Securities Industry Commentator by Bill Singer Esq

August 25, 2022










https://www.brokeandbroker.com/6627/ford-jackson-national-10cir/
Shameful. Disgraceful. Disgusting. Those are my reactions when reading about La'Tonya Ford's employment at Jackson National. Yes, many of her allegations involve incidents well over a decade old -- frankly, I don't care. It should not have taken this long for Ford's case to percolate through the judicial system, whether her allegations prove true or not. This is not justice. This is an ordeal. I commend my readers to the 10th Circuit's superb Opinion, which methodically address each and every argument and the components of proof attached, and does so with great patience and in a convincing manner

SEC Charges Promoter of California Cannabis Company with Fraud (SEC Release)
https://www.sec.gov/litigation/litreleases/2022/lr25481.htm
https://www.sec.gov/litigation/complaints/2022/comp25481.pdf, the SEC charged Nicolas Arkells with violating the registration provisions of Section 5 of the Securities Act; with violating and aiding and abetting violations of the antifraud provisions of Section 17(a) of the Securities Act and Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 thereunder; and with acting as an unregistered broker in violation of Section 15(a) of the Exchange Act. The SEC Release alleges that Arkells is a "promoter for a California-based cannabis company," and that previously, the SEC "charged C3 International, Inc. ("C3"); its CEO and President, Steele Clarke Smith III ("Steele Smith"); and Theresa Smith with allegedly scamming at least 40 investors out of approximately $2 million." As alleged in part in the SEC Release:.

[F]rom about July through December 2018, Arkells sold approximately $477,500 worth of C3 securities to six retail investors through material misrepresentations and omissions regarding C3's business. Specifically, the complaint alleges that Arkells falsely told investors that C3 had received a $30 million capital infusion from a third party. It also alleges that Arkells disseminated documents created by Steele Smith to investors that contained falsehoods and financial projections that had no basis in reality. Arkells allegedly knew or was reckless in not knowing that the statements were false, as he was allegedly aware that C3 had no business operations, manufacturing facility, products, or current revenue. Arkells allegedly received approximately $66,205 in commissions for misleading investors.

The complaint also alleges that Arkells was not registered as a broker or dealer and sold unregistered shares of C3 securities.


https://www.cftc.gov/PressRoom/PressReleases/8577-22
In a CFTC Order filing/settling charges, Eric Schwartz was charged with spoofing
https://www.cftc.gov/media/7561/enfschwartzorder082422/download. Previously, the CME Group imposed a fine and suspension on Schwartz in its parallel inquiry. The CFTC Release states in part that: 

Specifically, the order finds that Schwartz spoofed-defined in the Commodity Exchange Act (CEA) as bidding or offering with the intent to cancel the bid or offer before execution-in calendar spreads involving Natural Gas (NG) and Reformulated Blendstock for Oxygenate Blending Gasoline (RBOB) futures contracts on the Chicago Mercantile Exchange on multiple occasions from approximately April 2020 to July 2020.

The order requires Schwartz to pay a $100,000 civil monetary penalty and incur a four-month suspension from trading on or subject to the rules of any CFTC-designated exchange and all other CFTC-registered entities and in all commodity interests. Schwartz is also ordered to cease and desist from violating the CEA's spoofing prohibition.

https://www.justice.gov/usao-sdny/pr/three-members-miami-crew-charged-defrauding-banks-and-cryptocurrency-exchange-more-4
In an Indictment filed in the United States District Court for the Southern District of New York
https://www.justice.gov/usao-sdny/press-release/file/1528131/download, Esteban Cabrera Da Corte a/k/a Esteban Cabrera" a/k/ "Esteban Da Corte" a/k/a "Steban;" Luis Hernandez Gonzales a/k/a "Luis Hernandez," a/k/a "Luisito," and Asdrubal Ramirez Meza Hernandez were charged with conspiracy to commit wire fraud and bank fraud, wire fraud, and aggravated identity theft; additionally, Cabrera is charged with engaging in a monetary transaction in property derived from wire fraud and bank fraud. As alleged in part in the DOJ Release:

[F]rom at least in or about 2020 through at least in or about March 2020, CABRERA, HERNANDEZ, and RAMIREZ engaged in a scheme to deceive U.S. banks and a leading cryptocurrency exchange platform (the "Cryptocurrency Exchange") by purchasing more than $4 million in cryptocurrency and then falsely claiming that the cryptocurrency purchase transactions were unauthorized, deceiving the U.S. banks and the Cryptocurrency Exchange into reversing those transactions and redepositing the money into the bank accounts that the Defendants controlled.  The Defendants then withdrew the money from the bank accounts.

