Saturday, December 06, 2008
Lehman Brothers minibond investors plan to sue the minibond trustee, US-incorporated HSBC (0005), after Hong Kong banks postponed buying back the structured products.
Peter Chan Kwong-yue, chairman of investors action group Allied Victims of Lehman Products, said the action group has been approached by US legal firm offering to represent minibond investors in Hong Kong filing the lawsuit.
Meanwhile, the Hong Kong Monetary Authority has received 19,196 complaints concerning minibonds as at Thurday. HKMA today referred 21 complaints of alleged misconduct tied to Lehman Brothers financial products to the Securities and Futures Commission for possible action.
6 Dec 2008
Dennis Eng and Albert Wong
A US class-action lawsuit by local investors in soured minibonds is expected to start by the end of next month, paving the way for a protracted legal battle that could drag on for two years, a spokesman for the investors said.
“We really don’t want to do this but we have no other option. We’re not going to give up,” Peter Chan Kwong-yue, chairman of investor action group Alliance of Lehman Brothers Victims, said. Investors bought minibonds, issued or guaranteed by Lehman Brothers, from one or more of 16 local banks.
The move is seen as a last-ditch effort by angry investors to recover almost HK$13 billion from the bankrupt Wall Street giant after a proposed buy-back of the minibonds suffered a setback. Secretary for Financial
Services and the Treasury Chan Ka-keung said a legal challenge by lawyers representing Lehman’s liquidators would inevitably delay the buy-back timetable.
Details of the buy-back were supposed to be announced last week. “I think what the liquidators were doing was to ask the trustee to stop any actions regarding the collaterals,” he said, referring to the minibonds’ underlying assets.
Minibonds consist of high-risk, credit-linked derivatives that are marketed as a proxy investment in well-known companies.
“This, of course, will throw some challenges into the process of the buy-back, and the banks have to address these before they can proceed.”
Hong Kong Association of Banks chairman He Guangbei said the priority now was to try to clarify the legality of the buy-back and resolve the legal challenge. The buy-back was conceived under British law but the trustee, HSBC Bank USA, was incorporated under United States law, complicating the matter.
“There is a conflict in legal opinion from the US and UK,” Mr He said. “ According to UK law, there’s certainly a priority in terms of payments but there is this challenge from the US bankruptcy law. Which one is going to stand is very hard to say.”
The government said it had considered the legal risks when it proposed the buy-back to banks in October. It said the taskforce formed by the banks on the issue had clearly stated it was seeking legal advice and “we hope [it] will continue to follow up with the trustees of the Lehman minibonds in taking necessary actions to get back the market value of the minibonds”.
The class-action lawsuit will automatically cover the roughly 33,000 Lehman minibond investors in Hong Kong although they can opt out. US lawyers contacted Peter Chan as well as the Democratic Party about the possibility of a US class-action lawsuit. An agreement is still pending.
Peter Chan declined to identify the US lawyers but said they were involved in helping investors affected by the collapse of energy trader Enron in late 2001. Law firm Coughlin Stoia Geller Rudman & Robbins helped Enron investors settle for US$ 7.2 billion and negotiated a record US$688 million in fees.
The prospect of a drawn-out lawsuit is increasingly likely after banking sector legislator David Li Kwokpo, the chairman of Bank of East Asia, said lawyers advised against the buyback.
But Democratic Party legislator James To Kun-sun said he hoped the government would not give up on the buy-back proposal.
Since October 17, the Hong Kong Monetary Authority has referred 207 Lehman-related cases to the Securities and Futures Commission.
THE Monetary Authority of Singapore (MAS) has enlisted senior counsel Davinder Singh to advise it on the latest legal issues faced by the ill-fated Minibonds structured notes.
The central bank said last night that it had called on Mr Singh, the chief executive of Drew & Napier, "to advise MAS on the implications of the legal issues raised by the lawyers acting in the Chapter 11 proceedings for Lehman Brothers".
This follows Tuesday's warning by the Minibonds trustee – HSBC Institutional Trust Services Singapore – that the unwinding of the notes may be challenged by lawyers involved in bankruptcy proceedings over Lehman in the United States.
