SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
Rel. No. 41725 / August 11, 1999
Admin. Proc. File No. 3-9041
In the Matter of
Olympic Tower 901
San Juan, Puerto Rico
OPINION OF THE COMMISSION
Ground for Remedial Action
Churning of Customer Accounts
Vice president of registered broker-dealer churned the accounts of five customers. Held, it is in the public interest to bar vice president from association with any broker or dealer; to issue a cease-and-desist order; to fine vice president $100,000; and to order disgorgement plus prejudgment interest.
John R. Squitero and Jose R. Riguero, of Katz, Barron, Squitero, Faust & Berman, P.A., for Al Rizek.
Mitchell E. Herr, for the Division of Enforcement.
Appeal filed: March 16, 1998
Briefing completed: June 25, 1998
Oral argument: March 2, 1999
Al Rizek, who during the relevant period was a vice president of PaineWebber Incorporated of Puerto Rico ("PWPR"), a registered broker-dealer, appeals from the decision of an administrative law judge. The Division of Enforcement also appeals with respect to the sanction imposed on Rizek.
The law judge found that, from about January 1, 1993 through March 31, 1994, Rizek willfully violated Section 10(b) of the Securities Exchange Act of 19341 and Rule 10b-5 thereunder2 by churning the accounts of five customers. The law judge barred Rizek from association with any broker-dealer, and from association with any member of a national securities exchange or of a registered securities association, for a period of two years.3 He also fined Rizek $100,000, ordered him to disgorge $277,038 plus prejudgment interest, and imposed a cease-and-desist order. The Division appeals solely with respect to the law judge's failure to impose a permanent bar. We base our findings on an independent review of the record except for those findings not challenged on review.
In early 1993, Rizek began recommending that certain customers follow his strategy of trading United States Treasury zero-coupon bonds on a short-term basis.4 Although no one at PaineWebber recommended that Rizek implement such a strategy and Rizek did not know of anyone else who followed it, he pursued the strategy with several customers. The price of Treasury bonds, like that of all fixed rate investments, moves inversely to interest rates. In recommending his strategy, Rizek asserts that he placed his principal reliance on the forecasts of PaineWebber's chief economist, who predicted that interest rates would decline steadily until the year 2000. Rizek's strategy entailed a high degree of risk. As Rizek conceded, the price of zero-coupon bonds is extremely sensitive to changes in interest rates. Thus, if interest rates increase by only 1%, the value of a 30-year zero-coupon bond drops by about 25%. Moreover, Rizek admittedly magnified the risk by recommending that his customers purchase the bonds on margin. Buying the bonds on 50% margin doubled the risk, and buying them on 75% margin quadrupled it. During the period in question, a high percentage of the total market value of securities in the accounts of Rizek's customers was represented by borrowed funds.
Rizek based his decision to recommend margin trading on the fact that, at the time, the margin rate -- i.e., the rate at which customers could borrow money to purchase securities on margin -- was lower than yields on the zero-coupon bonds that he was recommending, a circumstance that Rizek described as "a positive carry." However, Rizek ignored the fact that zero-coupon bonds do not yield any return until they are sold or redeemed. Thus, since PWPR required margin interest to be paid monthly, the money to pay that interest had to come from a source other than the bonds.
According to Norman Padgett, the Division's expert witness, Rizek's strategy lacked any economic logic. Padgett noted that all serious studies have shown that the movement of long-term interest rates cannot be reliably forecast on a short-term basis. Moreover, according to Padgett, it made no sense for Rizek to swap one long-term zero-coupon bond for another.5 Since the prices of such bonds move in tandem, the only result of such trading was to generate transactional costs that eroded customers' principal. Padgett stated that only a very sophisticated, experienced investor could have determined the risks involved in Rizek's strategy. Similarly, only a sophisticated investor could have understood the strategy and made intelligent decisions with respect to Rizek's recommendations, even with all of the information that Rizek supplied.
The following is a summary of the pertinent facts with respect to the five customers at issue and Rizek's handling of their accounts.
A. Eddie Figueroa
Eddie Figueroa was the owner of a retail tire business. Figueroa studied biology in college but never earned a degree. He had no formal training in accounting or finance, and did not follow the financial markets. Prior to opening his account with Rizek in 1990, he kept his money in a savings account.
