One who intends to leave others better off for his having existed.


"Supreme Court Hits Pension Plans Over High-Cost Mutual Funds"

"Employers who offer retirement plans must pay closer attention to the fee structure of investments under a U.S. Supreme Court decision that rejected the idea a six-year statute of limitations dated from when those investments entered the fund.

The unanimous, 8-page decision in Tibble v. Edison supports the arguments of class-action attorneys who increasingly are suing over high mutual fund fees and the choice of investments within so-called defined-contribution funds...

...Plaintiff lawyers sued over mutual funds that were still in the plan even though lower-cost institutional shares of the same funds were available.

In today’s decision, the court said the “breach or violation” ...can occur whenever a trustee violatess his or her fiduciary duty.  That is a “continuing duty,” the court said, “separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset.”

...The biggest news in the decision, Donvan said, was that the court refrained from telling fiduciaries exactly what their duty to monitor entails.

“The scope of that duty will be determined on a fact-specific case-by-case basis by lower courts, who will be looking at factors such as the frequency of the ongoing review, how rigorous that review is, and what records managers have maintained to document that they have satisfied their duty to monitor,” he said.

In Tibble, the Supreme Court remanded the case for a lower court to decide whether trustees had actually violated their fiduciary duty by failing to remove high-cost mutual funds from the investment menu. That decision fits with the court’s tendency to put faith in the ability of trial courts to sort out basic issues of tort and securities law unless Congress has specifically removed them from the process."

Daniel Fisher
Forbes, May 18, 2015


"Fifth Circuit finds disclosure of whistleblower's identity may constitute adverse action"

"In Halliburton, Inc v Administrative Review Board (771 F 3d 254 (5th Cir 2014)), the Fifth Circuit affirmed the ARB's decision that
disclosing the identity of a whistleblower 
could constitute an adverse action under Sarbanes-Oxley. 

The court stated that when a whistleblower's identity is disclosed, "the boss could be read as sending a warning, granting his implied imprimatur to differential treatment of the employee, or otherwise expressing a sort of discontent from on high". 

Notably, the court ruled that a whistleblower need not show that the employer's adverse action was motivated by a retaliatory motive."

"ARB decision clarifies burdens of proof applicable to SOX whistleblower claims"

"The ARB recently issued a decision that addresses in detail how investigators at the Department of Labour and administrative law judges should apply the burdens of proof required under Sarbanes-Oxley.

Fordham v Fannie Mae(7) focused on one of the elements of a whistleblower's prima facie burden – the requirement to prove that the protected activity was a "contributing factor" in the employer's adverse decision, which must be shown by a preponderance of the evidence.

The principal holding of the decision addressed the treatment of evidence supporting the employer's affirmative defence that it would have taken the same action against the employee even if the employee had not engaged in protected activity under Sarbanes-Oxley, which must be shown by a higher, "clear and convincing" burden by the employer. 

The ARB held that the administrative law judge improperly weighed evidence offered by the employer in support of its affirmative defence against the complainant's causation evidence as to how the Sarbanes-Oxley protected activity was a contributing factor in the adverse treatment.

According to the ARB, weighing the evidence in this way impermissibly resulted in application of the lower preponderance of the evidence standard that is applicable only to the complainant's proof, rather than applying the more onerous clear and convincing evidence standard required to be applied to the employer's evidence."

Wells Fargo and Wachovia Settlements with Federal Regulators

2004-02 $9,700,000
Settling with the SEC & NASD for not honoring sales load discounts mandated for large purchases

Settling accusations of overcharging large-scale investors in mutual funds
Settling with SEC for violations of proxy disclosure & other reporting requirements connected with its 2001 merger
Settling for failing to prevent conflicts of interest between its research & investment businesses
Settling with NYSE for failing to review & save electronic records relating to its businesses
Settling accusations that the bank allowed telemarketers to use its accounts to steal millions
Settling for profiting by ignoring fraudulent telemarketers who used the bank to help them steal from consumers
Wells Fargo
Settling with SEC for improper supervision leading to improper customer switching in mutual funds
Wells Fargo
Settling charges it imposed improper credit card processing fees on about 96,000 California businesses over 4 yeras
Wells Fargo
Settling with NASD for improper sales of Class B & Class C mutual fund shares
Wells Fargo
Settling with NASD for not disclose analyst's employment with covered company in research report
Wells Fargo
Settling FCA violations for pre-foreclosure sales program fraud (FHA)
Wells Fargo
Settling with NASD for failures relating to trust & mutual fund sales.
$4.41m is fine
Wells Fargo
Settling with CA Attorney General to buyback securities that were bought on misleading advice
Wells Fargo
Settling with 8 states over pick-a-day mortgages.
$772m in loan motifications
Wells Fargo
Settling with California Attorney General over pick-a-day mortgages.
$2b in loan motifications
Wells Fargo
Settling with FINRA for delays in delivering prospectuses to more than 900,000 & reporting failures
Wells Fargo
Settling with DoJ for not doing business with disabled people.
$55k in fine & $1m to charity
Wells Fargo
Settling claims of untrue statements in offering docs in mortgage-backed securities certificates litigation
Wells Fargo
Settling with FRB for false info on loan apps. & giving subprime loans to prime-eligible borrowers
Wells Fargo
Settling investor class action concerning bonds sold in October 2008

