INJUNCTIVE ACTON FILED TO HALT COMMON STOCK MANIPULATION SCHEME

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

Litigation Release No. 23157 / December 15, 2014

Securities and Exchange Commission v. Douglas Furth, Civil Action No. 14 Civ.7254 (LDW) (E.D.N.Y.)

SEC Charges Stock Promoter with Market Manipulation

The Securities and Exchange Commission ("Commission") filed a civil injunctive action on December 12, 2014, in the United States District Court for the Eastern District of New York, charging Douglas Furth, a stock promoter who resides in Solon, Ohio, with manipulating the common stock of SearchPath HCS, Inc. ("SearchPath").

The Commission's complaint alleges that from at least September to December 2010, Furth engaged in a fraudulent broker bribery scheme designed to manipulate the market for SearchPath stock through matched trades. The complaint also alleges that Furth entered into a kickback arrangement with an individual ("Individual A") who claimed to represent a group of registered representatives with trading discretion over the accounts of wealthy customers. Furth promised to pay a 30% kickback to Individual A and the registered representatives he represented in exchange for the purchase of up to $10-30 million of SearchPath stock.

The Commission's complaint further alleges that on October 13-15 and December 6-10, in accordance with the illicit arrangement, Furth instructed Individual A to purchase approximately 52 million shares of SearchPath stock for a total of approximately $80,000. Furth gave Individual A detailed instructions concerning the size, price and timing of the orders. Thereafter, Furth paid Individual A bribes of approximately $24,000 for those purchases.

The complaint charges Furth with violating Section 17(a)(1) of the Securities Act of 1933 and Sections 9(a)(1) and 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5(a) and (c) thereunder. The Commission seeks permanent injunctive relief from Furth, disgorgement of ill-gotten gains, if any, plus pre-judgment interest, civil penalties, and a penny stock bar.

The Commission acknowledges assistance provided by the U.S. Attorney's Office for the Eastern District of New York and the Federal Bureau of Investigation in this matter.

Investor Bulletin: How Harmed Investors May Recover Money

Investor Bulletin: How Harmed Investors May Recover Money

CFTC ORDERS DEUTSCHE BANK TO PAY $3 MILION TO SETTLE VIOLATION CHARGES

FROM:  U.S. COMMODITY FUTURES TRADING COMMISSION 

December 22, 2014

CFTC Orders Deutsche Bank Securities Inc. to Pay $3 Million to Settle Charges of Improper Investment of Customer Segregated Funds, Reporting and Recordkeeping Violations, and Supervision Failures

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today issued an order filing and simultaneously settling charges against Deutsche Bank Securities Inc. (DBSI), a registered Futures Commission Merchant (FCM) based in New York, N.Y., for failing to properly invest customer segregated funds, failing to prepare and file accurate financial reports, failing to maintain required books and records, and for related supervisory failures. None of the violations resulted in any customer losses, according to the CFTC’s Order. The Order requires DBSI to pay a $3 million civil monetary penalty and to cease and desist from violating the CFTC Regulations, as charged. DBSI is an indirect, wholly-owned subsidiary of the parent company, Deutsche Bank AG.

Specifically, the CFTC’s Order finds that, for the period June 18, 2012 through August 15, 2012, DBSI failed to accurately compute the amount of customer funds on deposit. As a result of these miscalculations, DBSI’s investment of customer funds in certain money market mutual funds during that period exceeded the 50% asset-based concentration limit for such investments in violation of CFTC Regulation 1.25(b)(3)(i)(F).

The Order also finds that on at least six occasions between June 2011 and March 2013, DBSI failed to file accurate financial statements with the CFTC in a timely manner in violation of CFTC Regulation 1.10. According to the Order, DBSI did not have automated processes in place designed to ensure the accuracy of the firm’s financial reporting. Consequently, DBSI filed six amended FOCUS Reports as a result of the errors, the Order finds. The CFTC Order further finds that DBSI failed to create and maintain complete and systematic records, such as order tickets, for a number of block trades it executed at various times throughout October 1, 2009 and March 16, 2012 in violation of CFTC Regulation 1.35.

The CFTC Order finds that each of these violations was a result of DBSI’s failure to maintain adequate controls and systems, reflecting a lack of supervision over its business as a CFTC registrant in violation of CFTC Regulation 166.3.

CFTC Director of the Division of Enforcement, Aitan Goelman, said, “This case demonstrates that the Commission takes the sufficiency of its registrants’ internal controls very seriously, and expects that these internal controls will both address known issues and identify regulatory risks to minimize the possibility of violations like this.”

The Order recognizes DBSI’s cooperation and corrective action it undertook after its deficiencies were discovered.

The CFTC’s Enforcement Division thanks Jerry Nudge, Kevin Piccoli, Mortimer Rollins and Robert Laverty of the CFTC’s Division of Swap Dealer and Intermediary Oversight for their assistance in this matter.

CFTC Division of Enforcement staff members responsible for this matter are Susan Gradman, Brigitte Weyls, Lindsay Evans, Joseph Patrick, Scott Williamson, Rosemary Hollinger, and Richard Wagner.

SEC CHARGES EQUITY RESEARCH FIRM OWNER WITH MANIPULATING MARKET FOR PUBLICLY TRADED STOCK

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission announced charges against a Phoenix-based equity research firm owner who allegedly manipulated the market for a publicly traded stock he was soliciting investors to purchase.

 The SEC Enforcement Division alleges that after a company hired his firm to assist in two private placement offerings, Paul Pollack repeatedly engaged in wash trading, which involves the simultaneous or near-simultaneous purchase and sale of a security to make it appear actively traded without an actual change in beneficial ownership of the stock.  According to the order instituting an administrative proceeding, Pollack conducted approximately 100 wash trades where the buy or sell orders came within 90 seconds of each other at prices and quantities that were virtually identical.  The wash trades are alleged to have occurred during a nearly one-year period and created the false and misleading appearance of consistent active trading in the otherwise thinly traded stock.

 The SEC Enforcement Division further alleges that Pollack and his firm Montgomery Street Research LLC violated federal securities laws by acting as brokers on behalf of the company without first registering with the SEC.

 Wash trading is an abusive practice that misleads the market about the genuine supply and demand for a stock,” said Thomas J. Krysa, Associate Director of Enforcement in the SEC’s Denver Regional Office.  “In this case, we allege that Pollack engaged in this type of trading, and he and his firm acted as unregistered brokers outside the boundaries of the law by effecting transactions in securities and avoiding SEC oversight and examinations that protect the interests of investors.”

The SEC Enforcement Division alleges that Pollack and Montgomery Street Research raised more than $2.5 million from 11 investors after being hired by the company to raise money and make introductions to potential investors in its stock.  Among other things, they identified and solicited potential investors, provided financial information regarding the issuer, fielded investor inquiries, and in some instances received transaction-based compensation.

The SEC Enforcement Division alleges that Pollack and Montgomery Street willfully violated Section 15(a)(1) of the Securities and Exchange Act of 1934 and that Pollack willfully violated Section 9(a)(1) and Section 10(b) of the Exchange Act of 1934, and Rules 10b-5(a) and 10b-5(c).  The matter will be scheduled for a public hearing before an administrative law judge for proceedings to adjudicate the Enforcement Division’s allegations and determine what, if any, remedial actions are appropriate.

The SEC Enforcement Division’s investigation was conducted by Kurt L. Gottschall and Marc D. Ricchiute in the Denver Regional Office with assistance from staff in the Enforcement Division’s Center for Risk and Quantitative Analytics.  The Enforcement Division’s litigation will be led by Mr. Ricchiute and Gregory A. Kasper.  The SEC appreciates the assistance of the Financial Industry Regulatory Authority.

MF GLOBAL ORDERED TO PAY OVER $1.2 BILLION RESULTING FROM UNLAWFUL USE OF CUSTOMER FUNDS

FROM:  U.S. JUSTICE DEPARTMENT 
December 24, 2014
Federal Court in New York Orders MF Global Holdings Ltd. to Pay $1.212 Billion in Restitution for Unlawful Use of Customer Funds and Imposes a $100 Million Penalty

Washington, DC - The U.S. Commodity Futures Trading Commission (CFTC) has obtained a federal court consent Order against Defendant MF Global Holdings Ltd. (MFGH) requiring it to pay $1.212 billion in restitution or such amount as necessary to ensure that claims of customers of its subsidiary, MF Global Inc. (MFGI), are paid in full. The CFTC previously filed and settled charges against MFGI for misuse of customer funds and related supervisory failures in violation of the Commodity Exchange Act and CFTC Regulations (see CFTC Press Release 6776-13). MFGI was required to pay $1.212 billion in restitution to its customers, as well as a $100 million penalty. MFGH’s restitution obligation is joint and several with MFGI’s restitution obligation, pursuant to which a substantial portion of the restitution obligation has already been paid (see CFTC Press Prelease 6904-14). The consent Order, entered on December 23, 2014, by Judge Victor Marrero of the U.S. District Court for the Southern District of New York, also imposes a $100 million civil monetary penalty on MFGH, to be paid after claims of customers and certain other creditors entitled to priority under bankruptcy law have been fully paid.

