Securities Industry Commentator by Bill Singer Esq

Early on, some of Nowak's traders were attempting to counter the algos by placing a single large order opposite the one they wanted filled, according to prosecutors. The Bear traders' twist was to place multiple orders, at different prices, that in aggregate were substantially larger than the genuine order - a technique the government calls layering. The orders, made in rapid succession after the genuine order, would be canceled as soon as the genuine order was filled. Think of it like trying to sell a hamburger. You conjure a mob in front of your burger joint, creating the perception of demand. Once a real customer steps up and buys the burger, you make the mob vanish.

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change 

FINRA is proposing to amend the Code of Arbitration Procedure for Customer Disputes ("Customer Code") and the Code of Arbitration Procedure for Industry Disputes ("Industry Code") (together, "Codes") to modify the current process relating to the expungement of customer dispute information. 

Specifically, the proposed rule change would amend the Codes to: (1) impose requirements on expungement requests (a) filed during an investment-related, customer initiated arbitration ("customer arbitration") by an associated person, or by a party to the customer arbitration on-behalf-of an associated person ("on-behalf-of request"), or (b) filed by an associated person separate from a customer arbitration ("straight-in request"); (2) establish a roster of arbitrators with enhanced training and experience from which a three-person panel would be randomly selected to decide straight-in requests; (3) establish procedural requirements for expungement hearings; and (4) codify and update the best practices of the Notice to Arbitrators and Parties on Expanded Expungement Guidance ("Guidance") that arbitrators and parties must follow.3 In addition, the proposed rule change would amend the Customer Code to specify procedures for requesting expungement of customer dispute information arising from simplified arbitrations. The proposed rule change would also amend the Codes to establish requirements for notifying state securities regulators and customers of expungement requests.

[V]orley and Chanu, who were employed as traders at Deutsche Bank-Vorley based in London; Chanu based in London and Singapore-engaged in a scheme to defraud other traders on the Commodity Exchange Inc., which was an exchange run by the CME Group.  The defendants defrauded other traders by placing fraudulent orders that they did not intend to execute in order to create the appearance of false supply and demand and to induce other traders to trade at prices, quantities, and times that they otherwise would not have traded.  Specifically, the evidence showed that the defendants engaged in the practice of "spoofing," which means that they placed orders on the exchange which, at the time the orders were placed, they did not intend to execute, all for the purpose of deceiving other market participants.

Between 2010 and 2014, while working as a financial planner, Young solicited his clients and others to invest money in false "side investments," including real estate investments for property he did not own and investments in an oil and gas company with which he had no relationship. Young presented false documents to potential investors and falsely claimed that he was personally invested in order to convince them to invest. Almost all of Young's victims were between the ages of 55 and 90. For those who agreed to invest, Young simply pocketed their money, which totaled over half a million dollars, for his own personal use. In some instances, Young used money obtained from investors to pay back other investors. He fraudulently claimed the funds represented returns or interest on their investments in order to keep the scheme going. Young also failed to file his federal tax returns for 2012, 2013, and 2014.

[B]etween September 2016 and at least November 2018, the defendant operated a series of businesses, including Black Diamond Forex, L.P., BDF Trading, L.P., Advanta Capital Markets, Inc., and Advanta FX, each of which purported to be in the business of trading foreign currencies. Using a variety of misrepresentations and omissions, Salerno induced victims to pay advance fees-up-front payments of typically more than $1,000-in order to be hired by Salerno's company. He told the victims that, upon being hired, he would make available to them a pool of $10 million which they could trade on the foreign currency market, and take a generous cut of any profits. Each of these representations was completely false.

To make his fraudulent activities appear legitimate, Salerno held himself out as a sophisticated and successful businessman. According to the Indictment, the defendant claimed to have managed a real estate empire, a portion of which he claimed to have recently sold for $10 million to fund the currency-trading venture. He also claimed that he had been a profitable currency trader. None of this was true, either. In fact, he declared bankruptcy twice, most recently in 2015, and had been evicted multiple times from rental homes for failure to pay rent. In 2005, he pleaded guilty to federal tax charges and was sentenced to 21 months in prison. He failed to disclose any of this to the aforementioned victims before taking their money. Instead, Salerno allegedly collected more than $300,000 in advance fees and used the money for his own benefit.

