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Friday, August 15, 2008

WexTrust Capital Investigation Eerily Similar to Peter Dawson’s Long Island Fraud

For as sophisticated as today's financial gurus claim to be, the old-fashion Ponzi scheme is still alive and well. Indeed, the SEC filed a major case against WexTrust Capital (a Chicago-based private equity firm), its partners and various investment affiliates, that allegedly ripped off an estimated 1,200 investors, mainly from the Jewish Orthodox community. In response, Zamansky & Associates has launched its own investigation in order to return funds back to investors.

It is estimated that WexTrust Capital, and one of its main partners, Joseph Shereshevsky, may have defrauded their investors by as much as $100 million, which the SEC alleges was diverted to cover personal expenses, among other expenditures. According to the SEC's complaint,

"Defendants have been fraudulently raising money in the various offerings, each of which purportedly is for a particular investment, without disclosing that funds raised were actually being used to pay prior investors in unrelated offerings and to make unauthorized payments to fund the operations of the Wextrust Entities, which were operating at a deficit. An internal Wextrust combined "balance sheet" shows that as of December 31, 2007, Wextrust Entities "borrowed" at least $74 million from the LLC entities and also "lent" at least $54 million to various LLC Entities. The Defendants are raising money and commingling funds in contravention of specific representations in private placement memoranda that investor funds will be used for specific investments in real estate or other assets identified in offering memoranda."

All together, the SEC alleges that WexTrust Capital conducted at least 60 private placement offerings and created approximately 150 entities in the form of limited liability companies or similar vehicles. Throughout the process, the SEC alleges, WexTrust Capital partners didn't disclose material information, never purchased properties it promised to investors and paid themselves profitably. WexTrust Capital allegedly committed a litany of violations of U.S. Securities laws.

Indeed, this is the classic Ponzi scheme strategy and eerily similar to Zamanky & Associates' pending case in Long Island court involving Peter Dawson, a now jailed investment advisor who ripped off dozens of retirees. Among the similarities between the Dawson case and that of WexTrust Capital are:

  • Both situations are examples of affinity schemes: WexTrust Capital targeted members of the Jewish Orthodox community and specifically, those that attended the B'nai Israel Congregation. Mr. Shereshevsky was close with the Rabbi who vouched for him regularly, according to the Wall Street Journal. By the same token, Peter Dawson targeted members of the East Meadow Methodist Church, and had close ties with its Pastor.

  • Investor borrowed against his home: According to the Journal, at least one investor, and potentially others, borrowed against his house in order to invest in WexTrust Capital.

  • Managers of WexTrust Capital and its affiliates enjoyed lavish lifestyles, as did Mr. Dawson, by allegedly fraudulent means.

And basically both Mr. Dawson and Mr. Shereschevsky and WexCapital, commingled funds, which is a fancy way of robbing "Peter to pay Paul." For example, in the SEC's report under "The Block III Offering Fraud," WexTrust Capital did the following:

Block III Mines & Minerals, LLC ("Block III") is a Virginia limited liability company organized to make a loan to and acquire an interest in a Namibian company, Deva Investments (Pty), Ltd., which owns the exploration and mining rights in a group of diamond mines in Namibia known as Block III.

Block III Managers, LLC, a Virginia limited liability company, is the manager of Block III. Block III Managers is wholly-owned by Brandon Investments, and that Brandon Investments is a wholly-owned subsidiary of Wextrust.

Defendants Byers and Shereshevsky, together with Defendant Wextrust and Brandon Investments, controlled the issuer, Block III.

Block III issued a private placement memorandum dated March 22, 2007 (the "Block III PPM") seeking to raise $11 million from investors. The Block III PPM represents that the proceeds of the offering will be used as follows: (a) $4.5 million would be used for new equipment and operating capital, (b) $1.5 million would be used to fund a reserve for a purchase option on two other mines, (c) $1.75 million would fund an operating reserve, $300,000 would pay legal and operating expenses, and (d) approximately $2.95 million would be paid in fees to Wextrust and Wextrust Securities. Moreover, the operating agreement attached to the Block III PPM specifically limited the use of funds to expenses related to Block III.

These representations were false. Moreover, the Defendants knew, or were reckless in not knowing, the representations were false. Almost immediately after the money was raised, Defendants diverted the proceeds to unauthorized uses.

