Securities Exchange Act of 1934
Rel. No. 42008 / October 14, 1999
Admin. Proc. File No. 3-8511
In the Matter of
James J. Pasztor
Opinion of the Commission
Ground for Remedial Action:
Failure to Supervise Reasonably
Branch manager of broker-dealer, who was also compliance officer, failed reasonably to supervise registered representative who aided, and abetted, and caused a manipulation effected by her customer. Held, it is in the public interest to suspend branch manager from association in a supervisory or proprietary capacity with any broker or dealer for a period of three months.
Thomas J. McCabe, for James J. Pasztor.
David S. Horowitz, for the Division of Enforcement.
February 21, 1997
Last brief received:
June 5, 1997
Oral Argument held:
June 14, 1999
I.The Division of Enforcement appeals from the initial decision of an administrative law judge dismissing an administrative action against James J. Pasztor. Pasztor was, among other things, branch manager and compliance officer of Voss & Co., Inc. ("VCI") at the time of the events at issue. The Division alleges that Pasztor failed reasonably to superviseSharon M. Graham, a registered representative at VCI.1 We base our findings on an independent review of the record, except with respect to those findings not challenged on appeal.2
II.A. Procedural Background
The order instituting this administrative proceeding charged three individuals at VCI: Pasztor, Graham, and Stephen C. Voss, VCI's president and sole stockholder. After the proceeding began, the charges against Graham and Voss were severed from those against Pasztor. Administrative Law Judge Glenn Robert Lawrence presided at the hearing for Graham and Voss, at which Pasztor appeared solely as a witness. Judge Lawrence concluded that Graham willfully aided, abetted, and caused violations of Sections 9(a)(1)3 and 10(b)4 of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder,5 by executing 60 wash trades and matched orders on behalf of a VCI customer, John Broumas. Judge Lawrence also concluded that Voss failed reasonably to supervise Graham with a view to preventing her violations. On appeal, we dismissed the Section 9(a)(1) allegations,6 but found that Graham had aided, abetted, and caused Broumas' violations of Exchange Act Section 10(b) and Rule 10b-5, and that Voss failed reasonably to supervise Graham.7
Subsequently, Judge Carol Fox Foelak presided at the hearing concerning the allegations against Pasztor. Both Pasztor and Graham testified at the hearing before Judge Foelak. In addition, Pasztor and the Division stipulated to Judge Lawrence's findings of fact as to Broumas, Graham, Voss, and Pasztor, and to his conclusions of law as to Broumas, Graham, and Voss. We accept these stipulations, except to the extent that the stipulations are contrary to the law8 or demonstrably false.9
B. Broumas' Scheme
Broumas is a former chairman of the board of Madison National Bank of Virginia ("MNBV") and a former director of James Madison Limited ("JML"), a holding company for a family of banks.10In 1989 and 1990, Broumas was experiencing severe financial problems and could not obtain additional bank loans.11 Unable to borrow more money from JML, Broumas met his loan and brokerage account margin requirements using wash trades and matched orders in JML Class A common stock ("JML stock").
JML stock was thinly traded. Broumas controlled at least 25 brokerage accounts in his name and in the names of nominees at 14 different broker-dealers. Broumas effected his scheme using "directed trades." He instructed registered representatives on both sides of these trades to contact one another and to trade a specified number of shares of JML stock, typically between 3,000 and 12,000 shares, at a specified price. Since Broumas' stock was held in margin accounts, he was able to obtain funds from a sale one day after the transaction was completed while he could wait at least five business days until the settlement date to pay for a corresponding purchase.12 When the settlement date arrived, he sometimes executed another set of wash trades or matched orders. Broumas, thus, effectively "borrowed" funds from the broker-dealers that executed his trades.
