Securities Industry Commentator by Bill Singer Esq

January 6, 2023



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Those getting sued tend to anticipate that initial demands for damages will be bloated, padded, and a tad over the top. Which may also explain why defense counsel often respond to the first-round of damages demands with eye-rolling and laughter. After that initial reaction, savvy defense counsel may resort to the tactic of "pay to play," and force an adversary to invest time and energy into preparing for trial before a last-minute settlement offer is made in the hallway. As Dr. Evil realized, one million bucks ain't what it used to be. Which brings us to the question of what's a demand for ten million dollars in damages worth in a FINRA arbitration case? $100 billion dollars? $1? Somewhere in between?
In the United States District Court for the Southern District of New York, Indictments were filed 
charging Ramon Perez with one count of conspiracy to commit wire fraud, one count of wire fraud, and one count of conspiracy to commit money laundering; and Nestor Nunez a/k/a "Salvador Molina: with one count of conspiracy to commit wire fraud and one count of wire fraud. Previously, criminal charges were filed against Francisley Da Silva, Juan Tacuri, and Antonia Perez Hernandez. As alleged in part in the DOJ Release:

PEREZ defrauded Forcount's victim-investors ("Victims") and then sought to conceal his fraud by laundering Victim funds through shell companies and by making large personal expenditures, including on real estate.  

In or about 2018, at the direction of SILVA, NUÑEZ began presenting himself as Forcount's CEO under the alias "Salvador Molina."  In reality, NUÑEZ was an actor paid by SILVA to promote Forcount.
In the United States District Court for the Central District of California, Lana Pothos, 59, pled guilty to one count of bank fraud. Alleged co-schemer Theron Fox is charged with five counts of bank fraud and two counts of aggravated identity theft. As alleged in part in the DOJ Release:

During the summer of 2020, Pothos - who worked as a relationship manager at a Bank of America branch in Yorba Linda - and an accomplice worked together to steal the savings of approximately $1.2 million from two married senior citizen clients who shared an account with the bank.

In June 2020, Pothos used one victim's personal identifiable information to create an online banking profile for the victim without the victim's knowledge or permission. Using Bank of America's internal computer system, Pothos then changed the victims' mailing address to a hair salon in Yorba Linda that Pothos frequented and also changed their telephone number to a phone number she used. Using that phone number, Pothos called the bank several times while impersonating one of the victims. In July 2020, Pothos' co-schemer opened a new bank account and email address in one victim's name.

On seven occasions from July 2020 to October 2020, approximately $1,212,144 was transferred out of the victims' bank account into the fraudulently opened account Pothos and her accomplice controlled, then transferred again to an account used by the co-schemer at a different bank. The stolen money was then used for personal expenses, including $47,000 that was transferred to a Pothos-controlled entity.
In the United States District Court for the Southern District of New York, Filippo Bernardini pled guilty to one count of wire fraud and agreed to pay $88,000 restitutuion. As alleged in part in the DOJ Release:

Beginning in at least August 2016 and continuing through his January 2022 arrest, BERNARDINI, who was based in London and worked in the publishing industry, impersonated agents, editors, and other individuals involved in publishing to fraudulently obtain prepublication manuscripts.  In carrying out this scheme, BERNARDINI created fake email accounts that were designed to impersonate real people employed in the publishing industry, including literary talent agencies, publishing houses, literary scouts, and others.  BERNARDINI created these accounts by registering more than 160 internet domains that were crafted to be confusingly similar to the real entities that they were impersonating, including only minor typographical errors that would be difficult for the average recipient to identify during a cursory review.  Over the course of this scheme, BERNARDINI impersonated hundreds of distinct people and engaged in hundreds of unique efforts to fraudulently obtain electronic copies of manuscripts that he was not entitled to.  BERNARDINI obtained more than a thousand manuscripts through fraud.

In addition, BERNARDINI engaged in a phishing scheme to surreptitiously gain access to a database maintained by a New York City-based literary scouting company ("Scouting Company-1").  BERNARDINI created a webpage that impersonated Scouting Company-1's website.  Then, in or about July 2020, BERNARDINI impersonated a Scouting Company-1 employee and emailed two individuals, directing them to BERNARDINI's look-alike webpage and prompting the users to provide their usernames and passwords.  BERNARDINI's webpage was programmed to automatically forward the input usernames and passwords to an email account controlled by BERNARDINI.  BERNARDINI obtained the login information of approximately 20 users.
In the United States District Court for the Southern District of New York, Jennifer Shah, 49, pled guilty to one count of conspiracy to commit wire fraud in connection with telemarketing; and she was sentenced to five years of supervised release; ordered to forfeit $6,500,000, 30 luxury items, and 78 counterfeit luxury items; and to pay $6,645,251 in restitution. As alleged in part in the DOJ Release:

From at least 2012 until her arrest in March 2021, SHAH was an integral leader of a wide-ranging, nationwide telemarketing fraud scheme that victimized thousands of innocent people.  The scheme principally involved selling those victims so-called "business services" in connection with the victims' purported online businesses (the "Business Opportunity Scheme").  In particular, SHAH knowingly and intentionally facilitated the sale of "leads" - contact information for potential victims who had been identified as susceptible to the scheme's lies - to sales floors that were perpetrating the Business Opportunity Scheme and, during the latter portion of her participation in the scheme, owned and operated one of the sales floors that was part of the scheme.

Many of SHAH's victims were elderly or vulnerable.  Many of those people suffered significant financial hardship and damage.  At SHAH's direction, victims were defrauded over and over again until they had nothing left.  She and her co-conspirators persisted in their conduct until the victims' bank accounts were empty, their credit cards were at their limits, and there was nothing more to take.

