CFTC CHAIRMAN GARY GENSLER'S REMARKS AT CFTC ROUNDTABLE

FROM: U.S. COMMODITY FUTURES TRADING COMMISSION
Chairman Gary Gensler’s Opening Remarks at CFTC Roundtable
January 31, 2013
Welcome to the Commodity Futures Trading Commission (CFTC). Thank you, Rick, and thanks to the team for putting together this roundtable. This is the CFTC’s 21st public roundtable since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). Next week, we'll be holding the 22nd roundtable, the third focused on customer protection.

Today’s roundtable is occurring at an historic time in the markets. The marketplace is increasingly shifting to implementation of common-sense rules of the road for the swaps market.

For the first time, the public will benefit from the greater access to the markets and the risk reduction that comes with central clearing. Required clearing of interest rate and credit index swaps between financial entities begins in March.

For the first time, the public is benefiting from seeing the price and volume of each swap transaction. This post-trade transparency builds upon what has worked for decades in the futures and securities markets. The new swaps market information is available free of charge on a website, like a modern-day ticker tape.

For the first time, the public will benefit from specific oversight of registered swap dealers. As of the end of this week, there will be 71 provisionally registered swap dealers. They are subject to standards for sales practices, recordkeeping and business conduct to help lower risk to the economy and protect the public from fraud and manipulation.

An earlier crisis led to similar common-sense rules of the road for the futures and securities markets. I believe these critical reforms of the 1930s have been at the foundation of our strong capital markets and many decades of economic growth.

In the 1980s, the swaps market emerged. Until now, though, it lacked the benefit of such rules to promote transparency, lower risk and protect investors. What followed was the 2008 financial crisis. Eight million American jobs were lost. In contrast, the futures market, supported by earlier reforms, weathered the financial crisis.

President Obama and Congress responded and crafted the swaps provisions of Dodd-Frank by borrowing from what has worked best in the futures market for decades: clearing, transparency and oversight of intermediaries.

Given that we have largely completed swaps market rulewriting, with 80 percent behind us, today is a good opportunity to hear from market participants on where we are and where we ought to go from here. As we have asked throughout this process, we'd like to hear from market participants today on what provisions for swaps should mirror those for futures and when is it appropriate for there to be differences. I would note that Congress included a number of provisions in Dodd-Frank recognizing appropriate differences. For instance, it is critical that farmers, ranchers, merchants and other end users continue to benefit from using customized swaps that are not cleared.

Now that the entire derivatives marketplace -- both futures and swaps – has comprehensive oversight, it's the natural order of things for some realignment to take place.

The notional open interest of the futures market ranges around $30 trillion. There are various estimates for the notional size of the U.S. swaps market, but it ranges around $250 trillion. Though the futures market trades more actively, just one-ninth or so of the combined open interest in the derivatives marketplace is futures. Approximately eight-ninths of the combined derivatives marketplace is swaps, which until recently were unregulated.

This roundtable also provides an opportunity to hear from market participants on the recent actions of the two largest exchanges. Last fall, IntercontinentalExchange converted power and natural gas-related swaps into futures contracts. In addition, the CME Group's ClearPort products, which were cleared as futures, including those that were executed bilaterally as swaps, are now being offered for trading on Globex or on the trading floor. CME also adopted new block trading rules for its ClearPort energy contracts, as well as began trading a futures contract where the underlying product is an interest rate swaps contract.

It’s important to note that whether one calls a product a standardized swap or a future, both markets now benefit from central clearing. Since the late 19th century, central clearing in the futures market has lowered risk for the public. It also has fostered access for farmers, ranchers, merchants, and other participants and allowed them to benefit from greater competition in the markets. In March, swap dealers and the largest hedge funds will be required, for the first time, to clear certain interest rate swaps and credit index swaps. Compliance will be phased in for other market participants throughout this year.

In addition, transparency has been a longstanding hallmark of the futures market –both pre-trade and post-trade. Now, for the first time, the swaps market is benefitting from post-trade transparency. On December 31, registered swap dealers began real-time reporting for interest rate and credit index swap transactions. Building on this, swap dealers will begin reporting swap transactions in equity, foreign exchange and other commodity asset classes on February 28. Other market participants will begin reporting April 10. The time delays for reporting currently range from 30 minutes to longer, but will generally be reduced to 15 minutes this October for interest rate and credit index swaps. For other asset classes, the time delay will be reduced next January. After the CFTC completes the block rule for swaps, trades smaller than a block will be reported as soon as technologically practicable.

Oversight of intermediaries and the protection of customer funds have long been integral parts of futures market regulation. Futures commission merchants, introducing brokers and commodity pool operators have been CFTC-registered intermediaries. Dodd-Frank extended oversight of these intermediaries to include their swaps activity, and to promote market integrity and lower risk to taxpayers, brought oversight to another category of intermediaries called swap dealers. The initial group of provisionally registered swap dealers includes the largest domestic and international financial institutions dealing in swaps with U.S. persons. It includes the 16 institutions commonly referred to as the G16 dealers. Reforms the CFTC has finalized to enhance the protection of customer funds, as well as proposed enhancements, consistently cover both futures and swaps.

Looking ahead, to further enhance liquidity and price competition, the CFTC must finish the pre-trade transparency rules for swap execution facilities, as well as the block rules for swaps. It is also critical that we preserve the pre-trade transparency that has been at the core of the futures market. In that context, I am looking forward to hearing from panelists today about recent actions by exchanges to lower their minimum block sizes for certain energy futures.

Thank you again for coming, and we look forward to your input.

MAN CHARGED WITH UNREGISTERED SECURITES OFFER AND STOCK MANIPULATION

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION
SEC Charges Jonathan C. Gilchrist with the Unregistered Offer and Sale of Securities and Stock Manipulation

The Securities and Exchange Commission today filed a civil injunctive action in the U.S. District Court for the Southern District of Texas against Jonathan C. Gilchrist, alleging that he effected the unregistered offer and sale of shares of The Alternative Energy Technology Center, Inc. and engaged in a stock manipulation scheme in violation of the registration and antifraud provisions of the federal securities laws.

The Commission’s complaint alleges that in December 2007, Gilchrist, acting as the president and chairman of Mortgage Xpress, Inc. (subsequently renamed The Alternative Energy Technology Center, Inc.), authorized the unregistered offer and sale of six million company shares at a deep discount to himself and two entities he controlled, improperly maintaining that the offer and sale were exempt from registration under Rule 504 of Regulation D of the Securities Act of 1933. The complaint alleges that the company could not claim a Rule 504 exemption from registration because it was a development stage company which, at the time, planned to merge with another entity. The complaint further alleges that the shares issued to the two entities controlled by Gilchrist should have been subject to restriction on resale based on Gilchrist being an affiliate of the company, but were not. As a result, according to the complaint, the share issuance improperly gave Gilchrist control over at least 94% of the public float.

The complaint further alleges that from January through March 2008, Gilchrist effected 25 wash trades in company securities through brokerage accounts he controlled and, in March 2008, arranged for promoters to tout the company. Gilchrist allegedly thereby drove the per share price from $1.00 per share immediately after the reverse stock split on January 18, 2008 to $3.75 per share on April 1, 2008, the day before the Commission suspended trading in the stock. During this time period, Gilchrist made unregistered sales of 229,661 shares, resulting in illicit proceeds of $692,146.38.

Based on the facts alleged, the Commission charged Gilchrist with violating Sections 5(a), 5(c), 17(a)(1) and 17(a)(3) of the Securities Act, and Section 10(b) of the Securities Exchange Act of 1934 and Rules 10b-5(a) and (c) thereunder. The Commission is seeking to have Gilchrist permanently enjoined, ordered to pay disgorgement and a civil money penalty, barred from participating in any penny stock offering, and prohibited from serving as an officer or director.

The SEC thanks the Financial Industry Regulatory Authority's (FINRA) Office of Fraud Detection and Market Intelligence for its assistance in this matter

Henley Healthcare, Inc., et al.

Henley Healthcare, Inc., et al.

NEW TIPSTER BOSS AT SEC

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION

Washington, D.C., Jan. 22, 2013 — The Securities and Exchange Commission today announced that Vincente L. Martinez has been named Chief of the Enforcement Division’s Office of Market Intelligence, which collects and evaluates thousands of tips, complaints, and referrals that come into the SEC each year.

Mr. Martinez was one of the first assistant directors in the SEC’s Office of Market Intelligence, which was created in 2010 as part of a major restructuring of the Enforcement Division. He left the SEC in 2011 to become the first director of the whistleblower office at the Commodity Futures Trading Commission (CFTC). He will return to the SEC next month to begin his new role.

“Our Office of Market Intelligence employs next-generation technology and data analysis to inform and drive our enforcement effort and priorities in the years to come,” said Robert Khuzami, Director of the SEC’s Enforcement Division. “Vince has the vision and dedication to lead that effort given his talent, commitment, and prior service to the SEC.”

