by T. GormanPosted on Posted in SECActions

The Commission appears to have made the typical year end push to file cases. On Wednesday Part I of this series reviewed a number of those actions, primarily civil injunctive actions filed on the last day of the fiscal year. On Thursday Part II reviewed primarily civil injunctive actions filed on Friday, September 27th. Today’s concluding segment reviews primarily administrative proceedings filed on Monday, September 30th.

Digital assets: In the Matter of Block.one, Adm. Proc. File No. 3-19568 (Sept. 30, 2019) is an action which names as a Respondent, the Cayman Islands registered firm that has offices in Hong Kong and Blacksburg Va. The firm conducted an ICO for the ERC-20 coin over a one year period, beginning in June 2018. About 900 million digital assets were offered and sold in exchange for Ether, a digital asset, to raise capital for the development of the EOSIO software and promote the launch of EOSIO based blockchains. Several million dollars was raised in the offering, including from U.S. investors. The offering was not registered with the Commission despite offering investment contracts within the meaning of Howey. The Order alleges violations of Securities Act Sections 5(a) and 5(c). To resolve the proceedings Respondent consented to the entry of a cease and desist order based on the sections cited in the Order. The firm also agreed to pay a $24 million penalty.

Deficient audit: In the Matter of Marla P. Manowitz, CPA, Adm. Proc. File No. 3-19566 (Sept. 30, 2019) names as Respondents Ms. Manowitz, a principal at her accounting firm, Schulman Lobel Zand Katzen Williams & Blackman, LLP, along with Thomas R. Vreeland and Kenneth Garlak, respectively, co-principals on the engagements for QFOR in 2013, 2014 and 2015 and the engagement quality reviewer. Each audit failed to comply with PCAOB standards since it did not identify and properly review related party transactions, use conduct appropriate procedures to determine if there were material misstatements caused by fraud, and to properly plan the engagements. The Order alleges violations of Exchange Act Sections 10A(a)(2) and Rule 2-02 of Regulation S-X. To resolve the proceedings each Respondent consented to the entry of a cease and desist order based on the sections cited in the Order. Respondents Manowitz, Vreeland and Garlak were each denied the privilege of appearing and practicing before the Commission with the right to reapply after, respectively, 3, 2 and1 years. Each will also pay a penalty in the amount of, respectively, $25,000, $15,000 and $9,472. See also Schulman Lobel Zand Katzen Williams & Blackman, Adm. Proc. File No. 3-19564 (Sept. 30, 2019)( Order alleges violations of Rules 155(a), 220(f), 221(f) and 310 of the Rules of Practice; the matter will be set for hearing).

Unregistered broker: In the Mater of Outset Global LLC, Adm. Proc. File No. 3-19565 (Sept. 30, 2019) is a proceeding which names the UK broker as a Respondent. Over a two year period from 2014 to 2016 the firm repeatedly solicited and executed transactions for U.S. clients. The firm was not registered in the U.S. The Order alleges violations of Exchange Act Section 15(a). The firm undertook remedial actions. To resolve the proceedings Outset consented to the entry of a cease and desist order based on the section cited in the Order and a censure. The firm also agreed to pay disgorgement of $135,000, prejudgment interest of $22,409.97 and a penalty of $50,000.

ATS: In the Matter of Virtu Americas LLC, Adm. Proc. File No. 3-19563 (Sept. 30, 2019) is a proceeding which names the registered broker dealer as a Respondent. In late 2015 and after the firm operated a trading system known as Match-it, a dark pool. Under Regulation SCI when trading in such a pool reaches designated levels it must comply with the regulation. Here the firm had an automated system that was designed to ensure that trading was limited to a level that was under the Regulation. The system malfunctioned, however, and for a period starting on November 3, 2015 the limits were surpassed and the firm was required to comply. It failed. To resolve the proceedings Respondent consented to the entry of an order based on the Regulation and a series of rules under it and to a censure. The firm will also pay a penalty of $1.5 million.

