SEC CHARGES TEXAS-BASED BROKERAGE WITH FAILING TO SUPERVISE REPRESENTATIVES

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

03/04/2015 11:25 AM EST

The Securities and Exchange Commission today charged an Irving, Texas-based brokerage firm with violating key customer protection rules after failing to adequately supervise registered representatives who misappropriated customer funds.

H.D. Vest Investment Securities agreed to settle the charges by paying a financial penalty and retaining an independent compliance consultant to improve its supervisory controls.

According to the SEC’s order instituting a settled administrative proceeding, H.D. Vest has more than 4,500 registered representatives typically working as independent contractors who also operate tax businesses outside of their securities businesses.  H.D. Vest failed to have proper policies and procedures in place to monitor its representatives’ outside business activities, and as a result some representatives used their outside businesses to defraud brokerage customers in such ways as transferring or depositing customer brokerage funds into their outside business accounts.

The SEC’s order further finds that H.D. Vest did not follow customer protection rules in the wake of the wrongdoing by its representatives.  Under these rules to protect customer funds and securities in the possession of broker-dealers, H.D. Vest was required to make certain calculations and, if necessary, deposit funds into a reserve account for the benefit of customers who were harmed by the representatives’ misconduct.  H.D. Vest neither made the calculations nor maintained a reserve account.

“H.D. Vest lacked sufficient supervisory controls to track the transfer of customer funds to outside entities controlled by its registered representatives,” said David R. Woodcock, Director of the SEC’s Fort Worth Regional Office.  “Firms like H.D. Vest do face greater challenges in supervising their representatives in numerous small branch offices spread across the country, but that doesn’t excuse the firm from establishing adequate policies and procedures to address those challenges.”

The SEC’s order finds that H.D. Vest violated the supervision requirements of Section 15(b)(4)(E) of the Securities Exchange Act of 1934 as well as the customer protection rules found in Section 15(c)(3) of the Exchange Act and in Rule 15c3-3.  H.D. Vest also violated the document preservation requirements in Section 17(a) of the Exchange Act and in Rule 17a-4(b)(4).  H.D. Vest consented without admitting or denying the findings in the SEC’s order to cease and desist from committing these violations and pay a $225,000 penalty.  The representatives involved in the misconduct have since been the subject of criminal, civil, or FINRA enforcement actions.

The SEC’s investigation was conducted in the Fort Worth office by Michael A. Umayam and Samantha S. Martin.  The SEC examination that led to the investigation was conducted by Aaron Pabst, Paul Rash, and Mary Walters.

SEC CHARGES BIOTECH CO. AND CEO WITH FRAUD

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

Litigation Release No. 23201 / February 19, 2015

Securities and Exchange Commission v. Michael M. Cohen and Proteonomix, Inc., Civil Action No. 2:15-cv-01292-MCA-JBC

SEC Charges New Jersey Biotechnology Company and Its Chief Executive Officer with Securities Fraud

The Securities and Exchange Commission has charged Proteonomix, Inc., a New Jersey biotechnology company, and Michael M. Cohen, the company's Chief Executive Officer, with securities fraud and other violations.

Proteonomix and Cohen have agreed to settle the SEC's charges and pay monetary amounts to be determined by the Court. Cohen also has agreed to be barred from serving as an officer or director of a publicly-traded company and from participating in any penny stock offering.

According to the SEC's complaint filed in the U.S. District Court for the District of New Jersey, from approximately 2008 through 2012, Proteonomix and Cohen - who was the company's Chief Executive Officer, Chairman of its Board of Directors, and at times its Chief Financial Officer - committed multiple violations of the securities laws that enabled Cohen to pocket more than $600,000 for his own or his family's benefit. The SEC alleges that Proteonomix and Cohen fraudulently issued and transferred millions of Proteonomix shares to corporate entities that were named after Cohen's wife and children and nominally controlled by Cohen's father-in-law. In fact, however, Cohen secretly controlled brokerage and bank accounts in the names of these entities. Cohen directed the issuance and transfer of Proteonomix shares to these entities, directed the subsequent sale of these shares into the open market, and directed that proceeds from these share sales be transferred to Cohen or spent for his direct benefit. The SEC alleges that Proteonomix and Cohen falsely recorded these share issuances and transfers on the company's accounting books and records and failed to disclose in the company's SEC filings that the transactions with his father-in-law's entities were related party transactions. The SEC also alleges that Cohen improperly directed his father-in-law's entities to transfer shares of Proteonomix stock in unregistered transactions to pay the company's debts, and that Cohen falsely certified the accuracy of Proteonomix's reports and financial statements that were filed with the SEC.

In a parallel case, the U.S. Attorney's Office for the District of New Jersey today announced that Cohen has pleaded guilty to a criminal information.

The SEC alleges that the defendants violated, among other provisions, the registration, antifraud, reporting, books and records, and internal controls provisions of the securities laws. Specifically, the SEC's complaint charges Proteonomix with violating Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933 (the "Securities Act"); Sections 10(b), 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Securities Exchange Act of 1934 (the "Exchange Act"); and Rules 10b-5, 12b-20, 13a-1, and 13a-13 thereunder. The complaint charges Cohen with violating Sections 5(a), 5(c), and 17(a) of the Securities Act; Sections 10(b) and 13(b)(5) of the Exchange Act; Rules 10b-5, 13a-14, and 13b2-1 thereunder; and with aiding and abetting violations of Sections 13(a), 13(b)(2)(A), 13(b)(2)(B), and Rules 12b-20, 13a-1, and 13a-13.

