Chairman Cox, Director Thomsen Announce New Deputies in SEC's Enforcement Division
Securities and Exchange Commission Chairman Christopher Cox and Linda Chatman Thomsen, Director of SEC's Division of Enforcement, announced today that George Curtis and Scott Friestad have been appointed as the new Deputy Directors in the Enforcement Division.
Mr. Curtis and Mr. Friestad will be filling positions vacated by Peter Bresnan, who left the agency for private practice in January of this year, and Walter Ricciardi, who yesterday announced his intention to leave the staff later this month. They will join Ms. Thomsen and the Division's Chief Counsel Joan McKown, who is assuming additional responsibilities in her role, in leading the Commission's nationwide enforcement program that last year set the SEC's all-time record for corporate penalty cases and brought the second-highest number of enforcement actions in SEC history.
"First and foremost, the SEC is a law enforcement agency. In all of the world, the SEC's Division of Enforcement is the gold standard for securities law enforcement. Today's appointments are further proof of that," said Chairman Cox. "All of these highly qualified professionals have proven track records as talented leaders in the world's most robust and effective investor protection program. Our nation's investors can look forward to the continued aggressive pursuit of illegal conduct wherever it occurs in our securities markets under the energetic leadership of this remarkable team."
Ms. Thomsen added, "We have important work to do and I know that Joan, George and Scott can and will provide the leadership, experience, intelligence, courage and character that is essential to getting the job done. It is a privilege to work with all of them."
Mr. Curtis is currently the Regional Director of the SEC's Denver Regional Office. He joined the Commission's staff in 2006 after 30 years in private practice. He received his B.A. degree from Fordham University in 1970, M.A. and Ph.D. degrees from the University of Virginia in 1971 and 1973 respectively, and a J.D. from the University of Chicago in 1976. Under Mr. Curtis's leadership, the Denver office brought 49 Commission-approved enforcement actions during the past year that addressed particularly complex, Commission-wide concerns. In one notable case, the SEC charged a registered representative in Albuquerque, N.M., for paying secret cash kickbacks to the former State Treasurer of New Mexico in exchange for obtaining municipal bond securities transactions with the New Mexico State Treasurer's Office.
"One of the things that attracted me to the Commission is its unstinting commitment to investor protection through vigorous, thoughtful and fair enforcement of the securities laws," Mr. Curtis said. "I am honored and humbled by the opportunity from Chairman Cox and Linda Thomsen to help lead the Enforcement Division's exemplary staff of professionals on behalf of hardworking Americans who depend on honesty and fairness in the securities markets."
Mr. Friestad is currently an Associate Director in the Division of Enforcement in Washington, D.C. He joined the Commission's staff as a staff attorney in 1995 from private practice. He received his B.B.A. and J.D. degrees from the University of Iowa in 1983 and 1986 respectively. Recently, Mr. Friestad spearheaded the Division's efforts in bringing fraud and market manipulation charges against a Wall Street trader within months of his intentionally spreading false rumors through instant messages about The Blackstone Group's acquisition of Alliance Data Systems (ADS) while he was selling ADS short. Mr. Friestad also helped lead SEC efforts in bringing one of the largest insider trading cases since the days of Ivan Boesky when the Commission charged 14 Wall Street individuals and entities in 2007 for trading on non-public information from UBS and Morgan Stanley.
"It is a distinct honor and privilege to help continue the Commission's and its Enforcement Division's tradition of effective investor protection through rigorous, firm and fair enforcement of the securities laws," Mr. Friestad said. "America's markets are the envy of the world thanks to the commitment of the Commission and its talented and dedicated enforcement staff."
Ms. McKown has held the Enforcement Division's Chief Counsel position since 1993. She joined the Commission's staff in 1986 and joined the Enforcement Division in 1987. She received her B.A. degree from Vanderbilt University in 1980 and her J.D. from Drake Law School in 1983. As Chief Counsel, she has been responsible for among other things the nationwide implementation of new securities legislation affecting enforcement including the Sarbanes-Oxley Act of 2002. Ms. McKown has received several esteemed awards for her dedicated work in the SEC's Enforcement Division, including the Commission's Stanley Sporkin Award in 1994 and the Distinguished Service Award in 2004.
