SEC-HEDGE FUND SETTLES FRAUDULENT OFFER TO BUY WINNEBAGO INDUSTRIES COMMON STOCK

FROM:  SECURITIES AND EXCHANGE COMMISSION 
SEC Files Settled Securities Fraud Charges Against Alexander H.G. Mascioli and His Purported Hedge Fund, North Street Capital, LP

The Securities and Exchange Commission today filed settled fraud charges in the United States District Court for the District of Connecticut against Alexander H.G. Mascioli and his alter-ego, purported hedge fund, North Street Capital, LP ("NSC"), alleging that Mascioli and NSC made a fraudulent May 2012 offer to acquire all outstanding shares of Winnebago Industries, Inc.'s ("WGO") common stock.

The Commission alleges that, on May 9, 2012, Mascioli authored on NSC letterhead, signed, and sent to WGO an offer to acquire all outstanding common stock of WGO for approximately $321 million in cash. The May 9 letter represented that NSC's offer was not conditioned on any financing, that NSC was prepared to move forward immediately, and that it could complete the process in approximately two weeks. In truth, Mascioli and NSC had virtually no assets, significant liabilities, and no reasonable prospects of securing any financing to fund the acquisition. Furthermore, at the time they made their offer, Mascioli and NSC had not retained any financial or legal advisers to represent them in the transaction. On May 17, having not received a response to the May 9 offer, Mascioli sent a copy of the May 9 letter that he had modified to look like an NSC press release to Bloomberg, which subsequently posted the offer on its website. After NSC's fraudulent offer was made public on May 17, WGO's stock price and trading volume increased significantly. In pre-market trading on May 18, almost 700,000 WGO shares were traded. By contrast, in the four trading days prior to May 18, WGO had little to no volume in pre-market trading. Moreover, on May 17, WGO's stock closed at $8.51 per share; when trading opened on May 18, however, WGO stock opened at $9.81 per share, an almost 15% increase. In pre-market trading on May 18, after learning of NSC's offer for WGO and viewing a public website Mascioli created for NSC that contained various misrepresentations about NSC's business, a New York hedge fund made the decision to cover the majority of a large short position it held in WGO and incurred losses in doing so.

Without admitting or denying the allegations in the complaint, Mascioli and NSC have consented to entry of a final judgment permanently enjoining each of them from violating Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 thereunder and ordering them to pay, jointly and severally, a $100,000 civil penalty. Mascioli has also consented to a final judgment that permanently bars him from serving as an officer and/or director of any issuer that has a class of securities registered pursuant to Section 12 of the Exchange Act or that is required to file reports pursuant to Section 15(d) of the Exchange Act. The proposed settlement is subject to court approval.

The SEC's investigation was conducted by George Bagnall and George Parizek with assistance from trial attorney Cheryl Crumpton. The Commission acknowledges the assistance of the Financial Industry Regulatory Authority in this matter.

SEC ANNOUNCES ACTIONS AGAINST BROKERS, FIRM AND OTHERS INVOLVED IN VARIABLE ANNUITIES SCHEME

FROM:  SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission today announced enforcement actions against a pair of brokers, an investment advisory firm, and several others involved in a variable annuities scheme to profit from the imminent deaths of terminally ill patients in nursing homes and hospice care.

Variable annuities are designed to serve as long-term investment vehicles, typically to provide income at retirement.  Common features are a death benefit paid to the annuity’s beneficiary (typically a spouse or child) if the annuitant dies, and a bonus credit that the annuity issuer adds to the contract value based on a specified percentage of purchase payments.  The SEC Enforcement Division alleges that Michael A. Horowitz, a broker who lives in Los Angeles, developed an illicit strategy to exploit these benefits.  He recruited others to help him obtain personal health and identifying information of terminally ill patients in southern California and Chicago.  Anticipating they would soon die, Horowitz sold variable annuities contracts with death benefit and bonus credit features to wealthy investors, and he designated the patients as annuitants whose death would trigger a benefit payout.  Horowitz marketed these annuities as opportunities for investors to reap short-term investment gains.  When the annuitants died, the investors collected death benefit payouts.

The SEC Enforcement Division alleges that Horowitz enlisted another broker Moshe Marc Cohen of Brooklyn, N.Y., and they each deceived their own brokerage firms to obtain the approvals they needed to sell the annuities.  They falsified various broker-dealer forms used by firms to conduct investment suitability reviews.  As a result of the fraudulent practices used in the scheme, some insurance companies unwittingly issued variable annuities that they would not otherwise have sold.  Horowitz and Cohen, meanwhile, generated more than $1 million in sales commissions.

