Securities Industry Commentator by Bill Singer Esq

April 3, 2023

FINRA Arbitration Award Gives Us A Case of Gas From Chipotle Bean Burrito Puts (BrokeAndBroker.com Blog)

Steven Schwartz, Plaintiff, v. Allstate Insurance Company, Defendants (Memorandum and Order, United States District Court for the Eastern District of New York)

 

DOJ RELEASES

California Man Charged in $23 Million Fraudulent Investment Scheme (DOJ Release)

Former Fresno Bank Employee Pleads Guilty to Stealing More Than $70,000 from Customers’ Accounts (DOJ Release)

Nevada Attorney Indicted In Multimillion-Dollar Ponzi Scheme (DOJ Release)

SEC RELEASES

SEC Charges Merrill Lynch for Failing to Disclose Foreign Exchange Fees to Clients (SEC Release)

SEC Charges Chatham Asset Management and Founder Anthony Melchiorre for Improper Fixed Income Securities Trading (SEC Release)

SEC Obtains Final Judgments Against Two Additional Defendants in Codesmart Fraud (SEC Release)

CFTC RELEASES

FINRA RELEASES 

FINRA Fines and Suspends Rep For Private Securities Transaction
In the Matter of Larry Eugene Norton, Respondent (FINRA AWC)

= = =
4/3/2023

https://www.brokeandbroker.com/6962/schwab-chipotle-finra/
Two public customers alleged that an error made by their TD Ameritrade rep prompted a large margin call; and, as a result, they alleged they sustained about $264,000 in damages when forced to cover. FINRA arbitrators determined that the error involved negligence. So . . . how big a check did the arbitrators tell TD Ameritrade to write out to the customers? $300 --  reimbursement for part of their arbitration filing fee. 

Steven Schwartz, Plaintiff, v. Allstate Insurance Company, Defendants (Memorandum and Order, United States District Court for the Eastern District of New York, 20-CV-00079)
https://www.govinfo.gov/content/pkg/USCOURTS-nyed-2_20-cv-00079/pdf/USCOURTS-nyed-2_20-cv-00079-0.pdf
As set out in the Syllabus to the Order:

Plaintiff Steven H. Schwartz (“Plaintiff”)—a Jewish man born in 1956—alleges that Defendant Allstate Insurance Company (“Allstate”) discriminated against him based on his age and religion in violation of the Title VII, the ADEA, and the New York State Human Rights Law (“NYSHRL”). Plaintiff also alleges that Defendant retaliated against him for complaining about a hostile work environment. Currently pending before the Court is Defendant’s motion for summary judgment. For the reasons set out below, Defendant’s motion is GRANTED

The EDNY Order is a compelling read and I urge you to invest the time. For a sense of what was involved, consider this in part:

Plaintiff contends that he did not receive sufficient leads to allow him to earn any commissions and was ignored by his supervisor, who, according to Plaintiff, told Plaintiff that he would not have hired an “old Jewish guy” for Plaintiff’s territory in Queens. Ferrara maintains that Plaintiff did not receive additional leads because he stopped communicating with Ferrara and failed to obtain the required Series 63 license to sell securities. As for Plaintiff’s termination, Allstate contends that Plaintiff was ultimately terminated because he abandoned his job and ignored directives to attend meetings.

at Page 5 of the EDNY Memo/Order

California Man Charged in $23 Million Fraudulent Investment Scheme (DOJ Release)
https://www.justice.gov/usao-ndil/pr/california-man-charged-23-million-fraudulent-investment-scheme
In the United States District Court for the Northern District of Illinois, an Information was filed charging Sean Grusd with wire fraud
https://www.justice.gov/d9/2023-04/23-cr-193_information_-_unsigned_copy_stamped_43202393133.pdf As alleged in part in the DOJ Release:

[F]rom February 2021 through December 2022, SEAN GRUSD, 31, of California, is alleged to have devised and carried out a scheme to defraud investors in Dylan Ventures LLC, November Acquisitions SPV LLC, and December Acquisitions SPV LLC (collectively, "the Grusd Entities") out of more than $23 million dollars.  Grusd falsely represented that the victims’ money would be used to make investments in privately owned businesses.  Instead of making those investments, Grusd misappropriated the victims’ funds, using the money to pay personal expenses and purchase luxury items, including expensive cars, vacations, and real estate.