"I look forward to continuing my long-time commitment to the Commission's mission of enforcing the federal securities laws for the protection of investors," Ms. McKown said. "I am fortunate to work alongside so many tremendous staff members nationwide on behalf of the Commission and the investors we serve." (Press Rel. 2008-104)
SEC, CFTC Approve Trading of Futures and Option Contracts on Gold ETF
First Results of March 2008 SEC-CFTC Memorandum of Understanding
The Securities and Exchange Commission and the Commodity Futures Trading Commission (CFTC) today announced that each has approved the trading and clearing of two novel derivative products - futures and option contracts based on shares of the SPDR® Gold Trust (Gold Trust), an exchange traded fund (ETF). The SEC approved trading in options on the Gold Trust shares and the CFTC approved trading in futures on them.
The SEC's and CFTC's approvals are expected to harness the power of market forces in determining the viability of the products and are designed to ensure that appropriate public, market participant, and financial protections are in place. Additionally, the coordinated product approvals are expected to enhance legal and regulatory certainty for users of the new products.
Option contracts on the Gold Trust's shares will be listed on the American Stock Exchange, Chicago Board Options Exchange, International Securities Exchange, Philadelphia Stock Exchange, and the NYSE Arca Exchange. Futures contracts will trade on OneChicago, a security futures exchange. The Options Clearing Corporation will clear both types of contracts.
SEC Chairman Christopher Cox said, "Today's approvals offer America's investors in gold an alternative that may, for many, be a more convenient and cost effective way to manage their risks. Today's approvals also represent a significant step forward for the SEC and the CFTC in our inter-agency cooperation. America's investors deserve a clear and united voice from government regulators on how these products will be treated under the law. Today's coordinated product approvals provide that clarity and consistency."
CFTC Acting Chairman Walter Lukken said, "The actions announced today represent a major victory for the cause of financial innovation and will help promote competition among America's financial markets. With these actions, the CFTC and the SEC have begun a new era of cooperation, guided by the interagency agreement signed in March of this year. I believe that America's markets and market participants can only benefit from such close cooperation between government regulators."
In order to address growing areas of mutual interest, the SEC and CFTC entered into a Memorandum of Understanding (MOU) on March 11, 2008, that established a permanent regulatory liaison between the agencies. The MOU provides for enhanced information sharing and articulates several key principles intended to guide the agencies' review of novel derivative products containing elements of both securities and commodity futures or options. In accordance with these principles, the agencies have recognized their mutual regulatory interests and have agreed to encourage innovation, competition, market neutrality, and legal certainty. Today's approvals for the trading of futures and option contracts on shares of the Gold Trust represent the first product approvals under the MOU. (Press Rel. 2008-105)
RULES AND RELATED MATTERS
Adoption of Updated EDGAR Filer Manual
The Commission adopted revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual to reflect updates previously made to the EDGAR system. The revisions are being made primarily to reflect the United States Department of Treasury's Financial Management Service's (FMS) designation of U.S. Bank of St. Louis, Missouri as the new Financial Agent for General Lockbox Services for the Commission. U.S. Bank assumed this responsibility from Mellon Bank effective Feb. 4, 2008. In addition, the revisions include a modification to the EDGARLite Form TA-1 (Application for registration as a transfer agent filed pursuant to the Securities Exchange Act of 1934) to correct the form version number and Form TA-2 (Annual Report of Transfer Agent activities filed pursuant to the Securities Exchange Act of 1934) to allow filers to input up to two decimal places for percentage values in their response to Question 5(d).
