SECURITIES AND EXCHANGE COMMISSION
In the Matter of the Application of
For Review of Disciplinary Action Taken by the
AMERICAN STOCK EXCHANGE, LLC
OPINION OF THE COMMISSION
REGISTERED SECURITIES EXCHANGE -- REVIEW OF DISCIPLINARY PROCEEDING
Former registered representative of a former member firm of national securities exchange conceded on appeal that he violated exchange rules when he failed to use due diligence to ascertain his customer's investment objectives and financial situation, included false information about the customer on new account forms he prepared for that customer, engaged in improper discretionary trading, churned the customer's account, and effected unsuitable investments for the customer. Held, exchange's findings of violation and the sanctions imposed are sustained.
Dan A. Druz, for David Wong.
Philip J. Axelrod and David E. Rosenstein, for the American Stock Exchange, LLC.
Appeal filed: November 6, 2000
Last brief received: February 6, 2001
David Wong, a former registered representative of RAS Securities, Inc. ("RAS"), a former associate member organization1 of the American Stock Exchange, LLC ("AMEX" or "Exchange"), appeals only the sanctions imposed by the Exchange. Following a hearing, the AMEX found that Wong had violated Exchange rules by (1) failing to use due diligence to ascertain his customer's investment objectives and financial situation in violation of Exchange Rules 4112 and 921(c)3 ; (2) engaging in conduct inconsistent with just and equitable principles of trade in violation of Exchange Rule 345(a)(4)4 by including false information about the customer on new account forms he prepared for a customer; (3) utilizing discretion in effecting equity and options transactions in the customer's accounts without obtaining her prior written authorization in violation of Exchange Rules 421 and 924(a)5 ; (4) churning the customer's account inviolation of Section 10(b) of the Securities Exchange Act of 19346 and Rule 10b-57 thereunder, and, thus, Article V, Section 4(i) of the AMEX Constitution8 ; and (5) effecting options transactions that were excessive in size and frequency given his customer's age, investment objectives, financial situation, and needs, without having reasonable grounds for believing that the transactions were suitable for his customer, in violation of Exchange Rules 345(a)(4) and 923(a) and (b).9
Following a contested hearing, an AMEX disciplinary panel entered findings of violation consistent with the charges, censured Wong, fined him $13,076, and barred him from membership,allied membership, and approved person status and from employment or association in any capacity with any Exchange member or member organization. On appeal to the AMEX Adjudicatory Council ("Council"), Wong did not contest the findings of misconduct, but challenged the sanctions imposed. The Council concluded that the violations found "fully justify" the sanctions imposed. This appeal followed. We base our findings on an independent review of the record.
Wong expressly states that his appeal to the Commission focuses "solely upon the penalty imposed by the [Exchange] in its decision" and not upon "the procedural and factual background [which is] amply summarized in the decisions of the panels below." The uncontested facts, which support the Exchange's findings of violation, derive in large part from the parties' stipulations of fact filed with the AMEX.
In June 1994, Wong opened a customer account for Catherine Alongi ("Alongi") while he was employed by Walsh Manning Securities, Inc. ("Walsh Manning") as a general securities representative. Alongi was Wong's only customer at that time. On the new account form Wong prepared for Alongi, Alongi's annual income was reported to be less than $25,000 and her liquid assets and her net worth to be between $200,000 and $999,999. Her occupation, investment experience, and investment objectives were not furnished in the spaces provided on the form. In fact, at the time her account was opened, Alongi was 57 years old, had been a homemaker for 35 years, and was unemployed.
Alongi deposited $200,000 into her Walsh Manning account, which represented a portion of the proceeds she had received from the sale of her New York home. Wong proceeded to invest these monies in three federal and state tax-free mutual funds. Alongi then deposited an additional $45,000 in her Walsh Manning account. Of this additional amount, Wong took $4,800 and purchased for Alongi 1,600 shares of Biocontrol Technology, Inc., a stock that traded below $5 per share.10 He had not discussed this purchase with Alongi beforehand and he did not have written authority from Alongi to make discretionary trades on her behalf.