Minibonds series 1 and 5 to 10 of the notes have defaulted and will be unwound by three appointed receivers of the defaulted notes from PricewaterhouseCoopers (PwC) Singapore.
On Tuesday, the receivers said investors might have to wait at least two years or more for any resolution, given the legal complexities introduced by the notice from Lehman's lawyers.
MAS last month also called on Deloitte & Touche Corporate Finance to advise the central bank on the
Minibonds fiasco. Deloitte & Touche's services have also now been extended.
While the MAS has Mr Singh and the resources of Deloitte & Touche, the receivers from PwC are separately being advised by their own legal counsel.
Last night, the MAS also reiterated the trustee and receivers' warning that it may not be possible for any resolution to be reached within a short span of time.
"Nevertheless, MAS expects the trustee and receivers to pursue all appropriate avenues to protect noteholders' interests," it added.
About 8,000 retail investors sank $375 million in Minibonds – only to see Lehman collapse on Sept 15.
Three other independent parties have been roped in by the MAS to ensure that the plight of these investors is not ignored amid potential cross-border legal battles.
On Oct 2, Mr Gerard Ee, Mr Hwang Soo Jin and Mr Law Song Keng were appointed by distributors of structured products such as Minibonds, Merrill Lynch Jubilee Series 3LinkEarner Notes and DBS High Notes 5 to oversee their complaints handling processes.
All three said they were working closely with the financial institutions to ensure fair and prompt resolution of complaints by investors.
I hope that MAS will also ask Mr. Davinder Singh to see if there were any wrong doing committed by Lehman Brothers in the creation of these products. Did they breach the requirements of the Securities & Futures Act to provide relevant information on the product for the investors to make a proper assessment, or were any material information omitted?
Auction-rate securities are preferred shares or debt instruments with rates that reset regularly, usually every week, in auctions overseen by the brokerage firms that originally sold them. They have long-term maturities or, in the case of the preferred shares, no maturity dates at all. The securities are issued by municipalities, student-loan companies, closed-end funds and tax-exempt institutions like hospitals and museums.
Brokers that peddled these securities told buyers that they were cash equivalents, easy to get out of and relatively safe. But the promises of liquidity turned false last February when buyers for the securities disappeared and the auctions began failing. The $300 billion market for auction-rates ground to a halt, entrapping thousands of investors both large and small, sophisticated and novice.
Officials in Massachusetts, New York and other states came to the rescue earlier this year, striking settlements with some of the bigger brokerage firms in the arena.
But while some of the larger firms agreed to redeem the securities, not everyone is covered by those agreements. A group of people, size unknown, has fallen through the cracks in the settlements, and for several quirky reasons. They remain frozen in the securities and understandably upset.
Thursday, December 04, 2008
To revive the housing market, it is reducing taxes on housing transactions and unwinding property- tightening measures introduced earlier to counter speculation. For first-time home buyers, the minimum down payment has been reduced from 30 per cent to 20 per cent, and banks are allowed to offer interest rates as low as 70 per cent of the standard lending rates for such mortgages. The demand for residential housing remains strong, and China's construction companies are capable of meeting it.
Personal consumption in China should be encouraged; it is only 35 per cent of gross domestic product (GDP), compared with America's 70 per cent. Beijing is introducing rural land reforms, increasing government funding for low-price housing and basic medical services, and reducing interest rates in order to boost domestic consumption. China is determined to grow by at least 8 per cent, to create enough jobs to sidestep large-scale unemployment and social unrest.
1. About 200 notebolders have appointed a specific lawyer to act in the class action. I am meeting this lawyer to discuss his approach and the possibility of involving an experienced senior lawyer to fight the case in the high court.
2. A separate group of noteholders have approached several lawyers. They advised that a "test case" be used to take a case in high court. This group is likely to recommend a lawyer and to present the proposal to the noteholders in January 2009.
3. I have approached two senior lawyers to study the possible defects in the prospectus and pricing statement and to obtain an opinion from a Queens Counsel from the UK. A recommendation is likely to be made in January.
I hope that the investors will wait until February to decide on the strategy for the class action. It may be possible for two or three class actions to be pursued separately for the differtent types of notes.