Adam Storch, Managing Executive of the SEC’s Enforcement Division, added, “Vince understands the task at hand and is ready to further leverage the valuable intelligence we get from the public, cultivate our relationships with our regulatory partners, and tackle the increasing sophistication of the schemes victimizing investors.”

Mr. Martinez said, “I am honored and pleased to rejoin the SEC staff and have this opportunity to advance the Office of Market Intelligence’s meaningful contributions to the protection of investors by further developing our ability to proactively identify risks and ferret out misconduct.”

At the CFTC, Mr. Martinez has interacted with whistleblowers and their representatives, developed the CFTC’s policies and procedures for handling whistleblower matters, and worked to raise awareness of the CFTC’s whistleblower program – which was created under the Dodd-Frank Act.

Mr. Martinez previously worked for eight years in the SEC’s Enforcement Division, beginning in 2003 as a staff attorney and later becoming a senior counsel. He served on a task force devoted to pursuing accounting frauds. When he shifted to the Office of Market Intelligence, he played a key role in developing Enforcement Division and SEC-wide policies and procedures for handling tips, complaints, and referrals. He helped cultivate cooperative relationships with other government agencies and self-regulatory organizations. Mr. Martinez received two SEC awards in 2011 (Chairman’s Award for Excellence and Business Operations Award) and an Enforcement Division Director’s Award in 2007.

Prior to joining the SEC staff, Mr. Martinez was a litigator and corporate lawyer in private practice for six years. He is a graduate of Georgetown University and the Boalt Hall School of Law at the University of California at Berkeley.

The Enforcement Division and Mr. Martinez extend their recognition and gratitude for the outstanding contributions of Lori Walsh, who is currently serving as the Acting Chief of the Office of Market Intelligence. Ms. Walsh will continue her leadership role as Deputy Chief of the office, and she will provide an instrumental contribution as the architect of its risk assessment tools and capabilities.

SEC ALLEGES INSIDE TIPPING

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION

Washington, D.C., Jan. 25, 2013 — The Securities and Exchange Commission today charged a financial adviser in Boca Raton, Fla., with illegally tipping inside information he learned about the upcoming sale of a pharmaceutical company in exchange for $35,000 and a jet ski dock.

The SEC alleges that Kevin L. Dowd got details about the impeding acquisition of Princeton, N.J.-based Pharmasset Inc. by California-based Gilead Sciences from one of his supervisors at the brokerage firm where he worked. The supervisor learned about the deal from a customer who sat on Pharmasset’s board of directors. Dowd, who knew the customer, breached his duty to keep the information confidential by tipping a friend in the penny stock promotion business who bought Pharmasset stock on the last trading day before the public announcement of the deal. The trader also tipped another individual who bought Pharmasset call options, and collectively they made $708,327 in illicit insider trading profits in just two trading days. The SEC’s investigation is continuing.

The SEC alleges that Dowd profited from the scheme in a roundabout way, receiving the jet ski dock from his tippee and a cashier’s check for $35,000, which he used for expensive upgrades to a pool at his home.

"As an industry professional, Dowd surely knew what he was doing was wrong, but he incorrectly thought that his scheme was clever enough to avoid detection by investigators," said Daniel M. Hawke, Chief of the SEC Enforcement Division’s Market Abuse Unit. "Professionals in the securities industry or any sector should know that you’ll be held accountable for violating insider trading laws, even if you don’t trade the securities yourself."

In a parallel action, the U.S. Attorney’s Office for the District of New Jersey today announced criminal charges against Dowd.

According to the SEC’s complaint filed in federal court in New Jersey, the Pharmasset director told Dowd’s supervisor in confidence as his financial adviser that Pharmasset was going to be sold and the price would be in the high $130s per share. Dowd’s supervisor provided Dowd with the information along with an instruction that he was restricted from trading or recommending Pharmasset securities. Despite the warning, Dowd tipped his penny stock promoter friend, who wired $196,000 into a brokerage account with a zero balance and bought 2,700 shares of Pharmasset stock on Friday, Nov. 18, 2011. Dowd’s friend tipped another individual who bought 100 out-of-the-money call options, which are securities that derive their value from the underlying common stock of the issuer and give the purchaser the right to buy the underlying stock at a specific price within a specified time period. Investors typically purchase call options when they believe the value of the underlying securities is going up.

According to the SEC’s complaint, Gilead and Pharmasset announced the acquisition on Monday, November 21. Dowd’s tippees immediately sold all of their Pharmasset securities to obtain their illegal profits.

The SEC alleges that Dowd violated Sections 10(b) and (14)(e) of the Securities Exchange Act of 1934 and Rules 10b-5 and 14e-3 thereunder. The SEC is seeking disgorgement of ill-gotten gains with prejudgment interest, a financial penalty, and a permanent injunction against Dowd.

The SEC’s investigation is being conducted by Market Abuse Unit staff Mary P. Hansen, Paul T. Chryssikos, and John S. Rymas in the Philadelphia Regional Office. The litigation will be handled by G. Jeffrey Boujoukos and Christopher R. Kelly. The SEC has coordinated its action with the U.S. Attorney’s Office for the District of New Jersey, and appreciates the assistance of the Federal Bureau of Investigation and the Options Regulatory Surveillance Authority.

Medis Technologies Ltd., et al.

Medis Technologies Ltd., et al.

RANDY M. CHO SENTENCED TO PRISON TERM OF 12 YEARS IN CRIMINAL ACTION

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION
 
The Securities and Exchange Commission (SEC) announced that on January 18, 2013, in a criminal action brought by the U.S. Attorney’s Office for the Northern District of Illinois, the Honorable James B. Zagel, U.S. District Judge of the Northern District of Illinois, sentenced Randy M. Cho to 12 years in federal prison on charges of wire fraud and tax fraud. Cho was charged for perpetrating an investment scheme between 2001 and October 2009, which resulted in almost $8 million in losses from 57 investors. Cho was also ordered to pay restitution of $7,995,707. Cho’s sentence was lengthened, in part, because Cho lied to the SEC during its investigation into his scheme. [USA v. Randy M. Cho, Case No. 1:10 cr 01099, USDC, N.D. Ill.]

In October 2009, the SEC filed an emergency district court action against Cho for his fraudulent scheme, and obtained orders that froze Cho’s assets and permanently enjoined Cho from violating the antifraud provisions of the Securities Act of 1933, the Securities Exchange Act of 1934 and the Investment Advisers Act of 1940. In August 2010, the SEC obtained a final judgment against Cho in which Cho was ordered to pay approximately $7.78 million in disgorgement, prejudgment interest, and a $150,000 statutory civil penalty.

RATINGS COMPANY SETTLES MISSTATEMENTS CASE WITH SEC

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION

Washington, D.C., Jan. 22, 2013 — The Securities and Exchange Commission today announced that Egan-Jones Ratings Company (EJR) and its president Sean Egan have agreed to settle charges that they made willful and material misstatements and omissions when registering with the SEC to become a Nationally Recognized Statistical Rating Organization (NRSRO) for asset-backed securities and government securities.

EJR and Egan consented to an SEC order that found EJR falsely stated in its registration application that the firm had been rating issuers of asset-backed and government securities since 1995 — when in truth the firm had not issued such ratings prior to filing its application. The SEC’s order also found that EJR violated conflict-of-interest provisions, and that Egan caused EJR's violations.

EJR and Egan made a settlement offer that the Commission determined to accept. Under the settlement, EJR and Egan agreed to be barred for at least 18 months from rating asset-backed and government securities issuers as an NRSRO. EJR and Egan also agreed to correct the deficiencies found by SEC examiners in 2012, and submit a report – signed by Egan under penalty of perjury — detailing steps the firm has taken.

"Accuracy and transparency in the registration process are essential to the Commission’s oversight of credit rating agencies," said Robert Khuzami, Director of the SEC’s Division of Enforcement. "EJR and Egan’s misrepresentation of the firm’s actual experience rating issuers of asset-backed and government securities is a serious violation that undercuts the integrity of the SEC’s NRSRO registration process."

Antonia Chion, Associate Director of the SEC’s Division of Enforcement, added, "Provisions requiring NRSROs to retain certain records and address conflicts of interest are central to the SEC’s oversight of credit rating agencies. EJR’s violations of these provisions were significant and recurring."

Eagan and his firm were charged last year for falsely stating on EJR’s July 2008 application to the SEC that it had 150 outstanding asset-backed securities (ABS) issuer ratings and 50 outstanding government issuer ratings, and had been issuing credit ratings in these categories on a continuous basis since 1995. Egan signed and certified the application as accurate. According to the SEC’s order, EJR had not issued any ABS or government issuer ratings that were made available through the Internet or any other readily accessible means. Therefore, EJR did not meet the requirements for registration as a NRSRO in these classes. The Commission found that EJR continued to make material misrepresentations about its experience in subsequent annual certifications. EJR also made other misstatements in submissions to the SEC, and violated recordkeeping and conflict-of-interest provisions governing NRSROs — which are intended to safeguard the integrity of credit ratings.