As part of his scheme, Grusd provided victims with false and forged documents, including fraudulent stock certificates that showed November Acquisitions had paid $50 million for shares in Company A; and that December Acquisitions had paid $100 million for shares in Company B; when, in fact, neither of those Grusd Entities purchased shares in either of those companies.  Additionally, Grusd provided one victim with a fabricated bank statement for December Acquisitions that he knew falsely reflected a balance of $133 million, when, in fact, the balance in that account was zero. 

Former Fresno Bank Employee Pleads Guilty to Stealing More Than $70,000 from Customers’ Accounts (DOJ Release)
https://www.justice.gov/usao-edca/pr/former-fresno-bank-employee-pleads-guilty-stealing-more-70000-customers-accounts
In the United States District Court for the Eastern District of California, Lladira Hernandez, 23, pled guilty [Ed: as to what she pled guilty to, well, oddly, DOJ says in its Press Release that she pled guilty to "stealing," which, last I looked, isn't actually what you would get charged with. Could be wire fraud or bank fraud. Should be that when DOJ publishes a press release that it sets out the actual charge to which a Defendant has pled guilty]. As alleged in part in the DOJ Release:

[I]n April 2022, Hernandez was hired by the bank as a customer service representative. She began stealing the bank account information for customers she helped over the phone and used it to pay bills for herself and her associates. This included mortgage payments, car payments, and phone bills. In August 2022, Hernandez transferred more than $45,000 from two customers’ accounts into her own account and abruptly quit her job at the bank. She proceeded to withdraw that money from her account and was captured doing so on surveillance video.

Nevada Attorney Indicted In Multimillion-Dollar Ponzi Scheme (DOJ Release)
https://www.justice.gov/usao-nv/pr/nevada-attorney-indicted-multimillion-dollar-ponzi-scheme
In the United States District Court for the District of Nevada, an Indictment was filed charging Matthew Wade Beasley with five counts of wire fraud and three counts of money laundering. As alleged in part in the DOJ Release:

[F]rom about 2017 to March 2022, Beasley falsely represented to another person that he could find plaintiffs in personal injury lawsuits who wanted to borrow money against their pending settlements and would pay high interest rates to do so. He created fake contracts to lend money to purported personal injury plaintiffs. Beasley caused others to find investors to invest in these fake contracts.

The indictment further alleges that, Beasley caused victim investors to wire transfer their investments to Beasley’s IOLTA account, which is a bank account set up by an attorney to hold client monies. He used the money from the scheme to buy luxury homes, cars, and recreational vehicles. 

SEC Charges Merrill Lynch for Failing to Disclose Foreign Exchange Fees to Clients (SEC Release)
https://www.sec.gov/news/press-release/2023-73
Without admitting or denying the findings in an SEC Order
https://www.sec.gov/litigation/admin/2023/34-97242.pdf that it had violated Sections 206(2) and 206(4) of the Investment Advisers Act of 1940 and related rules,  Merrill Lynch, Pierce, Fenner & Smith Incorporated agreed to a cease-and-desist order, a censure, and to pay disgorgement of approximately $4.1 million, prejudgment interest thereon of $760,000, and a civil penalty of $4.8 million. As alleged in part in the SEC Release:

[B}etween May 2016 and July 2020, Merrill Lynch offered programs to advisory clients in which the clients paid Merrill a fee in exchange for a range of investment advisory services, including foreign currency exchanges. In the program’s client agreements and brochures, Merrill Lynch disclosed that it charged a markup or markdown on foreign currency exchanges, but it did not disclose an additional fee it referred to as a production credit, which, in more than 80 percent of the transactions, was equal to or greater than the disclosed markup or markdown. Merrill Lynch paid a percentage of these production credits to its financial advisors and referred to this charge as a commission in internal documents. The SEC’s order also finds that Merrill Lynch failed to adopt and implement policies and procedures reasonably designed to prevent its disclosures from being misleading about the fees it charged on foreign currency exchanges.