Broumas executed 203 sets of wash trades or matched orders. Broumas effected these trades on the over-the-counter market although JML stock was listed on the American Stock Exchange, Inc. ("AMEX").13 Certain of Broumas' over-the-counter trades in JML stock, constituting 36.6 percent of the entire reported volume for JML stock for this period, were reported to the AMEX.14
During the period at issue, Broumas controlled three accounts at VCI: a joint account with his wife, an account denominated "Les Girls" (which purportedly was for a partnership between Broumas' wife and daughter), and an account in the name of Broumas' attorney and business associate, L. Lawton
Rogers.15 Between January 23, 1989 and May 24, 1990, Broumas effected 76 directed trades through the VCI accounts, totalling 644,800 shares. Of these directed trades, 22 were reported to the market. Among other things, the parties stipulated that Broumas' scheme violated Exchange Act Section 10(b) and Rule 10b-5 by operating as a fraud and deceit on the marketplace.16
C. Graham's Involvement
Graham handled VCI's "house accounts," including Broumas' accounts, on a non-commission basis.17 From at least January 23, 1989 through May 24, 1990, Graham executed approximately 60 of Broumas' directed trades, while Pasztor, Voss, and other VCI representatives handled the remainder. During this period, Graham executed on average one trade for Broumas every week and a half.
Broumas generally gave Graham orders to buy or sell JML Class A common stock off the exchange. He would specify the number of shares to be bought or sold, a limit price, and the firm ("contra-broker") that would execute the other side of thetrade. On some occasions, the contra-broker would call Graham before Broumas contacted her, but Graham would wait until Broumas confirmed the trade before executing it. Generally, when Broumas sold stock, he asked that VCI issue the check for the proceeds the next day.
Graham recorded on each VCI order ticket the name of the contra-broker and the contra-broker's registered representative that Broumas had specified. She observed that most of these trades were done with registered representatives at three or four firms, including Richard Chema at H. Beck, Inc., Ronald Lara and Richard Kulak at Lara, Millard & Associates, Inc., and Carole Haynes at Swan Securities, Inc. and, later, First Potomac Investment Services, Inc.18 Graham assumed that Broumas "had connections" at these firms because Broumas identified contact persons to call at the contra-broker. She also assumed that Broumas maintained accounts at other firms. The parties stipulated that Graham willfully aided and abetted and was a cause of Broumas' violations of Exchange Act Section 10(b) and Rule 10b-5.
D. Pasztor's Supervision of Graham
Pasztor began working at VCI in 1982. During the period at issue, Pasztor was VCI's sole vice president, general manager, compliance officer, and the branch manager of VCI's only office. At the hearing, Pasztor testified that "I was the – main person in charge after Steve [Voss], as far as the firm was concerned." Pasztor managed the firm's day-to-day operations, which included overseeing the staff, supervising "the brokers," reviewing order tickets, and managing finances. Pasztor admitted that he had the power to hire and fire staff. Pasztor had hired Graham, and he testified that he had the power to fire her. Graham testified that she considered both Pasztor and Voss to be her supervisors.
Pasztor's compliance duties included updating the staff on changes to the federal securities laws and the requirements of the self-regulatory organizations. VCI's registered representatives consulted Pasztor with compliance questions about securities transactions. Pasztor further was responsible for drafting and updating the firm's compliance manual.
Pasztor reported directly to Voss. During the relevant period, Voss came to the office less and less frequently, as he pursued outside business interests. Voss, however, established the policies for VCI and continued to be highly involved in the firm's operation. Voss and Pasztor spoke almost daily about anumber of management issues. Voss had the power to overrule Pasztor's decisions. Pasztor testified that, for example, he lacked the power to close customer accounts without consulting Voss.
Pasztor first became aware of Broumas' directed trades in JML stock when he personally executed one of Broumas' trades sometime in 1987 or 1988. Because Pasztor had not seen a directed over-the-counter trade in an exchange-listed stock, he asked Voss if the firm could accept this type of transaction. Voss responded that Broumas' trade "was fine, [Broumas] could execute his trades that way." Pasztor understood that Voss' statement gave Broumas a blanket authorization to direct trades. Pasztor ultimately executed approximately six directed trades for Broumas.
