A Charleston attorney who last week was accused of misleading investors on behalf of a client is denying the allegations and emphasizing that he, unlike his client, has not been charged criminally.
John B. Kern declined to comment on the Securities and Exchange Commission administrative action when it was filed March 19, but had his defense lawyers issue a press release late Friday clarifying his position.
“I categorically deny involvement in any fraud upon investors, and I look forward to the opportunity provided by the SEC to present the true facts,” Kern said in the statement.
Kern also is considering litigation against the client, Craig Berkman, who is a former Oregon state Republican Party chairman and gubernatorial candidate, and at least one of the companies Berkman controlled.
According to Kern’s statement, Berkman “appears to have misled him and the fund’s investors.”
The local lawyer is also thinking about suing “others who are accusing Kern of knowingly misleading investors,” according to the statement. One of Kern’s lawyers, Jay Seibels Jr. said those people could include the investors, investment manager and law firm referred to but not named in the SEC filing.
The SEC claims Berkman, 71, masqueraded as “a sophisticated fund manager who defrauded investors” seeking shares of Facebook, LinkedIn, Groupon and Zynga before their hotly anticipated initial public offerings. Berkman was arrested March 19 on related criminal charges at his home in Florida.
Kern, 49, is not a co-defendant in the criminal case, but he is among Berkman’s co-respondents in administrative proceedings where the SEC alleges he facilitated the investments in Berkman’s companies and then helped conceal the frauds when they began to unravel last year.
Berkman raised more than $13 million from about 120 investors and then misappropriated the money to pay a bankruptcy judgment, other investors and various personal expenses, according to the SEC. The SEC claims Kern, who served as general counsel to the funds, “received approximately $293,000 from the Ventures LLC accounts.”
Seibels denied any implication that investor money was misdirected to Kern, calling the SEC’s wording “at best a half-truth.”
Seibels said Kern billed Berkman’s company or companies “like any business lawyer, by the hour” and wondered why the SEC was “vague about that.”
“I don’t know why they wouldn’t say he was paid hourly rates,” Seibels said Monday.
Seibels didn’t know when Kern was hired by Berkman, but he did confirm Kern has since resigned from the engagement.
Kern must respond to the SEC allegations within 20 days of last week’s filing, and Seibels said Kern’s New York lawyer would do that.
There will be a public hearing within 30 to 60 days of the filing, and the presiding administrative law judge must issue an initial decision within 300 days.
Kern worked and went to law school in Oregon before moving to the Lowcountry where he operates John B. Kern International Law at 180 East Bay St. The SEC said he also has an office in the Republic of San Marino.
The S.C. Supreme Court’s Office for Disciplinary Counsel suspended Kern for 90 days in August 2011 for commingling of a $20,000 legal retainer with his own personal operating account.
Records show Kern acknowledged doing so and that he repaid the client in full. No evidence of misappropriation was found, and Kern was reinstated to practice law in February 2012.
Reach Brendan Kearney at 937-5906 and follow him on Twitter at @kearney_brendan.