjoining it from future violations of Sections Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder and aided and abetted IPG's violations of Sections 13(a) and 13(b)(2)(A) and (B) of the Exchange Act, and Rules 12b-20, 13a-1, 13a-11 and 13a-13. McCann also agreed to pay a $12 million penalty and $1 in disgorgement for its role regarding intercompany accounts resulting in the 2002 restatement.
LaGreca and Watson consented to final judgments permanently enjoining them from future violations of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and from aiding and abetting violation of Sections 13(a) and 13(b)(2)(A) and (B) of the Exchange Act and Rules 12b-20, 13a-1, 13a-11, and 13a-13. LaGreca and Watson also agreed to pay a civil penalty, in the amounts of $25,000 and $50,000, respectively, and to disgorge all gains derived from their violative conduct plus pre-judgment interest, in the amounts of $46,947 and $17,325, respectively.
In related administrative proceedings, LaGreca consented to an order under Rule 102(e) of the Commission's Rules of Practice suspending him from appearing or practicing before the Commission as an accountant for five years based on the entry of an injunction against him. [SEC v. Interpublic Group of Companies, Inc. and McCann-Erickson Worldwide, Inc., No. 08-CV-4075 (GBD)(S.D.N.Y.) ; SEC v. Salvatore LaGreca and Brian Watson, No. 08-CV-4076 (GBD) (S.D.N.Y.) ] (LR-20547; AAE Rel. 2819)
In the Matter of UTStarcom, Inc., Hong Liang Lu and Michael J. Sophie
The Commission today filed a settled action against UTStarcom, Inc., an Alameda, Calif.-based telecommunications company, for its false financial reports and recurring internal control deficiencies. UTStarcom has restated its financial statements three times since 2005, for prematurely recognizing over $400 million in revenue, improperly accounting for stock option compensation expenses, and failing to disclose related party transactions with a company controlled by UTStarcom insiders. Without admitting or denying the allegations, CEO Hong Liang Lu, of San Ramon, and former CFO Michael J. Sophie, of Pleasanton, agreed to a settlement including monetary penalties.
In an administrative order issued today, the Commission found that between 2000 and 2005, UTStarcom publicly reported over $400 million in sales that were subject to undisclosed side agreements or contract modifications rendering revenue recognition improper under applicable accounting principles. The Commission's Order further found that UTStarcom failed to disclose and properly account for transactions between the company and an entity controlled by an executive of UTStarcom's China subsidiary. The Order also found that the company failed to properly record compensation expenses for employee stock options. According to the Commission, although Lu and Sophie were put on notice of material weaknesses in the company's internal controls as early as 2003, they failed to establish adequate internal controls and falsely certified that the company's financial statements and books and records were accurate.
The Order found that, by its conduct, UTStarcom violated Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Securities Exchange Act of 1934 (Exchange Act) and Rules 13a-1 and 13a-13 thereunder. The Order further found that Lu and Sophie caused the company's violations and violated Exchange Act Rule 13a-14 by falsely certifying the accuracy of UTStarcom's periodic filings. Without admitting or denying the Commission's findings, UTStarcom agreed to cease and desist from violating the corporate reporting, books and records and internal controls provisions of the federal securities laws, and Lu and Sophie agreed to cease and desist from causing such violations and violating the certification provisions of the federal securities laws. In a related district court action charging them with violating Rule 13a-14 of the Exchange Act, Lu and Sophie agreed to pay civil penalties of $100,000 and $75,000, respectively. [SEC v. Hong Liang Lu and Michael J. Sophie, Case No. C-08-2262 PJH (N.D. Cal.] (LR-20548; AAE Rel. 2820); (Administrative Proceeding - Rel. 34-57754; AAE Rel. 2821; File No. 3-13031)
SEC Settles Insider Trading Charges Against Former Invitrogen Scientist
The Commission announced today that it obtained a final judgment against Harry H. Yim on April 23, 2008. Yim had consented to the judgment as part of a settlement of the insider trading charges the Commission had brought against him in October 2007. Under the settlement, Yim will be permanently enjoined from violating Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. Additionally, Yim will disgorge his ill-gotten gains of $79,581, plus $6,124.84 in prejudgment interest, and pay a civil penalty equal to disgorgement of $79,581. Yim agreed to the settlement without admitting or denying the allegations in the complaint.
