Securities Industry Commentator by Bill Singer Esq

In anticipation of the institution of these proceedings, Respondent has submitted an Offer of Settlement ("Offer") that the Commission has determined to accept. Respondent admits the facts set forth in Section III below, acknowledges that its conduct violated the federal securities laws, admits the Commission's jurisdiction over it and the subject matter of these proceedings, and consents to the entry of this Order Instituting Administrative and Cease-and-Desist Proceedings Pursuant to Sections 15(b) and 21C of the Securities Exchange Act of 1934 and Section 203(e) of the Investment Advisers Act of 1940, Making Findings, and Imposing Remedial Sanctions and a Cease-and-Desist Order ("Order"), as set forth below.

SEC BMO Order https://www.sec.gov/litigation/admin/2019/34-86976.pdf

SEC Stifel Order https://www.sec.gov/litigation/admin/2019/34-86978.pdf

[O]ver a period of several years, Stifel and BMO each made numerous deficient blue sheet submissions containing missing or inaccurate data, largely due to undetected coding errors. The SEC found that Stifel failed to report data for approximately 9.8 million transactions and provided inaccurate information for approximately 1.4 million transactions. Separately, the SEC found that BMO submitted missing or incorrect data for approximately 5.4 million transactions. According to the SEC's orders, neither firm had adequate processes designed to validate the accuracy of its submissions and each willfully violated the broker-dealer books and records and reporting provisions of the federal securities laws.

The SEC's orders found that each firm has engaged in remedial efforts to address the causes for its deficient submissions, including the retention of an outside consultant and the adoption of new policies and procedures for processing blue sheet requests.

[A]fter years of delays and foot-dragging (much of which preceded Chair Clayton's tenure), we are now presented with a somewhat disingenuous CAT "update." While we continue to await the roll-out of CAT, the SEC maintains its misplaced reliance upon the industry's outdated Electronic Blue Sheets ("EBS") paper trail. See, for example:  Three Broker-Dealers to Pay More Than $6 Million in Penalties for Providing Deficient Blue Sheet Data (SEC Press Release, 2018-275 / Dec. 10, 2018)  https://www.sec.gov/news/press-release/2018-275.  While Wall Street's self-regulatory-organizations dawdle with implementing CAT, brokerage firms continue to generate incomplete and inaccurate securities trading information via EBS production. This lack of reliable production inhibits the SEC's ability to carry out its enforcement and regulatory obligations. If you think I'm being overly pessimistic, consider these comments from Statement on Status of the Consolidated Audit Trail (by SEC Chair Jay Clayton) https://www.sec.gov/news/public-statement/statement-status-consolidated-audit-trail:

[I]n 2016, the Commission approved the CAT NMS Plan prepared by the SROs, which set forth deadlines for CAT's implementation beginning in November 2017.  The SROs have not met the CAT NMS Plan deadlines for the implementation of the CAT. 

Smith/Novak/Jordan Indictment 
https://www.justice.gov/opa/press-release/file/1202466/download

Edmonds Information 
https://www.justice.gov/opa/press-release/file/1202471/download

Trunz Information 
https://www.justice.gov/opa/press-release/file/1202481/download

[B]etween approximately May 2008 and August 2016, the defendants and their co-conspirators were members of Bank A's global precious metals trading desk in New York, London and Singapore with varying degrees of seniority and supervisory responsibility over others on the desk.  As it relates to the RICO conspiracy, the defendants and their co-conspirators were allegedly members of an enterprise-namely, the precious metals desk at Bank A-and conducted the affairs of the desk through a pattern of racketeering activity, specifically, wire fraud affecting a financial institution and bank fraud.

