Teva Pharmaceutical Paying $519 Million to Settle FCPA Charges

The Securities and Exchange Commission today announced that Teva Pharmaceutical Industries Limited has agreed to pay more than $519 million to settle parallel civil and criminal charges that it violated the Foreign Corrupt Practices Act by paying bribes to foreign government officials in Russia, Ukraine, and Mexico.

The SEC’s complaint alleges that Teva made more than $214 million in illicit profits by making the influential payments to increase its market share and obtain regulatory and formulary approvals as well as favorable drug purchase and prescription decisions. 

“As alleged in our complaint, Teva failed to devise and maintain proper internal accounting controls to prevent the company’s payments of bribes to win business in certain regions around the globe,” said Stephanie Avakian, Deputy Director of the SEC Enforcement Division.

Eric I. Bustillo, Director of the SEC’s Miami Regional Office, added, “As we allege in our complaint, many of these bribes were concealed as legitimate payments to distributors.  While distributors can help companies navigate complex regulatory environments and provide valuable industry relationships, they also can create significant corruption risks for companies.”

Under the settlement, Teva must pay more than $236 million in disgorgement and interest to the SEC plus a $283 million penalty in a deferred prosecution agreement with the U.S. Department of Justice.  Teva must retain an independent corporate monitor for at least three years.

The SEC’s investigation was conducted by Jenny Trotman with assistance from Kathleen Strandell and Russell Koonin in the Miami Regional Office.  The case was supervised by Thierry Olivier Desmet of the FCPA Unit.  The SEC appreciates the assistance of the Department of Justice Criminal Division’s Fraud Section, Federal Bureau of Investigation, and Financial Services Commission of the British Virgin Islands.

SEC Issues Annual Staff Reports on Credit Rating Agencies

The Securities and Exchange Commission today issued two annual staff reports that demonstrate compliance and competition continue to increase among the credit rating agencies under SEC oversight as nationally recognized statistical rating organizations (NRSROs). 

“Dedicated oversight of credit rating agencies is a critical part of the SEC’s mission,” said SEC Chair Mary Jo White.  “I am pleased that the firms are advancing initiatives to address the staff’s recommendations, including responses to the comprehensive credit rating reforms adopted by the Commission in August 2014.”

The annual examination report, required by the 2010 Dodd-Frank Act, summarizes the staff’s findings from the most recently completed examinations of each NRSRO, including:

• Policies and procedures for determining, surveilling, or withdrawing ratings.
• Separation of analytical activities from sales and marketing.
• Development, documentation, or application of methodologies, criteria, or models.

The report notes that all of the staff’s findings from prior examinations have been appropriately addressed and their recommendations based on exam findings have identified areas for NRSRO improvement.  The staff found that NRSROs continue to integrate and enhance internal systems and processes to comply with their obligations as regulated entities, such as:

• Implementing IT systems to increase the efficiency, capacity, and accuracy of compliance tasks.
• Adding personnel and resources to anticipate and address risk management issues.
• Increasing the number and frequency of audits and other internal testing.

“As a result of our efforts, NRSROs are redoubling their focus on policy and procedure adherence to achieve enhanced transparency, quality, and integrity,” said Thomas J. Butler, Director of the SEC’s Office of Credit Ratings.  “The firms’ additional investments in information technology and personnel serve to bolster governance, risk, and compliance functions.”

The annual report, mandated by the 2006 Credit Rating Agency Reform Act, discusses the state of competition, transparency, and conflicts of interest at NRSROs.  The report notes that two NRSROs recently became registered in additional ratings categories and that smaller NRSROs continue to actively compete with more established rating agencies, particularly in the asset-backed securities rating category, and also are rating new types of issuances referred to as “esoteric” asset-backed securities. 

