Securities Industry Commentator by Bill Singer Esq

June 5, 2023

Physically Delivering Digital Assets In Order To Satisfy CFTC's Observation (BrokeAndBroker.com Blog)

Bill Singer, Publisher of the Securities Industry Commentator and the BrokeAndBroker.com Blog, Calls for BOYCOTT of 2023 FINRA Elections

DOJ RELEASES

Former Co-Owner Of Minnesota Vikings Sentenced To 75 Months In Prison For Providing Shadow Banking Services To Cryptocurrency Exchanges (DOJ Release)

SEC RELEASES

SEC Files 13 Charges Against Binance Entities and Founder Changpeng Zhao / Charges include operating unregistered exchanges, broker-dealers, and clearing agencies; misrepresenting trading controls and oversight on the Binance.US platform; and the unregistered offer and sale of securities. (SEC Release)

CFTC RELEASES

Federal Court Orders Washington Rancher to Pay $1 Million Penalty for Phantom Cattle Scheme, Position Limit Violations (CFTC Release)

FINRA RELEASES 

FINRA Fines and Suspends Rep for Willful Failure to Timely Disclose Felony Charge
In the Matter of Adam C. Ellison, Respondent (FINRA AWC)

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6/5/2023
 
https://www.brokeandbroker.com/7069/cftc-digital-risk/
Recently, the CFTC published both a Staff Advisory and a Press Release that articulated its observations and disclosed its placement of emphasis on the potential risks involved with the physical delivery of digital assets. Okay, sure . . . and, y'know, like what's next? A CFTC Advisory and Release on how many digital angels can dance on the head of a physical pin? 
 
Bill Singer,
Publisher of
the Securities Industry Commentator
and
the BrokeAndBroker.com Blog,
Calls for BOYCOTT of 2023 FINRA Elections
 
FINRA announced that it will be conducting elections of one Large Firm Governor and one Small Firm Governor to the FINRA Board of Governors. Nominee for Upcoming FINRA Board of Governors Election (FINRA Election Notice / May 31, 2023) at https://www.finra.org/rules-guidance/notices/election-notice-05312023
Bill Singer's Comment: FINRA's Board is a lackluster amalgamation that is tone deaf to the legitimate needs of its smaller members and resistant to implementing the necessary reforms to protect the investing public and the industry's financial professionals. FINRA's Small Firm members represent some 90% of the membership but are gerrymandered down to about 13% of the Board Governors. Since the Small Firm Members are of no apparent consequence when it comes to FINRA's governance, I urge the Small Firm community to boycott all 2023 FINRA elections. Also see: 
Former Co-Owner Of Minnesota Vikings Sentenced To 75 Months In Prison For Providing Shadow Banking Services To Cryptocurrency Exchanges (DOJ Release)
https://www.justice.gov/usao-sdny/pr/former-co-owner-minnesota-vikings-sentenced-75-months-prison-providing-shadow-banking
In the United States District Court for the Southern District of New York,
Reginald Fowler, 64, pled guilty to bank fraud, bank fraud conspiracy, operation of an unlicensed money transmitting business, conspiracy to operate an unlicensed money transmitting business, and wire fraud; and he was sentenced to 75 months in prison, and ordered to pay forfeiture of $740,249,140.52 and restitution in the amount of $53,189,261.80 to the Alliance of American Football ("AAF"). As alleged in part in the DOJ Release:
 
In or about February 2018, REGINALD FOWLER established Global Trading Solutions LLC (“GTS”) and began working with Crypto Capital and other related companies (the “Crypto Companies”), which were operated by Israeli nationals.  The Crypto Companies marketed themselves as providing a seamless way for individuals to exchange standard currency for cryptocurrency.  A number of cryptocurrency exchanges began using the Crypto Companies to process their fiat-to-cryptocurrency transactions.