EJR and Egan agreed to certain undertakings in the SEC’s order, including that they must conduct a comprehensive self-review and implement policies, procedures, practices, and internal controls that correct issues identified in the SEC’s order and in the 2012 examination of EJR conducted by the SEC’s Office of Credit Ratings. EJR and Egan consented to the entry of the order without admitting or denying the findings. The order requires them to cease and desist from committing or causing future violations.

The SEC’s investigation was conducted by Stacy Bogert, Pamela Nolan, Alec Koch, and Yuri Zelinsky. The SEC’s litigation was led by James Kidney with assistance from Alfred Day and Ms. Nolan. The related examinations of EJR were conducted by staff from the SEC’s Office of Credit Ratings, Office of Compliance Inspections and Examinations, and Division of Trading and Markets. Examiners included Michele Wilham, Jon Hertzke, Mark Donohue, Kristin Costello, Scott Davey, Alan Dunetz, Nicole Billick, David Nicolardi, Natasha Kaden, and Abe Losice.

SUMMARY JUDGEMENT GIVEN IN PRIME BANK INVESTMENT SCHEME

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION

SEC OBTAINS SIGNIFICANT RELIEF IN SUMMARY JUDGMENT WIN AGAINST DEFENDANTS CHARGED WITH DEFRAUDING INVESTORS IN FICTITIOUS OFFERINGS

On December 17, 2012, the United States District Court for the Central District of California granted the Securities and Exchange Commission's motion for summary judgment against all defendants and relief defendants in a civil action arising from two "prime bank" or "high yield" investment schemes that defrauded investors out of more than $11 million. The judgment permanently enjoins Francis E. Wilde, Steven E. Woods, Mark A. Gelazela, Bruce H. Haglund, and entities they control, from violations of the antifraud and other securities law provisions. The judgment also requires the defendants to pay disgorgement and penalties, and bars Wilde and Haglund from acting as officers or directors of any public company. In addition, the court issued a separate judgment requiring relief defendants IBalance LLC, Maureen Wilde, and Shillelagh Capital Corporation to disgorge illegally-obtained profits.

The Commission's complaint, filed on February 24, 2011, alleged that Wilde, through his company Matrix Holdings LLC, orchestrated two fraudulent investment schemes. The first scheme began in April 2008 when Wilde obtained a U.S. Treasury bond with a market value of nearly $5 million from an investor by making false and misleading promises of outsized returns from what he claimed was a "private placement program." Wilde (through Matrix) then used the bond to secure a line of credit that he drew down to pay personal expenses, to pay investors, creditors and debt holders of his public company, and to make failed attempts to acquire fictitious prime bank instruments or to invest in high yield programs. Wilde eventually exhausted all of the funds obtained with the investor's bond and never produced a return for the investor.

The Commission further claimed that, beginning in October 2009, Wilde concocted another fraudulent scheme with Woods and Gelazela in the form of a "bank guarantee funding" program using the services of Haglund as escrow attorney. Between October 2009 and mid-March 2010, Woods (through BMW Majestic LLC) and Gelazela (through IDLYC Holdings Trust ("IDLYC") and IDLYC Holdings Trust LLC ("IDLYC LLC")) signed contracts with 24 investors who sent over $6.3 million to Haglund's trust account. Wilde never successfully acquired or leased a single legitimate financial instrument and exhausted all $6.3 million of the investors' funds, much of which was taken by the defendants in the form of undisclosed fees. The Commission alleged that Haglund aided the fraud by receiving and sending wires of investors' funds in and out of his trust account according to instructions from Wilde, thus allowing Wilde to utilize funds for undisclosed purposes. Haglund also knowingly made, and Wilde knowingly authorized, Ponzi-like payments to old investors using new investor deposits.

The court found that Wilde, Woods, Gelazela, Matrix, BMW Majestic, IDLYC, and IDLYC LLC violated Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder; that Woods and Gelazela also violated Section 15(a) of the Exchange Act; and that Haglund and Wilde aided and abetted the other defendants' violations of Section 10(b) and Rule 10b-5.

The judgment permanently enjoins Wilde, Woods, Gelazela, Matrix, BMW Majestic, IDLYC, and IDLYC LLC from violating Sections 5 and 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder; Woods and Gelazela from violating Section 15(a)(1) of the Exchange Act; and Haglund from violating Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. The court ordered Wilde and Matrix to pay, jointly and severally, disgorgement of their ill-gotten gains in the amount of $12,106,810.75 plus pre-judgment interest, for a total of $13,589,505.56. The court further ordered Wilde and Matrix to pay a civil penalty equal to the amount of disgorgement plus prejudgment interest. In addition, the court ordered Woods, Gelazela, Haglund, BMW Majestic, IDLYC and IDLYC LLC to pay, jointly and severally, disgorgement of their ill-gotten gains in the amount of $6,195,908 plus pre-judgment interest, for a total of $6,744,083.49. The court's order also required Woods, Gelazela, Haglund, BMW Majestic, IDLYC and IDLYC LLC to pay a civil penalty equal to the amount of disgorgement plus prejudgment interest. The judgment also permanently bars Wilde and Haglund from acting as an officer or director of a public company.

The court also ordered several relief defendants, all of which are related to defendants, to disgorge a total of $2,153,000 in ill-gotten gains that they received:
IBalance LLC, an entity partially owned by Gelazela, was ordered to pay disgorgement of $1,000,000, plus prejudgment interest of $88,743.79;
Maureen Wilde, the wife of Francis Wilde, was ordered to pay disgorgement of $829,500, plus prejudgment interest of $67,412.85; and
Shillelagh Capital Corporation, an entity Wilde controls, was ordered to pay disgorgement of $323,500, plus prejudgment interest of $27,475.06.

SEC COMMISSIONER GALLAGHER SPEAKS TO U.S. CHAMBER CENTER FOR CAPITAL MARKETS COMPETITIVENESS

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION
Remarks before the U.S. Chamber Center for Capital Markets Competitiveness
byCommissioner Daniel M. Gallagher
U.S. Securities and Exchange CommissionWashington, D.C.
January 16, 2013

Thank you, David [Hirschmann], for that kind introduction. I’m very pleased to be here this afternoon addressing such strong supporters of American global leadership in capital formation, one of the foremost goals of the Commission. Before I continue, I must tell you that my comments today are my own, and do not necessarily represent the positions of the Commission or my fellow Commissioners.

As I’m sure you’re all aware, next Monday the nation will observe both the Inauguration and Martin Luther King Jr.’s birthday. What you may not be aware of is that Monday also marks the two-and-a-half-year anniversary of the enactment of the Dodd-Frank Act. To commemorate the occasion, I’d like to take a few moments today to talk about the Act — specifically, the misallocation of resources and opportunity costs that have arisen from the many false assumptions underlying the Act and how they continue to impact the Commission's everyday efforts to carry out its mission to protect investors, maintain fair, orderly, and efficient markets, and to facilitate and capital formation.

You can say this about the Dodd-Frank Act: it’s a perfect example of not letting a crisis go to waste. Indeed, the Act is a model of the new paradigm of legislation — a core concept, in this case regulatory reform, overwhelmed by a grab bag of wish-list items. What continues to amaze me about the Act is not only what it covers in its 2319 pages, but also the crucial regulatory issues it does not address. The juxtaposition of the two is jarring. The Act tasks the SEC with a mandate to create unprecedented new disclosure rules relating to conflict minerals from the Congo — but not to reform money market mutual funds, which, we were later told, are ticking time bombs of systemic risk. Dodd-Frank addresses extractive resource payments made by U.S. listed oil, gas and mining companies — but leaves the reform of Freddie Mac and Fannie Mae for another day. The Act fundamentally restructures the nation’s financial regulatory infrastructure by establishing the Financial Stability Oversight Council, not to mention the Consumer Financial Protection Bureau — but failed to eliminate the redundancy of having the SEC and the CFTC share jurisdiction over substantially similar and interrelated markets and products. Dodd-Frank creates a system of regulation for so-called SIFIs but does not address the shortcomings of the short-term funding model of banks that continue to be too big to fail. The Dodd-Frank Act's attempts to "solve" the financial crisis illustrate the peril of false narratives — it justifies its mandates as answers, but only after asking the wrong questions.

I suppose that this shouldn’t be a surprise given that the statute was not the product of bipartisan compromise and was enacted shortly after the onset of the crisis — and many months before the bodies charged with examining the causes of the crisis issued their reports. This was a markedly different approach than the deliberative process undertaken after the 1929 stock market crash.<sup>1

In total, the Dodd-Frank Act contains approximately 400 specific mandates to be implemented by agency rulemaking, with approximately a hundred applying directly to the SEC. The SEC has adopted final rules implementing nearly a third of those statutory mandates and continues to devote tremendous amounts of resources to drafting additional proposals, completing required studies, and implementing the new rules. The result has been a dramatic increase in both the volume and pace of SEC rulemaking. As I’ve said in the past, it’s no exaggeration to say that the Commission is handling ten times its normal rulemaking volume, with "normal" being the post Sarbanes-Oxley normal, itself a marked increase from the pace before that law’s enactment.

