Securities Industry Commentator by Bill Singer Esq

Who's Zooming Whom in FINRA Arbitration and Federal Court? (BrokeAndBroker.com Blog)

How Beijing humbled Britain's mighty HSBC (Reuters by Sumeet Chatterjee in Hong Kong and Engen Tham in Shanghai)

Federal Court "Unfriends" FTC's Facebook Complaint

Federal Trade Commission, Plaintiff, v. Facebook, Inc., Defendant (Opinion, United States District Court for the District of Columbia, 20-CV-3590 / June 28,, 2021)

Owner And Principal Of Investment Firm Found Guilty Of Insider Trading And Investment Fraud Scheme (DOJ Release)

Bank Employee Pleads Guilty To Defrauding Her Employer Of Nearly $1.7 Million (DOJ Release)

New York Man Sentenced to One Year in Prison for Role in Defrauding Banks in $9 Million Shotgun Loan Scheme (DOJ Release)

Two men indicted on tax fraud and operating an unlicensed money transmitting business (DOJ Release)

Climate, ESG, and the Board of Directors: "You Cannot Direct the Wind, But You Can Adjust Your Sails" (Speech by SEC Commissioner Allison Herren Lee)

SEC Sanctions Guggenheim Securities For Anti-Whistleblower Confidentiality Agreement (BrokeAndBroker.com Blog)

HSBC has for more than 150 years been a force in banking in Greater China - its initials stand for The Hongkong and Shanghai Banking Corporation Limited. The bank's troubles were initially sparked by its role in a high-profile U.S. case against Huawei's chief financial officer. Beijing was enraged that the bank had provided information in 2017 about Huawei to the U.S. Department of Justice, which helped bolster the ongoing criminal case. HSBC's involvement was first made public by a Reuters report in 2019.

Pressure on HSBC increased during the pro-democracy protests that shook Hong Kong in the second half of 2019, and when China imposed a tough national security law in the city in 2020. During the protests, Chinese social media users lashed out at the bank, alleging one of its employees had criticized the actions of the Hong Kong police in an online post - a controversy that was covered by state media.

At the time of the last great antitrust battle in our courthouse - between the United States and Microsoft - Mark Zuckerberg was still in high school. Only after his arrival at Harvard did he launch "The Facebook" from his dorm room. Nearly twenty years later, both federal and state regulators contend, in two separate actions before this Court, that Facebook is now the one violating the antitrust laws. The company, they allege, has long had a monopoly in the market for what they call "Personal Social Networking Services." And it has allegedly maintained that monopoly, in violation of Section 2 of the Sherman Act, through two different kinds of actions: first, by acquiring firms that it believed were well positioned to erode its monopoly - most notably, Instagram and WhatsApp; and second, by adopting policies preventing interoperability between Facebook and certain other apps that it saw as threats, thereby impeding their growth into viable competitors. Both suits seek equitable relief from this conduct, including forced "divestiture or reconstruction of businesses" as well as orders not to undertake similar conduct in the future. See ECF No. 3 (Redacted Compl.) at 51-52. (The  Court here cites a copy of the FTC's Complaint that has minor redactions to protect confidential business information, and it mentions certain redacted facts only with the parties' permission.) 

Facebook now separately moves to dismiss both the State action and the FTC action. This Opinion resolves its Motion as to the FTC's Complaint, and the Court analyzes the States' largely parallel claims in its separate Opinion in No. 20-3589. Although the Court does not agree with all of Facebook's contentions here, it ultimately concurs that the agency's Complaint is legally insufficient and must therefore be dismissed. The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims - namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services. The Complaint contains nothing on that score save the naked allegation that the company has had and still has a "dominant share of th[at] market (in excess of 60%)." Redacted Compl., ¶ 64. Such an unsupported assertion might (barely) suffice in a Section 2 case involving a more traditional goods market, in which the Court could reasonably infer that market share was measured by revenue, units sold, or some other typical metric. But this case involves no ordinary or intuitive market. Rather, PSN services are free to use, and the exact metes and bounds of what even constitutes a PSN service - i.e., which features of a company's mobile app or website are included in that definition and which are excluded - are hardly crystal clear. In this unusual context, the FTC's inability to offer any indication of the metric(s) or method(s) it used to calculate Facebook's market share renders its vague "60%-plus" assertion too speculative and conclusory to go forward. Because this defect could conceivably be overcome by re-pleading, however, the Court will dismiss only the Complaint, not the case, and will do so without prejudice to allow Plaintiff to file an amended Complaint. See Ciralsky v. CIA., 355 F.3d 661, 666-67 (D.C. Cir. 2004).

