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Financial Services Law Insights and Observations


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  • CFTC, DOJ, SEC file charges in crypto fraud scheme

    Federal Issues

    On December 13, the SEC filed a complaint against the former CEO/co-founder (defendant) of a collapsed crypto exchange for allegedly orchestrating a scheme to defraud equity investors. According to the SEC, from May 2019 to November 2022, the defendant raised over $1.8 billion from investors who bought an equity stake in his company in part because they believed his representations that the platform had “top-notch, sophisticated automated risk measures in place.” The complaint alleged, among other things, that the defendant orchestrated “a massive, years-long fraud” to conceal (i) the undisclosed diversion of customers’ funds to the defendant’s privately-held crypto hedge fund; (ii) the undisclosed special treatment afforded to the hedge fund on the company platform, including providing it with a virtually unlimited “line of credit” funded by the platform’s customers; and (iii) the undisclosed risk stemming from the company’s exposure to the hedge fund’s significant holdings of overvalued, illiquid assets, such as the platform-affiliated tokens. The complaint further alleged that the defendant used commingled funds at his hedge fund to make undisclosed venture investments, purchase lavish real estate purchases, and give large political donations. The SEC’s complaint charged the defendant with violating the anti-fraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934. The SEC is seeking injunctions against future securities law violations; an injunction that prohibits the defendant from participating in the issuance, purchase, offer, or sale of any securities, except for his own personal account; disgorgement of his ill-gotten gains; a civil penalty; and an officer and director bar.

    The defendant was also indicted by a grand jury in the U.S. District Court for the Southern District of New York on wire fraud, commodities fraud, securities fraud, money laundering, and campaign finance charges.

    The CFTC also filed a complaint against the former CEO/co-founder, in addition to the collapsed crypto exchange and the hedge fund for making material misrepresentations in connection with the sale of digital commodities in interstate commerce. Specifically, the CFTC alleged that the exchange’s executives, at the former CEO’s direction, created a number of exceptions to benefit his hedge fund, including adding features in the underlying code to permit the hedge fund to “maintain an essentially unlimited line of credit” on the trading platform through an “allow negative flag,” which allowed the hedge fund to withdraw billions of dollars in customer assets from the company. The CFTC is seeking restitution, disgorgement, civil monetary penalties, permanent trading and registration bans, and a permanent injunction against further violations of the Commodity Exchange Act and CFTC regulations, as charged.

    Later, on December 21, the SEC and CFTC filed charges (see here and here) against the former CEO of the hedge fund and the former chief technology officer of the collapsed crypto exchange for their roles in the scheme to defraud equity investors. The agencies stated that investigations into other securities law violations and into other entities and persons relating to the alleged misconduct are ongoing.

    Federal Issues Digital Assets Securities SEC CFTC DOJ Cryptocurrency Enforcement Securities Act Securities Exchange Act Commodity Exchange Act Fraud

  • DOJ, SEC reach $460 million FCPA settlement with global technology company

    Financial Crimes

    On December 2, the DOJ announced that it fined a Swiss-based global technology company $315 million to settle criminal charges related to allegations that, from 2015 to 2017, the company engaged in a bribery scheme with an electricity provider owned by the South African government. As part of the scheme, the company arranged to use a third party to pay a high-ranking South African government official at the electricity provider in exchange for awarding business to the global technology company. The settlement was the DOJ’s first coordinated resolution with authorities in South Africa. Authorities in South Africa separately brought corruption charges against the high-ranking South African government official. In addition to the financial penalty, the company entered into a three-year deferred prosecution agreement in connection with a criminal information charging the company with conspiracy to violate the FCPA’s anti-bribery provisions, conspiracy to violate the FCPA’s books and records provisions, and substantive violations of the FCPA. Two of the company’s subsidiaries located in Switzerland and South Africa each pleaded guilty to conspiracy to violate the anti-bribery provisions of the FCPA.