SHAH was not deterred by the Federal Trade Commission's investigations or enforcement actions, nor by learning that dozens of her co-conspirators had been arrested by federal law enforcement, pled guilty for their roles in the scheme, and that two were convicted at trial.  SHAH was not ignorant of these developments: she took a series of increasingly extravagant steps to conceal her criminal conduct from the authorities.  She directed others to lie, she put businesses and bank accounts in the name of others, she required payment in cash, she instructed others to delete text messages and electronic documents, she moved some of her operations overseas, and she tried to put computers and other evidence beyond the reach of investigators.  These efforts were not short-lived or narrow in scope.  She engaged in a yearslong, comprehensive effort to hide her continued role in the scheme.
In the United States District Court for the Southern District of Illinois, Jaykumar Patel, 33, pled guilty to his role in a bank fraud conspiracy, and he was sentenced to 72 months in prison and ordered to pay a $25,000 fine.  As alleged in part in the DOJ Release:

In June 2021, the Alton, Illinois Police Department filed a report when a resident received a phone call from an individual who claimed to be a member of law enforcement warning her that her identity had been stolen. The caller demanded the victim to send $29,000 to an address in Florida so he could help rectify the situation. The story was false: the victim's identity had not been stolen, the caller was not law enforcement, and no legitimate law enforcement officer would ever demand money from a victim. But the victim didn't know that, so she sent the money. A few days later, Patel turned up to pick up the package in Florida and was arrested.

Further investigation showed the fraud on the Alton victim was a small part of the criminal scheme. There were several other victims across the United States who were bullied and frightened out of their hard-earned money. In just a few weeks in 2021, Mr. Patel picked up or intended to pick up packages sent by victims containing more than $481,000.

Individuals should use caution when speaking with strangers on the phone, especially if a caller is asking the person to send money. Legitimate law enforcement will never try to blackmail victims or request residents to send cash by mail. Talk to a family member or someone who can help if something doesn't sound quite right. There are resources available:

National Elder Fraud Hotline: 833-FRAUD-11. The Department of Justice maintains a National Elder Fraud Hotline. Staffed by experienced case managers who provide personalized support to callers, the hotline serves to assist elders and caretakers who believe they have been a victim of fraud by reporting and providing appropriate services.

Money Mule Initiative. In October 2018, the Department and law enforcement partners began a concentrated effort across the country and around the world to disrupt, investigate, and prosecute money mule activity used to facilitate fraud schemes, especially those victimizing senior citizens. Money mules are individuals used to move criminal proceeds around on behalf of other criminal actors, and money mules may be knowing or unknowing. Efforts by law enforcement disrupt hundreds of money mule operations every year.
In the United States District Court for the District of New Jersey, Mark Marchi, 55, pled guilty to an Information charging him with one count of securities fraud; and he was sentenced to 33 months in prison plus three years of supervised release, and ordered to pay restitution of $2.87 million. As alleged in part in the DOJ Release:

Marchi, who was previously barred from the securities industry, purported to provide investment adviser services to clients. Beginning in December 2015, he managed and controlled Precipio Capital LLC, after previously managing and controlling a different investment company called Global Alliance Capital, LLC. Through Global Alliance, Marchi solicited investments from multiple investors, and when he ceased operating Global Alliance, Marchi represented to those investors that he rolled over their accounts into Precipio. Marchi also solicited investors to invest directly into Precipio. 

Instead of using the funds on legitimate investments, Marchi diverted approximately $2.8 million of those funds from victim investors for other purposes, including paying back previous Global Alliance investors and his own use. Marchi made repeated misrepresentations to the victim investors, which included false claims about the status and performance of investments and false assurances to victims that their investments were profitable. Marchi also provided victims with falsified records, including trading records, performance reports, and K-1s.
In the United States District Court for the District of Columbia,  Gry James Harmon, 31, pled to wire fraud and obstruction of justice. As alleged in part in the DOJ Release:

[I]n February 2020, the defendant's brother, Larry Harmon, was arrested for his operation of Helix, a darknet-based cryptocurrency money laundering service, known as a "mixer" or "tumbler." As Harmon later admitted, Helix laundered over 350,000 bitcoin - valued at over $300 million at the time of the transactions - on behalf of customers, with the largest volume coming from Darknet markets.  As part of the arrest, law enforcement seized various assets, including a cryptocurrency storage device containing Larry Harmon's illegal proceeds generated through the operation of Helix, which were subject to forfeiture in the criminal case.  However, law enforcement was initially unable to recover bitcoin stored on the device due to the device's additional security features. 

Knowing that the government was seeking to recover the bitcoin stored on the seized device for forfeiture in Larry Harmon's criminal case, Gary Harmon used his brother's credentials to recreate the bitcoin wallets stored on the device and covertly transfer more than 712 bitcoin, valued at approximately $4.8 million at the time, to his own wallets - stealing those funds and obstructing the pending criminal forfeiture proceeding.  Gary Harmon further laundered the proceeds through two online bitcoin mixer services before using the laundered bitcoins to finance large purchases and other expenditures. 

In August 2021, Larry Harmon pled guilty to money laundering conspiracy in connection with his case.

As part of his plea today, Gary Harmon also agreed to the forfeiture of cryptocurrencies and other properties derived from the fraudulently taken proceeds, including more than 647.41 Bitcoin (BTC), 2.14 Ethereum (ETH), and 17,404,400.64 Dogecoin (DOGE).  Due to the increase in market prices, the total value of these forfeitable properties exceeds $12 million. 