As a result, the SEC, like other regulators, is now dealing with the problem of rushed, inadequate rule proposals that were pushed out in a bid to meet arbitrary congressional deadlines. As you might expect, it is not easy to promulgate high quality final rules from faulty proposals. The Volcker Rule serves as a case in point.

This increased pace raises two sets of concerns. The first stems from the difference between getting rules done and getting them done right. Smart regulation requires taking the time to understand the problem that needs to be addressed, including not only the proximate cause of the problem but also the often complex and hidden factors underlying that problem. It is at this stage where the peril of false narratives is at its greatest, for incorrectly identifying the causes of a problem — whether outright or by oversimplifying complicated issues— makes finding the right solution far more difficult, if not impossible. And, it should go without saying that we need to ensure that we are performing a rigorous cost-benefit analysis of all rules, whether proposed or final.

The second set of concerns centers around the concept of opportunity cost and the misallocation of limited resources. I have no doubt that the businesses represented by the Chamber understand the concept of limited resources and the need to set clear and sensible priorities far better than does the federal government. Every hour spent by the SEC staff on drafting rules or carrying out studies to implement Dodd-Frank mandates represents one less staff hour spent focusing on the Commission’s core regulatory responsibilities.

I’m not here to enumerate the flaws of the legislation as a whole, but I'd like to spend a few moments using the Volcker Rule to illustrate both of these sets of concerns. As I’m sure you all know, the Dodd-Frank Act requires the three Federal banking agencies, the SEC, and the CFTC to adopt rules to implement two significant prohibitions on banking entities and their affiliates: a prohibition on engaging in proprietary trading, and a prohibition on sponsoring or investing in "covered funds" such as hedge funds or private equity funds. The Rule identifies certain specified "permitted activities," including underwriting, market making, and trading in certain government obligations, that are excepted from these prohibitions but also establishes limitations on those excepted activities. The legislative text of the Volcker Rule defines — in expansive terms — key concepts such as "proprietary trading" and "trading account" and grants the Federal Reserve Board, the FDIC, the OCC, the SEC, and the CFTC the rulemaking authority to further add to those definitions.

The banking agencies and the SEC issued a proposal in October 2011, with the CFTC following in February of last year. Fifteen months later, the rulemaking remains at the proposal stage, with ongoing talks between the agencies aiming to address the myriad concerns raised in over 18,000 comment letters regarding the dire, albeit presumably unintended, consequences they argue would result from the proposed implementing regulations.

And yet, "If you look at the crisis, most of the losses that were material for the weak institutions — and the strong, relative to capital — did not come from those [proprietary trading] activities. They came overwhelmingly from what I think you can describe as classic extensions of credit." Those aren’t my words — Treasury Secretary Geithner spoke them in September 2009. In case Secretary Geithner merely misspoke, I’ll provide another quote from a different speaker, this time from March 2010: "[P]roprietary trading in commercial banks was there but not central" to the financial crisis. That speaker? Paul Volcker.

Don’t get me wrong — as illustrated by notable hedging failures last year, bank trading and hedging practices can indeed be a whale of a problem. It’s just not a problem the Volcker Rule, or the Dodd-Frank Act as a whole, purport to address. Like much of the Act, the Volcker Rule is a solution in search of a problem.

The Act, however, is still the law of the land, and banks have long since accepted the Rule and its implications for their business activities. In fact, I’ve been told by several firms that although the implementing rules have yet to be finalized, they’ve taken significant steps to shut down their U.S. prop trading activities and, in some cases, have already done so completely. Even as firms have looked to the statutory text and spirit of the Rule and proactively taken action to bring their hedging and trading practices into compliance, however, high-level staff from five regulatory agencies continue to work behind closed doors to refine a rulemaking proposal that, according to a letter sent to the agencies by a bipartisan group of six Senators, "as drafted, could adversely affect Main Street businesses by reducing market liquidity and increasing the cost of capital."
2

In another comment letter, Senators Merkley and Levin, both strong supporters of the Volcker Rule, wrote, "The Volcker Rule demands Wall Street change its culture. Implemented in a smart, vigorous way, the Volcker Rule can both protect the U.S. economy and taxpayers from some of the gravest risks created by the nation's largest financial institutions, while providing plenty of space for these financial institutions to provide the plain vanilla, low-risk, client-oriented financial services that help the real economy grow."
3 These are certainly laudable goals. Almost uniformly, however, critics of the Volcker Rule argue that it is those very "plain vanilla," Main Street customer-facing products that will be harmed, not necessarily by the text of the Volcker Rule as set forth in the Dodd-Frank Act, but by the draconian interpretation of the Rule that the October 2011 proposed rules would impose upon the financial industry — and its customers. Notably, our foreign regulatory counterparts in Europe, Canada, and Japan have been some of the fiercest critics of the proposed implementing rules.

I had the opportunity last week to meet with regulators and industry participants in the UK and Ireland, where I encountered a distinct lack of enthusiasm for either the Volcker Rule or its "ring-fencing" counterpart proposals set forth by the UK Independent Commission on Banking and the European Union’s Liikanen Group. Indeed, Sir John Vickers, chairman of the Independent Commission, has already criticized the UK coalition government for backing away from his original proposal,
4 while the European Commission’s recent report summarizing the responses received to the Liikanen Report acknowledges the widespread opposition to the proposal in a charmingly understated fashion, stating, "In general, banks welcomed the Group's analysis, but argued that a compelling case for mandatory separation of trading activities has not been made. They felt that the proposal was not backed by the required evidence, and that there was a need for a thorough impact assessment."5 With all due respect to my friends in the European financial regulatory community, when a regulatory proposal is viewed within the European Union as being too harsh on the financial industry and harmful to markets, I think that’s a clear sign that it’s time to take a step back and reevaluate.

Regardless of what happens with respect to the Vickers or Liikanen proposals, even if all of the most vitriolic allegations Wall Street's harshest critics set forth are true — even if our financial giants act solely and ruthlessly out of craven self-interest — those financial institutions know that the Volcker Rule isn't going away. As such, they have already begun the process of determining which of their activities would be prohibited under the Rule as set forth in the text of the Dodd-Frank Act and proactively moving to shut down their truly proprietary trading desks as appropriate. Accordingly, as my friend and colleague Troy Paredes and I have often stated, the final regulations implementing the Volcker Rule should, for the most part, simply be a codification of what most banks have already done in response to the requirements set forth in the legislative text. The critics of the proposing release are no longer, if they ever did, realistically contemplating repeal of the Volcker Rule. They simply want us to get its implementing regulations right.

The October 2011 proposal fails to accomplish this goal by focusing only on the latter part of Senators Merkeley and Levin's call for the implementation of the Act in "a smart, vigorous way." Operating on the narrative that banks' proprietary trading practices were a central cause of the crisis, the proposal eschews a focus on smart regulation in favor of pursuing the most vigorous possible interpretation of the Rule's mandates. The proposal throws the baby out with the bathwater — along with the rubber ducky, the bathtub and all of the plumbing as well for good measure. Rather than carefully examining banks' trading practices to determine which of those practices constitute proprietary trading and which are instead customer-facing activities providing liquidity and reducing the cost of capital, it stretches its definitions of covered activity on an almost punitive basis, as if based on an assumption that any trading that could result in profits for the trading entity must fall within the ambit of the Volcker Rule's prohibitions.

This failure to separate market-critical, customer-facing activities from true proprietary trading illustrates the second set of concerns — opportunity costs and the misallocation of resources. The entire rulemaking exercise so far has been carried out in a manner that has wasted the resources of all of the agencies involved. By every account, the bank regulators have taken the lead role throughout the rulemaking process. Presumably, this stems from the fact that the Rule applies to the vast financial firms regulated at the bank holding company level by the bank regulators, coupled with the Byzantine nature of interagency rulemaking and the Washington power game. The Volcker Rule, however, isn't about the financial entities involved — or the relative political standing of the different regulatory agencies — but instead the activities in which those entities engage. Those activities — the trading and hedging practices of those entities — unquestionably fall within the core competencies of the SEC. For example, the SEC has built an extensive library of rulemaking and interpretive releases concerning exceptions for bona fide hedging or market making in the context of short sales. These exceptions, which date back to the early 1980s, built upon the bona fide hedging exceptions to the Commission’s proprietary trading rules for members of national securities exchanges set forth in a 1979 rulemaking. The Rule expressly envisions that quintessential market-making activity continue to be carried out by the firms affected by the Volcker Rule, yet the agency that has regulated securities market-making in order to facilitate liquidity and promote the efficient allocation of capital for decades has played a secondary role in drafting regulations to implement the Rule.