In addition to the monetary relief and bars described above, Cohen has consented to the entry of a judgment permanently enjoining him from violating Sections 5(a), 5(c), and 17(a) of the Securities Act; Sections 10(b) and 13(b)(5) of the Exchange Act; Rules 10b-5, 13a-14, and 13b2-1; and from aiding and abetting violations of Sections 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act, and Rules 12b-20, 13a-1, and 13a-13.

Proteonomix has consented, without admitting or denying the SEC's allegations, to the entry of a judgment permanently enjoining the company from violating Sections 5(a), 5(c), and 17(a) of the Securities Act; Sections 10(b), 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Exchange Act; and Rules 10b-5, 12b-20, 13a-1, and 13a-13. The settlements are subject to approval by the Court.

The SEC's investigation was conducted by Timothy K. Halloran, Heidi H. Mayor, and Michi Harthcock, and supervised by M. Alexander Koch. The SEC appreciates the assistance of the U.S. Attorney's Office for the District of New Jersey and the Federal Bureau of Investigation in this matter.

SEC IMPOSES SANCTIONS AGAINST 4 CHINA-BASED ACCOUNTING FIRMS RELATING TO NON-COOPERATION IN FRAUD INVESTIGATIONS

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION  

02/05/2015

The Securities and Exchange Commission imposed sanctions against four China-based accounting firms that had refused to turn over documents related to investigations of potential fraud.  The China-based firms are members of large international networks associated with the “Big Four” accounting firms and registered with the Public Company Accounting Oversight Board (PCAOB).

As part of the settlement, the Commission censures the firms, which eventually began providing the documents, and requires them to perform specific steps to satisfy SEC requests for similar materials over the next four years.  Under the settlement, the firms each agreed to pay $500,000 and admit that they did not produce documents before the proceedings were instituted against them in 2012.  They agreed to the settlement without admitting or denying other findings in the order.

“As we repeatedly have stated throughout this litigation, obtaining an audit firm’s workpapers is critical to enforcement staff’s ability adequately to protect investors from the dangers of accounting fraud,” said Andrew Ceresney, Director of the SEC’s Enforcement Division.  “This settlement recognizes the SEC’s substantial recent progress in obtaining those documents from registered firms in China.  The settlement also holds four of the firms accountable for previously violating U.S. rules, and makes clear that should production of documents cease, the SEC can restart the administrative proceeding.”

In January 2014, after a 12-day hearing the previous summer, an administrative law judge issued an initial decision finding that the four firms – Deloitte Touche Tohmatsu Certified Public Accountants Limited, Ernst & Young Hua Ming LLP, KPMG Huazhen (Special General Partnership), and PricewaterhouseCoopers Zhong Tian CPAs Limited Company – willfully refused to provide the SEC with workpapers and related documents in connection with their audit work for nine China-based companies that had securities registered in the U.S.  The initial decision found that the firms willfully violated Section 106 of the Sarbanes-Oxley Act, which requires foreign public accounting firms to provide such workpapers to the SEC upon request.

After the hearing, the SEC received multiple productions of workpapers from the firms through assistance provided by the China Securities Regulatory Commission (CSRC).  As these productions were being made, the four firms petitioned the Commission to review the January 2014 initial decision.  The SEC’s Enforcement Division also sought review of aspects of that decision.  

“The settlement is an important milestone in the SEC’s ability to obtain documents from China.  Of course, we hope that it is an enduring milestone,” said Antonia Chion, Associate Director of the Enforcement Division.  “The settlement provides a path forward for obtaining productions and enhanced future cooperation from the Big Four firms.”

Under the settlement, if future document productions fail to meet specified criteria, the Commission retains authority to impose a variety of additional remedial measures on the firms depending on the nature of the failure.  Remedies for any future noncompliance could include, as appropriate, an automatic six-month bar on a single firm’s performance of certain audit work, commencement of a new proceeding against a firm, or the resumption of the current proceeding against all four firms.

The proceeding continues against a fifth China-based accounting firm, Dahua CPA Ltd.

The Enforcement Division’s litigation has been led by David Mendel and assisted by Jan Folena, Amy Friedman, Marc E. Johnson, and Douglas Gordimer.  The litigation has been supervised by Matthew Solomon, Antonia Chion, and Kara Brockmeyer.

SEC ANNOUNCES OVER $580 MILLION TO BE PAID BY COMPANY, CEO FOR ROLES IN PONZI SCHEME

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 23184 / January 30, 2015
Securities and Exchange Commission v. Edwin Yoshihiro Fujinaga and MRI International, Inc., et al., Civil Action No. 2:13-CV-1658 JCM (CWH) (D. Nev.)

Judge Orders MRI International Inc. and Its CEO Edwin Fujinaga to Pay More Than $580 Million in Ponzi Scheme Case

On January 27, 2015, the Honorable James C. Mahan, United States District Judge for the District of Nevada, entered a final judgment in favor of the Securities and Exchange Commission against defendants Edwin Fujinaga and MRI International, Inc. The final judgment requires Fujinaga and MRI to pay more than $580 million as the outcome of a civil enforcement action originally filed in September 2013. The SEC brought the case on an emergency basis and obtained a temporary restraining order and an asset freeze at the outset of the litigation.

In its pleadings and other court papers, the SEC alleged that the defendants perpetrated an elaborate Ponzi scheme designed to misappropriate money from investors. The SEC alleged that the defendants raised money from thousands of investors living primarily in Japan under the ruse that MRI was using their funds to buy accounts receivable from medical providers at a discount and subsequently collecting the full value of those receivables from insurance companies. The SEC alleged that defendants used the money for other purposes, including financing Fujinaga's extravagant lifestyle. In October 2014, the court granted the SEC's motion for summary judgment on liability against Fujinaga and MRI on all charges against them, including the following violations of the antifraud provisions of the federal securities laws: Sections 17(a)(1), (2), and (3) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.