Figueroa told Rizek that he had never done any investing, but was willing to take "any type of risk." However, Rizek cautioned him that, given his limited assets, it was best to put most of his money in safe investments and leave only a small amount for investments with moderate risk. Figueroa agreed with this suggestion and, accordingly, "speculation" was ranked last among the investment objectives listed on Figueroa's new account form.
Although Figueroa claimed that he understood the risks of Rizek's strategy, he admitted that Rizek never alerted him to the level of risk posed by that strategy compared to other types of investments. Figueroa relied totally on Rizek, and always followed Rizek's investment recommendations. As Figueroa explained, he was only "a working person" who necessarily relied on a "professional" to give him "the best advice for [his] benefit."
During the relevant period, Rizek effected $3,637,613 in transactions in Figueroa's account on an average equity of $85,500. Average annual transactional costs and interest charges were $34,408 and $8,958, respectively. The 1993 turnover rate of Figueroa's net equity was 19.3, and the ratio of costs to equity was 51%, i.e., the account would have required a 51% annual appreciation just to cover costs.6 On average, Figueroa's account was 46% on margin, with a high of 81% in March 1993. Securities in the account were held for an average of only 52 days before being sold. Figueroa suffered a net loss of $13,871 from Rizek's trading during the relevant period.
B. Jorge Donato
Donato, a businessman with a college degree in military science and psychology, opened an account with Rizek in 1991. Donato told Rizek that he was not interested in buying stocks since, in his view, they were too risky. Instead, he wanted to invest in bonds because he was more interested in the safety of his investment than anything else, and "had the impression that bonds [were] pretty safe." Like all the other customers at issue, "speculation" was ranked last among the objectives listed on Donato's new account form.
Donato stated that he followed Rizek's purchase and sale recommendations 99% of the time. He was aware that investing in Treasury bonds entailed a "certain amount of risk," but was under the impression that the bonds' sensitivity to changes in interest rates was "very, very minor."
During the period at issue, Rizek effected transactions totaling $2,567,621 in Donato's account on an average equity of $84,699. Average annual transactional costs and interest charges were $22,600 and $5,571, respectively. The 1993 turnover rate of Donato's net equity was 14.3, and the cost to equity ratio was 33%.7 On average, Donato's account was 50% on margin, with a high of 69% in March 1994, and securities in the account were held for an average of 34 days before being sold. During the relevant period, Donato suffered a net loss of $10,414.
C. Jose Acevedo
Acevedo, the president of a small furniture manufacturing company, had no formal education beyond high school. When he opened his account with Rizek in 1991, his only previous investments had been bank accounts similar to certificates of deposit. He told Rizek that he wanted to earn interest in order to save for his retirement. Acevedo was looking for a long-term investment, and was "definitely not" willing to speculate or risk any of his principal.
Acevedo had no formal education or training in finance or accounting, and did not follow the financial markets. Rizek told Acevedo that zero-coupon bonds were guaranteed by the United States government, but did not discuss the risks involved in the short-term trading of those bonds. Acevedo thought that he could not lose any money from such trading, and he had no understanding of margin or the risks of margin trading. Since Acevedo trusted Rizek and considered him to be "the expert," he followed all of Rizek's purchase and sale recommendations during the period in question.8
During the relevant period, Rizek effected $6,875,250 in transactions in Acevedo's account on an average equity of $165,008. Average annual transactional costs and interest charges were $69,751 and $16,133, respectively. The 1993 net equity turnover rate was 19.8, and the cost to equity ratio was 52%.9 On average, Acevedo's account was 52% on margin, with a high of 81% in February 1994. Securities in the account were held for an average of 54 days. During the period at issue, Acevedo suffered a net loss of $62,174 from Rizek's trading.
D. Hector Torres Nadal
Torres, the president of a small business that deals in computerized systems, opened an account with Rizek in 1991. Torres had three years of college education but did not earn a degree. He had no training or experience in financial matters and his only investments prior to opening his account were bank certificates of deposit. He told Rizek that he wanted an investment that was "protected and secure because [he was investing his] life's savings," and that he did not want anything risky.