    The next day on December 3, the SEC announced that the company agreed to pay $75 million to settle the SEC’s claims. The company consented to the SEC’s cease-and-desist order which stated that it violated the anti-bribery, books and records, and internal accounting controls provisions of the FCPA and the Exchange Act. The SEC also ordered the company to pay more than $72 million in disgorgement. However, the Commission deemed the disgorgement order satisfied by the company’s reimbursement of its ill-gotten gains to the South African government as part of an earlier civil settlement based largely on the same underlying facts as the SEC’s action.

    Financial Crimes Securities SEC DOJ Enforcement Securities Exchange Act Bribery FCPA Of Interest to Non-US Persons

  • SEC charges investment operation targeting Muslim community


    On November 2, the SEC filed a complaint against the founder of a capital investment company, alleging that the defendant targeted Muslim investors in a multimillion dollar fraudulent scheme. According to the complaint, the defendant started the company with the intention of providing purported investment expertise to members of the New York metropolitan area’s Muslim community. The defendant allegedly “offered investors promissory notes that claimed to offer guaranteed, significant returns on investments” in the company. The SEC claimed the defendant received roughly $8 million from investors by promising that the funds would be invested in Quran-compliant investments. However, the defendant allegedly misappropriated all of the funds to either make Ponzi-like payments to investors or to be used for his own personal use, including purchasing luxury vehicles and expensive jewelry or paying gambling debts. The complaint charges the defendant with violations of the antifraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934. The SEC’s announcement noted that the defendant consented to the entry of a judgment (subject to court approval) that imposes a permanent injunction and monetary relief to be determined at a later date. Concurrently, in a parallel action involving the same conduct, the DOJ announced criminal charges against the defendant who pleaded guilty to wire fraud, wire fraud conspiracy, and money laundering.

    Securities SEC Enforcement Fraud Courts DOJ Securities Act Securities Exchange Act

  • SEC files charges against crypto-asset seminar operation


    On September 19, the SEC filed a complaint against a two individuals and the companies they controlled (collectively, “defendants”) in the U.S. District Court for the Southern District of Texas for allegedly operating an on-going fraudulent and unregistered crypto-asset offering targeting Latino investors. According to the SEC, the defendants allegedly raised more than $12 million from over 5,000 investors who paid for seminars to learn how to build wealth through crypto-asset trading. However, the SEC claimed that one of the individual defendants—who founded the company and actually had no education or training in investments or crypto assets—used the seminars to solicit investors to give their money to the company and then supposedly used the funds to conduct crypto asset and foreign exchange trading. In total, the SEC alleged the individual defendants made roughly $2.7 million in Ponzi payments, diverting nearly $8 million for their own personal use. The complaint charges the defendants with violating, or aiding and abetting violations of, the antifraud provisions of the Securities Act of 1933, the Securities Exchange Act of 1934, and the Securities Act. The company’s founder is also charged with violating the Investment Advisers Act of 1940. The complaint seeks a permanent injunction against the defendants, civil penalties, disgorgement of ill-gotten gains with prejudgment interest, and bars. The SEC stated in its announcement that, at the Commission’s request, the court issued a temporary restraining order to stop the offering, in addition to temporary orders freezing assets and granting additional emergency relief.

    Securities Courts Digital Assets SEC Enforcement Cryptocurrency Fraud Securities Act Securities Exchange Act Investment Advisers Act