In October 1994, Wong was permitted to resign from Walsh Manning for "lack of production." Three months later, Wong washired by RAS as a sales assistant and registered representative. Shortly after Wong started working for RAS, Alongi opened a securities account at that firm. Wong completed RAS's new account form for Alongi, entering information that differed materially from that he had furnished about Alongi six months earlier on her Walsh Manning new account form. For example, Alongi's annual income had at least doubled to $50,000. And, on her RAS form, Wong furnished previously-omitted information regarding employment, investment experience, and investment objectives, indicating that Alongi was self-employed in "real estate"; that her investment objectives included "long term capital appreciation," "income," and "short term trading"; and that she had three years of investment experience in stocks and bonds, and two years in options. Wong also listed Alongi's net worth and liquid assets as $800,000 and $450,000, respectively. This information was false.
A month after opening her RAS account, Alongi, at Wong's direction, executed two RAS agreements. The first established a margin account and the second authorized options trading. RAS then approved Alongi's account for purchasing options, covered call writing, and spreading. Wong completed for Alongi an options new account form that, like the basic new account form, indicated that she was self-employed in real estate. The options account form further specified that Alongi had been engaged in real estate for 35 years (that is, since she was 16 years old, given her listed age of 51). Wong included on this form information about Alongi's annual income, net worth, liquid assets, and investment experience identical to that he had entered on her RAS new account form. Wong listed Alongi's investment objectives as "safety of principal," "income," "trading profits," and "speculation." The form indicated that Alongi effected options and equities trades on a monthly basis and that her prior options and equities trades had averaged $2,500 and $10,000, respectively.
Alongi testified before the AMEX that she never told Wong that she had the investment experience specified on her RAS account forms, nor did she have, or divulge to Wong, the income or net worth that Wong had specified on these forms. Rather, she stated, her income at that time was less than $50,000 and her net worth "was no where near that" listed on the forms. During his investigative testimony before the AMEX, Wong conceded that Alongi had not told him what her income or net worth was and that he had based the amounts that he supplied on her account forms on assumptions from their discussions about the sale of Alongi's residence. He also indicated that the reference to Alongi's purported 35-year real estate experience was similarly based onassumptions from their discussion of her home sale. Wong admitted that he was aware that Alongi had no prior investment experience, let alone options experience, and that she had never before used the services of a stockbroker or securities dealer.11 Wong explained that he had intentionally misstated Alongi's investment experience on the new account documentation he had prepared for her because he felt that doing so was necessary in order to obtain RAS's approval to trade options in her account.
Alongi maintained her account at RAS for sixteen months. During that time, Wong effected 338 trades for her account. Of the 338 trades, Wong made 222 equity trades in more than 75 issues and 116 options trades. Wong admitted that before effecting them he had discussed only two of the equity trades with Alongi and none of the options trades; yet, Alongi had never given Wong discretionary trading authority over her account. Wong's trades in Alongi's account generated $70,190 in gross commissions -- almost 80% of his total gross commissions during the period. Pursuant to Wong's compensation arrangement with RAS, he received 40% of the gross commissions he generated in addition to his regular salary.
Wong admittedly pursued an aggressive, short-term, day-trading strategy in Alongi's account.12 Most of the shares Wong purchased or sold for Alongi were priced below $10 and some were priced below $1.00. Some of the individual trades involved as many as 10,000 shares, with many 5,000 share transactions. Wong also engaged in extensive "in and out" trading,13 whichproduced substantial commission revenue, as set forth above, but little or no profits to Alongi.14 The size of the options trades in Alongi's RAS account ranged from five to 70 contracts with many 25-contract trades, and 35 of 68 "opening transactions"15 involving 15 or more contracts. Wong also effected speculative opening transactions in Alongi's RAS account. Overall, Wong's trading in Alongi's account produced an annualized turnover rate,16 as stipulated before the AMEX, of 7.3. The equity and options trading cost Alongi $18,447 in margin interest charges. Further, over the sixteen-month period that Alongi maintained her RAS account, Alongi's original account investment of $245,000 was depleted by $142,011 including commissions but excluding margin interest.
