Securities Industry Commentator by Bill Singer Esq

Statement of Acting Chair Lee and Commissioners Peirce, Roisman, and Crenshaw Regarding Recent Market Volatility (SEC Release / Jan. 29, 2021)

Former Merrill Lynch / BOA Employee Wins Dramatic FINRA Expungement (BrokeAndBroker.com Blog)

M1 Finance and Wealthfront trade charges again, but both firms pledge to stop the 'shenanigans,' in what one expert calls 'a fight between two flavors of the same ice cream' (RIABiz by Oisin Breen)

FINRA Examining Certain Reps Who Took PPP Loans (Wealthmanagement.com by Patrick Donachie)

SEC Charges Detroit-Area Businessperson with Fraud for Using Investor Funds to Play Michigan State Lottery (SEC Release)

Troy Business Owner Charged with Wire Fraud (DOJ Release)

Managing Partner Of Investment Advisory Firm Pleads Guilty To Defrauding Clients And Investors In Over $100 Million Ponzi-Like Fraud Scheme (DOJ Release)

Middlesex County Man Admits Role in Wire Fraud Scheme to Defraud Investors (DOJ Release)

CFTC Orders Nebraska Company to Pay $400,000 for Position Limits Violations (CFTC Release)

It's All Net as FINRA Employment Arbitration Ends With Set-Off Awards

In the Matter of the Arbitration Between Hancock Whitney Investment Services, Inc., Claimant, v. Julian Paul Bourgeois, Respondent (FINRA Arbitration Award)

The Commission is closely monitoring and evaluating the extreme price volatility of certain stocks' trading prices over the past several days. Our core market infrastructure has proven resilient under the weight of this week's extraordinary trading volumes. Nevertheless, extreme stock price volatility has the potential to expose investors to rapid and severe losses and undermine market confidence. 

As always, the Commission will work to protect investors, to maintain fair, orderly, and efficient markets, and to facilitate capital formation. The Commission is working closely with our regulatory partners, both across the government and at FINRA and other self-regulatory organizations, including the stock exchanges, to ensure that regulated entities uphold their obligations to protect investors and to identify and pursue potential wrongdoing. The Commission will closely review actions taken by regulated entities that may disadvantage investors or otherwise unduly inhibit their ability to trade certain securities.

In addition, we will act to protect retail investors when the facts demonstrate abusive or manipulative trading activity that is prohibited by the federal securities laws. Market participants should be careful to avoid such activity. Likewise, issuers must ensure compliance with the federal securities laws for any contemplated offers or sales of their own securities.

The Commission will continue our work on behalf of investors and the markets. In this regard, we hope to facilitate a robust public dialogue among market participants and investors on the structure and operation of our securities markets. Members of the public can submit tips or complaints through the Commission's website using this online form. Members of the public with questions should contact the Commission's Office of Investor Education and Advocacy at 1-800-732-0330, ask a question using this online form, or email us at Help@SEC.gov.

examining certain registered reps who received loans through the government's Paycheck Protection Program (PPP), according to a letter obtained by WealthManagement.com. Securities attorneys and analysts say the scrutiny concerns reps with outside businesses who took loans for those entities but never disclosed the existence of those businesses to their member firms.

The letter, which was sent to an unnamed recipient, says the agency's National Cause and Financial Crimes Detection Programs is looking into the receipt of the loan in an attempt to gauge "whether violations of the federal securities laws or FINRA rules have been violated." 

[I]n June 2016, Gjonaj believed he had discovered a guaranteed way to win huge jackpots in the Michigan Lottery Dailey 3 and 4 games. To accomplish this he had to substantially increase the times he played and amounts he spent. In 2017, Gjonaj began losing more money than he won and more money than he could afford to lose. Rather than ending his gambling, Gjonaj devised a scheme to trick individuals into giving him money by falsely promising them he would invest it in lucrative real estate deals. In order to make the deals look legitimate, Gjonaj created a fake title company and instructed the victim-investors to wire transfer money into the bank account of the fake company. Gjonaj described the fraudulent real estate deals in great detail and encouraged victim-investors to continue giving him money by disbursing payments to them which he falsely claimed were profits on their "investment." By early 2019, Gjonaj was betting over $1 million a week on Michigan Lottery games using money fraudulently obtained from victims. In August 2019, Gjonaj's scheme to defraud unraveled resulting in over $19 million in losses to victims.  

[F]rom at least mid-2016 to 2019, Gjonaj raised approximately $26.4 million through the fraudulent offer and sale of investment contracts to at least 24 investors, most of whom were members of the Albanian-American community in Detroit. As alleged, Gjonaj falsely represented to investors that their money would be used to purchase, develop, and sell real estate projects. Instead, Gjonaj allegedly used at least $10 million of the investors' funds to play the Michigan State Lottery, at times buying as much as $1 million worth of lottery tickets in a single week. Gjonaj also allegedly directed millions of dollars of investors' money to his personal checking account. As alleged, in order to maintain the fraud, Gjonaj repaid investors with lottery winnings, which Gjonaj falsely claimed were proceeds from real estate investments. According to the complaint, by August 2019, Gjonaj had lost all of his own and his investors' money, and owed the investors approximately $19 million.