Despite Voss' assurance that Broumas' directed trades were "fine," Pasztor found Broumas' trading strategy troubling and repeatedly discussed it with Graham and Voss. Pasztor knew that Broumas was a director and large shareholder of JML. Broumas traded almost exclusively large blocks of JML stock, but his overall JML stock holdings at VCI fluctuated little over time.19
Broumas was the only VCI client who directed trades. Like Graham, Pasztor assumed that Broumas had connections, and possibly accounts, at the contra-brokers. Pasztor also thought that Broumas probably knew the party on the other side of the trade. Pasztor found that the contra-brokers to which Broumas directed the trades always could deliver the number of shares of JML stock that Broumas ordered, and the trades were concluded in minutes. Pasztor did not ask Broumas or the contra-brokers how Broumas knew in advance about the trades or that the number of shares that Broumas wanted was available from the contra-broker. Nor did he ask Graham to make inquiries.20
Pasztor and Graham also questioned whether Broumas' trades made economic sense. Broumas did not seem to profit from his trading; yet, in spite of the lack of profitability, he was willing to pay commissions on the trades and interest on the margin loans. Moreover, Broumas was having difficulty paying for his trades in a timely manner.
Pasztor testified that, in early 1989, the margin supervisor at VCI's clearing firm suggested that Broumas might be engaged in a form of "check-kiting."21 Pasztor thereafter suspected that Broumas was timing his purchase and sale transactions to obtain the use of uncleared bank funds. Pasztor, however, testified that he did not recognize that Broumas was effecting his scheme through wash sales or matched orders because he did not know the mechanics of such trades.
Although Pasztor did not believe that this check-kiting was illegal, he became concerned that the scheme could put VCI at financial risk if Broumas ultimately did not pay for a trade. In early 1989, the clearing firm notified Pasztor that Broumas' joint account had received too many Regulation T extensions and that trading in this account could continue only with cleared funds or securities.22 Pasztor understood that New York Stock Exchange rules limited the number of extensions an account could receive. Although there is some ambiguity in the record, both parties agree that Pasztor promptly either restricted or halted trading in the joint account.23 According toPasztor, Voss ignored his concerns and authorized Broumas' opening the Les Girls account as a means to circumvent the clearing firm's restrictions on the joint account.
By August 1989, Broumas was trading again in both the joint and Les Girls accounts. In 1990, Pasztor noticed that Broumas was directing trading in Lawton Rogers' VCI account. When called, Rogers confirmed Broumas' trades. Pasztor brought Broumas' activities in the Rogers' account to Voss' attention, but Voss told Pasztor that Rogers and Broumas were "bosom buddies." After the conversation between Voss and Pasztor, Broumas directed an additional five trades through Rogers' account. At the conclusion of Broumas' trading, Rogers' account held no JML stock.
Pasztor testified that he was unaware that NASD rules required the reporting of trading volume in over-the-counter trades of exchange-listed stocks like JML. Sometime in the spring of 1990, a contra-broker on a Broumas trade asked Graham whether Graham's firm would report the trade. Once Graham brought the issue to his attention, Pasztor called VCI's clearing firm for more information. An employee of the clearing firm also did not seem familiar with this reporting requirement. However, the clearing firm employee advised Pasztor to "get rid" of Broumas' account because the clearing firm was concerned that Broumas was violating Securities Act Rule 144.24 As discussed above, although VCI staff was unaware of the reporting requirements, at least 22 of Broumas' trades through VCI were reported.25
In April or May 1990, the bank returned for insufficient funds a check that Broumas had given to VCI for the purchase of some JML stock. In a second attempt to limit Broumas' trading, Pasztor informed Broumas that he could no longer trade in hisjoint account without having cleared funds or securities. After lunch with Broumas, Voss overruled Pasztor and allowed trading in the account without restrictions. Shortly thereafter, Broumas failed to pay for a trade in JML stock through VCI. As a result, VCI lost over $60,000.
E. Initial Decision
Judge Foelak found that Pasztor was not Graham's supervisor, at least with respect to Broumas' trades. In her view, Voss retained supervisory responsibility for authorizing Broumas' trades, as evidenced by Voss' decision to overrule Pasztor's two attempts to halt Broumas' trading. The law judge further found that, even if Pasztor were Graham's supervisor, Pasztor had exercised reasonable supervision under the circumstances. She dismissed the proceeding; this appeal followed.
III.Exchange Act Section 15(b)(6)26 authorizes
the Commission to sanction associated persons of broker-dealers who fail
reasonably to supervise persons subject to their supervision with a view
to preventing violations of the federal securities laws. We find that
Graham was subject to Pasztor's supervision, and that Pasztor failed to
supervise Graham with a view to preventing Graham's aiding and abetting of
Broumas' violative conduct.