Torres had no understanding of Rizek's strategy. According to Torres, Rizek told him that the government would guarantee the investments that he made, and Torres believed that he could not lose any money. Thus, he considered Rizek's strategy less risky than investing in stocks or purchasing certificates of deposit. Torres thought that the money he invested "was there and was going to be there whenever [he] needed it." He had no understanding of margin or of the risks of margin trading.
According to Torres, he did not decide what investments to make; Rizek decided for him. He indicated that he always followed Rizek's advice.
During the period at issue, Rizek effected $1,645,057 in transactions in Torres' account on an average equity of $49,593. Average annual transactional costs and interest fees were $16,203 and $5,132, respectively. The 1993 turnover rate of Torres' net equity was 16.4, and the cost to equity ratio was 43%.10 On average, Torres' account was 44% on margin, with a high of 84% in March 1994, and securities in the account were held for an average of 67 days prior to sale. Torres suffered a net loss of $26,382 during the relevant period.
E. Herminio R. Cintron
Cintron, a pharmacist, opened his account with Rizek in 1991. While he had a degree in pharmacy, Cintron had no formal education or training in finance or accounting. Cintron was not interested in speculating. He wanted to invest in something safe, and told Rizek that his objective was to provide for his retirement and his children's education.
Before opening an account with Rizek, Cintron had accounts with various other brokerage firms. However, he did not follow the financial markets and, like the other customers at issue, did not do any independent research with respect to Rizek's recommendations. Cintron stated that he knew "about pharmacy but not about investments."
Although Cintron was aware that changes in interest rates could affect his investments in zero-coupon bonds, he did not understand the extent of the risk in Rizek's short-term trading strategy. Rizek did not explain that risk. Nor did he explain the increased risk produced by trading on margin. Cintron considered that Rizek "knew what he was doing," and he accepted and approved all of Rizek's recommendations.
During the relevant period, Rizek effected $9,346,350 in transactions in Cintron's account on an average equity of $312,013. Average annual transactional costs and interest charges were $82,258 and $30,177, respectively. The 1993 net equity turnover rate was 13.6, and the cost to equity ratio was 36%.11 On average, Cintron's account was 42% on margin, with a high of 74% in February 1994. Securities in the account
were held for an average of 79 days before being sold. Rizek's trading resulted in a net loss of $77,092 for Cintron.
Churning occurs "when a securities broker buys and sells securities for a customer's account, without regard to the customer's investment interests, for the purpose of generating commissions."12 Three elements are necessary to find churning: (i) trading in the account that is excessive in light of the customer's investment objectives; (ii) explicit or de facto control over that trading by the salesperson; and (iii) scienter on the part of the broker, which is established either by evidence of intent to defraud or by evidence of willful and reckless disregard of the customer's interests.13
Rizek challenges the law judge's conclusions that he controlled the accounts of the five customers at issue, and that he acted with scienter. However, he has not sought review of
the law judge's conclusion that his trading in those accounts was excessive in light of the customers' investment objectives.
A. Excessive Trading
As noted, Rizek does not challenge the law judge's findings on the issue of excessive trading. Those findings may be summarized as follows.14
Turnover rate, cost to equity ratio, and commissions to equity ratio are all methods that may be used to determine whether an account has been excessively traded. The following deals with each of those methods in the context of this case.
1. All of the five accounts at issue had conservative investment objectives. Yet the turnover rates for the equity available for investment ranged from 13.6 to 19.8. Even if the margin extended to the customers is included in the calculations, the turnover rates still range from 6.1 to 7.9. Although no turnover rate is universally recognized as determinative of churning, a rate in excess of 6 is generally presumed to reflect excessive trading.15 The high turnover rates in this case, whether or not margin loans are included in the calculations, clearly indicate that Rizek excessively traded the accounts in question.
2. The cost to equity ratio determines the percentage of return on the customer's average net equity needed to pay broker-dealer transactional charges and other expenses, thus providing a gauge for measuring the damage done to an account by churning. Here, the substantial expenses incurred by Rizek's customers are incompatible with their stated investment objectives. The five customers needed annual returns ranging from 33% to 52% on the equity available for investment to pay expenses and break even in their accounts. If margin debit balances are included in the calculations, the break-even percentage still ranges from 15% to 21%.