The Wextrust balance sheet shows that $3,990,910 of proceeds raised by Block III Mines & Minerals LLC was diverted to Wextrust Entities.

Defendants Wextrust Securities acted as a placement agent in the Block III offering.

The Block III PPM describes Shereshevsky as a "principal and integral part of Wextrust", and states that Shereshevsky was "instrumental in the founding of Wextrust Securities". The Block III PPM fails to disclose Shereshevsky's prior felony conviction. Defendants Byers and Shereshevsky knew, or were reckless in not knowing, of Shereshevsky's conviction.

Defendant Shereshevsky and his wife received transaction based compensation of $249,577, or approximately two percent of the funds raised by Wextrust Securities, in connection with the Block III offering. The Shereshevskys also received $750,000 in bonuses in connection with the Block III offering.

WexTrust Capital's Troubles

Its likely WexTrust Capital will attempt to defend itself by saying that investments simply went south and it's "buyer beware." But the SEC's evidence points otherwise. For example, Mr. Shereshevky emailed a business partner which showed they both were aware that their activities were fraudulent:

"Please remember one thing. That although I always take care of you and myself, my goal in this thing as I have always told you from day one, is to get [W]exTrust out of all the s---- before the end of 09 or 10 at the latest. that is my primary concern. We have faced it until we made it for long enough and now we must clean it up."

Mr. Dawson pleaded guilty and is serving a sentence of five to 15 years; a sentence provided to him only after helping investor recover their money. At least at this point, the SEC has only filed civil charges. Shereshevsky and his Chicago partner affiliated with WexTrust Capital were arrested earlier this week and face criminal charges. The WexTrust Capital partners could be looking at much longer sentences if they choose to fight the charges.

WexTrust Capital Investors: What's Next?

Naturally, the investors in WexTrust Capital are asking simply, "where's my money now and how do I get it back?" In the Peter Dawson case, most of the funds were squandered. It's unclear at this point whether any of WexTrust Capital assets are retrievable, but in all likelihood even the assets that are liquid won't amount to a full recovery for the allegedly defrauded investors.

The key in recovering money is to ferret out solvent firms that potentially aided and abetted the fraud, or at least were in the position to stop it. In the Dawson case, we are suing banks, mortgage brokers, mortgage lenders and other firms, which Mr. Dawson himself alleges were participants. This takes an extensive amount of research and investigation, but if you follow the money in all likelihood there are places that can be found were recoverable money exists.

Investors in the WexTrust Capital scheme are likely feeling a whole host of emotions. It's important to have hope, be patient, and communicate regularly with an attorney.

WexTrust Capital and Peter Dawson: What are the lessons for investors?

Perhaps the over arching lesson in these two cases is due diligence. According to the SEC's complain, Mr. Shereshevsky had a prior history of investment-related fraud:

"In March of 1993, Shereshevsky was arrested for bank fraud, among other things. In June 2003, Shereshevsky pleaded guilty in the Southern District of New York to one felony count of bank fraud. He was sentenced to time served, 24 months supervised release and ordered to pay restitution in the amount of $38,797.90, which judgment was satisfied on February 15, 2005."

Even if the investment advisor is a member in good standing at investor-affiliated organizations, such as a church, synagogue or rotary club, a full due diligence investigation should be conducted.

And then there is the age old adage: if something is too good to be true, it probably is.

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Thursday, August 14, 2008

What the Auction Rate Securities Settlement Doesn’t Do

The New York State Attorney General and the other regulators participating in the auction rate securities (ARS) settlement talks are surely to be commended for their action and diplomacy. Auction rate securities clearly were fraudulently marketed to investors and without the regulatory pressure and investigations; there would be no light at the end of the tunnel. And lest anyone think Wall Street is owning up to its mistakes, know the real reason banks have come to the table are the potentially ruinous emails and evidence that would have surfaced had an investigation continued. The emails that surfaced at Merrill Lynch and UBS showing ARSs were sold to unsuspecting investors while internally it was clear the market was poised to collapse is the tip of the iceberg in all likelihood.

But putting Wall Street’s disingenuous generosity aside for the moment, based on details of that have emerged, it seems to fall short of true retribution for the fraud which occurred…and I’m not referring to Goldman Sachs’ apparent non-participation.

