Securities Industry Commentator by Bill Singer Esq

May 14, 2020

Lessons from porn industry could help Hollywood adapt to coronavirus (Reuters by Rollo Ross)

Reality TV Personality Charged with Bank Fraud (DOJ Release)
SEC confirms that it would not recommend enforcement action to the Commission against FINRA under Exchange Act Section 19(g)(1) if FINRA, in certain limited circumstances, and only on a temporary basis and under the circumstances below, issues targeted, solely technical or ministerial COVID19 Guidance and Temporary Regulatory Relief from obligations under FINRA's rules that may result in FINRA not complying with Exchange Act Sections 19(b)(1) and 19(g)(1), and Exchange Act Rule 19b-4. In part, the SEC NAL notes that:

FINRA states that it recognizes that health and safety is of paramount importance in response to the COVID-19 pandemic. FINRA also states that, given the significant impacts that the COVID-19 pandemic has had on its member firms, investors and other stakeholders-including the various shelter-in-place and other similar government orders-FINRA has received numerous requests from member firms, associated persons and other individuals which demonstrate a clear need for targeted, solely technical or ministerial regulatory relief from obligations under FINRA rules. FINRA states that it understands that the current pandemic environment has presented challenges that have made it difficult to comply with certain aspects of FINRA's rules. Accordingly, 

FINRA states that it has worked promptly to provide targeted COVID-19 Guidance and Temporary Regulatory Relief to member firms, associated persons and other individuals from some FINRA requirements through the issuance of FINRA staff statements, guidance, and FAQs. FINRA states that this relief is focused on assisting firms with obligations impacted by a shift to business continuity plans. For example, this relief has involved the extension of certain deadlines (such as extending the time for eligible persons to function as principals before passing the appropriate examination(s) and report filing deadlines) or addressing certain paper-based and other form requirements (such as the use of electronic acknowledgements rather than manual signatures) that member firms, associated persons, and other individuals may have difficulties complying with in the current pandemic environment. 

FINRA also states that, through its engagement with FINRA member firms, it has been apparent that prompt and targeted regulatory relief was needed for member firms, associated persons and other individuals regarding compliance with certain deadlines and other aspects of FINRA rules and requirements that have been impacted due to circumstances arising from COVID-19. FINRA further states that, given the exigent circumstances and the need for prompt action to address these types of deadlines and other aspects of FINRA rules impacted by the pandemic, it provided the temporary regulatory relief through communications of the type noted above, rather than through other means, such as filing proposed rule changes under the Exchange Act.
Notwithstanding the somewhat lurid headline (which Rollo Ross gets credit for as an eyecatcher), the article is intriguing. Pointedly, Ross notes in part that:

The porn industry in Los Angeles came up with its own testing system and database in the 1990s to protect actors during the HIV/AIDS epidemic.

Now it is using that system to develop protocols for making adult entertainment during the COVID-19 pandemic.

"When we first starting talking about COVID, we felt very well prepared because we have a whole history of testing within the industry as well as contact tracing and production shut-downs," said Mike Stabile, spokesman for the Free Speech Coalition, a trade association for the U.S. adult entertainment industry.

Bill Singer's Comment: As has been related to me the last several weeks, a number of guys have been working from home and, ummm, well, you know, somehow they were monitoring their trades and then saw a news story on the crawl, and then clicked on the story, which took them to, for example, CNBC, where they read the story, and then that prompted them to do a Google search, which, of course, somehow brought them to YouTube, where they watched a bloopers video, and then some old music videos from their youth, and, then, naturally, that gave them the idea of logging on to Unfortunately, as they were . . . how should I put in? . . . entranced, yeah, let's go with that, "entranced" with some video on Pornhub, the wife or the kid or some significant other walked into the room and caught them . . . entranced. Upon being interrupted from their entrancement, they tried to click to another tab or smoothly minimize the screen and, some claim, they got away with it, but others got caught in the act of . . . entrancing. In any event, now that I've published the Reuters porn industry article, some of you, who may find yourself entranced on,  have been given the rare opportunity to invoke the doctrine of plausible deniability, which will likely sound something like:

