Securities Industry Commentator by Bill Singer Esq WEEK IN REVIEW

May 5, 2018

Securities Industry Commentator: A legal, regulatory, and compliance feed curated by veteran Wall Street lawyer Bill Singer

In today's Securities Industry Commentator feed:

United States of America, Appellee, v. Jesse C. Litvak, Defendant/Appellant (Opinion, United States Court of Appeals for the Second Circuit, 17-CR-1464 /May 3, 2018) READ FULL TEXT 2Cir Opinion Appeal from a conviction by a jury in the United States District Court for the District of Connecticut (Janet C. Hall, Chief Judge), on one count of securities fraud. Appellant principally argues that his misstatements were, as a matter of law, immaterial to a reasonable investor in the market for residential mortgage backed securities. We hold that his misstatements could be found by a jury to be material. However, the district court materially erred in admitting evidence that the counterparty representative in the sole transaction underlying the count of conviction mistakenly believed that appellant was his agent. Accordingly, we vacate the judgment of conviction and remand


Three Men Arrested For Scheme To Defraud Elderly Victims In The Sale Of Worthless Stock / Vladimir Ziskind, a/k/a "Mike Palmer," Keith Orlean, a/k/a "Jack Allen," and Kevin Weinzoff, a/k/a "Mike Palmer," Solicited Stock Purchases from Elderly Victims Using Fake Names, False Information, and Bogus Promises of High Returns (DOJ Press Release) In a Complaint filed in the United States District Court for the Southern District of New York, federal prosecutors charged Vladimir Ziskind a/k/a "Mike Palmer" and Kevin Weinzoff a/k/a "Mike Palmer" and Keith Orlean a/k/a "Jack Allen" each with  with one count of conspiracy to commit securities fraud, one count of securities fraud, one count of conspiracy to commit wire fraud, and one count of wire fraud.  The Complaint alleges that a salesman named "Mike Palmer" would call elderly persons on the phone and offer them what he claimed was a time-sensitive opportunity to buy stock in certain companies.  Allegedly, the tips were fabricated and there was no "Mike Palmer," and the salesman was actually Ziskind or Weinzoff. The companies for which the investments were being solicited were allegedly controlled by Ziskind or Weinzoff.  The FBI asserts that since April 2014, the defendants convinced over 50 elderly persons to purchase  over $2 million stock as part of the alleged scheme.


FINRA Hardship Waiver Hard To Find ( Blog) After you read today's regulatory case, you may be puzzled. Even after you have digested the facts, you may be unsure whether FINRA is right or its member firm is right -- or maybe they're both wrong. The Blog publisher Bill Singer Esq has read and re-read the underlying documents in a festering dispute involving a FINRA member firm that asked for a hardship waiver of several thousand dollars in arbitration fees. The assessed fees are customary and not particularly excessive. On the other hand, FINRA says it has a "hardship exemption," which might have been appropriately granted when first requested by the member firm. Regardless, we are also asked to confront that old saying that "what's then is then and what's now is now." As we look back from today's vantage point at the mounting legal paperwork and the increasingly larger dollars clicking off on the taxi meter of fees, costs, and expenses running for such appeals, it all seems absurd. Ahhhh . . .  perhaps that's something we can all agree on? 


Antony Lee Turbeville, Appellant, v. Department of Financial Services, Appellee(Opinion, Florida First District Court of Appeal, No. 1D17-221 / May 3, 2018)  Appellant Antony Lee Turbeville challenged a Final Order of the Department of Financial Services revoking Appellant's insurance license. Appellant argues, in part, that:the Department's application of the section 626.621(13), Florida Statutes, to licensees of the Financial Industry Regulatory Authority ("FINRA") violates a licensee's constitutional right to remain silent. The Florida Court of Appeal concluded, in part, that:FINRA rules and federal court rulings state that if the Extended Hearing Panel's decision is appealed, the decision by the National Adjudicatory Council is FINRA's final action. Additionally, because testimony to FINRA is not compelled by State action, the use of testimony in FINRA license-revocation proceedings does not violate the right to remain silent as found in the Fifth Amendment