The filer manual is also being revised to incorporate changes to reflect several amended rules and forms previously proposed or adopted by the Commission and implemented in EDGAR. Those rules address (1) the electronic submission on EDGAR of applications for orders under any section of the Investment Company Act of 1940 and Regulation E filings of Small Business Investment Companies (SBIC's) and Business Development Companies (BDC's) if and when the Commission might adopt rule changes making these mandatory electronic submissions and (2) Smaller Reporting Company regulatory relief and simplification.
The revisions to the Filer Manual reflect changes within Volume II entitled EDGAR Filer Manual, Volume II: "EDGAR Filing," Version 7 (May 2008). The updated manual will be incorporated by reference into the Code of Federal Regulations. (Rels. 33-8922; 34-57888; 39-2454; IC-28292)
Commission Revokes Registration of Securities of Playstar Wyoming Holding Corp. (n/k/a Playstar Corp.) for Failure to Make Required Periodic Filings
On June 3, the Commission revoked the registration of each class of registered securities of Playstar Wyoming Holding Corp. (n/k/a Playstar Corp.) (PLYCF) for failure to make required periodic filings with the Commission.
Without admitting or denying the findings in the order, except as to jurisdiction, which it admitted, PLYCF consented to the entry of an Order Making Findings and Revoking Registration of Securities Pursuant to Section 12(j) of the Securities Exchange Act of 1934 as to Playstar Wyoming Holding Corp. (n/k/a Playstar Corp.) finding that it had failed to comply with Section 13(a) of the Securities Exchange Act of 1934 (Exchange Act) and Rules 13a-1 and 13a-13 thereunder and revoking the registration of each class of PLYCF's securities pursuant to Section 12(j) of the Exchange Act. This order settled the charges brought against PLYCF in In the Matter of Dover Petroleum Corp., et al., Administrative Proceeding File No. 3-13015.
Brokers and dealers should be alert to the fact that Exchange Act Section 12(j) provides, in pertinent part, as follows:
No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked . . . .
For further information see Order Instituting Administrative Proceedings and Notice of Hearing Pursuant to Section 12(j) of the Securities Exchange Act of 1934, In the Matter of Dover Petroleum Corp., et al., Administrative Proceeding File No. 3-13015, Exchange Act Release No. 57692 (April 21, 2008). (Rel. 34-57907; File No. 3-13015)
In the Matter of Allixon International Corporation
On June 2, the Commission issued an Order Instituting Cease-and-Desist Proceedings, Making Findings and Imposing Cease-and-Desist Order Pursuant to Section 8A of the Securities Act of 1933 (Order) against Allixon International Corporation. The Order finds that in July 2005 Allixon's board of directors authorized the issuance of 1.3 million shares to two Turks and Caicos entities pursuant to Rule 504 of Regulation D. Contemporaneously with the issuance of the shares, Allixon's corporate secretary negotiated an escrow agreement that specified that the Allixon shares transferred to the Turks and Caicos entities were to be sold and proceeds from the sale of the shares were to be used for the purpose of paying transaction costs of the reverse merger. Allixon did not receive, directly or indirectly, any of the remaining stock sale proceeds. No registration statement was filed with the Commission or was in effect as to the transactions in Allixon shares described above and the transactions were not otherwise exempt from registration. Therefore, the securities transactions described above violated Sections 5(a) and 5(c) of the Securities Act.
Based on the above, the Order directs Allixon International Corporation to cease and desist from committing or causing any violations and any future violations of Sections 5(a) and 5(c) of the Securities Act. Allixon International Corporation consented to the issuance of the Order without admitting or denying any of the findings contained in the Order. (Rel. 33-8925; File No. 3-13052)
In the Matter of Gerald Kingston
On June 3, the Commission issued an Order Instituting Administrative Proceedings Pursuant to Section 15(b) of the Securities Exchange Act of 1934, Making Findings, and Imposing Remedial Sanctions against Gerald Kingston (Kingston). The Order finds that on November 13, 2007, Kingston pled guilty and was convicted of one count of Conspiracy to Commit Securities Fraud in an action filed before the United States District Court for the Northern District of Texas. According to Kingston's guilty plea, Kingston, and other co-conspirators, opened brokerage accounts in the names of nominees and obtained large blocks of shares of InterFinancial Holdings Corporation (IFCH), a company with minimal assets or capitalization that was quoted on the Over-the-Counter securities market by the Pink Sheet, L.L.C. and that Kingston, and his co-conspirators then executed numerous matched trades of significant volume for the purpose of profiting from the manipulation of the price of IFCH shares.