Because banks were reluctant to handle cryptocurrency transactions, in reality, the Crypto Companies could not access legitimate financial institutions.  Instead, the Crypto Companies lied to banks in order to open accounts that were used to process cryptocurrency transactions without the banks’ knowledge. FOWLER opened dozens of such accounts in the United States and around the world.  He did not disclose GTS’s involvement with the Crypto Companies and the fact that it was operating as a payment processor for hundreds of millions of dollars in cryptocurrency transactions.  FOWLER also directed other individuals to include false information on wire transfer instructions to further deceive banks about the nature of GTS’s business.  In less than 10 months, FOWLER processed approximately $750 million in cryptocurrency transactions in various currencies. At no point were FOWLER, GTS, nor any of the Crypto Companies ever licensed as a money transmitting business in the United States, as required by federal law.      

Additionally, in 2018, FOWLER defrauded the AAF in connection with his acquisition of a significant ownership stake in the league. In the course of negotiating his investment in the AAF, FOWLER falsely claimed personal ownership of GTS funds that, in fact, belonged to clients of FOWLER’s illegal money transmission service established in support of the Crypto Companies.  As he did when opening bank accounts, FOWLER lied to AAF executives, telling them that the funds in the GTS bank accounts derived from real estate investments as well as government contracts and that the tens of millions of dollars in the GTS accounts were liquid assets he could use to invest in the AAF.  FOWLER did not disclose his involvement with the Crypto Companies.  Moreover, although FOWLER experienced account closures and government seizure of GTS funds in the month leading up to his investment in the AAF, FOWLER did not disclose those facts to the AAF. FOWLER acquired a significant investment stake in the AAF in November 2018 yet was unable to fund that investment.  Based, in part, on FOWLER’s lies, the AAF declared bankruptcy in about April 2019, ending the season and dashing the hopes of FOWLER’s victims.

SEC Files 13 Charges Against Binance Entities and Founder Changpeng Zhao / Charges include operating unregistered exchanges, broker-dealers, and clearing agencies; misrepresenting trading controls and oversight on the Binance.US platform; and the unregistered offer and sale of securities. (SEC Release)
https://www.sec.gov/news/press-release/2023-101
In the United States District Court for the District of Columbia, the SEC filed a Complaint charging Binance Holdings Ltd. (“Binance”); its U.S.-based affiliate BAM Trading Services Inc. (“BAM Trading”); BAM Management US Holdings, and founder, Changpeng Zhao. 
https://www.sec.gov/files/litigation/complaints/2023/comp-pr2023-101.pdf
As alleged in part in the SEC Release:

UNREGISTERED EXCHANGE, BROKER, AND CLEARING AGENCY

The SEC’s complaint, filed in the U.S. District Court for the District of Columbia, alleges that, since at least July 2017, Binance.com and Binance.US, while controlled by Zhao, operated as exchanges, brokers, dealers, and clearing agencies and earned at least $11.6 billion in revenue from, among other things, transaction fees from U.S. customers. The SEC’s complaint alleges that (1) with respect to Binance.com, Binance should have registered as an exchange, broker-dealer, and clearing agency; (2) with respect to Binance.US, Binance and BAM Trading should have registered as an exchange and as clearing agencies; and (3) BAM Trading should have registered as a broker-dealer. The SEC also alleges that Zhao is liable as a control person for Binance’s and BAM Trading’s respective registration violations.

UNREGISTERED OFFER AND SALE OF CRYPTO ASSETS

The SEC charged Binance for the unregistered offers and sales of BNB, BUSD, and crypto-lending products known as “Simple Earn” and “BNB Vault.” Further, the SEC charged BAM Trading with the unregistered offer and sale of Binance.US’ staking-as-a-service program. The complaint also notes that Binance secretly has control over assets staked by U.S. customers in BAM’s staking program.

FAILURE TO RESTRICT U.S. INVESTORS FROM ACCESSING BINANCE.COM

The SEC’s complaint alleges that Zhao and Binance created BAM Management and BAM Trading in September 2019 as part of an elaborate scheme to evade U.S. federal securities laws by claiming that BAM Trading operated the Binance.US platform independently and that U.S. customers were not able to use the Binance.com platform. The complaint alleges that, in reality, Zhao and Binance maintained substantial involvement and control of the U.S. entity and that, behind the scenes, Zhao directed Binance to allow and conceal many high-value U.S. customers’ continued access to Binance.com. In one instance, the Binance chief compliance officer messaged a colleague that, “[w]e are operating as a fking unlicensed securities exchange in the USA bro.”

