U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 19554 / February 3, 2006
Securities and Exchange Commission v. Edward S. Digges, Jr.; Nexstar Communications, LLC; TMT Equipment Company, LLC; TMT Management Group, LLC; POSA, LLC; POSA TMT, LLC; Televest Communications, LLC; Televest Group, LLC and Spin Drift, LLC., Civil Action No. 6:06-CV-137-ORL-19-KRS (MD Fla. February 2, 2006)
The Securities and Exchange Commission ("Commission") announced today that it filed a Complaint For Emergency Injunctive and Other Relief ("Complaint") in the United States District Court for the Middle District of Florida to halt an ongoing offering fraud involving the sale and leaseback of point-of-sale terminals ("terminals") used by merchants to process credit and debit card transactions. The Complaint alleges that since April 2003 the defendants have fraudulently sold to approximately 278 investors at least $15 million in unregistered securities in a program in which an investor purchases a terminal from one of the defendants and then leases the terminal to another defendant for placement in a retail store to generate service fee revenue.
Named in the Complaint are:
Edward S. Digges, Jr., ("Digges"), a 58 year old former attorney previously licensed to practice law in Maryland.
Nexstar Communications, LLC ("Nexstar"), a Maryland limited liability company controlled by Digges, and used by him to sell terminals to investors between approximately April 2003 and December 2003.
TMT Equipment Company, LLC ("TMT Equipment") and TMT Management Group, LLC ("TMT Management"), two Delaware limited liability companies controlled by Digges, and used by him to sell terminals to investors after approximately December 2003.
POSA, LLC ("POSA"), a Maryland limited liability company, and POSA TMT, LLC ("POSA TMT"), a Delaware limited liability company, each of which is controlled by Digges and used by him to lease back terminals from investors.
Televest Communications, LLC ("Televest Communications"), Televest Group, LLC ("Televest Group"), and Spin Drift, LLC ("Spin Drift"), each a Delaware limited liability company controlled by Digges and used by him during the course of the fraud to funnel money to or from investors.
The Complaint alleges that:
From April 2003 through the present, Digges, acting through a network of independent sales agents and the entities named above, has used fraudulent misrepresentations and omissions of material fact to sell investments in a program in which an investor purchases a terminal from one entity controlled by Digges and then leases the terminal to another entity controlled by Digges for placement in a retail store to generate service fee revenue. Investors-many of whom are elderly-purchase each terminal for $5,000 and, in return for an immediate leaseback of the same terminal, the leasing entity represents to investors that it will pay investors $50 per month per terminal (12% per annum) and repurchase the terminal for its full purchase price at the end of a five year term.
To sell these investments, Digges represents to the salespeople, and through them to investors, that these obligations are "assured" and that he will maintain a "reserve fund" to cover six months of monthly lease payments and a "sinking fund" to fund the eventual repurchase of the terminals. In fact, Digges has no basis to "assure" investors of either their lease payments or the repurchase of the terminals. Since at least January 2004, his operation of the leased terminals has run a deficit. Moreover, since June 2005, he has been short as much as $125,000 per month in funds he needed to make lease payments and pay other expenses. Digges has disclosed none of these facts to investors. Additionally, Digges never created or maintained a "reserve fund" to cover monthly lease obligations or a "sinking fund" to accumulate funds to buy back terminals.
Digges-a former attorney and felon convicted of fraudulently over billing a client-also conceals from investors his own role in the offering. He omits his name from offering materials and falsely portrays to investors that the venture is managed by individuals who have only nominal roles-steps intended to conceal his criminal past from potential investors. He further fails to disclose that, since April 2003, three state securities commissions-those of Maryland, Pennsylvania, and Ohio-have issued orders finding that one or more Digges Entities have violated state securities laws by engaging in the offering and, in the case of the Maryland order, finding that the offering involved fraud.
The Complaint alleges that Digges, Nexstar, TMT Equipment, TMT Management, POSA, and POSA-TMT have violated Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933, and Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 thereunder, and that Televest Communications, Televest Group, and Spin Drift aided and abetted the other defendants' violations of Section 10(b) of the Exchange Act and Rule 10b-5, thereunder. The Commission seeks: (i) a temporary restraining order; (ii) preliminary and permanent injunctions against future violations; (iii) an accounting and disgorgement of ill-gotten gains plus prejudgment interest; (iv) imposition of civil penalties; (v) an asset freeze; and (vi) an order expediting discovery and preventing the destruction of documents.
The Commission thanks the Texas State Securities Board and the Office of the Attorney General, Securities Division, of the State of Maryland for their assistance in this matter.