CFTC CHILTON'S STATEMENT TI CFTC TECHNOLOGY ADVISORY COMMITTEE

FROM:  COMMODITY FUTURES TRADING COMMISSION 

"Hot Mess"

Statement of Commissioner Chilton to the CFTC Technology Advisory Committee

September 12, 2013

Thank you, Chairman O'Malia and thank you to the Technology Advisory Committee (TAC) members for your participation.

Technology in markets is way cool. All sorts of new and gee whiz things have been developed. The high frequency cheetah traders are killing it. I just want to ensure that they don't kill other traders, like end users, or markets or consumers.

There are some basic things that should be done now. They can't wait for a year. In fact, I hope we move on some of these things this year.

One—Registration;

Two—Testing;

Three—Kill Switches; and

Four—Wash Sales; we need to ensure that wash sales are prohibited and that the exchanges mandate that wash blocking technologies are used by traders. I'm pleased that IntercontinentalExchange (ICE) is adopting such a policy.

I look forward to our discussion.

Thank you Mr. Chairman.

FINAL JUDGMENT ENTERED AGAINST TRUE NORTH FINANCE CORPORATION FOR OVERSTATEING INTEREST REVENUE

FROM:  SECURITIES AND EXCHANGE COMMISSION 
Final Judgments Entered Against Cfo and Real Estate Finance Company

The Securities and Exchange Commission announced that on September 11, 2013, a Minnesota federal court entered final judgments by consent against Owen Mark Williams (Williams) and True North Finance Corporation, f/k/a CS Financing Corporation (True North), in a civil injunctive action filed by the Commission on September 21, 2010. Among other things, the judgment against Williams requires him to pay a $40,000 civil penalty.

The Commission's complaint alleged that True North and its Chief Financial Officer, Williams, overstated revenue in True North's filings with the Commission in 2008 and 2009. Williams caused True North to improperly recognize revenue on interest from borrowers where the borrowers were not paying True North and where the borrowers' impaired financial condition meant that collectability was not reasonably assured. The Complaint alleged that this recognition of revenue departed from generally accepted accounting principles and also departed from True North's revenue recognition policy, which stated that the company would not recognize revenue when the payment of interest was 90 days past due.

The final judgments against Williams and True North also imposed permanent injunctions prohibiting these Defendants from violating of Section 17(a)(2) of the Securities Act of 1933 (Securities Act), Sections 13(b)(2)(A), 13(b)(5), and 15(d) of the Securities Exchange Act of 1934 (Exchange Act), and Rules 13b2-1, 13b2-2, 13b-20, and 15d-14 thereunder.

SEC CHARGES 2 COMPANIES WITH FRAUD

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 
SEC Charges Projaris Management LLC and Victory Partners Financial with Fraud

On September 9, 2013, the Securities and Exchange Commission brought securities fraud charges against Projaris Management, LLC (Projaris), Victory Partners Financial (Victory), Joe G. Lawler, Brandt A. Lawler, Michael S. Lawler, Ryan G. Lawler, Timothy J. Lawler, and Pamela Hass in a connection with an offering fraud that raised approximately $1.4 million from over 23 investors in multiple states from May 2008 through August 2012.

The complaint, filed in the United States District Court for the District of New Mexico, alleges that Projaris and Victory, which operated in Farmington, New Mexico and Phoenix, Arizona, along with the Lawlers of Farmington, New Mexico participated in a scheme that defrauded investors out of more than $835,000. Additionally, the complaint alleges that the primary function of the defendants’ scheme was to convince investors to invest in a fraudulent pooled investment that purportedly invested in metals, commodities, real estate, and a fund that, among other things, invested overseas. The defendants then siphoned off the invested funds for their own purposes and to continue to perpetuate the fraud. According to the complaint, none of the securities offered was covered by a registration statement filed with the Commission, and Hass, Projaris’ National Sales Director of Tomahawk, Wisconsin, solicited investors to invest in Projaris, but was not a registered broker-dealer.

The complaint alleges that Projaris, Victory, and the Lawlers violated Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5 thereunder, and Section 17(a) of the Securities Act of 1933 (Securities Act). The complaint also alleges that Projaris, Victory, Joe Lawler, and Hass violated Section 5 of the Securities Act for the offer and sale of securities in unregistered transactions. Finally, the complaint alleges that Joe Lawler and Hass violated Section 15(a) of the Exchange Act by acting as unregistered broker-dealers. The Commission seeks permanent injunctive relief, disgorgement plus prejudgment interest, and civil monetary penalties.

CFTC APPROVED FOR PUBLICATION RISK CONTROLS AND SYSTEM SAFEGUARDS FOR AUTOMATED TRADING

FROM:  COMMODITY FUTURES TRADING COMMISSION 
CFTC Publishes Concept Release on Risk Controls and System Safeguards for Automated Trading Environments

Washington, DC—The U.S. Commodity Futures Trading Commission (Commission) today approved for publication in the Federal Register a Concept Release on Risk Controls and System Safeguards for Automated Trading Environments (Concept Release).