To guide the parties in the event amendment occurs, this Opinion also explains two further conclusions of law. First, even if the FTC had sufficiently pleaded market power, its challenge to Facebook's policy of refusing interoperability permissions with competing apps fails to state a claim for injunctive relief. As explained herein (and in the Court's separate Opinion in the States' case), there is nothing unlawful about having such a policy in general. While it is possible that Facebook's implementation of that policy as to certain specific competitor apps may have violated Section 2, such finding would not change the outcome here: all such revocations of access occurred in 2013, seven years before this suit was filed, and the FTC lacks statutory authority to seek an injunction "based on [such] long-past conduct." FTC v. Shire ViroPharma, Inc., 917 F.3d 147, 156 (3d Cir. 2019). Regardless of whether the FTC can amend its Complaint to plausibly allege market power and advance this litigation, then, the conduct it has alleged regarding Facebook's interoperability policies cannot form the basis for Section 2 liability. Second, the agency is on firmer ground in scrutinizing the acquisitions of Instagram and WhatsApp, as the Court rejects Facebook's argument that the FTC lacks authority to seek injunctive relief against those purchases. Whether other issues arise in a subsequent phase of litigation is dependent on how the Government wishes to proceed. 

BLAKSTAD was a stock trader and the owner and principal of an investment fund known as Midcontinental Petroleum Inc. ("Midcontinental Petroleum"), which purported to be in the business of soliciting investments in the energy industry.  Martha Bustos was a former certified public accountant who worked in the finance department at Illumina, Inc. ("Illumina"), a San Diego-based biotechnology company whose securities trade on NASDAQ.  By virtue of her employment at Illumina, Bustos had access to material nonpublic information about Illumina's financial condition, including its earnings. 

On several occasions, from 2016 through 2018, BLAKSTAD obtained inside information about Illumina's financial condition from Bustos before Illumina publicly announced its earnings and financial results.  As BLAKSTAD knew, Bustos owed a duty to keep inside information about Illumina confidential. 

BLAKSTAD, aware of Bustos's breach of duty to Illumina, used this inside information to make profitable trades in Illumina securities shortly before Illumina's earnings announcements.  At times, BLAKSTAD tipped his associates so that they could trade Illumina stock and options based on the inside information.  At other times, in order to avoid detection, BLAKSTAD arranged for his associates to purchase Illumina securities for BLAKSTAD's benefit in accounts controlled by his associates. 

Following the public announcement of Illumina's earnings, BLAKSTAD and his associates sold the Illumina securities at a significant profit, sometimes exceeding more than 2,000 percent.  In total, BLAKSTAD and his associates made more than $6 million in profits from purchasing and selling Illumina securities. 

In addition, from at least in or about 2015 through at least in or about 2019, BLAKSTAD devised and operated a securities offering fraud to fraudulently obtain more than a $1 million from a number of investors.  BLAKSTAD fraudulently induced victim investors to make up-front, lump-sum investments for securities issued by Midcontinental Petroleum, which funds BLAKSTAD then misappropriated, in substantial part. 

To facilitate the scheme, BLAKSTAD made false and misleading representations to investor victims regarding how their investment funds would be utilized.  During the scheme, at BLAKSTAD's direction, victims transmitted their funds, including by wire transfer, into bank accounts that were controlled by BLAKSTAD.  Once he obtained these investor funds, BLAKSTAD did not use them for the purposes he had represented to investors.  Instead, BLAKSTAD diverted a substantial portion of victims' funds to himself and to co-conspirators.  For example, BLAKSTAD used the funds to pay for a variety of personal expenses and for purposes that were unrelated to the business of Midcontinental Petroleum. 

BLAKSTAD also made a series of false and misleading statements to victims designed to avoid detection, perpetuate the scheme, and keep the victim funds he received as a result of the fraud.

Between August 2008 and January 2021, AZIM, a long-time employee of a New York, New York-based bank ("Bank-1"), stole approximately $1.7 million from her employer.  Over the course of approximately 12 years, AZIM executed hundreds of wire transfers of Bank-1 funds to co-conspirators and related companies, who then sent portions of the ill-gotten funds to AZIM's personal bank account. 

In furtherance of her scheme to defraud Bank-1, AZIM repeatedly made false entries in Bank-1's systems, misappropriating funds paid to Bank-1 by its clients to satisfy outstanding loan obligations and then extending the maturity dates of those loan obligations, making it appear as though the loan obligations had not yet been paid.  When even the fraudulently extended maturity dates came due, AZIM originated new, fraudulent loans to help conceal the scheme.  AZIM utilized the proceeds of those fraudulent loans to satisfy the loans for which she had previously stolen the client payments.  Over the course of the approximately 12 years, AZIM caused approximately 200 improper wire transfers of Bank-1's funds, each for an amount under $10,000,  to be sent to third party accounts, including those of co-conspirators and related companies, which then returned portions of those funds to AZIM.  In doing so, AZIM abused her position at Bank-1 and enriched herself at the expense of her employer.   

Yotagri was a business partner of Jorge Flores of Oakdale, New York, and Jose Piedrahita of Freeport, two conspirators also charged in the indictment. From 2010 through February 2018, Yotagri, Flores, Piedrahita, and others conspired to fraudulently obtain multiple home equity lines of credit (HELOC) from banks on residential properties in New Jersey and New York.

