Securities Industry Commentator by Bill Singer Esq

Respondent, the former president and majority owner of a registered investment adviser, violated the antifraud provisions of the federal securities laws when he failed to disclose conflicts and correct misleading statements concerning ongoing payments that he received from the owner of a branch office of a broker-dealer that he had once owned. Respondent directed clients' highly liquid, AAA-rated Treasury and agency bond purchase transactions to his former broker-dealer, despite claims in registered investment adviser's Forms ADV and website that its investment advice and choice of broker-dealers were impartial and conflict-free. Respondent also failed to seek best execution for advisory clients' Treasury and agency bond trades by directing trades to his former broker-dealer without first seeking multiple competing bids, resulting in clients' payment of excessive commissions. Respondent aided and abetted and caused investment adviser's related violations. Held, it is in the public interest to bar the respondent from associating with a broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization; prohibit respondent from serving or acting as an employee, officer, director, member of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company or affiliated person of such investment adviser, depositor, or principal underwriter; order the respondent to cease and desist from committing or causing any violations or future violations of the provisions violated; order disgorgement of $562,001.26, plus prejudgment interest; and assess a civil money penalty of $75,000. 

ORDERED that Dennis J. Malouf be barred from association with any broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization, and from serving or acting as an employee, officer, director, member of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company or affiliated person of such investment adviser, depositor, or principal underwriter, and it is further 

ORDERED that Dennis J. Malouf be prohibited, permanently, from serving or acting as an employee, officer, director, member of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company or affiliated person of such investment adviser, depositor, or principal underwriter, and it is further 

ORDERED that Malouf cease and desist from committing or causing any violations or future violations of Sections 17(a)(1) and 17(a)(3) of the Securities Act of 1933, Sections 10(b) Securities Exchange Act of 1934 and Rules 10b-5(a) and (c) thereunder, and Sections 206(1), 206 (2), 206(4), and 207 of the Investment Advisers Act of 1940 and Rule 206(4)-1(a)(5) thereunder; and it is further 

ORDERED that Malouf disgorge $562,001.26, plus prejudgment interest of $202,298.88, such prejudgment interest calculated beginning from January 1, 2008, in accordance with Commission Rule of Practice 600; and it is further 

ORDERED that Malouf pay a civil money penalty of $75,000.. . 

Mr. Dennis Malouf occupied key roles at two firms. One of the firms (UASNM, Inc.) offered investment advice; the other firm (a branch of Raymond James Financial Services) served as a broker-dealer. Raymond James viewed those dual roles as a conflict, so Mr. Malouf sold the Raymond James branch. But the structure of the sale perpetuated the conflict. Because Mr. Malouf did not disclose perpetuation of the conflict, administrative officials sought sanctions against him for violating the federal securities laws. 

An administrative law judge found that Mr. Malouf had violated the Securities Exchange Act of 1934, the Securities Act of 1933, the Investment Advisers Act of 1940, Rule 10b-5, and Rule 206(4)-1. Given these findings, the judge imposed sanctions. The SEC affirmed these findings and imposed additional sanctions, including disgorgement of profits. 

Mr. Malouf appeals the SEC's decision, and we affirm.  

First, according to Mr. Malouf, the SEC's finding of willfulness must have been based on his failure to require disclosure from others. For this argument, Mr. Malouf insists that he delegated the duty of disclosure. We disagree. Mr. Malouf blames the chief compliance officer, but this officer could not have been expected to disclose a conflict of interest that he had not known about. See pp. 22, 26, above. The SEC thus did not abuse its discretion in determining that Mr. Malouf had acted willfully. 