SEC Seeks Order Requiring Shawn Carter to Comply With Subpoena for Testimony (SEC Litigation Release No. 24131) The SEC filed a subpoena enforcement action in the United States District Court for the Southern District of New York against Shawn Carter seeking an order directing him to comply with an investigative subpoena for his testimony. The SEC is allegedly investigating potential violations of the federal securities laws related to the financial reporting of New York-based Iconix Brand Group, Inc., which paid Carter more than $200 million to acquire intangible assets associated with Carter's Rocawear apparel brand. In March 2016, Iconix publicly announced a $169 million write down of Rocawear, and in March of this year, Iconix announced a further write down of $34 million.  NOTE: Shawn Carter is also known as "Jay-Z"


Cambridge Hedge Fund Manager Sentenced for Investment Fraud Scheme (DOJ Press Release)
Yasuna J. Murakami was a managing member of investment advisory firms MC2 Capital Management LLC and MC2 Canada Capital Management LLC. Through those two advisory firms, Murakami established and managed hedge funds: the MC2 Capital Partners Fund, MC2 Capital Value Fund, and MC2 Capital Canadian Opportunities Fund. Murakami allegedly diverted millions of dollars of investor funds to business and personal accounts that he controlled and engaged in a Ponzi-like scheme to repay earlier investors' redemption requests. As part of the fraud, Murakami withheld material information and provided falsified account statements and tax documentation in an effort to lull investors into complacency. In a parallel action, the Securities and Exchange Commission filed charges against Murakami and his former business partner, Avi Chiat; and the Massachusetts Securities Division also filed civil fraud charges against Murakami for the same conduct. Following his guilty plea, Murakami was sentenced in the United States District Court for the District of Massachusetts to six years in prison and three years of supervised release; and ordered Murakami to pay $10,520,634 in restitution and forfeit a luxury sports car that was purchased with proceeds of the fraud. 


Securities Industry Commentator: A legal, regulatory, and compliance feed curated by veteran Wall Street lawyer Bill Singer

In today's Securities Industry Commentator feed:

Maple Heights man indicted for robbing Cleveland bank one day after getting out of prison for robbing the same bank (DOJ Press Release) Markiko Sonnie Lewis robbed the Key Bank at 15000 St. Clair Ave. on April 12 of about $1,044. Lewis was released from prison the day before the robbery, and, in fact, he had been incarcerated for previously robbing the same bank. Lewis was indicted in the United States District Court for the Northern District of Ohio on one count of bank robbery. I'm gonna bet that Lewis' favorite film is Groundhog Day.


SEC Charges North Carolina-Based Microcap Company, its CEO, and Others in Scheme to Defraud Investors (SEC Litigation Release No. 24126) In a Complaint filed in the United States District Court for the Northern District of Georgia, the SEC alleged that that Revolutionary Concepts, Inc. (REVO) and its CEO/director, Solomon RC Ali (also known as Richard M. Carter), engaged in transactions that involved persons with close, but undisclosed, relationships to Ali, and then made false and misleading statements about the transactions in press releases and public filings with the SEC. TheComplaint alleges that Rainco Industries, Inc. and Nicole C. Singletary aided and abetted the fraud; that Ali, Rainco, Singletary, and attorney Earnest H. (Woody) DeLong, Jr. violated beneficial ownership reporting requirements of the federal securities laws; and that Ali is liable for antifraud and reporting violations by microcap public company Universal Bioenergy, Inc. (UBRG).


