This Week In Securities Litigation (Week ending Nov. 9, 2018)

The Enforcement Division released its Annual Report this week, detailing statistics on its work over the last fiscal year. The number of cases and the amount of money ordered paid in them generally declined. The focus also seemed to be shifting to investment advisers, the second largest group of cases, and away from issuers and financial fraud, traditionally the largest category of actions.

Cases brought this week by SEC Enforcement centered on investment advisers and trading. The two actions involving advisers focused on compliance and an offering fraud. The trading cases involved the first ever action charging a trading platform – here for crypto currency – with a failure to register as a national securities exchange, a dark pool and pre-release ADRs.

SEC

Investor relationships: The Commission made available a report prepared by the Rand Corporation based on a survey and interviews concerning the nature of the relationship between investors and investment advisers and broker dealers. The report is being made available as part of an effort to aid retail investors in their understanding of the relationships (here).

Rules: The Commission approved amendments that will require broker-dealers to disclose additional information about “not held” orders to clients. The standardized disclosures are designed to furnish the investor with more information about the handling and routing of their order (here).

Enforcement Report

The SEC published its now annual report on the results of the enforcement program (here). The Report includes an array of statistics that begin with the number of cases brought. The report offers two different tables and ways to view the statistics. Table one includes the results of the MCDCI. This table shows that the number of enforcement actions brought in the last four years generally declined with the exception of fiscal 2016: In FY 2015: 508 cases were filed; in FY 2016: 548; in FY 2017: 446; and in FY 2018: 490 cases were filed. A second key group of statistics presented by the Report — and perhaps a more telling indicator of the Division’s efforts – are those showing the areas in which the cases have been brought. The report breaks down the number of enforcement actions brought into several categories. The top two categories in fiscal 2018 were securities offerings and investment adviser/investment company actions. The former is a group of cases composed largely of Ponzi schemes and similar actions. It represented about 25% of the cases brought. The latter group is composed of actions which involved an investment adviser and/or a investment company. This group of cases constituted about 22% of the total actions filed. Finally, the amount of money ordered also declined. The report lists the amounts of money ordered in enforcement cases over the last four years as follows (in billions): FY 2015: $4.194; FY 2016: $4.083; FY 2017: $3.789; and FY 2018: $3.945.

SEC Enforcement – Filed and Settled Actions

Statistics: Last week the SEC filed 10 civil injunctive case and 5 administrative proceedings, excluding 12j and tag-along proceedings.

Deceptive research/scalping: SEC v. SeeThruEquity LLC, Civil Action No. 1:18-cv-10374 (S.D.N.Y. Filed Nov. 8, 2018) is an action which names as defendants SeeThruEquity, LLC, Ajay Tandon and Amit Tandon. The firm, a research company that primarily covers small and microcap issuers, was founded in 2011 by two brother who are also named as co-defendants. Ajay is a registered representative; Amit is an attorney. Defendants claim to provide unbiased and not paid for research. In fact those claims are not true. To the contrary the firm and its owners were well paid by the companies for which they published research reports. Ajay also engaged by scalping by trading on multiple instances between 2014 and the present in stocks recommended by the firm. The complaint alleges violations of Securities Act sections 17(a)(1) and (3) and 17(b) and Exchange Act section 10(b). The case is pending. See Lit. Rel. No. 24341 (Nov. 8, 2018).

Unregistered exchange: In the Matter of Zachary Coburn, Adm. File No. 3-18888 (Nov. 8, 2018) is an action which names as a Respondent the one time registered representative who is the creator of EtherDelta, an online platform that allows buyers and sellers to trade certain digital assets. Those asses are issued and distributed on the Ethereum Blockchain using the ERC 20 protocol. That is standard coding currently used by a significant majority of issuers in initial coin offerings or ICOs. The website for EtherDelta was launched by Mr. Coburn in July 2012. The platform resembles a securities trading venue making token pairs between a digital asset or fiat currency. There is also access to the EtherDelta orderbook which displays the top 500 firm bids and offers by symbol, price and size. In addition, the website displays account information for users of the EtherDelta platform and permits users to enter orders to buy or sell specific quantities of any ERC20 token at a specific price in Ether and with a specified time-in-force. Since July 2016 over 3.6 million buy and sell orders in ERC20 tokens that included securities as defined in Exchange Act section 3(a)(10). About 92% of those trades were made after the DAO Report was issued. EtherDelta has never registered with the Commission as an exchange. Mr. Coburn sold the platform. The Order alleges violations of Exchange Act section 5. To resolve the proceedings Mr. Coburn consented to the entry of a cease and desist order based on the section cited in the Order. In addition, he agreed to pay disgorgement of $300,000, prejudgment interest of $13,000 and a penalty of $75,000. This is the Commission’s first enforcement action based on findings that a platform functioned as an unregistered national securities exchange.

