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Robert Khuzami SEC Enforcement Chief to Step Down

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Robert Khuzami, a former terrorism prosecutor who revamped the Securities and Exchange Commission's enforcement unit, is stepping down from the agency after an aggressive four-year tenure, the New York Times DealBook blog reported yesterday. His departure signals the end of an important chapter in the history of the agency, which has been praised for taking significant actions against some of Wall Street's largest banks after the financial crisis but also scrutinized for not suing top bank executives at those firms. After joining the SEC in 2009, Mr. Khuzami reinvigorated the enforcement team, which was maligned for missing the warning signs of the financial crisis and Bernard L. Madoff's Ponzi scheme. In recent years, the enforcement division notched a record number of actions, many against banks at the center of the crisis.

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Supreme Court to Hear Gabelli Appeal of SEC Civil Fraud Penalties

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The Supreme Court will hear arguments next week in a case that will determine how much time federal securities regulators have to impose civil fraud penalties, the Washington Post reported yesterday. In Gabelli v. SEC, two Gabelli Funds officials argue that the Securities and Exchange Commission waited too long to bring a civil case accusing them of authorizing an improper trading technique at their firm. The argument raises a question often debated in legal circles: When does the clock start ticking on civil fraud cases? Some courts have ruled that the SEC can only obtain civil penalties for fraud within five years of the violation taking place, as a lower court did in the Gabelli case. But in August, the U.S. Court of Appeals for the 2nd Circuit decided that time runs out five years after the SEC discovers, or reasonably should have discovered, the alleged fraud.

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JPMorgan Among 65 to Register as Swap Dealers Under Dodd-Frank

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JPMorgan Chase & Co., Goldman Sachs Group Inc. and Barclays Plc are among the first banks to register swap-dealer divisions under the Dodd-Frank Act, which requires higher capital, collateral and trading standards, Bloomberg News reported yesterday. The 65 trading units that have registered include the biggest banks in the U.S., U.K., France, Germany, Switzerland and Japan, according to the Commodity Futures Trading Commission. The list, which is expected to grow, reflects companies that had at least $8 billion in swap-dealing business in October and had to register by the end of last year.

Paulson Named in ACAs Revised Goldman Sachs CDO Suit

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Hedge fund Paulson & Co. was named as a defendant in a proposed revised lawsuit by ACA Financial Guaranty Corp. against Goldman Sachs Group Inc. over a collateralized debt obligation (CDO) called Abacus, Bloomberg News reported yesterday. Paulson conspired with Goldman Sachs to deceive ACA Financial, which provided financial guaranty insurance for the deal, ACA Financial said in papers filed yesterday in New York State Supreme Court in Manhattan. ACA Financial is seeking permission to file a revised complaint adding Paulson as a defendant. Goldman Sachs in July 2010 won court approval of a $550 million settlement with the U.S. Securities and Exchange Commission over claims that it misled investors in the Abacus CDO. Goldman Sachs failed to disclose New York-based Paulson’s role in selecting underlying securities or that Paulson had taken a short position against the CDO, the SEC said.

Pension Funds Seek Insider Curbs

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A group of pension funds that oversee more than $3 trillion in assets asked U.S. securities regulators to revamp rules on how corporate executives can trade their company stock, the Wall Street Journal reported today. In a letter sent on Friday to the Securities and Exchange Commission, the Council of Institutional Investors expressed concern that corporate insiders might be abusing their position by improperly profiting from trading their company shares while in possession of confidential information. In an analysis of trading by more than 20,000 executives since 2004, the Wall Street Journal last month found that 1,418 executives who traded their company stock in the week before news was announced averaged gains of 10 percent—or avoided losses of 10 percent—within a week of their trades. Executives are barred from trading based on important, nonpublic information.

High-Speed Traders Race to Fend Off Regulators

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High-frequency trading firms are fighting to fend off regulation as scrutiny of their practice of unleashing blizzards of orders coincides with repeated technical glitches in the markets, the Wall Street Journal reported today. As the firms work to convince policy makers their practices are benign or even beneficial, one of their primary tools has been research seeded by the industry itself, promoted by lobbying that has increased in recent years. Defenders say high-frequency trading keeps markets lubricated with a constant supply of buy and sell orders that enables all participants to trade more efficiently and get better pricing. Critics worry that the traders' order torrent makes markets more opaque, less stable and ultimately less fair. Concern has risen amid a lengthening list of unnerving market malfunctions: the "flash crash" free fall in May 2010, the bungled initial public offering in March of a computerized stock exchange, the poorly executed Facebook Inc. public offering in May on the Nasdaq Stock Market and Knight Capital Group Inc.'s August debacle.