The consent Order arises out of the CFTC’s amended Complaint, filed on December 6, 2013, charging MFGH and the other Defendants with unlawful use of customer funds. In the consent Order, MFGH admits to the allegations pertaining to its liability based on the acts and omissions of its agents as set forth in the consent Order and the amended Complaint.

The CFTC’s amended Complaint charged that MFGH controlled MFGI’s operations and was responsible for MFGI’s unlawful use of customer segregated funds during the last week of October 2011. In addition to the misuse of customer funds, the amended Complaint alleged that MFGH is responsible for MFGI’s (i) failure to notify the CFTC immediately when it knew or should have known of the deficiencies in its customer accounts, (ii) filing of false statements in reports with the CFTC that failed to show the deficits in the customer accounts, and (iii) use of customer funds for impermissible investments in securities that were not considered readily marketable or highly liquid, in violation of CFTC regulations.

The CFTC’s litigation continues against the remaining Defendants, Jon S. Corzine and Edith O’Brien.

The CFTC appreciates the assistance of the U.S. Attorneys’ Offices for the Southern District of New York and the Northern District of Illinois, the Federal Bureau of Investigation, the Securities and Exchange Commission, and the Financial Conduct Authority in the United Kingdom.

The consent Order recognizes the cooperation of MFGH and requires MFGH’s continued cooperation with the CFTC.

Staff from the CFTC’s Division of Swap Dealer and Intermediary Oversight, Division of Clearing and Risk, and Office of Data and Technology assisted in this matter. CFTC Division of Enforcement staff members responsible for this matter are David W. Oakland, Chad Silverman, K. Brent Tomer, Douglas K. Yatter, Steven Ringer, Lenel Hickson, and Manal Sultan.

CFTC REPORTS COURT HAS ORDERED RBC TO PAY $35 MILLION FOR ILLEGAL TRANSACTIONS

FROM:  U.S. COMMODITY FUTURES TRADING COMMISSION 

December 18, 2014

Federal Court Orders Royal Bank of Canada to Pay $35 Million Penalty for Illegal Wash Sales, Fictitious Sales, and Noncompetitive Transactions

Canadian Bank Traded Single Stock Futures and Narrow-Based Stock Index Futures on OneChicago Futures Exchange

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today announced that on December18, 2014, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York entered a Consent Order for Permanent Injunction and Civil Monetary Penalty against Royal Bank of Canada (RBC) for engaging in more than 1,000 illegal wash sales, fictitious sales, and noncompetitive transactions over a three-year period.  The Order enjoins RBC from committing future violations of the wash sale, fictitious sale, and noncompetitive transaction prohibitions of the Commodity Exchange Act and the CFTC’s Regulations, and requires RBC to pay a civil monetary penalty of $35 million.

CFTC Director of Enforcement Aitan Goelman stated: “Illegal wash trades may seem innocuous. They are not.  They provide misleading signals to the market and are thus prohibited, whether their purpose is to lessen a foreign tax bill or another reason.  This matter clearly demonstrates that the CFTC will vigorously enforce this prohibition to protect the integrity of our markets.”

The court’s Order arises from a Complaint filed by the CFTC on October 17, 2012, that charged RBC with engaging in illegal wash sales, fictitious sales, and noncompetitive transactions involving stock futures contracts, among other illegal conduct (see CFTC Press Release 6223-12, April 2, 2012).  In its Order, the court found that between June 1, 2007 and May 31, 2010, RBC knowingly executed 1,026 illegal wash sales and fictitious sales of narrow-based stock index futures (NBI) and single stock futures (SSF) contracts.  RBC conducted the transactions as block trades through its branches and internal trading accounts trading opposite two of RBC’s off-shore subsidiaries, and executed the trades on the OneChicago, LLC futures exchange in Chicago, Illinois.  The court also found that RBC’s NBI and SSF transactions were noncompetitive transactions prohibited by CFTC Regulations.

According to the Order, senior RBC personnel designed the trading strategy, which was motivated in part by tax benefits it generated for the RBC corporate group.  The Order states that, as designed, RBC and its subsidiaries entered into the NBI and SSF trades so that RBC entities would be both buyer and seller in the transactions, initiated with the express or implied understanding that they would later unwind the positions opposite each other through offset or delivery, and that the trades were equal and offsetting in all material respects:  They involved the trading of the same quantity of the same futures contracts at the same price and time, and therefore achieved a wash result for RBC.  Further, the Order states that the employees who oversaw RBC’s NBI and SSF trading knew that the trades negated the market risk inherent in normal futures transactions because the profits and losses that accrued to the RBC entities participating in the trades were ultimately consolidated in the RBC corporate group’s overall profits and losses, where they netted to zero, and were therefore economic and futures market nullities for the bank.

Finally, the Order finds that RBC’s trades were noncompetitive because RBC failed to timely report part of each trade to the OneChicago futures exchange, in violation of the exchange’s written rules.  Because the trades did not comply with the written rules of the exchange, they violated a CFTC Regulation requiring futures transactions to be executed openly and competitively on designated contract markets in accordance with the exchange’s written rules.

CFTC Division of Enforcement staff members responsible for this action are David Slovick, Lindsey Evans, Susan Gradman, Amanda Harding, Joseph Patrick, Scott Williamson, Rosemary Hollinger, and Richard Wagner. The Division of Enforcement also recognizes the contributions of CFTC Division of Market Oversight staff.

OWNER HOME RESTORATION BUSINESS CHARGED WITH SECURITIES FRAUD

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

12/12/2014 11:50 AM EST

The Securities and Exchange Commission today announced securities fraud charges against the owner of a home restoration business in upstate New York who sold unsecured notes to investors to finance his real estate operations.

The SEC alleges that David Fleet misrepresented or failed to disclose a number of key facts to investors in Cornerstone Homes Inc., which was in the business of buying and restoring distressed single family homes to sell or rent to low-income customers.  For example, investors were told that the company did not use bank financing during time periods when Fleet was heavily reliant on mortgaging to banks virtually all of the homes that Cornerstone was purchasing with investor money.

The SEC further alleges that as the business began to deteriorate during a downturn in the real estate market, Fleet failed to inform his investors as he decided to secretly invest Cornerstone’s funds in the stock options market in an effort to keep the company’s finances afloat.  Fleet lost between $3 million and $4 million of the approximately $6 million that he invested.  Ironically, this allegedly occurred soon after Fleet sent newsletters to investors, many of them senior citizens, warning that investing in the stock market was risky and they would be better off investing their money in Cornerstone.  Fleet continued to raise money from investors without telling them that he was using their investments in his company to unsuccessfully invest in the stock market.  Cornerstone eventually filed for bankruptcy.

“Fleet concealed the true state of finances at Cornerstone Homes and essentially tricked investors into funding his efforts to save his company by investing in the stock market that he had otherwise told them was too risky,” said Andrew M. Calamari, Director of the SEC’s New York Regional Office.

The SEC’s complaint, which was filed in U.S. District Court for the Western District of New York, alleges that Fleet violated the registration and antifraud provisions of the federal securities laws.  The complaint seeks financial remedies and a permanent injunction against Fleet, who resides in Beaver Dams, N.Y.

The SEC’s investigation was conducted by Neal Jacobson and Patricia Schrage of the New York Regional Office, and they will lead the litigation.  The case is supervised by Alistaire Bambach.  The SEC appreciates the assistance of the Office of the United States Trustee for Region 2.

SEC CHARGED OIL-AND-GAS COMPANY, 5 EXECS IN ALLEGED STOCK TRADING SCHEME

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION

Litigation Release No. 23158 / December 15, 2014

Securities and Exchange Commission v. Treaty Energy Corporation, et al., Civil Action No. 4:14-cv-00812 (E.D. Tex., filed December 15, 2014)

SEC Charges New Orleans Oil-And-Gas Company with Fraudulent Stock Manipulation

The Securities and Exchange Commission charged a New Orleans-based oil-and-gas company and five executives with running a stock trading scheme in which they claimed to have struck oil in Belize in order to manipulate the price of the company's stock as they illegally sold restricted shares to the public.

The SEC also charged a Houston-based attorney with facilitating the scheme by issuing false legal opinion letters that allowed free trading of the restricted company stock.

According to the SEC's complaint filed in U.S. District Court for the Eastern District of Texas, Treaty Energy Corporation issued deceptive press releases touting drilling successes in Belize and Texas to induce investor demand for its unregistered stock, which was then illegally distributed to the public. The SEC alleges that Treaty Energy's founder Ronald Blackburn and four company officers — Andrew V. Reid, Bruce A. Gwyn, Lee C. Schlesinger, and Michael A. Mulshine — obtained at least $3.5 million in illicit profits from the scheme.