Based on the above, the Order bars Kingston from association with any broker or dealer. Kingston consented to the issuance of the Order without admitting or denying the findings in the Order except as to the jurisdiction of the Commission over him and over the matters set forth in the Order, and the entry of the judgment against him, which are admitted. (Rel. 34-57908; File No. 3-13054)
SEC Sues 21 Individuals and Entities for Their Roles in a Massive Oil-and-Gas Offering Fraud
On May 28, 2008, the Commission filed civil securities fraud charges against defendants Michael J. McNaul, II. (McNaul), Dale C. Lucas (Lucas), Gregg Krause (Krause), Lloyd F. Nunns (Nunns), Russell W. Kilgariff (Kilgariff), Steven L. Tallman (Tallman), Freddie J. Hembree (Hembree), Raymond L. Leonard, Jr. (Leonard), Mid Western Natural Gas, Inc. (Mid Western) and Mark DuBoise (DuBoise), and, as relief defendants, Alliance Leasing, LLC (Alliance), Consolidated Management Group, LLC (Consolidated), Golden Belt Transportation, LLC (Golden Belt), Garner Management, LLC (Garner), Forrest Energy, LLC (Forrest), Warren Drilling, LLC (Warren), Warrick Drilling, LLC (Warrick), Pawnee Iron Works, LLC (Pawnee), Mid-Kan Well Service, LLC (Mid-Kan), T&D Oilfield Services, LLC (T&D), and Consumer Information Network, Inc. (Consumer Information). The charges stem from an alleged massive securities offering fraud that has victimized over 1,300 investors from across the United States, as well as Canada and Puerto Rico.
The Commission filed its case in U.S. District court in Wichita, Kansas. The complaint alleges that, between March 2004 and December 2007, the defendants raised approximately $156 million through the use of 22 purported oil-and-gas related equipment "joint ventures" structured to evade the securities laws. The defendants lured potential investors with the false promise of annual returns of up to 40% from leasing and operating oil-and-gas equipment, and that the "joint ventures" would be rolled up into a single entity that would be the subject of an even more lucrative initial public offering (IPO) resulting in returns as high as 3-8 times their investment. According to the Complaint, however, the promised IPO and high annual returns have never come to fruition. On the contrary, the defendants have returned only $7 million to investors over their four-year fraudulent scheme, $1 million of which was diverted from other investors as Ponzi payments. Moreover, nearly half of the funds fraudulently raised were used to pay sales commissions and other "organizational" costs.
The Commission's complaint further alleges that during their fraudulent securities offering, the defendants routinely conducted recorded sales conference calls where they made numerous misrepresentations, omissions, and half-truths concerning their background and experience, the purported success and profitability of the "joint ventures," the safety and risks of the investment, the likelihood of a profitable IPO, and the allocation of funds earned by the "joint ventures."
The complaint alleges that McNaul, Lucas, Krause, Nunns, Kilgariff, Tallman, Hembree, Leonard, Mid Western, and DuBoise violated Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 (Securities Act), and Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5 thereunder. The complaint also alleges that Leonard, DuBoise, and Mid Western violated Section 15(a) of the Exchange Act. The complaint seeks preliminary and permanent injunctions, disgorgement together with prejudgment interest, and civil penalties. The complaint alleges that the relief defendants identified above received ill-gotten gains from the defendants' fraudulent conduct. The Commission's complaint sought an asset freeze against certain defendants and relief defendants, and the appointment of a receiver to recover and conserve assets for the benefit of defrauded investors.
