Securities Industry Commentator by Bill Singer Esq

UPPER CASE MESSAGES!!! EXCLAMATION POINTS!!! AND A FINRA FINE AND SUSPENSION!!! (BrokeAndBroker.com Blog)

Lobbyist Jack Abramoff And CEO Rowland Marcus Andrade Charged With Fraud In Connection With $5 Million Initial Coin Offering Of Cryptocurrency AML Bitcoin / Abramoff Also Agrees to Enter Guilty Plea to First-Ever Criminal Prosecution (DOJ Release)

SEC Charges Issuer, CEO, and Lobbyist With Defrauding Investors in AML BitCoin (SEC Release)

Penny stock-loving Robinhood traders raised bubble concerns, but most retail investors are selling (CNBC by Maggie Fitzgerald)

Litigation financing may tempt investors with high returns. What to know before buying in (CNBC by Sarah O'Brien)

Novartis Hellas S.A.C.I. and Alcon Pte Ltd Agree to Pay over $233 Million Combined to Resolve Criminal FCPA Cases / Novartis AG, Novartis Hellas S.A.C.I., and Alcon Pte Ltd Agree to Pay over $345 million Combined to Resolve FCPA Matters with the Government (DOJ Release)

SEC Charges Novartis AG with FCPA Violations (SEC Release)

Fayetteville Man Pleads Guilty to Stealing Postage from Law Firm to File Fraudulent Claims (DOJ Release)

Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds (Final Rule)

Statement on Amendments to the Volcker Rule "Covered Fund" Provisions by SEC Commissioners Hester M. Peirce and Elad L. Roisman

Statement of SEC Commissioner Allison Herren Lee on the Final Rules Continuing the Repeal of Volcker

Statement of CFTC Chairman Heath P. Tarbert in Support of the Final Rule to Revise the Volcker Rule

Dissenting Statement of CFTC Commissioner Rostin Behnam Regarding Revisions to the Volcker Rule

Dissenting Statement of CFTC Commissioner Dan M. Berkovitz Regarding Volcker Covered Funds Final Rule

The allegations underlying the charges against Abramoff, 62, of Silver Spring, Md., and Andrade, 42, of Missouri City, Texas, are contained in two separate documents: the information filed June 25, 2020, charging Abramoff, and the indictment filed June 22, 2020, charging Andrade.  According to the allegations in the charging documents, Andrade and Abramoff conspired to make false and misleading statements to potential purchasers of a proposed new cryptocurrency called AML Bitcoin.  According to the indictment, Andrade was the founder and chief executive officer of NAC Foundation, also referred to as the "National AtenCoin Foundation," an organization that was intended to develop and manage the new cryptocurrency AML Bitcoin.  Andrade claimed to be the creator of AML Bitcoin and inventor of its technology that purportedly would prevent money laundering and anonymous use through "biometric technologies." The charging documents allege Andrade claimed this technology would allow the AML Bitcoin cryptocurrency to comply with anti-money laundering and know-your-customer laws and regulations.  According to the charging documents, the defendants misled purchasers through various means when raising money to fund the venture.  In addition, the charging documents allege Andrade defrauded investors by misusing funds that were raised and laundered funds that were illegally obtained.

The indictment and information allege that beginning in July 2017 Andrade and his company NAC Foundation began raising money for the development of AML Bitcoin by selling AML Bitcoin to purchasers in the United States and elsewhere, and that sales continued through at least December 2018. According to the charging documents, NAC Foundation raised more than $5 million through the sale of AML Bitcoin.  The charging documents allege the defendants engaged in the following criminal condu

In January and February 2018, Andrade and Abramoff allegedly engaged in a false "rejection campaign" regarding a television commercial that they falsely stated was going to be aired during the 2018 Super Bowl television broadcast.  The television commercial portrayed AML Bitcoin as impervious to hacking efforts by the North Korean government and its leader in a manner demeaning to the North Korean government and its leader.  Andrade and Abramoff falsely claimed that the advertisement would have aired during the Super Bowl if the television network airing the Super Bowl and the National Football League had not rejected the advertisement as being too politically controversial. In fact, as Abramoff and Andrade knew, the NAC Foundation did not have the funds to purchase the advertising time, did not intend to air the television commercial, and the advertisement was not reviewed or rejected by the television network or the NFL.  Abramoff and Andrade used paid op-ed articles, social media, and AML Bitcoin press releases to make statements that the commercial had been rejected in order to promote AML Bitcoin to prospective purchasers. 