The SEC's complaint further alleges that Treaty Energy's outside counsel Samuel Whitley abused his gatekeeper role and enabled the scheme by authoring improper legal opinion letters that allowed the company and its officers to illegally distribute unregistered stock to the public. Whitley was aware that Blackburn was running the company and Treaty Energy was abusing registration rules under the federal securities laws. Yet these facts did not deter him from issuing the opinion letters that allowed the scheme to proceed.

According to the SEC's complaint, the scheme had three basic components. The first part began in January 2012 when Blackburn directed Treaty Energy to issue a press release claiming that its purported oil strike in Belize contained an estimated five to six million barrels of recoverable oil. Treaty's stock price shot up nearly 80 percent that day. However, the Belize government publicly refuted Treaty Energy's purported oil strike the very next day, calling the company's statement "false and misleading" and "irresponsible." The SEC alleges that despite Belize's denial, Blackburn and the company's officers continued to mislead investors by claiming that Belize was merely downplaying an actual oil strike for strategic reasons.

The SEC alleges that the second part of the scheme entailed Treaty Energy's failure to disclose in public filings from 2009 to 2013 that Blackburn — previously convicted of federal income tax evasion — actually controlled the company and was a de facto officer. The SEC alleges that Reid, Gwyn, Schlesinger, and Mulshine all knew Blackburn's true role at the company, but intentionally kept this fact out of its disclosures to conceal from the public that a convicted felon was in charge.

According to the SEC's complaint, the final part of the scheme got underway in November 2013 when Treaty Energy began offering investors working interests in a well in West Texas. Investors were enticed with claims that the working interests were low-risk and expected to yield a return of 111.42 percent over a 10-year period. The SEC alleges that Treaty Energy and its officers knew these claims were baseless because the well was producing only marginal amounts of oil. In fact, the well produced 235 total barrels from October 2013 to October 2014.

The SEC's complaint charges Treaty Energy, Blackburn, Reid, Gwyn, Mulshine, and Schlesinger with securities fraud as well as violations of the registration and reporting violations of the federal securities laws. The SEC seeks disgorgement of ill-gotten gains with prejudgment interest plus financial penalties as well as penny stock bars, officer-and-director bars, and permanent injunctions against them. Reid and Gwyn are additionally charged with signing false certifications in Treaty Energy's SEC filings, and Whitley is accused of securities registration violations.

The SEC's investigation was conducted by Samantha Martin, Keith Hunter, and Joann Harris of the Fort Worth Regional Office. The SEC's litigation will be led by Jessica Magee.

SEC CHARGED ATTORNEY WITH CONDUCTING A PONZI SCHEME WORTH ABOUT $5 MILLION

 FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission  charged a Manhattan-based attorney with conducting a Ponzi scheme that defrauded some of his legal clients as well as close family members and friends.

The SEC alleges that Charles A. Bennett raised approximately $5 million by selling purported investments in what he described as a pool of funds that invested in joint ventures with a Wyoming-based investment fund to which he claimed to have a close connection.  Bennett told investors their money would largely be used to fund investments in European real estate mortgage-backed securities yielding lucrative rates of return ranging anywhere from 6 to 25 percent over short periods of time.  He stated that prominent individuals including a former governor of New York were participating in these investment ventures.
However, the SEC alleges that Bennett’s story was a sham.  While the fund does exist and Bennett is an acquaintance of the fund’s principal, he had no connection to the fund nor did he invest in any joint ventures associated with the fund or prominent individuals.  In fact, he made no investments at all, instead secretly misappropriating all of the money he raised from investors.  Bennett used funds from newer investors to pay redemptions and make phony “interest” payments to earlier investors, and he siphoned away investor money to support his own lifestyle that included vacations, expensive hotels, and substantial cash withdrawals.

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

“Bennett falsely portrayed that he was closely associated with a Wyoming-based fund and would provide substantial rates of return to investors, but he was simply keeping the cash for himself and using it to perpetuate his Ponzi scheme,” said Andrew M. Calamari, Director of the SEC’s New York Regional Office.

According to the SEC’s complaint filed in federal court in Manhattan, Bennett sent phony documents to investors in order to make the investments appear legitimate.  He falsely claimed them to be account statements issued by the Wyoming-based fund.  By mid-2014, Bennett’s scheme began to collapse as investors’ demands for the return of their principal outpaced his ability to obtain new funds.  Last month, Bennett composed a lengthy handwritten note admitting to his fraudulent conduct and left it in a Manhattan hotel room.  He then jumped into the Hudson River and was later rescued.

The SEC’s complaint charges Bennett with violating the antifraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934, and with selling securities for which no registration statement is active or on file with the SEC.  The complaint seeks among other things permanent injunctive relief, disgorgement of ill-gotten gains, and financial penalties.  

The SEC’s investigation, which is continuing, is being conducted by Jorge G. Tenreiro and Lara S. Mehraban of the New York Regional Office.  The case is being supervised by Amelia A. Cottrell, and Richard G. Primoff and Mr. Tenreiro are leading the SEC’s litigation.  The SEC appreciates the assistance of the U.S. Attorney’s Office for the Southern District of New York and the Federal Bureau of Investigation.

SEC FILES FRAUD CHARGES AGAINST INVESTMENT ADVISER TO PRO ATHLETES

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION

Litigation Release No. 23155 / December 11, 2014

Securities and Exchange Commission v. Bill C. (Billy) Crafton, Civil Action No. 3:14-cv-02916-DMS-JLB

Yesterday the Securities and Exchange Commission filed fraud charges against a former investment advisor who provided services primarily to professional athletes, alleging that he failed to disclose compensation and kickbacks he received for steering clients to certain investments and financial products. The SEC further alleges that he misappropriated substantial sums from two clients for the benefit of a third.

According to the SEC's complaint filed in the U.S. District Court for the Southern District of California, San Diego resident Bill C. (Billy) Crafton was the sole owner of Martin Kelly Capital Management, through which he provided investment advice and wealth administration services to current and former professional athletes in Major League Baseball, the National Football League, the National Hockey League, and the National Basketball Association. From at least 2006 to 2010, Crafton received more than $1.5 million in undisclosed compensation and brokerage commissions from the principals of certain funds and businesses in exchange for recommending that his clients invest in those enterprises or do business with them. In some instances, Crafton falsely disavowed to his clients that he was receiving such compensation in connection with client transactions.

The SEC further alleges that Crafton knowingly orchestrated a fraudulent scheme in June 2010 when he arranged through forged wire transfer authorizations and other means for two of his clients to purchase a third client's $700,000 position in a fund. Crafton was well aware that the fund had been the subject of an asset freeze obtained by the SEC four days earlier for allegedly operating as a Ponzi-like scheme.

The SEC's complaint alleges that Crafton violated Section 17(a) of the Securities Act of 1933; Sections 10(b) and 15(a) of the Securities Exchange Act of 1934, and Rule 10b-5; and Sections 206(1), 206(2), and 206(3) of the Investment Advisers Act of 1940.

Crafton has agreed to a settlement that is subject to court approval. In settlement papers that Crafton signed in April 2014 which were filed with the court simultaneously with the complaint, Crafton consented to the entry of a final judgment permanently enjoining him against future violations of the Section 17(a) of the Securities Act of 1933; Sections 10(b) and 15(a) of the Securities Exchange Act of 1934 and Rule 10b-5; and Sections 206(1), 206(2), and 206(3) of the Investment Advisers Act of 1940. The final judgment to which Crafton consented would order that he is liable for $1,505,952 in disgorgement plus prejudgment interest of $192,959, for a total of $1,698,911 that he is anticipated to pay as part of his obligations in a parallel criminal case by the U.S. Attorney's Office for the Southern District of California in which he pled guilty to charges of conspiracy to commit wire fraud on October 17, 2014.

Additionally, Crafton consented to the future entry of a Commission order that would bar him from association with any broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization, and also bar him from participating in any penny stock offering.

The SEC’s investigation, which is continuing, is being led by Alfred C. Tierney and John P. Lucas and supervised by J. Lee Buck, II. The SEC appreciates the assistance of the U.S. Attorney's Office for the Southern District of California and the Federal Bureau of Investigation.

FOREX TRADING CO. TO PAY $600,000 PENALTY FOR MINIMUM NET CAPITAL DEFICITS, UNTIMELY NOTICE, FAILURE TO SUPERVISE

FROM:  COMMODITY FUTURES TRADING COMMISSION

December 10, 2014

CFTC Orders IBFX, Inc. f/k/a Tradestation Forex, Inc. to Pay a $600,000 Penalty for Series of Minimum Net Capital Deficits, Untimely Notice, and a Failure to Supervise

Washington, DC - The U.S. Commodity Futures Trading Commission (CFTC) today issued an Order filing and simultaneously settling charges against IBFX, Inc. f/k/a Tradestation Forex, Inc. (IBFX), a Florida-based Retail Foreign Exchange Dealer (RFED), for violating CFTC Regulations by failing to meet the minimum net capital requirements on three separate occasions, failing to timely report one of the minimum net capital deficits, and failing to supervise its employees and agents diligently by establishing, implementing, and executing an adequate supervisory structure and compliance programs.