Commentary Allow Private Education Loan Debts to Be Erased in Bankruptcy

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ABI Bankruptcy Brief | December 20 2012


 


  

December 27, 2012

 

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  NEWS AND ANALYSIS   

COMMENTARY: ALLOW PRIVATE EDUCATION LOAN DEBTS TO BE ERASED IN BANKRUPTCY



As total student loan debt exceeded $1 trillion in 2012, debt from student loans issued by private for-profit lenders is still not eligible to be discharged under the Bankruptcy Code, according to a commentary by Rep. Steve Cohen (D-Tenn.) in yesterday's edition of U.S. News & World Report. Private for-profit student loans often lack consumer protections and typically have variable interest rates with no caps, exorbitant fees, and hidden charges, according to Cohen. Private lenders do not deserve protection under the Bankruptcy Code because the "undue hardship" provision, first enacted in 1976, was intended to protect the taxpayer dollars that fund federal student loan programs, according to Cohen. "Yet Congress, in 2005, extended this protection to for-profit educational lenders, even though no taxpayer money was at stake," Cohen writes. He introduced H.R. 2028, the "Private Student Loan Bankruptcy Fairness Act," which would allow private education loan debts to once again be erased in bankruptcy just like other types of debts. "By restoring bankruptcy dischargeability, my legislation will ensure that lenders only make prudent loans and will encourage private lenders to work with financially distressed borrowers to modify loan terms," according to Cohen. Read the full commentary.

ANALYSIS: DO OR DIE FOR FOUR RETAILERS



While 2013 will be a tough year for retailers due to the tepid economic recovery, Best Buy, J.C. Penney, RadioShack and Sears face a critical 12 months, the Wall Street Journal reported today. These unlucky retailers are going into the New Year with extra woes: slipping sales, questionable strategies and tight finances. Best Buy Co. has been plagued by the retail phenomenon called "showrooming," where shoppers examine products in its stores but buy online through rivals. J.C. Penney Co. has been trying to shed its image as an old-fashioned department store, but its rapid and radical makeover has left it burning through cash and struggling to attract shoppers. RadioShack Corp.'s bet on mobile phones and tablets has backfired. Sears Holdings Corp.'s sales and profits continue to slide as the department store chain has been shoring up its liquidity by selling itself off in pieces—but some of its remaining assets might be tough to unload at a time when retailing is under pressure. Read more. (Subscription required.)

CONSUMER CONFIDENCE DECREASES IN DECEMBER



Confidence among U.S. consumers declined more than forecast in December as the budget debate in Washington, D.C., soured Americans' outlook on the economy, Bloomberg News reported today. The Conference Board's index of sentiment fell to 65.1 from a revised 71.5 reading the prior month, figures from the New York-based private research group showed today. A drop in consumer expectations for the next six months to a one-year low coincides with mounting concerns about looming tax increases and government budget cuts in 2013 that threaten expansion. At the same time, employment gains, rising home values, and lower gas prices may keep spending, which accounts for about 70 percent of the economy, from foundering. Read more.

SEC GOING HIGH-TECH WITH REAL-TIME TRADE DATA



As computing power and big data have revolutionized stock trading in recent years, the Securities and Exchange Commission is trying to catch up, the Washington Post reported today. This month, the agency is in the final phases of testing software that will stream real-time trade data into its headquarters, helping regulators better grasp the market’s plumbing. The technology should go live in early 2013, at a cost of $2.5 million for the year. The SEC is still coping with the public fallout from the “flash crash” that took place on May 6, 2010, when the stock market plunged nearly 1,000 points in minutes then whipsawed back up. It took the SEC about four months to unwind the billions of orders that took place that day and issue a report of what happened. Although the SEC started collecting the data in June 2010, it could not aggregate them into a single database for analysis until three months later. The incident made the wide gulf in technical prowess between the regulators and the regulated painfully clear, prompting the SEC to explore hiring an outside firm that could gather up-to-the-minute market feeds from the public exchanges. Read more.

