COURT FINDS AWMS ACQUISITIONS, INC., AND OWNER MADE FALSE STATEMENTS IN AMR AND KODAK BUYOUT OFFERS

The following excerpt is from the SEC website:

“On January 10, 2012, the U.S. District Court for the Southern District of Florida in Miami entered final judgments against Allen E. Weintraub and his company, AWMS Acquisitions, Inc., d/b/a Sterling Global Holdings (Sterling Global), in connection with purported tender offers they made for the common stock of Eastman Kodak Company (Kodak) and AMR Corporation (AMR), the parent company of American Airlines. The Court’s order imposes permanent injunctions against Weintraub and Sterling Global and requires them to pay $400,000 in civil money penalties.

On December 30, 2011, the Court entered an order granting the Securities and Exchange Commission’s motion for summary judgment against Weintraub, a resident of Aventura, Florida. In its Order, the Court found that Weintraub deceived the public by making false and misleading statements regarding Sterling Global’s ability to purchase and operate Kodak and AMR. Specifically, the Court found:
On March 19, 2011, Weintraub, on behalf of Sterling Global, emailed a written offer to Kodak for all its “outstanding stock” at a total price of approximately $1.3 billion in cash. On March 29, 2011, Weintraub emailed substantially the same letter to AMR offering to purchase all AMR’s “outstanding stock” for approximately $3.25 billion in cash. These offer prices represented almost a 50% premium over each company’s then current stock price.

Before submitting the offer letters to Kodak and AMR, Weintraub entered the local branches of three banking institutions to solicit respective loans of $3 billion, $3.5 billion, and $1.3 billion. Each institution informed Weintraub that they were not interested in establishing a business relationship. Weintraub never obtained a letter of credit or other written financing agreement. The letters he sent to Kodak and AMR created the misleading impression that Sterling Global was poised to purchase the companies because Weintraub and Sterling Global had substantially no assets, and lacked the resources to complete the offers.

Weintraub emailed the purported tender offers to media outlets, investment research firms, and large shareholders in an effort to publicize his proposed deal. In published media interviews, Weintraub misrepresented that he had the financial backing of “several large institutions,” could produce letters of credit “within five minutes,” had done similarly-sized deals, and was in discussions with Kodak about his offer.

Weintraub did not disclose several aspects of his personal background before submitting the offer letters to Kodak and AMR, or in his subsequent communications with shareholders and members of the press. Specifically, Weintraub never disclosed that in 2008 he pleaded guilty to two felony counts of organized fraud and one count of felony money laundering, and that he was on probation when he submitted the offer letters to Kodak and AMR. He also did not disclose that in 2002 the Court permanently enjoined him from acting as an officer or director of any public company as a result of a previous violation of federal securities law. SEC v. Florida Stock Transfer, Inc., et al., Lit. Rel. 17795 & 18021.

Weintraub failed to disclose that he had filed for bankruptcy in 2007, and that his primary residence was foreclosed upon in 2008. Weintraub also did not divulge that on September 24, 2010, the Division of Corporations of the Florida Department of State administratively dissolved Sterling Global for failing to file its annual report.
The Court permanently enjoined Weintraub and Sterling Global from future violations of Sections 10(b) and 14(e) of the Securities Exchange Act of 1934 and Rules 10b-5 and 14e-8 thereunder, and ordered them to each pay a civil money penalty in the amount of $200,000. The Commission did not seek any other remedies.
The Commission filed its complaint in this matter on May 3, 2011. See Litigation Release 21955 (May 4, 2011). On July 21, 2011 the Clerk of the Court entered a default against Sterling Global for failing to appear via an attorney and to answer the Commission’s complaint.”

SEC CHAIRMAN MARY SCHAPIRO SPEAKS ON THE PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD BUDGET AND FEE

The following excerpt comes from the SEC website:

January 11, 2012
Chairman Mary Schapiro
“Good morning. This is an open meeting of the U.S. Securities and Exchange Commission on January 11, 2012.