Agreeing to settle the SEC’s charges are four non-brokers and a New York-based investment advisory firm recruited into the scheme.  Also agreeing to settlements are two other brokers who are charged with causing books-and-records violations related to annuities sold through the scheme.  A combined total of more than $4.5 million will be paid in the settlements.  The SEC’s litigation continues against Horowitz and Cohen.

“This was a calculated fraud exploiting terminally ill patients,” said Julie M. Riewe, co-chief of the SEC Enforcement Division’s Asset Management Unit.  “Michael Horowitz and others stole their most private information for personal monetary gain.”

According to the SEC’s orders instituting administrative proceedings, the scheme began in 2007 and continued into 2008.  Horowitz agreed to compensate Harold Ten of Los Angeles and Menachem “Mark” Berger of Chicago for identifying terminally ill patients to be used as annuitants.  Berger, in turn, recruited Debra Flowers of Chicago into the scheme and compensated her directly.  Through the use of a purported charity and other forms of deception, Ten, Berger, and Flowers obtained confidential health data about patients for Horowitz.

According to the SEC’s orders, after selling millions of dollars in variable annuities to individual investors, Horowitz still desired to generate greater capital into the scheme.  Searching for a large source of financing, he began pitching his scheme to institutional investors.  A pooled investment vehicle and its adviser BDL Manager LLC were created in late 2007 in order to facilitate institutional investment in variable annuities through the use of nominees.  Commodities trader Howard Feder, who lives in Woodmere, N.Y., became each firm’s sole principal.  Feder and BDL Manager fraudulently secured broker-dealer approvals of more than $56 million in annuities sold through Horowitz’s scheme.  Feder furnished the brokers with blank forms signed by the nominees enabling the brokers to complete the forms with false statements indicating that the nominees did not intend to access their investments for many years.  Feder understood that the purpose of Horowitz’s scheme was to designate terminally ill patients as annuitants in the expectation that their deaths would result in short-term lucrative payouts.  BDL Group received more than $1.5 million in proceeds from its investment in the annuities.

The order against Horowitz and Cohen alleges that they willfully violated the antifraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934 and they willfully aided and abetted and caused violations of the Exchange Act’s books-and-records provisions.  Horowitz also acted as an unregistered broker.

Ten, Berger, Flowers, Feder, and BDL Manager consented to SEC orders finding that they willfully violated Section 10(b) of the Exchange Act and Rule 10b-5.  They neither admitted nor denied the findings and agreed to cease and desist from future violations.  The individuals agreed to securities industry or penny stock bars as well as the following monetary sanctions:

Ten agreed to pay disgorgement of $181,147.64, prejudgment interest of $20,858.80, and a penalty of $90,000.
Berger agreed to pay disgorgement of $119,000, prejudgment interest of $11,579.61, and a penalty of $100,000.
Feder agreed to pay a penalty of $130,000.
BDL Manager agreed to pay disgorgement of $1,550,565.55, prejudgment interest of $196,608.97, and a penalty of $1,550,565.55.
The SEC’s order against Richard Horowitz and Marc Firestone finds that they negligently allowed point-of-sale forms for 12 annuities in the scheme to be submitted to their firm with inaccurately overstated answers to the form’s question asking how soon the customer intended to access his or her investment.  These inaccurate answers led to each annuity’s issuance, and Horowitz and Firestone were each paid commissions.

Richard Horowitz and Firestone consented to the order finding that they caused their firm to violate Section 17(a) of the Exchange Act and Rule 17a-3.  Without admitting or denying the findings, they agreed to cease and desist from committing or causing future violations of those provisions as well as the following monetary sanctions:

Horowitz agreed to pay disgorgement of $292,767.89, prejudgment interest of $36,512.20, and a penalty of $40,800.
Firestone agreed to pay disgorgement of $127,853.20, prejudgment interest of $17,140.89, and a penalty of $40,800.
The SEC’s investigation was conducted by Marilyn Ampolsk, Peter Haggerty, Jeremiah Williams, and Anthony Kelly of the Enforcement Division’s Asset Management Unit along with Christopher Mathews and J. Lee Buck II.  The SEC’s litigation will be led by Dean M. Conway.

Statement at SEC Open Meeting

Statement at SEC Open Meeting

SEC CHARGES JEFFERIES LLC WITH FAILING TO SUPERVISE EMPLOYEES

FROM:  SECURITIES AND EXCHANGE COMMISSION 

The Securities and Exchange Commission today charged global investment bank and brokerage firm Jefferies LLC with failing to supervise employees on its mortgage-backed securities desk who were lying to customers about pricing.