Pasztor admitted that he was the "main person in charge" at VCI, after Voss. Pasztor had the authority and power of a supervisor. He answered the compliance questions of the firm's associated persons and generally oversaw the firm's compliance with the federal securities laws and self-regulatory requirements. He had authority to hire and fire VCI's associated persons (including Graham).27
In 1989 and 1990, Pasztor's supervisory role necessarily increased in importance. At the beginning of 1989, Voss came into VCI's office only a few afternoons each week. By 1990, Voss did not come into the office at all. While Pasztor kept in contact with Voss by telephone, Pasztor was the supervisor in the best position to monitor Broumas' trading through Graham and to identify problems with that trading.
Pasztor claims that he relied on Voss for guidance and that Voss had "exclusive" supervisory control of Broumas' trades through Graham. Graham's testimony, however, refutes this contention. While she viewed both Voss and Pasztor as her supervisors, she had little personal contact with Voss during the period at issue. Therefore, when Graham had questions or information about Broumas' accounts or trades, she brought the matters to Pasztor – her direct supervisor. The record further reflects that she frequently discussed with Pasztor Broumas' trading strategy and financial position.28
Pasztor argues that his supervision was reasonable since he did not understand the mechanics of wash trades or matched orders. Pasztor asserts that he thought Broumas' transactions made Broumas a "bad credit risk" for the firm or that he was check-kiting and took actions to minimize this perceived credit risk. Pasztor contends that he did not believe that Broumas' conduct was illegal.29
We conclude that Pasztor's lack of knowledge of the illegal nature of Broumas' conduct was unreasonable.30 Wash sales and matched orders have long been recognized as violative practices in the securities industry. Congressional concern in the 1930s about wash sales was an impetus for enacting the Exchange Act.31 We often have disciplined securitiesprofessionals for wash trades.32 As a supervisor, Pasztor was responsible for knowing the illegal nature of wash trades and matched orders. Courts have long recognized, moreover, that directed trading is a frequent indicium of manipulative activities such as wash trades and matched orders.33
Because of his lack of understanding, Pasztor ignored the numerous red flags that Graham, by accepting Broumas' trades, was assisting illegal conduct by Broumas.34 Pasztor knew that Broumas was affiliated with JML and that Broumas traded JML stock through directed trades with specific contra-brokers. Pasztor believed Broumas had a relationship with these contra-brokers and likely knew who was on the other side of the trades. Broumas used a strategy that Pasztor considered economically irrational. Although Broumas traded large blocks of stock, his positions in each of the accounts remained essentially flat. Broumas continued to incur both commissions and interest on the margin balance on numerous trades in spite of the fact that this strategy was unprofitable.
Pasztor reviewed the trade tickets for Broumas' trades at VCI. The trade tickets demonstrated close links between Broumas and the accounts on the other side of Broumas' transactions since 61 of a total of 76 Broumas' directed trades were effected between VCI and just three contra-brokers. That information, coupled with the fact that there was little net change in Broumas' holdings after numerous transactions, should have alerted Pasztor that Broumas owned or controlled the accounts on the contra-side of the directed trades. Pasztor, however, claims that he merely "rubber stamped" the tickets pursuant to Voss' instructions. Such behavior was not reasonable and resulted in Pasztor's ignoring important information about Broumas' trades.