All of this comes with a cost. Both the Commission staff playing second fiddle and the banking regulators struggling to convert the widely lambasted proposing release into workable regulation could be focusing on other matters rather than spinning their wheels with no end in sight. Simply put, we could be spending our time in a far more productive manner, focusing on mandates that are critically important such as those in the JOBS Act, as well as addressing the SEC’s basic "blocking and tackling." Indeed, one personal frustration of mine has been the Commission's inability to fully implement what I believe is the most useful and important provision of the Dodd-Frank Act, the Section 939A mandate to remove all references to Commission-registered credit rating agencies, formally referred to as nationally recognized statistical rating organizations, from all agency regulations. This clear and direct mandate is actually responsive to one of the core problems underlying the financial crisis — overreliance on inaccurate credit ratings by both investors and regulators — yet the most important rules continue to include such references.

Meanwhile, FSOC, charged with averting the next financial crisis, is apparently spending more time hectoring the Commission — a purportedly "independent " agency — on the reform of money market funds — an issue that falls directly, and solely, within the Commission's regulatory sphere of responsibility but that was somehow not important enough to be addressed by the Dodd-Frank Act — than they are focusing on the bubbles that have the potential to cause another crisis. On the issue of money market funds, I am happy to report that Craig Lewis and his fine staff in our economic analysis division have completed the rigorous study and economic analysis that a bipartisan majority of Commissioners had long asked for in advance of considering new rulemaking. We are currently working with the economic analysis staff and the Division of Investment Management to shape a reform proposal based on that rigorous economic analysis.

Separately, I'm encouraged by Chairman Walter’s commitment, even as we continue to implement the Dodd-Frank mandates, to focusing as well on the everyday, core blocking-and-tackling issues that affect investors most. In the coming months, I look forward to working together to address the Commission's priorities — both short-term priorities such as the long-overdue amendments to the Commission's net capital and customer protection rules commonly referred to as the Onnig amendments and longer-term ones such as engaging in a formal, thorough evaluation of equity market structure issues, last done in a comprehensive manner in the Commission's Market 2000 Report all the way back in 1994.

For all the recent talk of gridlock in a divided Commission, I believe that notwithstanding our party and policy differences, this Commission is fully united in its desire to carry out the Commission’s mandate to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation. With a clear, data and analysis-based understanding of the problems we face and the complexity of their underlying causes coupled with a deliberate, measured allocation of our resources, I believe that the Commission can accomplish great things, and can avoid the mistakes of the past, over the course of the coming year. I thank you all for your attention as well as for your commitment to advancing our nation's global leadership in capital formation by supporting capital markets that are the most fair, efficient, and innovative in the world, and I wish you a productive and successful conference.</sup>

U.S. DISTRICT COURT ENTERS FINAL JUDGMENTS IN PENNY STOCK DISTRIBUTION SCHEME CHARGED BY THE SEC

FROM: U.S. SECURITIES AND EXCHANGE DEPARTMENT

The Securities and Exchange Commission ("Commission") announced today that the Honorable Roy B. Dalton, Jr. of the United States District Court for the Middle District of Florida entered final judgments against each of the five defendants in this case: Christel S. Scucci ("Scucci"), her mother Karen S. Beach ("Beach"), their companies Protégé Enterprises, LLC ("Protégé") and Capital Edge Enterprises, LLC ("Capital Edge"), and their attorney Cameron H. Linton, Esq. ("Linton"). The Commission’s complaint, filed on April 30, 2012, charged the defendants with a scheme to unlawfully acquire and sell shares of penny stock that were never registered for sale to the public, in violation of Section 5 of the Securities Act of 1933 ("Securities Act").

The final judgments imposed the relief detailed below:
On September 14, 2012, the Court entered a final judgment by consent as to defendant Linton: (1) permanently enjoining him from violating Section 5 of the Securities Act, (2) permanently enjoining him from providing professional legal services to any person in connection with the offer or sale of securities pursuant to, or claiming, an exemption under Securities Act Rule 144, or any other exemption from the registration provisions of the Securities Act, including, without limitation, participating in the preparation of any opinion letter relating to such offerings, (3) permanently barring him from participating in an offering of penny stock, and (4) ordering him to pay $13,750, including disgorgement of $6,250, and a civil penalty of $7,500. Linton consented to the entry of the final judgment without admitting or denying the allegations of the complaint.

In addition, Linton agreed to the issuance of a Commission order, pursuant to Rule 102(e) of the Commission’s Rules of Practice, suspending him from appearing or practicing before the Commission as an attorney, based on the entry of the injunction from violations of Section 5 of the Securities Act. In the Matter of Cameron H. Linton, Esq., Exchange Act Release No. 67912, September 21, 2012.
On November 5, 2012, the Court entered final judgments by default as to defendants Beach, Capital Edge, and Protégé: (1) permanently enjoining them from violating Section 5 of the Securities Act, (2) permanently barring them from participating in an offering of penny stock, (3) ordering Beach and Capital Edge to pay, jointly and severally, disgorgement and prejudgment interest totaling $268,936.73, ordering each to pay a civil penalty of $30,000, and (4) ordering Protégé to pay disgorgement and prejudgment interest totaling $1,419,143.16, and a civil penalty of $52,500.
On November 8, 2012, the Court entered a final judgment as to defendant Scucci: (1) permanently enjoining her from violating Section 5 of the Securities Act; (2) permanently barring her from participating in an offering of penny stock, and (3) ordering her to pay, jointly and severally with Protégé, disgorgement and prejudgment interest totaling $1,419,143.16, and to pay a civil penalty of $52,500. Scucci consented to the injunction and penny stock bar without admitting or denying the allegations of the complaint.

Eco Global Corporation, et al.

Eco Global Corporation, et al.

CEO PLEADS GUILTY TO CONSPIRACY TO BRIBE STOCK BROKERS

FROM: U.S. DEPARTMENT OF JUSTICE

Friday, January 11, 2013

Axius Ceo Roland Kaufmann Pleads Guilty to Conspiracy to Pay Bribes in Stock Sales


WASHINGTON – Roland Kaufmann, CEO of Axius Inc., pleaded guilty in Brooklyn for conspiring to bribe stock brokers, announced Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division and U.S. Attorney for the Eastern District of New York Loretta E. Lynch.

Kaufmann, 60, a Swiss citizen, pleaded guilty before U.S. District Judge John Gleeson in the Eastern District of New York to one count of conspiracy to violate the Travel Act.

"Roland Kaufmann conspired to bribe stock brokers and fleece investors in Axius stock," said Assistant Attorney General Breuer. "He took the crooked path, and now faces the prospect of years in prison. Although he committed his crimes from outside the United States, U.S. authorities tracked him down and he has now been held to account. This case shows our determination to prosecute all those who seek to corrupt U.S. securities markets."

"Roland Kaufman sought to game the system with his scheme to bribe stockholders to help him artificially raise the price of his company’s stock," said U.S. Attorney Lynch. "He reached across the ocean to insert his deception into U.S. markets, thereby placing investors at risk. We will continue to bring our resources to bear against anyone who would harm the integrity of United States capital markets for their own personal financial gain, even when those who try to exploit our investors are hatching their schemes from abroad."

"The flagrant market manipulation engaged in by Kaufmann was designed to make him rich," said George Venizelos, Assistant Director in Charge, FBI New York Field Office. "Absent the undercover agent, the scheme also would have made honest investors much poorer. The FBI is committed to policing the securities industry to prevent unjust enrichment for cheaters, victimization of honest investors, and the undermining of public confidence in market integrity."

"This case demonstrates the value of a coordinated approach by law enforcement authorities," said Richard Weber, Chief, Internal Revenue Service (IRS) Criminal Investigation. "As a result of the collaborative effort in this investigation, investors were protected from further financial harm. IRS Criminal Investigation is always ready to lend its financial investigative expertise to the investigation of complex and sophisticated financial crimes."

Kaufmann admitted to conspiring with co-defendant Jean-Pierre Neuhaus, another Swiss citizen, to violate the Travel Act by bribing stock brokers. Axius, which refers to itself as a "holding company and business incubator" that develops other businesses, is incorporated in Nevada, and its principal offices are in Dubai, United Arab Emirates. As part of the scheme, Kaufmann and Neuhaus, while located overseas, enlisted the assistance of an individual they believed had access to a group of corrupt stock brokers; this individual was in fact an undercover law enforcement agent. Kaufmann and Neuhaus believed that the undercover agent controlled a network of stockbrokers in the United States with discretionary authority to trade stocks on behalf of their clients.

According to court documents, Kaufmann and Neuhaus instructed the undercover agent to direct brokers to purchase Axius shares that were owned or controlled by Kaufmann in return for a secret kickback of approximately 26 to 28 percent of the sale price. Kaufmann and Neuhaus instructed the undercover agent as to the price the brokers should pay for the stock, and Kaufmann specifically instructed the undercover agent, in Neuhaus’s presence, that the brokers would have to pay gradually higher prices for the shares they were buying. Kaufmann and Neuhaus directed the undercover agent that the brokers were to refrain from selling the Axius shares they purchased on behalf of their clients for a one-year period. By preventing sales of Axius stock, Kaufmann and Neuhaus intended to maintain the fraudulently inflated share price for Axius stock. Kaufmann and Neuhaus agreed to sell approximately $3.5 million to $5 million worth of Axius shares through the undercover agent’s stock brokers.