Alongi first became concerned about the transactions in her RAS account when her accountant, as he was preparing her 1995 tax return, began asking her about the reasons for the frequent trading activity. Alongi ultimately filed an arbitration claim against RAS and Wong with the National Association of Securities Dealers, Inc. ("NASD"). RAS and Wong settled this claim bypaying Alongi $100,000 and $15,000, respectively. The Exchange subsequently commenced this action.
At the NASD arbitration hearing, Wong conceded that the level and type of trading he engaged in for Alongi's account were unsuitable given her age, limited income, and lack of investment experience. He explained that he had engaged in these transactions because he was inexperienced and motivated to trade Alongi's account aggressively for his own benefit, and because he was being pressured by RAS management to increase his production levels.
The uncontested facts in this case demonstrate Wong's violations. Specifically, we find, as did the AMEX, that Wong violated Exchange Rules 411 and 921(c) by failing to make any effort to ascertain Alongi's background, financial status, and investment objectives, and by relying upon merely his uninformed assumptions about her when he prepared standard and options new account forms for her at RAS. Wong engaged in conduct inconsistent with just and equitable principles of trade, in violation of Exchange Rule 345(a)(4), by including false information about Alongi's age, occupation, income, net worth, and investment experience on her RAS new account forms.
Wong also violated Exchange Rules 421 and 924(a) by making equity trades in Alongi's Walsh Manning and RAS accounts, and options trades in her RAS account, at his discretion. Wong did not have Alongi's requisite prior written authorization for such discretionary trading.
We further find, as did the AMEX, that Wong's trading of Alongi's RAS account violated Exchange Act Section 10(b) and Rule 10b-5 thereunder and thus also violated Article V, Section 4(i) of the AMEX Constitution. Wong exercised control over trading in Alongi's RAS account;17 the level of trading activity in that account was excessive and inconsistent with the customer's investment objectives, financial situation and need for currentincome;18 and Wong acted with the requisite scienter. The scienter element of churning may be inferred from the amount of
commissions charged by the registered representative.19 Wong's scienter is apparent from his concession that he pursued this aggressive trading strategy for his personal financial advantage -- that is, to generate commissions -- and is also apparent from the fact that the trading was effected in disregard of his customer's interests and account objectives.20
Finally, we find, as did the AMEX, that Wong violated Exchange Rules 345(a)(4) and 923(a) and (b) by effecting unsuitable and excessive options trades in Alongi's RAS account. Wong knew that Alongi had no experience with options trading, that this trading was contrary to her conservative investment objectives, and that she was unable to understand the risks involved in making these trades. Wong, nevertheless, effected 116 options trades (including 68 opening transactions) for her account.
Exchange Act Section 19(e)21 governs our review of the sanctions imposed by a self-regulatory organization. If we find that an applicant has committed the violations found by the self-regulatory organization, we will sustain the SRO's sanctions unless we further find, having due regard for the public interest and the protection of investors, that the sanctions are excessive or oppressive or impose an unnecessary or inappropriate burden on competition.22
Wong does not contest the censure or fine.23 Wong grants that some additional sanction is warranted for his conceded misconduct, but contends that the bar imposed by the AMEX is unduly harsh. He claims that the three settled matters cited as sanctions precedent by the AMEX prosecutorial staff to the AMEX disciplinary panel suggest that a 3- or 5-year bar is a more appropriate sanction.24
We consistently have held that the appropriate sanctions in a case depend on its particular facts and circumstances and cannot be determined by comparison with action taken in othercases.25 We also have emphasized repeatedly that the sanctions imposed in settled cases may well differ from those imposed in litigated cases.26 Nevertheless, we note the striking factual parallels between this case and the one settled matter of the three cited, Ralph Herold,27 in which the AMEX imposed a bar.28
Further, Wong's focus on nuances in the cited precedent misses the point: the settled precedent on which Wong trains his appeal arguments was one of many guideposts that led the AMEX toits sanctioning determination. The AMEX relied as well on the egregious nature of Wong's misconduct, including that he had executed hundreds of trades without his client's prior knowledge or consent, and that these trades were both qualitatively and quantitatively unsuitable given his client's financial resources, conservative investment goals, need for current income, lack of investment experience, and inability to evaluate the risks involved or the nature of the transactions. The AMEX, having had the opportunity to observe Wong's demeanor at the disciplinary hearing, also questioned the sincerity of his asserted contrition and remorse for his misconduct, noting Wong's earlier refusal to acknowledge his misconduct during the underlying investigation and his implied attempt partially to blame Alongi for the trading activity in her account. The AMEX also explicitly rejected Wong's claims that RAS' asserted failure to supervise him and purported pressuring him to increase production were mitigative and, therefore, counseled leniency. The AMEX further pointed out that, although the NASD sanction guidelines are not binding upon the Exchange, the NASD guidelines call for the imposition of a bar for egregious cases of excessive trading or churning.29 In sum, the AMEX's determination to impose a bar was the result of careful, reasoned decisionmaking based on the record and arguments before it.