4 Dec 2008
Yvonne Tsui, Eva Wu and Dennis Eng
A fisherman is suing the Bank of China for the return of HK$800,000 he invested with Lehman Brothers, alleging he was deceived because he is illiterate.
Lai Kam-fook, who filed a writ in the District Court on Tuesday, is taking legal action after he was told in September that his money was affected by the collapse of the American bank.
The writ alleges he and his wife were advised by a staff member at the bank’s Aberdeen branch in August 2004 to make a risk-free, five-year deposit with a higher interest rate. It says he had deposited HK$800,000.
It alleges Mr Lai had never received or read any documentation from the bank.
“Because the staff member, surnamed Leung, told me it was a fiveyear deposit, I believed her. I did not read anything. It is useless to have read anything because I am illiterate anyway,” Mr Lai stated in the writ.
“To conclude, the total sum I had invested is HK$800,000. My allegation is: the bank cheated me because I am illiterate.”
However, HSBC Hong Kong received a cease-and-desist order last week from Weil, Gotshal & Manges, Lehman’s bankruptcy counsel. This notice means the minibonds cannot be liquidated, which would be necessary to go ahead with a buy-back. Democrat Kam Nai-wai, however, said the best option remained the banks buying back the bonds.
As an alternative, six lawmakers suggested that a redemption fund of HK$20 billion, including HK$10 billion from the government, be established.
However, the Secretary for Financial Services and the Treasury, Chan Ka-keung, said public funds should not be used to compensate investors’ losses.
Minibonds are not corporate bonds, but consist of high-risk, credit-linked derivatives that were marketed as proxy investments in well-known companies.
I work with a handful of volunteers to help the noteholders (i.e. the "investors" who bought the credit linked notes) to get a fair compensation. These volunteers have to work on their full time job, and find some free time to devote to this task. Our request for information and meetings from the financial insitutions and with the regulator are usually ignored.
In spite of the great obstacles, we will persist in our fight for justice and fairness. I hope that, one day, our efforts will be rewarded.
By Jame DiBiasio 4 December 2008
CEO Martin Wheatley explains the Hong Kong securities regulator’s strategy for dealing with the Lehman Minibond fallout.
Martin Wheatley, CEO of the Hong Kong Securities and Futures Commission, says the SFC and other securities regulators around the world are trying to understand how so many retail investors became exposed to complex financial products, to the extent that blow-ups of Icelandic banks could cause serious losses to moms and pops in Hong Kong.
He spoke yesterday at a conference organised by AsianInvestor on the future of fund management, on a panel session regarding regulation that also included a fund management regulatory lobbyist and a tax specialist. James Walker, a partner at Clifford Chance, moderated the discussion.
Wheatley says investors around the world have lost money on complex structured products backed by Lehman Brothers (of which the Minibonds are a branded product line) or through other credit-derivative exposures. Since the investment bank went under in September, the entire spectrum of financial products has been tarnished.
This has led the SFC to realise the extent to which investors have been sold such complex instruments; and the extent to which selling agents didn’t understand the risks in these products. Things like counterparty and credit risks must be explained, he concludes.
Right now the SFC is investigating the process that has taken the industry to this point, to understand whether issuers and distributors are guilty of mis-selling, and whether they are competent at understanding and explaining the risks of such products.
Second, the SFC is trying to determine what the financial-products regime must look like. This includes macro structural issues, such as which government agencies are responsible for approving and overseeing such products or sales; as well as micro ideas such as a cooling-off period for prospective buyers, or the process used by sales channels to appraise product suitability.
The SFC is consulting with other securities regulators to develop a response to issues such as short selling, regulating credit-default swaps and oversight of unregulated entities. But market players recognise the difficulty in getting a standard response.
Catherine Simmons, vice-president for regulatory and government relations at State Street Bank and Trust, says local political agendas will shape each market’s response.
Asian governments lack a centralised policy coordination platform, let alone a single monetary policy structure, unlike Europe. Its financial systems vary. So while they all face the issue of fallout from investor exposure to complex credit products, their responses are not uniform.
For example, many regional governments have guaranteed bank deposits, but these measures vary by time horizon, and what assets are covered – those of foreign depositors or just locals; individuals or corporations; local currency or foreign exchange; and whether such protection incurs a fee.