  • SEC charges bank holding company with over-issuance of securities


    On September 29, the SEC announced a cease and desist order against a London-based bank holding company and its subsidiary (collectively, “respondents”) for engaging in unregistered offers and the sale of securities as a result of a failure to implement internal controls to track such transactions. According to the SEC’s order, after the SEC settled an action against an affiliate of the subsidiary, the subsidiary lost its status as a well-known seasoned issuer. As a result, it had to quantify the total number of securities that it anticipated offering and selling and pay registration fees for those offerings upon the filing of a new registration statement. The SEC further noted that, given this requirement, the subsidiary’s “personnel understood the consequences of this status change, including that they should consider implementing a mechanism to track offers and sales of securities off any shelf, relative to the registered amount of securities available to be offered or sold off that shelf, in order to ensure that no securities in excess of the amount registered were offered or sold.” However, according to the SEC, no internal controls were established. According to the SEC’s order, as a result of this failure, the subsidiary allegedly offered and sold approximately $17.7 billion of securities in unregistered transactions. The SEC noted that the subsidiary self-reported its over-issuances to regulators, voluntarily provided documents during the SEC investigation, and subsequently commenced a rescission offer. The SEC found that the subsidiary violated provisions of the Securities Act of 1933 and that both respondents violated provisions of the Securities Exchange Act of 1934. Without admitting or denying the SEC’s findings, the respondents agreed to cease-and-desist from violating the charged provisions and to comply with certain undertakings designed to effect compliance with Section 5 of the Securities Act, in addition to paying the $200 million civil penalty. The subsidiary also agreed to pay disgorgement of $149 million and prejudgment interest of $11 million deemed satisfied by its offer of rescission.

    Securities Enforcement SEC Bank Holding Companies Securities Act Securities Exchange Act

  • SEC, CFTC fine Wall Street firms $1.8 billion


    On September 27, the SEC and CFTC announced settlements (see here and here) with numerous broker-dealers for alleged recordkeeping failures. According to the SEC, from January 2018 through September 2021, the firms’ employees communicated about business matters using text messaging applications on their personal devices. The SEC further alleged that the firms violated federal securities laws by failing to maintain or preserve the substantial majority of these off-channel communications. The SEC charged each of the firms with violating certain recordkeeping provisions of the Securities Exchange Act of 1934, and with failing to reasonably supervise and detect such violations. Additionally, an investment adviser was charged with violating certain recordkeeping provisions of the Investment Advisers of 1940. In addition to paying a total of $1.1 billion in fines, the firms were ordered to cease and desist from future violations of the relevant recordkeeping provisions and were censured. The firms agreed to retain compliance consultants to, among other things, conduct comprehensive reviews of their policies and procedures relating to the retention of electronic communications found on personal devices. The SEC recognized the firms’ cooperation with the investigation.

    Separately, in a related action, the CFTC announced settlements with many of the same firms for related conduct, totaling nearly $710 million. The CFTC noted that each firm acknowledged to CFTC staff that it was aware employees used unapproved methods to engage in business-related communications. The CFTC also said that as a result of each firm’s failure to ensure that its employees complied with communication policies and procedures, the firms failed to maintain business-related communications. The CFTC found that each firm failed to diligently “supervise its business as a CFTC registrant or registrants, in violation of CFTC recordkeeping and supervision provisions.”

    Securities Enforcement SEC CFTC Recordkeeping Securities Exchange Act

  • FINRA fines broker dealer for AML failures

    Federal Issues

    On September 9, FINRA settled charges with a broker dealer (respondent) for alleged failures in its anti-money laundering (AML) compliance program. According to the letter of acceptance, waiver, and consent, the respondent allegedly failed to, among other things: (i) establish a reasonably designed AML program; (ii) implement a customer identification program; (iii) reasonably supervise for potentially manipulative trading; and (iv) preserve and maintain certain electronic communications. Additionally, FINRA found that the respondent unreasonably relied on manual reviews of the daily trade blotter to identify market manipulation. FINRA’s order includes alleged violations of FINRA Rule 2010, Rule 3110, Rule 3310(a)-(b) and Rule 4511. FINRA also determined that the respondent violated Securities Exchange Act of 1934 Section 17(a) and Rule 17a-4(b)(4). The respondent agreed to pay a $450,000 civil monetary penalty to FINRA and is prohibited from providing market access for two years.