An SEC investigation found that Jefferies representatives including Jesse Litvak, who the SEC charged with securities fraud last year, lied to customers about the prices that the firm paid for certain mortgage-backed securities, thus misleading them about the true amount of profits being earned by the firm in its trading.  Jefferies’ policy required supervisors to review the electronic communications of traders and salespeople in order to flag any untrue or misleading information provided customers.  However, the policy was not implemented in a way to detect misrepresentations about price.

Jefferies agreed to pay $25 million to settle the SEC’s charges as well as a parallel action announced today by the U.S. Attorney's Office for the District of Connecticut.  In a related criminal trial, Litvak was convicted last week of multiple counts of securities fraud and other charges.

“Had Jefferies better targeted its supervision to the risks faced by its mortgage-backed securities desk, many of the misstatements made by its employees could have been caught,” said Andrew J. Ceresney, director of the SEC’s Division of Enforcement.  “Other firms trading instruments like mortgage-backed securities should take note of the consequences of failing to do so, and should take this opportunity to tailor their own supervision.”

Paul Levenson, director of the SEC’s Boston Regional Office, added, “Reviewing employees’ communications is a critical part of a brokerage firm’s supervisory responsibilities. This is particularly true when it concerns complex products like mortgage-backed securities in which customers have limited visibility into prices.”

According to the SEC’s order instituting settled administrative proceedings, the supervisory failures occurred on numerous occasions from 2009 to 2011.  Jefferies failed to provide direction or tools to supervisors on the mortgage-backed securities desk to meaningfully review communications to customers by Litvak and others about the price that Jefferies paid for mortgage-backed securities.  Jefferies supervisors failed to check traders’ communications against actual pricing information, making it difficult to detect misrepresentations to customers.  Supervisors on the mortgage-backed securities desk also did not review communications with customers that took place in Bloomberg group chats, where Jefferies traders and salespeople lied about pricing.

The SEC’s order finds that Jefferies failed to reasonably supervise Litvak and other representatives on its mortgage-backed securities desk as required by Section 15(b)(4)(E) of the Securities and Exchange Act of 1934.  Jefferies agreed to settle the charges by making payments to customers totaling more than $11 million, which represents not just the ill-gotten gains of $4.2 million but the full amount of profits earned by the firm on these trades.  Jefferies also agreed to pay a $4.2 million penalty to the SEC and an additional $9.8 million as part of a non-prosecution agreement with the U.S. Attorney’s office.  The firm must retain a compliance consultant to evaluate and recommend improvements to its policies for the mortgage-backed securities desk.

The SEC’s investigation, which is continuing, has been conducted by Kerry Dakin of the Enforcement Division’s Complex Financial Instruments Unit as well as James Goldman, Rachel Hershfang, Rua Kelly, Kathleen Shields, and Kevin Kelcourse of the Boston Regional Office.    The SEC appreciates the assistance of the U.S. Attorney’s Office for the District of Connecticut and the Office of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP).

COMMODITY POOL FRAUDSTER RECEIVES SANCTIONS, PRISON TIME FOR MISREPRESENTING PERFORMANCE RECORDS

FROM:  COMMODITY FUTURES TRADING COMMISSION 
Federal Court in Illinois Imposes over $3.5 Million in Sanctions against Dimitry Vishnevetsky and his Company, Oxford Capital, for Orchestrating Commodity Fraud Schemes and Misappropriation

In a Related Criminal Action, Vishnevetsky Sentenced to Six Years in Prison

Washington, DC — The U.S. Commodity Futures Trading Commission (CFTC) obtained a federal court Order requiring Defendants Dimitry Vishnevetsky formerly of Chicago, Illinois, and his company, Oxford Capital, LLC (Oxford) to pay a civil monetary penalty of $1,910,982 and restitution for defrauded customers totaling $1,608,327. The default judgment Order, entered by the Honorable Ruben Castillo of the U.S. District Court for the Northern District of Illinois on February 26, 2014, stems from a CFTC enforcement action filed on May 1, 2012, that charged the Defendants with fraud in connection with operating two commodity pools and an additional fraudulent commodity trading scheme (see CFTC Press Release 6249-12). The court’s Order also imposes permanent trading and registration bans against Vishnevetsky and Oxford and prohibits them from violating provisions of the Commodity Exchange Act, as charged.

As a result of a parallel criminal action brought by the US Attorney’s Office, Judge Castillo on March 4, 2013 sentenced Vishnevetsky to serve six years in prison. Vishnevetsky is currently incarcerated in the Federal Prison Camp in Duluth, Minnesota.