The final judgment, in conjunction with the summary judgment opinion, sets forth findings that form the basis for the sanctions imposed, including that the "defendants engaged in a deceitful Ponzi scheme over several years," and that "such conduct manifested a high degree of scienter." The final judgment finds that the defendants collected hundreds of millions of dollars for purported investments in medical accounts receivable, and that they used these funds to repay earlier investors as well as for their own personal expenses.

The final judgment holds the defendants jointly and severally liable for disgorgement of proceeds in the amount of $442,229,611.70 and for prejudgment interest in the amount of $102,129,752.38. The judgment imposes civil money penalties of $20 million against each defendant. The judgment also provides injunctive relief by permanently enjoining the defendants from further securities violations.

The SEC's case is continuing against multiple relief defendants, who the SEC alleges received and used investors' funds.

For further information, please see Litigation Release Number 22832 (October 3, 2013) [SEC Obtains Asset Freeze and Other Emergency Relief in Ponzi Scheme Targeting Investors in Japan] and Litigation Release Number 23111 (October 10, 2014) [SEC Obtains Summary Judgment Win on Liability in Ponzi Scheme Case].

The SEC appreciates the assistance of the Financial Services Agency of Japan and the Securities and Exchange Surveillance Commission of Japan in this matter.

HEDGE FUND MANAGER RECEIVES 13 YEAR PRISON TERM FOR FRAUD

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION

Litigation Release No. 23185 / January 30, 2015

Securities and Exchange Commission v. Francisco Illarramendi, et al., Civil Action No. 3:11cv-78

United States v. Illarramendi, 3:11-cr-0041-SRU

Court Sentences Connecticut-Based Hedge Fund Manager to Thirteen Years in Prison

The Securities and Exchange Commission announced that on January 29, 2015, a federal court in Connecticut sentenced former Connecticut-based hedge fund manager Francisco Illarramendi to thirteen years in prison, followed by three years of supervised release. Illarramendi was also ordered to pay restitution to the victims of his fraud, in an amount to be determined at a future restitution hearing. This sentence was imposed on Illarramendi's guilty plea to two counts of wire fraud, one count of securities fraud, one count of investment advisor fraud, and one count of conspiracy to obstruct justice, to obstruct an official proceeding and to defraud the SEC.

The SEC's action against Illarramendi and others remains pending. In January 2011, the SEC charged Illarramendi and various entities owned or controlled by him, including investment advisers Highview Point Partners, LLC, and Michael Kenwood Capital Management, LLC, with engaging in a multi-year Ponzi scheme involving hundreds of millions of dollars. On February 3, 2011, the U.S. District Court for the District of Connecticut appointed a receiver in the case to marshal the assets of a number of entities formerly owned or controlled by defendants Illarramendi, Highview Point Partners, and Michael Kenwood Capital Management. The receiver has collected and distributed over $264 million to parties harmed by the defendants' alleged wrongdoing. The receiver plans to make additional distributions to harmed parties at a later time as additional funds become available.

Also, on August 3, 2011, the Commission issued an Order by consent barring Illarramendi from association with any broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization.

The SEC acknowledges and appreciates the work of the U.S. Attorney's Office for the District of Connecticut and the Federal Bureau of Investigation.

SEC CHARGES STOCK PROMOTER WITH FRAUD IN PURPORTED PURCHASE OF FACEBOOK, TWITTER SHARES

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission charged a stock promoter based in Santa Barbara, Calif., with fraudulently raising nearly $3.5 million from investors purportedly to purchase Facebook and Twitter shares prior to their initial public offerings (IPOs).

The SEC alleges that instead of purchasing the shares in the secondary market as promised, Efstratios “Elias” Argyropoulos and his firm Prima Capital Group misappropriated investor funds.  They used the money primarily for day trading of stocks and options as well as to pay off certain investors who complained when they didn’t receive the promised Facebook or Twitter shares.

Argyropoulos agreed to settle the SEC’s charges and be barred from working for an investment adviser or broker-dealer, and financial penalties will be determined at a later date.

“Argyropoulos capitalized on the high demand for pre-IPO Facebook and Twitter shares to steal investor money and secretly fund his own day trading,” said Michele Wein Layne, Director of the SEC’s Los Angeles Regional Office.

The SEC’s complaint charges Argyropoulos and Prima Capital with violating the antifraud provisions and broker-dealer registration provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934.  Argyropoulos and Prima Capital agreed to settle the charges without admitting or denying the allegations, and the settlement is subject to court approval.

The SEC separately announced an administrative proceeding against Khaled A. Eldaher, a registered representative living in Austin, Texas.  The SEC Enforcement Division alleges that while working for a registered broker-dealer, Eldaher reached a side agreement with Argyropoulos to solicit investors and receive 50 percent of the mark-up on Facebook shares he sold.  Eldaher sold $362,887.50 worth of Facebook shares and was paid $15,478 by Prima Capital.  He was later terminated by the broker-dealer for selling securities other than through the firm.  The Enforcement Division alleges that Eldaher’s sales of unregistered securities violated Section 15(a)(1) of the Exchange Act.  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’s investigation was conducted by Tony Regenstreif and supervised by Victoria A. Levin of the Los Angeles Regional Office.  The Enforcement Division’s litigation against Eldaher will be led by Karen Matteson.

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.

CFTC ORDERS MAN TO PAY $344,000 FOR ROLE IN COMMODITY POOL FRAUD SCHEME

FROM:  U.S. COMMODITY FUTURES TRADING COMMISSION 

CFTC Orders New York Resident Jacob N. Stein to Pay More than $344,000 in Restitution and Civil Monetary Penalty for Commodity Pool Fraud and Misappropriation

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today announced that it entered an Order requiring Jacob N. Stein of Hankins, New York, individually and doing business as TEPdesign, Inc., to pay restitution of $244,400 to defrauded customers and a $100,000 civil monetary penalty, for committing fraud and misappropriation in connection with a commodity pool that traded leveraged or margined off-exchange foreign currency contracts (forex). Neither Stein nor TEPdesign, Inc. has ever been registered with the CFTC.

