SEC CHARGES FORMER MORGAN STANLEY EXECUTIVE WITH FCPA VIOLATIONS, INVESTMENT ADVISER FRAUD

FROM:  SEC
April 25, 2012
The Securities and Exchange Commission today charged a former executive at Morgan Stanley with violating the Foreign Corrupt Practices Act (FCPA) as well as securities laws for investment advisers by secretly acquiring millions of dollars worth of real estate investments for himself and an influential Chinese official who in turn steered business to Morgan Stanley’s funds.

The SEC alleges that Garth R. Peterson, who was a managing director in Morgan Stanley’s real estate investment and fund advisory business, had a personal friendship and secret business relationship with the former Chairman of Yongye Enterprise (Group) Co. – a Chinese state-owned entity with influence over the success of Morgan Stanley’s real estate business in Shanghai. Peterson secretly arranged to have at least $1.8 million paid to himself and the Chinese official that he disguised as finder’s fees that Morgan Stanley’s funds owed to third parties. Peterson also secretly arranged for him, the Chinese official, and an attorney to acquire a valuable Shanghai real estate interest from a Morgan Stanley fund. Peterson was acquiring an interest from the fund but negotiated both sides of the transaction. In exchange for offers and payments from Peterson, the Chinese official helped Peterson and Morgan Stanley obtain business while personally benefitting from some of these same investments. Peterson’s deception, self-dealing, and misappropriation breached the fiduciary duties he owed to Morgan Stanley’s funds as their representative.
Peterson agreed to a settlement of the SEC’s charges in which he will be permanently barred from the securities industry, pay more than $250,000 in disgorgement, and relinquish his interest in the valuable Shanghai real estate (currently valued at approximately $3.4 million) that he secretly acquired through his misconduct. The U.S. Department of Justice has filed a related criminal case against Peterson.

According to the SEC’s complaint filed in U.S. District Court for the Eastern District of New York, Peterson’s violations occurred from at least 2004 to 2007. His principal responsibility at Morgan Stanley was to evaluate, negotiate, acquire, manage and sell real estate investments on behalf of Morgan Stanley’s advisers and funds. He was terminated in 2008 due to his FCPA misconduct.

The SEC alleges that Peterson led Morgan Stanley’s effort to build a Chinese real estate investment portfolio for its real estate funds by cultivating a relationship with the Chinese official and taking advantage of his ability to steer opportunities to Morgan Stanley and his influence in helping with needed governmental approvals. Morgan Stanley thus partnered with Yongye on a number of significant Chinese real estate investments. At the same time, Peterson and the Chinese official expanded their personal business dealings both in a real estate interest secretly acquired from Morgan Stanley as well as by investing together in Chinese franchises of well-known U.S. fast food restaurants. Peterson failed to disclose these investments in annual disclosures that Morgan Stanley required him to make as part of his employment.

According to the SEC’s complaint, Peterson openly credited the Chinese official with helping obtain approvals required from other Chinese government entities for a deal to close. He wrote to several Morgan Stanley employees in response to an e-mail discussing the terms of one of Yongye’s purported investments, “Everyone pls keep in mind the big picture here. YY gave us this deal. ... So we owe them a favor relating to this deal. ... This should be very easy and friendly.” In another e-mail a week later, Peterson described “YYI” as “our friends who are coming in because WE OWE THEM A FAVOR.”

The SEC alleges that a Morgan Stanley compliance officer specifically informed Peterson in 2004 that employees of Yongye, a Chinese state-owned entity, were government officials for purposes of the FCPA. Peterson also received at least 35 FCPA compliance reminders from Morgan Stanley, but nonetheless committed the FCPA violations.
The SEC’s complaint charges Peterson with violations of the anti-bribery, books and records and internal control provisions of the FCPA, and with aiding and abetting violations of the anti-fraud provisions of the Investment Advisers Act of 1940.