In the United States District Court for the Southern District of New York, the SEC filed a Complaint charging five Defendants with fraud As alleged in part in the SEC Release:

[F]rom at least March 2018 through June 2019, Andrew DeFrancesco, the chairman of Cool Holdings' board, devised and implemented the scheme with Marlio Mauricio Diaz Cardona, Cool Holdings' chief executive officer; Carlos Felipe Rezk, Cool Holdings' chief marketing officer; and Nikola Faukovic, one of DeFrancesco's employees. According to the complaint, DeFrancesco, Diaz, and Rezk made false statements and omitted material information in Cool Holdings' filings with the Commission, including about a critical business relationship, in order to mask Cool Holdings' perilous financial condition and future prospects. The complaint further alleges that DeFrancesco, Diaz and Rezk arranged for the publication of a series of fraudulent promotional articles about Cool Holdings that DeFrancesco secretly funded. In addition, according to the complaint, with Faukovic's assistance, DeFrancesco secretly sold hundreds of thousands of Cool Holdings shares, which he held in the name of nominee entities, and ultimately sold over 1.6 million shares for proceeds of more than $8 million. Further, as alleged in the complaint, DeFrancesco, aided by Faukovic and his ex-wife Catherine DeFrancesco, also concealed his ownership of Cool Holdings shares, including by filing false beneficial ownership reports with the SEC.

The SEC's complaint charges Andrew DeFrancesco with violating the antifraud provisions of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, the registration provisions of Sections 5(a) and (c) of the Securities Act, and the beneficial ownership disclosure provisions of Sections 13(d) and 16(a) of the Exchange Act and Rules 13d-1(a) and 16a-3 thereunder. The complaint also charges Diaz and Rezk with violating certain of the antifraud provisions, and, in the alternative, aiding and abetting certain of DeFrancesco's violations; charges Faukovic with aiding and abetting certain of DeFrancesco's violations; and Catherine DeFrancesco with violating beneficial ownership disclosure provisions of Section 13(d) of the Exchange Act and Rule 13d-1(a) thereunder. The complaint seeks injunctive relief and civil penalties against all defendants, disgorgement and prejudgment interest thereon from Andrew DeFrancesco, Diaz, Rezk, and Faukovic, and officer-and-director bars against Andrew DeFrancesco, Diaz, and Rezk.
In the United States District Court for the District of Coloroado, the SEC filed a Complaint charging Reven Holdings, Inc., Peter B. Lange, Michael A. Volk, and Brian D. Denomme with violating the antifraud provisions of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. As alleged in part in the SEC Release:

[S]ince approximately January 2019, Reven, which does business as Reven Pharmaceuticals, raised at least $44 million from approximately 175 investors, purportedly to develop a drug called Rejuveinix. The complaint alleges that Lange, Volk, and Denomme collectively misappropriated at least $8.8 million by using investor funds to pay for personal expenses such as real estate, mortgage payments, personal credit card payments, expensive jewelry, personal travel, and high-end cars. The complaint alleges that Lange, Volk, and Denomme took investor money through a variety of means, including by funneling those funds through a shell company that they controlled.

Order Determining Whistleblower Award Claims ('34 Act Release No. 34-96604; Whistleblower Award Proc. File No. 2023-22)
The SEC's Claims Review Staff ("CRS") issued a Preliminary Determination recommending a Whistleblower Award of about $5 million to Claimant. The Commission ordered that CRS's recommendations be approved. The Order asserts in part that [Ed: footnotes omitted]:

Claimant's information was important in that it caused staff to promptly open its
investigation, and Claimant's allegations are closely aligned with the Commission's charges against the Company. Claimant also provided some additional assistance in the course of an in-person meeting and two phone calls. On the other hand, by the time Claimant first contacted the Commission, Enforcement staff was investigating REDACTED and already possessed evidence that the Company REDACTED in connection with the Transaction, which it only disclosed when asked directly.

. . .

First, we note that Claimant's motivation is not an award criterion, so we need not make a specific finding on this issue. Second, Claimant's assertion that Claimant had done nothing wrong is also not related to any award criterion, so we decline to make any findings on that issue. 

Regardless of Claimant's motivation for submitting the tip when he/she did, we find that Claimant substantially and unreasonably delayed in reporting Claimant's information by waiting approximately four years to provide information to the Commission and doing so only after Claimant received a subpoena from the SEC related to Claimant's own misconduct.  We further find that a ***% award will adequately acknowledge Claimant's involvement with, and contributions to, the Covered Action, while taking into account his/her substantial delay in reporting.
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, Scott P. Smith submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Scott P. Smith was first registered in 2002 with Edward Jones. In accordance with the terms of the AWC, FINRA imposed upon Smith a $10,000 fine and a 12-month suspension from association with any FINRA member in all capacities. As alleged in part in the AWC: 

Between December 2009 and August 2017, Smith borrowed $78,000 from an elderly customer (Customer A) through five separate loans. None of these loans met any of the conditions set forth in the firm's WSPs or complied with any of the conditions set forth in FINRA Rule 3240 or predecessor NASD Rule 2370. Customer A, who was one of Smith's retail customers at Edward Jones, was not Smith's immediate family member nor was she in the business of lending money. The amounts of the loans ranged from $3,000 to $40,000, and Smith used the funds to pay for personal expenses. No payment terms were discussed or memorialized for any of these loans, nor did Smith provide any promissory notes for these loans. In 2020, after receiving a complaint from the estate of Customer A, Smith repaid each of the five loans. 

