Saturday, April 19, 2014

FINRA is Looking to Hire Compliance Examiners

LogoFrom their job posting - FINRA is seeking a well qualified individual for our Compliance Examiner opening in Membership Application Program (MAP) of the Member Regulation Department in New York, NY.  To be considered for this position, please submit your resume through our careers site.    

Job Summary:  MAP Examiners review or investigate, in the context of new and continuing membership applications, risk areas of broker-dealers and allegations of wrong-doing or other non-compliant conduct to protect investors and ensure the integrity of the U.S. financial markets. This position requires excellent analytical and communication skills, consistently high productivity levels and work quality (frequently under tight deadlines), excellent collaboration skills, and a strong commitment to ensuring that the securities industry operates fairly and honestly.

For more information,

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High Frequency Traders Subpoenaed

New York Attorney General Eric Schneiderman sent subpoenas to six high-frequencytrading firms seeking information about special arrangements they have with exchanges and dark pools as well as their trading strategies, according to a person familiar with the matter.

High-frequency trading (HFT) is a type of algorithmic trading, specifically the use of sophisticated technological tools and computer algorithms to rapidly trade securities. HFT uses proprietary trading strategies carried out by computers to move in and out of positions in seconds or fractions of a second. The concept is to use speed and position to capture trading profits of as little as a fraction of a cent on a trade.

Despite all of the recent publicity, HFT is not something new, or threatening. Back in 2009, studies suggested HFT firms accounted for 60-73% of all US equity trading volume, with that number falling to approximately 50% in 2012.

For more information, High-Frequency Traders Said to Be Subpoenaed in New York Inquiry 

Mark Cuban's Idiot's Guide to High Frequency Trading

The attorneys at Sallah Astarita & Cox include veteran securities litigators and former SEC Enforcement Attorneys. We have decades of experience in securities litigation matters, including the defense of enforcement actions  We represent investors, financial professionals and investment firms and brokers nationwide. For more information contact Mark Astarita at 212-509-6544 or email us.

Friday, April 18, 2014

Pyramid Scheme Targeting Immigrants Charged by SEC

The SEC has filed charges against the Massachusetts-based operators of a large pyramid scheme that mainly targeted Dominican and Brazilian immigrants in the U.S. The charges were filed under seal, in connection with the Commission's request for an immediate asset freeze. That asset freeze, which the U.S. District Court in Boston ordered on Wednesday, secured millions of dollars of funds and prevented the potential dissipation of investor assets. After the SEC staff implemented the asset freeze, at the SEC's request the court lifted the seal today, permitting public announcement of the SEC's charges.
Seal of the U.S. Securities and Exchange Commi...

The SEC alleges that TelexFree, Inc. and TelexFree, LLC claim to run a multilevel marketing company that sells telephone service based on "voice over Internet" (VoIP) technology but actually are operating an elaborate pyramid scheme. In addition to charging the company, the SEC charged several TelexFree officers and promoters, and named several entities related to TelexFree as relief defendants based on their receipt of investor funds.

According to the SEC's complaint, the defendants sold securities in the form of TelexFree "memberships" that promised annual returns of 200 percent or more for those who promoted TelexFree by recruiting new members and placing TelexFree advertisements on free Internet ad sites. The SEC complaint alleges that TelexFree's VoIP sales revenues of approximately $1.3 million from August 2012 through March 2014 are barely one percent of the more than $1.1 billion needed to cover its promised payments to its promoters. As a result, in classic pyramid scheme fashion, TelexFree is paying earlier investors, not with revenue from selling its VoIP product but with money received from newer investors.

This is one of several pyramid-scheme cases that the SEC has filed recently where parties claim that investors can earn profits by recruiting other members or investors instead of doing any real work...Even after the SEC and other regulators have alleged that such programs are a fraud, the promoters of TelexFree continued selling the false promise of easy money.
According to the SEC's complaint, the defendants have continued enrolling new investors but recently changed TelexFree's method of compensating promoters, requiring them to actually sell the VoIP product to qualify for payments that TelexFree had previously promised to pay them. The complaint also alleges that since December 2013, TelexFree has transferred $30 million or more of investor funds from TelexFree operating accounts to accounts controlled by TelexFree affiliates or the individual defendants.

