Articles Posted in Class Action Securities Lawsuits

In New York, a federal judge has approved a $31M shareholder fraud settlement reached in the class action securities case filed by investors that purchased stock in former broker-dealer RCS Capital. The plaintiffs, including lead plaintiffs the City of Providence, Rhode Island and the Oklahoma Police Pension Fund, had sued the brokerage firm, its head Nicholas Schorsch, and other ex-executives in 2014 claiming that that RCAP and the other defendants misled investors with “false and misleading statements and omissions” about RCAP’s business prospects.

The investors contend that they purchased RCS Capital stock at prices that were artificially inflated because of these statements. They are claiming massive shareholder losses.

RCAP, once controlled by Schorsch and others, was a privately held brokerage firm that wholesaled American Reality Capital nontraded REITs. Schorsch also owned ARC, which set up and managed the real-estate investment trusts.

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Former REIT CFO’s Criminal Trial is Under Way
Brian Block, the ex-American Realty Capital Properties CFO, is on trial over his alleged involvement in accounting errors that led to the former Nicholas Schorsch-controlled real estate investment trust’s release of inaccurate financial statements during the first two quarters of 2014. As a result of the inaccuracies, ARCP overstated its adjusted funds from operations (AFFO) by about $12M for the end of that first quarter and by about $10.9M for the second quarter while understating its net losses.

This week, Lisa McAlister, a key witness and ARCP’s ex-chief accounting officer gave testimony. She suggested that Schorsch, the REIT’s CEO and chairman at the time, instructed Block on how to distort the number in the books. Block was McAlister’s boss at ARCP.

McAlister said that she was in the room when Schorsch advised Block on how to hide the fraudulent accounting. McAlister said that Schorsch, who has not been charged with wrongdoing in the accounting mistakes, was instructing Block on how to compensate for a 3-cent shortfall in ARCP’s targeted AFFO/share by fudging a certain line item.

McAlister has already pleaded guilty to fraud charges over ARCP’s accounting irregularities.

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The Arkansas Teacher Retirement System is now the lead plaintiff in the class action securities fraud case against Babcock & Wilcox Enterprises. The energy company is accused of hiding significant losses. When Babcock & Wilcox finally disclosed that it was having problems, shareholders lost $300M after the stock price fell.

Prior to that disclosure, the company had admitted to losses involving just one plant that it was constructing in Europe. However, last February 28, the company disclosed that the losses had impacted other projects.

The class action securities case alleges misrepresentation and fraud. It names Babcock & Wilcox, CFO Jenny Apker, and CEO Jim Ferland as defendants. The plaintiffs are accusing them of involvement in a scam to fool the market while engaging in conduct to artificially raise the company’s share price through the concealment of issues in its waste-to-energy business. Business Journal reports that investors are referring to B & W’s eventual admission that up to seven of its projects in Europe had collectively suffered $140M in losses last year.

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A class action securities case has been brought against Western Union Company (UW) by purchasers of the company’s publicly traded securities. The purchasers would have bought the securities between 2/24/12 and 1/19/17. The lead plaintiff is an institutional investor. The lawsuit is UA Local 13 Pension Fund v. The Western Union Company.

The lawsuit contends that Western Union and a number of its current and ex-directors and/or officers made false and misleading statements and did not disclose adverse information about Western Union’s business and compliance policies. Instead, Western Union and senior management purportedly told investors that the Company’s compliance program was robust and in compliance with the laws, both of which the plaintiff claims were false.

Western Union is accused of aiding and abetting a network of international criminal activities, not putting into place compliance programs that were effective, and disregarding misconduct so as to profit. The alleged violations purportedly caused Western Union shares to become artificially inflated.

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$64M Pension Fund Fraud Settlement Reached Against Dana Holding Corp. Executives
Plaintiffs in the shareholder class action case brought against Michael Burns and Robert Richter have reached a $64M out-of-court settlement with the two ex-Dana Holding Corp. executives. The union pension funds include lead plaintiffs SEIU Pension Plans Master Trust, Plumbers & Pipefitters National Pension Fund, and the West Virginia Laborers Pension Trust Fund.