Peterson has consented to a court order (i) permanently enjoining him from violating Sections 30A and 13(b)(5) of the Securities Exchange Act of 1934 and Sections 206(1) and (2) of the Investment Advisers Act, (ii) requiring him to disgorge $254,589, and (iii) requiring him to relinquish to a court-appointed receiver the interest he secretly acquired from Morgan Stanley’s fund in the Jin Lin Tiandi Serviced Apartments, which has a current estimated value of approximately $3.4 million. The proposed settlement is subject to court approval. Peterson has also consented to permanent industry bars based on the anticipated entry of the injunction against him and his criminal conviction.

The SEC acknowledges the assistance of the Fraud Section of DOJ’s Criminal Division, the U.S. Attorney’s Office for the Eastern District of New York, and the Federal Bureau of Investigation. Morgan Stanley, which is not charged in the matter, cooperated with the SEC’s inquiry and conducted a thorough internal investigation to determine the scope of the improper payments and other misconduct involved.

OPTIVER HOLDING BV AND SUBSIDIARIES ORDERED TO PAY $14 MILLION FOR ATTEMPTED MANIPULATION OF NYMEX LIGHT SWEET CRUDE OIL PRICES

FROM:  CFTC
Federal Court Orders $14 Million in Fines and Disgorgement Stemming from CFTC Charges against Optiver and Others for Manipulation of NYMEX Crude Oil, Heating Oil, and Gasoline Futures Contracts and Making False Statements
Order resolves charges against defendants Optiver Holding BV, two subsidiaries – Optiver US, LLC and Optiver VOF, and three senior officers, and includes trading limitations

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today announced that it obtained $14 million in civil monetary penalties and disgorgement pursuant to a federal court consent order against defendants Optiver Holding BV, a global proprietary trading company headquartered in the Netherlands, and two subsidiaries – Optiver US, LLC (Optiver), a Chicago-based corporation, and Optiver VOF, a Dutch company, as well as against then company officers who were responsible for the unlawful trading: Randal Meijer, Bastiaan van Kempen, and Christopher Dowson, the only individual defendant who remains employed by Optiver.

The CFTC’s complaint charged defendants with engaging in manipulation and attempted manipulation of New York Mercantile Exchange (NYMEX) Light Sweet Crude Oil, New York Harbor Heating Oil, and New York Harbor Gasoline futures contracts in March 2007 (see CFTC Press Release 5521-08, July 24, 2008).  The complaint further charged Optiver and van Kempen with concealing the manipulation by making false statements in response to an inquiry from NYMEX.

The consent order, entered on April 19, 2012, by Chief Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York, requires the defendants to pay a $13 million civil monetary penalty and $1 million in disgorgement.  The order provides for trading limitations on Optiver and prohibits Dowson, Meijer, and van Kempen from trading commodities for 8 years, 4 years, and 2 years, respectively.

“The CFTC will not tolerate traders who try to gain an unlawful advantage by using sophisticated means to drive oil and gas futures prices in their favor,” said David Meister, the Director of the CFTC’s Division of Enforcement.  “Manipulative schemes like ‘banging the close’ harm market integrity, and false and misleading statements to exchange officials to cover tracks obstruct the investigative process.  As reflected by the court’s order, we will seek significant financial penalties from violators and limitations on their privileges to trade on markets in the United States.”

The CFTC’s complaint alleged that in at least 19 instances in March 2007, the defendants attempted to manipulate prices, and in at least 5 instances, were successful in causing artificial prices.  In each instance, defendants intentionally accumulated a large position in Trading at Settlement (TAS) contracts in Light Sweet Crude Oil, Heating Oil, or New York Harbor Gasoline contracts.  TAS contracts are priced based on the NYMEX closing price each day.  As alleged, the defendants offset their large TAS position by trading futures contracts shortly before and during the closing period, in a manipulative manner.  This manipulative tactic, commonly known as “banging the close” or “marking the close,” involves acquiring a substantial position leading up to the closing period, followed by taking offsetting positions in a manner intended to push prices in the manipulator’s favor.

According to the complaint, when the NYMEX began an inquiry into the trading, Optiver and van Kempen made false statements to the NYMEX compliance officials to conceal the manipulative scheme.