Smith did not provide notice (written or otherwise) to Edward Jones about any of the loans. On the contrary, he concealed the loans from Edward Jones by instructing Customer A to wire the proceeds for certain of the loans from one of her Edward Jones accounts to her personal checking account, which she held outside of Edward Jones, and then to write a check payable to a member of Smith's immediate family. On one occasion Smith instructed Customer A to wire money directly from her Edward Jones account to Smith's mother-in-law-again to evade detection by Edward Jones. Moreover, on three compliance attestations, Smith falsely attested that he had not received a loan from any Edward Jones client. 

Therefore, Smith violated NASD Rule 2370 and FINRA Rules 3240 and 2010. 

. . .

In 2019, following the death of Customer A, Customer A's daughter discovered that Customer A had made loans to Smith, and Customer A's estate demanded that Smith provide a full accounting of all loans outstanding. In February 2020, in response to that demand, Smith sent an attorney representing the estate a check for $40,000, which the estate accepted. Smith did not notify Edward Jones, his employing firm at the time, that Customer A's estate had complained that he had borrowed money from Customer A or that that he had paid money to Customer A's estate to settle the complaint. 

In June 2020, after Smith had left Edward Jones and while he was registered with FINRA through an association with J.W Cole, Smith offered Customer A's estate a second check for $25,000, which the estate accepted. This check was also in response to the estate's demand for a full accounting of the loans Smith took from Customer A. Before making the June 2020 payment of $25,000, Smith did not notify Edward Jones or J.W Cole of the complaint by Customer A's estate, nor did he seek or receive authorization from either firm to resolve the complaint. 

Therefore, Smith violated FINRA Rule 2010.

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As set forth in the "Overview' of the proposed FTC's "Non-Compete Clause Rulemaking":

About one in five American workers-approximately 30 million people-are bound by a non-compete clause and are thus restricted from pursuing better employment opportunities. A non-compete clause is a contractual term between an employer and a worker that blocks the worker from working for a competing employer, or starting a competing business, typically within a certain geographic area and period of time after the worker's employment ends. Because non-compete clauses prevent workers from leaving jobs and decrease competition for workers, they lower wages for both workers who are subject to them as well as workers who are not. Non-compete clauses also prevent new businesses from forming, stifling entrepreneurship, and prevent novel innovation which would otherwise occur when workers are able to broadly share their ideas.  The Federal Trade Commission proposes preventing employers from entering into non-compete clauses with workers and requiring employers to rescind existing non-compete clauses. The Commission estimates that the proposed rule would increase American workers' earnings between $250 billion and $296 billion per year. The Commission is asking for the public's opinion on its proposal to declare that non-compete clauses are an unfair method of competition, and on the possible alternatives to this rule that the Commission has proposed.
In the United States District Court for the District of Nevada, Robert Cortez Marshall, 43, pled guilty to wire fraud, and he was sentenced to 34 months in prison plus two years of supervised release. As alleged in part in the DOJ Release, Marshall:

operated a Ponzi scheme between January 2014 and April 2015 by fraudulently soliciting over $5 million for his business R.B.J. Generational Wealth Management LLC d/b/a Adz on Wheelz from more than 200 unwitting investors. He devised a scheme to defraud victims by falsely claiming that: (1) Adz on Wheelz owned and operated a fleet of luxury vehicles that could be customized for digital advertising; (2) Adz on Wheelz had already received millions of dollars in contracts from advertisers; (3) investors would receive a guaranteed weekly royalty payment; and (4) investors could cancel at any time or receive a refund of their investment.

In reality, Marshall would use money solicited from new investors to make the "royalty payments" owed to prior investors. He also transferred investor funds to other accounts under his control and used investor money for his own personal expenses. Through this scheme, investors lost approximately $3.5 million.
In the United States District Court for the Eastern District of New York, a Complaint was filed charging Aurelian Michel with fraud . As alleged in part in the DOJ Release:

[M]utant Ape Planet NFTs were a digital asset stored on the Ethereum blockchain.  As an NFT, each Mutant Ape Planet NFT was unique, freely transferrable, and gave purchasers exclusive ownership over each NFT.  The NFTs were marketed with promises of exclusive benefits potential purchasers would receive.  Those benefits included exclusive opportunities for additional investments, giveaways, merchandise, and other rewards.  However, after sending their cryptocurrency and obtaining the NFT, purchasers received nothing while their cryptocurrency was diverted from the Mutant Ape Planet NFT project to cryptocurrency wallets controlled by the defendant Aurelien Michel.  In total, more than $2.9 million in purchasers' cryptocurrency was diverted as part of the Michel's scheme. 

As alleged, in a social media chat with current and prospective purchasers, Michel admitted to the fraudulent "rug pull," but blamed the community of NFT purchasers for his actions, stating, "We never intended to rug but the community went way too toxic."
Without admitting or denying the findings in an SEC Order, former BlackRock Advisors, LLC portfolio manager Randy Robertson agreed to a cease-and-desist order, a Censure, and a $250,000 penalty. As alleged in part in the SEC Release:

[F]rom 2015 to 2019, BlackRock Multi-Sector Income Trust (BIT), a closed end publicly traded fund, invested in Aviron Group, LLC subsidiaries by loaning the subsidiaries, which were in the business of funding advertising budgets of motion pictures, as much as $75 million. Robertson, a co-portfolio manager of BIT, had a significant role recommending and overseeing BIT's loans to the Aviron subsidiaries. At the same time, Robertson asked Aviron to help advance his daughter's acting career. Aviron helped Robertson's daughter obtain a small role in a film produced in 2018. Robertson did not disclose to BIT's board of trustees or BlackRock's compliance and legal teams that he asked Aviron to help advance his daughter's acting career or that Aviron helped his daughter obtain a film role.
1. Between 2018 and at least June 2022, Defendant Alex Mashinsky ("Mashinsky" or "Defendant") engaged in a scheme to defraud hundreds of thousands of investors, including more than 26,000 New Yorkers, by using false and misleading representations to induce them to deposit billions of dollars in digital assets with his cryptocurrency lending company Celsius Network LLC (together with its parent and related entities, "Celsius"), which he founded and led as chief executive officer. Mashinsky promoted Celsius as a safe alternative to banks while concealing that Celsius was actually engaged in risky investment strategies.

