Hierarchical Inconsistency: A Monitoring Mechanism to Reduce Securities Fraud in Emerging Markets

Research has indicated limited effects of formal governance measures on securities fraud prevention in emerging markets due to the weak rule of law. We propose that hierarchical inconsistency, misaligned rank ordering in formal organizational and informal social hierarchies of the corporate elite, can provide a novel monitoring mechanism to reduce securities fraud. Leaders at the top of the two inconsistent hierarchies can feel distressed and motivated to engage in contestation and challenge each other’s authority, thus providing checks and balances and preventing groupthink. This monitoring effect is likely to be stronger when either of the two heads has dominant and unequivocal superiority in their respective hierarchy, making them particularly distressed by the hierarchical inconsistency and prone to contest. We test our argument in the context of publicly listed family-controlled firms in China, where business and family hierarchies may confer superiority to different individuals. Our study contributes to the corporate securities fraud literature by understanding how formal organizational structures and informal social relationships interact and jointly influence governance effectiveness in emerging markets.

System of offences associated with securities fraud in the Russian Federation (Part 2)

This article is a sequence of research conducted by the authors on the topic of offences related to digital securities fraud (Part 2). It completes the design of the system of such offences, determining the “subsystem” that considers the economic nature of the Central Securities Depository. For this purpose, analysis is conducted on the articles of the Criminal Code of the Russian Federation that form the system of offences related associated with the fraud of non-digital securities (Articles 185-186) from the perspective of their applicability to digital securities and peculiarities of such application. The research is based on the systemic approach, comparative-legal method, logical techniques of analysis and synthesis of information, as well as the method of deduction. The authors conclude on applicability of the Articles 185, 185.1, 185.2 and 185.4 of the Criminal Code of the Russian Federation to unlawful acts related to digital securities, taking into account the specificity of their legal regulation, namely the absence of necessity of state registration of stocks in the form of digital financial assets, the registration of rights to central securities depository by the information system operator that issued them, etc. Summarizing the results of this research with the results acquired in the Part I, the authors form the system of offences associated with the digital securities fraud, which includes the aforementioned elements, as well as the elements stipulated in the Article 187.1 “Organization of illegal trafficking of digital Rights” of the Draft Federal Law “On Amendments to the Criminal Code of the Russian Federation”. The Russian legal science unfortunately does not give due attention to examination of this problem, and such system is developed for the first time. The authors anchor hopes that the system of offenses they have designed would be effectively used in the law enforcement practice in the context of classification of unlawful action associated with central securities depository.

Does the system reward investors for fraud risk? A clinical analysis

Purpose The purpose of this study is to show that despite the profound and commendable efforts of the SEC staff and many others in the legal system, aimed at combatting a billion-dollar hedge fund manager fraud, the perpetrators were effectively not held accountable for the unlawful conduct and hence did not bear the consequences of the conduct. This case highlights the presence of a significant risk that hedge fund investors are not fully accounting for and very likely not earning a commensurate premium for it. During the 1999–2002 period, Lauer and Associates inflated hedge funds’ valuations, misrepresented the holdings of the funds, shared fake portfolios with investors, did not provide reasonable basis for the excessive valuations of the investee companies and manipulated their security prices. In 2009, Lauer was found guilty of violating anti-fraud provisions of the federal securities laws and was ordered to pay US$18.9m in prejudgment interest and to surrender US$43.6m in ill-gotten gains. Despite the substantial evidence, on 11 April 2011 Lauer was acquitted in federal court, of wire fraud and conspiracy to commit securities fraud. Five other associates received light sentences. Yet investors were around US$1.0bn which were never recovered or compensated. Design/methodology/approach The study applies clinical case analysis. The study produced detailed research and analysis of the of the US based Lancer Management Group fraud case. The focus is on the consequences to investors and other stakeholders in the hedge fund industry. Findings In 2009, Lauer was found guilty of violating anti-fraud provisions of the federal securities laws and was ordered to pay US$18.9m in prejudgment interest and to surrender US$43.6m in ill-gotten gains. Despite the substantial evidence, on 11 April 2011 Lauer was acquitted in federal court, of wire fraud and conspiracy to commit securities fraud. Five other associates receive light sentences. Yet investors were around US$1.0bn. Investors’ losses were never recovered or compensated. Research limitations/implications This is a clinical case study. It is not an empirical study. Findings should be carefully construed. Practical implications This study directs hedge fund investors and industry stakeholder to the real possibility of not fraud but also to the limited efficacy of the system in terms of providing protection and compensation to investors. Investors and stakeholders must pay close attention in the due diligence process to minimize probability of fraud. Social implications Hedge fund industry fraud leads to devastating consequences to investors and obviously to their wealth and very possibly adversely impact local economy and community. Originality/value This study presents many events that show the extent of the fraud and how it was conducted. This paper shows despite the extensive effort of the regulatory and judicial system, the perpetrators of the fraud were not held accountable for their actions. This case does not point toward a macro system failure. It highlights the presence of a real risk that investors are not accounting for and very likely not earning a commensurate reward for it.