The CFTC Order finds that from December 2011 through June 9, 2014 (the Relevant Period), IBFX violated CFTC Regulations by failing to meet the minimum net capital requirements on three separate occasions. First, during the period December 2011 to June 2012, IBFX had uncovered foreign currency positions. Based on the corrected charges to capital for these uncovered positions, as calculated on a month-end basis, IBFX failed to meet the minimum net capital requirements for January 31, 2012. Second, IBFX failed to meet the minimum net capital requirements for a brief period of time on January 9, 2013, due to a typographical error. IBFX immediately discovered this failure, but failed to report the failure to the CFTC until January 11, 2013. Finally, IBFX failed to meet the minimum net capital requirements on June 9, 2014, when software that IBFX installed, but did not fully test prior to installation, resulted in uncovered positions requiring charges to capital. IBFX’s failure to adequately test the new software, lack of a system to timely detect erroneous trades generated by the new software, and inability to accurately assess and reverse the errors evidence IBFX’s lack of diligent supervision in violation of a CFTC Regulation.

The CFTC Order requires IBFX to pay a $600,000 civil monetary penalty and requires IBFX to develop an automated forex exposure monitoring system that will enable the comprehensive real-time monitoring of its actual forex exposure, and adopt and implement risk management procedures regarding 24-hour forex exposure monitoring. The Order also requires IBFX to retain a nationally recognized independent third-party consultant to review and evaluate IBFX’s information technology development and implementation policies and procedures and prepare a written report with recommendations for improvement, as applicable, which IBFX will implement absent extenuating circumstances.

IBFX has cooperated with Division of Enforcement and Division of Swap Dealer and Intermediary Oversight staff.

The CFTC acknowledges the valuable assistance of the National Futures Association in connection with this matter.

The CFTC Division of Enforcement staff members responsible for this matter are Allison Baker Shealy, Timothy J. Mulreany, and Paul Hayeck, with assistance from CFTC Division of Swap Dealer and Intermediary Oversight (DSIO) staff Kevin Piccoli, Robert Laverty, Gerald J. Nudge, Timothy J. Wigand, Ronald Carletta, and Linda Santiago.

Investor Bulletin: Broker’s Miscellaneous Fees

Investor Bulletin: Broker’s Miscellaneous Fees

FUND MANAGER SETTLES SEC INSIDER TRADING CASE

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION

Litigation Release No. 23151 / December 8, 2014

Securities and Exchange Commission v. Reema D. Shah and Robert W. Kwok, Civil Action No. 12-CV-4030 (S.D.N.Y.) (ALC)

Former Ameriprise Fund Manager Settles SEC Insider Trading Case

The Securities and Exchange Commission announced today that on December 8, 2014, the Honorable Andrew L. Carter, Jr. of the United States District Court for the Southern District of New York entered a final judgment against Reema D. Shah in SEC v. Reema D. Shah and Robert W. Kwok, 12-CV-4030, an insider trading case the SEC filed on May 21, 2012. The SEC alleged that Shah, a former mutual fund and hedge fund portfolio manager at RiverSource Investments, LLC, an investment adviser subsidiary of Ameriprise Financial, Inc., illegally tipped and traded on material, nonpublic information concerning Yahoo! Inc. and Moldflow Corporation.

The SEC's complaint alleged that in July 2009, Robert W. Kwok, a former Senior Director of Business Management at Yahoo, tipped Shah material, nonpublic information concerning an upcoming announcement of an internet search engine partnership agreement between Yahoo and Microsoft Corporation. The SEC alleged that, based on Kwok's tip, Shah caused certain of the funds she helped manage, including the Seligman Communications and Information Fund, to purchase approximately 700,000 shares of Yahoo. The shares were later sold resulting in profits of $388,807. The SEC also alleged that in April 2008, Shah tipped Kwok material, nonpublic information concerning an upcoming acquisition of Moldflow by Autodesk, Inc., which had been misappropriated by an Autodesk insider and tipped to Shah. The SEC alleged that, based on this tip, Kwok purchased 1,500 shares of Moldflow in a personal account, which he sold after announcement of the acquisition, realizing profits of approximately $4,750. The Court previously entered a final judgment, by consent, against Kwok.

The final judgment against Shah, entered by consent, orders her to pay disgorgement of $388,807 plus prejudgment interest of $1,296, and permanently enjoins her from any future violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. No penalty was imposed in light of Shah's sentence in a parallel criminal case and her cooperation. In the parallel criminal action, Shah previously pled guilty to securities fraud and conspiracy to commit securities fraud and recently was sentenced to two years of probation, and ordered to forfeit $11,751 and pay a $500,000 criminal fine. United States v. Reema Shah, 12 CR 0404 (S.D.N.Y.). In related administrative proceedings, Shah previously consented to a Commission Order barring her from association with any investment adviser, broker, dealer, municipal securities dealer or transfer agent. In the Matter of Reema D. Shah, File No. 3-15084 (Oct. 31, 2012).

SEC ANNOUNCES FRAUD CHARGES AGAINST INVESTMENT ADVISORY FIRM AND CO-OWNERS

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

12/10/2014 01:30 PM EST

The Securities and Exchange Commission announced fraud charges against a Buffalo, N.Y.-based investment advisory firm and two co-owners accused of making false and misleading statements to clients when recommending investments in a risky hedge fund.  The hedge fund’s portfolio manager agreed to settle similar charges.

The SEC’s Enforcement Division alleges that Timothy S. Dembski and Walter F. Grenda Jr. steered their clients at Reliance Financial Advisors to invest in a hedge fund managed by Scott M. Stephan, whose experience in the securities industry was greatly exaggerated in offering materials they disseminated.  Dembski and Grenda allegedly knew that Stephan had virtually no hedge fund investing experience at all, and spent the majority of his career collecting on past-due car loans.  Nevertheless, highly speculative investments in the Prestige Wealth Management Fund were recommended to clients who were retired or nearing retirement and living on fixed incomes.  The trading strategy that was allegedly described to investors was fully automated by an algorithm purportedly sought by big banks.  The trading algorithm, however, did not work as intended and Stephan began placing trades manually, which led to the hedge fund’s eventual collapse.

“Investment advisers owe their clients a duty of complete candor when it comes to discussing investment options,” said Andrew M. Calamari, Director of the SEC’s New York Regional Office.  “In this case, Dembski and Grenda allegedly violated this fundamental duty by peddling a hedge fund investment that was more risky than depicted and misleading their clients about the portfolio manager’s experience.”

According to the order instituting a proceeding before an administrative law judge, Dembski’s clients invested approximately $4 million in Prestige Wealth Management Fund and Grenda’s clients invested approximately $8 million.  The hedge fund, which began trading in April 2011, did not generate the positive returns advertised, so Grenda withdrew his clients in October 2012.  The fund lost about 80 percent of its value when it collapsed a couple months later, leaving Dembski’s clients to lose the vast majority of their investments.

The SEC’s Enforcement Division further alleges that Grenda borrowed $175,000 from two clients in late 2009 and falsely told them that he would use it as a loan to grow his investment advisory business.  Grenda instead spent the money on personal expenses and debts.

The SEC’s Enforcement Division alleges that Dembski, Grenda, and Reliance Financial Advisors violated the antifraud provisions of the Investment Advisers Act of 1940, Securities Act of 1933, and Securities Exchange Act of 1934, and that Dembski and Grenda aided and abetted and caused violations of those same provisions by Reliance Financial and the general partner to the Prestige Wealth Management Fund.

In a separate order, Stephan agreed to settle findings that he violated the antifraud provisions of the Advisers Act, Securities Act, and Exchange Act, and aided and abetted and caused violations of those same provisions by the general partner to the Prestige Wealth Management Fund.  Without admitting or denying the allegations, Stephan agreed to be permanently barred from the securities industry.  Disgorgement and penalties will be determined at a later date.

The investigation by the SEC’s Enforcement Division was conducted by Tony Frouge, Alexander Janghorbani, Douglas Smith, and Steven G. Rawlings in the New York Regional Office, and the case was supervised by Sanjay Wadhwa.  The litigation will be led by Michael Birnbaum and Mr. Frouge.  The SEC appreciates the assistance of the Financial Industry Regulatory Authority.