Andrade, Abramoff, and Andrade's NAC Foundation allegedly made false statements to the public and potential purchasers of AML Bitcoin that misrepresented the state of the development of the technology and the viability and timeline for the release of AML Bitcoin cryptocurrency. 

Andrade, with assistance of Abramoff, allegedly made statements that falsely stated and implied NAC Foundation had reached or was about to finalize agreements with various government agencies for the use of AML Bitcoin or AML Bitcoin technology.  The statements were intended to convince prospective purchasers that the cryptocurrency was progressing toward widespread adoption.  In addition, Abramoff allegedly retained writers to disseminate these statements as op-eds published on various news and financial websites.  Included among the false claims were claims that the NAC Foundation was near a partnership with the Panama Canal Authority to permit AML Bitcoin to be used for ships passing through the Panama Canal when no such agreement or negotiations existed.

Andrade allegedly diverted more than $1 million obtained through the sale of AML Bitcoin and spent it on personal expenses, including the purchase of two properties in Texas. 

Andrade allegedly laundered funds from the venture by steering investor assets through various bank accounts before moving them into an account for Andrade's personal expenses and the purchase of the two properties.

The information filed against Abramoff also alleges that he knowingly and corruptly failed to register as a lobbyist, as required by the Lobbying Disclosure Act, after being retained for lobbying efforts that would involve one or more lobbying communications with a federal official.  This is the first ever known prosecution of a lobbyist for a criminal violation of the Lobbying Disclosure Act.  The information alleges that during part of 2017, Abramoff was retained by a client in the marijuana industry, and that the engagement in part involved efforts to advocate for changes in federal law and policy.  The information also alleges that in June 2017, an FBI undercover agent, posing as a business person seeking to fund lobbying efforts, agreed to retain Abramoff for lobbying activities including lobbying contacts.  After being retained, and after having a later lobbying contact with a federal elected official, Abramoff failed to register as a lobbyist with the Secretary of the Senate and the Clerk of the House of Representatives within 45 days of the retention or the contact, as required by the Act.

NAC Foundation and its Chief Executive Officer Marcus Andrade https://www.sec.gov/litigation/complaints/2020/comp-pr2020-145-nac-andrade.pdf; and

Jack Abramoff 

https://www.sec.gov/litigation/complaints/2020/comp-pr2020-145-abramoff.pdf

[N]AC Foundation raised at least $5.6 million from more than 2,400 investors by selling tokens that could later be converted to AML BitCoin. According to the SEC's complaints, NAC and its CEO portrayed AML BitCoin as superior to the original bitcoin, with anti-money laundering, anti-terrorism, and theft-resistant technology built into the coin on NAC's own "privately regulated public blockchain." The SEC's complaints allege that in reality none of the touted capabilities existed and the development of AML BitCoin and its blockchain was in the very early stages.

According to the SEC, NAC and Andrade falsely claimed that multiple government agencies were negotiating to use AML BitCoin, and Abramoff and Andrade falsely claimed that they were on the verge of advertising AML BitCoin during the Super Bowl in an effort to create interest in the offering, despite NAC being unable to afford the cost of the ad. Abramoff also allegedly arranged for NAC to pay for purportedly independent articles about AML BitCoin that included many of the misleading statements. The SEC further alleges that Andrade directed a market manipulation strategy to boost the token's trading volume and price and diverted approximately $1.1 million from the offering for his personal use.

Robinhood investors also had an affinity for beaten down familiar names, some that have even filed for bankruptcy, like Hertz, and other that have been shorted heavily by so-called smarter institutional investors. This has led to a sharp rally in such stocks over the past month and perhaps created more distortions in the prices of these names.

Robinhood investors' approach has worked so far, with the smallest 25 stocks by share price in the Russell 2000 index averaging 124% in return since the market bottom in March, compared to just 28% on average for the biggest 25 names by share price, said Barclays. 

There are roughly 40 entities involved in U.S. commercial litigation financing, with assets under management of $9.5 billion, Westfleet research shows. While there are a couple of public companies that do these types of transactions - including Burford Capital and Omni Bridgeway, both headquartered overseas - most are privately held.