According to the CFTC’s Order, from about January 2010 through September 2012, Stein, without registering with the CFTC as a Commodity Pool Operator, solicited and obtained approximately $524,000 from at least 17 investors (Pool Participants) to participate in a commodity pool for the purpose of trading leveraged or margined forex. Stein used approximately $83,000 of the funds solicited to trade forex, of which over $80,000 was lost in forex trading, the Order states. Instead of reporting these losses to the Pool Participants, Stein created and distributed to the Pool Participants false account statements indicating that Stein was earning profits for the Pool Participants through forex trading. The Order also finds that the remaining funds, approximately $441,000, were misappropriated by Stein to pay fabricated “profits” and returns of principal to Pool Participants and for Stein’s personal expenses, such as car payments and retail purchases. Ten Pool Participants are still owed approximately $244,400 in principal, the Order finds.

In addition to ordering restitution and imposing a civil monetary penalty, the CFTC Order also requires Stein to cease and desist from further violations of the Commodity Exchange Act and CFTC regulations, as charged, and imposes permanent bans on Stein’s trading, registration, and certain other CFTC-regulated activities.

The CFTC cautions victims that restitution orders may not result in the recovery of money lost because the wrongdoers may not have sufficient funds or assets. The CFTC will continue to fight vigorously for the protection of customers and to ensure the wrongdoers are held accountable.

CFTC Division of Enforcement staff members responsible for this case are Patrick Daly, Xavier Romeu-Matta, Michael C. McLaughlin, David W. MacGregor, Lenel Hickson, Jr., and Manal M. Sultan.

SEC CHARGES MAN FOR AIDING AND ABETTING FRAUDULENT FOREX TRADING SCHEME

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

SEC Charges Accomplice in Forex Trading Scheme

The Securities and Exchange Commission  filed charges against Steven M. McCraw for aiding and abetting a fraudulent foreign currency exchange (“forex”) trading scheme. The SEC’s case was filed in the U.S. District Court for the Eastern District of Texas.

The SEC alleges that McCraw knowingly or recklessly provided substantial assistance to Kevin G. White and his company, KGW Capital Management, LLC, in perpetrating a fraudulent scheme that raised approximately $7.4 million between September 2011 and July 2013. The SEC’s complaint alleges that White and KGW Capital raised investor funds through Revelation Forex, a purportedly successful “highly specialized hedge fund” that claimed to employ a sophisticated, low-risk, high-return forex trading strategy. McCraw helped White attract potential investors to Revelation Forex by calculating alleged trading returns that were used in various marketing materials and on Revelation Forex’s website. McCraw also took the lead in creating an ostensibly “independent” website that ranked Revelation Forex as one of the best performing forex funds in the world. McCraw also met with potential investors and solicited investments for Revelation Forex.

According to the SEC, Revelation Forex’s actual trading did not generate the positive returns that were represented to investors, but instead lost more than $2 million. Moreover, White used investor funds for various personal expenses and to fund other unrelated and undisclosed investments and businesses, including a propane gas company operated by McCraw. The SEC previously halted White’s fraudulent scheme in SEC v. Kevin G. White, et al., Civil Action No. 4:13-cv-0383 (E.D. Tex. July 9, 2013).

McCraw is charged with violating or aiding and abetting 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. He has agreed to settle the SEC’s charges by consenting to injunctions against future violations of these provisions, injunctions against engaging in certain specific conduct, disgorgement of ill-gotten gains (with prejudgment interest), and civil penalties to be determined by the district court.

SEC BRINGS FRAUD CHARGES AGAINST INVESTMENT ADVISORY FIRM, EXECUTIVES FOR FALSIFYING PERFORMANCE RESULTS

FROM:  U.S SECURITIES AND EXCHANGE COMMISSION 

May 8, 2014

The Securities and Exchange Commission today announced fraud charges and an asset freeze against a New York-based investment advisory firm and two executives for distributing falsified performance results to prospective investors in two hedge funds they managed.

The SEC alleges that Aphelion Fund Management’s chief investment officer Vineet Kalucha fraudulently altered an outside audit firm’s report reviewing the performance of an investment account he managed.  Aphelion’s chief financial officer George Palathinkal allegedly learned about Kalucha’s falsifications, which essentially changed an investment loss into a major investment gain in the account.  Nevertheless, the falsified report showing the phony gain instead of the actual loss was distributed to prospective investors.  Furthermore, investors were separately provided false information about Aphelion’s assets under management and Kolucha’s litigation history.

Kalucha, who is majority owner and managing partner of the firm in addition to chief investment officer, also is charged with siphoning investor proceeds for his luxury car payments and settlements of legal actions against him personally that are unrelated to Aphelion.

“We allege that on multiple occasions, Aphelion, Kalucha, and Palathinkal intentionally overstated the success of their investment strategy,” said Robert J. Burson, associate director of the SEC’s Chicago Regional Office.  “Kalucha also has been using investor money as his own, and emergency action was necessary to protect the interests of investors.”

In response to the SEC’s request for emergency relief for investors, U.S. District Court Judge Jed S. Rakoff issued a temporary restraining order, imposed an asset freeze to protect client assets, and temporarily prohibited the defendants from soliciting new investors or additional investments from existing investors.  A hearing on the SEC’s motion for a preliminary injunction has been scheduled for May 15 before Judge Richard M. Berman.