First off, though it appears that brokerages will be buying back auction rate securities over the course of the next year, clients that suffered consequential damages are left out in the cold. Many of our clients were not able to close on transactions such as homes and tuitions because of the ARS market’s collapse. Non-profits were not able to meet their philanthropic obligations as well. Cases seeking to recover these consequential damages are likely to continue in arbitration.

Secondly, ARSs were fervently pitched to corporations as “cash equivalents,” so many very sophisticated CFOs and comptrollers tied up their free cash flows in these securities. Payrolls were missed, financing opportunities passed by and business operations were hampered. These claims will likely proceed as well.

Thirdly, some investors were able to sell their ARSs in the secondary market, usually at steep losses. It’s currently unclear whether they will be compensated for their losses.

And importantly, many angry investors moved their accounts to other firms; and burned brokers, switched firms because their brokerages pressured them into buying and selling auction rate securities. This seems to be a grey area as well. For example, if an investor left Merrill Lynch after getting ensnared in its ARS offerings, and moved his/her account to competitor, it is unclear whether that investor will be made good.

Finally, it appears that Wall Street will be customarily let off the hook by not admitting any wrong doing. At the very least, senior managers who oversaw the ARS market and were responsible for its marketing should be held responsible.

Indeed, when the dust settles on the auction rate securities settlements, its likely Wall Street’s problems won’t go away. As they say, the devils in the details.

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Wednesday, August 13, 2008

Hedge Fund Losses Could Lead to Style Drift

Reuters reports on key indexes pointing to large losses by hedge funds in the month of July - and likely for the foreseeable future. The reasons are that many hedge funds that were highly leveraged are receiving margin calls. And a great many firms are being hammered by a combination of falling commodity prices and rising financial stocks, which pressured popular bets in the opposite directions.

As liquidity dries up and prime brokerage lines shrink, we are likely to see more hedge fund managers going outside the box and making riskier, more speculative plays. If these investments diverge from the style or strategy disclosed to investors when they joined the hedge fund, more and more lawsuits based on style drift and fraud (failure to disclose) could be filed by investors.

Investors are entitled to a certain amount of transparacy based on the originally disclosed investment strategy - if the strategy changes, investors should be given an opportunity to either withdraw or consent. Simply baiting and switching is unacceptable and likely will lead to lawsuits. Amarath is viewed as exhibit A. The fund said it was employing a presumably safer multi-strategy approach, but in fact the managers made huge bets in natural gas.

One of the major differences between a claim against a hedge fund and a claim against a brokerage firm is that in many instances the hedge fund investors must file the lawsuit in court instead of through FINRA’s arbitration proceedings. On the surface that is a disadvantage, but given hedge fund managers propensity for secrecy, such a public dispute could lead them to act quickly and make investors whole.

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Thursday, August 07, 2008

The Decision to Sue a Financial Advisor is not so Cut and Dry

A recent Money Magazine columnist, who carries the nom de plume of “The Mole” and is an undercover financial planner, wrote a column entitled “Should I sue my advisor?”

“The Mole” relates a common situation where a broker is asked to review another broker’s performance and finds that unsuitable investments were made and excessive fees were charged. Indeed, many of the cases referred to Zamansky & Associates’ are from these “second” brokers, who are often the best ones to determine whether the previous advisor abused the client, yet as The Mole asserts, only a qualified securities arbitration attorney should be trusted with this advice.

But I do disagree with The Mole on some of his/her points. The Mole writes that “the award is typically a small fraction of what's requested, sometimes not enough to cover the cost of the suit.” Many lawyers, including our firm, take cases on a contingency or success fee basis so that if there is a successful arbitration or more commonly a financial settlement, only then are legal fees incurred. In other words, the financial interests of the aggrieved investor and his/her counsel are aligned.

Secondly, The Mole takes a look at disclosure documents, such as the investment advisory agreement and the prospectus, and sees the fine print as iron clad. True enough, while arbitration panels will be presented with disclosure documentation, that’s not dispositive of a case. Securities arbitration panels will hear testimony from both broker and client and make judgments based upon the credibility of the witnesses. If an arbitration panel thinks that a broker made a material misrepresentation to a client, the fact that documents contain disclosures may be ignored by the panel which could issue a monetary award against the broker. Furthermore, where a broker has a number of customer complaints on their record, arbitration panels may find it more likely abuse has occurred.