    Federal Issues Financial Crimes FINRA Enforcement Anti-Money Laundering Compliance Securities Exchange Act

  • SEC fines bank $1.7 million over misstating value of real estate loans


    On August 24, the SEC issued a cease and desist order to a bank for allegedly misstating representations regarding the securitization of commercial real estate (CRE) loans. According to the order, from the first quarter of 2017 to the first quarter of 2019, the respondent bank made filings with the SEC in which it reported gains that it received from the sales of loans included in five CRE securitizations. Among other things, the SEC alleged that the bank: (i) “failed to document adequately and incorporate all reasonably available market data into its valuation assumptions for the CRE certificates” it received as consideration in the CRE securitizations, and (ii) “omitted and misstated material information related to the certificates and the assumptions that it had used in valuing those certificates in certain of its quarterly and annual financial statements.” The SEC noted that the bank allegedly improperly used unreasonably low assumptions for the prepayment risks applicable to the CRE certificates. In particular, the SEC alleged that the bank used baseline prepayment assumptions of 0 percent or 5 percent constant prepayment yields (CPY) while not properly documenting why other approaches were not adopted, such as the existing convention of using 100 CPY, or using available market research which indicated comparable loans generally exceeded 30 percent CPY. Without admitting or denying the allegations, the bank agreed to pay a $1.75 million civil penalty. The company will also cease and desist from committing or causing any future violations of the Exchange Act.

    Securities Enforcement SEC Real Estate Securities Exchange Act Commercial Lending

  • SEC files charges against investment scheme targeting seniors


    On August 17, the SEC filed a complaint against an consulting company and its owner (collectively, “defendants”) in the U.S. District Court for the District of New Jersey for allegedly making materially false and misleading statements and omitting material facts regarding a fraudulent investment scheme. According to the SEC, between February 2017 to May 2022, the owner offered and sold securities in the form of promissory notes issued by the company to at least eleven investors, ages 64 to 82, raising at least $1.2 million while promising interest rates ranging from 50 percent to 175 percent. The owner allegedly “falsely represented to at least certain of the investors that, among other things, the money they invested in the [company] would be used to make loans to other businesses, which would generate the profits used to repay the [company].” As part of the scheme, the owner is alleged to have provided conflicting explanations of the company’s business and convinced investors “to roll-over their notes into new notes combining unpaid amounts with new investments.” The SEC further alleged that instead the owner withdrew over $486,000 from the company’s bank account and used it to fund his lifestyle and pay for personal expenses. The SEC’s complaint alleges violations of the antifraud provisions of the federal securities laws, specifically, the Securities Act of 1933 and the Securities Exchange Act of 1934. The complaint seeks a permanent injunction against the defendants, disgorgement of ill-gotten gains, plus interest, penalties, bars, and other equitable relief.

    Securities Enforcement SEC Elder Financial Exploitation Securities Act Securities Exchange Act

  • Payday lender to pay $39 million in alleged misappropriated funds suit


    On June 29, the U.S. District Court for the District of South Florida granted final judgment against a Florida-based payday loan company and an individual (collectively, “defendants”), resolving SEC allegations that the company fraudulently misappropriated funds from investors. According to the complaint, the SEC claimed that the defendants falsely represented to many Venezuelan-American investors that the company would use their funds to finance payday loans through the offer and sale of “safe and secured” promissory notes. However, the complaint noted that “the proceeds [the company] generated from its consumer loan business were woefully insufficient to cover principal and interest payments to investors,” and had been offered in violation of registration and anti-fraud provisions of the Securities Act and Exchange Act. The complaint also noted that the individual allegedly misappropriated $2.9 million for personal use and authorized the transfer of $3.6 million to friends and relatives for no apparent legitimate business purpose. According to the order, the company: (i) is permanently restrained and enjoined from violating sections of the Securities Act and Exchange Act; (ii) must pay $30.3 million in disgorgement; and (iii) must pay $2 million interest on disgorgement and a $7 million civil penalty. The individual is jointly liable for more than $4.6 million in disgorgement.

    Courts Securities Payday Lending Securities Act Securities Exchange Act SEC Enforcement


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