UNITED STATES OF AMERICA
Before the
SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
Release No. 37831 / October 17, 1996
ADMINISTRATIVE PROCEEDING
File No. 3-9167
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:
In the Matter of : ORDER INSTITUTING PROCEEDINGS
: PURSUANT TO SECTIONS 15(b)(4)
A.R. BARON & CO., INC., : AND 19(h) OF THE SECURITIES
: EXCHANGE ACT OF 1934, MAKING
: FINDINGS AND IMPOSING REMEDIAL
Respondent. : SANCTIONS
:
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I.
The Securities and Exchange Commission ("Commission") deems
it appropriate and in the public interest that public
administrative proceedings be, and they hereby are, instituted
pursuant to Sections 15(b)(4) and 19(h) of the Securities
Exchange Act of 1934 ("Exchange Act") to determine whether A.R.
Baron & Co., Inc. ("Baron") willfully violated Section 17(a) of
the Securities Act of 1933 ("Securities Act") and Sections 7(c),
9(a)(2), 9(a)(4), 10(b) and 15(c)(1) of the Exchange Act and
Rules 10b-5 and 15c1-2 thereunder and Regulation T promulgated by
the Federal Reserve Board.
In anticipation of the institution of these administrative
proceedings, the Respondent has submitted an Offer of Settlement
("Offer") to the Commission, which the Commission has determined
to accept. Solely for the purpose of these proceedings and any
other proceeding brought by or on behalf of the Commission, or to
which the Commission is a party, and without admitting or denying
the findings contained herein, the Respondent, by its Offer,
consents to the findings and the imposition of the remedial
sanctions set forth below.
Accordingly, IT IS ORDERED that proceedings against A.R.
Baron & Co., Inc. be, and hereby are, instituted.
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II.
FACTS
The Commission finds the following:1
A. SUMMARY
Jeffrey Weissman ("Weissman") and Andrew Bressman
("Bressman"), the top officers of Baron, and others, carried out
through Baron a manipulation of the market for the common stock
of Health Professionals, Inc. ("HPI") in May and June 1993. In
1995, Bressman and another Baron principal, Roman Okin ("Okin"),
through Baron, manipulated the market for the common stock of
Cypros Pharmaceutical, Inc. ("Cypros"). Weissman, Bressman, Okin
and other Baron registered representatives engaged in egregious
sales practice abuses through Baron, including rampant
unauthorized trading in customer accounts, in connection with
transactions in the securities of HPI, Cypros and other issues.
B. RESPONDENT AND OTHER RELEVANT PEOPLE AND ENTITIES
1. Respondent
A.R. Baron & Co., Inc. is a Delaware corporation with
its principal place of business in New York, New York. At all
relevant times after Baron began operations in 1992, Baron was
registered with the Commission as a broker-dealer pursuant to
Section 15(b) of the Exchange Act. Baron has been inactive since
June 1996. In July 1996, Baron was placed in liquidation under
the Securities Investor Protection Act ("SIPA").
2. Other Persons and Entities
a. Andrew Bressman, age 32, resides in Alpine, New
Jersey. Bressman was a registered representative with Blair from
January 1990 through August 17, 1992. Bressman became a
registered representative and president of Baron on August 21,
1992 and its chief executive officer in September 1993. Bressman
became a registered principal with Baron in February 1993.
Bressman ceased to have any position with Baron in July 1996,
when Baron was placed in liquidation under the SIPA.
b. Jeffrey Weissman, age 32, resides in New York, New
York. Weissman was a registered representative with Blair from
August 1985 through August 17, 1992, and with Baron from August
1 The findings herein are made pursuant to an Offer of
Settlement submitted by A.R. Baron & Co., Inc. and are not
binding on any other person or entity in this or any other
proceeding.
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21, 1992, through December 1993. Weissman was chairman and chief
executive officer at Baron from August 21, 1992, through
September 1993. Weissman was a registered principal with Baron
from February 2, 1993 through December 1993. In August 1993,
Weissman suffered severe head injuries as a result of a
motorcycle accident. Weissman is not presently associated with
any broker or dealer and is not engaged in any other employment.