According to the SEC’s complaint filed in U.S. District Court for the Southern District of New York, Aphelion serves as the investment adviser and general partner for two unregistered hedge funds: Aphelion US Fund LP and Aphelion Offshore Fund Ltd.  Kalucha has been managing investor funds since 2009 using a proprietary investment model that he developed.  The outside auditor’s report showed an investment loss of more than 3 percent during a 15-month period in an account that Kalucha managed.  However, the fraudulent report distributed to investors showed a phony investment gain of 30 percent during an 18-month period.  In addition to distributing the altered report, Aphelion, Kalucha, and Palathinkal also misled investors about Aphelion’s assets under management.  While Kalucha and Palathinkal told investors at various times during 2013 that Aphielion had $15 million or more in assets under management, the firm never had more than $5 million in assets under management at any point during that year.

The SEC’s complaint further alleges that the defendants misrepresented Kalucha’s litigation history to investors.  Under the legal proceedings section in a due diligence questionnaire included in Aphelion’s marketing materials, Kalucha answered “None” and added a lengthy, materially misleading explanation of a civil proceeding in which he was involved.  The proceeding, which he did not identify by name, was a case against him by the U.S. Department of Labor for breaching fiduciary duties.  By virtue of a consent judgment in the case, Kalucha and Aphelion are prohibited from acting as investment advisers to many types of common retirement plans, which often invest in hedge funds.  Investors were deprived of this information in the due diligence questionnaire.

According to the SEC’s complaint, Aphelion, Kalucha, and Palathinkal raised $1.5 million in investments for Aphelion from 2013 to March 2014 by representing to investors that the funds would be used for Aphelion’s operating expenses.  Kalucha actually used more than 40 percent of the funds raised in 2013 for his personal benefit.  He has withdrawn investor proceeds for such things as settlement of a foreclosure action involving his personal residence, settlement of a breach of contract action filed against him in his personal capacity, down payment of a luxury BMW sedan, and payment for tax and accounting services for his personal finances.  Palathinkal approved all of Kalucha’s withdrawals.

The SEC’s complaint alleges that Aphelion, Kalucha, and Palathinkal violated the antifraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934.  In addition, the complaint alleges that Kalucha and Aphelion Fund Management violated, and Palathinkal aided and abetted violations of, the antifraud provisions of the Investment Advisers Act of 1940.

The SEC’s investigation and litigation have been conducted by David Benson, Paul Montoya, Eric Phillips, Delia Helpingstine, Kristine Rodriguez, and Joan Price-McLaughlin of the Chicago Regional Office.

COURT ORDERS ARIZONA MAN TO PAY OVER $1.2 MILLION STEMMING FROM SOLICITATION FRAUD CASE

FROM:  COMMODITY FUTURES TRADING COMMISSION 
Federal Court Orders Arizona Resident Ray Thomas Brown to Pay over $1.2 Million for Solicitation Fraud and Misappropriation in Operating Two Commodity Scams

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today announced that Judge Frederick J. Martone of the U.S. District Court for the District of Arizona granted the CFTC’s motion for summary judgment and entered an Order of permanent injunction against Defendant Ray Thomas Brown, of Phoenix, Arizona. The Order imposes permanent trading and registration bans against Brown and requires him to pay restitution and disgorgement totaling $1,131,941.98 and a civil monetary penalty of $140,000.

The Order stems from a CFTC Complaint filed on November 26, 2012 (see CFTC Press Release 6448-12, December 6, 2012), charging Brown with fraud, misappropriation, and registration violations in operating two scams, one involving fraud while acting as a Commodity Pool Operator (CPO) and the other involving fraud while acting as a Commodity Trading Advisor (CTA). Brown duped customers into sending at least $1.2 million to bank and trading accounts under his control, according to the Complaint. The CFTC Complaint also charged Brown with illegally operating as an unregistered CPO and CTA.

The Order finds that Brown fraudulently solicited approximately $1,163,519 from more than 200 individuals. Of that amount, Brown deposited only approximately $86,000 into commodity pool trading accounts, which was promptly lost in trading. The Order also finds that Brown used the bulk of the funds he solicited on personal expenses and to further his fraudulent scheme. In making his solicitations, Brown lied about his background, fabricated his past and present investment performance, disseminated false account statements, and failed to disclose that he was not registered with the CFTC in any capacity, according to the Order.

A Related Criminal Action

In a related criminal action, Brown pleaded guilty on May 7, 2013, to wire fraud. Brown is currently awaiting sentencing (United States v. Ray Thomas Brown, Case No. 8:13-cr-00035-UA (United States District Court for the Central District of California)).

The CFTC thanks the United States Attorney’s Office for the Central District of California, the Federal Bureau of Investigation, the Black Mountain Precinct of the Phoenix Police Department, and the Arizona Corporation Commission for their assistance and cooperation on this matter.

CFTC Division of Enforcement staff members responsible for this case are Dmitriy Vilenskiy, Jonathan Robell, Richard Foelber, Paul Hayeck, and Joan Manley.

SEC ALLEGES FORMER REGISTERED REPRESENTATIVE STOLE FROM INVESTOR'S ACCOUNT

FROM:  SECURITIES AND EXCHANGE COMMISSION
SEC Charges Former Registered Representative with Fraud

The Securities and Exchange Commission has charged Kevin P. O'Brien (O'Brien), a former registered representative, with fraud in connection with the misappropriation of over $298,000 from the account of a customer between 1998 and 2008. O'Brien has agreed to settle the charges, without admitting or denying the allegations in the Commission's complaint.