There was no reasonable expectation that the accounts at issue would earn a return sufficient to cover the transactional costs. The depletion of the accounts due to those costs is a clear indication that Rizek engaged in excessive trading.
3. The transactional charges paid to a broker measured as a percentage of average equity in a customer's account can also indicate excessive trading. During the relevant period, the cumulative average equity invested in the five accounts at issue was $696,813. Rizek purchased and sold a total of $24,071,891 in securities in those accounts, which generated $281,526 in transactional charges. These charges eroded 40% of the customers' total equity, and ranged from 33% to 53% of the average monthly equity in individual accounts. This measure also shows that Rizek traded the five accounts excessively.
Rizek concedes that, for the purpose of determining whether churning has occurred, it is sufficient if a broker exercises de facto control over a customer's account. He argues, however, that the law judge erred in finding that he exercised such control.
Rizek contends that his customers were sufficiently sophisticated to make an independent evaluation of his recommendations. He asserts that all of the customers were self-employed businessmen accustomed to making business and financial decisions; that, with the exception of Acevedo, all had at least some college education; that he explained his strategy to them and the risks it entailed; and that the customers were aware of the activity in their accounts and were supplied with financial research and other information that allowed them to follow their investments.
We disagree with these contentions. Although Rizek's customers may have been successful businessmen and most of them had some degree of higher education, they were totally lacking in the degree of investor sophistication necessary to understand Rizek's strategy and unable to make any sort of independent evaluation of that strategy. Three of the customers testified that Rizek never explained the risks of his trading, and it is clear that none of the five had any real understanding of those risks, much less of the way the use of margin increased the risks. The information that Rizek supplied did not cure or alleviate his customers' lack of understanding. The customers placed their reliance on Rizek's supposed expertise, and almost invariably followed his recommendations.
We conclude that Rizek exercised de facto control over the accounts of the five customers at issue.16
Rizek argues that his good faith belief in the merit of his trading strategy negates any finding of scienter. He asserts that the number of transactions in his customers' accounts was dictated by his strategy, and not by any desire on his part to generate additional commissions.
We cannot agree. Even assuming that Rizek believed in the efficacy of his strategy, he had no justification for recommending it to unsophisticated customers who were incapable of making an independent judgment, when he knew that the extremely high risk was directly contrary to the customers' conservative investment objectives.17 Even Charles G. Myers, Rizek's expert witness, testified that, in order to make Rizek's strategy reasonable for a customer, the customer would have to be willing to tolerate "aggressive" risk, which Myers defined as "higher than moderate."18
In fact, Rizek was well aware that he had acted improperly in recommending his strategy, and tried to conceal his conduct from his firm. From March through the beginning of November 1993, Rizek had four meetings with firm management to address its concerns about his trading of zero-coupon bonds. On November 29, Miguel Ferrer, the president of PWPR, sent Rizek a memorandum asking him to explain the bond trading that the branch manager had found unsuitable for certain of Rizek's clients. Rizek responded on December 6, attaching a list of clients whose investment objectives had purportedly changed so that "speculation" was now ranked second instead of last. The list included Figueroa, Donato, Acevedo, and two other customers who testified in these proceedings.19 Rizek stated to Ferrer that the customers' changed objectives were now "in . . . line with their investments [sic] history." He testified in these proceedings that he called each of the customers in November 1993, and all of them agreed to this reordering of their investment priorities. However, all five customers denied that Rizek had sought or received permission to change their investment objectives.
We further note that, although Rizek claims on appeal that he necessarily considered the costs of his trading strategy, he testified that, in recommending short-term trades of zero-coupon bonds, he did not consider the cumulative impact of the transactional costs that such trades would entail.20
We conclude that, in order to generate large commissions, Rizek acted in willful and reckless disregard of his customers' interests. We accordingly find that Rizek acted with the requisite scienter, and that he willfully violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.