To effect this scheme, the Defendants opened accounts with the Cryptocurrency Exchange, frequently using photos of fake U.S. passports, fake drivers' licenses, and stolen personal identifying information.  The Cryptocurrency Exchange accounts were linked to bank accounts that the Defendants controlled.  The Defendants used money that had been deposited into the linked bank accounts, frequently through a series of cash deposits made using ATMs, to purchase cryptocurrency.  That cryptocurrency was then quickly transferred to other cryptocurrency wallets outside of the Cryptocurrency Exchange that were controlled by the Defendants and their co-conspirators.  After the cryptocurrency was transferred, the Defendants made telephone calls to the U.S. banks during which they falsely represented that the cryptocurrency purchases were unauthorized, leading the banks to reverse the transactions. 

The operation of this scheme by the Defendants resulted in U.S. banks processing more than $4 million in fraudulent reversals and the Cryptocurrency Exchange losing more than $3.5 million worth of cryptocurrency. 

California Man Charged With Using False Identities To Defraud Multiple Individuals And Large Corporate Entity (DOJ Release)
https://www.justice.gov/usao-sdny/pr/california-man-charged-using-false-identities-defraud-multiple-individuals-and-large-0
In a Complaint filed in the United States District Court for the Southern District of New York
https://www.justice.gov/usao-sdny/press-release/file/1528026/download Russell Dwayne Lewis  a/k/a "Clifford Ari Getz," a/k/a "Clifford Ari Getz Cohen," a/k/a "Ari Getz," a/k/a "Aryeh Getz," was charged with three counts of wire fraud and one count of aggravated identity theft.. As alleged in part in the DOJ Release:

Between 2016 and 2020, RUSSELL DWAYNE LEWIS engaged in a series of brazen schemes to misrepresent his identity, his wealth, and his professional and personal background in order to defraud multiple individuals and at least one corporate entity.  For years, LEWIS lived under assumed names, using the birth date of a real individual with the name of one of his aliases, and utilizing the social security number of yet another individual.  As opportunities arose, LEWIS told increasingly outrageous lies to individuals around him, including a close friend of many years, an individual who turned to him for his claimed expertise in astrology, and representatives of a major company he falsely purported to intend to purchase.

In one scheme, LEWIS befriended an individual ("Victim-1"), claiming to Victim-1 that he was a billionaire businessman.  As part of their increasingly close friendship, and believing that LEWIS was a successful businessman, Victim-1 solicited professional and investment advice from LEWIS.  In response, and with greater frequency over time, LEWIS solicited "investments" from Victim-1 in the tens and then hundreds of thousands of dollars.  Eventually, Victim-1 went to work for LEWIS, working to explore opportunities in business and finance to assist LEWIS in identifying investment opportunities.  LEWIS continued to ask Victim-1 for money, which was characterized as investments and/or loans, and which Victim-1 routinely provided.  LEWIS had Victim-1 seek out investment opportunities, only to repeatedly back out of prospective deals at the last moment, claiming difficulties in accessing his vast wealth.  By 2020, Victim-1 had transferred more than $3 million of loan and/or investment funds to LEWIS in less than three years, virtually none of which was ever paid back.

In addition to his purported business activities, LEWIS also separately charged some individuals for astrological readings and analyses.  One such individual was a widow with four children who met LEWIS in or about 2018 ("Victim-2").  Victim-2 continued to have contact with LEWIS in the coming years, including for astrological readings.  In 2020, over the course of several months, LEWIS defrauded Victim-2 out of approximately $555,000 by pressuring her into paying him money for a purported real estate investment opportunity.  In truth, there was no such investment opportunity, and LEWIS spent Victim-2's money on personal expenses, including office supplies that facilitated and promoted LEWIS's other schemes.  Victim-2 received back virtually none of her "investment."