Kaufmann and Neuhaus were arrested on March 8, 2012. On Oct. 10, 2012, Neuhaus pleaded guilty to conspiracy to commit securities fraud and violate the Travel Act.

At sentencing, scheduled for May 17, 2013, Kaufmann faces a maximum penalty of five years in prison. As part of his plea agreement, Kaufmann agreed to forfeit $298,740 that victims lost as a result of the crime.

This case is being prosecuted by Trial Attorney Justin Goodyear of the Criminal Division’s Fraud Section and Assistant U.S. Attorney Ilene Jaroslaw of the Eastern District of New York. The case was investigated by the FBI New York Field Office and the IRS New York Field Office. The department also thanks the Securities and Exchange Commission for its assistance in this matter.

Imreg, Inc., Innovative Holdings & Technologies, Inc., InnoVet, Inc., Institutional Properties 4, Interaction Media Corp., and International CRO Holdings Corp.

Imreg, Inc., Innovative Holdings & Technologies, Inc., InnoVet, Inc., Institutional Properties 4, Interaction Media Corp., and International CRO Holdings Corp.

Slide Presentation (PDF): Remarks before the 2012 AICPA National Conference on Current SEC and PCAOB Developments - International Reporting Issues, Washington, D.C.

Slide Presentation (PDF): Remarks before the 2012 AICPA National Conference on Current SEC and PCAOB Developments - International Reporting Issues, Washington, D.C.

TWO FORMER CORPOATE OFFICERS OF VOLT INFOMATION SCIENCES, INC., CHARGED WITH SECURITIES FRAUD

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION

SEC Charges Volt Information Sciences, Inc. and Two Former Officers with Securities Fraud
The Securities and Exchange Commission yesterday filed civil injunctive complaints in the U.S. District Court for the Southern District of New York in connection with improper accounting at Volt Information Sciences, Inc. ("Volt" or the "Company"), a company located in New York, New York.

In its complaint against Jack J. Egan, Jr. Volt’s former Chief Financial Officer, the Commission alleges that Egan participated in a scheme to materially overstate revenue. For Volt’s fourth quarter and fiscal year ended October 28, 2007, Egan signed and filed financial statements reporting $7.55 million of revenue that had not been earned and was not recognizable under U.S. Generally Accepted Accounting Principles. The $7.55 million of improper revenue caused Volt’s net income for its fourth quarter and fiscal year ended October 28, 2007, to be materially overstated. The complaint further alleges that the scheme relied on fabricated paperwork purporting to be a contract selling software to a customer. Egan knew that any sale of the software was impossible because Volt intended to lease the same software to the same customer the following year. Nevertheless, Egan authorized that the $7.55 million in improper revenue be included in the Company’s consolidated income statement for 2007, which were included in Volt’s: (1) 2007 Form 10-K filed with the Commission on January 11, 2008, as amended by Form 10-K/A filed with the Commission on February 25, 2008; and (2) earnings release on Form 8-K furnished to the Commission on December 20, 2007. Egan signed the fraudulent 2007 Form 10-K and subsequent SEC filings that included the same overstatement of revenue. In addition, the complaint alleges that Egan mislead Volt’s external auditors and he signed one or more certifications required by Section 302 of the Sarbanes Oxley Act that were false and misleading.

The Commission’s complaint charges Egan with violations of Section 17(a) of the Securities Act of 1933 ("Securities Act"); Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 ("Exchange Act"); and Exchange Act Rules 10b-5, 13b2-1, 13b2-2, and 13a-14. The complaint further charges Egan with aiding and abetting violations by the Company. The Commission seeks that Egan be permanently enjoined, be ordered to pay a civil money penalty, and be prohibited from acting as an officer or director.

In addition to the complaint against Egan, the Commission filed a settled civil action against Volt and Debra L. Hobbs ("Hobbs"), the former chief financial officer of the Volt subsidiary where the fraud originated. Without admitting or denying the complaint's allegations, Volt agreed to be enjoined from violating Section 17(a) of the Securities Act , and Sections 10(b),13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act and Exchange Act Rules 10b-5, 12b-20, 13a-1, and 13a-11. The Company cooperated during the Commission’s investigation and has undertaken significant remediation efforts.

I. Joseph Massoud

I. Joseph Massoud

IBroadband, Inc., et al.

IBroadband, Inc., et al.

ALLEGED NEW GOLD EXTRACTION PROCESS EXTRACTED FUNDS FROM INVESTORS

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION

The Securities and Exchange Commission today filed fraud charges against a California-based mining company and its CEO who induced hundreds of investors to pour $16 million into a fruitless gold mining venture.

The SEC alleges that Nekekim Corporation and Kenneth Carlton defrauded investors with representations that a special "complex ore" found at Nekekim's mine site in Nevada contained gold deposits worth at least $1.7 billion. Carlton highlighted test results produced by two small labs that used unconventional methods to test the ore for gold, but he withheld from investors other tests conducted by different firms that suggested the Nekekim mine site held little if any gold. The small labs' reliability also had been called into doubt by geologists and a government study. Yet as Nekekim failed to produce any mining revenue, Carlton gave shareholders false hope that the company was close to perfecting the custom method it supposedly needed to extract gold from its special ore.

Carlton agreed to settle the SEC's charges.

According to the SEC's complaint filed in federal court in Fresno, Calif., Nekekim succeeded in attracting investors from 2001 to 2011 in such U.S. states as California, Florida, and New Jersey as well as foreign countries including Canada, Australia, and Singapore. Carlton falsely represented to investors that a "physicist" who in reality had no scientific training helped develop a confidential gold extraction technique licensed by Nekekim. Carlton also promoted a series of other supposedly promising extraction methods in frequent reports to shareholders. In one newsletter, he touted: "A NEW GOLD RECOVERY PROCESS IS SUCCESSFUL." As each of these methods actually failed, Carlton's reports grossly overstated Nekekim's progress toward profitability while prompting shareholders to invest more money in the company.

Carlton, who lives in Clovis, Calif., agreed to a judgment requiring him to pay a $50,000 penalty and prohibiting him from selling securities for Nekekim or managing the company. He also will be prohibited from further violations of Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. Nekekim, based in Madera, Calif., agreed to a judgment prohibiting the same violations and requiring disclosure of these sanctions in any offering of securities for the next three years. Carlton and Nekekim neither admitted nor denied the SEC's allegations.

This case was investigated by Thomas Eme and Tracy Davis of the SEC's San Francisco office.

MATERIAL MISTATEMENTS DURING FINANCIAL CRISIS

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION

SEC Charges Three Former Senior Officers of Commonwealth Bank With Understating Losses and Material Misstatements During Financial Crisis
The Securities and Exchange Commission today charged three former bank executives in Virginia for understating millions of dollars in losses and masking the true health of the bank's loan portfolio at the height of the financial crisis.

The SEC alleges that Edward J. Woodard, Jr., who was the CEO, President and Chairman of the Board at Norfolk, Virginia-based Bank of the Commonwealth and its publicly-traded parent, Commonwealth Bankshares, along with Chief Financial Officer and Secretary Cynthia A. Sabol, a CPA, and Executive Vice President and Commercial Loan Officer Stephen G. Fields understated the bank's loan-related losses as well as losses on real estate repossessed by the bank (other real estate owned or OREO).

The SEC's complaint alleges that, from in or about November 2008 through August 2010, the consistent message in Commonwealth's SEC filings and public statements was that its portfolio of loans, which comprised approximately 94% and 81% of the company's total assets in 2008 and 2009, respectively, was conservatively managed according to strict underwriting standards aimed at keeping Commonwealth's reserved losses low during a time of unprecedented economic turmoil. In reality, internal practice deviated so much from what the investing public was told that, from November 2008 through August 2010, Commonwealth understated its ALLL by approximately 17% to 25% with a corresponding understatement to its reported loss before income taxes for fiscal year 2008 of approximately 64%; understated its OREO in two quarters by approximately 19% to 20%, which resulted in a corresponding understatement of Commonwealth's reported loss before income taxes in the first quarter of 2010 of approximately 35%; and underreported its total non-performing loans throughout the entire period by at least 30%.

The SEC's complaint further alleges that Woodard, as CEO, knew of the true state of Commonwealth's loan portfolio, was involved in the activity to hide the deterioration of many of the loans at issue and was responsible for the misleading public statements and in particular those in earnings releases. Sabol, as CFO, knew of the activity to mask the problems with the company's loan portfolio and the corresponding effect these masking practices had on the bank's financial statements and disclosures, yet signed the disclosures and certified to the investing public that they were accurate. Fields oversaw the bank's largest portfolio of construction and development loans and was involved in the masking practices.