Today, the Commission will consider the proposed 2012 budget and accounting support fee for the Public Company Accounting Oversight Board. Under the Sarbanes-Oxley Act, which created the PCAOB, the Commission must annually review and approve the Board’s budget and support fee.

And while it our responsibility to ask questions about the appropriate funding level and the stewardship of those funds, there is little question that the PCAOB has grown into an important regulatory body with a significant investor protection role. Since its creation in 2002, the PCAOB has been empowered with the authority to oversee the audits and auditors of public companies’ financial statements — a role that is essential to investor confidence and the success of our capital markets.

And, more recently, the Dodd-Frank Act expanded the PCAOB’s role — vesting it with the express authority to oversee the audits and auditors of broker-dealer financial statements as well.

As we know, the PCAOB improves the quality of audits by developing and maintaining high quality standards for audit performance, conducting and reporting on inspections of audits, and carrying out enforcement actions.

When the PCAOB was established, it represented an unprecedented change in the oversight of the audit profession. Investors were no longer left to rely on a “peer review” system where one auditor reviewed the work of another. Rather, inspections were to be conducted by professionals free from potential conflict, and the results of those inspections were to be made public.

The increased credibility and objectivity inherent in this model speaks for itself. If you compare the findings of an old peer review report with a PCAOB inspection report, you would be struck by the nature and extent of investor protection and professional quality areas identified by the Board.

Likewise, the standards governing audit performance — including how an audit is to be performed by an independent and objective party — are now set by the PCAOB, rather than the auditing profession.

Given its responsibilities and the vital protections it provides to the investment community, the PCAOB must continuously re-examine the results of its standard setting, inspection, and enforcement efforts, and we at the SEC must do the same in our oversight capacity.
To do its job — and do it right — the PCAOB must have sufficient resources, and this review and approval process will give the Board a chance to justify its budget request. In turn, we at the SEC can carry out our responsibility by critically evaluating and ensuring the appropriate funding levels, and probing whether the funds that are collected from issuers and broker-dealers are used efficiently and effectively“.

SEC SETTLES ENFORCEMENT ACTION WITH SEVERAL REAL ESTATE ENTITIES

The following excerpt is from the SEC website:

January 10, 2012
The Securities and Exchange Commission announced today the resolution of an enforcement action filed by the Commission on March 1, 2010 in federal district court in Massachusetts against several Massachusetts-based parties who offered real estate investments. The court entered final judgments by consent against several defendants on January 10, 2012, and the Commission agreed to dismiss the case against certain of the other parties.

The Commission’s complaint charged Kathleen S. Dobens and Charles T. Dobens, husband and wife business partners from Duxbury, Massachusetts; their business partner, Joseph A. Roche of Braintree, Massachusetts; and four entities through which they operated (Silex Group, LLC, Preakness Apartments I & II, LLC, Cherry Hills Apartments of Fort Worth, LLC, and Clear River Partners, LLC). The complaint alleged that the defendants committed securities law violations with respect to real estate investments that they offered. The Commission also charged four other entities as relief defendants.
Without admitting or denying the allegations in the Commission’s complaint, the three individual defendants (Kathleen S. Dobens, Charles T. Dobens, and Joseph A. Roche) agreed to the entry of final judgments that: (a) permanently enjoin them from violating Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 (“Securities Act”) and Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 thereunder; (b) order the individual defendants to pay, jointly and severally, disgorgement of $284,399 plus prejudgment interest of $20,775; (c) order Kathleen S. Dobens and Charles T. Dobens to each pay a civil monetary penalty of $80,000, but not imposing any civil penalty against Roche based on the representations in Roche’s sworn statement of financial condition; (d) order that any money, assets, or other benefit received by the individual defendants from their ownership interest in defendant Preakness Apartments I & II, LLC be applied toward partial satisfaction of the outstanding disgorgement orders against them; and (e) orders that the individual defendants comply with an undertaking forbidding them from having any control over expenditures made by or on behalf of Preakness Apartments I & II, LLC.

