Securities Industry Commentator by Bill Singer Esq

October 7, 2019

featured in today's Securities Industry Commentator:

Demographic studies conducted by Ernst & Young have concluded that the average financial advisor is 51, an age that has risen steadily each year and makes the average advisor a member of a protected class. The revised production requirements that former wirehouses now forcefully seek to enact will have the net effect of phasing out a significant number of age 50-plus advisors who cannot reasonably be expected to compete with the practice-growth requirements of their younger colleagues. Firms like Merrill Lynch focus on the perceived beneficial impact that their so-called motivational policies have on their firms' "bottom line;" however, not of concern to such employers is that those same policies may unintentionally have a discriminatory impact and violate both federal law and numerous state anti-discrimination statutes.
Vlaidmir Ziskind pled guilty in the United States District Court for the Southern District of New York to one count of conspiracy to commit securities fraud and one count of securities fraud. As alleged in part in the DOJ Release:

For several years, ZISKIND and his co-defendants operated a fraudulent scheme in which 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.  In fact, there was no "Mike Palmer," and the salesman was actually ZISKIND or co-defendant Kevin Weinzoff, who were taking turns using the fake alias.  The purported time-sensitive investment opportunity was also fabricated by the defendants, as the companies in which they solicited investments were actually companies under their control.  In one intercepted phone call conversation, ZISKIND described to co-defendant Keith Orlean, the chief executive officer of the company, his strategy for a successful investor sales pitch as: "You ram it down their fucking throat."  In another intercepted call between ZISKIND and Orlean, upon learning that a particular victim investor died, ZISKIND remarked:  "I knew I should have pulled the last $10,000 out of him."   

The most recent version of the defendants' phony sales pitch included false representations about an impending initial public offering, or "IPO," for their company, Digital Donations Technologies, Inc.  For example, in April 2018, ZISKIND assured a victim investor that "our company is doing great," that the company had an offer for an IPO valued at approximately $300 million, and that Orlean was considering a private sale of the company for more than $1.5 billion.  In truth, however, the defendants knew that the company had little or no actual commercial value and that no such IPO or sale was taking place.   

The Federal Bureau of Investigation ("FBI") estimates that since April 2014, the defendants have convinced more than approximately 50 elderly persons to purchase stock in companies controlled by one or more of the defendants based on false representations.  The defendants appear to have solicited more than $2 million in stock purchases from victims.

Federal Jury Convicts Owner of Bullion Direct, Inc. in Austin for Investment and Wire Fraud Scheme (DOJ Release)
After a five-day trial in the United States District Court for the Western District of Texas, a jury convicted Bullion Direct, Inc.' Chief Executive Officer/owner Charles McAllister of two counts of wire fraud and one count of engaging in a monetary transaction with criminally derived property. As alleged in part in the DOJ Release:

[F]rom at least January 2009 through July 2015, McAllister perpetrated a scheme that falsely represented that funds obtained from individual customers would be used to purchase precious metals on behalf of the customer and either shipped directly to the customer or stored in BDI's vault.  Instead of buying the precious metals with the customer's funds and storing customer metals, McAllister spent customer property on BDI corporate expenses, on other investment activities, and for his own personal use and benefit.

McAllister, who is currently on bond, faces up to 20 years in federal prison for each wire fraud count and up to ten years in federal prison for the money laundering charge.  The Court is also considering entering a $16,186,212.56 monetary judgment against McAllister that represents the amount of proceeds obtained directly or indirectly from the defendant's alleged scheme. . . .
Sean Kerwin Bindranauth was in the United States District Court for the Southern District of Florida charged with conspiracy to commit money laundering, eight counts of money laundering, and conducting an unlicensed money transmitting business. As alleged in part in the DOJ Release:

[F]rom at least as early as February 2018 and continuing through May 2019, Bindranauth was part of a conspiracy that used investment and romance scams to induce victims to money via wire, personal checks, or cash to Bindranauth for a purported investment or promissory payment. Bindranauth would allegedly send the funds out of the United States to Nigeria through Western Union and MoneyGram as well as bank-to-bank transfers. Several of the victims are over 60 years old.  Bindranauth and his co-conspirators were given a total of nearly $1 million from over a dozen senior citizens and other victims.
Samuel John Abraham, 62, was sentenced in the United States District Court for the District of Virginia to 10 years in prison for his role in running an advanced fee scheme. As alleged in part in the DOJ Release, Abraham and his Co-Defendant Kenneth Ross Thomas:

conspired to defraud individuals and businesses desperate for credit by promising to arrange substantial lines of credit from European banks. In exchange for an up-front deposit of approximately $150,000 into an escrow account, Abraham, operating as Advanced Funding Group, using aliases such as "J. Samuel Ibrahim" and "Jamal S. Ibrahim," and also posing as an attorney calling himself "John Wynn," claimed that he could "lease" for clients a Standby Letter of Credit (SBLC) from a European Bank in the "face amount" of approximately $100 million. Of this large sum, clients were promised they could simply keep approximately $20 million as a "non-recourse loan." A supposed "monetizer" would then use the remainder of the funds over the course of the year-long lease of the SBLC in order to engage in lucrative overseas trades (also known as "platform trading"), which would supposedly generate profits sufficient to repay the entire SBLC.