2. Mashinsky was the public face of Celsius. In hundreds of interviews, blog posts, and livestreams, Mashinsky promised investors high yield with minimal risk, assuring them that their digital assets would be as safe as money in a bank and that Celsius would always act in investors' best interest. Touting himself and his company as a modern-day Robin Hood, Mashinsky boasted that Celsius "deliver[s] yield . . . to the people who would never be able to do it themselves, [and] we take it from the rich. . .." Mashinsky promised investors some of the highest yields in the industry, as high as 17%. He told investors that Celsius would generate sustainably high returns by making low-risk collateralized loans to first-tier institutions and cryptocurrency exchanges as well as overcollateralized loans to retail borrowers.

3. These promises were false - but proved wildly popular. By early 2022, Mashinsky's promotional efforts had helped Celsius amass $20 billion in digital assets from investors all over the world. But as Celsius grew larger, it struggled to generate enough revenue to pay the promised yields on investors' deposits. In search of revenue, Celsius moved into significantly riskier investments, extending hundreds of millions of dollars in uncollateralized loans, and investing hundreds of millions of dollars in unregulated decentralized finance platforms. 

4. When Celsius suffered losses on risky investments, Mashinsky failed to disclose these losses to investors. Instead, he continued to promise and pay high yields to attract new deposits and to tell investors to keep their cryptocurrency with Celsius which, he continued to promise, would invest it safely and pay better returns than the banks. In one video Mashinsky claimed that: "All you need to do to become a millionaire… is to HODL," using a popular industry term that originated as a misspelling of the word "hold" and has come to mean "hold on for dear life." The term is often used to discourage investors from selling (or, in the case of Celsius, withdrawing their cryptocurrency from the platform) during market declines or volatility. 

5. But as cryptocurrency markets plummeted in the spring of 2022, Celsius's unsustainable business model began to unravel. By May 2022, Celsius's liabilities exceeded its diminishing assets by hundreds of millions of dollars, and investor withdrawals were accelerating. Rather than disclose Celsius's dire situation, Mashinsky doubled down. He repeatedly and falsely assured investors that Celsius was stronger than ever, that investor assets were safe at Celsius, and that Celsius had billions of dollars in liquidity to cover anyone who wanted to withdraw their assets. In late May 2022, Mashinsky was still actively recruiting new investors, urging them to disregard all criticism of Celsius from "naysayers and haters," to "ignore the FUD" (a popular crypto term that stands for fear, uncertainty, and doubt), and continued to encourage existing investors to HODL. 

6. On June 12, 2022, Celsius froze customer withdrawals. A month later, on July 13, 2022, Celsius filed for bankruptcy, revealing that its liabilities exceeded its assets by more than one billion dollars.

7. The collapse of Celsius left many individuals in a state of desperation and financial ruin, which they described in letters to the bankruptcy court and the OAG. One New York resident mortgaged two properties to invest with Celsius. A father of three lost his life savings of more than $375,000. A disabled veteran lost his investment of $36,000, which had taken him nearly a decade to save up. Another disabled citizen, who depended upon government assistance to supplement his $8 per hour income, lost his entire investment and was left feeling "humiliated and defeated."
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, UBS Securities LLC submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that UBS Securities LLC has been a FINRA member firm since 1978 with about 1,900 registered representatives at about 35 branches. In accordance with the terms of the AWC, FINRA imposed upon UBS Securities LLC a Censure and a $3,750,000 fine. As alleged in part in the "Overview" portion of the AWC:

From January 2010 through September 2021, UBS failed to report and inaccurately reported OTC options positions to the LOPR in at least 7.1 million instances in violation of FINRA Rules 2360(b)(5) and 2010. In addition, from January 2010 through June 2018, UBS established certain options positions that exceeded applicable OTC position limits in violation of FINRA Rules 2360(b)(3) and 2010. Lastly, from November 2013 through November 2022, UBS failed to establish and maintain a supervisory system, including written procedures, reasonably designed to achieve compliance with FINRA Rule 2360(b)(5) in violation of NASD Rule 3010 and FINRA Rules 3110 and 2010.
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, Sequence Financial Specialists LLC submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Sequence Financial Specialists LLC has been a FINRA member firm since 2005 with about 20 registered representatives at five branches. In accordance with the terms of the AWC, FINRA imposed upon Sequence Financial Specialists LLC a Censure and a $17,500 fine. As alleged in part in the AWC:

The contingency offering at issue here commenced on August 17, 2020 and required that the issuer raise a minimum of $10,766,000 by December 1, 2020. The private placement memorandum (PPM) further stated that the offering termination date could be extended up to December 15, 2020. On December 1, 2020, when the minimum contingency had not been met, a supplement to the PPM was issued extending the offering termination date to December 28, 2020. By December 28, 2020, the minimum contingency had still not been met and an additional supplement was issued extending the offering termination date to December 30, 2020. Sequence Financial did not send written reconfirmation offers to the investors disclosing either of the offering period extensions prior to the December 15, 2020 offering termination date. As a result, Sequence Financial did not obtain confirmation in writing from any customers of a decision to continue their investments and their funds were not returned to them. The minimum contingency amount for the offering was met by the December 30, 2020 extended deadline and the offering closed. 