It is clear to us, as it was to the AMEX, that Wong egregiously abused the trust Alongi had placed in him. He knew that she had no understanding of investment matters, especially options trading, and that she wanted him to invest her savings in a conservative and prudent manner. Yet, he engaged in unauthorized trading of both her Walsh Manning and RAS accounts, intentionally misstated her experience, wealth and investment objectives on her RAS new account forms and then pursued an aggressive, short-term, day trading strategy to his financial benefit and Alongi's financial detriment. Under all the circumstances, we do not conclude that the censure, fine, and bar imposed by the AMEX are excessive or oppressive, or impose an undue burden on competition.
An appropriate order will issue.30
By the Commission (Chairman PITT and Commissioners HUNT and GLASSMAN).
Jonathan G. Katz
Admin. Proc. File No. 3-10360
In the Matter of the Application of
For Review of Disciplinary Action Taken by the
AMERICAN STOCK EXCHANGE, LLC
ORDER SUSTAINING DISCIPLINARY ACTION TAKEN BY REGISTERED SECURITIES EXCHANGE
On the basis of the Commission's opinion issued this day, it is
ORDERED that the disciplinary action taken by the American Stock Exchange, LLC against David Wong, be, and it hereby is, sustained.
By the Commission.
Jonathan G. Katz
|1||Associate membership is one category of Exchange membership. See Article IV, Section 1(d) of the AMEX Constitution.|
|2||Exchange Rule 411 (the "know your customer rule") requires members and member organizations, among other things, to use "due diligence to learn the essential facts relative to every customer."|
|3||Exchange Rule 921(c) requires members and member organizations to "exercise due diligence to learn the essential facts as to the customer and his investment objectives and financial situation" in approving a customer's account for options transactions.|
|4||Exchange rules and Article V, Section 4(i) of the AMEX Constitution are made applicable to employees of members and member organizations pursuant to Rule 345(a)(4), which also authorizes the AMEX to discipline employees of member organizations who engage in conduct inconsistent with just and equitable principles of trade. Article V, Section 4(i) provides that a member or member organization adjudged guilty in an AMEX proceeding of a willful violation of any provision of the Exchange Act, or any rule or regulation thereunder, shall be deemed to have engaged in conduct inconsistent with just and equitable principles of trade and may be suspended or expelled.|
|5||Exchange Rules 421 and 924(a) prohibit an employee of a member organization from exercising any discretionary power,including such power in trading of options contracts, in a customer's account without the prior written authorization of the customer.|
|6||Section 10(b) of the Exchange Act makes it unlawful for any person to "use or employ, in connection with the purchase or sale of any security . . ., any manipulative or deceptive device or contrivance in contravention of" the Commission's rules. 15 U.S.C. § 78j(b).|
|7||Rule 10b-5 makes it unlawful for any person to "employ any device, scheme, or artifice to defraud" or to "engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." 17 C.F.R. § 240.10b-5.|
|8||See n.4 supra.|
|9||Under Exchange Rule 923, a registered employee of a member organization must not recommend any options transaction to a customer unless the employee has reasonable grounds to believe that the recommended transaction is suitable for the customer on the basis of information furnished by the customer, after reasonable inquiry concerning the customer's investment objectives, financial situation and needs. The rule further directs that, before recommending any opening transaction in an options contract, the employee must have a reasonable basis for believing that the customer has sufficient knowledge and experience in financial matters to be capable of evaluating the risks of the recommended transaction, and the financial wherewithal to be able to bear the risks of the recommended position in the options contract.|