Without admitting or denying the allegations set forth in the complaint, all of the defendants except Leonard have consented to the entry of an order permanently enjoining them from engaging in the violations set forth above. Tallman has agreed to an order requiring disgorgement of $110,000, plus prejudgment interest of $9,369.59. Likewise, Hembree has agreed to an order requiring disgorgement of $40,000, plus prejudgment interest of $5,535.24. But payment of all but $20,000 by Tallman, and $10,000 by Hembree, will be waived, and no civil penalties imposed, based on their respective sworn statements of financial condition and other documents. The remaining settling defendants have agreed to defer determination of disgorgement and civil penalties. In addition, defendants McNaul, Lucas, and Kilgariff and all relief defendants except Consumer Information have consented to an immediate asset freeze and to the appointment of a receiver. Separately, the Court entered freeze and receivership orders against Leonard and Consumer Information.
The Commission acknowledges the cooperation and assistance of the Office of the Kansas Securities Commissioner, the Securities Commissioner for the State of Colorado, and the California Department of Corporations during this investigation. [SEC v. Michael J. McNaul, II, Dale C. Lucas, Gregg Krause, Lloyd F. Nunns, Russell W. Kilgariff, Steven L. Tallman, Freddie J. Hembree, Raymond L. Leonard, Jr., Mid Western Natural Gas, Inc., and Mark DuBoise, Defendants, and Alliance Leasing, LLC, Consolidated Management Group, LLC, Golden Belt Transportation, LLC, Garner Management, LLC, Forrest Energy, LLC, Warren Drilling, LLC, Warrick Drilling, LLC, Pawnee Iron Works, LLC, Mid-Kan Well Service, LLC, T&D Oilfield Services, LLC, and Consumer Information Network, Inc., Relief Defendants Civil Action No. 08-1159-JTM-DWB (U.S.D.C./D. Kansas, Wichita Division)] (LR-20608)
SEC Charges Former Registered Representative and Former Registered Investment Adviser With Fraud
On June 3, the Commission announced the filing of a civil action against Frederick J. Barton (Barton), a formerly registered representative of a national, registered broker-dealer and two entities he controlled: TwinSpan Capital Management, LLC (TwinSpan), an investment adviser formerly registered with the Commission, and Barton Asset Management, LLC (Barton Asset Management). The Commission alleges that, between 1999 and 2007, Barton, acting individually or through TwinSpan or Barton Asset Management, engaged in three separate securities frauds-including one involving a senior citizen suffering from Alzheimer's disease-and through his misconduct obtained over $3 million in ill-gotten gains. The Commission further alleges that he then spent his ill-gotten gains, among other things, to send his children to an exclusive private school, fund his own investment portfolio, and service his credit card debts.
Named in the complaint are:
Frederick J. Barton, age 47, formerly a resident of Atlanta, Georgia, and now residing in Baldwin, Missouri. Between 1988 and 2002, Barton was employed by a national broker-dealer as a registered representative and later as branch manager of the firm's Atlanta office.
Barton Asset Management is a Georgia limited liability company founded by Barton in November 2002.
TwinSpan Capital Management is a Georgia limited liability company, which is operated and majority owned by Barton and is based in Atlanta, Georgia.
The Commission's complaint, filed in the United States District Court for the Northern District of Georgia, Atlanta Division, alleges that between approximately May 1999 and December 2003, Barton, acting individually or through Barton Asset Management, misappropriated approximately $970,000 from a single, elderly brokerage customer of his who suffered from diminished mental capacity and Alzheimer's disease. The complaint alleges that Barton induced her to sell securities in her brokerage account, held by the firm that employed Barton, and give him the proceeds of those sales based on representations that he would somehow either transfer those proceeds into instruments offered by a local bank or, in a few instances, place the proceeds in an advisory account at Barton Asset Management. As a result of this conduct, the value of this customer's brokerage account declined from over $1.3 million (practically her entire life's savings) to only a few dollars by December 2003.