The Commission's complaint, filed February 21, 2014, in the U.S. District Court for the Southern District of Ohio, alleges that, from at least 1998 through August 2008, while working as a registered representative, O'Brien engaged in a fraudulent scheme to misappropriate money from a customer. The complaint alleges that O'Brien caused checks to be issued in the customer's name from the customer's account, picked up the checks from a post office box that he controlled, and deposited them into a bank account in the customer's name. The complaint further alleges that O'Brien withdrew the money from his customer's bank account, which O'Brien had the ability to control, and used the money for personal expenses unrelated to the customer.

O'Brien has consented to the entry of a final judgment that permanently enjoins him from future violations of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 thereunder. The final judgment also orders disgorgement of $298,917, plus prejudgment interest of $54,020, but waives the payment of all disgorgement and all prejudgment interest based upon O'Brien's inability to pay. The Commission also did not seek a civil money penalty based upon O'Brien's inability to pay.

ALLEGED FUNDS MISAPPROPRIATION GENERATES A GRAND JURY INDICTMENT

FROM:  SECURITIES AND EXCHANGE COMMISSION 
Jeremy Fisher Indicted for Fraud

The Securities and Exchange Commission announced that on February 5, 2014, a Grand Jury in the United States District Court for the Middle District of Florida returned an Indictment charging Jeremy S. Fisher with four counts of wire fraud. The Indictment also seeks forfeiture of property obtained as a result of the alleged criminal violations.

The Indictment 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 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 Indictment's allegations are based on the same conduct underlying the Commission's September 30, 2013 Complaint against Fisher filed in the United States District Court for the Western District of Wisconsin. The Commission charged Fisher and his two companies with violations of 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 charged Fisher with violations of Section 15(a) of the Exchange Act. The defendants entered into consents with the Commission agreeing to the entry by the Court of the relief requested in the complaint, including orders of permanent injunction and disgorgement, plus prejudgment, totaling $936,226 to be paid jointly and severally among the defendants. Fisher has also agreed to pay a civil penalty of $150,000. On October 16, 2013, the Court entered the Final Judgments against Fisher and his companies.

SEC CHARGES CALIFORNIA RESIDENT OF DEFRAUDING ADVISORY CLIENTS

FROM:  SECURITIES AND EXCHANGE COMMISSION 
SEC Charges James Y. Lee for Defrauding His Advisory Clients

On February 13, 2014, the Securities and Exchange Commission filed charges against James Y. Lee, a resident of La Jolla, California, alleging he defrauded his advisory clients.

The SEC's complaint, filed in federal district court in San Diego, alleges that Lee portrayed himself to prospective clients as a highly successful financial industry expert. According to the complaint, Lee recruited clients to open online brokerage accounts, including margin accounts in which he had discretionary authority to trade in options. He also charged his clients a management fee of as much as 50% of their monthly realized profits and promised clients that he would share equally in 50% of their realized losses. But when Lee's clients suffered large realized losses, he failed to reimburse most of them for his promised share.

The complaint alleges that Lee defrauded his clients in several ways. He charged some clients fees for the month of February 2011 based on false performance and concealed from them that they had actually incurred realized losses that month. In addition, he misled clients about his background, including failing to disclose a criminal conviction for embezzlement and an SEC cease-and-desist order for his role in illegal unregistered penny stock offerings. He also misled clients about his promise to share in realized losses and the risks of his options trading strategy. Furthermore, he traded in penny stocks in client accounts outside of his discretionary authority, and fraudulently induced one client to loan money to a penny stock company.

The complaint charges Lee with violating the antifraud provisions of the federal securities laws - Section 17(a) of the Securities Act of 1933, Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, and Section 206(1) and (2) of the Investment Advisors Act of 1940. The SEC is seeking a permanent injunction as well as disgorgement, prejudgment interest and civil penalties against Lee.

The complaint names several relief defendants including Lee's girlfriend, his son and his close business associate as well as their respective companies. According to the complaint, Lee diverted investor funds to all of the relief defendants to avoid holding assets in his own name.

In a related matter, on February 12, 2014, the SEC settled administrative and cease-and-desist proceedings against Ronald E. Huxtable II, of Palm Coast Florida. (Rel. 33-9547) In those proceedings the SEC found that Huxtable, one of Lee's clients, aided, abetted and caused Lee's violations by helping Lee charge certain clients fees for the month of February 2011 based on false performance and conceal the fact that they had actually incurred net realized losses for that month.

The SEC's investigation was conducted by Jennifer Peltz and Delia Helpingstine and supervised by Paul Montoya. The SEC's litigation will be led by Michael Foster.

ARIZONA RESIDENT GETS 30 MONTHS IN PRISON IN COMMODITY POOL FRAUD CASE

FROM:   COMMODITY FUTURES TRADING COMMISSION 

CFTC Obtains Court Order against Arizona Resident Thomas L. Hampton for Issuing False Account Statements and Operating as an Unregistered Commodity Pool Operator

Hampton ordered to pay a $1.5 million penalty and permanently barred from any commodity-related activities

In a related criminal matter, Hampton sentenced to 30 months in prison and ordered to pay over $4.8 million in restitution

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today announced that Judge H. Russel Holland of the U.S. District Court for the District of Arizona entered an Order of final judgment by default and permanent injunction against Defendant Thomas L. Hampton of Scottsdale, Arizona. The Order requires Hampton to pay a $1.5 million civil monetary penalty, imposes permanent trading and registration bans on him, and prohibits him from violating the Commodity Exchange Act (CEA), as charged. Hampton has never been registered with the CFTC.

The Order, entered on January 23, 2014, stems from a CFTC Complaint filed on June 11, 2013, charging Hampton with acting as an unregistered Commodity Pool Operator (CPO) and issuing false account statements in violation of the CEA (see CFTC Press Release 6609-13, June 12, 2013).