“Businesses must continue to monitor regulatory change – and to engage with regulators,” Simmons says.
Accounting issues are also in flux, particularly as more investors and fund managers question the wisdom of marking assets to market. But Florence Yip, partner for tax services at PricewaterhouseCooper, says the Lehman bankruptcy will accelerate global moves to accept International Financial Reporting Standards. This will impact tax laws, which in turn will affect revenues on investments and fund products.
“Fund management companies need to understand the impact of uncertainty in tax rules on their businesses,” she says.
The SFC will submit its ideas to the Hong Kong government by the end of the year, and the financial secretary’s office is expected to recommend specific actions by mid-2009. “I hope by that time the finance industry has returned to something close to normal,” Wheatley says.
Wheatley’s overriding philosophy is to avoid knee-jerk reactions, mainly by focusing on the necessary information to be disclosed to investors, rather than micromanaging questions of product suitability. “Markets hate sudden change,” he says, citing moves by other governments to ban short selling. “We’ve tried to stay on an even keel.”
He says the focus of the SFC’s investigation will be on disclosure of structured products, particularly when they offer capital protection. Product structure determines under which regulator it is manufactured and sold, and the SFC is aware of the problems of this uneven playing field. It is also aware that current standards of disclosure have created documentation so dense that clients don’t bother to read it, and are overly reliant on tips from distributors.
Wednesday, December 03, 2008
3 December 2008
About 50 investors who bought Lehman Brothers-related products through Citibank marched to the American consulate yesterday to request an investigation into alleged mis-selling by the American bank.
The investors, who lost money after Lehman collapsed, petitioned the consulate, asking the American government to investigate Citibank's sales procedures.
"The US government recently injected so much money into Citi and has become the bank's key shareholder. Therefore, it should look into the matter," said Hui Shun-ngai, a representative of the group. The American government last week guaranteed US$306 billion of Citigroup's troubled assets and extended it US$20 billion in cash.
"The US government must also inquire into Citibank's authorised representatives responsible for the incident, including the tolerance of Citibank's mis-selling practices and lack of governance resulting in financial losses to Citibank's victims," the petition said.
Mr Hui said each protester had bought at least HK$500,000 in Lehman Brothers credit-linked derivatives from Citibank and they had not been informed of the high risk.
Meanwhile, 10 more investors filed lawsuits with the Small Claims Tribunal against six banks yesterday: Bank of China, Bank of Communications, Bank of East Asia, DBS, Wing Hang and Nanyang Commercial Bank. Their cases will be heard on January 29.
An outline of their approach is stated here:
I have listed Providend as they agreed to offer their service at a modest rate, and also to provide an estimate in advance. I do not have any financial interest in Providend.
There are a few financial advisory firms willing to offer their service for a fee, but their charges are rather high. If they are willing to operate on my preferred fee structure, I shall list them as well.
Our hopes are dashed by the most recent announcement on the minibond issue. I guess most of the investors are devastated now.
Unfortunately, there is no way out now except for the class action. I believe that is the most effective and most direct way in approaching this issue. We consumers need to know the truth, whatever the outcome is. Please lead us into this!
Please read my blog about the progress of the class action. It will take some time to get organised. I expect to give a recommendation towards end January on the course of action to take.
Social Justice and Fairness
First World Country in the 21st Century
How are our poor faring?
Tan Kin Lian
1. Our society should be more egalitarian
2, Elected leaders should represent the people
Leong Sze Hian:
1. HDB – how the poor are faring and affected by HDB policies
1. Distributive justice; especially about how our education system does not equip people to be self-reliant, but to be workers.
1. Tan Kin Lian – Update on investors' situation (if any)
2. Andrew Loh – Update on town councils' replies to residents' query
Contributed by Ho Cheow Seng
Contributed by Ho Cheow Seng
Tuesday, December 02, 2008
Please post this story. Thanks.
DAVID MARSHALL SAID IN 1994
I've got nothing against money. I'd like to have money myself! I'd like to have a house and a garden and dogs and a car and a chauffeur but, look, I've got a flat. I've got a swimming pool attached to the flat. I've not even got a car but I use taxis. I have a dignified way of life without being wealthy.