A. As noted above, the law judge ordered Rizek to disgorge $277,038 plus prejudgment interest. Rizek argues that, in assessing that amount, the law judge failed to take into account the fact that Acevedo, Cintron, and Torres received substantial sums of money from settlements of private actions that they brought against PWPR and Rizek.21 However, Rizek is not entitled to any adjustment resulting from those settlements. Disgorgement is designed to deprive a wrongdoer of his ill-gotten gains.22 Since Rizek did not contribute to the settlements that PWPR made with his clients, no reduction of disgorgement is warranted on that basis.
Nevertheless, the amount of required disgorgement must be reduced. The Division initially requested that Rizek be ordered to disgorge $775,258, representing his 45% share of the $1,722,796 of "unjust" transactional charges paid to PWPR by the
eight customer accounts originally at issue in this proceeding.23 The law judge noted that Rizek had churned only five of those eight accounts, and that the total of "unjust" transactional charges generated by the five accounts was only $277,038.24 He ordered Rizek to disgorge the entire $277,038. However, since Rizek received only 45% of that amount, or $124,667, we shall reduce the amount of disgorgement to that figure plus prejudgment interest.
B. Rizek argues that the sanctions imposed on him are unduly harsh.25 He asserts, among other things, that the law judge did not find that he was motivated by malice; that churning was found only with respect to 5 of his approximately 400 accounts at the time and occurred for only about 10 months; that he is sincerely remorseful for his customers' losses; that he had no prior history of misconduct; and that he will never again recommend a short-term trading strategy involving leveraged zero-coupon bonds. As noted above, the Division contends that the two-year bar imposed by the law judge should be made permanent.
We agree with the Division that a permanent bar is warranted by the facts of this case. Rizek's conduct was egregious. Over an extended period of time,26 Rizek betrayed his customers' trust by systematically churning their accounts. His claimed remorse is entitled to little weight, particularly since the law judge found that he has yet fully to accept the wrongfulness of his conduct. Despite his assurances of future compliance, we believe that Rizek, who is now president of his own brokerage firm, poses a substantial threat to public investors. We conclude that the public interest requires the imposition of a permanent bar together with the additional sanctions assessed by the law judge as modified above.
An appropriate order will issue.27
By the Commission (Chairman LEVITT and Commissioners JOHNSON, HUNT, CAREY and UNGER).
Jonathan G. Katz
UNITED STATES OF AMERICA
SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
Rel. No. 41725 / August 11, 1999
Admin. Proc. File No. 3-9041
In the Matter of
Olympic Tower 901
San Juan, Puerto Rico
ORDER IMPOSING REMEDIAL SANCTIONS
On the basis of the Commission's opinion issued this day, it is
ORDERED that Al Rizek be and he hereby is, barred from association with any broker, dealer, member of a national securities exchange, or member of a registered securities association; and it is further
ORDERED that Rizek cease and desist from committing or causing any violation and committing or causing any future violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder; and it is further
ORDERED that, within 30 days of the entry of this order, Rizek shall pay a civil money penalty in the amount of $100,000, and disgorgement in the amount of $124,667 plus prejudgment interest from April 1, 1994, calculated in accordance with Rule 600(b) of the Commission's Rules of Practice. Such payments shall be (i) made by United States postal money order, certified check, bank cashier's check, or bank money order made payable to the Securities and Exchange Commission; (ii) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Stop O-3, Alexandria, Virginia 22312; and (iii) submitted under cover letter which identifies Rizek as the respondent in this proceeding, and gives
the file number of this proceeding. A copy of the cover letter and check shall be sent to Mitchell E. Herr, counsel for the Division of Enforcement, Securities and Exchange Commission, 1401 Brickell Avenue, Suite 200, Miami, Florida 33131.
By the Commission.
Jonathan G. Katz
-- 15 U.S.C. § 78j.
-- 17 C.F.R. § 240.10b-5.
-- It is not clear what the law judge intended when he imposed a two-year bar, since it is our practice merely to add a proviso to a permanent bar giving an indication of when an application to re-enter the securities industry might be appropriate. Section 15(b)(6)(A) of the Exchange Act (15 U.S.C. § 78o(b)(6)(A)) provides for a maximum suspension of 12 months.
