Tuesday, February 12, 2013

P&C attorney discusses Calif. AG's strategy in charging S&P with False Claims Act violations

The U.S. Dept. of Justice and more than a dozen states have filed suit against Standard & Poor's, alleging that the firm's inflation of mortgage investments cost investors billions when the financial crisis struck.

DOJ's complaint alleges violations of the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA). Most of the state complaints accuse S&P of violating state trade practice or unfair competition laws.  Only California sued S&P for violation of the state's False Claims Act.

Eric Havian of Phillips & Cohen LLP says that California may actually be targeting the issuers of mortgage backed securities and collateralized debt obligations.

Havian told Alison Frankel of Reuters that he wouldn't be surprised if California's strategy were to use discovery in the S&P case to see whether banks were aware of S&P's alleged ratings manipulation.  “If issuers knew the ratings were false and they sold securities to state pension funds, they would absolutely be liable,” he said. “That’s an easy FCA case.”

Tuesday, February 05, 2013

Whistleblower attorney finds tone at top of SEC and CFTC encouraging for whistleblowers

The whistleblower programs at the Securities and Exchange Commission and the Commodity Futures Trading Commission are working “incredibly well,” according to Phillips and Cohen partner Erika Kelton.

In an interview with Corporate Crime Reporter published this week, Kelton said it was encouraging that the first SEC whistleblower settlement was made within a year of when the SEC whistleblower office was set up and that the SEC awarded the maximum reward (30 percent) to the whistleblower.

“Yes, it was a small amount,” she said. “But still, they did move quickly on that matter.”

She said the “tone at the top” of the SEC and CFTC and the work of certain other officials at those agencies – including SEC whistleblower office head Sean McKessy, CFTC whistleblower office head Vince Martinez -- have helped to create a willingness to work with whistleblowers at those agencies.

“(Former) SEC chairwoman Mary Schapiro was a big advocate for whistleblower enforcement,” Kelton said. “And the SEC’s head of enforcement – Robert Khuzami and the deputy, Steve Cohen – were really invested in making it a success.”

Kelton expressed optimism in Corporate Crime Reporter that the good working relationship the SEC has with whistleblowers would continue under former U.S. Attorney Mary Jo White, if the Senate approves White’s nomination as SEC chairman.

“We had the so called yield burning matter with [White’s] office when she was U.S. Attorney, which was against several dozen Wall Street banks, and which recovered over $200 million,” she noted.