The CFTC acknowledges and thanks the NYMEX for its invaluable assistance in this matter.  NYMEX’s proactive surveillance program detected the subject trading by Optiver in the Crude Oil, New York Harbor Gasoline, and Heating Oil contracts and contributed to the cessation of the activity alleged in the complaint.  NYMEX also provided the CFTC with important information from the NYMEX’s own investigation of this matter, as well as other assistance.

CFTC Division of Enforcement staff members responsible for this matter are Lara Turcik, David Acevedo, Manal Sultan, Lenel Hickson Jr., Stephen J. Obie, and Vincent McGonagle, who were assisted by Ken Danger, Rafael Martinez, and James Outen from the CFTC’s Division of Market Oversight.

ATK LAUNCH SYSTEMS INC. SETTLES FALSE CLAIMS CASE FOR ALMOST $37 MILLION

FROM:  U.S. JUSTICE DEPARTMENT
Monday, April 23, 2012
Atk Launch Systems Inc. Settles False Claims Product Substitution Case for Nearly $37 Million Allegedly Delivered Unsafe Illuminating Para-flares Under Department of Defense Contracts

ATK Launch Systems Inc. has agreed to a $36,967,160 settlement with the United States to resolve allegations that ATK sold dangerous and defective illumination flares to the Army and the Air Force.   According to the government’s allegations, from 2000 to 2006, ATK delivered LUU-2 and LUU-19 illuminating para-flares to the Defense Department.   These flares, which burn in excess of 3,000 degrees Fahrenheit for over five minutes, are used for nighttime combat, covert and search and rescue operations and have been used extensively by American forces in Iraq and Afghanistan in the global war on terror.  The government alleged that the flares delivered by ATK were incapable of withstanding a 10-foot drop test without exploding or igniting, as required by specifications, and that ATK was aware of this when it submitted claims for payment.

ATK has agreed to pay the United States $21 million in cash and provide necessary in-kind services worth $15,967,160 to fix the 76,000 unsafe para-flares remaining in the government’s inventory.   The settlement resolves a False Claims Act suit filed in the U.S. District Court for the District of Utah.

The lawsuit was initially filed by an ATK employee under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private individuals, called “relators” to bring lawsuits on behalf of the United States and receiv e a portion of the proceeds of a settlement or judgment awarded against a defendant.

“Our men and women in combat deserve equipment that meets critical safety and performance requirements,” said Stuart F. Delery, Acting Assistant Attorney General for the Civil Division. “This case demonstrates that the Department of Justice will pursue cases where contractors knowingly provide defective equipment that puts the safety of American military service members at risk.”

“This settlement demonstrates our commitment to aggressively go after contractors who recklessly disregard and deliberately ignore critical safety defects in munitions used by America’s uniformed fighting men and women on the front lines of the war on terror,” said David B. Barlow, U.S. Attorney for the District of Utah.  “This office fully supported the federal investigators in their efforts to uncover these fraudulent claims and recover the ill-gotten gains for the American taxpayers.”

The investigation team, which was led by the Defense Criminal Investigative Service, included the Air Force Office of Special Investigation, the Navy Naval Criminal Investigative Service, the Army Criminal Investigative Command and auditors from the Defense Contract Audit Agency and the Defense Contract Management Agency.  Additional technical support was provided by the Army Research Laboratory in Aberdeen, Md., the Army Aviation and Missile Command in Huntsville, Ala., the Naval Sea Systems Command at Crane, Ind. and Portsmouth, R.I., the Defense Standardization Program Office at Fort Belvoir, Va., the Air Force Materiel Command at Wright Patterson Air Force Base, Ohio and Hill Air Force Base, Utah, and the Army Materiel Command at Rock Island Arsenal, Ill.

FUJIKURA LTD. PLEADS GUILTY TO PRICE FIXING AUTO PARTS INSTALLED IN U.S. CARS

FROM:  DEPARTMENT OF JUSTICE
Monday, April 23, 2012
Fujikura Ltd. Agrees to Plead Guilty to Price Fixing on Auto Parts Installed in U.S. Cars Company Agrees to Pay $20 Million Criminal Fine
WASHINGTON – Tokyo-based Fujikura Ltd. has agreed to plead guilty and to pay a $20 million criminal fine for its role in a conspiracy to fix prices of automotive wire harnesses and related products installed in U.S. cars, the Department of Justice announced today.