South Florida Stock Promoters Charged with Securities Fraud in Relation to Pump and Dump Stock Manipulation Scheme  (DOJ Press Release) Eddy Ubaldo Marin (a convicted felon) was charged by a criminal information  in the United States District Court for the Southern District of Florida with one count of securities fraud. Shane R. Spierdowis was charged by separate criminal information with one count of conspiracy to commit securities fraud. The defendants were named in connection with an alleged $1 million pump and dump securities fraud scheme involving the shares of Valentine Beauty, Inc. ("VLBI"), a beauty supply company that marketed its products via informercials..Prosecutors alleged that Marin and other accomplices obtained a controlling interest in VLBI stock by issuing shares to certain third parties, including Green Tree Capital, Inc., a company controlled by Marin. Thereafter, the shares were transferred into accounts controlled by Spierdowis and other co-conspirators.  Marin, Spierdowis and others allegedly arranged for VLBI to issue press releases, while also using internet marketing and penny stock newsletters to tout VLBI stock. Marketing newsletters and other email marketing were used to artificially increase the trading volume and price of VLBI shares, so that Marin, Spierdowis and their co-conspirators could sell about $1 million worth of shares to the investing public. Federal prosecutors allege that while incarcerated in federal prison, Marin was visited by Spierdowis  and during these visits the defendants coordinated the sale of VLBI shares and discussed activites related to other stocks. A parallel civil enforcement action was filed by the SEC against Marin and Spierdowis.


Pro Se Employee Eviscerated In FINRA Employment Expungement Arbitration ( Blog) Mind your manners! Listen up everyone: Wall Street is no longer a rough and tumble, winner-takes-all place. Proper etiquette will now be observed. You gentleman and ladies will say "please," "thank you," and "excuse me." You will always be polite to everyone at all times. Think this is a joke? Well, perhaps you might read today's Blog article about a recent FINRA arbitration and, when you're finished, say "thank you" to that nice man Mr. Singer. 


Principal of $42 Million Ponzi-Like Scheme Sentenced To 33 Months' Imprisonment (SEC Litigation Release No. 24128) On October 29, 2014, Mark Feathers was indicted United States District Court for Northern District of California on seventeen counts of securities fraud and twelve counts of mail fraud in connection with Feathers' management and operation of Small Business Capital and the funds it managed. On December 20, 2017, Feathers pled guilty to one count of mail fraud. The criminal charges arose from the same conduct alleged in a 2012 action brought by the SEC that alleged over 400 investors were snared in a Ponzi-like scheme involving promises that profits from mortgage investments would yield annual returns of 7.5 percent or more. On August 16, 2013, the SEC obtained summary judgment against Feathers and on November 6, 2013, the court entered a final judgment against Feathers, permanently enjoining him from violating 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, and ordered him to pay disgorgement in the amount of $7,782,961 and a $10,000 civil penalty. On March 7, 2018, Feathers was sentenced to 33 months imprisonment, to be followed by three years of supervised release, and the payment of restitution in the amount of $5,724,767.


Securities Industry Commentator: A legal, regulatory, and compliance feed curated by veteran Wall Street lawyer Bill Singer

In today's Securities Industry Commentator feed:

Former Netflix, Inc. VP Charged In Scheme To Defraud / Defendant accused of taking kickbacks from companies seeking to do business with Netflix (DOJ Press Release) Michael Kail was indicted in the United States District Court for the Northern District of California on nineteen counts of wire fraud, three counts of mail fraud, and seven counts of money laundering in connection with allegations that he accepted kickbacks for approving payments to at least nine companies seeking to do business with Netflix, where he was Vice President in charge of the company's Internet Technology department. Federal prosecutors alleged that Kail engaged in honest services fraud resulting in his receipt of over $500,000 from at least three outside companies; and he also received valuable stock options from numerous other Netflix business partners.  


SEC Enforcement Division Issues FAQs for Share Class Selection Disclosure Initiative (SEC Release 2018-75) The SEC's Division of Enforcement issued answers to frequently asked questions (FAQs) on the Share Class Selection Disclosure Initiative, which seeks to protect advisory clients from and return money to those affected by undisclosed conflicts of interest.  The FAQs provide additional information about adviser eligibility, disgorgement, and the distribution of funds to clients. 