The Concept Release reflects the Commission’s ongoing commitment to the safety and soundness of U.S. derivatives markets in a time of rapid technological change, and provides a platform for discussion and analysis of the appropriate responses to such changes. The Concept Release provides an overview of the automated trading environment, including its principal actors, potential risks, and responsive measures taken to date by the Commission or industry participants. The Concept Release also discusses a series of (1) pre-trade risk controls; (2) post trade reports and other measures; (3) system safeguards related to the design, testing and supervision of automated trading systems (ATSs); and (4) additional protections designed to promote safe and orderly markets. In each case, the Commission seeks extensive public comment regarding these measures.

The Commission’s Concept Release is driven by U.S. derivatives markets’ fundamental transition from human-centered trading venues to highly automated and interconnected trading environments. The operational centers of modern markets now reside in a combination of ATSs and electronic trading platforms that can execute repetitive tasks at speeds orders of magnitude greater than any human equivalent. Traditional risk controls and safeguards that relied on human judgment and speeds must be reevaluated in light of new market structures. Further, the Commission and market participants must ensure that regulatory standards and internal controls are calibrated to match both current and foreseeable market technologies and risks.

The Commission has already taken steps to address the transition to automated trading and require appropriate risk controls, including within designated contract markets (DCMs), swap execution facilities (SEFs), futures commission merchants (FCMs), swap dealers (SDs) and major swap participants (MSPs). Relevant measures to date include rules requiring FCMs, SDs and MSPs that are clearing member firms to establish risk-based limits for all proprietary and customer accounts, and to use automated means to screen orders for compliance with risk limits when such orders are subject to automated execution. The Commission has also adopted requirements for DCMs that provide direct market access, and trading pause and halt requirements for DCMs and SEFs designed to prevent and reduce the potential risk of market disruptions. Additional measures taken by the Commission, as well as practices already in place within industry participants, are discussed in the Concept Release.

SEC CHARGES ATTORNEY AND OTHERS WITH RUNNING PRIME BANK INVESTMENT SCHEME

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission announced charges and an emergency asset freeze against a Miami-based attorney and other perpetrators of a prime bank investment scheme that promised exorbitant returns from a purported international trading program.

Prime bank schemes lure investors to participate in a sham international investing opportunity with phony promises of exclusivity and enormous profits.  The SEC alleges that attorney Bernard H. Butts, Jr. has acted as an escrow agent to enable Fotios Geivelis, Jr. and his purported financial services firm Worldwide Funding III Limited to defraud approximately 45 investors out of more than $3.5 million they invested in a trading program that doesn’t actually exist.  Geivelis, who lives in Tampa and uses the alias “Frank Anastasio” with investors, touted returns of 6.6 million Euros (approximately $8.7 million converted to U.S. dollars) for investors within 15 to 45 business days on an initial investment of $60,000 to $90,000 in U.S. dollars.  Geivelis and Butts assured investors that their funds would remain with Butts in an escrow account until Worldwide Funding acquired the bank instruments necessary to generate the promised returns.  Butts instead has been doling out investor funds almost as soon as they’re received to enrich himself, sales agents, and Geivelis, who has been spending the money on such personal expenses as travel and gambling.

The SEC’s complaint, filed under seal on August 29 in federal court in Miami, also charged three sales agents who Geivelis and Butts paid to sell interests in the scheme: Douglas J. Anisky of Delray Beach, Fla., James Baggs of Lake Forest, Calif., and Sidney Banner of Delray Beach, Fla., and his company Express Commercial Capital.  The court granted the SEC’s request for an asset freeze on August 30, and the case was unsealed late Friday, September 6.

“Geivelis attempted to add a twist of legitimacy to a classic prime bank scheme by using a long-time attorney as an escrow agent to give investors the false impression that their money was secure,” said Julie K. Lutz, Acting Co-Director of the SEC’s Denver Regional Office.  “Meanwhile, Geivelis and Butts have misused investor funds and made lulling statements to investors that portray the sham trading program as successful and payments to investors as imminent.”

According to the SEC’s complaint, investors were lured through the Internet, telephone, and personal contact with promises of extraordinary profits.  Investors were told their $60,000 to $90,000 investment would pay for bank charges to lease a standby letter of credit (SBLC) in the amount of 10 million Euros from a banking group in Europe.  The SBLCs were to be used to acquire loans, and the funds from the loan were to be placed in a securities trading program.  Investors were promised that after their initial profit of at least 6.6 million Euro within 15 to 45 business days, the securities trading program would generate a weekly return of approximately 14 percent for 40 to 42 weeks.

The SEC alleges that investors were falsely promised that their money was being deposited into Butts’ attorney trust account, and Butts would not release the funds until he received proof from the receiving bank that a $10 million Euro SBLC had been deposited into the securities trading program to generate profits for investors.  Contrary to these representations by Butts, Geivelis, and the sales agents, no SBLC acquisitions ever occurred, no loans were obtained, and no promised returns were earned in a trading program or paid to investors. Investors were not told that instead of using the funds to obtain SBLCs, Butts and Geivelis each took approximately 45 percent and paid approximately 10 percent to the sales agents.