According to a one-count felony charge filed today in the U.S. District Court for the Eastern District of Michigan in Detroit, Fujikura engaged in a conspiracy to rig bids for and to fix, stabilize and maintain the prices of automotive wire harnesses and related products sold to an automaker in the United States and elsewhere. According to the charge, Fujikura’s involvement in the conspiracy lasted from at least as early as January 2006 until at least February 2010. According to the plea agreement, which is subject to court approval, Fujikura has agreed to pay a criminal fine and to cooperate with the department’s ongoing investigation.

“The Antitrust Division will remain vigilant in its efforts to detect and prosecute anticompetitive conduct in this important industry, which affects virtually every American consumer,” said Acting Assistant Attorney General Sharis A. Pozen in charge of the Department of Justice’s Antitrust Division.  “The division has focused its enforcement efforts in industries essential to consumers’ everyday lives, and we, along with our law enforcement partners, have been successful in bringing to justice companies and executives engaged in illegal price fixing conspiracies.”

To date, including Fujikura, eight executives and five companies have been charged and have agreed to plead guilty in the department’s ongoing antitrust investigation into the auto parts industry. Three of the companies have pleaded guilty and have been sentenced to pay criminal fines totaling more than $748 million. Seven of the executives have pleaded guilty and have been sentenced to serve a total of more than 122 months in jail.

Fujikura manufactures and sells automotive wire harnesses, which are automotive electrical distribution systems used to direct and control electronic components, wiring and circuit boards in cars.

According to the charge, Fujikura and its co-conspirators carried out the conspiracy by agreeing, during meetings and conversations in Japan, to allocate the supply of automotive wire harnesses and related products on a model-by-model basis and sold the parts at non-competitive prices to an automaker in the United States and elsewhere.

Fujikura is charged with price fixing in violation of the Sherman Act, which carries a maximum fine of $100 million for corporations. The maximum fine for the company 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.

OIL FIELD SERVICES COMPANY CHARGED BY SEC WITH MISLEADING INVESTORS

FROM:  U.S. SECURITIES AND EXCHANGE COMISSION  
Washington, D.C., April 23, 2012 — The Securities and Exchange Commission today charged a China-based oil field services company and two senior officers involved in a scheme to intentionally mislead investors about the value of its assets and its use of $120 million in IPO proceeds. The SEC additionally charged the company’s chairman of the board involved in a separate $40 million theft from the company.

The SEC alleges that SinoTech Energy Limited grossly overstated the value of its primary operating assets in financial statements, specifically the lateral hydraulic drilling (LHD) units that are central to its business. The company’s IPO registration statement in November 2010 promised investors it would spend $120 million raised in the IPO to acquire LHD units, but the company’s purchase contracts and other documents otherwise show it acquired far fewer LHD units, lied about the number it acquired, and grossly overstated the value of the units. SinoTech CEO Guoqiang Xin and former CFO Boxun Zhang were responsible for the fraud.

Meanwhile, the company’s chairman Qinzeng Liu is accused of secretly siphoning at least $40 million from a SinoTech bank account in the summer of 2011. He then stood silently by as SinoTech – attempting to counter negative Internet reports that the company was potentially fraudulent – falsely assured investors that the company had that money and more in the bank. Liu later admitted his theft to SinoTech’s auditor and board of directors, but he retained his position and investors were not informed of the incident.
“SinoTech’s brief life as a public company in the U.S. markets has been rife with falsehoods,” said David Woodcock, Director of the SEC’s Fort Worth Regional Office. “Investors deserve the utmost honesty and transparency from companies and their officers when they tap public markets in the United States.”