The defendant's currency-trading scheme came to a halt when this Office opened a criminal investigation and the Commodity Futures Trading Commission sought and obtained an injunction against Salerno and his businesses in 2018. However, Salerno allegedly turned immediately to a second scheme. Also according to the Indictment, between May 2018 and least December 2019, Salerno operated a company called AccuOne Financial, Inc. AccuOne purported to be in the business of assisting clients in ridding themselves of unwanted automobile leases. It also purported to offer a different set of clients, whose personal credit precluded them from obtaining an automobile lease, access to automobile leases, low interest vehicle loans, and credit repair services. But Salerno failed to do as promised, instead ripping off both sets of clients. According to the Indictment, the defendant took the unwanted vehicles from the first set of clients, made few - if any - of the required lease payments, and then gave the vehicles to the second set of clients who could not obtain their own leases, in exchange for substantial monthly fees. The predictable result of this house of cards-style scheme was that the clients who wanted to get out of their leases either continued to make monthly lease payments for cars they no longer had, or suffered substantial damage to their credit. And the clients who leased cars from AccuOne often had them repossessed without warning. As for Salerno, he netted several hundred thousand dollars from this scheme alone.

I grant the Division of Enforcement's motion for summary disposition. Respondent Mark Feathers is barred from associating with a broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization, and from participating in an offering of any penny stock. 

Feathers has made no assurances, sincere or otherwise, against future violations and has done nothing to show that he recognizes the wrongfulness of his conduct. To the contrary, he has tried to show that he is the victim and has done nothing wrong. As the district court noted during Feathers's sentencing hearing, Feathers was extremely litigious. The district court detailed how Feathers attacked the receiver in the Civil Case by filing a meritless bar complaint against the receiver's counsel and filing a meritless complaint against the receiver with the Chartered Financial Analyst Institute. Feathers also harassed the receiver by sending e-mails hurling "false accusations, personal attacks," and about 35 threats to bring legal action. And during his criminal case, Feathers e-mailed his counsel, four Commission attorneys, the receiver, and the receiver's counsel, threatening physical injury to anyone who uttered the word "Ponzi" and stating, "you have been able to introduce prejudice with the use of the word Ponzi in public and in hidden court pleadings. You won't get away with it again (with me at least)." Finally, during this proceeding, Feathers has continually tried to attack the basis for the district court's injunction, launching accusations at various participants in the Civil Case. In short, Feathers has shown that he does not accept the district court's judgment or responsibility for his actions. 

Feathers's refusal to accept responsibility for his actions, particularly given that his conduct was egregious and that he acted with scienter, makes it likely that he would engage in more misconduct if he were allowed to remain in the securities industry. Indeed, Feathers's occupation would present him with "opportunities for future illegal conduct." His refusal to accept responsibility and attempts to shift blame must therefore weigh heavily against him in the public-interest analysis.

[T]he Securities and Exchange Commission announced charges against five Atlanta-based individuals, including film producer Ryan Felton, rapper and actor Clifford Harris, Jr., known as T.I. or Tip, and three others who each promoted one of Felton's two unregistered and fraudulent initial coin offerings (ICOs). The SEC also charged FLiK and CoinSpark, the two companies controlled by Felton that conducted the ICOs. Aside from Felton, all of the individuals have agreed to settlements to resolve the charges against them.

The SEC's complaint alleges that Felton promised to build a digital streaming platform for FLiK, and a digital-asset trading platform for CoinSpark. Instead, Felton allegedly misappropriated the funds raised in the ICOs. The complaint also alleges that Felton secretly transferred FLiK tokens to himself and sold them into the market, reaping an additional $2.2 million in profits, and that he engaged in manipulative trading to inflate the price of SPARK tokens. Felton allegedly used the funds he misappropriated and the proceeds of his manipulative trading to buy a Ferrari, a million-dollar home, diamond jewelry, and other luxury goods.

In a settled administrative order, the SEC finds that T.I. offered and sold FLiK tokens on his social media accounts, falsely claiming to be a FLiK co-owner and encouraging his followers to invest in the FLiK ICO. T.I. also asked a celebrity friend to promote the FLiK ICO on social media and provided the language for posts, referring to FLiK as T.I.'s "new venture." The SEC's complaint alleges that T.I.'s social media manager William Sparks, Jr. offered and sold FLiK tokens on T.I.'s social media accounts, and that two other Atlanta residents, Chance White and Owen Smith, promoted SPARK tokens without disclosing they were promised compensation in return.

In the first order, a whistleblower was awarded over $1.8 million for taking both personal and professional risks in reporting information through the internal compliance system at a company.  The tip revealed overseas conduct that would otherwise have been hard to detect.  The whistleblower's internal report resulted in an internal investigation at the company and a subsequent report of the findings to the SEC.  The whistleblower also provided the information to the SEC. 

In the second order, a whistleblower was awarded $750,000 for reporting securities violations occurring abroad to the SEC, which caused the SEC staff to open an investigation that resulted in a successful enforcement action. The whistleblower also reported the concerns internally. 