In August 2016, Yotagri lived at a property in Freeport. A quitclaim deed was prepared that facilitated the transfer of ownership of the property to Yotagri and Piedrahita even though Piedrahita did not own the property.

In September 2016, with the Freeport property now in the names of Yotagri and Piedrahita, the conspirators applied for a $290,000 HELOC from a victim bank in Yotagri's and Piedrahita's names using the property as collateral. Piedrahita's contact information appeared on the HELOC application on the Freeport property, which also contained inflated income and assets for Piedrahita. On Dec. 2, 2016, based on the false representations contained in the application, the victim bank issued a HELOC to Piedrahita for $290,000. Piedrahita then disbursed the $290,000 to himself, Yotagri, and Flores. The HELOC funds were never repaid.

In January 2017, Flores called another victim bank and applied for a second HELOC in Piedrahita's name for $250,000 - again using the Freeport property as collateral. This time Flores' email address and phone number appeared on the HELOC application on the Freeport property. To demonstrate to the second victim bank that the property was unencumbered by any senior mortgages, Flores and Piedrahita sent several fraudulent documents to the victim bank to conceal the existence of or amounts owed on senior mortgages. The false documents the defendants submitted included a series of false payoff letters and fake checks from other banks, all submitted to deceive the victim bank into believing that the remaining value of the senior mortgages on the Freeport property was far less than what was actually owed.

On March 22, 2017, the second victim bank issued a HELOC to Piedrahita for $250,000.  Piedrahita then disbursed nearly the entirety of the HELOC funds to himself and Yotagri. The funds obtained by Piedrahita and Yotagri from the HELOC were not repaid and were overdrawn, causing losses to the second victim bank totaling approximately $290,000.

At the time the applications for the two HELOCS were made, there was not sufficient equity in the Freeport property to support the $540,000 in HELOC applications made by Flores, Piedrahita, and Yotagri.

The overall scheme, which included HELOC loans for approximately 17 different properties, resulted in over $9 million in losses to the victim banks.

[S]ince at least 2005, Wellington and his business partner operated National Business Services, which promoted, sold and created Limited Liability Companies (LLCs) under New Mexico State Law. For many clients, National Business Services allegedly would open bank accounts under the names and IRS employer identification numbers (EIDs) of the LLCs, and the clients - whose names were not associated with the bank accounts - would have access to the funds in those accounts.

Since at least 2006, Shrock was a client of Wellington and National Business Services. Through National Business Services, Wellington allegedly created multiple LLCs in New Mexico for Shrock, including White Top Enterprise LLC. National Business Services allegedly opened a bank account in the business name and EID of White Top Enterprise and provided Shrock with access to the funds in the account. Between May 9, 2011, and June 30, 2015, Shrock allegedly deposited and withdrew approximately $4,875,940, of which at least $4,347,101 was income for which Shrock never filed a personal or business tax return with the IRS.

At the time of the deposits and withdrawals, Shrock was subject to an outstanding IRS lien for unpaid taxes, penalties and interest in the amount of approximately $1 million. Because it was not in his name, using the White Top Enterprise account allegedly allowed Shrock to generate and access income while evading both the outstanding assessment and personal and business income taxes.

Increasingly, boards of directors are called upon to navigate the challenges presented by climate change, racial injustice, economic inequality, and numerous other issues that are fundamental to the success and sustainability of companies, financial markets, and our economy. This call, welcomed by some and eschewed by others, is attributable in part to the large and growing influence that corporations hold over the social and economic well-being of people and communities everywhere. A study from 2018, for example, showed that 71 of the top 100 revenue generators globally were corporations while only 29 were countries. In other words, corporations - in many cases U.S. corporations - often operate on a level or higher economic footing than some of the largest governments in the world. That is a dynamic worthy of reflection - and one that drives home the weighty consequences and obligations associated with some corporate decisions.

In that regard, I note that a focus on these issues is sometimes labeled "woke washing" or even woke policymaking. We should consider whether public pledges on ESG issues are actually backed up by corporate action. That's part of my message today - that substantive consideration of ESG should be meaningfully integrated into board oversight. And why I've previously suggested that our disclosure regime should provide investors with adequate information to test public pledges like these. But the use of labels that might be considered dismissive rarely add value or contribute meaningfully to solutions in policy debates. In addition, as a valued colleague recently pointed out to me, these terms carry significant histories in Black vernacular and are thus all the more ill-suited for purposes of dismissing attention to issues that have serious economic and social consequences, often disproportionately so for communities of color.

The more we can have open, thoughtful, and well-researched dialogue on the specifics of these issues, the more companies, investors, and all stakeholders will benefit. It's more critical than ever for boards to explore how to integrate sustainability into their governance practices, and consider specifically what is best for the companies they oversee. That's because (if you'll forgive me one last quote), as Yogi Berra put it, "if you don't know where you are going, you might wind up someplace else."

• Securities Industry Commentator
• Bill Singer