The Order finds that, from approximately September 2010 through at least September 2011, Hampton, while acting as an unregistered CPO, operated Hampton Capital Markets, LLC, an Arizona limited liability company, as a commodity pool. The Order finds that Hampton solicited approximately $5.2 million from at least 72 pool participants to invest in the pool for the purpose of trading commodity futures contracts, including E-mini S&P 500 futures contracts and E-mini Dow futures contracts, as well as securities-based index products. The Order also finds that Hampton defrauded pool participants by issuing false account statements that represented that the pool was generating significant trading profits, when, in fact, Hampton’s actual trading in the HCM Pool accounts resulted in net losses virtually every month.

In a related criminal action, on April 19, 2013, Hampton pleaded guilty to one count of commodities fraud. In October 2013, Hampton was sentenced to 30 months in prison and was further ordered to pay over $4.8 million in restitution (United States v. Thomas Hampton, Case No. 13-cr-00301-RWS (United States District Court for the Southern District of New York)).

The CFTC appreciates the assistance of the Arizona Corporation Commission, Securities Division, and the U.S. Attorney’s Office for the Southern District of New York.

CFTC Division of Enforcement staff responsible for this case are Eugene Smith, Tracey Wingate, Kyong J. Koh, Peter M. Haas, Paul G. Hayeck, and Joan Manley.

"CFTC REVOKES REGISTRATIONS OF CHICAGO TRADING MANAGERS LLC"

FROM:  COMMODITY FUTURES 
February 3, 2014
CFTC Revokes the Registrations of Chicago Trading Managers LLC

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) revoked the registrations of Chicago Trading Managers LLC (CT Managers). CT Managers had been registered with the CFTC as a Commodity Pool Operator and Commodity Trading Advisor.

On December 27, 2013, CFTC Judgment Officer Philip V. McGuire issued a Decision against CT Managers, finding that it was statutorily disqualified from CFTC registration based on a default judgment and permanent injunction Order entered by the U.S. District Court for the Southern District of New York on May 15, 2013 (see CFTC News Release 6589-13, May 16, 2013). That injunction prohibits CT Managers from, among other things, committing further fraud; entering into any regulated commodity contract transactions for any account in which it has a direct or indirect interest; controlling or directing the trading of any regulated commodity contract account; and soliciting or receiving or accepting any funds for the purpose of purchasing or selling any regulated commodity contract.

Additionally, the default judgment found that on at least 10 occasions CT Managers issued, or caused to be issued, statements to pool participants that fraudulently inflated the net asset value for pools and found that CT Managers, by engaging in that conduct, committed fraud in violation of the Commodity Exchange Act.

Additionally, the default judgment ordered CT Managers to pay a civil monetary penalty of $1.4 million jointly and severally with another Defendant.

The CFTC thanks the National Futures Association for its assistance.

CFTC Division of Enforcement staff members responsible for this case are Lenel Hickson and Manal M. Sultan.

HEDGE FUND MANAGER, COMPANY RECEIVE FINAL JUDGEMENT IN MISAPPROPRIATION CASE

FROM:  SECURITIES AND EXCHANGE COMMISSION 

Final Judgments Entered Against Former Hedge Fund Manager and His Company
The Securities and Exchange Commission announced today that on January 22, 2014, the Honorable Paul G. Gardephe of the United States District Court for the Southern District of New York, entered final judgments against Berton M. Hochfeld (“Hochfeld”) and his wholly-owned entity Hochfeld Capital Management, L.L.C. (“HCM”), in SEC v. Hochfeld et al., 12-CV-8202. The SEC filed an emergency action in November 2012, charging Hochfeld and HCM with securities fraud for misappropriating assets and making material misstatements to investors in the Heppelwhite Fund L.P., a now defunct hedge fund. The Court previously entered judgments against Hochfeld and HCM that ordered, among other relief, injunctions and an asset freeze, and granted the Commission’s motion to create a Fair Fund to compensate defrauded investors. In October 2013, the Fair Fund made initial distributions, totaling more than $6 million, to 35 former Heppelwhite investors, which represented approximately 70% of each investor’s prior capital balance in the hedge fund. Pursuant to a Distribution Plan, the Fair Fund will make a second round of distributions to investors from additional funds collected, including proceeds from the sale of Hochfeld’s personal assets.

Hochfeld and HCM consented to entry of the final judgments, which enjoin them from violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, Section 17(a) of the Securities Act of 1933, and Sections 203 and 206 of the Investment Advisers Act of 1940, and order disgorgement of $1,785,332, which will be deemed satisfied by the criminal forfeiture order entered against Hochfeld in a parallel criminal case filed by the U.S. Attorney’s Office for the Southern District of New York. In the criminal case, United States v. Hochfeld, 13-CR-021, Hochfeld pled guilty to securities fraud and wire fraud. The Court sentenced Hochfeld to a two-year prison term, which he is now serving, and ordered him to pay forfeiture and restitution totaling approximately $2.9 million.

The SEC thanks the U.S. Attorney’s Office for the Southern District of New York and the Federal Bureau of Investigation for their assistance in this matter.

MARKET VOLATILITY FRAUDSTERS RECEIVE COURT JUDGEMENT AGAINST THEM

FROM:  SECURITIES AND EXCHANGE COMMISSION 
Court Enters Judgment Against Three Wall Street Brokers for Defrauding Customers

The Securities and Exchange Commission announced today that, on January 14, 2014, pursuant to settlement agreements, The Honorable John F. Keenan of the United States District Court for the Southern District of New York entered judgments against defendants Marek Leszczynski, Benjamin Chouchane, and Henry Condron in the SEC’s fraud case, SEC v. Leszczynski, at al., Civil Action No. 1:12-cv-07488 (S.D.N.Y.). The judgments permanently enjoin Leszczynski, Chouchane, and Condron from 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 the judgments, Leszczynski was ordered to disgorge $1,500,000; Chouchane was ordered to disgorge $2,007,408 plus prejudgment interest of $442,169; and Condron was ordered to disgorge $168,336 plus prejudgment interest of $39,339. The Court has reserved the issue of whether to impose a civil penalty on the defendants pending their continued cooperation with the SEC. Acknowledging the facts to which they have admitted as part of their guilty pleas in parallel criminal cases, Leszczynski, Chouchane, and Condron consented to the entry of these judgments.