Through this conduct, Respondent willfully violated Exchange Act Rule 10b-9 and thereby violated FINRA Rule 2010. 
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Federal Court Says Customer Had Duty To Notify Schwab of Malfunctioning Order System ( Blog)
The Wall Street of 2023 isn't the Wall Street of 2020 or 2021. The meme stock frenzy has passed. We're not talking as much about Robinhood and Reddit, or how social media and Covid are fueling a trading mania. Looking back to those frenetic days, in the rush to cut commissions, expand online trading, and cater to those eager to "play" the stock market, brokerage firms were frequently overwhelmed by surges in volume or computer outages. Unfortunately, Wall Street expanded to a point where its operational capacity didn't keep pace -- and the industry's regulators failed to keep up. In a recent lawsuit against Schwab, a customer raises many of these issues on a stroll down a not-too-distant memory lane.

Superintendent Adrienne A. Harris Announces $100 Million Settlement with Coinbase, Inc. after DFS Investigation Finds Significant Failings in the Company's Compliance Program / DFS Investigation Found Wide-Ranging and Long-Standing Failures in Coinbase, Inc.'s Anti-Money Laundering Program, Including with Regard to its Know Your Customer/Customer Due Diligence, Transaction Monitoring, and Suspicious Activity Reporting Systems, Among Others / Settlement Requires Coinbase to Pay $50 Million Penalty and to Invest an Additional $50 Million in its Compliance Program  (NYS Department of Financial Services Release)
The headline sort of says it all. Click on it and read the NYSDFS Release.

Arizona man arraigned in the District of New Mexico on mail and wire fraud indictment (DOJ Release)
In the United States District Court for the District of New Mexico, a  27-count Indictment was filed charging John Lopez with 16 counts of wire fraud and 11 counts of mail fraud. As alleged in part in the DOJ Release:

[L]opez was the founder and president of Personal Money Management Company (PMMCO), which ostensibly provided financial management services to clients, many of whom were retired or near retirement. Beginning in 2014, Lopez held himself out as an investment advisor with considerable expertise who could consistently and substantially beat the market average return on investment.

Lopez allegedly communicated to clients and prospective clients various false promises and misrepresentations related to his investment ability and strategy. As alleged in the indictment, Lopez falsely told clients and prospective clients that he could guarantee annual returns of 10 percent on their principal investment no matter how volatile the stock market might be, and that he could make an annualized 19.2-percent return on a retirement investment, in which clients would keep their initial principal investment as well. Lopez allegedly claimed that he had developed a computer program or algorithm that resulted in consistent and substantial above-average market returns on investments.  He allegedly told clients and prospective clients that he would invest their money primarily in stocks and bonds, moving their money between those two investment instruments when market indicators or his computer algorithm told him to move them between the two.

From February 2014 through November 2021, Lopez received approximately $19.4 million from clients. During that same period, rather than invest primarily in stocks and bonds, Lopez allegedly purchased $13.3 million in precious metals, such as gold and silver. Lopez disbursed approximately $6.1 million to clients, which he allegedly represented as investment gains.

After securing client money, Lopez allegedly generated periodic account statements, purportedly showing substantial investment gains. For example, in November 2021, a client received a purported account statement reflecting that an investment of $200,000 with Lopez and PMMCO in 2016 had grown to $3,289,273, a 1,544-percent increase over an approximate five-year period. This growth calculation excluded a $565,000 withdrawal during 2021. In October 2021, those statements represented that PMMCO client account values were collectively worth approximately $39 million.

On Nov. 9 and 10, 2021, government agents seized PMMCO assets, mostly comprising precious metals, which were valued at less than $15 million.

Lopez allegedly continued to generate deceptive PMMCO account statements after the government seized PMMCO's assets. On May 31, 2022, those statements represented PMMCO client account values worth approximately $49 million.
In the United States District Court for the Eastern District of Michigan, the SEC filed a Complaint charging: 
  • Neil Chandran, Garry Davidson, Michael Glaspie, Linda Knott, Banner Co-Op, Inc, and BannersGo, LLC with violating the antifraud and registration provisions of the Securities Act and Exchange Act;
  • Garry Davidson, Michael Glaspie, Linda Knott, Banner Co-Op, Inc, and BannersGo, LLC with aiding and abetting certain of Neil Chandran's violations of the antifraud provisions of the Exchange Act; and
  • Amy Mossel and AEO Publishing Inc. with aiding and abetting Michael Glaspie's violations of the antifraud and registration provisions of the Securities Act and Exchange Act
Previously, in the U.S. District Court for the District of Nebraska, Chandran was charged with three counts of wire fraud and two counts of monetary transaction in unlawful proceeds for his involvement in CoinDeal. As alleged in part in the SEC Release:

[C]handran, Davidson, Glaspie, Knott, and Mossel falsely claimed that investors could generate extravagant returns by investing in a blockchain technology called CoinDeal that would be sold for trillions of dollars to a group of prominent and wealthy buyers. From at least January 2019 to 2022, Chandran, Davidson, Glaspie, Knott, and Mossel allegedly disseminated false and misleading statements to investors regarding the purported value of CoinDeal, the parties involved in the supposed sale of CoinDeal, and the use of investment proceeds. According to the complaint, no sale of CoinDeal ever occurred and no distributions were made to CoinDeal investors. The complaint further alleges that the defendants collectively misappropriated millions of dollars of investor funds for personal use, and that Chandran used investor funds to purchase items such as cars, real estate, and a boat.