They accused Bornes and Richter, the company’s ex-CEO and CFO, respectively, of purposely misleading investors about Dana Holding’s financial woes in the months prior to its filing for bankruptcy in 2006. Although the securities fraud case was initially dismissed by a district court on the grounds that the plaintiffs failed to show that the two men and Dana knew they were engaging in wrongdoing, the 6th U.S. Circuit Court of Appeals in Cincinnati reversed that decision, saying evidence showed otherwise.

Federal Reserve Gives Banks More Time to Meet Volcker Rule Requirements
The U.S. Federal Reserve has extended the deadline for banks to rid themselves of ownership in certain legacy investments and cut ties with funds that are barred under the Volcker Rule. The rule, part of the Dodd-Frank Act, aims to stop banks with government-backed deposits from betting on Wall Street for their benefit. It doesn’t allow insured banks and their subsidiaries to own or be affiliated in any way with a private equity fund or hedge fund or take part in proprietary trading. Lenders are not allowed to trade using their own capital and are restricted from investing in funds.

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Massachusetts Mutual Life Insurance Co. has arrived at a nearly $31M settlement with plaintiffs of a class action securities case. They are accusing the retirement service provider of charging excessive fees in its retirement plans. The 401k lawsuit involved MassMutual’s $200M Agent Pension Plan and its $2.2B Thrift Plan. The settlement includes a $30.9M payment and non-monetary provisions that would benefit participants of the plan.

The case is Dennis Gordan et al v. Massachusetts Mutual Life Insurance Co. et al, and plaintiffs include ex-plan participants and current ones. They are accusing defendants of breaching their fiduciary duty under ERISA through the charging of excessive administrative fees and offering a costly and unnecessarily risky fixed-income choice, as well as investments that were expensive despite not performing well.

The non-monetary provisions of the settlement include the hiring an independent consultant to make sure that plan participants are not asked to pay excessive fees for record-keeping services or record-keeping fees based on asset percentages, a review a of all investment options, and the consideration of a minimum of at least three finalists when making an investment selection.

The settlement has been submitted to a district court for preliminary approval. MassMutual has not admitted to liability or fault despite settling.

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Long-term-care insurance company Genworth has reached a $219M settlement with plaintiffs of a class action securities case claiming misrepresentations related to its business. The complaint alleges securities law violations by the insurer, its chief executive Tim McInerney, and ex-CFO Marty Klein, including misrepresentations of its core business’s profitability and the reporting of financial results that understated the needed reserves.

The inaccurate disclosures played a part in the significant drop in Genworth share’s price, causing shareholders to sustain damages. Meantime, Genworth continues to argue that the plaintiffs’ claims have no merit. The company said that it decided to settle to avoid the further cost and burden of continued litigation.

The lead plaintiffs in the case are the Canadian province of Alberta, which purchased over 1.2M Genworth common stock shares during the class period at issue, and the Fresno County Employees’ Retirement Association in California, which purchased nearly 200,000 shares. Genworth started reporting results of a review of its reserves for long-term-care insurance in October 2013.

The reserves are the funds put aside to pay for future benefits that are payable on policies. Shareholders were purportedly told that the reserves were “adequate” and that it included a “margin for future deterioration.”

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JPMorgan Chase & Co. (JPM) will pay $150 million to resolve investor claims accusing the firm of concealing up to $6.2 billion in losses caused by the trader Bruno Iksil, who was given the nickname “London Whale.” Pension funds filed a class action securities case accusing the firm of using its investment office in London as a secret hedge fund. According to the plaintiffs, the bank told them that the office was managing risk when what it was actually doing was making trades for profit. Investors were harmed when huge losses resulting from transactions made through the London office caused the bank’s share price to drop.

The pension funds said that they suffered tens of millions of dollars of losses because fund managers were provided with information that was “false and misleading.” They also believe that the bank knowingly concealed the growing risks that were occurring at the London office.

Plaintiffs of this lawsuit include the Ohio Public Employees Retirement System, which says it lost $2.5 million, the Arkansas Teacher Retirement System, the state of Ohio, funds in Arkansas, Swedish pension fund AP7, and other JP Morgan shareholders that purchased stock between 2/24/10—this is when the company submitted to regulators its 2009 earnings report—and 5/21/12. The latter date is when the firm announced that it was stopping a $15 billion share buyback program until it could get a better handle of the losses sustained.