I don't see the necessity of owning a Mercedes-Benz and a swimming pool and a couple of mistresses. I think we've got our values all wrong.
You know $96,000 a month for a Prime Minister and $60,000 a month for a minister. What the hell do you do with all that money? You can't eat it! What do you do with it? Your children don't need all that money.
My children have had the best of education. In fact, I'm very proud of them. One of them is a senior registrar to two major hospitals in Oxford. Another of them is a consultant in European law to the Securities and Investment Board in the United Kingdom. They've had their education. There are no complaints.
I never earned $60,000 a month or $90,000 a month. When I was Chief Minister, I earned $8,000 a month. Look, what is happening today is we are encouraged to and are becoming worshippers of the Golden Calf.
We have lost sight of the joy and excitement of public service, helping our fellow men. The joy and excitement of seeking and understanding of the joy of the miracle of the living the duty and the grandeur. We have lost taste for heroic action in the service of our people.
We have become good bourgeois seeking comfort, security. It's like seeking a crystal coffin and being fed by intravenous injections through pipes in the crystal coffin; crystal coffins stuck with certificates of your pragmatic abilities.
First of all, I would like to thank you for helping all the helpless victims to voice up. Till now, no MPs have really initiated to try to help. I believe majority of the MPs also knew that this is a clear cut misled case but dare not bring up in the Parliament because they afraid that their rice bowl may get broken.
“Yes” man is “Safe” man. Do we want to have such leaders? I was at the Speakers corner yesterday. I spoke to some of the victims who had seen their MPs. They told me that they were again lectured by their MPs “you went in with your eyes open”.
My dear MPs and Minister, you are leaders with high profile. Please go through the brochure and prospectus and honestly tell the public whether you understand such complicated product with hidden toxic ingredients for every item. Oh! Sorry, maybe, you don’t have to read it since you are rich enough to get your lawyer to go through for you.
Please also do a survey. Get the graduates who have never invested to look at the brochure and prospectus whether they understand every single item. I suggest that our government should also get the RC members to go through and get them to feedback whether if they understand.
All the while, I have full faith in our Singapore government. Just like the China milk products case where it contains melamine that killed many lives, immediate action was taken. However, for such case, our government may think that immediate action is not required because it will not cause live and death and can take their time to resolve the issue. They have oversight the consequences and seriousness.
Many Singaporeans were already suffering from depression and mental illnesses due to sleepless night as all their life (coffin) saving is already gone. Mind them, waiting to die is worse then immediate death.
Even the financial experts already said the products are too complicated and it should not be sold. The toxins are all hidden in the ingredients. I believe MAS should also agree with it now. To my conclusion, I believe MAS is also under pressure and have not guts to admit their overlooking and allowing of such complicated toxic product to be sold in by the FIs in Singapore.
Monday, December 01, 2008
Hi Kin Lian,
I'm a former lawyer from Singapore now residing in Brussels. I have closely followed the activities with regards to the Lehman Brothers saga in Singapore. I have attached an article from a news site in Belgium with regards to this matter to demonstrate how this matter is being handled over here. Keep up the good work.
Angry clients of Citibank and Deutsche Bank demonstrated in Brussels this afternoon. They first marched to the headquarters of Deutsche Bank in Brussels, and then to Citibank. The demonstrators are demanding compensation for the money they lost due to the bankruptcy of the American Lehman Brothers.
According to the Citibank and Deutsche Bank clients they had not been aware that there was a risk for their money as well when Lehman Brothers went bust. Apparently Citibank and Deutsche bank sold investments to their clients that were managed by Lehman Brothers. The clients say they were not informed of the risk. When the American bank went bankrupt, Belgian clients also lost their money. They want Deutsche Bank and Citibank to reimburse their loss in full. The pressure on Deutsche Bank and Citibank is rising especially because a number of other banks who had sold their clients Lehman Brothers investments such as Fortis, Ethias and Swiss Life have guaranteed the capital of their clients. In the meantime Deutsche Bank has said that there will be compensation for clients whose portfolios were composed largely of investments with Lehman Brothers.
A delegation of the demonstrators was received by Economy Minister Vincent Van Quickenborne. His inspection team also suspects deceit. Minister Van Quixkznborne: "Misleading advertising violates legislation on trade practices. The question is whether the people, when they bought these products, if they were properly informed about the possible risks.