The following SEC staff contributed to the examinations and reports: Diane Audino, Michael Bloise, David Bobillot, Sondra Boddie, Rita Bolger, Patrick Boyle, Aaron Byrd, Roseann Catania, Matthew Chan, Leah Clague, Kristin Costello, Doreen Crawford, Scott Davey, Franco Destro, Jill Flory, Ilya Fradkin, William Garnett, Kenneth Godwin, Michael Gonzalez, Karen Healer, Barry Huang, Natalia Kaden, Julia Kiel, Russell Long, David Nicolardi, Sam Nikoomanesh, Kevin O’Neill, Harriet Orol, Abraham Putney, Smeeta Ramarathnam, Jeremiah Roberts, Mary Ryan, Charles Schiller, Andrew Smith, Alexa Strear, Warren Tong, Evelyn Tuntono, Chris Valtin, Kevin Vasel, Andrew Vita, and Michele Wilham.

G. Jeffrey Boujoukos Named Director of Philadelphia Regional Office

The Securities and Exchange Commission today announced that G. Jeffrey Boujoukos has been named Director of its Philadelphia Regional Office, where he will oversee enforcement and examinations in the Mid-Atlantic region.  His appointment will be effective following the departure of Sharon B. Binger, who is leaving the agency at the end of the year.

Mr. Boujoukos joined the SEC’s Enforcement Division in 2009 as Regional Trial Counsel in the Philadelphia office.  He has been Associate Regional Director for Enforcement in that office since March 2014.

As Associate Regional Director and Regional Trial Counsel, Mr. Boujoukos has participated in and supervised dozens of enforcement matters involving a variety of securities law violations, including:

• Charges against BP p.l.c. for misleading investors regarding the Deepwater Horizon oil spill by significantly understating the flow rate in multiple reports filed with the SEC.
   
• An investment advisory firm that failed to properly prepare clients for additional transaction costs beyond the “wrap fees” they pay to cover the cost of several services bundled together.
   
• Insider trading charges against two brokers who traded on inside information ahead of the $1.2 billion acquisition of SPSS Inc. in 2009 by IBM Corp. and a former BP employee.
   
• Charges against New York-based brokerage firm Linkbrokers Derivatives LLC for unlawfully taking secret profits of more than $18 million from customers by adding hidden markups and markdowns to their trades.

“Jeff’s knowledge, judgment and pragmatism make him an ideal leader of the Philadelphia office,” said Andrew J. Ceresney, Director of the SEC’s Enforcement Division.  “He has led that office’s enforcement program to bring numerous important and impactful cases, and distinguished himself as a trial lawyer and strategic thinker.”

“Jeff has been a strong partner and advocate for OCIE in his previous positions with the SEC,” said Marc Wyatt, Director of the SEC’s Office of Compliance Inspections and Examinations.  “We look forward to his leadership of the exam program in the Philadelphia region and his contribution to the national program.”

Mr. Boujoukos said, “I am incredibly honored to lead the exceptionally talented and hardworking staff of the SEC’s Philadelphia office.  It is a privilege to come to work every day and collaborate with the office’s enforcement and exam staff who have dedicated their professional careers to protecting the nation’s investors and ensuring fair and orderly markets.”

Prior to joining the SEC staff, Mr. Boujoukos was an associate and later a partner in the litigation department of Morgan, Lewis & Bockius in Philadelphia.  He graduated from Lehigh University in 1989, and graduated with honors from Temple University School of Law in 1992.

Sharon Binger, Director of Philadelphia Regional Office, to Leave SEC

The Securities and Exchange Commission today announced that Sharon B. Binger, Director of the Philadelphia Regional Office, will leave the agency at the end of the year.  Following her departure, G. Jeffrey Boujoukos, the Philadelphia office’s Associate Regional Director for Enforcement, will serve as Regional Director.

Ms. Binger has headed the Philadelphia office since February 2014, overseeing a staff of more than 150 attorneys, accountants, and other professionals responsible for conducting investigations, litigation, and examinations in a region covering Delaware, Maryland, Pennsylvania, Virginia, West Virginia, and the District of Columbia.