The Mole and I may disagree on some things, after all he’s a financial planner and I am a securities arbitration attorney, but we both agree that the best policy is to not buy a “financial product or [do] business with an adviser unless you understand what you're buying and what you're paying in total fees.”

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Monday, August 04, 2008

Merril Lynch's Microwave Ovens

The focus on Merrill Lynch these days is on its tattered balance sheet, namely the more than $30 billion in mortgage-related assets it wrote down last week for some 22 cents on the dollar. Given that Merrill valued these toxic assets at 36 cents on the dollar just weeks ago underscores the severity of the mess Wall Street has created. Even a veteran executive like Merrill CEO John Thain has absolutely no clue how to value the assets on his company’s books.

But Mr. Thain has another formidable problem. It is the mind-boggling allegations outlined in the administrative complaint Massachusetts regulators filed Thursday outlining with impressive clarity how Merrill Lynch deceived its clients into believing that auction rate securities were safe cash equivalent investments when in fact they were inherently quite risky. If a significant portion of Merrill’s brokers and retail customers take the time to actually read the complaint, they will be outraged by how badly Merrill's management betrayed them.

The Massachusetts complaint, impressively written in language that a layman can easily understand, makes clear that Merrill was badly conflicted when selling auction rate securities to its retail customers, some of whom I represent. The firm reaped a hefty $90 million in profits in 2006 and 2007 underwriting these securities for their corporate customers and priced them at interest rates ultimately advantageous to them.

The interest rates on these securities reset at weekly or monthly auctions and were typically slightly higher than an investor could receive from a money-market fund. The little understood risk was that Merrill was artificially propping up the auction rate market and that if an auction ever failed, investors would get stuck holding essentially illiquid long-term bonds carrying relatively low rates of interest. Merrill’s mortgage-related problems eventually prevented the firm from propping up the auction rate market; almost overnight its retail clients were stuck holding low-interest bonds with long-term maturity dates.

“Time after time, when confronted with conflicts of interest, Merrill Lynch was consistent in that it placed its own interests ahead of its investor clients (emphasis mine),” the administrative complaint charges.

With more than three decades of experience representing individual investors who have been wronged by their brokers, it comes as no surprise to me that Merrill put its interests ahead of those of its clients. And to be fair, other brokerage firms also have been accused of deceptively selling auction rate securities to their clients. But the Massachusetts complaint against Merrill also reveals the firm’s lack of regard for both the letter and spirit of previous regulatory agreements it has entered into and provides yet another appalling example of conflicted research.

According to the complaint, Frances Constable, a manager director responsible for overseeing Merrill’s auction rate securities desk, was allowed to compromise the integrity of Merrill’s fixed-income research by demanding that a less-than-sanguine report about auction rate securities be retracted. Merrill’s research department acquiesced and issued a new report positively characterizing auction rate securities as “a buying opportunity.” Merrill cannot claim that Ms. Constable was acting without the complicit approval of her superiors; Ms. Constable sent an email to her bosses written entirely in capital letters outlining her planned course of action.

Another damaging email was sent by Ms. Constable to an associate on November 26 when the firm was clearly worried about the firm’s increasing inability to peddle auction rate securities to its unsuspecting clients: “The gloves are off and we are not concerned about issuer perception of [Merrill Lynch’s] abilities and the competition. Gotta Move these microwave ovens!!”

Conflicted research is nothing new at Merrill. In 2001 the firm was party to a global $1.4 billion settlement after former New York Attorney General Eliot Spitzer uncovered emails showing that then Merrill analyst Henry Blodget was touting stocks he privately believed were “pieces of crap.” As part of the settlement, Merrill agreed to ensure the independence of its equity research department from its investment banking operations. Shockingly, a Merrill spokesman defended Ms. Constable’s actions by saying the Spitzer settlement didn’t preclude communications between Merrill’s sales and fixed-income research analysts.

Artificially propping up its auction rate securities also underscores the disregard Merrill has for regulators. On May 31, 2006, the SEC's Division of Enforcement issued a news release trumpeting that it had settled with 15 broker-dealer firms, including Merrill Lynch for what essentially amounted to rigging the auction rate securities market between January 2003 and June 2004. The penalty: a paltry fine totaling $13 million, of which Merrill’s piece was an insignificant $1.5 million.