Statement on Jury's Verdict in Trial of BankAtlantic Bancorp, Inc. and Alan Levan

Statement on Jury's Verdict in Trial of BankAtlantic Bancorp, Inc. and Alan Levan

SEC ANNOUNCES GUILTY PLEA TO CRIMINAL CHARGES IN INSIDER TRADING CASE

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

Litigation Release No. 23150 / December 5, 2014

USA v. John Patrick O'Neill, Case No. 1:14-cr-10317-WGY in the United States District Court for the District of Massachusetts

USA v. Robert H. Bray, Case No. 1:14-MJ-5119-JGD in the United States District Court for the District of Massachusetts

Securities and Exchange Commission v. J. Patrick O'Neill and Robert H. Bray, Civil Action No. 1:14-cv-13381 (District of Massachusetts, Complaint filed August 18, 2014)

Boston-Area Defendant in SEC Insider Trading Case Pleads Guilty to Criminal Charges

The Securities and Exchange Commission announced today that on December 4, 2014, J. Patrick O'Neill ("O'Neill") pled guilty to a criminal charge of conspiracy to commit securities fraud.

The Commission previously charged O'Neill and Robert H. Bray ("Bray") with insider trading in a civil action filed on August 18, 2014. The criminal charge is based on the same conduct underlying the SEC's action. The SEC's complaint alleged that O'Neill, a former senior vice president at Eastern Bank Corporation, learned through his job responsibilities that his employer was planning to acquire Wainwright Bank & Trust Company ("Wainwright"). According to the SEC's complaint, O'Neill tipped Bray, a friend and fellow golfer with whom he socialized at a local country club. In the two weeks preceding a public announcement about the planned acquisition, Bray sold his shares in other stocks to accumulate funds he used to purchase 31,000 shares of Wainwright. After the public announcement of the acquisition caused Wainwright's stock price to increase nearly 100 percent, Bray sold all of his shares during the next few months for nearly $300,000 in illicit profits.

O'Neill was initially charged by a criminal complaint and arrested in August 2014. On October 31, 2014, the United States Attorney's Office for the District of Massachusetts filed a criminal Information against O'Neill charging him with conspiracy to commit securities fraud. Bray was arrested by the Federal Bureau of Investigation on November 12, 2014 and charged by a criminal complaint with participating in the insider trading conspiracy.

The SEC's action, which is pending, seeks injunctions against each of the defendants from further violations of the charged provisions of the federal securities laws, disgorgement of ill-gotten gains, and civil penalties.

SEC BRINGS CHARGES AGAINST EXECUTIVES AT ASSISTED LIVING PROVIDER

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission announced fraud charges against two former top executives at a Wisconsin-based assisted living provider accused of listing fake occupants at some senior residences in order to meet the requirements of a lease to operate the facilities.

The SEC Enforcement Division alleges that then-CEO Laurie Bebo and then-CFO John Buono devised a scheme involving false disclosures and manipulation of internal books and records when it appeared likely that their company Assisted Living Concepts Inc. (ALC) would default on financial promises known as covenants in a lease agreement with a Chicago-based real estate investment trust called Ventas Inc., which owned the facilities.  The financial covenants required ALC to maintain minimum occupancy rates and coverage ratios while operating the facilities, and failure to meet the covenants constituted a default on the lease.  A default would have required ALC to pay the remaining rent amount due for the full term of the lease, which amounted to tens of millions of dollars at the time. 

The SEC Enforcement Division alleges that Bebo and Buono directed ALC accounting personnel calculating the occupancy rates and coverage ratios to include phony occupants in the calculations in order to meet the numbers required in the covenants.  The identities of the fake occupants were determined by Bebo and included her family members and friends as well as ALC current and former employees among others who did not reside at the senior residences.  One of the purported senior residents was just seven years old.  The SEC Enforcement Division alleges that without including these non-residents in the calculations, ALC would have missed the covenant requirements by significant margins for several consecutive quarters.  Bebo and Buono allegedly certified ALC’s annual and quarterly reports that fraudulently represented that the company was in compliance with the occupancy and coverage ratio covenants included in the lease.  Coverage ratio was defined in the lease as cash flow at the facilities divided by the rent payments owed by ALC to Ventas.

“Rather than come clean with their landlord and investors, these executives falsely portrayed family and friends as senior housing occupants and certified misleading company filings,” said Andrew J. Ceresney, Director of the SEC Enforcement Division.  “False filings threaten the integrity of financial reporting in our markets and will be pursued vigorously.”

According to the SEC’s order instituting litigated administrative proceedings, ALC was based in suburban Milwaukee and has since been sold to a private equity firm.  At the time of the alleged fraud that began in 2009 and continued into 2012, ALC operated more than 200 senior living residences in the U.S. comprising more than 9,000 units.  In early 2008, ALC began operating eight facilities owned by Ventas.  These facilities had a total of 540 units and were located in Alabama, Florida, Georgia, and South Carolina.  The SEC Enforcement Division alleges that while Bebo was a strong proponent of entering into the lease to operate these Ventas facilities, certain ALC officers and directors advocated against it due to disadvantageous provisions including the financial covenants related to occupancy and coverage ratios.  Bebo assured the directors that she was confident that ALC could meet the financial covenants. 

The SEC Enforcement Division alleges that less than a year after entering the Ventas lease, Bebo and Buono realized that a financial covenant default was likely.  Bebo initially devised a plan to include ALC workers who spent the night at a facility in the covenant calculations.  Bebo sought the advice of ALC’s general counsel who advised that ALC needed to fully disclose the practice to Ventas and obtain written approval for it to be permissible under the lease.  The SEC Enforcement Division alleges that ALC never obtained this approval to include employees in the covenant calculations and did not disclose the practice to Ventas. 

The SEC Enforcement Division alleges that occupancy at the facilities in early 2009 had declined to the point where ALC was violating certain financial covenants.  But rather than report the defaults to Ventas or ALC’s board of directors and shareholders, Bebo directed Buono and his staff to include additional non-residents in the covenant calculations.  The SEC Enforcement Division alleges that among those who were included as fake occupants at these senior residences were:

• Bebo’s family members including her parents and her husband.
• Bebo’s friends and their family members, including one friend’s seven-year-old nephew.
• ALC employees who worked at the facilities but lived nearby and did not stay overnight.
• ALC employees who did not stay at these facilities or travel to them.
• Former ALC employees who had been fired.
• Impending ALC employees who had not yet been officially hired.

The SEC Enforcement Division further alleges that some ALC employees who occasionally stayed at the facilities were included in the covenant calculations but beyond the periods when they actually stayed there.  Some ALC employees and other individuals were listed as occupants of multiple facilities during the same time period.  From the third quarter of 2009 to the fourth quarter of 2011, ALC allegedly included between 45 and 103 non-residents in the covenant calculations.  Bebo and Buono directed ALC personnel to record journal entries increasing revenue associated with the fabricated occupancy in the accounts for the leased facilities.  ALC made a corresponding journal entry decreasing revenue in a corporate revenue account to mask the fraud.  To establish the number of fake occupants to include in the covenant calculations, Bebo and Buono directed ALC personnel to reverse-engineer the requisite number of phony occupants needed to meet the covenants.  Shortly after the end of each quarter, ALC allegedly provided Ventas with covenant calculations including the fake occupants and the associated revenue, thus falsely showing that ALC was meeting the covenants.

The SEC Enforcement Division alleges that Bebo and Buono violated Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 and Rules 10b-5(a), (b) and (c), 13a-14, 13b2-1 and 13b2-2.  The Enforcement Division further alleges that they caused and/or aided and abetted ALC’s violations of Sections 10(b), 13(a) 13(b)(2)(A) and 13(b)(2)(B) of the Securities Exchange Act of 1934 and Rules 10b-5(a), (b) and (c), 12b-20, 13a-1 and 13a-13.  The case will be litigated before an administrative law judge.

The SEC Enforcement Division’s investigation, which is continuing, has been conducted by Scott Tandy, Jean Javorski, Tom Vincus, and C.J. Kerstetter of the Chicago Regional Office.  The SEC’s litigation will be led by Ben Hanauer and Eric Phillips.  The case is being supervised by Robert Burson.

SEC ANNOUNCES FORMER MANAGING DIRECTOR OF NASDAQ ORDERED TO DISGORGE INSIDER TRADING PROFITS

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

Litigation Release No. 23156 / December 12, 2014

Securities and Exchange Commission v. Donald L. Johnson, et al., Civil Action No. 11-CV-3618 (VM) (S.D.N.Y.)

Court Orders Former Managing Director of the NASDAQ Stock Market to Disgorge More Than $898,000 in Insider Trading Profits

The Securities and Exchange Commission announced today that on November 12, 2014, the Honorable Victor Marrero of the United States District Court for the Southern District of New York entered a final judgment against defendant Donald L. Johnson, formerly a Managing Director of The NASDAQ Stock Market ("NASDAQ"), ordering Johnson to disgorge insider trading profits of $755,066.20, together with prejudgment interest thereon in the amount of $143,041.72, for a total payment of $898,107.92. Johnson consented to the entry of the final judgment. The Court previously had entered a judgment permanently enjoining Johnson for violating Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, representing the full injunctive relief sought by the SEC in the same civil action.