“Sharon exemplifies the high standards of leadership we set at the agency – tough but fair enforcement, inspiring leadership, and impactful results,” said SEC Chair Mary Jo White. “The public has benefited from her deep commitment to protecting investors.”

Ms. Binger said, “It has been an incredible honor and a joy to lead the Philadelphia Regional Office and its dedicated and talented staff.  I am grateful to have had this opportunity and I am very proud of the high quality, innovative work we have accomplished together.”

During Ms. Binger’s tenure, the SEC’s Philadelphia Office filed dozens of enforcement matters involving a variety of securities law violations, including the SEC’s charges against:

• Two brokers who traded on inside information ahead of the $1.2 billion acquisition of SPSS Inc. in 2009 by IBM Corp. 
   
• An investment advisory firm that failed to properly prepare clients for additional transaction costs beyond the “wrap fees” they pay to cover the cost of several services bundled together
   
• Nationwide Life Insurance Company for routinely violating pricing rules in its daily processing of purchase and redemption orders for variable insurance contracts and underlying mutual funds

• Credit Suisse Securities (USA) LLC for submitting deficient information to the SEC over a two-year period about trades done by its customers, commonly referred to as “blue sheet data”

The Philadelphia office also is litigating the SEC’s charges against dozens of defendants for taking part in a scheme to profit from stolen nonpublic information about corporate earnings announcements.  The Philadelphia office is leading the SEC’s continuing litigation, where the agency has obtained $53 million in settlements from 13 defendants.

“Sharon’s creativity and vision, along with her steady leadership, have been critical to the success of the Philadelphia office’s enforcement program,” said Andrew J. Ceresney, Director of the SEC’s Enforcement Division.  “She instituted significant changes to the office, diversifying the office’s docket and energizing the staff, resulting in important and path-breaking cases.”

Ms. Binger also helped bring about successful changes in the structure and processes of the exam program.  She put in place initiatives to instill a more risk-focused approached to examinations and adapt the program to the large influx of newly-registered hedge fund managers and private equity funds under the Dodd-Frank Act.

“Sharon has been an outstanding leader for the exam program in the Philadelphia Regional Office.  She has been a strong advocate for investors and delivered on OCIE’s Four Pillars of promoting compliance, preventing fraud, informing policy and monitoring risk,” said Marc Wyatt, Director of the SEC’s Office of Compliance Inspections and Examinations.

Ms. Binger joined the SEC’s Enforcement Division in 2008.  She was promoted to assistant regional director in the SEC’s New York Office in 2011.  Prior to her arrival at the SEC, she spent seven years in private practice with a large international law firm.  Ms. Binger graduated from Northwestern University in 1998 and earned her law degree with honors from Duke University School of Law in 2001.

SEC Charges Operators of Fake Day-Trading Firm With Defrauding Inexperienced Investors

The Securities and Exchange Commission today charged two men behind a phony day-trading firm with pocketing more than $1.4 million in deposits from hundreds of defrauded investors worldwide.

The SEC alleges that Naris Chamroonrat of Bangkok, Thailand, recruited Adam L. Plumer of Las Vegas to help him lure investors to day-trade through an unregistered brokerage firm called Nonko Trading with promises of generous leverage, low trading commissions, and low minimum deposit requirements.  According to the SEC’s complaint, rather than using a live securities trading platform, Nonko Trading provided certain investors with training accounts that merely simulated the placement and execution of trade orders.  So when these investors sent funds to Nonko Trading and proceeded to place trade orders, they were never actually routed to the markets.  The SEC alleges that investor money was instead used to fund Chamroonrat’s personal expenses, pay Plumer and other associates, and make Ponzi-like payments to investors who asked to close their accounts.

According to the SEC’s complaint, the scheme deliberately targeted investors who were inexperienced and more likely to place unprofitable trades, making them less likely to ask to withdraw funds from their accounts.

“As alleged in our complaint, Chamroonrat defrauded investors in more than 30 countries by using a trading simulator to deceive them into believing they were involved in legitimate securities trading rather than victims of a $1.4 million fraud,” said Joseph G. Sansone, Co-Chief of the SEC Enforcement Division’s Market Abuse Unit.

