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U.S. Securities and Exchange Commission

United States of America
before the
Securities and Exchange Commission

Securities Exchange Act Of 1934
Release No. 48139 / July 8, 2003

Administrative Proceeding
File No. 3-11172


In the Matter of

Robert B. Kessler

Respondent.


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ORDER INSTITUTING ADMINISTRATIVE PROCEEDINGS PURSUANT TO SECTION 15(b) OF THE SECURITIES EXCHANGE ACT OF 1934, MAKING FINDINGS AND IMPOSING REMEDIAL SANCTIONS

I.

The Commission deems it appropriate and in the public interest that administrative proceedings be instituted pursuant to Section 15(b) of the Securities Exchange Act of 1934 ("Exchange Act"), with respect to Robert B. Kessler ("Kessler").

II.

In anticipation of these proceedings, Kessler has submitted an Offer of Settlement ("Offer") which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission or to which the Commission is a party, and without admitting or denying the findings contained herein, except that Kessler admits the jurisdiction of the Commission over him and the subject matter of this proceeding and the entry of the injunction set forth in paragraph III.G. of this Order Instituting Administrative Proceedings Pursuant to Section 15(b) of the Securities Exchange Act of 1934, Making Findings and Imposing Remedial Sanctions ("Order"), Kessler has consented to the findings and sanctions set forth below.

Accordingly, IT IS ORDERED that proceedings pursuant to Section 15(b) of the Exchange Act be, and they hereby are, instituted.

III.

On the basis of this Order and the Offer submitted by Kessler, the Commission finds that:

A. From 1996 until the fall of 1999, Kessler was a registered representative at, and president of, Paramount Securities, a registered broker-dealer headquartered in Great Neck, New York.

B. On August 18, 1999, the Commission filed a complaint ("Complaint") to initiate a civil injunctive action, SEC v. Vincent Napolitano, et al. (CV 99-4807 JS), in the United States District Court for the Eastern District of New York against Kessler, among others, alleging that Kessler violated Section 17(a) of the Securities Act of 1933 ("Securities Act") and Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and Rule 101 of Regulation M.

C. The Complaint alleges that, beginning in August 1998, Kessler participated with others in a scheme to manipulate the prices of four microcap securities: Detour Magazine, Inc. ("Detour"); Tri-Com Technology Group, Inc. ("Tri-Com"); Wineco Productions, Inc. ("Wineco"); and Fidelity Capital Group Holdings, Inc. ("Fidelity")(collectively, the "Issuers"). All of these securities were quoted on the OTC Bulletin Board.

D. During the time period relevant to this proceeding, the common stock of Detour, Wineco and Fidelity was not registered or approved for registration upon notice of issuance on a national securities exchange, nor were such securities authorized, or approved for authorization upon notice of issuance for quotation on an automated quotation system sponsored by a registered securities association which was established and in operation before January 1, 1990, nor were such securities issued by a registered investment company. During all or a portion of the time period relevant to this proceeding the price of the common stock of Detour, Wineco and Fidelity was less than five dollars a share. At no time relevant to this proceeding did Detour, Wineco or Fidelity have net tangible assets in excess of $2,000,000 or average revenue of $6,000,000 for the last three years. Therefore, these securities were penny stocks at the time Kessler participated in distributions of such securities.

E. The Complaint further alleges that the elements of this scheme were as follows: (1) the parties to the scheme obtained control of large blocks of stock in the Issuers; (2) certain participants in the scheme caused these stocks to be touted in Internet newsletters they controlled so that investors would purchase shares in the Issuers and the prices of these stocks would rise; (3) the parties to the scheme collaborated in manipulating the prices of the Issuers' securities by bidding for and purchasing the Issuers' securities and by Kessler's conduct in raising and lowering the bid and ask quotations for those securities; and (4) the parties to the scheme sold their securities in the Issuers at the artificially elevated prices.

F. The Complaint further alleges that, although Kessler was aware of and participated in the carrying out of the scheme, neither he nor the other parties to the scheme disclosed the foregoing elements of the scheme to the investing public.

G. On June 3, 2003, the United States District Court for the Eastern District of New York issued an order of permanent injunction against Kessler enjoining him from future violations of Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and Rule 101 of Regulation M.

IV.

In view of the foregoing, it is appropriate and in the public interest to impose the sanctions agreed to in the Offer submitted by Kessler. Accordingly,

IT IS ORDERED, pursuant to Section 15(b) of the Exchange Act,

A. That Kessler be, and hereby is, barred from participating in any offering of a penny stock, including: acting as a promoter, finder, consultant, agent, or other person who engages in activities with a broker, dealer or issuer for purposes of the issuance or trading in any penny stock; or inducing or attempting to induce the purchase or sale of any penny stock; and

B. That Kessler be, and hereby is, barred from association with any broker or dealer.

By the Commission.

Jonathan G. Katz
Secretary

 

http://www.sec.gov/litigation/admin/34-48139.htm


Modified: 07/08/2003