In addition to the TelexFree firms, the complaint charges TelexFree co-owner James Merrill, of Ashland, Mass., TelexFree co-owner and treasurer Carlos Wanzeler, of Northborough, Mass., TelexFree CFO Joseph H. Craft, of Boonville, Ind., and TelexFree's international sales director, Steve Labriola, of Northbridge, Mass. The SEC also charged four individuals who were promoters of TelexFree's program: Sanderley Rodrigues de Vasconcelos, formerly of Revere, Mass., now of Davenport, Fla., Santiago De La Rosa, of Lynn, Mass., Randy N. Crosby, of Alpharetta, Ga., and Faith R. Sloan of Chicago. The SEC's complaint alleges that TelexFree, Inc., TelexFree, LLC, Merrill, Wanzeler, Craft, Labriola, Rodrigues de Vasconcelos, De La Rosa, Crosby, and Sloan violated the registration and antifraud provisions of U.S. securities laws and the SEC's antifraud rule. The SEC also charged three entities related to TelexFree as relief defendants based on their receipt of investor funds.

SEC Halts Pyramid Scheme Targeting Dominican and Brazilian Immigrants's Articles and Commentary Regarding Ponzi Schemes
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Former BP Employee Charged with Insider Trading During Oil spill

The Securities and Exchange Commission today charged a former 20-year employee of BP p.l.c. and a senior responder during the 2010 Deepwater Horizon oil spill with insider trading in BP securities based on confidential information about the magnitude of the disaster. The price of BP securities fell significantly after the April 20, 2010 explosion on the Deepwater Horizon rig, and the subsequent oil spill in the Gulf of Mexico, resulted in an extensive clean-up effort.
English: The mobile offshore drilling unit Q40...

According to the SEC's complaint, filed in U.S. District Court for the Eastern District of Louisiana, BP tasked Keith A. Seilhan with coordinating BP's oil collection and clean-up operations in the Gulf of Mexico and along the coast. Seilhan, an experienced crisis manager, directed BP's oil skimming operations and its efforts to contain the expansion of the oil spill. The complaint alleges that within days, Seilhan received nonpublic information on the extent of the evolving disaster, including oil flow estimates and data on the volume of oil floating on the surface of the Gulf.

Seilhan sold his family's BP securities after he received confidential information about the severity of the spill that the public didn't know.  Corporate insiders must not misuse the material nonpublic information they receive while responding to unique or disastrous corporate events, even where they stand to suffer losses as a consequence of those events.

The complaint alleges that by April 29, 2010, in filings to the SEC, BP estimated that the flow rate of the spill was up to 5,000 barrels of oil per day (bopd). The company's public estimate was significantly less than the actual flow rate, which was estimated later to be between 52,700 and 62,200 bopd. The information that Seilhan obtained indicated that the magnitude of the oil spill and thus, BP's potential liability and financial exposure, was likely to be greater than had been publicly disclosed.

According to the complaint, while in possession of this material, nonpublic information, and in breach of duties owed to BP and its shareholders, Seilhan directed the sale of his family's entire $1 million portfolio of BP securities over the course of two days in late April 2010. The trades allowed Seilhan to avoid losses and reap unjust profits as the price of BP securities dropped by approximately 48 percent after the sales on April 29 and April 30, 2010, reaching their lowest point in late June 2010.

Without admitting or denying the allegations, Seilhan consented to the entry of a final judgment permanently enjoining him from future violations of federal antifraud laws and SEC antifraud rules. Seilhan, of Tomball, Texas, also agreed to return $105,409 of allegedly ill-gotten gains, plus $13,300 of prejudgment interest, and pay a civil penalty of $105,409. The settlement is subject to court approval.

SEC Charges Former BP Employee with Insider Trading During the Deepwater Horizon Oil Spill's Insider Trading Articles and Commentary
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Undisclosed Kickbacks Lead to SEC Charges for Investment Advisor

The SEC's Enforcement Division alleges that Total Wealth Management and its owner and CEO Jacob Cooper entered into undisclosed revenue sharing agreements through which they paid themselves kickbacks or so-called "revenue sharing fees." They failed to disclose to clients the conflicts of interest created by these agreements as they recommended the underlying investments to clients and investors in the Altus family of funds. Total Wealth and Cooper also materially misrepresented the extent of the due diligence conducted on the investments they recommended. Total Wealth's CCO Nathan McNamee and investment adviser representative Douglas Shoemaker also breached their fiduciary duties and defrauded clients by failing to disclose conflicts of interest and concealing the kickbacks they received from the investments they recommended.

