UNITED STATES OF AMERICA
SECURITIES AND EXCHANGE COMMISSION
SECURITIES ACT OF 1933
Release No. 8081 / April 9, 2002
SECURITIES EXCHANGE ACT OF 1934
Release No. 45715 / April 9, 2002
File No. 3-10545
In the Matter of
Harvey M. Burstein and
James D. Loeffelbein
ORDER MAKING FINDINGS AND IMPOSING A CEASE-AND-DESIST ORDER AND
REMEDIAL SANCTIONS AS TO HARVEY M. BURSTEIN
On August 3, 2001, the Securities and Exchange Commission ("Commission") issued an Order Instituting Public Proceedings Pursuant to Sections 15(b)(6), 19(h) and 21C of the Securities Exchange Act of 1934 ("Exchange Act") and Section 8A of the Securities Act of 1933 ("Securities Act") against Harvey M. Burstein ("Burstein") and James D. Loeffelbein ("Loeffelbein").
Burstein has submitted to the Commission an Offer of Settlement which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission, or to which the Commission is a party, and without admitting or denying the findings, except the jurisdiction of the Commission over him and over the matters set forth herein, and the facts in Section II, paragraphs 1 and 2, which he admits, Burstein consents to the entry of this Order Making Findings and Imposing a Cease-and-Desist Order and Remedial Sanctions ("Order").
On the basis of this Order and the Offer of Settlement submitted by Burstein, the Commission finds that:
- BMA Financial Services, Inc. ("BMA") is a broker-dealer registered with the Commission (File No. 8-23717) since May 1979 and based in Kansas City, Missouri.
- Burstein is a resident of Henderson, Nevada. He was a registered representative for BMA from April 1990 to September 1997. Burstein has held a Series 7 securities license since December of 1975.
- James D. Loeffelbein ("Loeffelbein") is a resident of Bucyrus, Kansas. He was a registered representative for BMA from January 1990 to September 1998. Loeffelbein has held a Series 7 securities license since March of 1988.
- Edgerton Musical Amplifiers, Inc. ("Edgerton") was a Colorado corporation based in Olathe, Kansas. Edgerton was the result of a merger between a public shell corporation called Burning Bush Recreation Corp. ("Burning Bush") and a privately held corporation called Edgerton Technology, Inc. The public company took on the Edgerton name after the merger. Edgerton ceased operations in May 1998. Neither Edgerton nor Burning Bush ever registered any securities under the Securities Act or the Exchange Act, or filed reports under the Exchange Act. Public trading resulted solely from stock that Edgerton sold in transactions exempt under Regulation D of the Securities Act from December 1996 through June 1997. In approximately mid-March 1997 the company effected a two-for-one forward split of its stock.
- Edgerton stock was quoted on the OTC Bulletin Board under the symbol AMPS beginning in November 1996. From November 1996 until Edgerton ceased operations in May 1998 the stock was thinly traded; thereafter it traded only extremely sporadically.
- In approximately January 1997 Burstein learned from Edgerton's president that Edgerton was attempting to raise capital by offering stock for sale. The stock was offered pursuant to Rule 504 of Regulation D of the Securities Act, an exemption from the registration requirements of the Securities Act.
- Burstein informed Loeffelbein of the investment opportunity. On February 20, 1997, Burstein and Loeffelbein each subscribed to purchase 142,000 shares directly from Edgerton. On February 24, 1997, Burstein and Loeffelbein closed the transactions by paying $125,000 each for their shares, or $.88 per share. Burstein and Loeffelbein each withdrew funds from their personal accounts at BMA to pay for the stock and then deposited the stock into their accounts at BMA.
- On February 19, 1997, Edgerton stock closed at $4.38. No trades occurred on February 20. The stock closed at $3.25 on February 21. Thus, the price that Burstein and Loeffelbein paid was a significant discount from the market price.
- Burstein and Loeffelbein purchased an additional 100,000 shares each directly from Edgerton on or about May 21, 1997. They paid $.20 per share. The last reported trade before these purchases was the $.38 closing price on May 16, 1997; thus, these purchases also occurred at a discount from the market price.
- Shortly after purchasing Edgerton stock directly from Edgerton in February 1997, Burstein and Loeffelbein began recommending to their customers that they buy Edgerton stock in the market. Their customers then bought Edgerton stock at market prices, which were significantly higher than the price paid by Burstein and Loeffelbein for their Edgerton stock.
- At the same time that they were recommending Edgerton stock to their customers, Burstein and Loeffelbein were selling Edgerton stock out of their personal BMA accounts in OTC market transactions in interstate commerce. Burstein's and Loeffelbein's sales and their customers' simultaneous purchases accounted for much of the trading volume in the stock.
- While recommending Edgerton stock to their customers, neither Burstein nor Loeffelbein disclosed that they were simultaneously selling their stock. They also did not disclose that their customers could possibly pay a lower price for their stock by buying directly from Edgerton through its offering of stock under Rule 504, which continued until June 1997.