SEC Obtains Judgment Against Individual in Multi-Million Dollar Securities Offering Fraud (SEC Release)
The United States District Court for the District of Maine entered a Final Consent Judgment against Paul Hess him to pay disgorgement of $2,382,116, prejudgment interest of $434,670, and a civil penalty of $160,000. The Judgment permanently enjoins Hess from violating the antifraud provisions of Section 17(a) of the Securities Act and Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder; the broker-dealer registration requirements of Section 15(a) of the Exchange Act; and the securities offering registration requirements of Sections 5(a) and 5(c) of the Securities Act. Further, Hess is prohibited from participating in the issuance, purchase, offer, or sale of any security with the exception of Hess purchasing or selling securities for his own personal accounts. As alleged in part in the SEC Release:

[H]ess schemed with co-defendants, including Michael Liberty, to induce investors to purchase unregistered interests in shell companies controlled by Michael Liberty that supposedly owned transferrable interests in a fintech startup then known as Mozido, LLC. In reality, the shell companies either did not own, or were not permitted to transfer, interests in the company. The SEC's complaint also alleged that Paul Hess and Michael Liberty lied to investors about Mozido's valuation and finances, the amount Michael Liberty had personally invested in Mozido, and the use of their funds. In total, Hess, Liberty, and the other co-defendants fraudulently raised more than $48 million from 2010 through 2016.

SEC Obtains Partial Judgments Against Two CodeSmart Defendants (SEC Release)
In the United States District Court for the Eastern District of New York, the SEC filed a Complaint charging Marc Wexler and Matthew Bell violating Sections 5(a), 5(c) and 17(a) of the Securities Act, Sections 9(a) and 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder. On December 22, 2022, the Court entered a Partial Consent Judgment against Wexler and Bell in which they agreed to be permanently enjoined from violations of the charged provisions and agreed to a penny stock bar. Wexler additionally consented to an officer-and-director bar. As alleged in part in the SEC Release:

[S]tarting in 2013, Wexler and Bell, along with the other defendants, were involved in a scheme to manipulate the securities of CodeSmart Holdings, Inc. ("CodeSmart"). The SEC alleged that Wexler and others sought to flood the market with CodeSmart shares and engaged in a promotional campaign to artificially inflate the price of the stock. Meanwhile Bell and another individual invested their brokerage clients in CodeSmart. In short, the SEC alleged that the plan was for the defendants to profit at the expense of Bell's brokerage clients.
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, Kevin Dominic Klickna submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Kevin Dominic Klickna was first registered in 2009 with AXA Advisors, LLC n/k/a Equitable Advisors; and that he left AXA in 2011 but rejoined in 2013. In accordance with the terms of the AWC, FINRA imposed upon Klickna a $5,000 fine and a three-month suspension from association with any FINRA member in all capacities. As alleged in part in the AWC: 

On March 23, 2021, Klickna affixed a customer's signature electronically on an annuity account application without the customer's consent. Further, on March 25, 2021, Klickna copied the same customer's signature and affixed it to a rollover form. The customer eventually noticed the forgery on the rollover form and complained to Equitable. 

Therefore, by forging the customer's electronic signature on the annuity account application and affixing the customer's signature on the rollover form, Klickna violated FINRA Rule 2010. 

In addition, by causing Equitable to maintain inaccurate books and records, Klickna violated FINRA Rules 4511 and 2010." 

FINRA Censures and Fines Blaylock Van, LLC for MSRB Supervision
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, Blaylock Van, LLC submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Blaylock Van, LLC has been a FINRA member firm since 2007 with about 35 registered representatives at seven branches. In accordance with the terms of the AWC, FINRA imposed upon Blaylock Van LLC a Censure, a $50,000 fine, and an undertaking to certify compliance with the cited supervisory issues. As alleged in part in the AWC:

Blaylock's Supervisory System was not Reasonably Designed to Detect Pre-Arranged Trading. 

From October 2016 through June 2021, Blaylock failed to establish and maintain a supervisory system reasonably designed to achieve compliance with applicable securities laws and regulations prohibiting manipulative pre-arranged trading. 

Blaylock's WSPs prohibited pre-arranged trading, a form of manipulative trading. However, the firm's supervisory system failed to provide for reasonable surveillance or supervisory reviews for pre-arranged trading. A single supervisor conducted a daily review of the firm's trade blotter to identify potential pre-arranged trading. The daily trade blotter listed hundreds of transactions but did not associate transactions between potentially related customers - i.e., by name or account number that would assist the supervisor in identifying potential pre-arranged trading. 

In addition, the firm's WSPs did not provide guidance regarding how a supervisor was to identify or review for possible indicia of pre-arranged trading. 

Blaylock Failed to Detect Potential Pre-Arranged Trading. 

Between October 2016 and April 2017, Blaylock executed 34 pairs of municipal securities transactions on a principal basis with two institutional customers that were under common control. In these instances, the customers directed a Blaylock representative to buy from one customer and then sell the same bonds to the other customer at prices that were agreed to by the customers.2 The customers would trade the bonds back and forth sometimes at increasing prices that were between three and twelve points above the prevailing market price. 