As part of the scheme, clients were directed to wire money to Escrow Agent Kenneth Thomas of "K. Thomas and Company Escrow Services." In reality, the money was wired to the personal checking account of Kenneth Thomas, who was not an escrow agent, and who acted as Abraham's chauffer. Thomas promptly provided most of the money to Abraham. According to the Superseding Indictment, Abraham then spent large sums of the money gambling at the Motor City Casino in Detroit, and on vehicles and a condominium. According to the Superseding Indictment, Abraham took in approximately $1.2 million in proceeds from the fraud. Victims resided in Virginia, Arizona, Nevada, Wisconsin, Alaska, New York, South Dakota, Peru, Australia, and other locations.

Standby Letters of Credit, as marketed by the defendants, do not exist and have long been the subject of public service announcements by the FBI and the Securities and Exchange Commission. Abraham has a prior federal conviction and also a permanent injunction entered against him by the SEC for operating the same scheme.

SEC Charges CEO and CFO of Digital Entertainment Company with Misleading Investors (DOJ Release)
In a Complaint filed in the United States District Court for the Southern District of New York, the SEC charged that FAB Universal Corp.'s Chief Executive Officer Christopher J. Spencer and Chief Financial Officer John Busshaus with violations of the antifraud provisions of Sections 17(a)(2) and (3) of the Securities Act of 1933. Without admitting or denying the allegations, Spencer and Busshaus have agreed to bifurcated settlements where they will be permanently enjoined from violating these provisions. The settlements, which are subject to court approval, reserve the issues of disgorgement, prejudgment interest, and civil penalties for further determination by the court upon motion of the SEC.   

[I]n 2012 and 2013, Spencer and Busshaus made false and misleading representations regarding the capabilities and growth prospects of FAB's Intelligent Media Kiosks. Spencer and Busshaus described the kiosks as "iTunes meets Redbox meets Netflix" where customers could download movies, television shows, music, and other media from ATM-style terminals to their cellphones and other devices. According to the complaint, they also made numerous statements about the multi-media functionality, profitability, and growth of the kiosk market. In reality, the complaint alleges that most kiosks did not have media-download functionality and more than half of the kiosks did not function at all. Moreover, public statements that Spencer and Busshaus allegedly reviewed and approved grossly overstated the number of kiosks that the company had installed. According to the complaint, Spencer and Busshaus continued to use information provided by Chinese management to make specific representations despite numerous red flags indicating that the information they received may be inaccurate. Accordingly, the complaint alleges that Spencer and Busshaus did not comply with the requisite standard of care before making or approving these representations.
In an Indictment filed in the United States District Court for the Eastern District of Louisiana, Martin Alonso Aceves Custodo a/k/a Robin Birmingham, a/k/a ALA; Liza Flanery Fierro a/k/a LIE; Claudia Elena Antillon Zhuita a/k/a Julie Batista, a/k/a KLA; Sergio Leon Kuri a/k/a "LNK;" Jesus Adrian Ledsma Bernal a/k/a JSS; and Julio Cesar Rivera Rojas a/k/a JCP were each charged with one count of conspiracy to commit wire fraud. As alleged in part in the DOJ Release:

[F]rom at least January 1, 2016, to the present, the above defendants conspired together and with others to commit wire fraud in connection with a telemarketing scheme that targeted and victimized persons in the United States, Canada and South America. As part of the elaborate scheme, the conspirators made unsolicited phone calls to owners of resort timeshare properties to induce them to and pay fees associated with the bogus sale of their property. The defendants misrepresented the existence of a buyer for their timeshare and solicited money from the victims to facilitate the sale. They solicited the timeshare owners to enter into agreements to sell their timeshares and pay for alleged "closing costs" with electronic wire transfers from banking institutions within the United States to Mexican banks. There were no interested buyers, the closings did not occur, and the timeshares were not resold. Instead, the conspirators simply pocketed the advanced fees. Of the U.S. victims, 40 were age 60 and older and the total estimated loss is at least $10,000,000.

The defendants, who are all based in Mexico, operated under the business names Planet Travel and Newport International Investments, and at other times used the following business names: Advance Travel INC, All American Real Estate, American International Investment Group, Bear Claw Travel, Best Investment Services, Champion Properties, Closing Source LLC, Equity Closing Services Group, Global Offshore Services, NSC Holding, Peach Title, Sandia Title, Travel and Acquisitions, Travel Innovations, Travel Plus Acquisitions, Travel Right, and World Travelers, Inc.