The Commission's complaint alleged that Yim, age 45, of Vista, California traded in Invitrogen stock immediately upon learning of non-public information about the company's poor financial results. According to the complaint, Yim attended a company-wide, employee-only meeting on July 7, 2004. At the meeting, Invitrogen's chief executive officer disclosed material non-public information regarding the company's negative financial performance. Immediately after the meeting, Yim attempted to sell his Invitrogen stock and continued his efforts until, on July 19, 2004, he sold all the shares of Invitrogen stock he could. On July 21, 2004, Invitrogen announced its second quarter earnings and lowered its revenue projections for the remainder of Invitrogen's fiscal year. After Invitrogen's July 21, 2004 earnings release, Invitrogen's stock price fell by more than 20%. By selling his Invitrogen shares prior to the July 21 earnings release, Yim avoided losses of approximately $79,581 that he otherwise would have incurred from the decline in the company's stock price. [SEC v. Harry H. Yim, Civil Action No. 07 CV 2065 IEG (AJBx) (S.D. Cal.)] (LR-20549)
SEC Charges Florida Company and Three Former Officers for Accounting Fraud and Unregistered Stock Sales
On May 1, the Commission filed a civil action in the United States District Court for the Southern District of Florida against GlobeTel Communications Inc. and three former officers of the company, Timothy J. Huff, Thomas Y. Jimenez and Lawrence E. Lynch. GlobeTel is a publicly-traded telecommunications company headquartered in Fort Lauderdale, Florida. Huff was GlobeTel's chief executive officer, and Jimenez and Lynch were its chief financial officers during the relevant period. According to the SEC's complaint, Jimenez and Lynch participated in a scheme to inflate GlobeTel's revenue and then hide millions of dollars of unpaid receivables and liabilities between 2004 and 2006. The SEC alleges that GlobeTel recorded $119 million in revenue on the basis of fraudulent invoices created by two individuals in charge of its wholesale telecommunications business. Jimenez and Lynch are alleged to have made, or caused to be made, entries on GlobeTel's general ledger that improperly offset the receivables associated with those revenues against the liabilities, thereby concealing the revenue fraud from investors. Huff is alleged to have caused GlobeTel to sell $1.6 million worth of GlobeTel common stock in 2005 in violation of the registration provisions of the federal securities laws.
The SEC alleges that GlobeTel violated Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 (Securities Act) and Sections 10(b), 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Securities Exchange Act of 1934 ("Exchange Act") and Rules 10b-5, 12b-20, 13a-1, 13a-11 and 13a-13 thereunder, and seeks as relief a permanent injunction, civil penalties, and disgorgement with prejudgment interest. The SEC alleges that Jimenez and Lynch violated Section 17(a) of the Securities Act, violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder and aided and abetted violations of those provisions by GlobeTel, violated Rules 13a-14 and 13b2-1 of the Exchange Act and aided and abetted violations of Sections 13(a) and 13(b)(2)(A) & (B) of the Exchange Act and Rules 12b-20, 13a-1 and 13a-13 thereunder by GlobeTel, and seeks as relief permanent injunctions, civil penalties, disgorgement with prejudgment interest and officer and director bars. The SEC alleges that Huff violated Sections 5(a) and 5(c) of the Securities Act of 1933 and seeks as relief a permanent injunction and a civil penalty.
Without admitting or denying the charges against him, Lynch consented to final judgment permanently enjoining him from future violations of Section 17(a) of the Securities Act and Sections 10(b), 13(a) and 13(b)(2)(A) & (B) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1, 13a-13, 13a-14 and 13b2-1 thereunder, imposing a five year officer and director bar and ordering him to pay a civil penalty in an amount to be determined by the court. Without admitting or denying the charges against him, Huff consented to final judgment permanently enjoining him from future violations of Sections 5(a) and 5(c) of the Securities Act and ordering him to pay a $30,000 civil penalty.
For additional information, see LR-20371 (Nov. 26, 2007) and SEC complaint. [SEC v. GlobeTel Communications Corp., Timothy J. Huff, Thomas Y. Jimenez and Lawrence E. Lynch, Case No. 08-CV-60647 (S.D. Fla.)] (LR-20550; AAE Rel. 2822)
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