"Investment advisers owe a fiduciary duty of utmost good faith and full and fair disclosure to their clients," said Michele Wein Layne, director of the SEC's Los Angeles Regional Office. "Total Wealth violated that duty with its pervasive practice of placing clients in funds holding risky investments while concealing the revenue sharing fees they paid themselves."

In the order instituting administrative proceedings, the SEC's Enforcement Division alleges that Total Wealth and Cooper willfully violated the antifraud provisions of the federal securities laws, and McNamee and Shoemaker violated or aided and abetted violations of the antifraud provisions. They also are charged with violations of Form ADV disclosure rules and the custody rule. The SEC's order seeks return of allegedly ill-gotten gains plus interest, financial penalties, an accounting, and remedial relief.

SEC Charges San Diego-Based Investment Adviser

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Monday, April 7, 2014

SEC Announces Additional $150,000 Payment to Recipient of First Whistleblower Award

The SEC has announced that the whistleblower who received the first award under the agency's new whistleblower program will receive an additional $150,000 payout after the SEC collected additional funds in the case.

English: By Richard Wheeler (Zephyris) 2007.
The whistleblower, who the SEC did not identify in order to protect confidentiality, has now been awarded a total of nearly $200,000 since the award was announced on Aug. 21, 2012. The award recipient helped the SEC stop a multi-million dollar fraud by providing documents and other significant information that allowed its investigation to move at an accelerated pace and prevent the fraud from ensnaring additional victims.

The award represents 30 percent of the amount collected in the SEC enforcement action against the perpetrators of the scheme, the maximum percentage payout allowed under the law. The additional payout comes after the SEC collected an additional $500,000 from one of the defendants in the case.

"This latest payment shows that the SEC's aggressive collection efforts pay dividends not only for harmed investors but also for whistleblowers," said Sean McKessy, chief of the SEC's Whistleblower Office. "As we collect additional funds from securities law violators, we can increase the payouts to whistleblowers."

The SEC expects to collect additional money from defendants in this case as some are making payments under a periodic payment schedule ordered by the court.

The 2010 Dodd-Frank Act authorized the whistleblower program to reward individuals who offer high-quality original information that leads to an SEC enforcement action in which more than $1 million in sanctions is ordered. Awards can range from 10 percent to 30 percent of the money collected. The Dodd-Frank Act included enhanced anti-retaliation employment protections for whistleblowers and provisions to protect their identity. The law specifies that the SEC cannot disclose any information, including information the whistleblower provided to the SEC, which could reasonably be expected to directly or indirectly reveal a whistleblower's identity.

The attorneys at Sallah Astarita & Cox, LLC represent all participants in the securities markets,including whistleblowers. For a free consultation call 212-509-6544.

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New Jersey Brokerage Firm Charged in Manipulation

The Securities and Exchange Commission charged the owner of a Holmdel, N.J.-based brokerage firm with manipulative trading of publicly traded stocks through an illegal practice known as "layering" or "spoofing."

The SEC also charged the owner and others for registration violations. Two firms and five individuals agreed to pay a combined total of nearly $3 million to settle the case.
In layering, the trader places orders with no intention of having them executed but rather to trick others into buying or selling a stock at an artificial price driven by the orders that the trader later cancels. An SEC investigation found that Joseph Dondero, a co-owner of Visionary Trading LLC, repeatedly used this strategy to induce other market participants to trade in a particular stock. By placing and then canceling layers of orders, Dondero created fluctuations in the national best bid or offer of a stock, increased order book depth, and used the non-bona fide orders to send false signals to other market participants who misinterpreted the layering as true demand for the stock.

"The fair and efficient functioning of the markets requires that prices of securities reflect genuine supply and demand," said Sanjay Wadhwa, senior associate director of the SEC's New York Regional Office. "Traders who pervert these natural forces by engaging in layering or some other form of manipulative trading invite close scrutiny from the SEC."

Joseph G. Sansone, co-deputy chief of the SEC Enforcement Division's Market Abuse Unit, added, "Week after week, Dondero lined his pockets by placing phony orders and tricking others into trading with him at distorted prices. The fact that Dondero perpetrated this deceit through the entry of trade orders did not allow him to evade detection."