Finally, in August and September 2020, LEWIS fraudulently attempted to acquire a corporate entity in bankruptcy proceedings ("Corporation-1").  LEWIS made a purported all‑cash offer to purchase Corporation-1 for $290 million, which resulted in weeks of due diligence processes, legal discussions, and negotiations-including through which Getz and others had access to certain of Corporation-1's internal business records and materials.  Corporation-1 and its representatives dedicated significant time and resources to the purported offer, based on the false premise that LEWIS intended to, and could, pay hundreds of millions of dollars for Corporation‑1.  In fact, LEWIS had no intention or ability to purchase Corportion-1, and ultimately he backed out of the deal.

https://www.justice.gov/usao-sdny/pr/california-executive-compensation-consultant-pleads-guilty-securities-fraud-committing
Frank Glassner pled guilty to one count of securities in an Information filed in the United States District Court for the Southern District of New York. As alleged in part in the DOJ Release:

Between July 2021 and September 2021, Kadmon, which, prior to its acquisition by Sanofi, was a publicly-traded biopharmaceutical company traded under the ticker symbol "KDMN" on the NASDAQ, engaged GLASSNER and the Consulting Firm to provide executive compensation consulting services related to a potential acquisition.  In connection with this engagement, GLASSNER had access to material, non-public information, which he misappropriated and, in violation of the duties that he owed to Kadmon, used to trade Kadmon stock and call options between on or about August 3, 2021, and on or about August 23, 2021.  On September 8, 2021, Kadmon publicly announced that it had agreed to be acquired by Sanofi for a per-share price significantly above the share price at which Kadmon was trading.  That day, Kadmon's share price increased by approximately 71% and GLASSNER ultimately profited $368,000 on the Kadmon stock and call options he had previously purchased. 

As part of his plea agreement, GLASSNER has agreed to forfeit $368,000. 

https://www.justice.gov/usao-mdfl/pr/cape-coral-woman-sentenced-more-two-and-half-years-prison-committing-fraud-targeting
Nicole Sprague, 38, pled guilty to mail fraud and conspiracy to commit mail fraud in the United States District Court for the Middle District of Florida, and she was sentenced to two years and nine months in prison, and ordered to pay $297,000 in restitution and to forfeit $250,000. As alleged in part in the DOJ Release:

[S]prague participated in a tech support scam that operated from approximately January 2018 through April 2019, which defrauded numerous elderly victims. The conspirators, some of whom were located overseas, falsely represented themselves to be online computer tech support personnel to obtain money from elderly victims who believed that they were paying for necessary computer repairs or installing computer security software.  After the victim agreed to make payment to the telemarketer for purported tech support, access to the victim's computer occurred while the victim believed that a legitimate service had been received. While conspirators were remotely connected to each victim's computer, the conspirators were able to access each victim's personal information, including access to the victim's financial accounts. 

Subsequently, the conspirators contacted each victim to offer purported refunds to the victims for the purchase of the original service. The telemarketers instructed each victim to allow remote access to the computer and then instructed the victim to log into their online banking platform to allow for a direct deposit of the refund. Upon having access to the victim's computer, the telemarketer falsely represented that a deposit had been made into the victim's account and would purport to accidentally deposit large amounts of money into the victim's account.  Conspirators then instructed the victims to return the false overpayment in the form of cash or cashier's checks via U.S. mail and other parcel delivery services to Sprague. 

During her participation in the scheme, Sprague opened various bank accounts in which she was the sole signor on each account. She also opened several post office boxes at authorized depositories in Cape Coral. Sprague routinely deposited the victims' funds into her bank accounts before she disbursed and transferred the proceeds to other members of the conspiracy. Sprague often initiated international wire transfers, that had been funded with victims' funds, to her co-conspirators. She retained a portion of the fraud proceeds to use for her own personal benefit. Sprague received at least $250,000 in proceeds from the fraud.

After the victims conducted cash withdrawals or purchased cashier's checks as form of repayment to the purported technology support company and mailed the money to Sprague, the victims discovered that the refund and purported overpayment were false. During the remote access, the telemarketer often transferred monies from the victim's savings account or line of credit to the victim's checking account to give the fraudulent appearance that the victim's checking account was credited for the refund and purported overpayment.

https://www.finra.org/sites/default/files/fda_documents/2018060177801
%20Kovack%20Securities%20Inc.%20CRD%2044848%20AWC%20gg.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Kovack Securities In. submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Kovack Securities In. has been a FINRA member firm since 1998 with 380 registered representatives at 230 branches.. In accordance with the terms of the AWC, FINRA imposed upon Kovack Securities In. a Censure, $210,000 fine, and an undertaking to certify the establishment/implementation of supervisory systems/procedures addressing the AWC. The AWC alleges in part that:

In 2015, former registered representative MK joined KSI. His Uniform Termination Notice for Securities Industry Registration (Form US) filed by a firm with which he was associated before KSI stated that he had been terminated earlier in 2015 for "accepting blank, signed forms from customers in violation of firm policy, short term trading in mutual funds and other customer account trading activity under firm review."2

From March 2015 to May 2017, while registered with KSI, MK engaged in a pattern of short-term trading of A share mutual funds in eleven accounts of eight customers, including five seniors. 3 MK bought and sold A share mutual funds in those accounts, using the proceeds from the sales to purchase one or more equities, and then selling the equities after a few months to repurchase A share mutual funds. In total, MK recommended over $2.1 million in A share mutual fund purchases to the eight Kovack customers after previously recommending sales to the same customers in the prior year. This activity caused the customers to incur unnecessary sales charges. During the instant investigation, KSI voluntarily made restitution to the affected customers. 