- Burstein and Loeffelbein were engaged in a distribution of Edgerton stock under Regulation M under the Exchange Act and former Rule 10b-6 under Section 10(b) of the Exchange Act. The distribution was distinguished from ordinary trading transactions by the magnitude of the offering and Burstein's and Loeffelbein's special selling efforts and selling methods.
- While engaged in the distribution, Burstein and Loeffelbein, on at least three occasions between February and June 1997, bought Edgerton stock in matched transactions.
- Burstein and Loeffelbein offered and sold Edgerton stock that they had acquired from Edgerton to the public in OTC market transactions in interstate commerce. No registration statement was filed or in effect as to Edgerton stock.
- Burstein willfully violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder in that, directly or indirectly, in connection with the purchase or sale of securities, and by use of means or instrumentalities of interstate commerce, or of the mails, or of the facilities of any national securities exchange, he employed devices, schemes or artifices to defraud; made untrue statements of material facts or omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or engaged in acts, practices, or courses of business which would or did operate as a fraud or deceit.
- Burstein willfully violated Sections 5(a) and 5(c) of the Securities Act in that, directly or indirectly, by use of means or instruments of transportation or communication in interstate commerce, or of the mails, he offered to buy, offered to sell, or sold securities, or caused securities to be carried through the mails or in interstate commerce for the purpose of sale or delivery after sale, while no registration statement was in effect or had been filed as to such securities.
- Burstein willfully violated Rule 101 of Regulation M under the Exchange Act by, directly or indirectly, in connection with a distribution of securities, acting as a distribution participant, and purchasing a covered security during the applicable restricted period; and willfully violated former Rule 10b-6 under Section 10(b) of the Exchange Act by, directly or indirectly, by use of means or instrumentalities of interstate commerce, or of the mails, or of the facilities of any national securities exchange, participating in a distribution of securities, and purchasing securities which were the subject of the distribution prior to completing his participation in the distribution.
In view of the foregoing, the Commission finds that it is in the public interest to impose the sanctions specified in the Offer of Settlement.
- IT IS ORDERED, pursuant to Section 21C of the Exchange Act and Section 8A of the Securities Act, that Burstein cease and desist from committing or causing any violation and any future violation of Section 10(b) of the Exchange Act and Rules 10b-5 and 101 of Regulation M thereunder, and Sections 5(a) and 5(c) of the Securities Act.
- IT IS ORDERED that Burstein be, and hereby is, barred from association with any broker or dealer, with the right to reapply for association after four years to the appropriate self-regulatory organization, or if there is none, to the Commission.
- IT IS ORDERED that Burstein shall pay disgorgement of $74,324 and prejudgment interest of $35,230 in the total amount of $109,554. The disgorgement and prejudgment interest shall be payable as follows: (A) $59,777 shall be due and payable within thirty (30) days of the entry of the Order and (B) the balance, plus post-judgment interest on the balance through the date of payment calculated at the rate of interest set forth in Rule 600(b) of the Commission's Rules of Practice [17 C.F.R. § 201.600(b)], shall be due and payable in full on or before 6 months from the entry of the Order. The payments shall be: (A) made by United States postal money order, certified check, bank cashier's check or bank money order; (B) made payable to the Securities and Exchange Commission; (C) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Stop 0-3, Alexandria, VA 22312; and (D) submitted under cover letter that identifies Burstein as a Respondent in these proceedings and the file number of these proceedings, a copy of which cover letter and money order or check shall be sent to Thomas M. Piccone, Securities and Exchange Commission, 1801 California Street, Denver, Colorado 80202.
- The disgorgement and prejudgment interest paid shall be held by the Comptroller to be utilized for payment to persons eligible to receive such funds pursuant to a plan of distribution which shall be submitted by the Division of Enforcement within sixty (60) days from the date of the final payment. In the event that all or any portion of these funds remain after distribution, the remainder shall be disbursed to the United States Treasury. In no event shall any portion of these funds be returned to Burstein or his agents, successors, or assigns.
- IT IS ORDERED that Burstein shall, within six (6) months of the entry of the Order, pay a civil money penalty in the amount of $10,000, plus post-judgment interest through the date of payment calculated at the rate of interest set forth in Rule 600(b) of the Commission's Rules of Practice [17 C.F.R. § 201.600(b)], to the United States Treasury. The payment shall be: (A) made by United States postal money order, certified check, bank cashier's check or bank money order; (B) made payable to the Securities and Exchange Commission; (C) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Stop 0-3, Alexandria, VA 22312; and (D) submitted under cover letter that identifies Burstein as a Respondent in these proceedings and the file number of these proceedings, a copy of which cover letter and money order or check shall be sent to Thomas M. Piccone, Securities and Exchange Commission, 1801 California Street, Denver, Colorado 80202.
By the Commission.
Jonathan G. Katz