Three of the entity defendants (Silex Group, LLC, Cherry Hills Apartments of Forth Worth, LLC, and Clear River Partners, LLC), also agreed, without admitting or denying the allegations in the Commission’s complaint, to the entry of final judgments permanently enjoining each of them from violating Sections 5(a), 5(c) and 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.

Finally, the Commission agreed to dismiss its charges against defendant Preakness Apartments I & II, LLC and the relief defendants East Coast Investment Solutions, LLC, The Dobens Company, LLC, Crosscreeks Apartments I and Crosscreeks Apartments II, LLC.”

EXECUTIVE AND FORMER EXECUTIVE PLEAD GUILTY IN MUNICIPAL BOND BID-RIGGING CASE

The following excerpt is from the Department of Justice website:

January 9, 2011

"WASHINGTON — An executive and a former executive of Rubin/Chambers, Dunhill Insurance Services, also known as CDR Financial Products, pleaded guilty today in the Southern District of New York for their participation in bid-rigging and fraud conspiracies related to contracts for the investment of municipal bond proceeds and other related municipal finance contracts, the Department of Justice announced.

Zevi Wolmark, also known as Stewart Wolmark, the former chief financial officer and managing director of CDR, and Evan Andrew Zarefsky, a CDR vice president, pleaded guilty before U.S. District Judge Victor Marrero. CDR is a Beverly Hills, Calif.-based financial products and services firm. Wolmark and Zarefsky, together with CDR and its founder and president, David Rubin, were indicted on Oct. 29, 2009. Rubin and CDR pleaded guilty on Dec. 30, 2011.

Wolmark and Zarefsky each pleaded guilty to participating in separate bid-rigging and fraud conspiracies with various financial institutions and insurance companies and their representatives. These institutions and companies, or “providers,” offered a type of contract, known as an investment agreement, to state, county and local governments and agencies throughout the United States. The public entities were seeking to invest money from a variety of sources, primarily the proceeds of municipal bonds that they had issued to raise money for, among other things, public projects. Wolmark and Zarefsky also pleaded guilty to one count of wire fraud in connection with those schemes.

“Through corruption and bid rigging, Zevi Wolmark and Evan Zarefsky reaped profits for their company by defrauding municipalities and denying them the competition they deserved,” said Sharis A. Pozen, Acting Assistant Attorney General in charge of the Justice Department’s Antitrust Division. “Our investigation into the municipal bond derivatives industry has now led to guilty pleas by 12 financial executives and charges against six others.”

According to court documents, CDR was hired by public entities that issue municipal bonds to act as their broker and conduct what was supposed to be a competitive bidding process for contracts for the investment of municipal bond proceeds. Competitive bidding for those contracts is the subject of regulations issued by the U.S. Department of the Treasury and is related to the tax-exempt status of the bonds.

During his plea, Wolmark admitted that, from 1998 until 2006, he and other co-conspirators favored certain providers when determining which provider would win contracts for investment agreements. Wolmark also admitted that he ensured that certain providers won by soliciting intentionally losing bids from other providers and manipulated bidding in return for unearned or inflated fees. Additionally, Wolmark admitted that he signed certifications that contained false statements regarding whether the bidding process for certain investment agreements complied with relevant Treasury regulations.

Zarefsky admitted that he supplied information to providers to help them win bids, allowed providers to lower their bids and solicited intentionally losing bids from some providers so that other providers could win certain contracts.

“Municipal bonds are issued to fund public works or otherwise serve a public purpose,” said FBI Assistant Director-in-Charge Janice K. Fedarcyk of the New York Field Office. “Bid rigging in the investment of bond proceeds effectively reduces the potential yield on those proceeds, meaning the actions of these defendants had an adverse impact on the public. This wasn’t just self-interest. It was self-interest that ran directly counter to the public interest.”