-- Zero-coupon bonds are derivative instruments which, in concept, are derived from interest-bearing bonds by stripping the interest coupons (which become "TINTS") from the principal components (which become "PRINS"). The bonds do not pay interest during their terms; the return results from the difference between the bonds' purchase price and the payment at maturity.
-- Ninety-six percent of Rizek's recommended purchases and sales involved long-term zero-coupon bonds with maturities of between 26 and 29 years.
-- Although it is a far less common method of computation, Padgett also calculated turnover rates and cost/equity maintenance factors by including margin debit balances in the amount of total investment, thus tracking the total portfolio rather than only its equity component. This computation produced a 7.5 turnover rate for Figueroa's account, and a 21% break-even cost factor.
--The turnover rate for the entire portfolio, including margin debit balances, was 7.4, and the break-even cost factor was 16%.
-- Sometime after the period at issue, Acevedo decided to purchase GNMA bonds rather than using the money to reduce his margin debit balance as recommended by Rizek.
-- The turnover rate for the entire portfolio was 7.9, and the break-even cost factor was 19%.
-- The turnover rate for the entire portfolio was 7.5, and the portfolio break-even cost factor was 16%.
-- The turnover rate for the entire portfolio was 6.1, and the portfolio break-even cost factor was 15%.
-- Olson v. E.F. Hutton & Co., Inc., 957 F.2d 622, 628 (8th Cir. 1992)
-- See, e.g., Hotmar v. Lowell H. Listrom & Co., Inc., 808 F.2d 1384, 1385 (10th Cir. 1987); Miley v. Oppenheimer & Co., Inc., 637 F.2d 318, 324 (5th Cir. 1981).
-- The record supports the law judge's findings, and we sustain them.
-- Arceneaux v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 767 F.2d 1498, 1502 (11th Cir. 1985); Mihara v. Dean Witter & Co., Inc., 619 F.2d 814, 821 (9th Cir. 1980).
-- See Tiernan v. Blyth, Eastman, Dillon & Co., 719 F.2d 1, 3 (1st Cir. 1983); Follansbee v. Davis, Skaggs & Co., Inc., 681 F.2d 673, 676-677 (9th Cir. 1982); Mihara v. Dean Witter & Co., Inc., supra.
-- As noted above, although Figueroa was initially willing to take "any type of risk," he changed his outlook after counseling by Rizek, and agreed with Rizek's advice to put most of his money in safe investments, leaving only a small amount for investments with "moderate risk."
-- Rizek's reliance on Van Alen v. Dominick & Dominick, Inc., 441 F.Supp. 389 (S.D.N.Y. 1976), aff'd, 560 F.2d 547 (2d Cir. 1977), is misplaced. The Court in that case held, among other things, that the turnover rate in the plaintiff's accounts was not excessive; that the transactions executed by the salesman were appropriate in light of the plaintiff's intent to "build up" her account; and that the plaintiff should be estopped since she was aware of the salesman's "system" and had enjoyed its benefits for 17 years. 441 F.Supp. at 401.
-- The law judge concluded that Rizek did not churn the accounts of the latter two customers since he did not control their accounts.
-- Rizek further asserts that the markups and markdowns that his customers were charged were reasonable. However, the fact that the charges on individual trades were reasonable is irrelevant. The gravamen of churning is an unwarranted frequency of trading that generates an excessive number of individual charges.
-- In accordance with Rizek's request, we take official notice of his CRD file in which the settlements are described.
-- SEC v. First City Financial Corp., 890 F.2d 1215, 1230 (D.C. Cir. 1989).
-- The total of transactional charges generated by the eight accounts was $1,752,354. However, the staff deducted the $29,558 that would have been generated if the customers had followed a buy and hold strategy.
-- The law judge deducted $4,488 from the total charges of $281,526 paid by the five accounts. The reduction represented the charges that would have been generated if the customers had followed a buy and hold strategy.
-- He states, however, that if we determine that a sanction is appropriate, he does not object to the imposition of a cease-and-desist order.
-- Rizek churned his customers' accounts over a 10-month period, from January through early November 1993.
-- We have considered all of the arguments advanced by the parties. We have rejected or accepted them to the extent that they are inconsistent or in accord with the views expressed herein.