The SEC additionally charged Dondero, Visionary Trading, and three other owners with operating a brokerage firm that wasn't registered as required under the federal securities laws. New York-based brokerage firm Lightspeed Trading LLC is charged with aiding and abetting the registration violations, and its former chief operating officer is charged with failing to supervise one of the Visionary owners who shared with his co-owners commission payments that he received from Lightspeed while he was simultaneously working as a registered representative there.

According to the SEC's order instituting settled administrative proceedings, the misconduct occurred from May 2008 to November 2011. Visionary Trading and its four owners – Dondero, Eugene Giaquinto, Lee Heiss, and Jason Medvin – illegally received from Lightspeed a share of the commissions generated from trading by Visionary customers. Lightspeed aided and abetted the violation by ignoring red flags that Visionary and its owners were receiving transaction-based compensation while Visionary and its owners were not registered as a broker or dealer or associated with a registered broker-dealer firm.

According to the SEC's order, Lightspeed also failed to establish reasonable policies and procedures designed to prevent and detect the improper sharing of commissions between its registered representatives such as Giaquinto, who was associated with Lightspeed for part of the relevant period, and others who were not registered with the SEC in any capacity. Lightspeed's former COO Andrew Actman failed reasonably to supervise Giaquinto by not taking appropriate steps to address red flags indicating that Giaquinto was sharing commission payments that he received from Lightspeed with the other Visionary owners.

The SEC's order finds that Dondero violated Sections 9(a)(2) and 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. Visionary and its owners willfully violated Section 15(a)(1) of the Exchange Act. Giaquinto willfully aided and abetted and caused Visionary's and his co-owners' violations of Exchange Act Section 15(a)(1). Lightspeed willfully aided and abetted and caused Visionary's and its owners' violations of Exchange Act Section 15(a)(1). Lightspeed and Actman failed reasonably to supervise Giaquinto.

In settling the SEC's charges, Dondero agreed to pay disgorgement of $1,102,999.96 plus prejudgment interest of $46,792 and penalties of $785,000 for a total exceeding $1.9 million. He agreed to a bar from the securities industry. Giaquinto, Heiss, and Medvin must each pay disgorgement of $118,601.96 plus prejudgment interest of $14,391.32 and a penalty of $35,000 for a combined total of more than $500,000 from the three of them. They are barred from the securities industry for at least two years. Lightspeed must pay disgorgement of $330,000 plus prejudgment interest of $43,316.54, post-order interest of $4,900.38, and a penalty of $100,000 for a total of approximately $478,000. Actman agreed to a penalty of $10,000 and a supervisory bar for at least one year.

SEC Charges Owner of N.J.-Based Brokerage Firm With Manipulative Trading
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Saturday, April 5, 2014

SEC Expanding the Scope of Insider Trading

Despite all of the insider trading investigations and cases we have handled there are two aspects of these cases that still amaze us - the convoluted charges that the Commission  sometimes files, and the contortions that some folks go through to avoid detection. For the latter, we recently saw the cases of the middleman who ate the notes with the stock symbol, the investors who thought cell phones would avoid detection, trading in a girlfriend's account to pay alimony Some of these cases involve mere allegations that the SEC cannot prove - like the case against the Florida doctor where attorneys from Sallah Astarita & Cox successfully defended the doctor, and the loss against Mark Cuban, but others involve a poor scheme, or a poor defense strategy.

The SEC has now announced charges in two separate cases against men who allegedly profited by insider trading on confidential information they learned from their wives about Silicon Valley-based tech companies.

"Spouses and other family members may gain access to highly confidential information about public companies as part of their relationship of trust," said Jina L. Choi, director of the SEC's San Francisco Regional Office. "In those circumstances, family members have a duty to protect and safeguard that information, not to trade on it."
It is a questionable legal theory, and a continued expansion, beyond all logical bounds, of 10b-5 liability, but a theory that the SEC continues to pursue.

Image representing Oracle Corporation as depic...In the first case the SEC alleges that Tyrone Hawk of Los Gatos, Calif., violated a duty of trust by trading after he overheard work calls made by his wife, a finance manager at Oracle Corp., regarding her company's plan to acquire Acme Packet Inc. Hawk also had a conversation with his wife in which she informed him that there was a blackout window for trading Oracle securities because it was in the process of acquiring another company. According to the SEC's complaint, Hawk bought Acme Packet shares before the acquisition was announced in February 2013, and reaped approximately $150,000 by selling after the stock price rose 23 percent on the news. According to the SEC, Hawk decided not to fight the charges, and without admitting or denying the allegations, agreed to pay more than $300,000 to settle the SEC's charges.