“Today’s guilty pleas by Zevi Wolmark and Evan Zarefsky represent a milestone in the government’s investigation,” said Special Agent in Charge Charles R. Pine of the Internal Revenue Service-Criminal Investigation (IRS-CI) New York Field Office. “CDR and the firm’s employees have effectively been removed from the municipal bond market and will no longer be able to manipulate and control the bid process for the reinvestment of tax-exempt municipal bond proceeds. This scheme to conceal kickbacks through complex derivative transactions has come to an end. IRS Criminal Investigation will continue to investigate those who violate the law for financial gain at the expense of taxpayers.”

The bid–rigging conspiracy with which Wolmark and Zarefsky are charged carries a maximum penalty of 10 years in prison and a $1 million criminal fine. The fraud conspiracy with which they are charged carries a maximum penalty of five years in prison and a $250,000 criminal fine. The wire fraud charge with which each defendant is charged carries a maximum penalty of 20 years in prison and a $250,000 criminal fine. The maximum fines for each of these offenses may be increased to twice the gain derived from the crime or twice the loss suffered by the victims of the crime, if either of those amounts is greater than the statutory maximum fine.

Including today’s guilty pleas, 12 individuals have pleaded guilty in an ongoing federal investigation into the municipal bonds industry, which is being conducted by the Antitrust Division’s New York Field Office, the FBI and IRS-CI.

In addition, Dominick Carollo and Peter S. Grimm, formerly of GE Funding Capital Market Services, and Steven E. Goldberg, formerly of GE Funding Capital Market Services and FSA, were indicted on July 27, 2010, and are scheduled to begin trial in April 2012. Three former UBS employees, Peter Ghavami, Gary Heinz and Michael Welty, were indicted on Dec. 9, 2010."

SEC ALLEGES THREE FORMER "WELLCARE" EXECS IMPROPERLY RETAINED $40 MILLION

The following excerpt is from the SEC website:

“On January 9, 2012, the Securities and Exchange Commission (“Commission”) filed a civil injunctive action against three former executives of WellCare Health Plans, Inc. (“WellCare”), a managed care services company that administers federal government-sponsored health care programs. According to the Commission’s complaint, from 2003 to 2007, Todd Farha, former Chief Executive Officer, Paul Behrens, former Chief Financial Officer, and Thaddeus Bereday, former General Counsel, (collectively, “the Defendants”), devised and carried out a fraudulent scheme that deceived the Florida Agency for Health Care Administration (“AHCA”) and the Florida Healthy Kids Corporation (“Healthy Kids”) by improperly retaining over $40 million in health care premiums the company was statutorily and contractually obligated to spend on certain health care services or reimburse to the state agencies. As a result of the scheme, WellCare recorded the retained amount as revenue, which materially inflated its net income and diluted earnings per share (“EPS”) in its public financial statements.

As alleged in the complaint, WellCare received premiums from AHCA and Healthy Kids that WellCare was required, by contract and by statute, to spend on certain eligible health care services for low-income plan participants. If WellCare spent less than a certain percentage of the premiums on eligible health care services, it was required to refund some or all of the difference to the State of Florida. According to the complaint, the Defendants devised a scheme to evade the state’s regulatory framework and fraudulently retain the premiums by, among other methods, funneling the premiums through an internal subsidiary and by applying administrative and other non-allowable expenses in their calculation of money spent on health care services. In total, through their fraudulent conduct, the complaint alleges that WellCare reduced the refunds it paid to AHCA by approximately $35 million and to Healthy Kids by approximately $6 million.

The excess premiums retained by the Defendants went straight to WellCare’s bottom line. WellCare materially misstated its net income and EPS in filings with the Commission and in quarterly and annual earnings releases from 2004-2006 and the first two quarters of 2007. On January 26, 2009, WellCare filed its Form 10-K for 2007 and restated its financial results for those time periods. The Restatement reduced WellCare’s reported net income and EPS by approximately 14% for fiscal year (“FY”) 2004, 9% for FY 2005, 13% for FY 2006, and 9% for the first quarter of FY 2007.