In its Complaint, filed in May 2011, the SEC had alleged that Johnson had unlawfully traded in advance of nine announcements of material nonpublic information involving NASDAQ-listed companies from August 2006 to July 2009. According to the SEC's Complaint, Johnson took advantage of both favorable and unfavorable information that was entrusted to him in confidence by NASDAQ and its listed companies, shorting stocks on several occasions and establishing long positions in other instances. The SEC alleged that Johnson reaped illicit profits in excess of $755,000 from his illegal trading.

On May 26, 2011, Johnson pleaded guilty to a federal criminal charge of securities fraud in a parallel criminal action arising out of certain of the conduct underlying the SEC's action. On August 12, 2011, Johnson was sentenced to forty-two months in prison and ordered to forfeit $755,066.

Following the entry of the final judgment against Johnson, which provided for payment of full disgorgement with prejudgment interest, the SEC voluntarily dismissed its relief defendant claim against Johnson's wife, Dalila Lopez. This concludes the SEC's civil action against Johnson.

The SEC acknowledges the assistance of the Fraud Section of the U.S. Justice Department's Criminal Division and the U.S. Postal Inspection Service. The SEC also acknowledges FINRA and NASDAQ for their assistance in this matter.

MORGAN STANLEY TO PAY $4 MILLION FOR VIOLATING MARKET ACCESS RULE

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The market access rule requires broker-dealers to have adequate risk controls in place before providing customers with access to the markets.  An SEC investigation found that Morgan Stanley, which offers institutional customers direct market access through an electronic trading desk, did not have the risk management controls necessary to prevent the rogue trader from entering orders that exceeded pre-set trading thresholds.  The trader exploited the market access and, without Morgan Stanley’s knowledge, committed a fraud that eventually shuttered the firm where he worked.  The SEC and criminal authorities have since charged the trader with fraud, and he has been sentenced to 30 months in prison.

Morgan Stanley agreed to pay a $4 million penalty for violating the market access rule.

“Broker-dealers become important gatekeepers when they provide customers direct access to our securities markets, and in this case Morgan Stanley did not live up to that responsibility,” said Andrew Ceresney, Director of the SEC Enforcement Division.  “Morgan Stanley failed to have reasonable controls in place to mitigate the risks associated with granting market access to a customer.”

According to the SEC’s order instituting a settled administrative proceeding, the rogue trader worked at Rochdale Securities LLC and routed to Morgan Stanley’s electronic trading desk a series of orders to purchase Apple stock on Oct. 25, 2012.  The orders came steadily throughout the day and eventually tallied approximately $525 million worth of Apple stock, which significantly exceeded Rochdale’s pre-set aggregate daily trading limit of $200 million at Morgan Stanley.  In order to execute the orders, Morgan Stanley’s electronic trading desk initially increased Rochdale’s limit to $500 million and later to $750 million without conducting adequate due diligence to ensure the credit increases were warranted.  Morgan Stanley’s written supervisory procedures did not provide reasonable guidance for electronic trading desk personnel who determine whether or not to increase customer trading thresholds.

According to the SEC’s order, the rogue trader at Rochdale was using these orders to commit a fraud.  He had intentionally enlarged the amount of Apple stock an actual customer wanted to purchase from 1,625 shares to 1,625,000 shares.  The trader’s scheme was to profit personally from the excess shares if Apple’s stock price increased or claim the order size was merely an error if the stock price decreased.  As it turned out, Apple’s stock price began dropping later that day, so the trader falsely claimed that he had made a mistake in placing order.  Rochdale was left holding the unauthorized purchase and suffered a $5.3 million loss.  Rochdale subsequently fell below its net capital requirements to trade securities, and ceased all business operations last year.

The SEC’s order finds that Morgan Stanley violated Rule 15c3-5 of the Securities Exchange Act of 1934.  Without admitting or denying the findings, the firm consented to the SEC’s order, which censures the firm and requires it to pay the financial penalty and cease and desist from committing or causing violations of the market access rule.

The SEC’s investigation was conducted by Eric Forni, David London, and Michele Perillo of the Market Abuse Unit with assistance from staff in the Division of Trading and Markets.  The case was supervised by the Chief of the unit Daniel M. Hawke and the Co-Deputy Chief of the unit Robert Cohen.  The SEC appreciates the assistance of the Financial Industry Regulatory Authority.

CFTC CHAIRMAN MASSAD'S STATEMENT BEFORE CFTC AGRICULTURE ADVISORY COMMITTEE

FROM:  U.S. COMMODITY FUTURES TRADING COMMISSION 
Opening Statement of Chairman Tim Massad before the CFTC Agriculture Advisory Committee Meeting
December 9, 2014

As Prepared for Delivery

Thank you all for coming. I want to welcome you to this meeting of the CFTC’s Agricultural Advisory Committee. This forum is a valuable opportunity to discuss evolving market issues relevant to our work.

Let me begin by thanking the CFTC staff involved in planning this gathering. Thank you to them, and to all of our professional staff, whose hard work on behalf of the American public is extraordinary. Thank you also to Dr. Randy Fortenbery for serving as Committee Chair. He flew all the way from Lewiston, Idaho to get here, and I appreciate his extensive knowledge and ability to keep us running on time. I’d also like to thank our guest, Secretary Vilsack, for being generous with his time. His coming here today demonstrates the importance of the Department and the CFTC working together. We’ll do more of an introduction before he speaks.

Much of what we do here at the CFTC can seem removed from everyday life. Most Americans do not participate directly in the markets we oversee. But as you know, the agency’s origins are in agriculture, an industry that is basic and important to the lives of all American families. Futures on agricultural commodities have been traded in the US since the 19th century and have been regulated at the federal level since the 1920s. Today, agricultural derivatives are now only one piece of the markets we oversee, but they are fundamentally important. The ability of the Ag sector to hedge commercial exposures is critical to having a successful agricultural industry, and to putting food on the table for all of us. The CFTC’s job in overseeing these markets should not only help participants be able to hedge effectively. It should help these markets thrive, and in turn help the agricultural economy thrive. And I know strengthening the ag economy, and fostering investment and new opportunities in the ag economy are important to all of you and to Secretary Vilsack.

Our ability to successfully oversee these markets requires listening to market participants. It is helpful to hear your thoughts on what we are, or should be, doing. And that is why this Advisory Committee is so important. I know travelling to Washington two weeks before the holidays—which is a very busy time—is not always easy. But I know I speak for all the Commissioners in saying that your presence and your participation on this Committee are much appreciated.

I joined the Commission about six months ago, as did Commissioners Bowen and Giancarlo. The three of us have benefitted from Commissioner Wetjen’s experience as we got up to speed. I am pleased that all three of my fellow commissioners are here today.

We have all been listening and learning from market participants like you. In the last six months, we have focused on moving forward important reforms, to promote greater transparency and market integrity. But we’ve also made it a priority to address areas where our rules may not be working as well as they should. Our goal is not to create unnecessary burdens on commercial end users but to build a reliable, orderly framework for oversight in which vibrant markets can thrive.

In the last few months, we have taken a number of steps to that end.

I know some of our recent actions have been especially important to the agricultural industry, such as our proposal on “residual interest,” and our changes to certain recordkeeping requirements. We’ve addressed contracts with volumetric optionality, making sure publicly-owned utilities can access the energy swaps markets, and making sure end users can use their treasury affiliates for swap transactions and still benefit from the Congressional end user exemptions.

Today, we will discuss a few topics important to the agricultural markets that we have decided upon in consultation with you. We’ll first discuss how the current agricultural economy is impacting CFTC-regulated markets and then discuss how to best calculate deliverable supply for commodities, a topic that is critically important to establishing position limits. We also will spend a little time discussing what the agency has been doing lately, and what we should consider having this Agriculture Advisory Committee discuss in the future.

Thank you again for being here and contributing your ideas. I look forward to a productive discussion.

VICE CHAIR FDIC MAKES COMMENTS ON CONGRESS ALLOWING TAXPAYER SUPPORTED DERIVATIVES TRADING BY BANKS

FROM:  FEDERAL DEPOSIT INSURANCE CORPORATION
Speeches & Testimony
Statement from FDIC Vice Chairman Hoenig on Congressional moves to repeal swaps push-out requirements

In 2008 we learned the economic consequences of conducting derivatives trading in taxpayer-insured banks. Section 716 of Dodd-Frank is an important step in pushing the trading activity out to where it should be conducted: in the open market, outside of taxpayer-backed commercial banks. It is illogical to repeal the 716 push out requirement. In fact, under 716, most derivatives -- almost 95% -- would not be pushed out of the bank. That is because interest rate swaps, foreign exchange and cleared credit derivatives can remain within the bank. In addition, derivatives that are used for hedging can remain in the bank. The main items that must be pushed out under 716 are uncleared credit default swaps (CDS), equity derivatives and commodities derivatives. These are, in relative terms, much smaller and where the greater risks and capital subsidy is most useful to these banking firms.