The SEC's complaint charges Woodard and Sabol with violating Section 17(a) of the Securities Act of 1933, Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rules 10b-5, 13a-14, 13b2-1 and 13b2-2 thereunder, and aiding and abetting violations of Exchange Act Section 13(a) and Rules 12b-20, 13a-1, 13a-11 and 13a-13 thereunder. The SEC's complaint charges Fields with violating Exchange Act Section 13(b)(5) and aiding and abetting violations of Exchange Act Sections 10(b) and 13(a), and Rules 10b-5, 12b-20, 13a-1, 13a-11 and 13a-13 thereunder.

Exotics.com, Inc., et al.

Exotics.com, Inc., et al.

SEC CHARGES TWO AUDITORS FOR FAILURE AUDIT OF A NEBRASKA BANK

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION

SEC Charges Two KPMG Auditors for Failed Audit of Nebraska Bank Hiding Loan Losses During Financial Crisis

Washington, D.C., Jan. 9, 2013 — The Securities and Exchange Commission today charged two auditors at KPMG for their roles in a failed audit of a Nebraska-based bank that hid millions of dollars in loan losses from investors during the financial crisis and eventually was forced to file for bankruptcy.

The SEC previously charged three former TierOne Bank executives responsible for the scheme. Two executives agreed to settle the SEC’s charges, and the case continues against the other.

The new charges in the SEC’s case are against KPMG partner John J. Aesoph and senior manager Darren M. Bennett. The SEC’s investigation found that they failed to appropriately scrutinize management’s estimates of TierOne’s allowance for loan and lease losses (known as ALLL). Due to the financial crisis and problems in the real estate market, this was one of the highest risk areas of the audit, yet Aesoph and Bennett failed to obtain sufficient evidence supporting management’s estimates of fair value of the collateral underlying the bank’s troubled loans. Instead, they relied on stale information and management’s representations, and they failed to heed numerous red flags when issuing unqualified opinions on TierOne’s 2008 financial statements and the bank’s internal controls over its financial reporting.

"Aesoph and Bennett merely rubber-stamped TierOne’s collateral value estimates and ignored the red flags surrounding the bank’s troubled real estate loans," said Robert Khuzami, Director of the SEC’s Division of Enforcement. "Auditors must adhere to professional auditing standards and exercise due diligence rather than merely relying on management’s representations."

According to the SEC’s order instituting administrative proceedings against Aesoph, who lives in Omaha, and Bennett, who lives in Elkhorn, Neb., the auditors failed to comply with professional auditing standards in their substantive audit procedures over the bank’s valuation of loan losses resulting from impaired loans. They relied principally on stale appraisals and management’s uncorroborated representations of current value despite evidence that management’s estimates were biased and inconsistent with independent market data. Aesoph and Bennett failed to exercise the appropriate professional skepticism and obtain sufficient evidence that management’s collateral value and loan loss estimates were reasonable.

According to the SEC’s order, the internal controls identified and tested by the auditing engagement team did not effectively test management’s use of stale and inadequate appraisals to value the collateral underlying the bank’s troubled loan portfolio. For example, the auditors identified TierOne’s Asset Classification Committee as a key ALLL control. But there was no reference in the audit work papers to whether or how the committee assessed the value of the collateral underlying individual loans evaluated for impairment, and the committee did not generate or review written documentation to support management’s assumptions. Given the complete lack of documentation, Aesoph and Bennett had insufficient evidence from which to conclude that the bank’s internal controls for valuation of collateral were effective.

The SEC’s order alleges that Aesoph and Bennett engaged in improper professional conduct as defined in Section 4C of the Securities Exchange Act of 1934 and Rule 102(e)(1)(ii) of the Commission’s Rules of Practice. A hearing will be scheduled before an administrative law judge to determine whether the allegations contained in the order are true and what, if any, remedial sanctions are appropriate pursuant to Rule 102(e). The administrative law judge will issue an initial decision no later than 300 days from the date of service of the order.

The SEC’s investigation of the auditors was led by Mary Brady and Michael D’Angelo of the Denver Regional Office. Barbara Wells and Nicholas Heinke will lead the Enforcement Division’s litigation in the administrative proceeding.

SEC CHARGES THREE FORMER BANK EXECUTIVES WITH UNDERSTATING LOSSES

FROM: U.S. SECURITIES AND EXCHANGE COMMISSION

Washington, D.C., Jan. 9, 2013 — The Securities and Exchange Commission today charged three former executives at Norfolk, Va.-based Bank of the Commonwealth for understating millions of dollars in losses and masking the true health of the bank’s loan portfolio at the height of the financial crisis.

The SEC alleges that Edward J. Woodard, who was CEO, president, and chairman of the board, was responsible along with CFO Cynthia A. Sabol and executive vice president Stephen G. Fields for misrepresentations to investors by the bank’s parent company Commonwealth Bankshares. The consistent message in Commonwealth’s public statements and SEC filings was that its portfolio of loans — which comprised approximately 94 percent of the company’s total assets in 2008 — was conservatively managed according to strict underwriting standards aimed at keeping the bank’s reserved losses low during a time of unprecedented economic turmoil.

In reality, the SEC alleges that internal practice deviated significantly from what the public was being told. Woodard knew the true state of Commonwealth’s rapidly-deteriorating loan portfolio, yet he worked to hide the problems and engineer the misleading public statements, particularly those made in earnings releases. Sabol knew of the activity to mask the problems with the company’s loan portfolio and the corresponding effect these masking practices had on the bank’s financial statements and disclosures, yet she signed the disclosures and certified to the investing public that they were accurate. Fields oversaw the bank’s largest portfolio of construction and development loans and was involved in the masking practices.

"During times of financial stress, it’s more important than ever for executives to make full and honest disclosure to the investing public," said Scott W. Friestad, Associate Director of the SEC’s Division of Enforcement. "Commonwealth’s executives did the opposite and hid the company’s worsening performance from shareholders through masking practices that understated the losses on its most troubled loans."

According to the SEC’s complaint filed in U.S. District Court for the Eastern District of Virginia, Commonwealth understated its allowance for loan and lease losses (known as ALLL) by approximately 17 to 25 percent from November 2008 to August 2010. This caused the bank to understate its reported loss before income taxes by approximately 64 percent for fiscal year 2008. Commonwealth also understated its losses on real estate repossessed by the bank (known as OREO) in two fiscal quarters, which caused the bank to understate its reported loss before income. For eight consecutive fiscal quarters, Commonwealth underreported its total non-performing loans.

The SEC’s complaint alleges that Commonwealth obtained an appraisal for its largest collateral-dependent loan that falsely inflated the value of the collateral. The bank executed hundreds of "change-in-terms agreements" at the end of the quarter to remove tens of millions of dollars of loans from its reported non-performing loans. Woodard, Sabol, and Fields helped enable the bank to artificially bring otherwise-delinquent loans current by permitting checking accounts associated with the guarantors of the delinquent loans to be overdrawn. The bank also disbursed loan proceeds without inspecting the property to confirm that the work requiring the disbursement had actually been performed.

The SEC’s complaint charges Woodard, Sabol, and Fields with violations of the antifraud, reporting, recordkeeping, internal controls, deceit of auditors, and Sarbanes-Oxley certification provisions of the federal securities laws.

The SEC’s investigation, which is continuing, has been conducted by Laura B. Josephs, Thomas D. Silverstein, David S. Karp, Lucas R. Moskowitz, and David Estabrook. The SEC’s litigation will be led by Richard Hong. The SEC appreciates the cooperation of the Federal Bureau of Investigation, the U.S. Attorney’s Office for the Eastern District of Virginia, the Office of the Special Inspector General for the Troubled Asset Relief Program, the Board of Governors of the Federal Reserve Board, the Federal Reserve Bank of Richmond, the Federal Deposit Insurance Corporation, and the Bureau of Financial Institutions of the Virginia State Corporation Commission.

FORMER FINANCIAL SERVICES BROKER SENTENCED TO SERVE

FROM: U.S. JUSTICE DELPARTMENT
 
WASHINGTON — A former financial services broker was sentenced today in U.S. District Court for the Southern District of New York, for his participation in conspiracies related to bidding for contracts for the investment of municipal bond proceeds and other municipal finance contracts, the Department of Justice announced.

Adrian Scott-Jones, of Morriston, Fla. , a former broker for Tradition N.A. , was sentenced by District Court Judge Harold Baer Jr. for his role in the conspiracies. Scott-Jones was sentenced to serve 18 months in prison and to pay a $12,500 criminal fine.

"From soliciting intentionally losing bids for investment agreements to paying out kickbacks to manipulate the competitive bidding process, the conspirators went to great lengths to defraud municipalities across the country," said Scott D. Hammond, Deputy Assistant Attorney General for the Antitrust Division's criminal enforcement program. "Today's sentence sends a clear message that the division will continue to hold executives accountable for their anticompetitive conduct. "

On Sept. 8, 2010, Scott-Jones pleaded guilty to participating in multiple conspiracies with executives of General Electric Co. (GE) affiliates, from as early as 1999 until 2006. According to the charges, GE and other financial institutions and insurance companies (providers), offered a type of contract, known as an investment agreement, to state, county and local governments and agencies throughout the United States. The public entities hired brokers like Scott-Jones and Tradition to conduct bidding for contracts to invest money from a variety of sources, primarily the proceeds of municipal bonds issued to raise money for, among other things, public projects. Scott-Jones also participated in a conspiracy with representatives of a second provider located in New York City.

