SEC Enforcement Update – A busy (and entertaining) week, July 28 – August 1, 2014
At the Intersection of Faith and Illiteracy.
In what may have been one of the more interesting weeks this year for SEC enforcement actions, the Enforcement Division brought a number of actions last week, several of which will make you wonder if the warnings that we issued when the JOBS Act was passed are not coming to pass. Although none of these actions are based on 506(c) reliance, they do suggest that as capital finally starts to seek new opportunities outside the mainstream, it is necessary for investors to evaluate investment opportunities very carefully in order to avoid the scam artists who, like Jesse James, go where the money is.
On July 31, 2014, the SEC filed fraud charges and sought emergency relief against Thomas J. Lawler of Snellville, Georgia, a self-proclaimed minister, and his company, Freedom Foundation USA LLC for fraudulently offering and selling fictitious securities. With all due respect to Siskel and Ebert, this case is not to be missed. I laughed, I cried, if you only read one enforcement action this year, it has to be this one.
The SEC’s complaint filed in U.S. District Court for the Northern District of Georgia alleged that, since as early as 2004, the defendants Lawler and Freedom Foundation offered investors the opportunity to eliminate their debts and collect lucrative profits through the purchase of so called “administrative remedies” (“ARs”). Defendants told potential investors that every individual had funds established for them in an account at birth — where, by whom, and in what amount the supposed account is established are details Lawler does not provide. Defendants further told potential investors that the investors therefore did not owe their creditors for mortgage and other debts, and that Freedom Foundation would use its unique and proprietary process to create the ARs, which would eliminate the investors’ debt and provide a lucrative financial return. Does the Wesley Snipes tax case come to mind?
The SEC alleged that defendants told potential investors that a $1,000 AR would cancel the investor’s debt and return $325,000 to the investor, while a $10,000 investment would supposedly entitle the investor to receive $1 million when the AR funded. Freedom Foundation claimed it would fund the ARs through a mysterious process involving a Papal decree. What could possibly go wrong there? The SEC claims that Lawler sold approximately 2,000 ARs over ten years to investors throughout the country and that he was actively soliciting additional investors. This is not exactly one per minute, but it is impressive. And, as shocking as this may sound, the SEC found that not one investor in this scheme received any of the promised returns.
Freedom Club targeted our most ignorant and vulnerable citizens through an internet presentation that was designed to prey on the uninformed and easily swayed. Let’s hope that the SEC is not successful in shutting down the Freedom Club website before you have the opportunity to check it out: http://www.freedomclubusa.com/. Admit it, this case does raise the question of whether anyone who would fall for this scam should be allowed to handle money at all…ever.
Chief Compliance Officer/General Counsel Takes the Fall.
You may recall that we recently wrote about attorneys who seem to escape scrutiny by the SEC when they participate in illegal activities. There is an administrative remedy against attorneys who facilitate or promote wrongdoing, but the SEC has been slow to target ethically challenged attorneys. Well, wait no longer. Last month, a judgment was entered by consent against the general counsel and chief compliance officer of an investment adviser who was found to have aided and abetted fiduciary violations of the firm’s principal in the misappropriation of hedge fund client assets in contravention of the offering documents of the fund. What is the take away here? If you are a Chief Compliance Officer, I believe you know the answer to that one.
See, Securities and Exchange Commission v. Weston Capital Asset Management, LLC, et al., Civil Action Number 14-CV-80823-COHN, in the United States District Court for the Southern District of Florida.
Criminal Referrals Catching On.
Robert G. Bard was sentenced on July 31 by a U.S. District Court in Pennsylvania. Bard had been found guilty by a jury and convicted of 21 counts of securities fraud, mail fraud, wire fraud, bank fraud, and making false statements for defrauding his investment advisory clients between December 2004 and August 2009. The court sentenced Bard to 262 months imprisonment and ordered him to pay $4.2 million in restitution to 66 victims. If you do the math, this comes out to right around $200,000 per year sentence.
The criminal case arose out of the same facts that were the subject of a civil injunctive action filed by the SEC in 2009. The Commission’s complaint alleged that defendant Bard, an investment adviser, and his solely-owned company Vision Specialist Group LLC had violated the federal securities laws through fraudulent misrepresentations regarding client investments, account performance and advisory fees, and by Bard’s creation of false client account statements, forgery of client documents.
In a follow-on administrative proceeding to the SEC’s civil court action, an administrative law judge barred Bard from the securities industry in an initial decision.
Elder Abuse also Brings Criminal Action.
The SEC also brought charges against a broker based in Roanoke, Va., for allegedly defrauding elderly customers, including some who are legally blind, by stealing their funds for her personal use and falsifying their account statements to cover up her fraud.
According to the SEC’s complaint, Donna Jessee Tucker siphoned $730,289 from elderly customers and used the money to pay for such personal expenses as vacations, vehicles, clothes, and a country club membership. Tucker ensured that the customers received their monthly account statements electronically, knowing that they were unable or unwilling to access their statements in that format. The SEC further alleges that Tucker engaged in unauthorized trading and other financial transactions while making misrepresentations to customers about their investment accounts and forging brokerage, banking, and other documents.
In a parallel action, the U.S. Attorney’s Office for the Western District of Virginia announced criminal charges against Tucker.
The above cited actions represent just some of the more interesting enforcement actions brought by the SEC and the Department of Justice in recent days. The full list is more extensive.