UNITED STATES SECURITIES AND EXCHANGE COMMISSION LITIGATION RELEASE NO. 15394 / June 25, 1997 SECURITIES AND EXCHANGE COMMISSION V. MARK E. GATCH AND HENRY BENJAMIN SCHMIDT, Case No. C-1-97-599 (SSB) (S.D. Ohio, W.D.) The Securities and Exchange Commission announced the filing of a complaint on June 24, 1997 in United States District Court for the Southern District of Ohio, Western Division, alleging a Ponzi scheme operated by Ben Mar Investments, Inc. ("Ben Mar"), a defunct unregistered investment adviser based in Florence, Kentucky. Named as defendants were: * Mark E. Gatch ("Gatch"), age 39, a resident of Amelia, Ohio and the co-founder, president, and chief financial officer of Ben Mar; * Henry Benjamin Schmidt ("Schmidt"), age 63, a resident of Crestview Hills, Kentucky, and St. Petersburg, Florida, and the co-founder and owner of Ben Mar. The Commission's Complaint alleges as follows: From February 1992 through March 1995, Gatch and Schmidt, through Ben Mar, raised approximately $19.5 million from at least 365 investors by selling unregistered promissory notes that promised interest based on the performance of an investment pool managed by Ben Mar (the "Ben Mar Fund"). The investors were located in Kentucky, Ohio, Florida, and other states. In soliciting investors, Gatch and Schmidt told investors that they could expect to earn profits on their investment of 4% to 5% per month, based on past performance. Gatch also made false representations concerning his trading strategy and the risks of that strategy. Contrary to these representations, Gatch's trading consistently resulted in substantial losses. Gatch concealed these losses, and maintained the illusion of trading profits, by using the funds of existing investors and new investors to repay principal and pay purported profits. By the time the scheme came to light, investors had lost approximately $12.2 million, including approximately $4 million that Gatch and Schmidt took for themselves. Gatch, who handled all of Ben Mar's trading and accounting and has pleaded guilty to criminal wire fraud based upon his role in the scheme, United States v. Mark E. Gatch, Case No. 96-90 (WOB) (E.D. Ky., Mar. 17, 1997), made material misrepresentations and omitted material facts to Ben Mar investors, illegally sold unregistered securities of Ben Mar (the promissory notes), and failed to comply with the registration and custody provisions of the Investment Advisers Act of 1940. Schmidt solicited Ben Mar investors and repeated Gatch's false performance claims. Schmidt, however, failed to investigate the performance claims and failed to take any steps to monitor Gatch's activities or verify his statements of the holdings or performance of the Fund. In addition to the fraud on investors in the Ben Mar Fund -- which was an unregistered investment company -- Gatch and Schmidt defrauded several other advisory clients of Ben Mar. The Complaint charges both defendants with violating or aiding and abetting violations of Sections 5 and 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and Sections 203(a), 206(1), 206(2) and 206(4) of the Advisers Act and Rule 206(4)-2 thereunder, and seeks permanent injunctive relief, a civil penalty against Gatch, and the fixing of the amount of disgorgement, prejudgment interest thereon, and a civil penalty to be paid by Schmidt. ======END OF PAGE 1====== The Complaint does not charge Ben Mar, which is in liquidation. In re Ben Mar Investments, Inc., No. 95-11121 (Bankr. S.D. Ohio W.D. 1995) ======END OF PAGE 2======