Alcon Deferred Prosecution Agreement https://www.justice.gov/opa/press-release/file/1289736/download
Alcon Information https://www.justice.gov/opa/press-release/file/1289741/download
Novartis Deferred Prosecution Agreement https://www.justice.gov/opa/press-release/file/1289746/download
Novartis Information https://www.justice.gov/opa/press-release/file/1289751/download

According to its admissions, between 2012 and 2015, Novartis Greece conspired with others to violate the FCPA by engaging in a scheme to bribe employees of state-owned and state-controlled hospitals and clinics in Greece in order to increase the sale of Novartis-branded pharmaceutical products.  Specifically, Novartis Greece paid for employees of state-owned and state-controlled hospitals and clinics to travel to international medical congresses, including events held in the United States, as a means to bribe these officials in exchange for increasing the number of prescriptions they wrote for Lucentis, a prescription drug that Novartis Greece sold.  In furtherance of the scheme, Novartis Greece employees traveled to the United States, and, while located in the United States, facilitated the provision of the improper benefits to publicly-employed Greek health care providers.  

In connection with the resolution, Novartis Greece also admitted that between 2009 and 2010, Novartis Greece made improper payments to health care providers in connection with an epidemiological study that was intended to increase sales of certain Novartis-branded prescription drugs.  The epidemiological study was used as a vehicle to make improper payments to the health care providers in order to increase sales of certain Novartis-branded prescription drugs, and Novartis Greece employees recognized that many participating health care providers believed that they were being paid in exchange for writing prescriptions of Novartis products and not for providing data as part of a clinical study. 

In furtherance of both schemes, Novartis Greece, through its employees and agents, knowingly and willfully conspired with others to cause Novartis AG to mischaracterize and falsely record improper payments related to the international medical congresses and the epidemiological study in Novartis AG's books, records, and accounts. 

According to its admissions, from 2011 through 2014, Alcon Pte Ltd knowingly and willfully conspired with others to cause Novartis AG to maintain false books, records and accounts, as a result of a scheme to bribe employees of state-owned and state-controlled hospitals and clinics in Vietnam.  Specifically, the false books and records resulted from a scheme in which Alcon employees in Vietnam made corrupt payments through a third-party distributor to employees of state-owned and state-controlled hospitals and clinics in Vietnam in order to increase sales of intraocular lenses.  Intraocular lenses are artificial replacement lenses that are implanted in the eye as part of a treatment for a variety of ailments such as cataracts.  Alcon employees in Vietnam, reimbursed the distributor for up to 50 percent of the cost of the corrupt payments, and these reimbursements were falsely recorded as, among other things, consulting expenses, marketing expenses, and human resource expenses.

As part of the agreement with Novartis Greece, Novartis Greece agreed to continue to cooperate with the U.S. government in any ongoing or future criminal investigations concerning Novartis Greece, its executives, employees, or agents.  In addition, under the agreement, Novartis Greece and its parent company, Novartis AG, agreed to enhance their compliance programs and to report to the government on the implementation of their enhanced compliance programs.  

As part of the agreement with Alcon Pte Ltd, Alcon Pte Ltd agreed to continue to cooperate with the government in any ongoing or future criminal investigations concerning Alcon Pte Ltd, its executives, employees, or agents.  In addition, under the agreement, Alcon Pte Ltd and its parent company, Alcon Inc., agreed to enhance their compliance programs and to report to the government on the implementation of their enhanced compliance programs.  

The government reached these resolutions with Novartis Greece and Alcon Pte Ltd based on a number of factors, including the failure to timely disclose the conduct that triggered the investigations; the nature and seriousness of the offenses, which spanned multiple years and involved high level employees; the lack of an effective compliance and ethics program at the time of the misconduct; and credit for each company's respective cooperation.  The companies also engaged in remedial measures, including terminating and disciplining individuals who orchestrated the misconduct, adopting heightened controls and anti-corruption protocols, and significantly increasing the resources devoted to compliance.

The criminal monetary penalty for Novartis Greece reflects a 25 percent reduction off a point near the midpoint of the U.S. Sentencing Guidelines range because, although Novartis Greece fully cooperated and remediated, its parent company Novartis AG was involved in similar conduct for which it previously reached a resolution with the SEC in March 2016.

The criminal monetary penalty for Alcon Pte Ltd reflects a 25 percent reduction off the bottom of the U.S. Sentencing Guidelines fine range because of Alcon Pte Ltd's full cooperation with the government's investigation.