Pasztor's lack of understanding of the clear indications of Broumas' trading undermines his argument that he was unable to undertake "effective" action to stop Graham from assisting Broumas' trading. Pasztor notes that Voss twice overruled his attempts to restrict Broumas' account or stop Broumas' trading, saying that the trades were "fine." But Pasztor tried to convince Voss of the risk that Broumas would not pay for his trades. He never urged Voss to stop participating in an illegal scheme because he failed to notice it.35 We – and Pasztor – can only speculate about how Voss would have reacted if Pasztor had understood the transactions and reported to Voss the appropriate concerns.36
Pasztor relies on the Commission's decision in Louis R. Trujillo.37 In Trujillo, however, while Trujillo's supervision of a rogue registered representative, Victor Matl, "was less than exemplary" and Trujillo failed to uncover additional misconduct by Matl, the Commission determined that his supervision of Matl was "generally tight."38 Trujillo made "reasonable and diligent efforts" to inform Robert Fisher, Trujillo's supervisor, of the need to discipline Matl. Trujillo reprimanded Matl, criticized Matl in a memorandum to Fisher, and "continually stressed the scope and magnitude of problems created by Matl." The Commission found that Trujillo's supervisory responses were not unreasonable given his limited administrative and surveillance authority, observing that it was Fisher who had the ability to "discharge, restrict, or otherwise take effective action against Matl." In contrast, Pasztor, who admits that he could hire and fire Graham, failed to identify the conduct that she was aiding and abetting and take appropriate action.39
For the reasons stated above, we conclude that Pasztor's supervisory actions were not reasonably designed to prevent Graham's aiding and abetting of Broumas' violations.
IV.The remaining issue concerns what
sanctions are in the public interest. We recognize that Pasztor brought
what limited concerns he uncovered to Voss' attention and was overruled in
his two attempts to halt or limit Broumas' trading activities. Pasztor
also has no prior disciplinary history. The Division does not dispute
Pasztor's claim that he has served without incident as a supervisor at
another firm for six years. However, Pasztor, an experienced securities
professional and supervisor, should have recognized from many red flags
that Graham was effecting wash trades and matched orders for Broumas. At a
minimum, Pasztor should have conducted an independent investigation to
determine whether these trades, which Pasztor recognized were a matter of
concern, violated the federal securities laws. A suspension for three
months from association in a supervisory or proprietary capacity with any
broker or dealer is in the public interest.
An appropriate order will issue.40
By the Commission
Commissioner Carey, and
Jonathan G. Katz
Commissioner Johnson, dissenting:
In this case, James J. Pasztor is charged only with failing reasonably to supervise a registered representative, Sharon M. Graham. Under the Securities Exchange Act of 1934, the Commission may bring administrative proceedings against an associated person of a broker-dealer such as Pasztor who "has failed reasonably to supervise, with a view to preventing violations . . ., another person [subject to his or her supervision] who commits such violations." See 15 U.S.C. §§ 78o(b)(4)(E) and 78o(b)(6) (emphasis added). In a previous opinion, I concluded that Graham did not commit any substantive violations because she reasonably relied on the advice of her supervisor, Pasztor and Stephen C. Voss. See Sharon M. Graham and Stephen C. Voss, Exchange Act Rel. No. 34-40727 (Nov. 30, 1998), 68 SEC Docket 2056, 2077-79 (Commissioner Johnson, dissenting), appeal pending, No. 99-1029 (D.C. Cir.); see also James L. Owsley, 51 S.E.C. 524 (1993). I continue to believe that Graham committed no underlying violations; I must accordingly dissent from the majority's conclusion that Pasztor failed reasonably to supervise her.
1 During the pendency of this proceeding, Graham married and assumed her husband's name. For continuity, we, like the law judge, will continue to refer to her as Graham.
2 This proceeding was conducted under the Commission's former Rules of Practice, which were in effect when the case was docketed. Under the "Transition Provision" set forth in the Federal Register notice for the new Rules of Practice, the former Rules govern since the case was docketed prior to June 23, 1995. See 60 Fed. Reg. 32,738 (1995).
3 15 U.S.C. § 78i(a)(1).
4 15 U.S.C. § 78j(b).
5 17 C.F.R. § 240.10b-5.
6 Sharon M. Graham, Securities Exchange Act Rel. No. 40727 (Nov. 30, 1998), 68 SEC Docket 2056, 2067 n.27, appeal pending, No. 99-1029 (D.C. Cir. Jan. 27, 1999).
7 Because we rejected the allegations that Graham aided, abetted, or caused the violations of Exchange Act Section 9(a)(1), we dismiss the allegations that Pasztor failed to supervise Graham with respect to this violation.
8 See, e.g., Sanford's Estate v. Commissioner, 308 U.S. 39, 51 (1939) ("[w]e are not bound to accept, as controlling, stipulations as to questions of law"); TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995) ("[r]elief from erroneous stipulations is especially favored where the mistake made concerns a legal conclusion"). See n.7 above.