This? Porn? You think that I'm watching porn? Oh my, surely you misunderstand. I am not watching porn, which I find undignified and beneath contempt and an accusation that I will not respond to, nay, I will not even entertain! Oh no, I am doing my Due Diligence on a brilliant article that veteran Wall Street lawyer and bon vivant Bill Singer wrote the other day about how Wall Street and Hollywood are considering the lessons derived by the porn industry during the 1990s HIV/AIDs epidemic, which, if you think about it, has many parallels and lessons for we who are now dealing with the COVID pandemic. Mr. Singer's provocative yet brilliant commentary prompted me to conduct an online investigation, which brought me to this very video that you mistake as being viewed by me for some deviant purpose. To the contrary, I am deep into working from home and am simply following the leads that Mr. Singer, a well-known and devilishly handsome Wall Street lawyer, has presented to his readers. Frankly, you owe me an apology!"
Love & Hip Hop: Atlanta star Maurice Fayne was charged in the United States District Court for the Northern District of Georgia with bank fraud in connection with a Paycheck Protection Program ("PPP") loan. As alleged in part in the DOJ Release:

[F]ayne is the sole owner of a Georgia corporation called Flame Trucking.  On April 15, 2020, Fayne signed and submitted to United Community Bank (UCB) a PPP loan application in the name of Flame Trucking stating that the business had 107 employees and an average monthly payroll of $1,490,200.  In seeking a loan in the amount of $3,725,500, Fayne certified that the loan proceeds would be used to "retain workers and maintain payroll or make mortgage interest payments, lease payments, and utility payments, as specified under the Paycheck Protection Program Rule."

UCB ultimately funded the loan for $2,045,800.  Within days, Fayne allegedly used more than $1.5 million of the PPP loan proceeds to purchase $85,000 in jewelry, including a Rolex Presidential watch, a diamond bracelet, a 5.73 carat diamond ring for himself, and to pay $40,000 for child support.  Such payments are not an authorized use of PPP funds under the CARES Act.

On May 6, 2020, Fayne was interviewed by federal agents and admitted that he submitted a PPP loan application on behalf of Flame Trucking.  Fayne claimed that he used all of the PPP loan proceeds to pay payroll and other business expenses incurred by Flame Trucking and denied using any of the PPP loan proceeds to pay his personal debts and expenses.           

On May 11, 2020, agents executed a search at Fayne's residence in Dacula and seized approximately $80,000 in cash, including $9,400 that Fayne had in his pockets, and the jewelry he purchased with the PPP funds, and further discovered a 2019 Rolls-Royce Wraith, which still had a temporary dealer tag on it.  Agents also executed seizure warrants for three bank accounts that Fayne owned or controlled and seized approximately $503,000 in PPP funds.

SEC Charges Investment Adviser and Principals for Breaching Fiduciary Duties (SEC Release)
In a Complaint filed in the United States District Court for the Eastern District of Pennsylvania, the SEC charged Ambassador Advisors, LLC, Bernard I. Bostwick, Robert E. Kauffman, and Adrian E. Young with violations of the antifraud provisions of Section 206(2) of the Investment Advisers Act of 1940, and the Complaint further alleged that Ambassador violated the antifraud provisions of Section 206(4) of the Advisers Act and Rule 206(4)-7 thereunder. As alleged in part in the SEC Release:

[F]rom August 2014 to December 2018, Ambassador, Bostwick, Kauffman, and Young, failed to adequately disclose conflicts of interest arising from their selection of mutual fund share classes that charged 12b-1 fees, which Bostwick, Kauffman, and Young received, instead of lower-cost share classes of the same funds that were available to clients and that would not have paid 12b-1 fee compensation to Bostwick, Kauffman, and Young. In addition, the complaint alleges that Ambassador, Bostwick, Kauffman, and Young breached their duty to seek best execution for their clients by causing certain advisory clients to invest in fund share classes that charged 12b-1 fees when share classes of the same funds that presented a more favorable value for these clients under the particular circumstances in place at the time of the transactions were available to the clients. According to the complaint, Ambassador also failed to adopt and implement written policies and procedures designed to prevent these violations. Ambassador was eligible to self-report to the SEC pursuant to the Division of Enforcement's Share Class Selection Disclosure Initiative, but did not do so.
The FBI Release tells the story of Matthew Harrell, who Harrell pleaded guilty to health care fraud and aggravated identity theft charges; and he was sentenced to 11 years in prison. As noted in part in the release:

In Louisiana, Harrell bought a list of 13,000 stolen identities of children who were on Louisiana's Medicaid program. Harrell used the data to bilk Louisiana's Medicaid program out of more than a half-million dollars in mental health services never provided.