Solicited System Snafu Stiffs Settling Stifel Stockbroker ( Blog)
Oh my. You got a ticket to ride but it's a one-way ticket to the old FINRA slammer. You're supposed to check "BUY" when it's a buy and "SELL" when it's a sell and "SOL" when it's solicited and "UNSOL" when it's unsolicited and . . . well, there's lots of boxes and lines that require all the terms of the ticket. Visit enough trading desks and you'll hear the tales of the idiot who entered ABZ instead of ABC or wound up creating an artificial short when he sold 100,000 shares instead of bought them. In today's Blog, we feature the tale of a stockbroker who couldn't do something but then could but his firm's order-entry system was wrongly programmed so he couldn't do what he wasn't allowed to do but now could but for the IT snafu. So . . . our enterprising stockbroker engaged in a bit of self-help. I'm guessing that, one day, they'll tell his story on the trading desk. No one's laughing today but, you know, give it some time. Wall Street loves misery and a good joke about it.


Man Pleads Guilty to $1.2 Million ATM Skimming Scheme (DOJ Press Release)
Roberto De Miranda Martinez pled guilty to conspiracy to commit bank fraud, and bank fraud in connection with a $1.2 million ATM skimming and cloned card scheme. When De Miranda Martinez was apprehended by authorities, he was installing a card reading ATM skimming device and camera on an ATM.


Former 5linx Owner Pleads Guilty To Wire Fraud And Tax Charge For His Role In Multi-Million Dollar Marketing Scheme (DOJ Press Release) Craig Jerabeck pled guilty in the United States District Court for the Western District of New York to conspiracy to commit wire fraud and filing a false tax return. Federal prosecutors alleged that Jerabeck, serving as President/Chief Executive Officer, and co-Defendnats Jeb Tyler, serving as Vice President, and Jasn Gluck, servign as Vice President and Secretary, started 5LINX Enterprise, Inc., which offered utility and telecommunications services, health insurance, nutritional supplements, and business services through independent sales representatives. The three defendants allegedly sold 5LINX stock valued at $5.5 million to investment companies Trillium Lakefront Partners III, L.P.; Trillium Lakefront Partners III, NY L.P.; and Shalam Investment Co., L.L.C. The Defendants received about $2.3 million from a vendor without 5LINX's investors, Board, or other stockholders despite such receipt being a violation of the executives' Stockholders Agreements. Jerabeck allegedly failed to report 5LINX income and took inappropriate deductions amounting to about $118,620 in Internal Revenue Service tax losses. Charges are pending against Tyler and Bluck.


Securities Industry Commentator: A legal, regulatory, and compliance feed curated by veteran Wall Street lawyer Bill Singer

In today's Securities Industry Commentator feed:

SEC Charges Lawyer and Two Others in Microcap Fraud Schemes (SEC Litigation Release No. 24122)
The filed a Complaint alleging that attorney Diane J. Harrison, Esq. and her husband, Michael J. Daniels manufactured at least five microcap issuers as part of a scheme to resale shares to the public. The Complaint asserts that the companies falsely appeared to be pursuing bona fide business with independent management and shareholders, among which were Harrison and Daniels' friends and family (including defendant Catherine A. Bradaick-Zolla). The Complaint further alleges that Daniels and Harrison sold four of the five companies to Andy Z. Fan of Las Vegas, Nevada and, along with Bradaick-Zolla, continued to provide support to Fan, in part, by preparing false SEC filings. The SEC's complaint also alleges that Harrison participated in a separate fraudulent scheme involving at least 11 undisclosed blank check companies secretly controlled by Alvin S. Mirman and Sheldon R. Rose, against whom the SEC previously filed enforcement actions and who were convicted of criminal charges and sentenced to prison. Separately, the SEC had settled with Fan, AF Ocean Investment Management Company, and ChinAmerica Andy Movie Entertainment Media Company) 


Court Enters Final Judgment Against Microcap Executive and Co-Defendant Involved in Fraudulent Scheme (SEC Litigation Release No. 24123))
The United States District Court for the District of Massachusetts entered a default judgment against Christopher R. Esposito, the owner and Managing Director of Lionshare Ventures, LLC. The SEC's Complaint alleged Esposito, Lionshare, and several co-defendants were involved in raising over $550,000 through an unregistered offering of Lionshare securities and then misappropriated $375,000 of which $75,000 was used to acquire control of Cannabiz Mobile, Inc. Thereafter, Esposito and Lionshare, and co-defendant Anthony Jay Pignatello allegedly concealed Esposito and Lionshare's de facto control of Cannabiz and a large percentage of Cannabiz's securities in order to evade SEC Rule 144 through such purported subterfuge as installing co-defendant James Gondolfe as the sole officer and director of Cannabiz.