KSI's supervisory system was not reasonably designed to address short-term trading of A share mutual funds in brokerage accounts. KSI relied primarily on one person to conduct daily, manual reviews of trading activity in the accounts for all its registered representatives, which at the time numbered over 300. Such daily reviews were not reasonably designed to identify short-term mutual fund switches, which had purchases and sales months apart. KSI did not provide the trade reviewer with support staff to assist with manual trade reviews, or automated exception reports that could assist with a review for mutual fund switches.4 

KSI also did not respond reasonably to red flags of unsuitable mutual fund trading in MK's customers' accounts. First, MK's Form US from his prior firm-which indicated that he had been terminated while under review for short term mutual fund trading-was a red flag that MK represented heightened risk for unsuitable mutual fund switching. However, the firm did not impose any heightened supervision of MK or the trading activity in MK's customers' accounts. In addition, in November 2016, the trade reviewer identified a short-term trade of A share mutual funds in a senior customer's account serviced by MK. The firm cancelled the trade, but it did not review MK's trading activity or take additional action to address the issue. As a result, additional unsuitable switches by MK occurred after November 2016. 

Therefore, Respondent violated FINRA Rules 3110 and 2010.
= = = = =
Footnote 2: MK was barred by FINRA in 2017 for his failure to cooperate in its investigation. 

Footnote 3: KSI customers could purchase mutual funds through their brokerage accounts or directly from the fund companies. The trading at issue herein involved purchases through brokerage accounts. 

Footnote 4: Although the trade reviewer did on occasion conduct a manual retrospective review to identify potential switches, his lookback period was only 30 days until mid-2016, when it was changed to 90 days and later to a longer period of time. Even after mid-2016, the firm's retrospective review was not reasonably designed to identify the switches in MK's customers' accounts, because of the trade reviewer's lack of resources, as noted above.

Bill Singer's Comment: 

Not noted in the FINRA AWC is that from September 2015 through August 2021, Kovack Financial Companies Chief Executive Officer/Co-founder Brian Kovack, Esq sat on FINRA's Board of Governors. https://www.finra.org/about/governance/finra-board-governors/brian-kovack 

Given that the FINRA AWC cites 
  • misconduct from March 2015 to May 2017; and 
  • Kovack's FINRA Board of Governors tenure overlapped those years; and 
  • it is only in 2022 that FINRA finally published the regulatory settlement and imposed its sanctions, 
one would think that, at a minimum, the self-regulatory-organization would feel compelled to  reference Brian Kovack's Board role during the relevant times covered in the AWC. Such a reference would only be made to acknowledge the potential conflict and to set forth the steps taken by FINRA to ensure the integrity of its investigation and ensuing settlement. 

I have raised this same concern when FINRA settlements involve FINRA Large Member Firms and reiterate the issue in order to prompt FINRA to pursue more transparency; see"FINRA Censures And Fines Securities America Over Outsourced Onboarding" (BrokeAndBroker.com Blog /  March 2, 2021)
https://www.brokeandbroker.com/5714/finra-securities-america/

Clearly, I think it a "Better Practice" for all FINRA settlements to disclose when alleged misconduct occurred at a member firm during times when an employee/agent/officer of said member firm sat on FINRA's Board or its various committees. Moreover, if and when necessary, FINRA should preclude for appropriate periods of time further service from representatives of such member firms if the cited misconduct rises to a level where such a sanction would be appropriate in the public's and the industry's interest. 

https://www.brokeandbroker.com/6624/finra-ameriprise-silverman-eccelston/
Today's blog considers a Respondent who contested repayment of a promissory note to a former employer. When that contest went down in flames, the Respondent argued that his former arbitration lawyer was negligent in allegedly failing to tell him that the note-holder's lawyer said that the proposed defense against repayment of the note had a low rate of success. Okay, sure, you could argue that and the losing party did. Read today's blog to see how the legal malpractice claims fared.