The indictment alleges that the defendants engaged in widespread spoofing, market manipulation and fraud while working on the precious metals desk at Bank A through the placement of orders they intended to cancel before execution (Deceptive Orders) in an effort to create liquidity and drive prices toward orders they wanted to execute on the opposite side of the market.  In thousands of sequences, the defendants and their co-conspirators allegedly placed Deceptive Orders for gold, silver, platinum and palladium futures contracts traded on the New York Mercantile Exchange Inc. (NYMEX) and Commodity Exchange Inc. (COMEX), which are commodities exchanges operated by CME Group Inc.  By placing Deceptive Orders, the defendants and their co-conspirators allegedly intended to inject false and misleading information about the genuine supply and demand for precious metals futures contracts into the markets, and to deceive other participants in those markets into believing something untrue, namely that the visible order book accurately reflected market-based forces of supply and demand.  This false and misleading information was intended to, and at times did, trick other market participants into reacting to the apparent change and imbalance in supply and demand by buying and selling precious metals futures contracts at quantities, prices and times that they otherwise likely would not have traded, the indictment alleges.

As also alleged in the indictment, the defendants and their co-conspirators defrauded Bank A's clients who had bought or sold "barrier options" by trading precious metals futures contracts in a manner that attempted to push the price towards a price level at which Bank A would make money on the option (barrier-running), or away from a price level at which Bank A would lose money on the option (barrier-defending).  Namely, when barrier-running, the defendants and their co-conspirators would allegedly place orders for precious metals futures contracts in a way that was intended to deliberately trigger the barrier option held by Bank A.  Conversely, when barrier-defending, the defendants and their co-conspirators would allegedly place orders for precious metals futures contracts in a way that was intended to deliberately avoid triggering the barrier option held by clients of Bank A.

The indictment also identifies two former Bank A precious metals traders, John Edmonds and Christian Trunz, as being among the defendant's co-conspirators.  Edmonds worked at Bank A from 2004 to 2017 and was a trader on Bank A's precious metals desk, leaving as a vice president.  On Oct. 9, 2018, Edmonds pleaded guilty in the District of Connecticut to an information charging him with one count of commodities fraud and one count of conspiracy to commit wire fraud, commodities fraud, price manipulation and spoofing.  Trunz is a former precious metals trader at Bank A who worked at the bank from 2007 to August 20, 2019, leaving as an executive director.  On Aug. 20, 2019, Trunz pleaded guilty in the Eastern District of New York to an information charging him with one count of conspiracy to engage in spoofing and one count of spoofing.

[I]n 2017, Sookralli opened a shell corporation with a name bearing a close resemblance to both Champion Porsche and another corporate affiliate of the dealership. After forming the shell corporation, Sookralli opened a bank account in the shell corporation's name. Sookralli then entered into bogus sales orders with customers for the unauthorized sales of non-existent future exotic Porsche models. The majority of the vehicles were rare, highly sought-after, Carrera 911 models.  The defendant required deposits from his victims in the form of, wire transfers, bank checks, and cash that he later deposited into his shell company's bank account. The buyers relied on Sookralli's longtime employment at Champion Porsche, title as "Vice President of Marketing," representations that he or she would receive a yet-to-be-built Porsche vehicle, and the seemingly legitimate bank account for wiring deposits to Sookralli. Champion Porsche did not authorize Sookralli to conduct these transactions.

To further his scheme, Sookralli typically provided the customers with signed false and fraudulent purchase orders, sham vehicle build sheets showing the specifications of the customers' vehicle, as well as other false and fraudulent documents. Sookralli often communicated with customers using email and other wire communications.  Some customers sent Sookralli payments using the United States mails and interstate bank wire transfers. During this same fraud scheme, Sookralli defrauded another victim with whom he had agreed to sell, "on consignment," a certain Porsche vehicle for the victim.  Once the defendant sold the car, he kept the money for himself. 

Throughout the conspiracy, customers wired or otherwise transferred approximately $3,000,000 to Sookralli which he used for his personal benefit.  As set forth in the court documents, the defendant used the money for extravagant expenditures including luxury vehicles, jewelry, nightclubs, and restaurants. Sookralli also funneled amounts in excess of $10,000 at a time from his shell company account to bank accounts he controlled.

