Securities Industry Commentator by Bill Singer Esq

May 8, 2020


Bridget Anne Kelly, Petitioner, v. United States (Opinion, United States Supreme Court, 18-1059, 590 U.S. __(2020))

Saltville Man Who Lied About His Own Death Pleads Guilty To Series of Federal Charges Including Bankruptcy Fraud, Wire Fraud, Aggravated Identity Fraud (DOJ Release)


CFTC Orders Trader and His Firm to Pay $150,000 for Wash Sales (CFTC Release)

Attorney General James Secures New Protections, Security Safeguards for All Zoom Users (NYAG Release)

See for example: 
https://www.finra.org/sites/default/files/aao_documents/19-01163.pdf
https://www.finra.org/sites/default/files/aao_documents/19-03341.pdf

On or around May 5, 2020, immediately under an arbitration case caption and preceding the presentation of any facts, FINRA has apparently begun inserting this language of disclaimer:

Awards are rendered by independent arbitrators who are chosen by the parties to issue final, binding decisions. FINRA makes available an arbitration forum -- pursuant to rules approved by the SEC -- but has no part in deciding the award.

Bill Singer's Comment: I take issue with the above Disclaimer, which is the insertion of a purported fact by a third-party into what is supposedly a Decision rendered pursuant to private contract between the parties litigating their dispute. In some cases, I view FINRA's asserted jurisdiction as the byproduct of coercion via rules, agreements, and contracts with which public investors and associated persons were denied any meaningful role, input, or bargaining power. See if you can open a brokerage account with a U.S. broker-dealer after you cross out the "mandatory" arbitration clause in their new account agreement. See if you can secure employment by declining mandatory intra-industry arbitration.
What if I (either a public customer or associated person) object on the record to my forced role as a party in a FINRA arbitration because I want to litigate my dispute in the courts? In furtherance of my objection, I pointedly dispute that the forum and its arbitrators are truly "independent."Accordingly, I demand that FINRA's Disclaimer not be inserted into any ensuing Decision. Is its FINRA's new policy to deprive a sole Arbitrator or an Arbitration Panel the discretion to include, modify, or exclude the Disclaimer? If FINRA arrogates to itself the right to insert statements into a Decision, how does FINRA argue that it has no "part in deciding the award?"
The FINRA arbitration forum was created in response to authorization by the organization's member firms (no public customer or associated person has any vote on FINRA's Board or any formal role with its rulemaking process). Given the adhesive nature of such relationships, I find little independence inherent in FINRA's arbitration process. What the above-cited statement characterizes as so-called "independent arbitrators" are individuals selected from rolls populated and maintained by FINRA and they are paid by that organization -- which, again, is constituted solely by its member firms.
FINRA's expungement process requires notice to FINRA-the-regulator in the event that a prevailing associated person in a customer-dispute matter moves to confirm a recommended expungement in the courts -- and FINRA will actively oppose the resort solely to the courts of any expungement that is not submitted through its arbitration forum. How does FINRA argue that it has no role in the expungement-arbitration docket? 
I am left uneasy by FINRA's self-serving insertion of the cited Disclaimer. I am unable to recall any court opinion or order that is predicated with a disclaimer stating: 

Opinions are rendered by independent judges who are chosen by the parties is issue final, binding decision. This Court system makes a courtroom available -- pursuant to rules approved by the people of this state/nation -- but in jury cases, this Court has no part in deciding the award.

Bridget Anne Kelly, Petitioner, v. United States (Opinion, United States Supreme Court, 18-1059, 590 U.S. __(2020))
http://brokeandbroker.com/PDF/KellyUSSupOp200507.pdf
As set forth in the Supreme Court Opinion's "Syllabus":

For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey. The cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey. For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days-with predictable consequences-only a single lane was set aside. The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study. In fact, they did so for a political reason-to punish the mayor of Fort Lee for refusing to support the New Jersey Governor's reelection bid. 

Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity. See 18 U. S. C. §§1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property. See §1343 (barring fraudulent schemes "for obtaining money or property"); §666(a)(1)(A) (making it a crime to "obtain[] by fraud . . . property"). The jury convicted the defendants, and the lower courts upheld the verdicts. 

The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing-deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority's money or property. The Government contends it was, because the officials sought both to "commandeer" the Bridge's access lanes and to divert the wage labor of the Port Authority employees used in that effort. Tr. of Oral Arg. 58. We disagree. The realignment of the toll lanes was an exercise of regulatory power-something this Court has already held fails to meet the statutes' property requirement. And the employees' labor was just the incidental cost of that regulation, rather than itself an object of the officials' scheme. We therefore reverse the convictions.

http://www.brokeandbroker.com/5207/TD-Debit-Card-Liu/
A federal civil Complaint alleges that TD Ameritrade failed to adequately investigate unauthorized transactions in a customer's account, and that the firm had deceptively asserted it had adequately investigated the fraud. It's all quite bizarre because the transactions at issue seem unauthorized but TDA concluded that "an error did not occur." 

https://www.justice.gov/usao-wdva/pr/saltville-man-who-lied-about-his-own-death-pleads-guilty-series-federal-charges
Russell Geyer, 50, did a remarkable thing for a dead man -- he pled guilty in the United States District Court for the Western District of Virginia to one count of contempt of court, one count of bankruptcy fraud, one count of wire fraud, and one count of aggravated identity fraud. Frankly, most dead folks can't make the trip to the courthouse, and, if they can, well, it's quite the challenge to stand upright and make your plea. Then again, these are remarkable times and, you know, for a dead guy Russell Geyer is truly amazing. As alleged in part in the DOJ Release: 

According to court documents, Geyer devised a scheme to defraud the United States Bankruptcy Court through a series of deceptive statements designed to hide assets and maintain control of collateral. These actions included, but were not limited to, repeatedly lying about fake medical conditions, including prostate cancer, bone cancer, cardiac issues, a brain aneurysm, and pneumonia. 