The SEC’s complaint charges all defendants with violations of the antifraud and securities registration provisions of the federal securities laws.  The complaint also charges Butts, Geivelis, Anisky, Banner, Express Commercial Capital, and Baggs with violations of the broker-dealer registration provisions of the federal securities laws.  The SEC seeks disgorgement of ill-gotten gains, financial penalties, and permanent injunctions.  The SEC’s complaint names several relief defendants: Butts’ law firm, his wife Margaret A. Hering, and Butts Holding Corporation as well as two other companies with ties to Geivelis (Global Worldwide Funding Ventures) and Anisky (PW Consulting Group).  The complaint names relief defendants for the purposes of recovering any ill-gotten assets from the fraud that may be in their possession.

The SEC’s investigation, which is continuing, has been conducted by Amy A. Sumner and Laura M. Metcalfe in the Denver Regional Office.  The SEC’s litigation will be led by Leslie J. Hughes.

FORMER HEAD OF INVESTOR RELATIONS CHARGED WITH VIOLATION OF FAIR DISCLOSURE RULES

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission today charged the former head of investor relations for a Tempe, Ariz.-based solar energy company with violating rules requiring fair disclosure of information when he alerted certain analysts and investors about an upcoming major development.

Regulation FD requires material nonpublic information to be disclosed publicly in a broad manner and not selectively.  An SEC investigation determined that Lawrence D. Polizzotto, a former vice president at First Solar Inc., violated Regulation FD when he indicated in phone conversations with some analysts and investors that the company was unlikely to receive a much-anticipated loan guarantee from the U.S. Department of Energy.  When First Solar broadly disclosed this material information in a press release the next morning, its stock price dropped 6 percent.

Polizzotto agreed to pay $50,000 to settle the SEC’s charges.

“Polizzotto offered previously undisclosed information to select analysts and institutional investors and left the rest of First Solar’s investors in the dark,” said Michele Wein Layne, Director of the SEC’s Los Angeles Office.  “All investors, regardless of their size or relationship with the company, are entitled to the same information at the same time.”

According to the SEC’s order instituting a settled administrative proceeding, Polizzotto attended an investor conference on Sept. 13, 2011, with First Solar’s then-CEO, who publicly expressed confidence that the company would receive three loan guarantees totaling approximately $4.5 billion for which the company had received conditional commitments from the Energy Department.  However, two days later, Polizzotto and several other executives learned that the company would not be receiving at least one of the loan guarantees.  A group of employees including Polizzotto and one of First Solar’s in-house lawyers began discussing how and when the company should publicly disclose the loss of the loan guarantee.  The company lawyer specifically noted that when the company received official notice from the Energy Department, “we would not have to issue a press release or post something to our website the same day.  We would, though, be restricted by Regulation FD in any [sic] answering questions asked by analysts, investors, etc. until such time that we do issue a press release or post to our website…”

According to the SEC’s order, Polizzotto violated Regulation FD during one-on-one phone conversations with approximately 20 sell-side analysts and institutional investors on Sept. 21, 2011 – the day after a Congressional committee sent a letter to the Energy Department inquiring about its loan guarantee program and the status of conditional commitments, including three involving First Solar.  This Congressional line of inquiry caused concern within the solar industry about whether the Energy Department would be able to move forward with its conditional commitments.  Analysts began issuing research reports about the Congressional inquiry, and analysts and investors began calling Polizzotto.  Despite knowing that the company had not yet publicly disclosed anything, Polizzotto drafted several talking points that effectively signaled that First Solar would not receive one of the three loan guarantees.  His talking points emphasized the high probability of receiving two of the loan guarantees and the low probability of receiving the third.  Polizzotto delivered his talking points in the one-on-one calls with analysts and institutional investors, and he directed a subordinate to do the same.  Polizzotto went even further than his talking points when he told at least one analyst and one institutional investor that if they wanted to be conservative, they should assume that First Solar would not receive one of the loan guarantees.

Polizzotto agreed to settle the SEC’s charges without admitting or denying the findings.  In addition to the $50,000 penalty, he agreed to cease and desist from causing any violations and any future violations of Regulation FD and Section 13(a) of the Securities and Exchange Act of 1934.

The SEC has determined not to bring an enforcement action against First Solar due to the company’s extraordinary cooperation with the investigation among several other factors.  Prior to Polizzotto’s selective disclosure on September 21, First Solar cultivated an environment of compliance through the use of a disclosure committee that focused on compliance with Regulation FD.  The company immediately discovered Polizzotto’s selective disclosure and promptly issued a press release the next morning before the market opened.  First Solar then quickly self-reported the misconduct to the SEC.  Concurrent with the SEC’s investigation, First Solar undertook remedial measures to address the improper conduct.  For example, the company conducted additional Regulation FD training for employees responsible for public disclosure.

The SEC’s investigation was conducted by Marc Blau and Sara Kalin of the Los Angeles Regional Office.