On September 9, 1996, an Order Instituting Proceedings Pursuant
to Section 8A of the Securities Act of 1933 and Sections
15(b)(6), 19(h) and 21C of the Securities Exchange Act of 1934,
Making Findings and Imposing Remedial Sanctions was entered
against Weissman by consent. In the Matter of Jeffrey Weissman
and Martin Weissman, Administrative Proceeding File No. 3-9072,
in which the Commission found that Jeffrey Weissman had violated
the antifraud provisions of the securities laws, among other
things.
c. Roman Okin, age 28, resides in Fort Lee, New
Jersey. Okin was a registered representative with Blair from
October 1990 through May 1992 and with Baron from May 1992
through August 1993, when he left Baron to become associated with
another firm. In December 1993, Okin returned to Baron, where he
worked until Baron went out of business in June 1996. Okin
became a registered principal of Baron in September 1994.
d. Health Professionals, Inc. is a Delaware
corporation with its principal place of business in Fort
Lauderdale, Florida. Prior to November 26, 1991, HPI was known
as Professional Care, Inc. HPI has common stock registered with
the Commission under Section 12(b) and warrants registered under
Section 12(g) of the Exchange Act. At all relevant times, HPI
common stock was listed and traded on both the American Stock
Exchange ("Amex") and on Nasdaq.
e. Cypros Pharmaceutical, Inc. is a California
corporation with its principal place of business in Carlsbad,
California. Cypros has common stock and warrants registered with
the Commission pursuant to Section 12(g) of the Exchange Act.
Cypros common stock and warrants are listed for trading on the
Nasdaq.
C. THE HPI MANIPULATION
1. Baron Absorbed Sell Volume
In September 1991, Weissman founded Baron and in August
1992, Weissman and Bressman came to work at Baron as the chairman
and president of the firm, respectively. By May 1993, Weissman
and Bressman and other Baron brokers had been aggressively
recommending HPI securities to their customers and many Baron
customers had high concentrations of HPI securities in their
accounts. On Saturday, May 22, 1993, Barron's magazine published
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a negative article about HPI. That weekend, Bressman and
Weissman decided to place buy orders on the Amex through Baron to
prevent a price decline.
On Monday, May 24, 1993, before the opening of trading,
Baron placed on the Amex a purchase order for 25,000 HPI shares.
The Amex market opened at $11 7/8 per share, down $1/2 from the
previous close, with Baron's purchase order absorbing most of the
selling.2 Within the first five minutes of trading, Baron
purchased over 60,000 shares. Despite Baron's purchases, HPI's
stock price dropped to a low of $10 1/2 per share at 9:37 a.m.
Baron continued to place purchase orders on the Amex, purchasing
approximately 120,000 shares within the first 30 minutes of
trading and a total of 300,000 shares for the day. That day
Baron did not sell a single share on the Amex. By the end of
trading on May 24, HPI stock closed at $12 per share, down $3/8
from the previous close but up from the day's low. Baron's Amex
purchases, which amounted to 66% of the Amex volume, had offset
heavy selling and had prevented HPI's stock price from falling
much further.
Over the next few weeks, Baron continued to purchase HPI
shares on the Amex in the firm trading account. Between May 24,
1993, and June 9, 1993, Baron's trading account purchased on the
Amex a total of approximately 780,000 HPI shares and sold on the
Amex only 1,000 HPI shares. Baron's Amex purchases for the
period constituted 64% of the Amex volume. These purchases
absorbed much of the supply of HPI on the Amex and prevented the
price of HPI from falling precipitously.
2. Baron Placed HPI Stock into Customer Accounts
Baron placed its May 24, 1993 Amex purchases of HPI stock in
the firm trading account. To prevent that concentration of
shares from adversely affecting Baron's net capital, Weissman and
Bressman caused the shares to be placed in customer accounts.
That day, beginning around 3:00 p.m., when HPI stock was trading
at approximately $12 per share, Weissman and Bressman engaged in
and directed other Baron brokers to engage in massive
unauthorized transactions that transferred or parked over 200,000
shares from Baron's inventory to customer accounts.