According to the SEC’s complaint filed in U.S. District Court for the Western District of Louisiana (Lake Charles Division), SinoTech’s public filings certified by both Xin and Zhang represented that the company had purchased 16 LHD units worth $94 million. In fact, the company only acquired 11 such units worth less than $17 million. SinoTech continually misled investors about the value of its equipment in press releases and SEC filings between December 2010 and November 2011. Xin went so far as to try (unsuccessfully) to convince SinoTech’s LHD unit supplier to issue public statements verifying the company’s false valuations to investors. The supplier refused.

The SEC’s complaint alleges that Liu’s admitted theft of $40 million in company funds occurred sometime between June 30 and August 17. Liu withdrew the money from SinoTech’s primary bank account at the Agricultural Bank of China. SinoTech did not record Liu’s withdrawal in the company’s books and records, and it retained Liu as its chairman despite his confession.

The SEC alleges that the theft remained hidden when SinoTech attempted to rebut an Internet report alleging fraud in August 2011. In an effort to persuade investors that SinoTech was legitimate, the company issued a press release stating that SinoTech’s bank balances totaled more than $93 million and included $54 million on deposit at the Agricultural Bank of China. Liu knew this claim was false due to his earlier theft from that account.

The SEC’s complaint seeks permanent injunctive relief and financial penalties against all defendants as well as disgorgement of ill-gotten gains by SinoTech and Liu. The SEC also requests bars against each of the individual defendants from serving as officers or directors of U.S. public companies.

OHIO CONSTRUCTION COMPANY SETTLES ALLEGED FALSE CLAIMS ACT VIOLATIONS

FROM:  U.S. JUSTICE DEPARTMENT
Monday, April 23, 2012
Ohio Construction Firm Agrees to Pay $500,000 to Resolve False Claims Act Allegations Firm Allegedly Submitted False Claims Related to Use of Disadvantaged Business Entities

Anthony Allega Cement Contractor Inc., a Cleveland construction firm, has agreed to pay the United States $500,000 to resolve allegations that it knowingly submitted false claims related to a federally-funded construction project, the Justice Department announced today.  The United States alleged that Allega submitted false claims that made it appear that the company was in compliance with the U.S. Department of Transportation’s (DOT) Disadvantaged Business Enterprise (DBE) program, as required in order to obtain and maintain Allega’s contract with the government.  The DBE program provides opportunities to businesses owned by minorities and women, as well as socially and economically disadvantaged individuals, to participate in federally-funded construction and design projects.
         
Allega was the prime contractor on a project to construct and pave a new runway at Cleveland’s Hopkins International Airport between 2001 and 2006.  To obtain and maintain its contract, Allega was required to comply with DOT DBE regulations and to accurately report DBE participation on the project. The United States alleged that Allega claimed that materials and services for the project were provided by a company known as Chem-Ty Environmental, when in fact Chem-Ty was merely a “pass-through” entity used to make it appear as if a DBE had performed the work.
         
“The Disadvantaged Business Enterprises program helps businesses owned by minorities and women work on federal construction projects,” said Stuart F. Delery, Acting Assistant Attorney General for the Justice Department’s Civil Division. “Those who falsely claim credits under the program in order to obtain federal funds take advantage both of the taxpayers and the businesses that the program is designed to assist.”

The government’s claims were based upon an investigation conducted by the Justice Department’s Civil Division, the U.S. Attorney’s Office for the Northern District of Ohio, DOT’s Office of Inspector General (OIG) and the Federal Aviation Administration.

 “When businesses misrepresent those working with them to obtain government contracts, they violate the law and economically harm subcontractors who already face numerous disadvantages in the workplace,” added Steven M. Dettelbach, U.S. Attorney for the Northern District of Ohio. “This resolution helps to correct that injustice in this instance.”      

 “Preventing and detecting DBE fraud are priorities for the Secretary of Transportation and the USDOT-OIG,” said Michelle McVicker, OIG regional Special Agent in Charge. “Prime contractors and subcontractors are cautioned not to engage in fraudulent DBE activity and are encouraged to report any suspected DBE fraud to the USDOT-OIG. Our agents will continue to work with the Secretary of Transportation, the Federal Aviation Administrator, and our law enforcement and prosecutorial colleagues to expose and shut down DBE fraud schemes throughout Ohio and the United States.”