The Commission's complaint also alleges that between October 2004 and October 2005, Barton, acting individually or through TwinSpan, engaged in an unrelated $1.515 million offering fraud. Barton and TwinSpan told investors that proceeds from their investments would be used to grow TwinSpan and for other business expenses. In contravention of the offering material, Barton and TwinSpan diverted at least $493,100 of the offering proceeds for Barton's personal use and used a substantial portion of the offering proceeds in advance of reaching the minimum offering amount.
The Commission's complaint further alleges that, from October 2006 to February 2007, knowing of the Commission's staff's investigation of his earlier misconduct, Barton misappropriated $685,000 from an advisory client of TwinSpan. Specifically, Barton, acting through TwinSpan, forged the customer's signature on four wire-transfer authorizations that transferred $185,000 of the client's assets at TwinSpan to a bank account in the name of Barton Asset Management. A few weeks after his last unauthorized wire transfer, Barton borrowed an additional $500,000 from this client. In so doing, he did not disclose his earlier theft of her funds.
The Commission alleges that, by their misconduct, the defendants violated Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and Sections 206(1) and 206(2) of the Investment Advisers Act of 1940. Additionally, the Commission alleges that Barton and TwinSpan violated Rule 10b-9 under the Securities Exchange Act. The Commission seeks against the defendants permanent injunctive relief, an accounting, disgorgement of ill-gotten gains plus prejudgment interest and civil penalties. The litigation remains pending as to all parties. [SEC v. Frederick J. Barton, Barton Asset Management, LLC, and TwinSpan Capital Management, LLC, Civil Action No. 1:08-CV-1917] (LR-20609)
INVESTMENT COMPANY ACT RELEASES
Deregistrations under the Investment Company Act
For the month of May 2008, a notice has been issued giving interested persons until June 24, 2008, to request a hearing on any of the following applications for an order under Section 8(f) of the Investment Company Act declaring that the applicant has ceased to be an investment company:
Harris & Harris Group, Inc.
A certification has been issued pursuant to Section 851(e) of the Internal Revenue Code of 1986, as amended, that Harris & Harris Group, Inc. was, for the fiscal year ended Dec. 31, 2007, principally engaged in the furnishing of capital to other corporations which are principally engaged in the development or exploitation of inventions, technological improvements, new processes or products not previously generally available. (Rel. IC-28294 - May 30)
Amendment to Order Approving Proposed Rule Change
The Commission approved an amendment to its order approving a proposed rule change (SR-NASD-2007-023), submitted by the National Association of Securities Dealers (n/k/a Financial Industry Regulatory Authority, Inc.), to amend the by-laws of NASD to implement governance and related changes to accommodate the consolidation of the member firm regulatory functions of NASD and NYSE Regulation, Inc. Publication is expected in the Federal Register during the week of June 2. (Rel. 34-56145A)
Accelerated Approval of Proposed Rule Change
The Commission granted accelerated approval to a proposed rule change (SR-CHX-2008-07) submitted by Chicago Stock Exchange under Rule 19b-4 of the Securities Exchange Act of 1934 to trade shares of 12 Funds of the ProShares Trust pursuant to unlisted trading privileges. Publication is expected in the Federal Register during the week of June 2. (Rel. 34-57884)
Approval of Proposed Rule Changes
The Commission granted approval of proposed rule changes (SR-DTC-2007-14 and SR-NSCC-2007-14) filed by the Depository Trust Company and the National Securities Clearing Corporation (NSCC) under Section 19(b)(1) of the Exchange Act that allow DTC and NSCC to amend their Rules to provide a new service (ID Net Service) which will establish settlement netting functionalities for institutional transactions by leveraging the netting and settlement capabilities of NSCC with the processing capabilities of DTC. Publication is expected in the Federal Register during the week of June 2. (Rel. 34-57901)
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