Near the end of each trading day during this period,
Weissman, Bressman and other Baron brokers moved HPI stock into
customer accounts by placing unauthorized purchases, sometimes
convincing customers to accept the trades after the fact. In
addition, Weissman, Bressman and other Baron brokers aggressively
solicited customers with unfounded optimistic claims about HPI's
2 HPI's stock split 2 for 1 in March 1992. The prices quoted
for all time periods in 1993 reflect the split.
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short-term prospects,3 and did not tell their customers that
Baron was making large purchases of HPI stock on the Amex to
prevent its price from falling.
Because Weissman, Bressman and others placed unauthorized
purchases, they were faced with transactions that were not paid
for by settlement date. In some cases, to pay for unauthorized
purchases of HPI stock, Weissman, Bressman and others sold,
without authority, other fully-paid securities in the customers'
accounts. In other cases they delayed the liquidation of the
unauthorized purchases by placing unauthorized requests for
extension of payment. When a customer account's HPI stock
position ultimately was liquidated because of nonpayment,
Weissman, Bressman and others sold the position to the trading
account and often resold the position to another customer account
in another unauthorized transaction.
The unauthorized trading by the Baron brokers caused some
customer accounts in which shares were liquidated for nonpayment
to be placed on 90-day restriction under Regulation T promulgated
by the Federal Reserve Board. While an account is thus
restricted, cash payment must be made at the time of any trade
made in the account. Weissman, Bressman and others circumvented
the restriction by opening and directing other Baron brokers to
open unauthorized new accounts, called "priority" accounts, for
customers that had their accounts restricted. Weissman, Bressman
and other Baron brokers transacted securities purchases on credit
for the new accounts.
3. Price Decline
Despite Baron's buying efforts, HPI's stock price declined.
By mid-June 1993, Baron had exhausted its capacity to purchase
HPI stock on the Amex and subsequently place it in customer
accounts. Baron's clearing firm refused to accept further
requests for extension of payment and required Baron to deposit
an additional $1 million in its deposit account. In order to
raise the cash needed for its deposit, Baron became a net seller
on the Amex, selling HPI shares that the trading account
accumulated from in-house liquidation of customer accounts.
On June 24, 1993, Baron sold about 750,000 shares on the
Amex, at $4 1/2 per share. Because there was insufficient buying
3 A frequently-made false claim during the period was that
HPI's stock price was about to go up because the company
would be making an important announcement at the Berlin AIDS
conference in early June 1993. Baron brokers also falsely
told customers that a large pharmaceutical company was going
to buy a large position in HPI and that this would increase
HPI's stock price.
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interest on the Amex for HPI stock, Weissman, Bressman and others
personally purchased an aggregate of 363,500 shares. On June 25,
1993, Baron liquidated over 500,000 shares on the Amex at an
average price of $2.61 per share. On June 29, 1993, Baron ceased
making a market in HPI stock.
D. THE CYPROS MANIPULATION
Bressman and Okin, through Baron, manipulated the price of
Cypros common stock from at least January 2, 1995 through October
10, 1995. During this period, the price of Cypros common stock
increased from $13 3/8 per share on January 3, 1995, to a high of
$23 3/4 per share on June 21, 1995.4 Bressman accomplished the
manipulation by dominating and controlling the market for Cypros
stock, posting the high bid for Cypros stock, having another
market maker advance the bid for Cypros stock and creating
artificial volume based on unauthorized transactions.
From January through October 10, 1995, Baron dominated the
Cypros trading market, with a market share averaging almost 75%.
In February 1995, 89% of the transactions in Cypros stock went
through Baron. For most of each trading day during that period,
Baron consistently posted the highest bid price on Nasdaq for
Cypros stock of the approximately ten firms making a market in
Cypros securities. In addition, Baron indirectly posted high
bids for Cypros by having another market maker buy Cypros shares
from the street for resale to Baron. This arrangement enabled
Baron to advance the bid for Cypros stock without disclosing that
it was Baron that was posting those high bids. Much of Baron's
trading volume was generated by unauthorized trading and did not
represent legitimate customer demand.
E. SALES PRACTICE ABUSES
Baron brokers engaged in extensive abusive sales practices
through Baron from the time Baron began operations until it
ceased doing business. The abusive sales practices involved the
securities of HPI, Cypros and other speculative securities and
occurred both during the periods of manipulation discussed above
and at other times.