UPDATE: Medical Marijuana Biz Goes Up In SEC Smoke ( Blog WARNING! Today's Blog updates its earlier report about a Securities and Exchange Commission case against a medical marijuana company. This story includes discussion of drugs and drug use,depictions of drug use and drug users, and contains obscene language . If you are easily offended, please do not read beyond this point. Readers of today's article may experience dizziness, nausea, projectile vomiting, constipation, and a four-hour erection.  


CFTC Charges Charles H. McAllister of Alabama with Engaging in a Fraudulent Precious Metals Scheme / McAllister Charged with Two Counts of Wire Fraud and One Count of Money Laundering in a Related Criminal Action (CFTC Release 7720-18) CFTC filed a Complaint in the United States District Court for the Western District of Texas against Charles H. McAllister,charging him with fraud and misappropriation in connection with contracts of sale of precious metals through his company, BullionDirect, Inc. that purportedly resulted in over $16 million in customer losses.. CFTC alleges that McAllister has never been registered with the CFTC in any capacity. CFTC seeks restitution to defrauded customers, disgorgement of ill-gotten gains, trading bans, a civil monetary penalty, and a permanent injunction against future violations of federal commodities laws. In a parallel criminal proceeding, the United States Attorney's Office for the Western District of Texas charged McAllister with two counts of wire fraud and one count of money laundering.


Panasonic Charged With FCPA and Accounting Fraud Violations (SEC Release 2018-73)
Panasonic Corp. consented to an SEC Order finding that it violated the anti-bribery, anti-fraud, books and records, internal accounting controls, and reporting provisions of the Securities Exchange Act of 1934, and ordering it to pay approximately $143 million in disgorgement and pre-judgement interest.  In pertinent part, the SEC Order According to the SEC's order found that the company's U.S. subsidiary, Panasonic Avionics Corp. (PAC), offered a lucrative consulting position to a government official at a state-owned airline to induce the official to help PAC obtain and retain business..PAC ultimately retained the official and paid approximately $875,000 for a position that required little to no work, using an unrelated third-party vendor to conceal the payments.  In a related criminal matter, DOJ announced that PAC would pay a $137 million as part of a deferred prosecution agreement.


CFTC Orders Glencore Agriculture B.V. and Glencore Ltd. to Pay a $2 Million Penalty for Exceeding Cotton Futures Position Limits, Transacting Illegal EFPs, and Submitting Inaccurate Form 304s / Cotton Trading by Glencore Agriculture B.V. and Glencore Ltd. Was under Common Control by Head of Glencore Cotton Trading (CFTC Release 7721-18) The CFTC issued an order filing and settling charges against Glencore Agriculture B.V., f/k/a Glencore Grain B.V. (Glencore B.V.), and Glencore Ltd., finding that during May 2013, June 2013, May 2014, and June 2014, Glencore B.V. and Glencore Ltd. held net positions in the ICE Futures Cotton No. 2 contracts that when aggregated exceeded speculative position limits.  The CFTC Order found that on twenty-four occasions between January 2013 and November 2015, Glencore B.V. and Glencore Ltd. executed wash trades when they exchanged futures for physical transactions opposite each other's cotton futures trading accounts, even though their accounts were not independently controlled. Finally, on at least two occasions in 2013 and 2014, Glencore B.V. submitted to the CFTC a Form 304 that failed to represent accurately all required information. The CFTC Order requires Glencore B.V. and Glencore Ltd., jointly and severally, to pay a $2 million civil monetary penalty and to cease and desist from further violations of the Commodity Exchange Act (CEA) and CFTC Regulations, as charged.