Second, Mr. Malouf contends that the SEC penalized him for defending himself. We disagree. The SEC reasonably considered Mr. Malouf's failure to recognize his own wrongdoing. See Steadman v. SEC, 603 F.2d 1126, 1140 (5th Cir. 1979) (noting that a defendant's admission of wrongful conduct (or lack of an admission thereof) is a factor "that [has] been deemed relevant to the issuance of an injunction" from the securities industry), aff'd, 450 U.S. 91 (1981); ZPR Inv. Mgmt. Inc. v. SEC, 861 F.3d 1239, 1255 (11th Cir. 2017) (upholding a bar on continued work in an industry when the SEC found that the petitioner had not genuinely acknowledged his wrongdoing). Consideration of one's acceptance of responsibility constitutes "a routine and unexceptionable feature . . . of criminal, let alone civil, punishment." SEC v. Lipson, 278 F.3d 656, 664 (7th Cir. 2002). And the agency record is replete with examples of Mr. Malouf's refusal to accept responsibility for his actions. The SEC thus did not abuse its discretion in considering Mr. Malouf's failure to accept responsibility. 

Finally, Mr. Malouf stresses his (1) disclosures preceding the SEC's investigation and (2) prior payment of huge sums in restitution and civil penalties. But his earlier disclosures and payments do not render a lifetime bar unreasonable. Mr. Malouf waited roughly three years before making the disclosures. And for about nine months of that period, Mr. Malouf ignored an outside consultant's directions to make the disclosures. The SEC considered Mr. Malouf's delay together with his payments toward restitution and civil penalties, concluding that a lifetime bar from the securities industry was justified. The SEC's reasoning is rational and supported by the evidence. 

[B]ravata was previously charged by the SEC, and later by criminal authorities, for his participation in a $50 million securities fraud conducted through BBC Equities, LLC. In 2013, Bravata was found guilty in a jury trial, sentenced to 5 years of incarceration, and ordered to pay restitution. In the SEC case, Bravata was found liable for securities fraud, enjoined from future violations, and ordered to pay disgorgement and penalties.

The SEC's complaint alleges that while still on home confinement as a result of his criminal conviction, Bravata offered securities in Primo World Ventures, LLC ("Primo"), a company he owned and controlled. According to the complaint, Bravata prepared Primo's offering materials, which he modeled on those provided to BBC Equities investors. The materials allegedly concealed Bravata's role in Primo, and his criminal record, and falsely stated that another individual was in charge of Primo's daily operations. The complaint also alleges that, on Primo's website, Bravata falsely stated that Primo utilized a team of lawyers, accountants, real estate professionals, and analysts, when in fact no such team existed and Primo was limited to Bravata, his incarcerated father, and a former BBC Equities salesman Bravata enlisted to assist with the Primo scheme.

The complaint states that before Bravata was able to complete any sales of Primo securities, the SEC's Division of Enforcement detected his scheme and put a stop to the Primo offering.

The SEC filed charges against Reginald "Reggie" Middleton, a self-described "financial guru," and two entities he controls, Veritaseum, Inc. and Veritaseum, LLC (collectively Veritaseum).  The Commission's complaint, filed in federal court in Brooklyn, New York, alleges that the Defendants marketed and sold securities called "VERI" tokens on the internet, inducing retail investors to invest based on multiple material misrepresentations and omissions.  Among other things, Defendants allegedly knowingly misled investors about their prior business venture and the use of offering proceeds, touted oversized - but fictitious - investor demand for VERI, and claimed to have a product ready to generate revenue when no such product existed.  The complaint further alleges that Middleton manipulated the price of the VERI tokens trading on an unregistered digital asset platform.  The complaint also alleges that Middleton recently moved a significant amount of investor assets and then dissipated a portion of those assets, transferring them to Middleton's personal account.

The Panel granted Respondents' Motion to Dismiss Bertram Riley Sr. as a party, as he did not play a role in the alleged matter. The Panel denied Respondents' Motion to Dismiss the conversion claims in regards to Claimants Jonathan Staiman, William Miller, David Robert, and Alan Green. The Panel granted Respondents' Motion to Dismiss the fraud claims in regards to non-appearing Claimants Jonathan Staiman, William Miller, David Robert, and Alan Green, [sic: comma in original] 

The customer, an experienced investor, did not place a stop loss order as he alleged. He did not give the number of shares or the price of the stock and, as a sophisticated investor, he knew that information was necessary in order to place a stop loss order. He also did not complain for over a year. Based on these facts, I find the claim is false.

• Securities Industry Commentator
• Bill Singer