Weissman, Bressman, Okin and others imposed and followed a
no-net-sale rule with respect to HPI, Cypros and other
speculative stock. To execute a sale order, a broker would have
to obtain a purchase order for at least as much of the same
stock. In accordance with the rule, Weissman, Bressman, Okin and
others resisted customer orders to sell; often persuading
4 On May 9, 1995, Cypros split its stock by 2.5:1. For
consistency, all prices cited in this memorandum are
adjusted to reflect the pre-split prices.
==========================================START OF PAGE 7======
customers not to sell by making misrepresentations or baseless
price predictions. If a customer insisted on selling, they would
often ignore the order. It took some customers months to get
sell orders executed. Needless to say, the Baron brokers did not
tell their customers they were acting pursuant to this no-net-
sale rule.
The Baron brokers engaged in rampant unauthorized trading in
the accounts of their customers. Often they would call the
customer after the trade had been executed and try to persuade
the customer to accept it, making misrepresentations in the
process. At other times, they would sell other stock in the
customers' accounts to pay for the unauthorized purchases,
without prior notification to the customer of either transaction.
To obtain additional time for unauthorized trades to remain in
customer accounts, the Baron brokers, without the customers'
knowledge or authorization, placed requests for extension of
payment time under Regulation T promulgated by the Federal
Reserve Board. Sometimes Baron brokers executed customer sale
orders, but instead of remitting the proceeds of the sales to the
customers, they placed unauthorized trades with those proceeds.
Baron brokers also placed unauthorized margin transactions in
customer accounts.
The Baron brokers limited their recommendations to a few
speculative securities, including HPI and Cypros, disregarding
whether the investments they recommended were suitable for their
customers. In order to persuade some customers to purchase HPI
stock, Baron brokers falsely told them that their purchase orders
would be accompanied by a stop-loss order that would cause the
HPI stock to be sold if the price of HPI fell below a certain
price. However, when the price of HPI stock fell, the purported
stop-loss order was not carried out.
The Baron brokers often opened up additional accounts for
existing customers without authorization. The multiple accounts
served to confuse the customers and enabled the brokers to trade
in new accounts when other accounts were restricted due to
failure to comply with Regulation T promulgated by the Federal
Reserve Board.
III.
OPINION
A. MARKET MANIPULATION
Section 9(a)(2) of the Exchange Act, which prohibits the
manipulation of the prices of securities listed for trading on a
national exchange, makes it unlawful for a person to engage in a
series of transactions that creates actual or apparent activity
or raises or depresses the stock's price when done for the
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purpose of inducing others to buy or sell the security. Section
9(a)(4) of the Exchange Act prohibits a person purchasing or
offering to purchase or selling or offering to sell securities
registered on a national securities exchange from making false or
misleading statements for the purpose of inducing the purchase or
sale.
These manipulative practices also violate Section 10(b) and
Rule 10b-5 of the Exchange Act. Section 10(b) and Rule 10b-5,
however, do not require a showing of manipulative purpose.
Instead "[i]t is sufficient for the person to engage in a course
of business which operates as a fraud or deceit as to the nature
of the market for the security." In re Michael Batterman, 46
S.E.C. 304, 305 (1976). Accord United States v. Charnay, 537 F.2d
341, 350-51 (9th Cir. 1976). Furthermore, the manipulative
conduct at issue in this case violates Section 17(a) of the
Securities Act to the extent that such acts were committed in
connection with the sale of or offer to sell the manipulated
stocks.
Baron violated Section 9(a)(2) of the Exchange Act when its
top officers and many of its brokers carried out the HPI
manipulation through Baron. Baron's brokers engaged in a series
of transactions which artificially prevented the price of HPI
shares from falling. The brokers aggressively marketed HPI stock
and adhered to Baron's no-net-sale policy in furtherance of the
manipulation. They failed to tell customers that the price of
HPI stock was being manipulated and that the customers likely
would have difficulty selling the stock. Baron also violated
Section 17(a) of the Securities Act and Section 10(b) and Rule
10b-5 of the Exchange Act when its top officers and brokers
carried out the HPI manipulation through Baron. Baron violated
Section 17(a) of the Securities Act and Section 10(b) of the
Exchange Act and Rule 10b-5 thereunder when its top officer and
another principal of the firm manipulated through Baron the
market for Cypros stock, which is not listed on any exchange.