Unregistered securities: In the Matter of Nebulous, Inc., Adm. Proc. File No. 3-19569 (Sept. 30, 2019) is a proceeding which names the firm, a privately owned developer of decentralized cloud data storage technology, as Respondent. Over a one year period beginning in 2014 the firm sold unregistered securities. The Order alleges violations of Securities Act Sections 5(a) and 5(c). To resolve the proceedings Respondent consented to the entry of a cease and desist order based on the sections cited in the Order and agreed to pay disgorgement of $120,000, prejudgment interest of $24,601.85 and a penalty of $80,000.

Share-class selection: In the Matter of Michigan Advisors, Inc., Adm. Proc. File No 3-19562 (Sept. 30, 2019) is an action in which the registered adviser inadequately disclosed the fact that certain classes of mutual fund shares carried 12b-1 fees. Nevertheless, the advisor put clients into those shares. The firm self-reported. This proceeding is based on that report. Respondent consented to a series of undertakings. The Order alleges violations of Advisers Act Section 206(2). To resolve the proceedings Respondent consented to the entry of a cease and desist order based on the section cited in the Order and to a censure. The firm also agreed to pay disgorgement of $295,580.55 and prejudgment interest of $32,396.17. The funds will be returned to the clients. See also In the Matter of Investment Partners, LTD., Adm. Proc. File No. 3-19561 (Sept. 30, 2019)(same as above; resolution is also the same with the payment of disgorgement in the amount of $39,418.90 and prejudgment interest of $3,965.91); In the Matter of Hilltop Securities, Inc. and Hilltop Securities Independent Network, Inc., Adm. Proc. File No. 3-19560 (Sept. 30, 2019)(same; payment of disgorgement in the amount of $736,497.48 and prejudgment interest of $74,287.92); In the Matter of Essex Financial Services, Inc., Adm. Proc. File No. 3-19559 (Sept. 30, 2019)(same; pay disgorgement and prejudgment interest of $2,986,589.94 which is waived except for $645,000 based on an affidavit of financial condition); In the Matter of Folger Nolan Fleming Douglas Capital Management, Inc. Adm. Proc. File No. 3-19558 (Sept. 30, 2019)(same; payment of disgorgement and prejudgment interest of $59,479. 27); In the Matter of Bill Few Associates, Inc., Adm. Proc. File No. 3-1555 (Sept. 30, 2019)(same; payment of disgorgement and prejudgment interest of $191,304,81); In the Matter of Mid Atlantic Financial Management, Inc. Adm. Proc. File No. 3-19554 (Sept. 30, 2019)(same except firm did not self-report but undertook remedial efforts; charges are Sections 206(2) and 206(4) of Advisers Act; disgorgement of $900,069 and prejudgment interest of$126,933; firm will also pay a penalty of $300,000); In the Matter of Wedbush Securities, Inc., Adm. Proc. File No. 3-19553 (Sept. 30, 2019)(same; firm self-reported; payment of disgorgement and prejudgment interest in the amount of $1,852,540.97); In the Matter of Saxony Capital Management, LLC, Adm. Proc. File No. 3-19552 (Sept. 30, 2019)(same; payment of disgorgement of $212,324.53 and prejudgment interest of $1,869.31); In the Matter of IPG Investment Advisors, LLC, Adm. Proc. File No. 3-19551 (Sept. 30, 2019)(same; payment of disgorgement of $76,962. 71 and prejudgment interest of $8,331.61); In the Matter of Independent Financial Group, Inc., Adm. Proc. File No. 3-19550 (Sept. 30, 2019)(same; payment of prejudgment interest and prejudgment interest of $1,426,150.64); IC Advisory Services, Inc., Adm. Proc. File No. 3-19549 (Sept. 30, 2019)(same; payment of disgorgement of $1,052,473.02 and prejudgment interest of $142,713.17); In the Matter of Henley & Co. Wealth Management, LLC, Adm. Proc. File No. 3-19548 (Sept. 30, 2019)(same; payment of disgorgement of $32,657 and prejudgment interest of $4,209); In the Matter of Comprehensive Capital Management, Inc., Adm. Proc. No. 3-1547 (same; payment of disgorgement in the amount of $83,401.41 and prejudgment interest of $10,632.11).