9 Universal Camera Corp. v. NLRB, 340 U.S. 474, 497 (1951) (citing Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281 (1917)).
Our findings with respect to Broumas, Graham, and Voss are made solely for purposes of this proceeding against Pasztor.
10 On September 27, 1991, the Commission filed a complaint in the United States District Court for the District of Columbia alleging that, from January 1989 through July 1990, Broumas violated the federal securities laws by marking the close and by executing wash trades in JML stock. SEC v. John G. Broumas, Civil Action No. 91-2449 (D.D.C. Sept. 27, 1991). Broumas consented, without admitting or denying the allegations, to the entry of a permanent injunction prohibiting him from future violations of Exchange Act Sections 9(a)(1), 9(a)(2), 10(b), and 16(a) and Rules 10b-5 and 16a-3 thereunder.
In November 1994, Broumas pled guilty to a criminal information charging him with misapplication of bank funds. The information alleged that, from April through June 1990, Broumas engaged in a check-kiting scheme, writing checks against insufficient funds to meet margin calls. It also charged that Broumas improperly used his position as MNBV chairman to exchange personal checks drawn on falsely inflated balances for cashier's checks in order to meetmargin calls and pay other expenses. United States v. Broumas, Crim. No. 94-442 (D.D.C. Nov. 23, 1994).
11 As a result of his inability to repay his liabilities, Broumas filed for personal bankruptcy in early 1991.
12See 12 C.F.R. § 220.4(c)(1) (1990) (providing that securities positions are eliminated and credit established as of trade date) and 12 C.F.R. § 220.4(e)(1) (1990) (permitting withdrawal of cash not required to margin existing positions).
13 Schedule G to the National Association of Securities Dealers, Inc.'s ("NASD") By-Laws, which was in effect at the time of the events at issue, required that over-the-counter sales transactions in listed securities be reported to the NASD.
14 Between January 1 and July 2, 1989, none of the wash trades that Broumas placed with any broker-dealer was reported tothe AMEX. After July 2, 1989, the volume for at least 80 of Broumas' trades, totalling 703,161 shares, was reported to the AMEX, and subsequently to the public.
15 We instituted a proceeding against Rogers that he settled without admitting or denying the allegations. L. Lawton Rogers, III, Securities Exchange Act Rel. No. 36704 (Jan. 11, 1996), 61 SEC Docket 100. Our findings here with respect to Rogers are solely for the purpose of this proceeding.
16 Broumas also engaged in the practice of "marking the close." See, e.g., Adrian C. Havill, Securities Exchange Act Rel. No. 40726 (Nov. 30, 1998) 68 SEC Docket 2042, 2043-44 (describing Broumas's marking-the-close activities through Havill's firm). It is not alleged in this proceeding that Broumas engaged in marking-the-close violations through VCI and, thus, those activities are not considered here.
17 "House accounts" were not assigned to a particular registered representative. Commissions on trades in these accounts went to VCI.
18 Broumas directed Graham and others at VCI to execute the 76 wash trades at issue with a total of 8 different broker-dealers.
19 For example, in the Les Girls account, Broumas directed 40 JML stock trades, involving 323,550 shares, in that account between February 24, 1989 and March 29, 1990. The net change in the Les Girls account totalled an increase of 500 shares.
20 At one point either Graham, Pasztor, or both asked Broumas about his trading strategy. Graham testified at the hearing before Judge Lawrence that, sometime during the spring of 1990, Broumas told her that he had outstanding bank loans, and that selling stock was an easier way to pay these loans than "other means." According to Graham, Broumas claimed that he then bought back the stock when he had the funds to maintain the size of his JML position and his position withthe bank. Graham claimed that Pasztor had a similar conversation with Broumas; Pasztor denied this.
At the hearing before Judge Foelak, Graham reiterated Broumas' explanation. At that time, however, she claimed that it was Pasztor who relayed Broumas' explanation to her.
21 Pasztor explained his understanding of "check-kiting" as the "use of non-cleared funds" in a bank account and "trying to use the flow [sic]; where you are late paying one place, get your funds earlier at another place."
22 Under Federal Reserve Board Regulation T, a margin call generally must be satisfied within seven business days. That period may be extended for one or more limited periods upon application of the broker to a self-regulatory organization. See 12 C.F.R. § 220.4.