In a parallel action, the U.S. Attorney’s Office for the District of New Jersey today announced criminal charges against Chamroonrat.

The SEC’s complaint charges Chamroonrat and Plumer with violating Section 17(a) of the Securities Act of 1933 and Sections 10(b), 15(a)(1) and 20(b) of the Securities Exchange Act of 1934 and Rule 10b-5.  The SEC is seeking injunctions and the disgorgement of ill-gotten gains plus interest and penalties.  

The SEC’s continuing investigation is being conducted by Simona Suh, Barry O’Connell, and John Marino of the Market Abuse Unit and Elzbieta Wraga of the New York Regional Office.  The case has been supervised by Mr. Sansone.  The SEC’s litigation will be led by Ms. Suh and Mr. O’Connell.  The SEC appreciates the assistance of the U.S. Attorney’s Office for the District of New Jersey, Federal Bureau of Investigation, Financial Industry Regulatory Authority, Australian Securities and Investments Commission, Securities Commission of The Bahamas, Financial Supervisory Commission of the Cook Islands, Israel Securities Authority, Financial Services Commission’s Nevis Branch, Ontario Securities Commission, Monetary Authority of Singapore, and Securities and Exchange Commission of Thailand.    

SEC Charges Former New York Pension Official and Two Brokers in Pay-to-Play Scheme

The Securities and Exchange Commission today announced fraud charges against a former official of the nation’s third largest public pension fund and two brokers accused of orchestrating a pay-to-play scheme to steer billions of dollars to certain firms in exchange for luxury gifts, lavish vacations, and tens of thousands of dollars spent on cocaine and prostitutes.

Navnoor Kang, who served as the director of fixed income for the New York State Common Retirement Fund from January 2014 to February 2016, allegedly used his position to direct up to $2.5 billion in state business to Gregg Schonhorn and Deborah Kelley, who were registered representatives at two different broker-dealers.  In exchange for this lucrative business, which netted Schonhorn and Kelley millions of dollars in commissions, the brokers provided Kang with tens of thousands of dollars in benefits, including:

• More than $50,000 spent on hotel rooms in New York City, Montreal, Atlantic City, and Cleveland.
• Approximately $50,000 spent at restaurants, bars, lounges, and on bottle service.
• $17,400 on a luxury watch for Kang.
• $4,200 on a Hermes bracelet for Kang’s girlfriend, at Kang’s request.
• $6,000 on four VIP tickets to a Paul McCartney concert in New Orleans.
• An extravagant ski vacation in Park City, Utah, including a $1,000 per night guest suite.

“Kang owed a duty not only to the New York State Common Retirement Fund but to the more than one million public servants and beneficiaries that are served by the fund, including police and fire personnel who count on their pensions to take care of them and their families,” said Andrew J. Ceresney, Director of the SEC Enforcement Division.  “This action demonstrates that the SEC will not tolerate public officials who abuse public pension funds to satisfy their own greedy and wanton desires.”

According to the SEC’s complaint, Kang, as a fiduciary to the Fund, had a duty to disclose his solicitation and receipt of the gifts and entertainment he received from Schonhorn and Kelley but failed to do so.  Schonhorn and Kelley knew Kang was not disclosing his activities to the Fund, and they took steps to keep the benefits a secret.  Kang, in soliciting and accepting the benefits without any disclosure, violated the antifraud provisions of the Securities Act and the Exchange Act.  Schonhorn and Kelley participated in the fraudulent scheme and provided substantial assistance to Kang in concealing the scheme from the Fund, thereby violating the antifraud provisions and aiding and abetting Kang’s fraud.

