Historic Settlement Requires Payments of Penalties of $487.5 Million, Disgorgement of $387.5 Million, Payments of $432.5 Million to Fund Independent Research, and Payments of $80 Million to Fund Investor Education And Mandates Sweeping Structural Reforms
Washington, DC and New York, (Apr. 28, 2003) — North American Securities Administrators Association President Christine Bruenn, Securities and Exchange Commission Chairman William H. Donaldson, New York Attorney General Eliot Spitzer, NASD Chairman and CEO Robert Glauber, New York Stock Exchange Chairman and CEO Dick Grasso, announced today that enforcement actions against ten of the nation’s top investment firms have been completed, thereby finalizing the global settlement in principle reached and announced by regulators last December. That settlement followed joint investigations by the regulators of allegations of undue influence of investment banking interests on securities research at brokerage firms, and the enforcement actions announced today track the provisions of the December global settlement in principle.
The ten firms against which enforcement actions are being announced today are:
- Bear, Stearns & Co. Inc. (Bear Stearns)
- Credit Suisse First Boston LLC (CSFB)
- Goldman, Sachs & Co. (Goldman)
- Lehman Brothers Inc. (Lehman)
- J.P. Morgan Securities Inc. (J.P. Morgan)
- Merrill Lynch, Pierce, Fenner & Smith, Incorporated (Merrill Lynch)
- Morgan Stanley & Co. Incorporated (Morgan Stanley)
- Citigroup Global Markets Inc. f/k/a Salomon Smith Barney Inc. (SSB)
- UBS Warburg LLC (UBS Warburg)
- U.S. Bancorp Piper Jaffray Inc. (Piper Jaffray)
Penalties, Disgorgement and Funds for Independent Research and Investor Education
Pursuant to the enforcement actions, the ten firms will pay a total of $875 million in penalties and disgorgement, consisting of $387.5 million in disgorgement and $487.5 million in penalties (which includes Merrill Lynch’s previous payment of $100 million in connection with its prior settlement with the states relating to research analyst conflicts of interest). Under the settlement agreements, half of the $775 million payment by the firms other than Merrill Lynch will be paid in resolution of actions brought by the SEC, NYSE and NASD, and will be put into a fund to benefit customers of the firms. The remainder of the funds will be paid to the states. In addition, the firms will make payments totaling $432.5 million to fund independent research, and payments of $80 million from seven of the firms will fund and promote investor education. The total of all payments is roughly $1.4 billion.
Under the terms of the settlement, the firms will not seek reimbursement or indemnification for any penalties that they pay. In addition, the firms will not seek a tax deduction or tax credit with regard to any federal, state or local tax for any penalty amounts that they pay under the settlement. Attached is a list of how much each firm is paying pursuant to the settlement. The individual penalties include some of the highest ever imposed in civil enforcement actions under the securities laws.
Summary of the Enforcement Actions
In addition to the monetary payments, the firms are also required to comply with significant requirements that dramatically reform their future practices, including separating the research and investment banking departments at the firms, how research is reviewed and supervised, and making independent research available to investors. The changes that the firms will be required to make are discussed below.
The enforcement actions allege that, from approximately mid-1999 through mid-2001 or later, all of the firms engaged in acts and practices that created or maintained inappropriate influence by investment banking over research analysts, thereby imposing conflicts of interest on research analysts that the firms failed to manage in an adequate or appropriate manner. In addition, the regulators found supervisory deficiencies at every firm. The enforcement actions, the allegations of which were neither admitted nor denied by the firms, also included additional charges:
- CSFB, Merrill Lynch and SSB issued fraudulent research reports in violation of Section 15(c) of the Securities Exchange Act of 1934 as well as various state statutes;
- Bear Stearns, CSFB, Goldman, Lehman, Merrill Lynch, Piper Jaffray, SSB and UBS Warburg issued research reports that were not based on principles of fair dealing and good faith and did not provide a sound basis for evaluating facts, contained exaggerated or unwarranted claims about the covered companies, and/or contained opinions for which there were no reasonable bases in violation of NYSE Rules 401, 472 and 476(a)(6), and NASD Rules 2110 and 2210 as well as state ethics statutes;
- UBS Warburg and Piper Jaffray received payments for research without disclosing such payments in violation of Section 17(b) of the Securities Act of 1933 as well as NYSE Rules 476(a)(6), 401 and 472 and NASD Rules 2210 and 2110. Those two firms, as well as Bear Stearns, J.P. Morgan and Morgan Stanley, made undisclosed payments for research in violation of NYSE Rules 476(a)(6), 401 and 472 and NASD Rules 2210 and 2110 and state statutes; and
- CSFB and SSB engaged in inappropriate spinning of “hot” Initial Public Offering (IPO)
allocations in violation of SRO rules requiring adherence to high business standards and just and equitable principles of trade, and the firms’ books and records relating to certain transactions violated the broker-dealer record-keeping provisions of Section 17(a) of the Securities Exchange Act of 1934 and SRO rules (NYSE Rule 440 and NASD Rule 3110).