Specifically, the Order finds that, from at least the fall of 2006 through April 2012, the Defendants fraudulently solicited approximately $1.74 million from commodity pool participants and commodity customers. Vishnevetsky and Oxford defrauded pool participants by representing that their commodity pools had profitable performance records based on audited results when, in fact, they never conducted any trading for the pools, the Order finds. Furthermore, the Order finds that Vishnevetsky, individually and doing business as Hodges Trading LLC and Hodges Court Trading, defrauded other pool participants by misrepresenting that Hodges Trading issued Libor Notes and invested in commodity futures contracts to enhance the value of the purported Libor Notes. Vishnevetsky and Oxford also issued false account statements to pool participants and defrauded other customers by not opening and funding commodity trading accounts for them and issuing them fictitious account statements, the Order finds.

Defendants misappropriated at least $637,000 of customer and pool participant funds

While engaging in these fraudulent schemes, the Order finds that the Defendants misappropriated at least nearly $637,000 from pool participants and customers, which Defendants used for their own benefit.

The CFTC appreciates the assistance of the Federal Bureau of Investigation and the United States Attorney’s Office for the Northern District of Illinois.

CFTC Division of Enforcement staff members responsible for this case are Diane M. Romaniuk, Ava M. Gould, Heather Johnson, Scott R. Williamson, Rosemary Hollinger, and Richard B. Wagner.

COURT ORDERS DEFENDANTS TO PAY $16 MILLION IN CFTC FRAUD CASE

FROM:  COMMODITY FUTURES TRADING COMMISSION 
CFTC Obtains Default Judgment against Altamont Global Partners LLC and John G. Wilkins for Commodity Pool Fraud, Misappropriation, and Making False Statements to National Futures Association

U.S. District Court in Florida Orders Defendants to Pay More than $15.8 Million in CFTC Anti-Fraud Action

Washington, DC — The U.S. Commodity Futures Trading Commission (CFTC) today announced that Judge Gregory A. Presnell of the U.S. District Court for the Middle District of Florida entered a default judgment and permanent injunction Order against Defendants Altamont Global Partners LLC (AGP) of Longwood, Florida, and its owner, John G. Wilkins, formerly of Chuluota, Florida. The Order requires AGP to pay $10,969,843 in disgorgement and Wilkins to pay $1,214,902 in disgorgement and a $3,644,706 civil monetary penalty. The Order also imposes permanent trading and registration bans against them and prohibits them from violating the Commodity Exchange Act and a CFTC regulation, as charged.

The court’s Order, entered on February 20, 2014, stems from a CFTC Complaint filed on July 16, 2012 against AGP and Wilkins, as well as Defendants Philip Leon and Paul Rangel (see CFTC Press Release 6315-12). The Order confirmed and adopted U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation of January 31, 2014, which stated that from approximately March 2009 to at least June 22, 2012, AGP and Wilkins operated a fraudulent scheme that solicited at least $13 million from approximately 198 commodity pool participants to trade, among other things, commodity futures contracts, options on futures, and off-exchange foreign currency contracts.

The Order states that AGP and Wilkins, along with the other Defendants, misappropriated more than $5.2 million of pool participants’ funds in “loans” and “advances” to Defendants, which were sham transactions designed to disguise Defendants’ misappropriation, and issued false statements to pool participants regarding the profitability and value of their accounts. In addition, the Order states that AGP and Wilkins provided false information and documentation to the National Futures Association (NFA).

CFTC Previously Settled with Defendants Leon and Rangel

Previously, on December 17, 2013, the court entered consent Orders of permanent injunction against Defendants Leon and Rangel, requiring them to pay a combined total of over $8 million in disgorgement and civil monetary penalties, among other sanctions, to settle the CFTC action (see CFTC Press Release 6797-13).

With the entry of the Order against AGP and Wilkins, the CFTC’s litigation is concluded; however, the court-appointed receiver, Mark Silverio, continues his efforts to marshal and distribute Defendants’ assets to their fraud victims.

A Related Criminal Action

In a related criminal action, on August 22, 2013, Wilkins pleaded guilty to one count of conspiracy to commit mail fraud and wire fraud (see United States v. Wilkins, No. 13-cr-181 (M.D. Fla. July 19, 2013)). Wilkins was sentenced to 108 months in federal prison and ordered to pay $17,042,026.89 in restitution, jointly and severally with defendant Leon, who received the same prison sentence.

The CFTC thanks the NFA for its assistance.

CFTC Division of Enforcement staff members responsible for this case are Rachel Hayes, Peter Riggs, Stephen Turley, Charles Marvine, Rick Glaser, and Richard Wagner.

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CFTC’s Commodity Pool Fraud Advisory