Securities Industry Commentator: A legal, regulatory, and compliance feed curated by veteran Wall Street lawyer Bill Singer

In today's Securities Industry Commentator feed:

Boston-Area Investment Adviser Pleads Guilty to Fraud (DOJ Press Release)
Investment Adviser James Polese pled guilty to one count of conspiracy and investment adviser fraud, eight counts of bank fraud, and one count of aggravad identity theft in connection with his diversion of clients' funds for personal investments and expenses. Federal prosecutors had alleged that, in part,  Polese and Cornelius Peterson (who has also pled guilty to his role) misappropriated about $100,000 from a client's account to invest in a wind farm project despite the fact that it was not an investment opportunity authorized by their company, and misappropriated another $400,000 from another client's account to back a letter of credit in support of the wind farm project. 


Financialindustryregulatory Arthur-Iddy's BrokenCzech Tool ( Blog)
In promoting its online BrokerCheck, FINRA asserts that "BrokerCheck is a free tool to research the background and experience of financial brokers, advisers and firms." Yeah, tool indeed! Consider a recent FINRA arbitration and how useful BrokerCheck would be in researching some of the named parties.


Addis Businessman Sentenced to 42 Months in Prison for Investment Fraud Scheme (DOJ Press Release)
William Todd Cutrer owned and operated West Baton Rouge Credit, Inc. ("WBRC"), which made high-interest loans to individual customers. Cutrer obtained over $500,000 in lines of credit from local banks and solicited investments from individuals by guaranteeing he would pay interest and that their funds could be redeemed upon written notice. Cutrer diverted the proceeds to himself and his family members, and made Ponzi-like payments to prior investors who were due interest on their principal.  When Cutrer was unable to make further payments he fraudulently stated that an August 2016 flood had inhibited his ability to collect payments on WBRC's high-interest loans. Cutrer pled guilty to mail fraud and was sentenced to 42 months in federal prison plus two years of supervised release, and ordered to pay $502,035.09 in restitution. 


Two Foreign Nationals Sentenced to Federal Prison for Role in Austin-Based Multi-Million Dollar S.I.R.F. Scheme (DOJ Press Release)
Federal prosecutors alleged that Ibrahim Alu and George Ismail had entered the United States claiming to be Sudanese citizens escaping persecution and requested asylum. Both claims were eventually denied by the Department of Homeland Security because neither Alu or Ismail could establish their identities and their claims were determined to be false. It was determined that the two were Nigerian citizens and, as such, could not be deported back to the Sudan. Amazingly, Alu and Ismail were permitted to remain in the United States and given permission to work here. And work they did! Prosecutors alleged that Alu and Ismail participated in a conspiracy that, in part, operated a cleaning service in the Austin, Texas area -- while cleaning offices (such as medical facilities), the conspirators looted those workplaces of personal identification information, which was then used to file fraudulent tax returns and credit card applications. The intended loss of the fraud conspiracy was approximately $3.9 million dollars. Alu and Ismail pled guilty and were respectively sentenced to eight and seven years in prison and ordered to jointly and severally pay $1,358,489 in restitution. Arrest warrants are still out for Nigerian national co-defendants Dele Akanbi (aka "SK") and George Najomo.

Gainesville man charged with bilking his former brokerage firm clients with biofuel scheme (DOJ Press Release)
Former Metlife Securities Inc. and Prudential employee Winston Wade Turner was indicted by a federal grand jury in the United States District Court for the Northern District of Georgia on mail and wire fraud. Turner pled not guilty to charges that he represented to investors (who were former clients) that he was a broker for "North American Bio Fuel," allegedly a biofuel producer that Turner characterized as "up and coming company" and already producing biofuel. During the time of the alleged representations, prosecutors assert that the company was only a shell company.  The Indictment alleges that Turner caused, and attempted to cause, wire transfers in the hundreds of thousands of dollars from victims and that he misused investor funds for personal and other corporate purposes.