The SEC's order finds that local subsidiaries or affiliates of Novartis or its former subsidiary Alcon Inc. engaged in schemes to make improper payments or to provide benefits to public and private healthcare providers in South Korea, Vietnam, and Greece in exchange for prescribing or using Novartis or Alcon products. According to the order, these schemes took place between 2012 and 2016 and were known among certain managers of the local subsidiaries or affiliates. The order also finds that Novartis lacked sufficient internal accounting controls within its former Alcon business in China from 2013 to 2015, which used forged contracts as part of local financing arrangements that generated large losses and resulted in Novartis and Alcon writing off more than $50 million in bad debt.

fraudulently generated thousands of dollars in postage on the firm's postal account.  He and others then took the stolen postage to a post office where Smith filed fraudulent postal refund claims, alleging that the postage had been lost or stolen.  In fact, the postage was used to generate fraudulent proceeds for Smith.  The post office then provided refunds on the postage to Smith in the form of postal money orders, both in his own name and in the names of others.

The Criminal Information further alleges that Smith and others then took the postal money orders to banks to convert them into cash.

In total, Smith caused 113 fraudulent postal claims to be filed, resulting in more than $80,000 in losses to B&S. 

The OCC, Board, FDIC, SEC, and CFTC (together, the agencies) are adopting amendments to the regulations implementing section 13 of the Bank Holding Company Act (BHC Act). Section 13 contains certain restrictions on the ability of a banking entity or nonbank financial company supervised by the Board to engage in proprietary trading and have certain interests in, or relationships with, a hedge fund or private equity fund (covered funds). These final amendments are intended to improve and streamline the regulations implementing section 13 of the BHC Act by modifying and clarifying requirements related to the covered fund provisions of the rules.

[T]hese rules will continue to loosen safeguards put in place after the last financial crisis to protect taxpayers from risky bets made by banks. We do this precisely as the global economy enters an even greater, more foreboding crisis of as yet unknown length and severity. I cannot support the decision to proceed in the face of tremendous uncertainty regarding the evolving effects of the current crisis, and without even attempting to analyze or quantify its current impact.

[T]he amendments, among other things, make it possible for banking entities to extend credit and provide other traditional banking services using a fund structure, facilitate venture capital activity, remove barriers to banking entity investments in rural and low-income communities, enable banking entities to provide traditional banking services to funds, clarify the parameters pursuant to which banking entities can invest alongside the funds they organize, and limit the extraterritorial reach of the rule.  These changes are intended (1) to ensure that banks can serve their customers efficiently and (2) to facilitate the flow of credit to the places in the economy that need it most.  Not only are such corrections long overdue, but they could not be more timely, considering the hardship so many businesses now face because of the pandemic and government lockdown orders.

As I have previously remarked, the Volcker Rule is "among the most well-intentioned but poorly designed regulations in the history of American finance."   While today's final rule does not fix the fundamental flaws of the Volcker Rule - only congressional action can do that-it at least represents a more accurate reading of the law Congress actually passed and brings us a step closer to a reasonable implementation of the rule.

Specifically, the Volcker Rule will now no longer be applied to investments Congress never intended to be included in the first place, such as credit funds, venture capital funds, customer facilitation vehicles, and family wealth management vehicles.  The final rule also contains important modifications to several existing exclusions from the prohibition on activities related to private equity and hedge funds (the "covered funds" provisions)-for foreign public funds, loan securitizations, and small business investment companies.  In these ways, the final rule begins to address the over-breadth of the covered funds definition and related requirements.

I voted against the 2018 proposal, and earlier this year, voted against the proposal that strikes the final blow today. In voting against the 2020 proposal, I quoted the late Paul Volcker's letter to the Chairman of the Federal Reserve, which he penned last September, when the Agencies approved the changes breaking down the proprietary trading prohibition. Mr. Volcker warned that the amended rule "amplifies risk in the financial system, increases moral hazard and erodes protections against conflicts of interest that were so glaringly on display during the last crisis." Mr. Volcker's words apply equally well to the changes that the Commission finalizes today regarding covered funds-particularly the erosion of the existing protections regarding conflicts of interest.

I addressed some of these new exclusions in more detail in my dissenting statement on the Proposal. Of these, the new "venture capital funds" exclusion perhaps best illustrates the extent to which the Covered Funds Rule undermines the very purpose of the Volcker rule.  Venture capital serves an important function in our financial markets by providing needed capital to startup companies.  But venture capital investing is very risky.  One study found that about 75% of venture capital-backed firms in the United States did not return capital to investors. Another article on venture capital noted that "VC funds haven't significantly outperformed the public markets since the late 1990s, and since 1997 less cash has been returned to VC investors than they have invested." This is exactly the type of risky private equity fund investing by government-supported banks that Congress intended the Volcker rule to curtail. 

• Securities Industry Commentator
• Bill Singer