Under the terms of the settlement, an injunction will be entered against each of the firms, enjoining it from violating the statutes and rules that it is alleged to have violated.
Today’s enforcement actions will also reform industry practices regarding the relationship between investment banking and research and will bolster the integrity of equity research. Among other significant reforms included in these actions are the following:
- To ensure that stock recommendations are not tainted by efforts to obtain investment banking fees, research analysts will be insulated from investment banking pressure. The firms will be required to sever the links between research and investment banking, including prohibiting analysts from receiving compensation for investment banking activities, and prohibiting analysts’ involvement in investment banking “pitches” and “roadshows.” Among the more important reforms:
- The firms will physically separate their research and investment banking departments to prevent the flow of information between the two groups.
- The firms’ senior management will determine the research department’s budget without input from investment banking and without regard to specific revenues derived from investment banking.
- Research analysts’ compensation may not be based, directly or indirectly, on investment banking revenues or input from investment banking personnel, and investment bankers will have no role in evaluating analysts’ job performance.
- Research management will make all company-specific decisions to terminate coverage, and investment bankers will have no role in company-specific coverage decisions.
- Research analysts will be prohibited from participating in efforts to solicit investment banking business, including pitches and roadshows. During the offering period for an investment banking transaction, research analysts may not participate in roadshows or other efforts to market the transaction.
o The firms will create and enforce firewalls restricting interaction between investment banking and research except in specifically designated circumstances. - To ensure that individual investors get access to objective investment advice, the firms will be obligated to furnish independent research. For a five-year period, each of the firms will be required to contract with no fewer than three independent research firms that will make available independent research to the firm’s customers. An independent consultant for each firm will have final authority to procure independent research.
- To enable investors to evaluate and compare the performance of analysts, research analysts’ historical ratings will be disclosed. Each firm will make its analysts’ historical ratings and price target forecasts publicly available.
Further, seven of the firms will collectively pay $80 million for investor education. The SEC, NYSE and NASD have authorized that $52.5 million of these funds be put into an Investor Education Fund that will develop and support programs designed to equip investors with the knowledge and skills necessary to make informed decisions. The remaining $27.5 million will be paid to state securities regulators and will be used by them for investor education purposes.
In addition to the other restrictions and requirements imposed by the enforcement actions, the ten firms have collectively entered into a voluntary agreement restricting allocations of securities in hot IPOs – offerings that begin trading in the aftermarket at a premium – to certain company executive officers and directors, a practice known as “spinning.” This will promote fairness in the allocation of IPO shares and prevent firms from using these shares to attract investment banking business.
In 2001 and early 2002, Congress and the SEC were examining the issue of analyst conflicts of interest. In April of 2002 The New York Attorney General’s office announced an enforcement action against Merrill Lynch based on internal emails it uncovered that showed analysts were pressured to issue bullish stock recommendations to please investment banking clients. Soon afterwards, regulators from the states, industry self-regulatory organizations and the SEC formed a joint task force to investigate Wall Street’s leading investment banks. In December regulators announced an agreement in principle with the firms. Today’s announcement marks the finalization of that agreement.
Special thanks go out to all the state investigators and attorneys who made this possible: Amy Kopleton, Anthony Taggart, Beth Golden, Bruce Topman, Bryan Lantagne, Dean Soma, Deborah Bortner, Denise V. Crawford, Eric Dinallo, Eric Wilder, Franklin Widmann, Fred Sturdevant, George Robison, Jim Nelson, Jim Nix, Jim Openshaw, Jim Ropp, Jo Dunlap, Joel Sauer, Joey Brady, Joseph Borg, Kimberly Gauthier, Marc Celello, Mark Sendrow, Matt Neubert, Matthew Nestor, Mike Atleson, Mike Gunst, Phil Dukes, Phil Hofling, Ralph Lambiase, Rex Staples, Rick Barry, Ricky Locklar, Roger Waldman, Susan Anderson, Tanya Solov, Toni Clithero, Wayne Klein and William Kenefick.
Contact:
Jerry Munk (NASAA)
(202) 737-0900
John Heine (SEC)
(202) 942-0022
Juanita Scarlett (NYAG)
(212) 416-8060
Nancy Condon (NASD)
(202) 728-8379
Christiaan Brakman (NYSE)
(212) 656-2094