The Commission’s complaint also alleges that, after setting their fraudulent scheme in motion, the Defendants sold approximately 1.6 million WellCare shares into the public market for gross proceeds of approximately $91 million. The Commission alleges that the Defendants sold these shares on the basis of the material, nonpublic information that they were conducting a fraudulent scheme that impacted WellCare’s financial results, caused false and misleading statements, and imperiled the Company’s business relationship with the State of Florida. According to the complaint, the Defendants sold the shares pursuant to 10b5-1 trading plans that were created and amended in bad faith, and through three public stock offerings conducted while the scheme was ongoing.

Based on the conduct alleged in the complaint, the Commission charges that each of the Defendants violated antifraud provisions Section 17(a) of the Securities Act of 1933 (“Securities Act”) and Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Exchange Act Rule 10b-5, and also violated Exchange Act Section 13(b)(5) and Exchange Act Rule 13b2-1. All of the Defendants are also charged with aiding and abetting WellCare’s violations of reporting, books and records, and internal controls provisions, namely, Sections (13)(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act and Exchange Act Rules 12b-20, 13a-1, 13a-11 and 13a-13. Bereday is charged with aiding and abetting Farha’s and Behrens’ violations of antifraud provisions Section 10(b) and Rule 10b-5(b) of the Exchange Act. Finally, Farha and Behrens are charged with violating Exchange Act Rules 13b2-2 and 13a-14, and Section 304(a) of Sarbanes-Oxley, which requires that the CEO or CFO of a company that restates its financial results to reimburse the company any incentive-based or equity-based compensation received and any profits realized from the sale of the company’s stock during the 12-month period following initial issuance of the misleading financial statements.

As to each Defendant, the Commission is seeking a judgment permanently enjoining them from violating the provisions of the securities laws specified above, civil penalties, disgorgement of ill-gotten gains with prejudgment interest, and officer and director bars. As to Farha and Behrens, the Commission seeks reimbursement of incentive-based and equity-based compensation pursuant to Section 304(a) of Sarbanes-Oxley.

In conducting its investigation, the Commission acknowledges assistance from the U.S. Attorney’s Office for the Middle District of Florida, the Office of Inspector General for the Department of Health and Human Services and the Federal Bureau of Investigation.”

TEXAS MAN TO PAY BACK $2.69 MILLION FOR FOREIGN CURRENCY PONZI SCHEME

The following excerpt is from the CFTC website:

“Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) obtained a federal court consent order requiring CFTC defendant Larry Benny Groover of Gunter, Texas, to pay a total of $2.69 million in restitution and a civil monetary penalty for defrauding customers and misappropriating funds in a foreign currency (forex) Ponzi scheme.

The consent order of permanent injunction, entered by Judge Richard A. Schell of the U.S. District Court for the Eastern District of Texas, Sherman Division, on January 4, 2012, also requires Groover and/or his wife, Joanne Groover, named as a Relief Defendant, to disgorge ill-gotten funds totaling $44,890, which Joanne Groover received as a result of her husband’s fraudulent conduct.

The court’s order finds that from June 18, 2008, to February 4, 2010, Groover solicited and received approximately $1.4 million to trade forex and commingled these customer funds with his and his wife’s personal funds. Groover used approximately $647,500 of the solicited funds to trade forex and lost approximately $600,000. Groover misappropriated the remaining customer funds by making payments to past customers with new customer funds and paying for personal expenses, such as health and medical care, cable television, groceries, dining, auto repair, gasoline, and insurance, according to the order. Additionally, the order finds that Groover used customer funds to purchase software and trade publications and to make payments directly to himself and Joanne Groover.

The CFTC thanks the Financial Services Authority of the United Kingdom, the Australian Securities and Investment Commission, the Texas State Securities Board, and the Collin County District Attorney’s Office for their assistance.

CFTC Division of Enforcement staff members responsible for this case are Jeff Le Riche, Jenny Chapin, Jo Mettenburg, Steve Turley, Richard Glaser, and Richard Wagner.”