Insider trading: SEC v. Hengen, Civil Action No. 0:18-cv-03135 (D. Minn. Filed Nov. 8, 2018) is an action which names as a defendant James Hengen, an airplane mechanic. His wife is employed at UnitedHealthcare Group, Inc. In two instances he misappropriated material non-public information from her and profitably traded. First, on August 30, 2016 UnitedHealth announced the acquisition of USMD Holdings, Inc. Prior to that time Mr. Hengen overheard his wife discussing the transaction while she worked at home. He purchased shares which were sold following the announcement giving him a profit of $32,315. He also told his brother and coworkers about the deal. Each traded and collectively had profits of $8,315. The second deal was announced on January 9, 2017. On that date UnitedHealth announced the acquisition of Surgical Care Affiliates, Inc. Prior to that date Defendant again traded. After the deal announcement he sold his shares reaping profits of $31,489. The complaint alleges violations of Exchange Act section 10(b) and 14(e). To resolve the action Mr. Hengen consented to the entry of a permanent injunction based on the sections cited in the complaint and agreed to pay disgorgement of $63,804, prejudgment interest of $3,865 and a penalty of $72,144. See Lit. Rel. No. 24340 (Nov. 8, 2018).

Insider trading: SEC v. Dragojlovic, Civil Action No. 2:180-cv-09456 (Nov. 7, 2018) is an action which names as a defendant Slobodan Dragojlovic, a software consultant. Defendant’s broker was employed by Surgical Care Affiliates, Inc. Prior to its acquisition by UnitedHealth Group, Inc., announced on January 9, 2017, Defendant breached his duty to his brother, who had told him about the deal in confidence, and traded. Following the deal announcement he sold his shares at a profit. The complaint alleges violations of Exchange Act sections 10(b) and 14(e). To resolve the action Defendant consented to the entry of a permanent injunction based on the sections cited in the complaint. He also agreed to pay disgorgement of $20,101, prejudgment interest of $1,038 and a penalty equal to the amount of the disgorgement. See Lit. Rel. No. 24338 (Nov. 8, 2018).

Unregistered broker: SEC v. Goldman, Civil Action No. 1:18-cv-24678 (S.D.Fla. Filed Nov. 7, 2018) is an action against Ricardo Goldman, a convicted felon who previously settled a Commission enforcement action in which he was named as a Respondent for operating an unregistered day-trading operation. In this action Mr. Goldman is alleged to have raised about $6.9 million over a six year period beginning in 2010 by inducing day traders to open accounts with his firm which was not a registered broker dealer. Traders believed that they had an account with a broker in part based on the access Mr. Goldman furnished in a subaccount at a brokerage where he comingled the investor cash. Much of that capital, raised in part with false statements by Mr. Goldman about his background and operation, was lost in trading. The complaint alleges violations of Exchange Act sections 10(b), 15(a) and 15(b)(6)(B). To resolve the action Mr. Goldman consented to the entry of a permanent injunction based on the sections cited in the complaint along with a conduct based order that directs he comply with his earlier consent decree. In addition, Mr. Goldman will pay disgorgement of $470,000, prejudgment interest of $53,487 and a penalty of $320,000. See Lit. Rel. No. 24344 (Nov. 8, 2018).