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Fidelity Investments Unit Faces ERISA Fiduciary Breach Claims
Fidelity Management Trust Co. has been named a defendant in a class action securities case under ERISA law. The plaintiffs claim that the Fidelity Investments unit is in fiduciary breach under ERISA because it included a stable value fund as an investment alternative for 401(k) plan accounts. They believe that low investment returns and high fees made the fund an unwise investment for participants in a 401(k) plan.

William Perry and James Ellis are the lead plaintiffs. At different times through the Barnes & Noble Inc. 401(k) plan, they were invested in the Fidelity Group Employee Benefit Plan Managed Income Portfolio Commingled Pool (MIP) fund. Plaintiffs believe that the high fees and poor results were because of the deliberate omissions and actions of Fidelity Management Trust as MIP’s fiduciary and trustee.

According to the complaint, before 2009 Fidelity executed an investment strategy that proved unsuccessful when it placed mortgage-backed securities, asset-backed securities, and collateralized loan obligations, and others securitize debt in the portfolio. MIP lost value when the financial crisis struck. After that, Fidelity changed up its asset allocation to lower risk to the fund’s wrap providers, including AIG Financial Products, Monumental Life Insurance Company, JP Morgan Chase Bank, State Street Bank and Trust, and Rabobank Netherland. Plaintiffs believe it is this conservative strategy that led to lower returns. They said that excessive fees, which were paid to wrap providers, hurt them.

Plaintiffs represented by the class include everyone involved in ERISA-governed plans that use the fund.

Billionaire In Court Again for Pension Fund Fraud
Ira Rennert, the billionaire industrialist, is once again accused of pension fraud. This time, the allegations involve $70 million and the fund of another family-controlled company. According to the allegations, Rennert was able to avoid responsibility for pension expenses of his RG Steel company when he lied to the Pension Benefit Guaranty Corporation. The independent US government entity, which is the plaintiff in this pension fraud case, said it would have terminated RG Steel’s pension plan if it had known that the company was about to be sold. If that had occurred, Rennert’s Renco Group would have had to take care of pension costs.

The government entity claims that Renco president, Ari Rennert, omitted key information and lied when he told PBCG that he would keep them updated of changes. A week later, about 25% of Renco was bought by Cerberus Capital and the former no longer had a pension liability. Renco denies the allegations.

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Deutsche Bank Reaches Swaps Violation Settlement with CFTC
The Commodity Futures Trading Commission and Deutsche Bank AG (DB) have reached a settlement over the regulator’s order accusing the firm of not properly reporting its swaps transactions from 1/13 through 7/15. The regulator also said there were supervisory failures and that the bank failed to modify the reporting errors at issue until after it found out that the CFTC was conducting a probe.

According to the regulator, Deutche Bank did not properly report swap transaction cancellations in all asset classes, resulting in somewhere between tens of thousands and hundreds of thousands of reporting errors, violations, and oppositions in its reporting of swaps. CFTC believes that the bank knew about the problem but did not notify its Swap Data Repository in a timely manner, nor did it properly probe, deal with, and modify the information deficiencies until last year when it became aware of the investigation. As a result of the reporting failures, the wrong information was put out to the public.

The CFTC believes that the bank’s reporting failures were partly because of deficiencies in its swaps supervisory system. A more adequate system could have better supervised Deutsche Bank’s activities involving compliance with reporting requirements.

Because the bank is a provisionally registered Swap Dealer, it has to abide by certain recordkeeping, disclosure, and reporting duties related to swap transactions. These requirements are supposed to improve transparency, encourage standardization, and lower systemic risk in swaps trading.

Investors File Class Action Securities Case Against Fifth Street Finance
An investor has filed a class action securities fraud case against Fifth Street Finance Corp. on behalf of shareholders. According to the plaintiff, and for those who bought Fifth Street Finance common shares between 7/7/14 and 2/6/15, the company, Fifth Street Asset Management, Inc., and specific directors and officers violated federal securities laws by allegedly taking part in a fraudulent scam to artificially inflate Fifth Street Finance assets and investment income to raise revenue of Fifth Street Management.

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