Securities Industry Commentator by Bill Singer Esq

October 28, 2019

featured in today's Securities Industry Commentator
Jeffrey Borer, 59, pled guilty in the United States District Court for the District of Massachusetts to to one count of conspiracy to make false statements to a federally insured financial institution and one count of false statements to a federally insured financial institution. Borer was sentenced to 10 months in prison plus four years of supervised release;  and he was ordered to pay $189,000 in restitution and $189,000 in forfeiture. In February 2019, Borer pleaded guilty Previously, Borer's sister pled guilty to these same charges and is awaiting sentencing. As alleged in part in the DOJ Release:

In August 2011, Borer and another person owed Wells Fargo Bank approximately $1.32 million in outstanding loans. In March 2012, Borer's sister, who was acting as their bookkeeper, received approximately $1.1 million, which related to a judgment from a Honduran court, in her Massachusetts bank account. The share of these funds belonging to Borer and the other person was $486,000. A few days later, Borer sent an e-mail to his sister to "keep [the] bulk" of their funds in her account because "Wells Fargo might be conducting an asset search on us to try and recover on the judgments. Just transfer what is needed to pay bills as they arrive." Borer's sister distributed their funds from her account as he requested.

On or about May 24, 2012, Borer's sister prepared a false personal financial statement for Borer, stating that he and the other person only had $4,200 of cash in the bank. Borer provided the statement to Wells Fargo, which relied upon it to negotiate their debt. On Oct. 31, 2012, Borer executed a settlement agreement with Wells Fargo, in which the bank agreed to forgive Borer's personal obligations in exchange for a payment of only $50,000. Wells Fargo would not have settled for $50,000 had it known that Borer and the other individual had received $486,000 in cash from the Honduran judgment.
It's said that speed kills. On Wall Street, speed supposedly gives you an edge. The faster you get data, the better informed your trades. The faster you enter your trades, the better your execution. The need for speed permeates the markets, and there are companies that sell you speed. Of course, the faster you go, the more apt you are to make mistakes -- which often prompts lots of lawsuits and lawyers, which, go figure, slows everything down to a crawl. See how this all came together in a recent lawsuit.

SE(C) habla Espanol? In the Matter of Christopher M. Gibson (SEC Order on Respondent's Exhibit, Admin. Proc. Rul. Rel. No. 6699; Admin. Proc. Rile No. 3-17184)
SEC Administrative Law Judge James E. Grimes discovered among Respondent Gibson's exhibits that one was an apartment contract written in Spanish. In response to that circumstance, the ALJ ordered the parties to confer and submit a joint proposal outlining how they "wish to proceed with regard" to said contract. In deliberating upon the circumstance, the ALJ noted in part that [Ed; footnotes 1-3 omitted]:

Although the Securities and Exchange Commission's Rules of Practice do not address the admissibility of foreign-language material, the Commission has held that "the party proposing the admission of a foreign-language document into evidence must provide a verbatim translation by a qualified interpreter," observing that this "common-sense requirement is essential to safeguard the ability of the Commission to give meaningful review." The Commission has applied this requirement in other contexts as well. For example, regulations under the Securities Exchange Act of 1934 require that all filings under the Act "be in the English language" or the "party must submit instead a fair and accurate English translation of the entire" document, except that a summary of the foreign language document may suffice in some circumstances. Additionally, federal courts have held that "[i]t is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English."4
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Footnote 4:  United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002). See also id. at 6 n.4 (noting the "well-settled rule that parties are required to translate all foreign language documents into English" according to Puerto Rico court rules); Krasnopivtsev v. Ashcroft, 382 F.3d 832, 838 (8th Cir. 2004) (in an immigration proceeding, copy of passport was properly excluded from evidence-per federal regulation-where no English translation or certification was offered); United States v. One 1988 Chevrolet Cheyenne HalfTon Pickup Truck, 357 F. Supp. 2d 1321, 1329 (S.D. Ala. 2005) (requiring a party to provide an English translation of a Spanish exhibit if it wished for it to be considered). But see Jazz Photo Corp. v. United States, 353 F. Supp. 2d 1327, 1360 (Ct. Int'l Trade 2004) ("That some of the documents contained within the business records are written in a foreign language . . . does not defeat admissibility but instead affects only the probative value of such documents."), aff'd, 439 F.3d 1344 (Fed. Cir. 2006).