Dark pool operations: In the Matter of ITG Inc., Adm. Proc. File No. 3-18887 (Nov. 7, 2018) is a proceeding which names as Respondents ITG, a subsidiary of Investment Technology Group, Inc., a public company which operates POSIT, an ATS, and AlterNet, an affiliate which is a broker-dealer. From approximately 2010 through 2017 the firm failed to establish adequate safeguards and procedures to protect the confidential information of subscribers. During the period, for example, the firm published lists of the Top 100 fills and similar reports. During the period subscribers also were not informed that the dark pool was actually divided into two sections which had very different performance metrics. By 2017 and early 2018 ITG was under new management. A series of remedial steps were taken which included establishing additional safeguards and procedures to limit access to confidential information. The Order alleges violations of Securities Act sections 17(a)(2) and (3) as well as certain rules under Regulation ATS. To resolve the matter each Respondent consented to the entry of a cease and desist order based on the statutory sections cited and to a censure. In addition, the order as to ITG is also based on the Regulation ATS rules cited. Respondents will pay a penalty of $12 million.

Pre-release ADRs: In the Matter of Citibank, N.A., Adm. Proc. File No. 3-18886 (Nov. 7, 2018) is a proceeding against the financial services firm. Over about a five year period beginning in 2011 Respondent at times pre-released ADRs to pre-release brokers but was negligent as to whether those brokers, or the parties on whose behalf the pre-release ADRs were being obtained, actually beneficially owned the corresponding number of ordinary shares as represented in the pre-release agreements. Ordinarily ADRs are backed by a corresponding number of shares at the depository. Those shares are beneficially owned by the purchaser of the ADR. Under certain circumstances for new issues the ADRs may be pre-released. Specifically, a pre-release agreement must be executed which provides that the broker involved or the buyer has the shares and will deliver them to the depository. The result of the negligent conduct here was that in many instances the ADRs were not backed by the ordinary shares. That conduct violated Securities Act section 17(a)(3). To resolve the proceedings Respondent consented to the entry of a cease and desist order based on the section cited in the Order. The firm will also pay disgorgement of $20,903,858.25, prejudgment interest of $4,258,893.71 and a penalty of $13,587,507.86. The Commission considered the cooperation of Respondent.

Compliance: In the Matter of Pennant Management, Inc., Adm. Proc. File No. 3-18884 (Nov. 6, 2018). Pennant Management was a registered investment adviser prior to the time the firm was acquired in May 2015. The adviser’s most significant line of business was a repo program.

The adviser marketed the facilities as high yield alternatives to money market funds. Clients were told in the adviser’s Form ADV Part 2A that the firm conducted initial and ongoing due diligence and monitoring of repo counterparties. Despite the representations in its filings, the firm’s procedures were limited to a general practice and the use of a checklist of documents to be obtained as initial due diligence. No written guidance was provided, however, regarding what information was to be assessed from the documents or what to do with the information. In early 2012 Pennant Management was introduced to First Farmers, a USDA approved non-traditional lender. The firm originated loans pursuant to USDA’s Rural Development Business and Industry program. Throughout 2013 and much of 2014 the adviser’s clients purchased repos from the firm despite a series of red flags it discovered but failed to communicate to the clients and an understaffed and inadequate compliance function. In September 2014 the USDA confirmed to Pennant Management what it had discovered — that a sample of the loans purchased from First Farmers were fraudulent. USDA declined to honor its guarantees. The adviser subsequently filed suit against First Farmers after which the FBI arrested the firm’s CEO. At that point the adviser informed its clients — they had continued to invest throughout the period — about the fraud. The Order alleges violations of Adviser Act sections 204, 206(2), 206(4) and 207. To resolve the proceedings the adviser consented to the entry of a cease and desist order based on the sections cited in the Order and to a censure. The firm will also pay a penalty of $400,000. See also In the Matter of Mark A. Elste, Adm. Proc. File No. 3-1885 (Nov. 6, 2018)(proceeding naming as a Respondent the CEO of the adviser who repeatedly refused to allocate resources to compliance despite warnings based on the conduct described above; resolved with a consent to the entry of a cease and desist order based on causing violations of section 206(4) of the Advisers Act, a censure and the payment of a $45,000 penalty).