On August 30, 2019, the attorney working for Geyer informed the court that he had received an email purportedly from Russell Geyer's wife, stating that Russell was dead. In fact, Russell Geyer had sent the email posing as his wife.

At a September 5, 2019 hearing, Mrs. Geyer testified that her husband was alive and that neither she, nor Russell Geyer, had been out of town and in the hospital for the serious medical conditions claimed by the defendant throughout the case.

During the September 5, 2019 hearing, Russell Geyer's attorney read into the record an email he received from an attorney in Florida indicating that the Florida attorney had sold some of the assets involved in the bankruptcy proceedings without the Geyers' knowledge. The email further stated that he had complete control of Russell and told him to kill himself. The attorney concluded the email with "I am on a plane out of the country."

The investigation determined that the Florida attorney whose name was used in the email actually exists but had nothing to do with this case. Instead, Russell Geyer used the Florida attorney's name and a bogus email account to send these emails without the Florida attorney's knowledge.

Further investigation revealed that Geyer had assumed the Florida attorney's identity to fraudulently obtain $70,000 from his own wife. Geyer told his wife that he was going to receive more than $1 million in a settlement from a case that the Florida attorney was handling for him.  Geyer said he needed money to pay the attorney's fees before the money would be released.  Geyer then used a bogus email address and an app that disguised his voice to pose as the Florida attorney and to confirm that a settlement was imminent.  It was all untrue.

https://www.cftc.gov/PressRoom/PressReleases/8162-20
In a Complaint filed in the United States District Court for the Southern District of Florida
https://www.cftc.gov/media/3846/enfdanielfingerhutcomplaint050520/download, the CFTC charged Daniel Fingerhut, Tal Valariola, Itay Barak, Digital Platinum, Inc. ("DPI"P and Huf Mediya Ltd. ("Huf") with fraudulently soliciting tens of millions of customers and prospective customers to open and fund off-exchange binary options and digital asset trading accounts; and further charged Fingerhut with making materially false or misleading statements to CFTC staff, including while under oath, in an apparent effort to conceal the extent of his role in the fraud and to avoid producing documents. As alleged in part in the CFTC Release:

[B]eginning in at least October 2013 and continuing through August 2018, the defendants allegedly created fraudulent marketing materials which promised astronomical profits with no risk of loss and disseminated them via email spam and by making videos available online. Over 59,000 customers opened and funded trading accounts as a result of these fraudulent marketing campaigns, which generated payments of over $20 million in commissions to the defendants. 

According to the complaint, the marketing materials touted fake trading performance using advertised binary options and digital asset trading software and systems. The marketing videos typically featured actors-often posing in front of props such as mansions and private jets-who falsely claimed they had become rich trading.

https://www.cftc.gov/PressRoom/PressReleases/8161-20
Respondents Mehran Korrami and Cayley Investment Management, LLC ("CIM") settled charges in a CFTC Order  https://www.cftc.gov/media/3841/enfinvestmentmanagementorder050720/download, and they agreed to pay a $150,000 civil monetary policy. As set forth in part in the CFTC Release:

[K]horrami, on behalf of CIM, engaged in multiple wash sales and non-competitive transactions for accounts held by a client of CIM. These transactions involved foreign currency, crude oil, and gold futures contracts. Specifically, on February 8, 2018, Khorrami placed simultaneous buy and sell orders in six different CME futures contracts. Initially, the orders were at different bid and offer prices, but after being unable to fill the orders, Khorrami repeatedly modified the orders until the bid and offer prices matched. This resulted in a series of pre-arranged cross trades in contracts for crude oil, British Pound, Euro FX, Swiss Franc, and Japanese Yen. In total, respondents made six non-competitive prearranged trades.

In addition to imposing the $150,000 civil monetary penalty, the order requires Khorrami and CIM to cease and desist from further violations of the Commodity Exchange Act and CFTC regulations, as charged.

The CFTC's investigation was conducted in conjunction with a parallel inquiry by CME. Today, CME issued a Notice of Disciplinary Action in which Khorrami agreed to pay a fine of $30,000 and serve a 10-day suspension arising out of the wash sales and non-competitive transactions that are the subject of the order.

https://ag.ny.gov/press-release/2020/attorney-general-james-secures-new-protections-security-safeguards-all-zoom-users
The NYAG entered into an Agreement with Zoom Video Communications
https://ag.ny.gov/sites/default/files/nyag_zoom_letter_agreement_final_counter-signed.pdf whereby the company will provide enhanced security protections for meeting participants on its platform. As noted in part in the NYAG Release:

As consumers, businesses, and students were increasingly using Zoom's platform to communicate and share information, a number of newly reported issues emerged. Numerous users reported that their Zoom conferences had been interrupted by uninvited participants seeking to disrupt the conference - dubbed "Zoombombing." Additionally, a number of privacy and data security issues were also reported, including Zoom's lack of end-to-end encryption - as it had previously publicly represented - and the leakage of users' personal information to other users without consent. Finally, Zoom was sharing users' personal information with Facebook, including for those users who were not using the Facebook login feature and even those without Facebook accounts. 

Attorney General James immediately opened an investigation into Zoom's administrative, technical, and physical safeguards to protect consumers' personal data and to handle the increased traffic on the platform, as well as to investigate whether Zoom was complying with numerous New York State and federal laws. In the subsequent five weeks, the Office of the Attorney General and Zoom have worked cooperatively and quickly to implement more stringent and robust protections for consumers, schools, and businesses.