“We allege that rather than compete fairly for business from the New York State Common Retirement Fund’s $50 billion fixed income portfolio, Schonhorn and Kelley bribed their way in, lining their pockets with millions in commissions along the way,” said LeeAnn Ghazil Gaunt, Chief of the SEC Enforcement Division’s Public Finance Abuse Unit.  “Moreover, they allegedly assisted Kang in covering up his misdeeds, with Kelley going so far as to help Kang obstruct the SEC’s investigation.”

In a parallel action, the U.S. Attorney’s Office for the Southern District of New York today announced criminal charges against Kang, Schonhorn, and Kelley.

The SEC’s complaint charges Kang, Schonhorn, and Kelley with violations of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5.  Schonhorn and Kelley also are charged with aiding and abetting Kang’s violations.  The SEC is seeking an order of permanent injunction and disgorgement plus interest and penalties.  Additionally, the SEC is seeking a conduct-based injunction against Kang that would permanently enjoin him from participating in any decisions involving investments in securities by public pensions as a trustee, officer, employee, or agent.

The SEC’s continuing investigation is being conducted by Public Finance Abuse Unit members Brian Fagel, Eric Celauro, and Jason Howard.  The SEC’s litigation will be led by John E. Birkenheier and Alyssa A. Qualls.  The case is being supervised by Ms. Gaunt and Timothy L. Warren, Associate Regional Director of the SEC’s Chicago Regional Office.  The SEC appreciates the assistance of the U.S. Attorney’s Office for the Southern District of New York and the Federal Bureau of Investigation.

Petrochemical Manufacturer Braskem S.A. to Pay $957 Million to Settle FCPA Charges

The Securities and Exchange Commission today announced that a Brazilian-based petrochemical manufacturer whose stock trades in the U.S. markets has agreed to settle charges that it created false books and records to conceal millions of dollars in illicit bribes paid to Brazilian government officials to win or retain business.

In a global settlement with the SEC, U.S. Department of Justice, and authorities in Brazil and Switzerland, Braskem S.A. agreed to pay $957 million.

The SEC’s complaint alleges that Braskem made approximately $325 million in profits through bribes paid through intermediaries and off-book accounts managed by a private company that was Braskem’s largest shareholder.  Bribes were paid to a government official at Brazil’s state-controlled petroleum company as well as Brazilian legislators and political party officials.

“As alleged in our complaint, Braskem lacked the internal controls to prevent its use of third parties, off-book accounts, and other intermediaries to bribe government officials in Brazil during an eight-year period,” said Stephanie Avakian, Deputy Director of the SEC Enforcement Division.  “Braskem’s misconduct was exposed through the investigative work of authorities in three countries.” 

Braskem agreed to pay $325 million in disgorgement, including $65 million to the SEC and $260 million to Brazilian authorities.  Braskem agreed to pay more than $632 million in criminal penalties and fines.  The company must retain an independent corporate monitor for at least three years. 

The SEC’s investigation is continuing.  It is being conducted by Ernesto Palacios and Thierry Olivier Desmet of the FCPA Unit with assistance from David S. Johnson and Fernando Torres, and supervised by Kara Brockmeyer, Chief of the FCPA Unit.  The SEC appreciates the assistance of the Department of Justice Criminal Division’s Fraud Section, the Federal Bureau of Investigation, the Brazilian Federal Prosecution Service, the Brazilian Federal Police, and the Office of the Attorney General in Switzerland.  

Company Settles Charges in Whistleblower Retaliation Case

The Securities and Exchange Commission today announced that an oil-and-gas company has agreed to settle charges that it used illegal separation agreements and retaliated against a whistleblower who expressed concerns internally about how its reserves were being calculated.

The SEC’s order finds that Oklahoma City-based SandRidge Energy Inc. conducted multiple reviews of its separation agreements after a new whistleblower protection rule became effective in August 2011, yet continued to regularly use restrictive language that prohibited outgoing employees from participating in any government investigation or disclosing information potentially harmful or embarrassing to the company.