Offering fraud: SEC v. Simanski, Civil Action No. 18-civ-00221 (W.D. Pa. Filed Nov. 2, 2018) is an action which names as a defendant Douglas Simanski, a registered representative and investment adviser. Over a fourteen year period beginning in 2002 Mr. Simanski convinced 27 of his clients to write him personal checks totaling $3.9 million to invest in one of three ventures. In fact the funds were placed in brokerage and bank accounts in the name of his wife. The money was diverted to his personal use and at times used to repay other investors. The complaint alleges violations of Securities Act sections 17(a), Exchange Act section 10(b) and Advisers Act sections 206(1), 206(2) and 206(4). Defendant agreed to resolve the action, consenting to the entry of a permanent injunction and to pay disgorgement. He also agreed to the entry of an order in an administrative proceeding barring him from the securities business. See Lit. Rel. No. 24334 (Nov. 2, 2018).

Insider trading: SEC v. Ettu, (E.D. Pa. Filed Nov. 2, 2018) is an action which names as a defendant Hamed Ettu, an information technology specialist. From July to September 2014 Mr. Ettu traded on inside information furnished by his friend Demilare Sonoiki, an investment banker. They had illegal trading profits of about $93,000. The complaint alleges violations of Exchange Act sections 10(b) and 14(e). The case is pending.

EB-5 offering fraud: SEC v Ferrante, Civil Action No. 18-cv-01758 (C.D. Calif. Filed Sept. 27, 2018) is an action which names as defendants real estate developer Robert Ferrante and California attorney Marylyn Thomassen. The action centers on 19 EB-5 offerings that raised about $72 million from 135 investors over a four year period beginning in 2013. The offerings were conducted by Emilio Francisco and his firm PDC Capital Group, LLC both of whom are defendants in a related Commission enforcement action based on essentially the same conduct. Contrary to the representations made to investors, Mr. Francisco permitted the two Defendants to divert about $19.2 million of investor funds to their personal use. The complaint alleges violations of Securities Act sections 17(a)(1) and (3) and Exchange Act section 10(b). Defendant Thomassen resolved the matter, consenting to the entry of permanent injunctions precluding future violations of the federal securities laws and precluding her from participating in future EB-5 offerings and from issuing or selling any security. She will also pay a penalty of $187,767. See Lit. Rel. No. 24336 (Nov. 6, 2018).

Offering fraud: SEC v. Barrett, Civil Action No. 3-18-cv-00522 (W.D.N.C. Filed Sept. 27, 2018) is an action which names as defendants Justin Barrett and Grayson Brookshire. Over a two year period beginning in January 2014 Defendants launched a number of marketing campaigns that solicited investors to purchase binary options. Defendants used what were represented to be videos of actual investors making substantial sums of money trading the instruments. In actuality the videos were staged and made by paid actors. Defendants were in fact marketers, paid a fee for each customer that viewed the videos. They were also affiliated with others conducting similar operations. The complaint alleges violations of Securities Act sections 5 and 17(a) and Exchange Act section 10(b). See also SEC v. Montano, Civil Action No. 6:18-cv-1606 (S.D. Fla. Filed Sept. 27, 2018)(similar action which named as defendants Ronald C. Montano, Travis Stephenson, Antonio Giacca and Michael Wright); SEC v. Atkinson, Civil Action No. 1:18-cv-23993 (S.D. Fla. Filed Sept. 27, 2018)(named as defendant Timothy Atkinson, Jay Passerino, All In Publishing, LLC, William E. Berry, Berry Media Works, LLC and Shmuel Pollen; based on similar facts). Defendants Justin Barrett, William Berry, Berry Mediaworks, Grayson Brookshire, Antonio Giacca, Shamuel Pollen and Travis Stephenson agreed to settle and pay a combined $4.1 million in disgorgement and prejudgment interest. None of the settling defendants payed a penalty, except Mr. Pollen, based on cooperation. Mr. Pollen will pay a penalty of $42,500. See Lit. Rel. No. 24333 (Nov. 2, 2018).