Background of IIG 

HU and a co-conspirator ("CC-1") founded IIG in 1994.  HU was a managing partner and the chief investment officer of IIG.  IIG, an SEC-registered investment adviser, provided investment management and advisory services, including for three private funds that it operated: (1) the IIG Trade Opportunities Fund N.V. ("TOF"); (2) the IIG Global Trade Finance Fund, Ltd. ("GTFF"); and (3) the IIG Structured Trade Finance Fund, Ltd. ("STFF").  IIG also advised the Venezuela Recovery Fund ("VRF"), a fund that managed the remaining assets of a failed Venezuelan bank (VRF, together with TOF, GTFF, and STFF, the "IIG Funds").  In March 2018, IIG reported to the SEC that it had approximately $373 million in assets under management.

IIG advertised itself as specializing in global trade financing, particularly in providing trade finance loans to small and medium-sized businesses.  IIG's principal investment advisory strategy, including with respect to the IIG Funds, was investing in trade finance loans that it also originated.  Trade finance loans are used by small and medium-sized companies, typically exporters and importers, to facilitate international trade.  IIG's purported expertise was in trade finance loans to borrowers located in Central or South America, and in a variety of industries, with a stated focus on "soft commodities," such as coffee, agriculture, fishing, and other food products.  IIG's trade finance loans were purportedly secured by collateral, such as the underlying traded goods, assets held by the borrowers, or expected payments by third parties.

Investments in TOF, STFF, and GTFF were marketed by IIG to institutional investors, such as pension funds, hedge funds, and insurers.  In offering memoranda and communications with investors, IIG advertised strict risk controls, such as promises to use diligence to carefully select borrowers or issuers with trusted management and marketable assets, and portfolio concentration limits based on borrower, developing country, and industry.

IIG purported to value the trade finance loans in the IIG Funds on a regular basis.  IIG and, in turn, HU, received a performance fee with respect to the IIG Funds, as well as a management fee, which was calculated as a percentage of the assets under management held in the Funds.

The Scheme

From approximately 2007 to 2019, HU conspired to defraud investors in IIG-managed funds by: (i) overvaluing distressed loans held by the IIG Funds, (ii) falsifying paperwork to create a series of fake loans that were classified, fraudulently, as positively performing loans, and to otherwise hide losses, (iii) selling overvalued and fake loans to a collateralized loan obligation trust and new private funds established and advised by IIG, and (iv) using the proceeds from those fraudulent sales to generate liquidity required to pay off earlier investors in a Ponzi-like manner.

The scheme HU participated in involved, among other things:

• Mismarking Defaulted Loans. HU and CC-1 caused IIG to mismark the value of multiple loans that had, in reality, defaulted (the "Defaulted Loans").  Instead of acknowledging the defaulted status of these loans, HU and CC-1 instead caused IIG to mark the Defaulted Loans at par plus accrued interest, even though HU and CC-1 knew that the borrowers' default significantly impaired the true value of these loans.  HU and CC-1 certified these false valuations and caused them to be reported to investors.

• Mismarking Distressed Loans.  HU and CC-1 caused IIG to mismark multiple loans that were distressed (the "Distressed Loans").  These Distressed Loans included, for example, loans for which the borrowers had missed multiple scheduled payments.  Even though HU and CC-1 knew that the non-performing status of the loans significantly impaired their true value, they nevertheless caused IIG to continue to mark the loans at par plus accrued interest.

• Creating Fictitious Loans. With respect to TOF, in order to hide the losses resulting from the Defaulted Loans, including from auditors reviewing TOF's financials, HU and CC-1 removed the Defaulted Loans from the TOF portfolio, replacing them with tens of millions of dollars in fictitious loans to purported borrowers in foreign countries (the "Fake Loans").  HU and CC-1 also created or directed the creation of documents to keep in IIG's files as purported documentation of the Fake Loans.  To pass auditor scrutiny, HU and CC-1 also directed purported borrowers - sham  foreign entities that were controlled by IIG's business associates and that did not engage in actual business - to provide confirmations of the Fake Loans to auditors, including by arranging for TOF to pay a monthly fee to one purported borrower in exchange for providing false confirmations.  In reality, these purported borrowers did not receive a loan from TOF, and were not expected to make any payments to TOF. 