MISLEADING INVESTORS

According to the SEC’s complaint, BAM Trading and BAM Management misled Binance.US customers and equity investors concerning the existence and adequacy of market surveillance and controls to detect and prevent manipulative trading on the Binance.US platform’s crypto asset trading volumes. The complaint further alleges that the strategic and targeted wash trading largely perpetrated by the Binance.US platform’s primary undisclosed “market making” trading firm Sigma Chain, also owned by Zhao, demonstrates the falsity of statements BAM Trading made about its market surveillance and controls.

Federal Court Orders Washington Rancher to Pay $1 Million Penalty for Phantom Cattle Scheme, Position Limit Violations (CFTC Release)
https://www.cftc.gov/PressRoom/PressReleases/8711-23
The United States District Court for the Eastern District of Washington issued an Order granting a permanent injunction against Cody Easterday https://www.cftc.gov/media/8681/enfcodyeasterday060523/download
and requiring him to pay a $1 million civil monetary penalty and permanently enjoining him from further violating cited regulations; and also permanently prohibits Easterday from trading on or subject to the rules of any CFTC-registered entity and from engaging in any activities requiring CFTC registration. Previously, in a parallel criminal action, Easterday was sentenced to 11 years in prison and ordered to pay $244 million in restitution. As alleged in part in the CFTC Release:

[F]rom approximately October 2016 to November 2020, Easterday caused Easterday Ranches to submit false invoices and reimbursement requests relating to more than 200,000 head of cattle that it never purchased or raised on the processor’s behalf. Through the use of fraudulent invoices and reimbursement requests, Easterday Ranches received more than $233 million to which it was not entitled.

In addition, the order finds that Easterday caused Easterday Ranches to report false or misleading information concerning its cattle inventory, purchases, and sales to the Chicago Mercantile Exchange in at least two hedge exemption applications seeking permission to exceed the exchange’s position limits. These false statements to the exchange were made in 2017 and 2018 to avoid disciplinary actions and scrutiny when Easterday Ranches exceeded exchange-based position limits in the live cattle and feeder cattle futures markets. Because they were based on false or misleading information, the hedge exemptions were invalid. As a result, Easterday Ranches violated exchange-set position limit violations on at least two occasions.

FINRA Fines and Suspends Rep for Willful Failure to Timely Disclose Felony Charge
In the Matter of Adam C. Ellison, Respondent (FINRA AWC 2022074931701)
https://www.finra.org/sites/default/files/fda_documents/2022074931701
%20Adam%20C.%20Ellison%20CRD%206073346%20AWC%20lp.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, Adam C. Ellison submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Adam C. Ellison was first registered in 2012 with Ameriprise Financial Services, LLC. In accordance with the terms of the AWC, FINRA imposed upon Kucish a $5,000 fine and a three-month suspension from associating with any FINRA member in all capacities. The AWC includes this statement:

Respondent understands that this settlement includes a finding that he willfully omitted to state a material fact on a Form U4, and that under Section 3(a)(39)(F) of the Securities Exchange Act of 1934 and Article III, Section 4 of FINRA’s By-Laws, this omission makes him subject to a statutory disqualification with respect to association with amember.

As alleged in part in the AWC:

On October 20, 2021, while Ellison was associated with Ameriprise, the District Attorney of the County of Nevada (California) filed with the California Superior Court a felony complaint against Ellison. Ellison became aware of the felony charge by November 2021, and was required to amend his Form U4 within 30 days to disclose the charge. However, Ellison did not disclose the felony charge on his Form U4 until March 15, 2022.

Therefore, Ellison willfully failed to timely disclose a felony charge in violation of Article V, Section 2(c) of FINRA’s By-Laws, and FINRA Rules 1122 and 2010.