23 Pasztor testified before Judge Foelak that he halted trading in the joint account. This testimony conflicts somewhat with the testimony before Judge Lawrence that Pasztorrestricted the joint account, limiting trading to the use of cleared funds or stock. Given Broumas' financial condition, however, the practical effect of a restriction, which required Pasztor to have cash in the account to purchase, was to halt trading in the joint account.
24See 17 C.F.R. § 230.144 (in relevant part, limiting resales by an issuer's affiliates and others who receive restricted securities). Pasztor ultimately contacted the staff at the NASD, who explained the requirement to him.
25 Apparently, contra-brokers reported the majority of these trades. However, we cannot determine from the record the identity of the firm that reported any particular transaction.
26 15 U.S.C. § 78o(b)(6).
27 Pasztor asserts that, in John H. Gutfreund, 51 S.E.C. 93, 113 n.24 (1992) (settled case), "the Commission expressly and definitively . . . state[ed] that `a person's actual responsibilities and authority, rather than, for example, his or her `line' or `non-line' status, will determine whether he or she is a supervisor.'" In Gutfreund, the Commission dealt with persons who "have legal or compliance responsibilities" and might not be assigned direct supervisory responsibility for a broker-dealer's associated persons.
The Commission did not suggest in Gutfreund that there are circumstances under which branch managers like Pasztor might be relieved of their responsibility for associated persons subject to their supervision. Rather, the Commission has held that a branch manager has supervisory responsibility so long as the manager occupies that position. See, e.g., Douglas Conrad Black, 51 S.E.C. 791, 794 (1993); Kirk A. Knapp, 50 S.E.C. 858, 863 (1992). A supervisor must act to ensure that each associated person is receiving appropriate supervision despite constraints on the supervisor's powers. Douglas Conrad Black, 51 S.E.C. at 795 (unsuccessful attempts by direct supervisor to discharge rogue registered representative not sufficient to satisfy supervisor's duties where evidence showed that trader required increased monitoring).
In any event, based on Pasztor's duties and responsibilities as discussed above, we conclude that Pasztor had "actual responsibilities and authority" over Graham.
28 Pasztor was not relieved of supervisory duties because another manager, Voss, shared supervisory authority over Graham. James L. Owsley, 51 S.E.C. 524, 536 (1993) (firm's chief executive officer and president/compliance officer shared supervisory responsibility over activities at branch office); Robert J. Check, 49 S.E.C. 1004, 1008 (1988).
Nor was Pasztor relieved of responsibility because he had to report to Voss, and Voss could overrule his decisions. As Graham's supervisor, Pasztor had an obligation to monitor her performance, and could not shift that responsibility onto Voss. Voss had an obligation to monitor Pasztor's performance. Owsley, 51 S.E.C. at 536 (criticizing firm's president for delegating compliance duties to others and not monitoring the delegate's performance).
29 At oral argument, counsel for Pasztor conceded that, had Pasztor known that Broumas' conduct was illegal, he would not have processed Broumas' trades.
30 Courts have recognized that failure to know the law or the regulations does not excuse a violation of the securities laws. See SEC v. Falstaff Brewing Corp., 629 F.2d 62, 77 (D.C. Cir.) ("Knowledge means awareness of the underlying facts, not the labels that the law places on those facts."), cert. denied sub nom. Kalmanovitz v. SEC, 449 U.S. 1012 (1980).
31 "The legislative history accompanying the original enactment of the Exchange Act expresses repeated concern about wash transactions." Adrian C. Havill, Securities Exchange Act Rel. No. 40726 (Nov. 30, 1998), 68 SEC Docket 2042, 2052 n.25 (quoting H.R. Rep. No. 1343, 73d Cong., 2d Sess. 10 (1934), "wash sales . . . are definitely prohibited").
See, e.g., Exchange Act Section 9(a)(1) (prohibiting the creation of a false or misleading appearance in the market for a security by transactions that do not result in a change in beneficial ownership of the security, or the entry of orders for securities with the knowledge that orders of substantially the same size, time, and price are being entered by the same or another party).