He tried to make his companies look legitimate. Harrell had offices and employees, although those employees didn't provide care-they simply engaged in fake billing. Harrell even kept patient "charts" sitting on the shelf at his offices in case of an audit.

Grocery prices are soaring. Here's what's getting more expensive (CNN by David Goldman)
Depending on what you read and who writes it and when you read it, you are warned that consumer prices are plummeting to historically low levels because of cratered demand; or, you are warned that consumer prices are skyrocketing to historically high levels because of demolished supply and swelling demand; or, some supply is decreased and some demand is decreased and some supply is increased and some demand is increased and . . . hell, I give up. In today's iteration on the price theme, CNN Goldman's notes in part that:

Okay, so if you're a loyal reader of CNN Business (and we hope you are!) you might have seen a headline Tuesday that said "Prices are falling at an alarming rate." Or a headline today that said producers' prices fell by a record amount.

That probably feels ... off to you. And for a good reason: Every time you go to the grocery store, that number at the end of the receipt keeps getting bigger.

Both things are true. . . .
As noted in part by CNBC's Repko:

In the early weeks of the coronavirus pandemic, customers stockpiled food, toilet paper and other essentials for prolonged stays at home. They shopped for different kinds of items, such as hand sanitizer and antibacterial wipes to stay healthy, computer monitors to set up home offices and supplies to help kids attend school remotely. And they began filling up bigger baskets as they avoided stores or made less frequent shopping trips.

Since then, the financial picture has become bleaker. Unemployment has risen to 14.7%, after 20.5 million people lost their jobs in April alone. The total number of jobless claims is up to 33.5 million over the past seven weeks. Pay cuts have squeezed family budgets. Even those with the same income may feel uneasy, as they read unemployment reports or see neighbors, family or friends get furloughed or laid off.

Coronavirus will reverse globalization and create regional supply chains, economists predict (CNBC by Chloe Taylor)
As noted in part by CNBC's Taylor:

This shift away from China would be indicative of a wider trend, the report said, as global firms looked for ways to build up their resilience following the supply shock induced by the coronavirus.

"By building quasi-independent regional supply chains in the Americas and Europe, a global company will provide a hedge against future shocks to their network," the EIU said. "For those companies that have this luxury already, they have been able to shift production of key components from one region to another as lockdowns and factory closures resulting from coronavirus have unfolded."

Blocking all mergers during pandemic is 'misguided,' DOJ antitrust chief says (CNBC by Lauren Hirsch)
As noted in part by CNBC's Hirsch:

Sen. Elizabeth Warren, D-Mass., and fellow progressive Rep. Alexandria Ocasio-Cortez, D-N.Y., have proposed "The Pandemic Anti-Monopoly Act," which would "stop large corporations from exploiting the coronavirus pandemic to engage in harmful mergers." It would place a moratorium on deals for companies with more than $100 million in revenue, as well as some private equity funds and hedge funds.

"We haven't seen the legislative language, so we can't have any official position on it," Delharim told CNBC's "Squawk Box" on Wednesday. "However, I think it would be misguided to just block all attempts for transactions."

[In]Securities Guest Blog: Troubled Water Over the Bridge by Aegis Frumento Esq ( Blog)
Guest Blogger Aegis Frumento, Esq. considers the recent Supreme Court reversal of the convictions in Bridegate and the motion by DOJ to dismiss criminal charges against Michael Flynn -- and Frumento wonders: When should the law get involved? It's a big question. And in these times of political turmoil and pandemic, it's a question worth asking and one that Frumento attempts to answer.