The claims settled by this agreement are allegations only, and there has been no determination of liability.

The Justice Department’s total recoveries in False Claims Act cases since January 2009 have topped $9.2 billion.

WALLGREENS PHARMACY CHAIN PAYS $7.9 MILLION TO RESOLVE FALSE BILLING CASE

 FROM:  U.S. DEPARTMENT OF JUSTICE WEBSITE
Friday, April 20, 2012
Walgreens Pharmacy Chain Pays $7.9 Million to Resolve False Prescription Billing CaseAllegedly Offered Illegal Inducements to Government Health Care Programs Beneficiaries to Transfer Prescriptions to Walgreens
Walgreens, an Illinois-based corporation operating a national retail pharmacy chain, has paid the United States and participating states $7.9 million to resolve allegations that Walgreens violated the False Claims Act, the Justice Department announced today.

The settlement resolves allegations that Walgreens offered illegal inducements to beneficiaries of government health care programs, including Medicare, Medicaid, TRICARE and the Federal Employees Health Benefits Program (FEHBP), in the form of gift cards, gift checks and other similar promotions that are prohibited by law, to transfer their prescriptions to Walgreens pharmacies.  The government investigation alleged that Walgreens had offered government health beneficiaries $25 gift cards when they transferred a prescription from another pharmacy to Walgreens.  The company’s advertisements that promoted gift cards and gift checks for transferred prescriptions typically acknowledged that the offer was not valid with Medicaid, Medicare or any other government program.  Nevertheless, the government alleged that Walgreens employees frequently ignored the stated exemptions on the face of the coupons and handed gift cards to customers who were beneficiaries of government health programs, in violation of federal law.

“This case represents the government's strong commitment to pursuing improper practices in the retail pharmacy industry that have the effect of manipulating patient decisions,” said Stuart F. Delery, Acting Assistant Attorney General for the Civil Division of the Department of Justice.

The allegations were brought to the government by two whistleblowers, known as relators, in two separate whistleblower lawsuits filed under the qui tam, or whistleblower, provisions of the False Claims Act and state False Claims Act statutes.  The relators, Cassie Bass, a pharmacy technician formerly employed by Walgreens, and Jack Chin, an independent pharmacist, will receive $1,277,172 from the United States for their role in filing the qui tam actions.  The federal share of the settlement is $7,298,124.

“This case vindicates and protects the interests of consumers throughout the nation by ensuring that they remain free from undue influence by large retail chains when making decisions about which pharmacies to entrust their own individual health care,” said André Birotte Jr, U.S. Attorney for Central District of California.
     
“The law prohibits pharmacies from using their retail clout to lure patients whose prescriptions are subsidized by the government,” said Barbara L. McQuade, U.S. Attorney for the Eastern District of Michigan.  “Continuity with a pharmacist is important to detect problems with dosages and drug interactions.  Patients should make decisions based on legitimate health care needs, not on inducements like gift cards.”

“This settlement makes clear that corporations seeking increased profits over their patients' needs will pay a substantial price,” said Daniel R. Levinson, Inspector General for the Department of Health and Human Services.  “Violating Federal health care laws, as Walgreens allegedly did by offering incentives for new business, cannot be tolerated.”

This resolution is part of the government's emphasis on combating health care fraud and another step for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced by Attorney General Eric Holder and Secretary of the Department of Health and Human Services Kathleen Sebelius in May 2009.  The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.  One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover more than $6.7 billion since January 2009 in cases involving fraud against federal health care programs. The Justice Department's total recoveries in False Claims Act cases since January 2009 are over $9 billion.

This case was investigated jointly by the Commercial Litigation Branch of the Justice Department’s Civil Division, the U.S. Attorney’s Offices for the Central District of California and the Eastern District of Michigan, the National Association of Medicaid Fraud Control Units and the Department of Health and Human Services, Office of Inspector General.
           
The claims settled by today’s agreement are allegations only; there has been no determination of liability.