According to court documents, in each conspiracy, Scott-Jones gave co-conspirators information about the prices, price levels or conditions in competitors' bids, a practice known as a "last look," which is explicitly prohibited by U.S. Treasury regulations. Scott-Jones also solicited and received intentionally losing bids for certain investment agreements and other municipal finance contracts. As a result of Scott-Jones’ role in corrupting the bidding process for investment agreements, he and his co-conspirators deprived the municipalities of competitive interest rates for the investment of tax-exempt bond proceeds used by municipalities for various public works projects, such as water pollution abatement projects and low-cost housing. The department said that the conspiracies cost municipalities around the country millions of dollars.

"Today's sentencing reaffirms the ongoing success of our efforts to weed out corruption in the municipal bond market," said George Venizelos, Acting Director in Charge of the FBI in New York. "The FBI will continue to work closely with our partners from the Antitrust Division to protect the integrity of the competitive bidding process in public finance. "

"Individuals who manipulate the competitive bidding system to benefit themselves will be held accountable for their criminal activity," said Richard Weber, Chief, Internal Revenue Service Criminal Investigation (IRS-CI). "Quite simply, Mr. Scott-Jones profited at the expense of the towns and cities that needed the money for important public works projects. IRS Criminal Investigation is committed to working with our law enforcement partners to uncover this kind of corruption and secure justice for American taxpayers. "

A total of 20 individuals have been charged as a result of the department's ongoing municipal bonds investigation, 19 of whom have been convicted at trial or pleaded guilty; one is currently awaiting trial. Additionally, one company has pleaded guilty.

The sentences announced today resulted from an ongoing investigation conducted by the Antitrust Division's New York Office, the FBI and IRS-CI. The division is coordinating its investigation with the U.S. Securities and Exchange Commission, the Office of the Comptroller of the Currency and the Federal Reserve Bank of New York.

Today's convictions are part of efforts underway by President Obama's Financial Fraud Enforcement Task Force (FFETF), which was created in November 2009 to wage an aggressive, coordinated and proactive effort to investigate and prosecute financial crimes. With more than 20 federal agencies, 94 U.S. Attorneys' offices and state and local partners, it's the broadest coalition of law enforcement, investigatory and regulatory agencies ever assembled to combat fraud. Since its formation, the task force has made great strides in facilitating increased investigation and prosecution of financial crimes; enhancing coordination and cooperation among federal, state and local authorities; addressing discrimination in the lending and financial markets and conducting outreach to the public, victims, financial institutions and other organizations. Over the past three fiscal years, the Justice Department has filed more than 10,000 financial fraud cases against nearly 15,000 defendants including more than 2,700 mortgage fraud defendants. For more information on the task force, visit www.stopfraud.gov.

SEC Names Geoffrey Aronow as General Counsel

SEC Names Geoffrey Aronow as General Counsel

SEC OBTAINS JUDGEMENTS AGAINST FORMER SPONGETECH EXECUTIVES MICHAEL E. METTER AND STEVEN Y. MOSKOWITZ

FROM: SECURITIES AND EXCHANGE COMMISSION
 
The Securities and Exchange Commission announced that on December 18, 2012 and June 12, 2012, the Honorable Judge Dora L. Irizarry, United States District Judge for the Eastern District of New York, entered Judgments against, respectively, Michael E. Metter ("Metter"), the former Chief Executive Office of Spongetech Delivery Systems, Inc. ("Spongetech"), and Steven Y. Moskowitz ("Moskowitz"), Spongetech’s former Chief Financial Officer. The judgments permanently enjoin Metter and Moskowitz from violating antifraud and securities registration provisions of the federal securities laws, as well as reporting, recordkeeping, and internal controls provisions. The Judgments also bar Metter and Moskowitz from serving as an officer or director of a public company, bar them from engaging in any offering of penny stock, and order them to pay penalties and disgorgement in amounts to be determined by the court, upon motion by the Commission. On September 20, 2012, the Commission instituted a settled administrative proceeding suspending Moskowitz from appearing or practicing before the Commission as an accountant.

The Commission’s complaint, filed on May 5, 2010, alleged that Metter, Moskowitz, Spongetech, and others engaged in a scheme to increase demand illegally for, and profit from, the unregistered sale of publicly-traded Spongetech stock by, among other things, "pumping" up demand for the stock through false public statements about non-existent customers, fictitious sales orders, and phony revenue. They also repeatedly and fraudulently understated the number of Spongetech’s outstanding shares in press releases and public filings. The purpose of flooding the market with false public information was to fraudulently inflate the price for Spongetech shares so the defendants and others could then "dump" the shares by illegally selling them to the public through affiliated entities in unregistered transactions. Among other things, the complaint further alleged that Spongetech, at the direction of Metter and Moskowitz, filed periodic reports with the Commission that contained materially false and misleading statements and materially overstated revenues, created materially false purchase orders, invoices, and other documents, and failed to ensure that Spongetech maintained accurate books and records or implemented effective internal controls. Metter and Moskowitz consented to the entry of the Judgments without admitting or denying the allegations of the Commission’s complaint.

The Commission previously obtained judgments against other defendants in this action. On November 10, 2011, the court entered a judgment by consent against Spongetech. The judgment imposed full injunctive relief and ordered Spongetech to pay penalties and disgorgement in amounts to be determined by the court, upon motion by the Commission.

On March 6, 2012, the court entered final judgments against RM Enterprises International, Inc. ("RM Enterprises"), a Spongetech affiliate, and George Speranza, a stock promoter. The final judgments imposed full injunctive relief against both, ordered Speranza to pay penalties, disgorgement, and prejudgment interest totaling $135,883.40, and barred Speranza from participating in any penny stock offering. The court deferred ruling on monetary remedies against RM Enterprises until the claims against other defendants are resolved.

Status of the Commission’s Spongetech Litigation

On March 14, 2011, the court issued an order granting the SEC’s motion for preliminary injunctions against six defendants, and granted the SEC’s requests for asset freezes against Metter, Moskowitz, and RM Enterprises. An asset freeze was not entered against Spongetech because the company filed for bankruptcy in July 2010, and has since been controlled by a court-appointed bankruptcy trustee. The asset freezes entered against Metter, Moskowitz, and RM, as subsequently modified by the court, remain in effect, as does the preliminary injunction entered against defendant Joel Pensley.

On March 27, 2012, the court granted the Commission’s motion to add BusinessTalkRadio.net, Inc. ("BTR") and Blue Star Media Group, Inc. ("Blue Star") as relief defendants. The amended complaint alleges that in 2009, RM Enterprises transferred illicit proceeds from the Spongetech fraud to satisfy a judgment that had been entered against Metter, these entities, and others.

The Commission’s action remains pending against BTR, Blue Star, and two of Spongetech’s former attorneys, Pensley and Jack Halperin, who are charged with violating the antifraud provisions by authoring false and misleading opinion letters to improperly remove the restrictions on trading shares of Spongetech stock.

On December 19, 2011, in a separate action, the court entered a Final Judgment permanently enjoining Myron Weiner from violating the securities registration provisions in connection with his purchase and sale of Spongetech’s stock, imposing a one-year penny stock bar, and ordered him to pay disgorgement and penalties totaling over $1.3 million. SEC v. Myron Weiner, Civil Action No. 11-CV-5731 (E.D.N.Y.). [See Litigation Release No. 22168 (Nov. 23, 2011), Litigation Release No. 22206 (Dec. 21, 2011)].

The Parallel Criminal Action

On May 5, 2010, the United States Attorney’s Office for the Eastern District of New York (USAO-EDNY) arrested Metter and Moskowitz, who were indicted for conspiracy to commit securities fraud and obstruction of justice, securities fraud, obstruction of justice, conspiracy to commit money laundering, and perjury. On October 14, 2010, the USAO-EDNY filed a superseding indictment against Speranza and four former Spongetech employees – Andrew Tepfer, Seymour Eisenberg, Thomas Cavanagh, and Frank Nicolois – on charges including securities fraud, obstruction of justice, money laundering, structuring, and contempt.

All of the criminal defendants have entered guilty pleas, with the exception of Metter. Moskowitz pleaded guilty to securities fraud and is awaiting sentencing. Speranza pleaded guilty to perjury for giving false testimony during the SEC’s investigation, and was sentenced to five years of probation. Cavanagh and Nicolois pleaded guilty to structuring transactions to avoid federal currency transaction reporting requirements, and were sentenced to 24 months and 16 months in prison, respectively, followed by three years of supervised release. Eisenberg and Tepfer also have pleaded guilty to securities fraud and await sentencing.

The Commission’s investigation is continuing, and is being conducted by Uta von Eckartsberg, Charles Davis, Scott Stanley, and Alexander Koch. The SEC’s lead trial counsel in the pending civil action is Paul Kisslinger.