Auditors’ Duty to Respond to “Red Flags” Indicative of Overvaluation of Inventory: A Case Study of Sanchez v. Deloitte & Touche

This is a legal case study of Sanchez v. Deloitte & Touche. It covers: (a) legal elements of a securities fraud claim; (b) the effect of the Private Securities Litigation Reform Act upon the pleading of an auditor’s complicity in securities fraud; (c) how SEC Rule 10b-5 affects auditors; (d) potential red flags pertaining to an audit client’s deficient inventory control system; (e) the failure of a client’s internal controls to detect a gross overvaluation of inventory; (f) the failure of an auditor to ensure that the client’s inventory is valued at the lower of cost or market, as required under General Accepted Accounting Principles; (g) the court’s decision as to whether the auditor in this case was liable for complicity in securities fraud, the court’s legal justification for the decision, and the impact of the red flags on the court’s decision.

Auditor’s Duty to Ensure Clients are Using Accounting Practices in Compliance with Generally Accepted Accounting Principles: A Case Study of Infinity Business Group, Inc.

Infinity Business Group, Inc. (IBG), a company specializing in the collection of bad checks, was incorporated in 2003. IBG recorded its collection fees as Accounts Receivable even before the Not-Sufficient-Funds checks were collected, a method not in compliance with Generally Accepted Accounting Principles; accordingly, IBG’s auditor should not have issued unqualified opinions on the financial statements during 2003-2008. A $23 million write-off of Accounts Receivable in 2009 had a devastating effect on the company and it declared bankruptcy in 2010. In 2019, the Bankruptcy Court ruled: (a) the auditor’s unqualified opinions violated the U.S. Securities Exchange Act, and the auditor was forced to plead guilty to one felony count of securities fraud; (b) IBG’s CFO was dishonest when he responded to an inquiry from a lender about the Accounts Receivable; (c) Morgan Keegan & Company, Inc. (MK), a brokerage and investment banking firm contractually affiliated with IBG, encouraged IBG to discontinue using the improper accounting method; (d) IBG’s President Cordell made a misrepresentation to MK in 2007 when he stated that all of the questionable Accounts Receivable had been written off; (e) in 2008, MK became aware that IBG might change the accounting method; (f) MK never encouraged IBG managers to breach fiduciary duties to IBG; (g) MK did not owe IBG fiduciary duties, but even if it did, there is no evidence of a breach because MK encouraged discontinuance of the improper accounting practice; (h) some of the managers and directors of IBG were innocent, they did not participate in daily operations of the company, and they did not have control of the company; and (i) notwithstanding the fact they did not commit securities fraud, some of the “innocent” managers and directors failed to discharge their duties to IBG by advocating for the continued use of the improper accounting method. On appeal in 2021, the District Court affirmed the Bankruptcy Court, holding that: it did not make any legal errors; the Bankruptcy Trustee did not adequately prove damages caused by MK; and the Bankruptcy Trustee’s claims were barred by the Doctrine of in Pari Delicto.

Perceptions of white-collar crime registries

Purpose In 2015, Utah enacted the first white-collar crime (WCC) registry. Similar to sex offender registries, this registry provides demographic information to the public. Utah’s law includes convicted offenders of second-degree felonies for a variety of non-violent, financial crimes, including securities fraud, insurance fraud and theft by deception (H.B. 378, 2015). The purpose of this paper is to examine the perceptions of this new registry. Design/methodology/approach A survey was built in 2016 to better understand the perceptions of said WCC registry. This paper considers the relationships between demographic variables, fear of crime and support for Utah’s WCC registry using data from over 968 university students in Utah. Findings The authors find strong support for the registry, with 76% of the sample supporting its implementation. Only one variable, social political affiliation, was significant. Those who defined themselves as social strong liberals were more likely to select somewhat support rather than definitely support the registry. Originality/value This is the first paper that we know of to examine support for a WCC registry.

Auditors’ Liability for Failure to Detect Fraud: Lessons Learned from Recent American Case Law

Auditors are occasionally sued for their failure to detect fraud in the client firm during an audit. These lawsuits are typically grounded in professional negligence, negligent misrepresentation, fraud, aiding and abetting fraud, or federal securities fraud. The PCAOB recently promulgated AS 2401, “Consideration of Fraud in a Financial Statement Audit,” which contains fraud-related Generally Accepted Auditing Standards (GAAS) applicable to audits of publicly-traded entities. An auditor’s failure to comply with GAAS may be evidence of professional negligence. U.S. states are divided as to whether an auditor’s averment of compliance with GAAS in an audit report is a statement of opinion or a statement of fact. An auditor’s failure to investigate evidence indicating potential fraud is one factor used to determine an auditor’s legal liability. An auditor may be able to use the doctrine of in pari delicto as a defense if the plaintiff is also a wrongdoer.