There was talk of capital guarantee- 100% and it then it turned out that
1) it was a product that was not from the same bank they bought it from; and
2) afterwards it also turned out to be a bank that was vulnerable to problems."
You have been advising the victims to seek the help of their respective MPs, but this is more suitable for citizens only. I doubt these MPs would bother about PRs/non-citizens when they are so indifferent towards their own citizens. Perhaps the non-citizens could try to seek the help from their respective embassy.
I'm really disappointed with the way X bank is handling the claims, very unfair, indifferent and high handed.
Things would be very different if it happens in M'sia. The press and the MPs, particularly the opposition will be assisting the helpless victims. The Malaysians just like the HK, Thais and Indonesia or even Filipino will fight for their rights and will not allow banks to cheat them of even RM$1 k not to mention S$100k!
Two months have passed and the banks and MAS are still so indifferent and ignore the plight and traumatic experience of the victims who have lost their hard-earned savings. It is sad that there is no compassion shown and instead abuses have been hurled at the helpless victims.
Notwithstanding the indifference shown by the relevant parties concerned and despite criticism and sarcastic remarks, you have out of compassion come out to do the right thing in helping the helpless victims, a true hero indeed.
I notice that some of the victims have lost faith, stamina after the heartless standard rejection letters. Please tell them not to give up and be more resilient and fight for your rights until they do the right thing i.e. compensate the victims their hard-earned savings of which they have been cheated!
I like to tell you about my personal experience concerning the practice of opt-out Sales Tactics.
Recently, I upgraded my mobile hand-phone with a leading local telecommunication provider.
I have been a loyal customer of this provider for more than 12 years and have been upgrading my phones at each regular cycle of 2 years.
This time round, I noticed that since the upgrading I have been receiving a barrage of SMS such as Gaming results, CNA news flash , ringtones etc.
After this recent financial fiasco, of which I am a victim of the MiniBond mis-selling, I am more wiser and call up the Service Provider hotline representative.
I was told these SMS messages form part of the upgrading contractual package and will be charged at $xxx after the 30th day from purchased date, unless I opt-out during this period.
Further, I was told by this representative that the Provider shop sales person has made this fact known to me during the sales. It was not made known to me ! Of course like the MInibond, I was made to sign some documents, which was quit routine like the previous upgrading I had.
I like to draw some parallel in this episode to the MiniBond selling procedure. Sales people did not disclosed all hidden costs and risks to their customer but only emphasis the unique selling point.
Mr Tan, I Fully support your efforts in educating the public and getting the authorities to review and investigate into the current selling procedures of these Institutions. These Institutions have become more profit focus and lose touch with their loyal customers (we placed too much trust in them) over the years.
In the name of efficiency, Institutions seems to heading this path of “Express Sales “ with fine prints embedded in the contract. Some Day our Life may also be opt-out !
I suggest that you bring this matter to the Consumer Association of Singapore , www.case.org.sg. They will be able to act on this matter more effecitively than me.
The form of law which I propose would be as follows: In a state which is desirous of being saved from the greatest of all plagues -- not faction, but rather distraction -- there should exist among the citizens neither extreme poverty nor, again, excessive wealth, for both are productive of great evil . . . Now the legislator should determine what is to be the limit of poverty or of wealth.": Plato (427-347 B.C.):
By 'distraction' Plato means that the 'citizens' are seduced by matters of no real importance so as to lose focus on issues that are crucial to their real well-being.
The government is also not supportive to the investors, even sacrifice the Town Councils $16 millions. Shall we appeal to The President of Singapore?
We conduct another petition which include the age of the investors, the amount invested and also the % of the investment compare to all their saving. To include the age is to let every Singaporeans and especially the government knows that those who are above age of 45 may not have another 20 or 30 years to accumulate the same amount of saving again. The % is to show every Singaporeans and especially the government that how important these amount of money is to us.
The few ten thousands that we have invested, though this maybe some people 1 or 2 months salary or the few hundred thousands that we have invested, though this maybe just a peanut to some people, BUT they are all accumulated by us, cents by cents, over many years of hard work and sweats.