Derivatives that are pushed out by 716 are only removed from the taxpayer support and the accompanying subsidy of insured deposit funding -- they will continue to exist and to serve end users. In fact, most of these firms have broker-dealer affiliates where they can place these activities, but these affiliates are not as richly subsidized, which helps explain these firms' resistance to 716 push out.

CFTC CHARGES MAN WITH FRAUD AND ACTING AS AN UNREGISTERED FUTURES COMMISSION MERCHANT

FROM:  U.S. COMMODITY FUTURES TRADING COMMISSION 

November 25, 2014

CFTC Charges California Resident Thomas Gillons with Fraud and Acting as an Unregistered Futures Commission Merchant

Federal Court Issues Emergency Order Freezing Gillon’s Assets and Protecting Books and Records

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) announced the filing of a civil enforcement action in the U.S. District Court for the Northern District of Illinois, charging Defendant Thomas Gillons of Napa County, California, with fraud and acting as a Futures Commission Merchant (FCM) without being registered as such with the CFTC.

On the same day the Complaint was filed, November 19, 2014, U.S. District Judge Ronald A. Guzman issued an emergency Order freezing and preserving assets under the control of Gillons and prohibiting him from destroying documents or denying CFTC staff access to his books and records. The court scheduled a hearing for December 1, 2014, on the CFTC’s motion for a preliminary injunction.

Gillons Allegedly Misappropriated Nearly $130,000 in Customer Funds

The CFTC’s Complaint alleges that, since at least August 31, 2013, Gillons fraudulently solicited and accepted at least $194,000 from at least three customers by claiming that he was a licensed broker and would trade their funds in a sub-account in customers’ names, earning them a 12 to 14 percent return. However, in reality, Gillons’ broker license had been suspended, and he was not currently registered with any securities firm, according to the Complaint. Moreover, Gillons traded only a portion of customer funds, losing approximately $55,234 and misappropriating at least $129,766 in customer funds, the Complaint alleges.

Furthermore, the Complaint alleges that Gillons accepted money to margin, guarantee, or secure commodity futures trades without being registered with the CFTC as an FCM.

In its continuing litigation, the CFTC seeks restitution, disgorgement of ill-gotten gains, civil monetary penalties, trading and registration bans, and injunctions against further violations of the Commodity Exchange Act.

CFTC Division of Enforcement staff members responsible for this action are Stephanie Reinhart, Melissa Glasbrenner, David Terrell, Scott Williamson, and Rosemary Hollinger.

SEC SANCTIONS 9 AUDIT FIRMS FOR VIOLATING AUDITOR INDEPENDENCE RULES

FROM:   U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission today sanctioned eight firms for violating auditor independence rules when they prepared the financial statements of brokerage firms that were their audit clients.

SEC investigations found that the audit firms, which agreed to settle the cases, generally took data from financial documents provided by clients during audits and used it to prepare their financial statements and notes to the financial statements.  Under auditor independence rules, firms cannot jeopardize their objectivity and impartiality in the auditing process by providing such non-audit services to audit clients.  By preparing the financial statements, these particular firms essentially put themselves in the position of auditing their own work, and they inappropriately aligned themselves more closely with the interests of clients’ management teams in helping prepare the books rather than strictly auditing them.

“To ensure the integrity of our financial reporting system, firms cannot play the roles of auditor and preparer at the same time,” said Stephen L. Cohen, Associate Director of the SEC’s Division of Enforcement.  “Auditors must vigilantly safeguard their independence and stay current on the applicable requirements under the rules.”

The SEC’s orders censure each firm and require them to cease and desist from committing or causing any violations of Exchange Act Section 17(a) and Rule 17a-5.  The firms, which consented to the orders without admitting or denying the findings, will collectively pay $140,000 in penalties and must comply with a series of remedial undertakings designed to prevent future violations of these independence requirements.

According to the SEC’s orders, these firms were not independent of their broker-dealer audit clients under independence criteria established by Rule 2-01(c)(4)(i) of Regulation S-X, which Rule 17a-5 of the Securities Exchange Act of 1934 makes applicable to the audits of broker-dealer financial statements.  The orders find that the firms (1) violated Rule 17a-5(i) of the Exchange Act, (2) caused their broker-dealer audit clients to violate Section 17(a) of the Exchange Act and Rule 17a-5, and (3) engaged in improper professional conduct pursuant to Exchange Act Section 4C(a)(2) and Rule 102(e)(1)(ii) of the Commission’s Rules of Practice.

The SEC’s investigations were conducted by Sarah Allgeier, Carolyn Kurr, Keith O’Donnell, Paul Pashkoff, and Jeffrey Anderson.  The cases were supervised by C. Joshua Felker and Jennifer Leete.  The SEC appreciates the assistance of the Public Company Accounting Oversight Board, which today announced its own enforcement actions related to auditor independence rules violations.

SEC, CITY OF HARVEY AGREE TO SETTLE FRAUDULENT BOND OFFERING CHARGES

U.S. SECURITIES AND EXCHANGE COMMISSION

Litigation Release No. 23149 / December 5, 2014

Securities and Exchange Commission v. City of Harvey, Illinois, et al., Civil Action No. 1:14-cv-4744

City of Harvey Agrees to Settle Charges Stemming from Fraudulent Bond Offering Scheme

The Securities and Exchange Commission announced today that on December 4, 2014, the City of Harvey, Illinois agreed to settle charges stemming from an enforcement action filed in June 2014. The city has consented to the entry of a final judgment which includes undertakings designed to provide significant protections for bond investors.

On June 25, 2014, the SEC obtained an emergency court order in the U.S. District Court for the Northern District of Illinois against the Chicago suburb and its comptroller, Joseph T. Letke, to stop a fraudulent bond offering that the city had been marketing to potential investors. The complaint alleged that the city and Letke had been engaged in a scheme for the past several years to divert bond proceeds from prior bond offerings for improper, undisclosed uses. While investigating Harvey's past bond offerings, the SEC learned that the city intended to issue new limited obligation bonds. The SEC also learned that the city had drafted offering documents that made materially misleading statements about the purpose and risks of those bonds, while omitting that past bond proceeds had been misused.

The city has agreed to the entry of a final judgment which will enjoin it from committing future violations of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. In addition, Harvey has agreed to retain an independent consultant and an independent audit firm, and will be prohibited from engaging in the offer or sale of any municipal securities for three years unless it retains independent disclosure counsel. These measures are designed to prevent future securities fraud by Harvey and to enhance transparency into Harvey's financial condition for future bond investors. The litigation against Letke is pending.

SEC CHARGES FORMER COO WITH INSIDER TRADING

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

Litigation Release No. 23142 / November 25, 2014

Securities and Exchange Commission v. D. Michael Donnelly, Civil Action No. 4:14-cv-01970 (E.D. Mo., November 25, 2014)

SEC Charges Former Solutia Executive with Insider Trading

The Securities and Exchange Commission today charged D. Michael Donnelly, the former Chief Operating Officer of Solutia, Inc., with insider trading in the stock of Solutia based on material non-public information regarding Eastman Chemical Company’s offer to acquire Solutia.  On the morning of January 27, 2012, Solutia and Eastman announced that Eastman would acquire Solutia at an implied value of $27.65 per share for Solutia investors.  At the end of trading on January 27, 2012, Solutia’s stock price closed at $27.51 per share, approximately 41 percent higher than the previous day’s close.

According to the SEC’s complaint filed in the U.S. District Court for the Eastern District of Missouri, Donnelly knew of Eastman’s interest in acquiring Solutia and learned on November 18, 2011, that Eastman would be submitting an improved offer.  The complaint alleges that between November 18, 2011, and November 22, 2011, Donnelly made multiple purchases of Solutia stock totaling 8,130 shares in brokerage accounts in the names of his children.  The complaint also alleges that between February 2, 2012, and February 8, 2012, Donnelly sold all 8,130 shares of Solutia stock for a profit of $104,391.  The complaint alleges that Donnelly misappropriated this information for his own personal benefit and breached the duty of trust and confidence that he owed to Solutia and its shareholders.

Without admitting or denying the SEC’s allegations, Donnelly agreed to settle the case against him.  The settlement is pending final approval by the court.  Specifically, Donnelly consented to the entry of a final judgment permanently enjoining him from violations of Sections 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder; requiring him to pay disgorgement of $104,391, the amount of his ill-gotten gains, plus prejudgment interest of $8,371.71, and a civil penalty of $104,391; and prohibiting him from serving as an officer and director of a public company.