The SEC charged these brokers, who formerly worked on the cash desk at a New York-based broker-dealer, with illegally overcharging customers $18.7 million by using hidden markups and markdowns and secretly keeping portions of profitable customer trades. The brokers made their scheme difficult for customers to detect because they deceptively charged the markups and markdowns during times of market volatility in order to conceal the fraudulent nature of the prices they were reporting to their customers. The surreptitiously embedded markups and markdowns ranged from a few dollars to $228,000 and involved more than 36,000 transactions during a four-year period.

The SEC further alleged that when a customer placed a limit order seeking to purchase shares at a specified maximum price, the brokers filled the order at the customer’s limit price but used opportune times to sell a portion of that order back to the market to obtain a secret profit for the firm. They falsely reported back to the customer that they could not fill the order at the limit price.

The SEC’s litigation has been conducted by John V. Donnelly III and G. Jeffrey Boujoukos of the Philadelphia Regional Office. The SEC’s investigation was conducted by A. Kristina Littman and Kingdon Kase, under the supervision of Daniel M. Hawke, Chief of the Division of Enforcement’s Market Abuse Unit and Director of the Philadelphia Regional Office.

DISGORGEMENT AND FINES ORDERED FOR COMMODITY TRADING SYSTEM PROMOTERS

FROM:  COMMODITY FUTURES TRADING COMMISSION 

Federal Court Orders California Defendants CTI Group, LLC, Cooper Trading, Stephen Craig Symons, and James David Kline to Pay Over $29 Million in Disgorgement and Fines for Fraudulent Sale of Automated Trading Systems

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today announced that Judge Katherine Polk Failla of the U.S. District Court for the Southern District of New York entered a Consent Order for Permanent Injunction (Order) against Defendants CTI Group, LLC, a California limited liability company, Cooper Trading, a California corporation (collectively, CTI), Stephen Craig Symons of Corona del Mar, California, and James David Kline, who was a resident of Van Nuys, California, for fraudulent sales practices in connection with the sale of two automated trading systems (Trading Systems), known as Boomer and Victory.

The court’s Order stems from a CFTC Complaint filed on May 11, 2012, that charged the Defendants with the fraudulent solicitation of clients to subscribe to the Boomer and Victory Trading Systems, which were used by clients to trade E-mini Standard and Poor’s 500 Stock Index futures contracts in managed accounts (see CFTC Press Release 6266-12 and Complaint).

The Order, entered on January 22, 2014, requires Defendants CTI Group and Cooper Trading to pay $10.175 million in disgorgement and a $10 million civil monetary penalty, Symons to pay over $3.150 million in disgorgement and a $4.5 million civil monetary penalty, and Kline to pay over $275,000 in disgorgement and a $1 million civil monetary penalty. The Order further imposes permanent trading and registration bans on the Defendants and prohibits them from violating the anti-fraud and disclosure provisions of the Commodity Exchange Act (CEA) and CFTC regulations, as charged.

The CFTC’s Complaint also named as Relief Defendants California companies Snonys, Inc. and Dragonfyre Magick Incorporated, which, according to the Complaint, were owned or operated by Symons and Kline, respectively. The Order provides for the disgorgement of Relief Defendants’ funds frozen pursuant to a court order that was previously entered on May 14, 2012.

The Order further finds that, since at least in or around August 2009, CTI and its agents and employees made false and misleading statements and omitted material information when soliciting clients to purchase subscriptions to CTI’s Trading Systems, including (1) how long CTI had been in business, (2) CTI’s experience developing and marketing Trading Systems, (3) the identities and professional experience of CTI’s personnel (who used fictitious names when communicating with clients), (4) the track record of CTI’s Trading Systems, (5) the past profitability of CTI’s Trading Systems, (6) the transaction costs associated with trading via CTI’s Trading Systems, and (7) the risks associated with trading futures contracts via CTI’s Trading Systems.

CTI’s salespeople, including Kline, made false statements to clients and prospective clients about CTI’s purported money-back guarantee, and Symons and Kline are liable for all of CTI’s violations because they controlled CTI and actively participated in CTI’s unlawful conduct, according to the Order.

According to the Order, funds were transferred to the Relief Defendants from CTI as a result of the Defendants’ violations of the CEA and CFTC regulations, and the Relief Defendants do not have a legitimate claim to or interest in those funds.

The CFTC thanks the National Futures Association for its assistance.

CFTC Division of Enforcement staff members responsible for this case are R. Stephen Painter, Jr., Michael C. McLaughlin, David W. MacGregor, Lenel Hickson, Jr., and Manal M. Sultan.

CFTC Fraud Awareness Advisories & Customer Protection Information

The CFTC has issued several customer protection Fraud Advisories that provide the warning signs of fraud, including an Advisory covering Commodity Trading Systems Sold on the Internet. This Advisory states that the CFTC has seen an increase in websites that fraudulently promote commodity trading systems and advisory services and provides information designed to help customers identify this potential swindle before they invest.

Customers can file a tip or complaint to report suspicious activities or other information, such as possible violations of commodity trading laws, to the CFTC Division of Enforcement via a Toll-Free Hotline 866-FON-CFTC (866-366-2382) or an online form.