The situation now is seems to be only the top down instruction from MAS/Govt will make FIs to compensate. These CDOs related credit –linked investments amounted to billions, it is definitely very difficult for the FIs to settle the compensation by themselves. (There may be more products bust.)
The MAS should hold some responsibility (approving these products) and thus the government should step in.
I wish to invite volunteers to step forward and lead this project. I need volunteers who are convinced that this is worth the effort.
I will not be able to handle this additional project, as I already have too many things to do.
I heve spoken to several lawyers. They advised that the noteholders have a good case against the issuers and/or distributors on the following grounds:
1) There are possible misrepresentations, omissions and inconsistencies in the prospectus and pricing documents. Under the principle of "contract of adhesion", these inconsistencies will be interpreted against the financial institutions as they provided the legal wordings to the contracts.
2) The documents require more than 1 day to read and understand, even for an educated and financially savvy person. How is it possible for the securities to be sold over the counter to an ordinary layman withon one hour?
3) The actual risks of these securities clearly do not fit the risk profile of the people that are marketed to. This is sufficient grounds for the contracts to be rescinded.
I will be talking to two or three senior lawyers to go through the legal documents and the above arguments. If we find sufficient evidence, we can get the written opionion from a Queens Counsel or other suitable experts. This will strengthen the case and help to get the noteholders to join a class action.
I will find someone to fund the cost of the expert legal opinion, so that the noteholders do not need to wrry about this matter now. If the case proceed, those joining the class action can reimburse this cost.
I am still keen to avoid a costly legal battle and have a negotiated settlement with the financial institutions. I hope that they will come forward to offer a fair compensation to the notebolders, so that this matter does not need to be taken to the courts.
Do you think that the Indian cultural event held on 29 November at Hong Lim Park was arranged to make it difficult for you to use Speaker's Corner?
I do not think so. This type of event probably takes a few months to organise. If anyone is suspicious, perhaps you can check the facts for me.
It appears that Hong Lim Park is not used exclusively for Speaker's Corner. In the future, I will check if there are competing events on Saturdays. I am also considering to move my regular meeting at Speaker's Corner to Wednesday at 6 p.m. There is less likelihood of a clash of events during the weekdays.
Sunday, November 30, 2008
Speech by Tan Kin Lian
1. Investors should see their Member of Parliament
I suggest that you should see your Member of Parliament, together with other investors living in your area. If you aleady saw your MP before, you can see the MP again. This time, ask the MP to do the "right thing" as the leader that represents you. You can ask your MP to ask MAS:
1. What is the outcome of petition #1 which ask MAS to investigate if there were any wrong doings by the financial institutions that created and marketed these credit linked notes? Did these financial institutions breach the Securities and Futures Act and the Financial Advisers Act?
2. How many investors had their cases resolved by the financial institutions? How many cases were rejected by the financial institutions or have made offers that were rejected by the investors? How many cases are still "waiting for decision"? How long does it take for the financial institutions to make their decision?
3. How many complaints have been lodged with FIDREC. How many cases have been decided by FIDREC? How many are still pending? How long does it take for FIDREC to handle these complaints?
It is the duty of the MP to ask these questions on your behalf. Your MP can also raise them in Parliament.
2. Material facts should be disclosed in Prospectus
Investors have been told that they the prospectus contained a warning ‘you could lose all or a substantial part of your investment’ in bold print, on the page 1 or 2”. But what if the prospectus did not disclose material facts?
The New Paper’s Doctor Money wrote on 4 November 2008:
“A feature common to ALL linked notes is that investors never see the charges. They include:
> costs embedded in the initial pricing;
> counter-party returns in the product’s risk/return structure;
> commissions from buying and selling the options, swaps and underlying bonds;
> market-making and surrender fees; and
> annual management fees, including trailer fees kicked back to distributors.
They are deducted directly from the yield. Investors are likely to attribute the low return to market conditions rather than unseen costs.
Most importantly, unit trusts and investment-linked products (ILPs) routinely publish their charges. Linked notes never do.”
You can ask a lawyer whether the failures to disclose the above amounts to a breach of section 243 (1)(a) of the Securities & Futures Act. This section reads, “A prospectus for an offer of securities shall contain all the information that investors and their professional advisers would reasonably require to make an informed assessment of the matters specified in subsection (3).