The SEC’s order further finds that SandRidge fired an internal whistleblower who kept raising concerns about the process used by SandRidge to calculate its publicly reported oil-and-gas reserves.  The employee had been offered a promotion, which was turned down.  Just months later, senior management concluded the employee was disruptive and could be replaced with someone “who could do the work without creating all the internal strife.” The company had conducted no substantial investigation of the whistleblower’s concerns and only initiated an internal audit that was never completed. The employee’s separation agreement also contained the company’s prohibitive language that violated the whistleblower protection rule.

“Ignoring a rule that protects communications between outgoing employees and the SEC, SandRidge flatly prohibited such contact in their separation agreements and at the same time retaliated against an employee who raised concerns about the company to its management,” said Shamoil T. Shipchandler, Director of the SEC’s Fort Worth Regional Office. 

Jane Norberg, Chief of the SEC’s Office of the Whistleblower, added, “Whistleblowers who step forward and raise concerns internally to their companies about potential securities law violations should be protected from retaliation regardless of whether they have filed a complaint with the SEC.  This is the first time a company is being charged for retaliating against an internal whistleblower, and the second enforcement action this week against a company for impeding employees from communicating with the SEC.”

Without admitting or denying the SEC’s findings, SandRidge agreed to pay a penalty of $1.4 million, subject to the company’s bankruptcy plan.

The SEC’s investigation was conducted by Tamara F. McCreary, Timothy L. Evans, and David R. King and supervised by Jonathan P. Scott and David L. Peavler of the Fort Worth office.  

SEC Charges Morgan Stanley With Customer Protection Rule Violations

The Securities and Exchange Commission today announced that Morgan Stanley & Co. LLC has agreed to pay $7.5 million to settle charges it used trades involving customer cash to lower the firm’s borrowing costs in violation of the SEC’s Customer Protection Rule.

The Customer Protection Rule is intended to safeguard customers’ cash and securities so that they can be promptly returned should the broker-dealer fail.  The SEC order finds that from March 2013 to May 2015, Morgan Stanley’s U.S. broker-dealer used transactions with an affiliate to reduce the amount it was required to deposit in its customer reserve account.  According to the order, the transactions violated the Customer Protection Rule, which prohibits broker-dealers from using affiliates to reduce their customer reserve account deposit requirements.

“The Customer Protection Rule establishes crucial safeguards for investors to ensure that their cash and securities are secure when held by a broker-dealer,” said Michael J. Osnato, Chief of the SEC Enforcement Division’s Complex Financial Instruments Unit.  “Complex trading schemes designed to artificially reduce the amount a broker-dealer must maintain in its customer reserve account run contrary to these basic obligations.”

According to the SEC’s order, Morgan Stanley had its affiliate, Morgan Stanley Equity Financing Ltd., serve as a customer of its U.S. broker-dealer, a relationship that allowed the affiliate to use margin loans from the U.S. broker-dealer to finance the costs of hedging swap trades with customers.  The margin loans lowered the borrowing costs incurred to hedge these swap trades and reduced the U.S. broker-dealer’s customer reserve account deposit requirements by tens to hundreds of millions of dollars per day.

The SEC order finds that Morgan Stanley’s affiliated transactions violated the Customer Protection Rule and that as a result of inaccurately calculating its customer reserve account requirements, it submitted inaccurate reports to the SEC.  Morgan Stanley provided substantial cooperation during the SEC’s investigation and has agreed to review its compliance with the Customer Protection Rule and to take remedial steps to improve its calculation processes.  Morgan Stanley also significantly increased the amount of excess funds it maintains in its customer reserve account.  Without admitting or denying the findings, Morgan Stanley agreed to pay a $7.5 million civil penalty, to cease and desist from committing or causing any similar violations in the future, and to be censured.

The SEC’s investigation was conducted by Joshua I. Brodsky and Joshua R. Pater with assistance from Eli Bass of the Office of Compliance Inspections and Examinations and Raymond Doherty of the Division of Trading and Markets.  The case was supervised by Mr. Osnato and Daniel Michael.  The SEC appreciates the assistance of the Financial Industry Regulatory Authority.