|10||In accordance with Alongi's instructions, Wong used the remaining approximately $40,000 to establish accounts at Walsh Manning for Alongi's four grandchildren.|
|11||As Wong acknowledged during his investigative testimony, "she didn't have any prior experience . . . I would have to be the person to show her . . . how to make money, or to earn money. I guess I was her first broker." Wong testified that, when he attempted to discuss covered call writing with Alongi, he found it difficult to get her to understand the concept: "I tried. . . . [She was] someone who has no idea of calls or concept of options . . . it was over her head."|
|12||Wong testified: "[I]f it was profitable by the end of the day, then we would go into cash and just sell it. . . . If it was, you know, a closer possibility or if it was down a little bit, then we would hold it. You know, maybe for a day or two."|
|13||"The term 'in and out' trading denotes the sale of all orpart of a customer's portfolio, with the money reinvested in other securities, followed by the sale of the newly acquired securities." Costello v. Oppenheimer & Co., Inc., 711 F.2d 1361, 1369 n.9 (7th Cir. 1983).|
|14||For example, between August 11 and October 12, 1995, Wong effected 6 trades in Network Express Inc. (3 buys and 3 sells), for a net loss of $12,680 (including commissions). Between March and June 1995, Wong effected 9 trades in the stock of Cheyenne Software, Inc. (5 purchases and 4 sales), which generated $3,500 in commissions but only $2,600 in after-commission profits.|
|15||An opening transaction adds to the net position of an investor. An opening purchase transaction creates or increases a long position in a given series of options, while an opening sale transaction creates or increases a short position in a given series of options.|
|16||Turnover rate is calculated by dividing the total purchases in an account by the account's average monthly investment. The average monthly investment is the cumulative total of the net investment in the account at the end of each month, exclusive of loans, divided by the number of months under consideration. Shearson Lehman Hutton Inc., 49 S.E.C. 1119, 1122 n.10 (1989).|
|17||De facto control is established when a customer relies, as did Alongi, on a broker's advice because the customer is unable to evaluate the broker's recommendations and exercise independent judgment. 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, 676-77 (9th Cir. 1982); Harry Gliksman, Exchange Act Rel. No. 42255 (Dec. 21, 1999), 71 SEC Docket 892, 895.|
|18||Turnover rate is one means of determining whether an account has been excessively traded. Although no turnover rate is universally recognized as determinative of churning, an annual rate in excess of 6 is generally presumed to reflect excessive trading. See, e.g., 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); Harry Gliksman, 71 SEC Docket at 897-98. See also Donald A. Roche, 53 S.E.C. 16, 21 (1997) (turnover rate of 3.3 found to be excessive); In re Frederick C. Heller, 51 S.E.C. 275, 277 (1993) (turnover rate of 6.4 found to be excessive). Here, the turnover rate was 7.3. "In and out" trading, in which Wong freely engaged, is also evidence of excessive trading (see Costello, 711 F.2d at 1369; Harry Gliksman, 71 SEC Docket at 898), as is the short-term trading of equity securities that Wong effected here (see Reynolds, 50 S.E.C. 805, 808 n.12 (1991)).|
|19||See Rivera v. Clark Melvin Securities Corp., 59 F.Supp.2d 280, 289 (D.P.R. 1999); Sheldon Company Profit Sharing Plan and Trust, 828 F.Supp. 1262, 1273 (W.D. Mich. 1993).|