SEC Charges Chatham Asset Management and Founder Anthony Melchiorre for Improper Fixed Income Securities Trading (SEC Release)
https://www.sec.gov/news/press-release/2023-72
Without admitting or denying the findings in an SEC Order
https://www.sec.gov/litigation/admin/2023/ia-6270.pdf that they had violated Section 206(2) of the Investment Advisers Act of 1940, and that they aided and abetted and caused violations of the Investment Company Act of 1944, Chatham Asset Management LLC and its founder Anthony Melchiorre agreed jointly and severally to pay $11 million in disgorgement and around $3.4 million in prejudgment interest; and to pay civil penalties of $4,400,000 and $600,000, respectively. Finally, they agreed to prohibitions from serving in certain positions in the investment industry, pursuant to the Investment Company Act. As alleged in part in the SEC Release:

[F]rom 2016 through 2018, one Chatham-advised client sold certain American Media, Inc. (AMI) bonds while a different Chatham-advised client purchased the same bonds through various broker-dealers. Chatham engaged in these trades to address portfolio constraints such as industry or issuer fund concentration limits, meet investor redemptions, and allocate capital inflows and outflows. The order further finds that these trades were executed at prices Chatham and Melchiorre proposed and had the effect of increasing the price of the AMI bonds at a significantly higher rate than the prices of similar securities. Chatham’s and Melchiorre’s trading in the AMI bonds accounted for the vast majority of trading in those securities and therefore over time had a material effect on their pricing.

The SEC’s order also finds that Chatham and Melchiorre calculated the net asset values, or NAVs, of their client funds’ holdings using pricing data that was based, in part, on the trading prices of the securities. As a result, during the relevant period, the NAVs of Chatham’s clients were higher than they would have been if the subject trades were removed from the market for the AMI bonds, which, in turn, resulted in higher fees being charged to the clients.

SEC Obtains Final Judgments Against Two Additional Defendants in Codesmart Fraud (SEC Release)
https://www.sec.gov/litigation/litreleases/2023/lr25686.htm
In the United States District Court for the Eastern District of New York, the SEC charged  MIchael T. Morris with violating Sections 5(a), 5(c) and 17(a) of the Securities Act, Sections 9(a) and the antifraud provisions of 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder; and, also charged Darren Ofsink with violating Sections 5(a) and 5(c) of the Securities Act. The Court entered separate Final Consent Judgments against Morris and Ofsink that permanently enjoined each from violations of the charged provisions and to penny stock bars; and they each agreed to disgorge over ill-gotten gains ($292,409.11 for Ofsink and $27,526 for Morris) and prejudgment interest thereon, the payment of which was deemed satisfied by the restitution order in the parallel criminal proceeding, United States v. DiScala, et al., 14 Cr. 399 (E.D.N.Y.). As alleged in part in the SEC Release:

[S]tarting in 2013, Ofsink and Morris, along with the other defendants, were involved in a scheme to manipulate the securities of CodeSmart Holdings, Inc. ("CodeSmart"). The SEC alleged that Ofsink, an attorney, helped execute the reverse merger of CodeSmart into a public shell company and thereafter, received and sold shares of CodeSmart, the offer and sale of which was not registered, and obscured the holdings of other key individuals. As to Morris, the SEC alleged that he engaged in matched trading for the purpose of inflating the price of CodeSmart securities and received and sold shares of CodeSmart, the offer and sale of which was not registered.

FINRA Fines and Suspends Rep For Private Securities Transaction
In the Matter of Larry Eugene Norton, Respondent (FINRA AWC 2022074961401)
https://www.finra.org/sites/default/files/fda_documents/2022074961401
%20Larry%20Eugene%20Norton%20CRD%20No.%201765551%20AWC%20geg.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 Larry Eugene Norton submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Larry Eugene Norton was first registered in 1987, and by December 1987, he was registered with PFS Investments Inc. In accordance with the terms of the AWC, FINRA imposed upon Norton a $5,000 fine and a 30-calendar day suspension from associating with any FINRA member in all capacities.  As alleged in part in the AWC:

Between March 2020 and May 2021, while associated with PFS, Norton personally invested a total of approximately $138,000 in investment contracts offered and sold by Company A, which purported to be an invoice factoring company that provided cash to
companies in exchange for their accounts receivable. Norton made his investments in this security by entering into 14 separate "Funding Partner" agreements pursuant to which Norton provided capital funding to Company A in exchange for a promise that Company A would acquire accounts receivable solely for his account and generate 12-25% returns on his investments. Norton did not make these investments through PFS, nor were were they securities offered by PFS, and thus, they were outside the regular course or scope of Norton's employment with PFS. Norton did not provide written notice to PFS prior to investing in the private securities transactions involving Company A. On firm compliance
questionnaires in 2020 and 2021, Norton marked "N/A" in response to a question where the firm indicated that "N/A" should be marked where one had not and did not intend to engage in a private securities transaction.

Therefore, Norton violated FINRA Rules 3280 and 2010.