Prior to executing the fraud scheme involving the bogus sales orders for the Porsche vehicles, in or around 2014 through 2016, Sookralli opened a separate "shell" company named Color Pro Motorsport.  Through that company, Sookralli embezzled additional money from Champion Porsche.

After Champion Porsche uncovered Sookralli's fraud scheme, it contacted his victims and began its cooperation with the criminal investigation.  All of Sookralli's victims with valid claims were made whole by Champion.

[M]arvell orchestrated a scheme to accelerate, or "pull-in," sales to the current quarter that had been scheduled for future quarters.  As stated in the order, the purpose of the pull-in sales, which took place during the fourth quarter of 2015 and first quarter of 2016, was to close the gap between actual and forecasted revenue and to meet publicly-issued revenue guidance.  The pull-ins for these quarters amounted to $24 million and $64 million of the total quarterly revenues, or 5% and 16% of revenue in its key storage segment, respectively.  According to the SEC's order, Marvell's use of pull-ins masked a substantial decline in customer demand, a loss of market share and reduced future sales.  Further, the order states that Marvell ignored internal concerns that the pull-ins were obfuscating the company's deteriorating financial results.  According to the order, by failing to disclose its use of the pull-ins, Marvell misled investors in its SEC quarterly filings and in earnings calls, making positive statements regarding its fourth quarter 2015 financial results and stating that it had met its public guidance for the first quarter of 2016. 

[H]endricks solicited his friends and clients to invest in fraudulent and sham investments in real property and commercial business ventures. To convince the victims of the veracity of their investments, Hendricks provided falsified property documents that represented the purported investments and made statements to hide and conceal the purpose of his scheme. Hendricks spent the funds to personally enrich himself and others.

[P]eters, in his role as a Registered Investment Advisor, defrauded his numerous clients by steering them into investments in which Peters had a direct financial interest.  He then compounded his crimes by attempting to defraud the SEC with false documents and statements.  According to the Court, Peters's crimes were "breathtaking," but were proven with a "tsunami of evidence."  In issuing its 40 year sentence, the Court also noted that Peters "quadrupled down" on the crime by, among other things, perjurying himself at trial.

Dakota is a Florida corporation. Commission Rule of Practice 102(b) provides that a corporation may be represented by "an attorney at law" or "a bona fide officer of [the] corporation." Bruce Zipper does not appear to be an attorney. Based on our preliminary review of the record, after Bruce Zipper sold his equity interest in Dakota to his wife, he was also no longer one of Dakota's officers. As a result, BrokerCheck no longer lists Bruce Zipper as among Dakota's "direct owners and executive officers," and instead lists Margaret A. Zipper as its majority shareholder and president. In addition, amendments to Dakota's articles of incorporation-filed with the Florida Department of State Division of Corporations and available on its Corporation Search website-specify that Margaret-Ann Howington Zipper became the  president, secretary, treasurer, and director of Dakota effective February 27, 2018. Dakota's corporate filings do not list Bruce Zipper as an officer of Dakota. 

Under the circumstances, it appears that Bruce Zipper is ineligible under Rule 102(b) to represent Dakota in this proceeding. Yet the briefs that Bruce Zipper filed on his own behalf, and purportedly on behalf of Dakota, suggest that Dakota wishes to pursue an appeal of FINRA's disciplinary action. As a result, additional briefing would be helpful to the Commission. We have determined to direct Dakota, through its attorney or bona fide officer, to file an additional written submission regarding its briefs in this case. Dakota should address why its officer who signed the application for review has not filed or joined any briefs, whether it requests that the Commission permit it to join Bruce Zipper's briefs and if so why the Commission should grant such a request, or whether it wishes instead to file replacement briefs signed by an attorney or bona fide officer of the corporation. 

• Securities Industry Commentator
• Bill Singer