[I] want to be clear that this rule does contain improvements designed to address issues that have arisen in the course of the last 10 years. These improvements were the original impetus revisiting the rules. I am hopeful that they will provide substantial benefits for whistleblowers, and for our administration of the program. In particular, the new summary disposition procedures and the ability to bar individuals who make repeated, frivolous awards claims will allow staff to expend their limited resources on processing meritorious claims. Similarly, codifying the practice of treating Deferred and Non-Prosecution Agreements as covered or related actions is an appropriate and welcome measure to ensure that whistleblowers are not disadvantaged by the Commission's or the Department of Justice's choice of resolution mechanism.

I appreciate these efficiency improvements, but they do not outweigh the very real problems in the rule we are adopting today. In sum, at a time when the importance of whistleblowers has never been clearer, I cannot support these new rules that in too many ways increase discretion and restrict access to our program without providing essential clarity, transparency, and accountability.

I must respectfully dissent.

The value of the program is evident from the staggering volume of tips we receive, and the number of awards claims submitted. Our program today is working well; in this fiscal year we have processed a record number of claims. The volume of claims to be processed continues to grow, as our program attracts more and more tips every day. What is needed is a thoughtful and limited set of amendments to our rules to enhance efficiency and transparency, without detracting from what makes our program such a success. Unfortunately, that is not what this rule offers. Instead of fixing what is broken, we instead run the risk of breaking what works.    

So, to recap. We said at proposal that we needed a rule that would allow us the discretion to consider dollar amounts, but that our proposed rule would limit the use of that discretion to only cases in which the money collected totaled at least $100 million. Now, we claim that we do not need a new rule at all, that we've had this discretion all along. Yet, we add rule text that appears to limit the discretion in some fashion. In fact, the new rule is even more problematic than the proposal because we are no longer even restricted to the largest awards. We may exercise this newly-claimed discretion to adjust awards up or down, on any case, large or small, so long as we say that we are doing so "in considering and applying the award factors," whatever that may mean.

And importantly, the rule will not require the Commission to tell whistleblowers if or when we have exercised this discretion. Thus, there will be no transparency, and no accountability.

I tried hard to understand how we got here, and I tried hard, as did my colleagues, to find some potential way to get to a consensus. But ultimately, I cannot support a rule that allows two different outcomes where the only difference is the size of the amount collected. By definition, that means that the dollar amount or size of the award is factored into our consideration. The concern with the original 2018 proposal was that it would allow the reduction of awards on the basis of an objection by the Commission solely to the size of an award. Today's rule enshrines that approach.

Why does this matter? Because when this discretion is used, it will most likely be in exactly the circumstances posed by the 2018 hypothetical - to adjust what would otherwise have been a very large award downward (without any notice to the whistleblower or the public). We don't need this discretion to adjust a small award upward, as we have a mechanism in the new rule to do that with the new presumption applying to awards of $5 million or less. The clear concern expressed by the 2018 hypothetical and inherent in the new rule is how to adjust very large awards downward if a majority of Commissioners simply feel an award amount is "too high." This kind of determination, unlike the existing award factors, has absolutely nothing to do with the merits of a whistleblower's conduct or the value of the information she provides. In other words, the existing factors have a rational relationship to the award amount we set. The overall size of the award does not. This injects an arbitrary wildcard into what was a sensible, merits-linked calculus.

Whistleblowers deserve better. They take great risks to help law enforcement, never knowing when they make their decision to speak up what will happen to them. Will they lose their jobs? Will their physical safety be threatened? Will anyone care? Will there be enough proof to bring a case? If an action is brought, will it result in a recovery for victims? Will they ever be compensated in any way for these risks?  Each of these questions creates well-grounded fear, uncertainty, and risk. We should not introduce more.

I don't doubt assertions by individual Commissioners about how they intend to use this discretion, nor do I doubt my colleagues' commitment to the program. Unfortunately, such assertions are not relevant to the wisdom of the new rule because future Commissions will not be bound in any way to take a similar approach to the exercise of this newly-asserted discretion.

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READ: SEC Reforms Its Whistleblower Program (BrokeAndBroker.com Blog)

http://www.brokeandbroker.com/5449/sec-whistleblower/

In 2015, I earned the distinction of representing the first in-house compliance officer to whom the SEC issued a whistleblower award, which was over $1 million. My client risked a long-standing industry career after realizing that the firm's management knowingly implemented a fraud upon the regulatory community designed to cover up serious misconduct. Sadly, my interaction with the SEC's Office of the Whistleblower was horrific notwithstanding that my client ultimately enjoyed a much-deserved reward. Despite the significant personal and professional risk incurred by my client in reaching out to the SEC, the whistleblower was largely responded to by OWB with an attitude of dismissiveness bordering on hostility. That was in marked contrast to the professional interaction with the Enforcement staff handling the underlying investigation. Thankfully, the SEC has taken steps to reform some of the shortcomings of its whistleblower program.

• Securities Industry Commentator
• Bill Singer