• Using a CLO Trust to Create Liquidity through Investments in Fraudulent Loans. In or about 2014, HU and CC-1 obtained approximately $220 million in bank financing to create a collateralized loan obligation trust (the "CLO Trust"), for which IIG served as an investment adviser.  HU and CC-1 then engaged in various deceptive acts, using the CLO Trust, to hide TOF's losses and generate liquidity for TOF, which was facing investor redemption requests and demands for repayment of loans that IIG had taken from international development banks.  For example, in its capacity as investment adviser for the CLO Trust, IIG, through the efforts of HU and CC-1, caused the newly-created CLO Trust to purchase loans from the TOF portfolio, including Defaulted Loans, Distressed Loans, and Fake Loans, which generated liquidity for TOF.  After the CLO Trust purchased loans in the TOF portfolio, IIG, through the efforts of HU and CC-1, generated additional liquidity by causing the CLO Trust to issue securitized debt instruments based on these loans, payable in various tranches to investors in the CLO Trust.

• Using the CLO Trust and Panamanian Shell Entities to Cover Up Losses. IIG, through the efforts of HU and CC-1, also caused the CLO Trust to create new fraudulent trade finance loans, and used those new fraudulent loans to cover up TOF's losses.  Specifically, HU caused the creation of shell entities domiciled in Panama ("Panamanian Shell Entities") that were controlled by an IIG nominee.  Then, HU caused the CLO Trust to enter into fake loan transactions with the Panamanian Shell Entities.  HU caused the creation of fake promissory notes and other paperwork to conceal the fraudulent nature of the loans to the Panamanian Shell Entities.  Finally, under the guise of the fake loan transactions with the Panamanian Shell Entities, the CLO Trust disbursed funds that HU and CC-1 diverted to TOF in order to pay off TOF's various debts and obligations.

• Generating Liquidity by Selling Fraudulent Loans to a Newly-Created Funds Backed by a New Investor.  In or about 2017, HU and CC-1 targeted a foreign institutional investor ("Institutional Investor-1") to raise money for two new private IIG managed funds: GTFF and STFF. Institutional Investor-1 provided $70 million as the seed investment for GTFF, and, later, $130 million as the seed investment for STFF.  HU and CC-1 caused GTFF and STFF to purchase at least approximately $100 million in fake, distressed, defaulted or otherwise fraudulent loans.  

• Inducing a Retail Mutual Fund to Invest in a Fictitious $6 Million Loan.  In or about December 2012, IIG became an investment adviser to an open-ended mutual fund marketed to retail investors (the "Retail Fund"). As an investment adviser to the Retail Fund, IIG made investment recommendations, including recommendations that the Retail Fund invest in trade finance loans originated by IIG.  In or about February 2017, a borrower (the "Argentine Borrower") had failed to pay the principal on an approximately $6 million loan ("Loan-1") in which the Retail Fund had invested and which was nearing its maturity date.  In or about March 2017, HU caused approximately $6 million to be transferred into an account associated with the Argentine Borrower from the account of a different borrower ("Borrower-1"), and further directed the funds from Borrower-1's account to pay off the debt owed by the Argentine Borrower to the Retail Fund.  To replace the funds from Borrower-1's account that were used to make it appear as though the Argentine Borrower had repaid its debt to the Retail Fund, HU fraudulently induced the Retail Fund to invest in a new, fake $6 million loan to the Argentine Borrower (the "New Loan").  HU then directed that the proceeds from the fraudulently induced New Loan be transferred into Borrower-1's account, effectively reimbursing the account for the earlier $6 million transfer to the Retail Fund.  To further conceal the fraudulent nature of the New Loan, HU caused the creation of forged documents to make it appear as though the New Loan was a legitimate loan to the Argentine Borrower.

From January 2014 to June 2018, Burd represented to his victims that he was involved in buying tickets to high-profile concerts, sporting events, and Broadway shows and then reselling those tickets for a profit. Burd induced the victims to provide him with money that would purportedly be invested in his ticket purchase and resale activities, and he represented that the profits from the sales of those tickets would be shared among him and the victims. Burd further assured the victims that investing with him carried no risk, and he promised returns on their investments of 30 percent to 40 percent. Burd made payments to certain victims that were purportedly their profits, and made representations to certain victims that portions of their profits were being reinvested in additional ticket deals, which in turn purportedly would generate more profits for those victim.  In fact, Burd did not purchase or sell any material amount of tickets with the victims' money, and he instead used their investments for his personal expenditures. In total, Burd obtained approximately $447,000 from the victims over the course of the fraudulent scheme. 

[F]about December 2017 to at least July 2019, AGP purchased large volumes of local soybeans. AGP then utilized a process called crushing to process their purchased goods into soybean meal and crude soybean oil. In order to hedge its risk as a soybean crusher, AGP, among other things, took positions in the CBOT soybean meal futures contract that exceeded the CFTC's speculative position limit as well as AGP's fixed price cash positions for such contracts as reflected in its Form 204s filed with the Commission. AGP applied for and received exemptions from CME that permitted AGP to exceed CME's position limits, as set forth in Rule 559 of the CBOT Rulebook. AGP filed timely Form 204s and traded within its CME-granted exemptions, but at no point did AGP either seek or receive authorization from the CFTC to exceed federal position limits. As a result, AGP violated the CFTC's all-months position limit for the soybean meal futures contract on multiple occasions.

• Securities Industry Commentator
• Bill Singer