Doctor Money wrote, “The question of the day is: ‘Should non-disclosure of embedded charges invalidate linked-note sales contracts and require a refund from issuers and distributors?’”
3. Ask for information in writing
The investors had approached the relationship manager who sold the notes to them. The RM was not able to give them a satisfactory answer. These investors then approached me for the answer.
I am not able to give you the answer. I do not have the answers, as there are many series and each series is different from the other series.
You should send the questions in writing (by letter or e-mail) and ask the relationship manager to give you the reply in writing. If you do not get a satisfactory reply, you should lodge a written complaint with MAS. If the RM does not know, it is the RM’s duty to get from the product issuer.
As an investor, you have the right to get relevant information on the product that you were sold. You are also entitled to be informed by the trustee or arranger, whenever they are significant changes that affect your product.
Act to safeguard your interest. Do not accept slipshod answers. Lodge your complaint.
4. Experience with FIDREC
If you have gone through FIDREC, please send the outcome to me, so that your experience can be shared with other investors.
Although you are covered under a confidentiality agreement, it should be all right to give general information – did you accept the adjudication, how many interviews did you attend, how long did it take you to present your case, how long does FIDREC take to give an answer.
This information will be helpful to other investors who are waiting for FIDREC adjudication.
I have asked the media to find out from FIDREC and give an update of the number of cases cleared through FIDREC and the summary of the outcome. I believe that this information is necessary for the public to know.
So far, the replies given were discouraging. Many complaints have been lodged to FIDREC. It takes a long time to settle a case.
5. Mental health concerns during difficult times
I wish to read to you a letter sent by an investor, with the initial FO:
Dear Mr. Tan,
First of all, thank you for all the help and information that you provided in your blog and in Hong Lim Park.
With the recent saga over the structured products and mini-bonds, most of the affected investors are going through emotional stress as well as financial stress.
Sad to say, I am also exposed to one of the products and have to go through emotional “struggle” everyday.
On one side of my mind, I have to stay alert to handle the daily routine, the other side worrying on what will be the outcome of my hard-earned money …
I believe that all investors are affected will be going through the followings : before taking every steps, during the process and while waiting for more info, you have to go through the stressful grinding of you brain (and heart) again and again.
> Complaining to the FIs …..
> Waiting for reply ….
> Going to FiDrec ….
> Waiting for more info from the news ….
> Will I get back my hard-earned money … how much … when …
It is like, going forward, but dragging your feet in a muddy field.
It is like, when you are taking a break, you mind is still spinning.
It is like, when your child gives you a smile, you have to put in extra effort to move your facial muscles to reply his greeting.
It is like, you want to shut down the computer, but the hard disk refuses to stop and keeps spinning.
It is like, you want to sleep, but you are worried about the outcomes.
It is like, you want to sleep, but you are also worried about other investment on hand that may have “toxic ingredients” in them.
BUT don’t know how to check, don’t know whether you should believe you RMs or insurance agents (or friends that you have bought from). Not saying that they are lying but they may not have the knowledge to “detect” the “toxic ingredients”
This list will go on and on and on and on … …
My wife and I are so stressed that we have to seek medical help so that on top of our busy daily routine, we will not neglect our toddler son and of course our health.
This is in fact the main message I would like to get across to all the distressed and worried ones out there. While fighting for what we believe is right, we still have to take good care of ourselves and our loved ones.
6. Class action
The various groups are still talking to several lawyers to find out about their approach towards a class action. They are still not clear about the estimated legal fees and the chance of success.
I am now talking to a few senior lawyers to see if there are any misrepresentations in the prospectus, pricing statements, sales brochures and advertisements.
If necessary, we will arrange for a Queens Council in the UK to give a written opinion. We will find out the cost and how to finance it.
7. Special meeting for next Saturday, 6 December, 5 p.m.
This will be a special day to commemorate the second anniversary of The Online Citizen. I will be speaking at this event. I shall be talking on a matter that is relevant to the investors of the credit linked notes.
If you are free, do come to this special event and give your support.
Tan Kin Lian
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- Why we need to educate the people
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