To the credit of Massachusetts regulators, they are seeking to force Merrill to make their retail clients whole on the auction rate securities they were duped into buying. But if the Commonwealth’s regulators are truly bent on forcing Merrill to reform, they will insist that any settlement require Merrill to admit wrongdoing, thereby making it considerably easier for their clients to seek redress in securities arbitration for additional losses they sustained because of the unexpected illiquidity of their investments.

The fallout for Merrill's brokers could also be significant. The complaint alleges that brokers who questioned the safety of auction rate securities were stifled and there is strong evidence that they may not have known or understand the inherent risks of the securities they were selling to clients. Merrill's brokers could suffer considerable reputation damage if a significant number of clients file claims against them.

Perhaps most damaging of all is that Merrill's brokers must now accept the hard reality that management ultimately regards them as nothing more than microwave oven salesman.

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Tuesday, July 29, 2008

Banks Stocks the Next Tech-Bubble?

It comes as no surprise that the subprime/credit crunch crisis has led to an increased level of securities class action filings. Research firm Cornerstone just released a report which shows the financial sector was the target of the most filings with 63 in the first half of 2008 alone. The research is an indication that many believe there are disclosure issues which led to inflated stock prices.

But another area of concern is that brokers made speculative plays in these stocks on behalf of their retail clients. Sensing a bottom, many brokers loaded up theirclients with stocks like Citigroup, Merrill Lynch and even Bear Stearns. Trying to catch a falling knife is not an appropriate recommendation for an investor with amoderate or conservative risk profile and we are seeing such complaints become more common.

Clearly, brokers fell asleep at the wheel on two levels: there was no reasonable basis for expecting the financial services industry was finished with its subprime write-downs unless they were duped nor was there any reasonable basis for many investors to buy financial stocks during the past year and a half.

During the tech-bubble, we filed many claims on behalf of investors whose brokers pushed them into bottom fishing for tech stocks that were rightly beaten down. This is another example of Wall Street’s history repeating itself.

Needless to say, any broker who recommended buying bank stocks in the past year and a half should be prepared to explain their rationale in an arbitration hearing.

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Friday, July 25, 2008

FINRA Pilot Arbitration Program is a Step in the Right Direction

Yesterday FINRA announced a pilot program to do away with the financial services industry participant in arbitration panels. Rather, all three panelists will consist of an investor’s peers.

FINRA is to be commended for at least putting a toe in the water towards arbitration reform. Studies have shown investors believe that the panels are bias against them. And the statistics supports this.

This is long overdue but a pilot program is hopefully just the beginning. Rather than a small pilot program this should be rolled out on a wholesale basis.

There will be a surge of investor claims in the wake of the sub-prime/credit crisis, so leveling the playing field for investors should continue to be one of FINRA’s main focuses.


Frank Quattrone’s Utopia

I’m quite sure everyone will take Frank Quattrone’s recent comments about returning to his glory days of conflicts between research and investment banking at face value, but at the risk of indulging his attempt at a comeback I’ll address his flawed reasoning. Mr. Quattrone believes barring Wall Street’s research analysts from participating in investment banking deals is the reason the U.S.’ IPO market share has decreased. Not so.

Among the reasons there are less IPO’s are these:

Ø Stock exchange listing fees are way too high

Ø Document filings and compliance is expensive (not necessarily a bad thing in my opinion)

Ø Global corporations have chosen to list on their home country’s exchange

Now is not the time to scale back regulation especially when it pertains to conflicts of interest. Exhibit A is the ratings agencies. Many CDO’s and mortgage backed securities received coveted AAA bond ratings due in a large part because of a conflict between the need to generate fees from Wall Street and independent, reliable research.

The one point Mr. Quattrone is spot-on about is the fact that many of Wall Street’s best research analysts have migrated to the buy-side. The stark difference in opinion about Lehman Bros. David Einhorn had versus Wall Street shows just how wide the gap is. Frankly, the only folks that trust Wall Street research are small retail investors and injecting tech-bubble conflicts will only exacerbate the problem.

Needless to say, Mr. Quattrone’s utopia would only serve to enrich him and his ilk.

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