SEC FILES ACTION AGAINST MAN WHO ALLEGEDLY DEFRAUDED INVESTORS

U.S. SECURITIES AND EXCHANGE COMMISSION

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

Litigation Release No. 23146 / December 2, 2014

Securities and Exchange Commission v. Levi Lindemann, Civil Action No. 0:14-cv-04834-PJS-JJK

On November 24, 2014, the Securities and Exchange Commission filed an emergency action alleging that Levi Lindemann, a former registered representative and resident of West Lakeland Minnesota, operated a fraudulent scheme through his private company, Gershwin Financial, Inc. and his sole proprietorship, Alternative Wealth Solutions. The SEC's complaint alleged that from at least September 2009 to August 2013, Lindemann raised approximately $976,000 from six investors located in Wisconsin, including elderly individuals and a member of his own family. The complaint further alleged that Lindemann told these investors that their money would be used to purchase a variety of purported investments including various notes and interests in a unit investment trust. The complaint alleged that in reality, none of these investments were ever made. The complaint charged Lindemann with violations of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.

After a hearing on November 24, 2014, the Honorable Patrick J. Schiltz of the United States District Court for the District of Minnesota issued an Order granting the relief sought by the SEC including a preliminary injunction, freezing assets and other emergency relief. Counsel for Lindemann consented to the relief sought by the SEC.

The SEC's investigation in this matter is continuing.

SEC CHARGES MAN WITH STEALING MONEY HE RECEIVED FROM INVESTORS

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

SEC Charges California Resident with Fraudulent Sales of Stock

The Securities and Exchange Commission today charged the owner of several now-defunct investment entities with fraudulently selling shares of stock that he claimed to own when he had actually purchased them for others a few years before.

The SEC alleges that Vinay Kumar Nevatia, who used several aliases while living in Palo Alto, Calif., sold approximately $900,000 worth of stock he supposedly owned in a privately-held information technology company called CSS Corp. Technologies (Mauritius) Limited. He deceived the buyers into believing that he owned the shares, orchestrated a series of secret wire transfers, and induced the stock transfer agent into recording his fraudulent sales. He stole the money he received from investors for his own use.

According to the SEC's complaint filed in federal district court in San Francisco, Kumar provided the true owners of the shares with fake updates on their investments for more than a year after he had disposed of their stock in these subsequent sales in 2011 and 2012. The actual owners had bought the CSS stock through Kumar in 2008. Kumar has never been registered with the SEC nor licensed to trade securities.

The SEC's complaint charges Kumar with violating Sections 17(a)(1), (a)(2), and (a)(3) of the Securities Act of 1933 as well as Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and seeks permanent injunctions, the return of ill-gotten gains, and a financial penalty.

The SEC's investigation was conducted by William T. Salzmann, Jason H. Lee, and Cary S. Robnett of the San Francisco Regional Office with assistance from Kristin A. Snyder, Stephanie A. Wilson, Edward G. Haddad, Brian Applegate, Michael A. Tomars, and Tracey A. Bonner of the San Francisco office's examination program. Mr. Salzmann and Mr. Lee will lead the SEC's litigation. The SEC appreciates the assistance of the U.S. Attorney's Office for the Northern District of California, the Federal Bureau of Investigation, and the Financial Industry Regulatory Authority.

Remarks to the SEC Small Business Forum

Remarks to the SEC Small Business Forum

Statement on Court’s Final Judgment in Case Against Life Partners Holdings, Brian Pardo, and R. Scott Peden

Statement on Court’s Final Judgment in Case Against Life Partners Holdings, Brian Pardo, and R. Scott Peden

SEC ANNOUNCES PRISON SENTENCE FOR JEREMY FISHER FOR MISAPPROPRIATING INVESTOR FUNDS

U.S. SECURITIES AND EXCHANGE COMMISSION 

Litigation Release No. 23139 / November 24, 2014

Securities and Exchange Commission v. Jeremy Fisher, The Good Life Financial Group, Inc., and The Good Life Global, LLC, Civil Action No. 3:13-cv-00683

Jeremy Fisher Sentenced to 30 Months for Offering Fraud

The Securities and Exchange Commission announced today that on October 27, 2014, the Honorable John E. Steele of the United States District Court for the Middle District of Florida sentenced Jeremy S. Fisher to 30 months in prison, followed by 3years of supervised release and ordered him to forfeit $500,000. The Court has scheduled a hearing to set the amount of restitution to be ordered on December 15, 2014. Fisher, 44, of La Crescent, Minnesota, had previously pled guilty to two counts of wire fraud for his role in stealing over $1 million from 18 victims in an investment scam. The U.S. Attorney's Office for the Central District of Florida filed criminal charges against Fisher on January 14, 2014. Fisher was ordered to surrender on December 1, 2014, to begin serving his prison sentence.

The criminal charges arose out of the same facts that were the subject of a settled civil enforcement action that the Commission filed against Fisher on September 30, 2013. The Commission's complaint alleges that from at least August 2009 through December 2012, Fisher raised approximately $1.04 million from approximately 18 investors who invested in unregistered securities offerings conducted by Fisher through his two companies. Fisher offered investors the opportunity to invest their money through a "special trading platform" that supposedly generated significant returns. Fisher told investors that their money would be deposited in an overseas bank account and used as collateral for the purchase and sale of collateralized debt obligations and medium term notes on the trading platform. However, Fisher instead fraudulently misappropriated and converted investors' funds for his personal use to pay previous investors, to purchase a house and car and to pay his daughter's tuition and other personal and business expenses. Fisher also provided quarterly statements to investors which falsely represented that investors were earning money on their investments. The Commission's complaint alleged that Fisher and his companies violated Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The complaint also alleged Fisher violated Section 15(a) of the Exchange Act.

On October 16, 2013 the Court in the Commission's case entered orders of permanent injunction and disgorgement, plus prejudgment, totaling $936,226 to be paid jointly and severally among Fisher and his companies and ordered Fisher to pay a civil penalty of $150,000. Fisher and his companies consented to the entry of the Court's orders.

SEC CHARGES EXECUTIVES OF PENNY STOCK COMPANY FOR ISSUING FALSE AND MISLEADING PRESS RELEASES

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission today charged father-and-son executives at a New Jersey-based penny stock company for issuing false and misleading press releases while secretly selling thousands of their own stock shares into the market.  They agreed to pay nearly $325,000 and accept officer-and-director bars to settle the SEC’s charges.

Conolog Corporation’s public filings state that it manufactures communications equipment primarily for use by electric utilities, fiber optic service providers, and the military.  The SEC alleges that Conolog issued three consecutive press releases in early 2010 with distorted information at the behest of chairman and then-CEO Robert Benou with assistance from his son and company president Marc Benou.  Among the company’s mischaracterizations were that Conolog had secured $1.9 million in new equipment orders when, in fact, only $50,000 worth of new orders had been received at the time.  Conolog also created the misimpression that it had developed new fiber optic technology that was fully vetted and ready for commercial use and sale.  Marc Benou was quoted saying it “surpassed our expectations in field tests” when in reality there had been no independent third-party testing as implied in the press release.  The “testing” was merely an in-house demonstration of the product.

“Information released by a company into the marketplace must be truthful and substantiated so investors can make well-informed trading decisions,” said Andrew M. Calamari, Director of the SEC’s New York Regional Office.  “The Benous caused Conolog Corporation to issue press releases with false and misleading information that was used to promote the stock to unwitting investors.”

According to the SEC’s complaint filed in federal court in Newark, N.J., Robert Benou hired a public relations firm to promote Conolog’s stock using the false and misleading statements from the press releases.  The promotional efforts significantly increased the company’s stock price and trading volume, and Robert and Marc Benou made combined profits of more than $81,000 through undisclosed sales of some of their stock holdings at the artificially inflated prices.  They also each violated the federal securities laws requiring company insiders to disclose information about their holdings and transactions in company stock so other investors are aware of their moves.

“Officers and directors of public companies must promptly report their own purchases and sales of company stock so the marketplace has the benefit of knowing what insiders are doing with their shares,” said Sanjay Wadhwa, Senior Associate Director for Enforcement in the SEC’s New York Regional Office.  “Robert and Marc Benou ignored their responsibilities to shareholders as they bought and sold Conolog stock over the years without informing investors about their transactions on a timely basis.”

The SEC’s complaint charges Conolog Corporation and the Benous with violating the antifraud provisions of the federal securities laws.  The complaint charges Robert and Marc Benou with violating securities law provisions requiring officers and directors of public companies to report their transactions in the company’s stock within two business days, and requiring all owners of more than 5 percent of a company’s stock to timely report the size of their holdings and any material changes to them.

Robert Benou agreed to settle the charges without admitting or denying the allegations by paying $77,490 in disgorgement of illegal profits made from selling Conolog stock as the misleading press releases were issued.  He also must pay prejudgment interest of $12,400 and a penalty of $177,490, and will be permanently barred from acting as an officer or director of a public company or participating in penny stock offerings.  Marc Benou agreed to settle the charges by paying disgorgement of $4,191 plus prejudgment interest of $671 and a penalty of $51,250.  He will be barred for at least two years from acting as an officer or director of a public company or participating in penny stock offerings.  The settlement is subject to court approval.

The SEC’s investigation has been conducted by Justin P. Smith and George N. Stepaniuk of the New York office and supervised by Mr. Wadhwa.