Market Crisis

RMBS: U.S. v. UBS AG, Civil Action No. 18-cv-6369 (E.D.N.Y. Filed Nov. 8, 2018) is an action based on FIRREA and centered on the sale of residential mortgaged backed securities in 2008. The Government alleges that the bank caused lasting economic harm to the nation by selling the securities based on mail fraud, wire fraud, bank fraud and other misconduct. The case is pending.

Criminal cases

Offering fraud: U.S. v. Doumanis, No. 1:17-cr-00087 (S.D.N.Y.) is an action which named as defendants George Doumanis and Emanuel Pantelakis. Over a six year period beginning in 2008 the two defendants and another who previously pleaded guilty, sold private placement shares in Teminus Energy, Inc. The firm supposedly had a viable sold oxide “fuel cell” as an alternative energy source. Rather than invest the $7 million raised from investors as promised, Defendants misappropriated it. Each previously pleaded guilty to one count of conspiracy to commit securities fraud. Mr. Doumanis was sentenced to serve 53 months in prison while Mr. Pantelakis will serve one year and a day. Each prison term will be followed by three years of supervised release. In addition, Mr. Doumanis will forfeit $573,201 while Mr. Pantelakis will forfeit $428,997.

Offering fraud: U.S. v. D’Alessio, No. 1:18-cr-00617 (S.D.N.Y.) is an action which names as a defendant former real estate developer Michael D’Alessio. Over a period of three years beginning in 2015 Mr. D’Alessio misappropriated funds that were to be used in real estate projects. Frequently he made Ponzi like payments to investors. Although the funds were diverted to his personal use, eventually Defendant filed for bankruptcy. This week he pleaded guilty to one count of wire fraud. Sentencing is scheduled for March 22, 2019.

Offering fraud: U.S. v. Carton, No. 1:17-cr-00680 (S.D.N.Y.) is an action which named as a defendant Craig Carton, a radio personality. This week a jury returned a verdict finding him guilty of conspiracy to commit securities fraud and wire fraud, securities fraud and wire fraud. Mr. Carton raised almost $7 million from investors who were solicited to purchase interests in his enterprise which supposedly would purchase tickets to events such as Metallica, Barbra Streisand and others and then resell them at a profits. In reality Mr. Carton did not have the ability to acquire the tickets and misappropriated the investor funds along with his co-defendant who previously pleaded guilty. He is awaiting sentencing. See also SEC v. Carton, Civil Acrtion No. 17-cv-6764 (S.D.N.Y.).

Insider trading: U.S. v. Fishoff, No. 3:15-cr-0586 (D. N.J.). Steven Fishoff was the owner and operator of a stock trading operation. He and his confederates cultivated contacts with firms in the securities business. Frequently they were brought “over the wall” with regard to various secondary offerings. Over a period of about three years beginning in May 2010 Mr. Fishoff repeatedly breach his obligations by crossing the wall that was designed to preclude the use of the information before the offering and traded. Specifically, in advance of a number of secondary offerings he sold the shares involved in the offering short before the offering announcement, betting that the stock would drop when the secondary sale of shares was disclosed – an economically predictable event on which SEC Rule 105 is based which precludes such activity. In addition, he repeatedly furnished the information to defendants Ronald Chernin, Steven Costantin, Paul Petrello and Joseph Spera. Over the period, defendants reaped trading profits of about $3.9 million. Mr. Fishoff generally shared in the profits of the other traders since he furnished the information. Mr. Fishoff pleaded guilty to a four count indictment that charged him with securities fraud. On Monday he was sentenced to serve thirty months in prison. Each of the other defendants also pleaded guilty. Each is awaiting sentencing.

Australia

False statements: John Lindsay pleaded guilty to two counts of making false statements to the Australian Securities and Investment Commission in 2009 and 2010. At that time the agency was conducting inquiries regarding shareholdings in Northwest Resources Lid. The shares were held by Craigside Company Ltd. and Broome Enterprises Ltd. Both firms were British Virgin Islands companies operating out of Hong Kong. The Commission sought to ensure that there was proper transparency regarding the shareholdings of the firm. Mr. Lindsay denied having any interest in the shares which was false.

ESMA

Brexit: The European Securities and Markets Authority announced that it proposes a regulatory change to support the Brexit preparations of counterparties to uncleared OTC derivatives (here).