The filing of SARs – suspicious activity reports – appears to be an increasing area of interest for the Commission. Typically the cases brought have focused on aggravated fact patterns such as the transfer in of millions of penny stock shares followed by the sale of those shares with the funds wired out almost immediately. Now, however, the agency appears to be focusing on a different view. Its most recent case is keyed not to penny stocks or millions of dollars of cash flowing through a broker but inconsistent standards being applied under which some conduct which merited the termination of a client relation resulted in the filing of a SAR while in others instances it did not. The precise meaning of this approach is, at best, unclear. What is apparent, however, is the fact that a $2.8 million penalty was imposed. SEC v. Charles Schwab & Co., Civil Action No. 18-cv-3942.

Schwab, a broker-dealer and investment adviser, offers a broad range of services to Investment Advisers and their clients. Those advisers are independent third-parties who contract with Schwab for custodial and execution services. In 2012 and 2013 Schwab terminated its relationship with 83 Advisers. The terminations were based on Schwab’s conclusion that the advisers had violated internal firm policies, presenting a risk to the broker-dealer or its customers. Of the 83 terminated advisers, 47 engaged in transactions that met the dollar limit for filing a SAR. Schwab chose to file SARs regarding only 10 of the 47, three of which were filed after the Commission filed an enforcement action against the terminated adviser.

Under the Bank Secrecy Act and the related rule, brokers are required to file SARs with the Financial Crimes Enforcement Network or FinCEN in certain circumstances. Specifically, brokers are required to report a transaction that involved at least $5,000 when the firm knew, suspected, or had reason to suspect that it involved funds from illegal activity, was designed to evade the requirements of the Bank Secrecy Act, had no business or apparent lawful purpose or involved the use of the broker to facilitate criminal activity. Section 17(a) of the Exchange At and the related rules effectively implement these requirements.

Here 47 of the terminated advisers engaged in transactions over the $5,000 limit but only 10 SARs were filed. The firm’s “failure to file the SARs at issue resulted from its inconsistent implementation of policies and procedures for identifying and reporting transactions under the SAR Rule. Schwab had a SAR policy that stated it should file a SAR on any transaction of $5,000 or more that ‘involves potential fraud.’” The policy also includes a broad definition of Securities Fraud. Nevertheless, the broker-adviser failed to make filings regarding transactions that involved: 1) possible self-dealing or conflict of interest; 2) the use of Schwab’s management fee system to charge client accounts excessive advisory fees; 3) patterns of potentially fraudulent transactions such as “cherry picking;” 4) advisers who used the client login information to effect or confirm a transaction; and 5) advisers who allowed their registration to lapse but continued to execute client trades and collect advisory fees. Schwab also used an “unreasonably high” standard to determine if a SAR should be filed regarding transactions it suspected involved possible misappropriation or other misuse of client funds, according to the complaint.

Examples of Schwab’s failings include: 1) The broker suspected that $295,000 in wire transfers were suspicious and that it was possible the adviser used client funds “for the purchase of his property but this can not be confirmed.” In researching the transaction the firm determined that the clients authorized the transfers on recorded lines. Neither client complained. The matter was closed. The client relation was terminated. The “standards requiring a SAR filing were met . . .” the complaint states. 2) Another adviser with $50 million in AUM and 476 subaccounts was terminated after Schwab found that over a two year period the client had allocated 17 profitable day trades to itself that had profits of $75,000. The adviser had been counseled twice regarding suspicious trading. 3) The registration for some advisory firms lapsed but they continued to advise clients and charge fees. This conduct is alleged to have violated Exchange Act section 17(a) and rule 17a-8 thereunder. To resolve the action Schwab consented to the entry of a permanent injunction based on the section and rule cited in the complaint. The firm also agreed to pay a penalty of $2.8 million.

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Vitaly Korchevsky, now a Pennsylvania pastor, was convicted of participating in a sprawling, international insider trading and hacking ring that is alleged to have generated over $100 million in trading profits during a five year period. U.S. v. Korchevsky, No. 1:15-cr-00381 E.D.N.Y.).

Mr. Korchevsky, a resident of Glen Mills, Pennsylvania, was a registered investment adviser at Morgan Stanley. He is alleged to have been a member of an international insider trading ring composed of over 30 individuals and entities that hacked news organizations to obtain advance copies of press releases containing inside information. Ultimately the group’s activity resulted in criminal actions in the Eastern District of New York as well as the District of New Jersey. The SEC filed a parallel civil action. SEC v. Dubovoy, Civil Action No. 15-cv-06078 D.N.J.).

The defendants divide into three groups: 1) The hacker defendants: Oleksandr Ieremanko and Ivan Turchynov, both residents of Kiev, Ukraine. 2) The trader defendants—The Dubovoy Group: This was a close nit group of family, friends and business associates of Arkadiy Dubovoy. Members of the group resided in Georgia, Ukraine, New York and Pennsylvania. It had 12 members according to the SEC, including eight individuals and four entities. Mr. Korchevsky was a member. The group is alleged to have made over $31 million in trading profits. 3) The foreign trader defendants: This is a group of two individuals and eighteen entities. The individuals reside in Russia and Ukraine. The entities are from jurisdictions which include Malta, the Cayman Islands, Cyprus and France.

The hackers obtained as many as 150,000 press releases from news organizations such as PR Newswire Associates LLC, Marketwired LP and Business wire over about a five year period beginning in 2010, according to news reports. Defendants penetrated the computer services of the organizations using a variety of advanced techniques which included masking their identities by posing as newswire employees and customers. As a result the hackers were able to acquire advance copies of corporate press releases before distribution to the public, according to court papers. Over time this gave the hackers access to press releases regarding companies which included: Catepillar, Inc., TreeHouse Foods, Inc., RadioShack, Zumiez, Inc., Brocade Communications Systems, Edwards Life Sciences, Panera Bread Co., VMware, Inc., TIBCO Software and Align Technology.

The hacker defendants – Messrs. Ieremanko and Turchynov – transmitted the information to the traders. The traders had been recruited with a video which showcased the ability of the hackers to obtain inside information. The information had to be transmitted in a narrow window of time before the release by the news wires of the press releases. The members of the trader group placed trades through a variety of accounts using the information before its release to the public. The hacker defendants were paid either a flat fee or a percentage of the trading profits. At times the traders in the groups communicated with each other and the hackers had access to various trading accounts. Trading in this fashion continued through at least May 2015.

Prior to Mr. Korchevsky’s trial the head of the Dubovoy group of which he was a member, Arkadiy Dubovoy, pleaded guilty. He then testified for the government at the trial against his former group member. At trial the government also presented an analysis of Mr. Korchevsky’s trading prepared by an SEC economist. That testimony demonstrated that prior to joining the group, Mr. Korchevsky generated trading losses. Once he joined the group, however, his results improved, resulting in trading profits of over $8.5 million, according to a Bloomberg report of the trial. The jury returned a verdict of guilty late on Friday, July 6, 2018. The date for sentencing has not been set.

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