|20||"Churning claims arise when a broker, exercising control over an account, abuses a customer's confidence for personal gain by initiating transactions that are excessive in view of the character of the account." Krull v. SEC, 248 F.3d 907, 913 n.7 (9th Cir. 2001). See also Craighead v. E.F. Hutton & Company, Inc., 899 F.2d 485, 489 (6th Cir. 1990) ("'Churning' is a shorthand expression for a type of fraudulent conduct in a broker-customer relationship where the broker 'overtrades' a relying customer's account to generate inflated sales commissions."); Miley v. Oppenheimer & Co., 637 F.2d 318, 324 (5th Cir. 1981) (churning "occurs when a securities broker enters into transactions and manages a client's account for the purpose of generating commissions and in disregard of his client's interests"); Donald A. Roche, 53 S.E.C. at 22 ("[c]hurning, 'in essence involves a conflict of interest in which a broker or dealer seeks to maximize his or her remuneration in disregard of the interests of the customer,'" quoting Loss & Seligman, Securities Regulation 3877 (1991)). Churning has been recognized as a manipulative and deceptive device within the meaning of Section 10(b) and Rule 10b-5, "the scienter required . . . being implicit in the nature of the conduct." Armstrong v. McAlpin, 699 F.2d 79, 91 (2d Cir. 1983).|
|21||15 U.S.C. § 78s(e)(2).|
|22||Id. Wong does not claim, and the record does not show, that the AMEX's action imposed an undue burden on competition.|
|23||The AMEX reasonably calculated the amount of the fine by subtracting the amount ($15,000) Wong had paid Alongi in settlement of her NASD arbitration claim from the total commissions Wong earned from his trading activities in Alongi's accounts ($28,076). The AMEX determined that "the underlying goals of remediation and deterrence are adequately served by 'fining away' Wong's ill-gotten gains."|
|24||Wong argues that the AMEX should be required to produce the "findings of fact" underlying these three disciplinary decisions that were furnished to the disciplinary panel as relevant precedent on sanctions. We disagree. As the AMEX observes, Wong "had ample opportunity to obtain the information he now seeks." Two weeks prior to the disciplinary hearing the AMEX prosecutorial staff provided Wong and the disciplinary panel with a precedent memorandum containing the texts of these AMEX decisions. Wong and his counsel did not object to this submission or request to see the underlying "findings of fact," nor did they object at the hearing to the admission of the precedent memorandum or proffer an alternative memo.|
|25||See, e.g., Butz v. Glover Livestock Commission Co. Inc., 411 U.S. 182, 187 (1973); Hiller v. SEC, 429 F.2d 856, 858-59 (2d Cir. 1970); Pasquale Schettino, Exchange Act Rel. No. 44329 (May 21, 2001), 75 SEC Docket 71, 82; Robert A. Grunburg, 52 S.E.C. 1081, 1083 (1996); Jeffrey D. Field, 51 S.E.C. 1074, 1077 (1994); Robert A. Amato, 51 S.E.C. 316, 321 n.25 (1993), aff'd, 18 F.3d 1281 (5th Cir. 1994); J.V. Ace & Co., Inc., 50 S.E.C. 461, 467 (1990).|
|26||See, e.g., Pasquale Schettino at 82 n.24; Justine Susan Fischer, 53 S.E.C. 734, 741 n.4 (1998).|
|27||AMEX Decision 97-D-01 (April 8, 1997).|
|28||In Herold, the AMEX censured and barred a broker for similarly failing to use due diligence in the opening of his customer's account, effecting unsuitable and excessive options transactions for his customer, and disclosing misleading information on his customer's new account form. As is detailed in the AMEX disciplinary decision brought against the broker's supervisor, the broker had permitted another broker from a different firm to make numerous unauthorized trades and withdrawals from the account of an 82-year-old widow who was confined to a nursing home. Richard DeCastro, AMEX No. 97-D-01, 1998 WL 295513 (April 6, 1998). Wong would have us distinguish in a meaningful way his conduct from that of the Herold respondent. According to Wong, the Herold respondent engaged in more egregious misconduct than did Wong when the Herold respondent took advantage of his customer's confinement by facilitating another broker's improper withdrawals of cash and securities from the customer's account. Wong correctly points out that, here, unlike in Herold, third parties were not helped to defraud an institutionalized person. Wong, however, acted alone and was solely responsible for defrauding his client, Alongi. The fact differences Wong highlights do not counsel imposing a time-limited bar.|
|29||See NASD Sanction Guidelines at 74 and 83 (1998 ed.).|
|30||We have considered all of the parties' contentions. We have rejected or sustained these contentions to the extent that they are inconsistent or in accord with the views expressed in this opinion.|