Conduct of a broker or dealer that is considered
manipulative under Sections 9(a) and 10(b) also violates Section
15(c)(1) of the Exchange Act and Rule 15c1-2 promulgated
thereunder with respect to securities not traded on an exchange.
See e.g., In re Barrett & Co., 9 S.E.C. 319, 328 (1941). Baron
violated these provisions with respect to the Cypros manipulation
and the HPI manipulation to the extent that HPI was traded on the
Nasdaq.
B. ABUSIVE SALES PRACTICES
Baron violated Section 9(a)(4) of the Exchange Act when its
top officers and many of its brokers made false statements and
omissions about HPI. Baron violated Section 17(a) of the
Securities Act and Section and 10(b) of the Exchange Act and Rule
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10b-5 thereunder when its top officers and other brokers made
false statements and omissions in selling HPI, Cypros and other
securities and placed unauthorized purchases in customer
accounts. Baron violated Section 10(b) of the Exchange Act and
Rule 10b-5 thereunder when its top officers and brokers refused
to execute customer sell orders.
C. CREDIT VIOLATIONS
Section 7(c) of the Exchange Act prohibits a broker-dealer
from extending or maintaining credit or arranging for the
extension or maintenance of credit to or for any customer in
contravention of the regulations promulgated by the Federal
Reserve Board. Federal Reserve Board Regulation T, 12 C.F.R.
220.1 et seq., imposes payment rules on securities transactions
and requires a broker to obtain full cash payment for customer
purchases in a cash account within one payment period; before
June 1995, this was seven business days. 12 C.F.R. 220.2(w)
and 220.8(b)(1). If a customer has not paid for a stock purchase
within the required time, then the broker must promptly cancel or
otherwise liquidate the transaction or part of the transaction
for which the customer has not made full cash payment. 12 C.F.R.
220.8(b)(4).
Under certain circumstances, a broker may apply to its
examining authority to extend the time for payment. Such
extensions are legitimate for good-faith customer orders in which
the customer has difficulty getting the payment to the broker on
a timely basis, such as when a check is delayed in the mail.
Baron violated the credit provisions when its top officers and
brokers make numerous extension requests in bad faith. Weissman,
Bressman, Okin and other Baron brokers placed extension requests
on unauthorized transactions -- the customers had not timely paid
because they had not authorized the purchase. Obtaining
extensions of payment enabled the brokers to hold unauthorized
purchases of HPI and other stock in customer accounts for an
additional seven days until the stock could be moved to the
account of another customer or the transaction liquidated.
If a security is sold without having been previously paid
for in full by the customer, the privilege of delaying payment
beyond the trade date is withdrawn for 90 days following the date
of sale of the security. 12 C.F.R. 220.8(c). Weissman,
Bressman and other Baron brokers circumvented this provision by
opening "priority" accounts for customers whose accounts were put
on 90-day restriction. Thus Baron further violated the credit
provisions.
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IV.
FINDINGS
Based on the above, the Commission finds that A.R. Baron &
Co., Inc. willfully violated Section 17(a) of the Securities Act
and Sections 7(c), 9(a)(2), 9(a)(4), 10(b) and 15(c)(1) of the
Exchange Act and Rules 10b-5 and 15c1-2 thereunder and Regulation
T promulgated by the Federal Reserve Board.
V.
OFFERS OF SETTLEMENT
The Respondent, through James W. Giddens, Trustee for the
Liquidation of the Business of A.R. Baron & Co., Inc., has
submitted an Offer of Settlement in which it, without admitting
or denying the findings herein, consents to the Commission's
issuance of this Order which makes findings, as set forth above,
and orders that the registration of A.R. Baron & Co., Inc.
pursuant to Section 15(b) of the Exchange Act be revoked.
VI.
ORDER
Accordingly, IT IS HEREBY ORDERED that the registration of
A.R. Baron & Co., Inc. pursuant to Section 15(b) of the Exchange
Act is revoked.
By the Commission.
Jonathan G. Katz
Secretary