For those of you not familiar with the SEC penalty and disgorgement calculations, that $300,000 is TWICE his alleged profits. The SEC will typicall seek penalties and disgorgement of THREE TIMES their calculation of the profit, in order to force their targets to settle.

In an unrelated case, the SEC alleges that Ching Hwa Chen of San Jose, Calif., profited from gleaning confidential information in mid-2012 that his wife's employer, Informatica Corp., would miss its quarterly earnings target for the first time in 31 consecutive quarters. During a drive to vacation in Reno, Nev., Chen overheard business calls by his wife, who previously advised Chen not to trade in Informatica securities under any circumstances. However, after they returned from Reno, he established securities positions designed to make money if the stock price fell. Informatica's shares declined more than 27 percent after it announced the earnings miss, and Chen realized nearly $140,000 in profits.

According to the SEC, Chen also decided not to fight and without admitting or denying the allegations, agreed to pay approximately $280,000 to settle the SEC's charges, again twice his alleged profits from the trades.

The SEC has brought other insider trading cases involving individuals who traded on material, nonpublic information misappropriated from spouses. For example, last year the SEC charged a Houston man with insider trading ahead of a corporate acquisition based on confidential details that he gleaned from his wife, a partner at a large law firm that was consulted on the deal. In 2011, the SEC charged an Illinois man who bought the stock of an acquisition target of a company where his wife was an executive despite her requests that he keep the merger information confidential. In a different 2011 case, the SEC charged the spouse of a CEO with insider trading on confidential information that he misappropriated from her in advance of company news announcements.

Unfortunately, because these cases settle, the questionable legal theory is not being tested. Is trading on information gleaned from overhearing a spouse's telephone conversation truly a misappropriation of information. While the misappropriation theory of insider trading has turned the securities statutes on its head, it is the law of the land. Now we have additional expansion of this already expanded theory of liability to cases where nothing is stolen or misappropriated.

The SEC is enacting legislation through its enforcement powers. That is unconstitutional and needs to be addressed by Congress.

The attorneys at Sallah Astarita & Cox include veteran securities litigators and former SEC Enforcement Attorneys. We have decades of experience in representation of brokers and investors in regulatory investigations, including insider trading cases. For a free consultation on any securities regulatory matter, contact Mark Astarita at 212-509-6544 or email us.

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Friday, April 4, 2014

DOJ Pushes to Expand Hacking Abilities Against Cyber-Criminals

The Justice Department is seeking to change the rules to allow them to hack into computers of suspected criminals.

Sounds like a good idea but we worry about their definition "criminals."

For more information -

Tuesday, April 1, 2014

Coal Company and CEO Charged by SEC for False Disclosures About Management

Here is one type of case we don't see too often. The SEC has filed fraud charges against a Seattle-headquartered coal company and its founder for making false disclosures about who was running the company.

A coal mine in Wyoming, United States. The Uni...
The SEC's Enforcement Division alleges that L&L Energy Inc., which has all of its operations in China and Taiwan, created the false appearance that the company had a professional management team in place when in reality Dickson Lee was single-handedly controlling the company's operations. An L&L Energy annual report falsely listed Lee's brother as the CEO and a woman as the acting CFO in spite of the fact that she had rejected Lee's offer to serve in the position the month before. L&L Energy and Lee continued to misrepresent that they had an acting CFO in the next three quarterly reports. Certifications required under the Sarbanes Oxley Act ostensibly bore the purported acting CFO's electronic signature. Lee and L&L Energy also allegedly misled NASDAQ to become listed on the exchange by falsely maintaining they had accurately made all of their required Sarbanes-Oxley certifications.

In a parallel action, a criminal indictment against Lee was unsealed today in federal court in Seattle. The U.S. Attorney's Office in the Western District of Washington is prosecuting the case.

"Lee and L&L Energy deceived the public by falsely representing that the company had a CFO, which is a critical gatekeeper in the management of public companies," said Antonia Chion, associate director in the SEC's Enforcement Division. "The integrity of Sarbanes-Oxley certifications is critical, and executives who manipulate the process will be held accountable for their misdeeds."

The SEC's order is online and its press release has the details.

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