ABI IN-DEPTH

LATEST CASE SUMMARY ON VOLO: IN RE SPANSION INC. (3D CIR.)



Summarized by Eduardo Glas of McCarter & English, LLP

The Third Circuit ruled that an agreement that settled litigation between Spansion and Apple at the International Trade Commision pursuant to which the debtor agreed not to sue Apple in the future over the use of flash memory products was a license, and its rejection by the debtor pursuant to 11 U.S.C. § 365 permitted Apple to elect to retain its rights as licensee under 11 U.S.C. § 365(n).

There are more than 700 appellate opinions summarized on Volo, and summaries typically appear within 24 hours of the ruling. Click here regularly to view the latest case summaries on ABI’s Volo website.

NEW ON ABI’S BANKRUPTCY BLOG EXCHANGE: CALPERS SLAMS SAN BERNARDINO BANKRUPTCY AS "SHAM"



The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent blog discusses CalPERS firing back at the city of San Bernardino and its pendency plan for operating during the Chapter 9 case, calling it “criminal” and a “sham.” Since filing for bankruptcy, the city has stopped making its biweekly payments to CalPERS. As a result, San Bernardino now owes CalPERS approximately $8 million.

For more on the San Bernardino case and chapter 9 issues, make sure to order a copy of ABI's latest publication, Municipalities in Peril: The ABI Guide to Chapter 9, Second Edition, now available for pre-order in ABI's Bookstore.

Be sure to check the site several times each day; any time a contributing blog posts a new story, a link to the story will appear on the top. If you have a blog that deals with bankruptcy, or know of a good blog that should be part of the Bankruptcy Exchange, please contact the ABI Web team.

ABI Quick Poll

A licensee of a trademark has the right to retain the license even when a debtor rejects the underlying contract creating the license. (Sunbeam Products, 7th Cir.)

Click here to vote on this week's Quick Poll. Click here to view the results of previous Quick Polls.

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Role of Brokers in UBS Scandal Draws Scrutiny

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UBS AG's interest-rate-rigging settlement this week is shining a spotlight on the arcane world of London's interdealer brokers, who appear to have played a key role coordinating banks' efforts to manipulate the London interbank offered rate (Libor), the Wall Street Journal reported today. These firms wear multiple hats. They act as middlemen between banks that are looking for trading partners. They are informal information clearinghouses for banks looking to gauge market appetite for various assets. And, it turns out, they can serve as conduits for allegedly illegal activity. U.S., British and Swiss authorities on Wednesday detailed an elaborate scheme in which UBS traders enlisted multiple brokerage firms to help orchestrate a multibank rate-rigging network. In exchange, the brokers received hundreds of thousands of pounds worth of compensation, authorities say. As part of its $1.5 billion settlement, UBS acknowledged wrongdoing.

SEC Enforcement Chief Khuzami Said to Leave Agency Next Month

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Robert Khuzami, who led the U.S. Securities and Exchange Commission's enforcement division's pursuit of financial industry wrongdoing related to the subprime crisis, plans to step down as early as next month, Bloomberg News reported yesterday. Then-Chairman Mary Schapiro hired Khuzami in 2009 to help restore the agency's image after it was battered for missing Bernard L. Madoff's Ponzi scheme. He carried out the biggest shakeup in the enforcement unit's history, eliminating layers of management, expanding investigators' legal powers and creating five specialized units to police Wall Street. Under Khuzami, the SEC filed more than 130 cases related to the financial meltdown, including 57 actions against senior corporate officers. His investigators have taken aim at lenders who generated subprime mortgages as well as Wall Street traders and investment banks that bundled the home loans for hedge-fund managers who wanted to bet that house prices would collapse.

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SEC Said to Weigh Ex-CFTC Enforcement Chief as General Counsel

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Securities and Exchange Commission Chairman Elisse Walter may hire as her top lawyer a former enforcement director from the main U.S. derivatives regulator, Bloomberg News reported yesterday. Geoffrey Aronow, a partner at law firm Bingham McCutchen LLP, has been interviewed by Walter and is the leading candidate to become the agency’s general counsel. Aronow would replace Mark Cahn, who is stepping down in January. As the chief lawyer at the agency, the general counsel plays a central role evaluating rules, advising the chairman and representing the SEC in legal disputes.

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