Securities Fraud, Misrepresentation and Negligent Supervision Lawyer, Russell L. Forkey, Esq.

October, 2011:

The Securities and Exchange Commission (SEC) recently charged multinational banking conglomerate Banco Espirito Santo S.A. (BES) with violations of the broker-dealer and investment adviser registration provisions and the securities transaction registration provisions of the federal securities laws.

The SEC’s enforcement action finds that Lisbon, Portugal-based BES offered brokerage services and investment advice between 2004 and 2009 to approximately 3,800 U.S.-resident customers and clients who were primarily Portuguese immigrants. However, during this time, BES was not registered with the SEC as a broker-dealer or investment adviser, and it offered and sold securities to its U.S. customers and clients without the intermediation of a registered broker-dealer. None of these securities transactions was registered and many of the securities offerings did not qualify for an exemption from registration.

BES agreed to settle the SEC’s charges and pay nearly $7 million in disgorgement, prejudgment interest and penalties. In determining to accept BES’s offer to settle, the SEC considered remedial acts promptly undertaken by BES and its cooperation with SEC staff.

The SEC’s order instituting administrative proceedings against BES describes the various ways that the bank offered and sold securities and provided brokerage and advisory services to its U.S. customers and clients. BES used its Portugal-based Departmento de Marketing de Comunicacao & Estudo do Consumidor (Department of Marketing, Communications, and Consumer Research) to mail U.S. residents marketing materials. A customer service call center operated by a third party and located in Portugal (known as the ES Contact Center) employed individuals who were dedicated to servicing BES’s U.S. customers and offered such U.S. customers various financial products. BES also used a state-licensed money transmission service named Espirito Santo e commercial Lisbona Inc. with offices in Connecticut, New Jersey, and Rhode Island. BES also had U.S.-dedicated International Private Banking relationship managers who visited the U.S. approximately twice a year to meet with clients and serviced U.S. clients from Portugal.

The SEC’s order finds that by acting as an unregistered broker-dealer and investment adviser to U.S. customers and clients, BES willfully violated Section 15(a) of the Securities Exchange Act of 1934, and Section 203(a) of the Investment Advisers Act of 1940. According to the SEC’s order, BES also willfully violated Sections 5(a) and 5(c) of the Securities Act of 1933 by offering and selling securities in the U.S. without registration and without an applicable exemption from registration.

Without admitting or denying the SEC’s findings, BES has agreed to cease and desist from committing or causing any violations of Sections 5(a) and 5(c) of the Securities Act, Section 15(a) of the Exchange Act, and Section 203(a) of the Advisers Act, and to pay nearly $7 million in disgorgement, prejudgment interest and penalties. BES also has agreed to an undertaking that requires it to pay a certain minimum rate of interest to its U.S. customers and clients on securities purchased through BES, and to make whole each of its U.S. customers and clients for any realized or unrealized losses with respect to any securities purchased through BES.

If you would like to see a copy of the administrative order, please follow the highlighted link.