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by T. GormanPosted on Posted in SECActions

The Commission appears to have made the typical year end push to file cases. Yesterday Part I of this series reviewed a number of those actions, primarily civil injunctive actions filed on the last day of the fiscal year. This segment reviews a second group of the cases largely filed on the second to last business day of the Government fiscal year.

Loss contingency: SEC v. Mylan N.V., Civil Action No. 1:19-cv-02904 (D.D.C. Filed Sept. 27, 2019) is an action which names the global pharmaceutical firm as a defendant. The case centers on a DOJ inquiry into whether the firm classified its EpiPen product properly and may have under paid Medicaid. Specifically, the DOJ conducted a two-year probe into whether the firm properly paid certain rebates tied to the product. Mylan classified the drug as a “generic.” The product is used to treat severe allergic reactions. It is one of the largest revenue and profit drivers for the firm. When sold to Medicaid the firm was paid from taxpayer funds. Mylan was required to rebate a portion of the revenues to the Government. By classifying the drug as a generic the firm rebated a much lower amount of the price. During the period Mylan raised the price about 500%. Over the course of the investigation Mylan received multiple subpoenas. The company also furnished the DOJ with damage estimates. Yet Mylan failed to disclose the potential loss. Even after being told by the DOJ that the pens were misclassified Mylan only disclosed that it “may” need to reclassify. By failing to disclose the loss contingency, which eventually became a $465 million settlement, the firm’s disclosures were false and misleading. The company also made false statements regarding the probe. The complaint alleged violations of Securities Act Sections 17)(a)(2) and (3) and Exchange Act Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B). To resolve the action Mylan consented to the entry of a permanent injunction based on the sections cited in the complaint and agreed to pay a $30 million penalty.

False statements: In the Matter of Herbalife Nutrition Ltd., Adm. Proc. File No. 3-19536 (Sept. 27, 2019) is a proceeding which names as a Respondent the LA based multi-level sales firm. Herbalife operates in about 90 countries using essentially the same multi-level marketing system. China is the firm’s largest revenue source. Over a four-year period, beginning in 2012, Herbalife asserted in its public filings that its method of operations and compensation in that country differed significantly from those typically used. In fact, those repeated disclosures are false statements. The company used essentially the same compensation model used in other countries. The Order alleges violations of Securities Act Sections 17(a)(2) and (3). To resolve the proceedings the Herbalife consented to the entry of a cease and desist order based on the sections cited in the Order and agreed to pay a $20 million penalty.

FCPA: In the Matter of Westport Fuel Systems, Inc., Adm. Proc. File No. 3-19543 (Sept. 27, 2019) names as Respondents the Vancouver based manufacturer of clean fuel systems, and its COO, Nancy Gougraty. The action centers on a transaction which began in 2012 and continued for the next several years. It focused on efforts by the company to secure a larger payment from the joint venture it had with a China state owned entity. In seeking to obtain a larger payment Westport agreed to transfer a number of its shares at a low valuation to venture where a Government official was located. It was believed that official could influence the amount of the payment and execute a framework agreement. The order alleges violations of Exchange Act Section 30A, 13(b)(2)(A) and 13(b)(2)(B). The order as to Ms. Gougraty also included Exchange Act Section 13(b)(5). To resolve the proceedings Westport agreed to implement certain undertakings. Each Respondent consented to the entry of a cease and desist order based on the section cited in the Order. The firm also agreed to pay disgorgement of $2,350,000, prejudgment interest of $196,000 and a penalty of $1.5 million. Ms. Gougarty agreed to pay a penalty of $150,000.

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