Wells Fargo
Settling with FINRA for sales of reverse convertibles & not providing breakpoints on UIT sales
Wells Fargo
Settling claims of artificial inflation of Wachovia's common stock price due to misleading disclosures
Wells Fargo
Settling charges of mortgage-servicing abuses
Wells Fargo
Settling with FINRA for selling leveraged & inverse ETFs without supervision
Wells Fargo
Settling for violations of Fair Housing Act & Equal Credit Opportunity in its mortgage business
Wells Fargo
Settlement for selling mortgage-backed securities w/o understanding or disclosing risks to investors
Wells Fargo
Settling with OCC & Federal Reserve Board over deficient practices in mortgage loan servicing & foreclosure processing
Wells Fargo
Settling charges over foreclosure abuses related to "robo-signing" scandal
Wells Fargo
Settling with New York State DFS over investigation of force-placed or lender-placed insurer
Wells Fargo
Settling force-placed insurance class action with Florida homeowners
Wells Fargo
Settling charges of violating California's unfair competition law by deceiving its customers that debit card purchases
Wells Fargo
Settling charges it neglected maintenance & marketing of foreclosed homes in minority areas
Wells Fargo
Settling with Fannie Mae & Freddie Mac of opt-out claims in mortgage-backed certificates
Wells Fargo
Settling to resolve "substantially all" repurchase liabilities with Freddie Mac
Wells Fargo
Settling with Fannie Mae to resolve repurchase demands on loans originating before 2009
Wells Fargo
Settling with SEC for an employee trading on nonpublic information relating to its 2010 acquisition of Burger King
Wells Fargo
Fined by FINRA for research violations in connection with Toys "R" Us IPO
Wells Fargo
Settling with New York DFS for violations on credit card accounts at former affiliate
Wells Fargo (Evergreen Investments)
Settling charges of overstating value of a mutual fund invested in mortgage-backed securities
Wells Fargo (Wachovia)
Settling with SEC by repurchasing securities it sold by falsely telling investors they were safe
Wells Fargo (Wachovia)
Settling with FINRA for prospectus delivery failures, related supervisory violations
Wells Fargo (Wachovia)
Settling with U.S. DoJ for willfully failing to establish an anti-money laundering program
Wells Fargo (Wachovia)
Settling with SEC for misconduct in the sale of 2 CDOs to the Zuni Indian Tribe & 1 other investor
Wells Fargo (Wachovia)
Settling lawsuit over rigging the bidding of competition for business from state & local governments
Wells Fargo & First Clearing LLC
Settling with FINRA for failing to provide required notifications to customers
Wells Fargo & First Interstate Bank of California
Settling lawsuit alleging they participated in a conspiracy to fix the interest rates on credit cards


"The SEC does not believe employees in such quasi-investigative roles obtain such information as a result of “independent knowledge or independent analysis” [17 C.F.R. 240.21F-4(b)(1)]."

"The third exception allows for whistleblower awards after more than120 days have passed since the employee disclosed allegations to the audit committee, chief legal officer, chief compliance officer or supervisor [17 C.F.R. 240.21F-4(b)(v)(C)]."

"The SEC’s first whistleblower award given to an employee performing audit and compliance functions was doled out in August 2014. It totaled $300,000 and concerned a company that had failed to respond to allegations of misconduct within the 120-day period."

" At the time, the SEC made the following statement: “This particular whistleblower award recipient reported concerns of wrongdoing to appropriate personnel within the company, including a supervisor…When the company took no action on the information within 120 days, the whistleblower reported the same information to the SEC.”

"The 120-day period is not a substantial amount time to investigate and respond to an inquiry, and the impending harm exception has no specified time limit. Accordingly, allegations of misconduct warrant immediate attention under either exception."

"And internal systems should (i) generate reports on the timing of receipt; (ii) send reminders to supervisors on need to respond by relevant deadlines; and (iii) send documentation to the information source that the matter is being addressed (to reduce the likelihood that a potential whistleblower might assert that no response was given by the company)."
120 / 30 = 4

12/9/2011 - 5/8/2012 =