As a result of the firm's failure to have a reasonably designed supervisory system, the firm did not detect the pre-arranged trading pattern even though the transactions appeared on the firm's daily trade blotter. The trading stopped in April 2017, when one of the two customers refused to pay for bonds purchased from Blaylock. The firm immediately closed the customers' accounts and sold the bonds into the marketplace for a monetary loss. 

By failing to establish and maintain a supervisory system, including WSPs, reasonably designed to detect and prevent pre-arranged trading, Blaylock violated MSRB Rule G-27. 

= = =

Footnote 2: In some instances, the pattern of trading commenced with one customer selling the bonds to Blaylock. 

Bill Singer's Comment: Compliments to FINRA on a very well crafted AWC that sets out the allegations in a straightforward manner. 

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Removal of FINRA Arbitrator Cited by Schwab and Interactive Brokers in HFT Customer Dispute ( Blog)
As we start a new year, we are asked, yet again, to consider whether FINRA provides a fair arbitration venue. Yet again, we are asked to consider whether FINRA is competently running its arbitration venue. Yet again, we are asked to consider whether FINRA is making an effort to tackle the growing chorus of complaints by both the industry and public customers about a lack of policing of its roll of arbitrators and a lack of effective, timely intervention to nip problems in the bud. All of which prompts veteran industry reform advocate Bill Singer, Esq. to call upon FINRA's Board of Governors to conduct an inquiry. To do something. To do anything. Yet again, Bill knows that FINRA's lackluster Board will likely punt, if even that. 

Former Chief Financial Officer Of Two SPACs Pleads Guilty To Fraud Scheme / Cooper Morgenthau Embezzled More Than $5 Million and Caused False Statements to Be Made to Accountant and Auditor and in SEC Filings (DOJ Release)
SEC Charges Former SPAC CFO for Orchestrating $5 Million Fraud Scheme (SEC Release)

In the United States District Court for the Southern District of New York, in response to an Information, Cooper J. Morgenthau (former Chief Financial Officer of two special purpose acquisition company ("SPACs") pled guilty to one count of wire fraud; and he agreed to forfeit $5,111,335 and to pay restitution of $5,111,335. As alleged in part in the DOJ Release:

Between in or about June 2021 and in or about August 2022, MORGENTHAU, who was the CFO of SPAC-1 and SPAC-2, embezzled more than $5 million from the two companies.   SPAC-1 had recently had its initial public offering, while SPAC-2 was raising money from private investors in preparation for its anticipated IPO.  MORGENTHAU used the embezzled funds to trade equities and options of so-called "meme stocks" and cryptocurrencies, losing almost all of the money that he stole.  To conceal and facilitate his embezzlement from SPAC-1, MORGENTHAU fabricated bank statements, which he provided to SPAC-1's accountant and auditor; made and caused to be made material misstatements in SPAC-1's public filings with the Securities and Exchange Commission ("SEC"); and transferred some of SPAC-2's funds to SPAC-1 to cover up the funds he had misappropriated from SPAC-1. 

In the United States District Court for the Southern District of New York, a Complaint was filed charging Cooper J. Morgenthau (former Chief Financial Officer of the special purpose acquisition company ("SPAC") African Gold Acquisition Corp) with having violated antifraud provisions of the federal securities laws, lying to African Gold's auditor and accountants in violation of the Securities Exchange Act of 1934, and knowingly falsified African Gold's books and records, and filed false certifications with the SEC. Morgenthau consented to a Judgment enjoining him from further federal securities laws violations and barring him from serving as an officer or director of a publicly traded company, with monetary remedies to be determined at a later date. As alleged in part in the SEC Release:

[F]om June 2021 through July 2022, Morgenthau embezzled money from African Gold and stole funds from another SPAC series called Strategic Metals Acquisition Corp. I and II to pay for his personal expenses and to trade in crypto assets and other securities.

According to the SEC's complaint, Morgenthau concealed unauthorized withdrawals by falsifying African Gold's bank account statements and then provided those falsified documents to African Gold's auditor and accountants for purposes of preparing African Gold's SEC filings. During the same general time period, Morgenthau raised money from Strategic Metals' investors based on misrepresentations that the money would be used to launch the Strategic Metals SPACs, when in fact Morgenthau misappropriated the money for personal uses, including to conceal his embezzlement of African Gold's funds.

SEC Obtains Final Judgment Against Individual Behind Bogus Tender Offer (SEC Release)
In the United States District Court for the Southern District of New York, the SEC filed a Complaint against Melville Peter ten Cate Without admitting or denying the allegations in the Complaint, Ten Cate consented to entry of a Final Judgment permanently enjoining him from violations of the antifraud provisions of Sections 10(b) and 14(e) of the Securities Exchange Act; imposing a permanent conduct-based injunction that will prevent him from, among other things, participating in any securities offerings; permanently barring him from acting as an officer or director of a public company; and ordering him to pay a civil penalty of $500,000. As alleged in part in the SEC Release, the SEC had previously charged ten Cate with:

fraud for orchestrating a phony offer to purchase a major U.S. aircraft, defense, and industrial company.

The SEC's complaint was filed on April 5, 2022. The complaint alleged that ten Cate and his now-defunct private company, Xcalibur Aerospace, Ltd., placed an advertisement in The New York Times announcing a proposed plan to purchase all existing stock of Textron, Inc., at a 56% premium over the stock's previous closing price. The announcement allegedly contained a number of false and misleading statements about Xcalibur's size and financial condition and failed to disclose that ten Cate and entities he controlled had been the subject of multiple bankruptcy and default judgments.