32Swartwood, Hesse, Inc., 50 S.E.C. 1301, 1307 (1992); Edward J. Mawod & Co., 46 S.E.C. 865, 869-71 (1977), aff'd, 591 F.2d 588, 595 (10th Cir. 1979); Thornton & Co., 28 S.E.C. 208, aff'd per curiam, 171 F.2d 702 (2d Cir. 1948). See also Andrew Doherty, Securities Exchange Act Rel. No. 29545 (August 12, 1991), 49 SEC Docket 859; Jacob Schaefer, Securities Exchange Act Rel. No. 13736 (July 11, 1977), 12 SEC Docket 1128; SEC v. Chromalloy American Corp., Civil No. 77-1531 (S.D.N.Y.), Lit. Rel. No. 7850 (March 30, 1977), 11 SEC Docket 2186 (settlements).
33United States v. Cohen, 518 F.2d 727, 734 (2d Cir. 1975) (directed trades evidence of manipulation), cert. denied, 423 U.S. 926 (1975); SEC v. Lorin, 877 F. Supp. 192, 198 (S.D.N.Y. 1995) (directed and controlled trades are evidence of intent to manipulate), aff'd in part, 76 F.3d 458 (2d Cir. 1996).
34 Pasztor asserts that he consulted VCI's clearing firm and VCI's counsel about Broumas' activities. The record reflects that, while he spoke to the clearing firm, Pasztor sought advice about the reporting requirements for over-the-counter trades and was informed about Securities Act Rule 144 requirements. Voss, not Pasztor, consulted VCI's counsel and, again, the question posed related to Rule 144's requirements, not the nature of Broumas' trading. Compare SEC v. Savoy Indus., Inc., 665 F.2d 1310, 1315 n.28 (D.C. Cir. 1981) (discussing requirements for reliance on counsel's advice); SEC v. Goldfield Deep Mines Co., 758 F.2d 459, 467 (9th Cir. 1985).
35See also Adrian Havill, 68 SEC Docket at 2051 (discussion of wash trades with supervisor was limited to the amount of commissions to be charged); Michael Brian Kormos, 52 S.E.C. 303, 305-06 (1995) (observing that manager's direction to "do it" did not suggest that action was "proper or lawful").
36 In Graham, Voss testified that he understood wash trading and matched orders. Before the Commission, Voss stated that he believed that Broumas' directed trades could not have been wash trades or matched orders because they were effected over-the-counter and thus "were invisible to the public . . . [T]he only two people that would have knowledge of the trades were the brokers doing the trade." 68 SEC Docket at 2072.
As the Commission explained, Voss was in error. The trades were effected at a contrived price, which improperly caused brokers to pay funds to Broumas. Moreover, 22 of Broumas' trades through VCI were reported to the market. Id. Voss' conclusion might have been altered if Pasztor had recognized Broumas' trades as wash trades and matched orders, informed Voss of the existing NASD requirement that those trades be reported to the market, or determined that some trades were in fact being reported.
37 49 S.E.C. 1106 (1989).
38 In particular, Trujillo made Matl "the number one item on every meeting agenda" and took it upon himself to continue investigating Matl even after Trujillo's superiors largely ignored his reports. The opinion indicates that Trujillo's actions "were a major factor in Matl's dismissal." Id. at 1111. Trujillo's actions illustrate the substantial ability of a supervisor with limited authority to prevent illegal conduct.
39 Pasztor also relies on our decision in Alfred Bryant Tallman, 44 S.E.C. 230, 233-34 (1970), in which we rejected a compliance officer's settlement offer of a censure and dismissed the proceedings. In Tallman, the Commission found that the compliance officer had in fact failed to carry out the supervisory duties that he was assigned to perform. 44 S.E.C. at 234. Our decision not to censure the compliance officer was based solely on his youth, inexperience, and the then-novel legal issues regarding the supervisory responsibilities of compliance officers. Id.
Here, for the reasons discussed above, we find that Pasztor had substantial supervisory responsibilities by virtue of his various capacities at VCI and that, by virtue of his lack of understanding of the regulatory requirements, he failed to fulfill those responsibilities.
40 We have considered all of the parties' contentions. We have rejected or sustained them to the extent that they are inconsistent or in accord with the views expressed herein.