Misrepresentations

April 26, 2017

New York announced felony charges against Anthony Nyame, 59, of the Bronx, for allegedly stealing $800,000 from multiple victims by fraudulently inducing them to believe his Wall Street based company, General Capital Corporation, had the ability to secure millions of dollars in loans. If convicted, Nyame faces up to 20 years in prison. According to the indictment and statements made by the prosecutor at arraignment, Nyame allegedly solicited unwitting victims into believing that his company could arrange for tens of millions of dollars in loans provided they pay hundreds of thousands of dollars to collateralize the loans. In one case, Nyame allegedly promised to obtain a $30 million loan for a Church located in the Bronx that was seeking to build a multi-family dwelling on its property. Instead of using the deposits to secure the promised loans, Nyame allegedly diverted monies from the Church and other investors for his own personal use – including $71,000 in cash withdrawals and transfers to his personal bank account, $47,000 to pay for his Wall Street apartment and an additional $26,000 for assorted personal items. Nyame also transferred hundreds of thousands of dollars to multiple companies and people around the world. NY

March 27, 2017

The SEC announced fraud charges and an emergency asset freeze against LottoNet Operating Corp, its CEO David Gray, and its top sales agent Joseph A. Vitale.  The SEC’s complaint alleges that the defendants misrepresented to investors that their money would be used to develop and market LottoNet and that sales agents did not receive commissions.  In fact, at least 35 percent of investor proceeds were allegedly paid to boiler room sales agents in the form of commissions, and LottoNet allegedly siphoned investor funds for personal spending on clothing, wedding-related expenses, and strip clubs.  The SEC complaint further alleges that Vitale, who personally raised at least $1.4 million from investors, used the alias Donovan Kelly in an apparent attempt to hide form investors that he is permanently barred by FINRA. SEC

March 10, 2017

The SEC charged two former executives at credit card processing company iPayment with masterminding a fraudulent scheme to steal millions of dollars through phony expense reimbursements, inflated invoices, and other improper accounting tactics.  The SEC’s complaint alleges that iPayment’s then Senior Vice President of Sales and Marketing Nasir N. Shakouri and then-Executive Vice President and Chief Operating Officer Robert S. Torino routinely reimbursed themselves for payments that were never actually made to third-party vendors using their personal credit cards.  They also allegedly conspired with vendors to inflate invoices and receive kickbacks from the overpayments, and claimed improper commissions and bonuses related to other corporate funds they improperly diverted in various ways.  The SEC’s complaint also charges three other iPayment executives – Bronson L. Quon, John S. Hong, and Jonathan K. Skarie – with participating in the scheme and helping Shakouri and Torino falsify books and records to hide the theft of corporate funds.  Quoon, Hong, and Skarie were allegedly rewarded for their assistance with missapropriated iPayment funds.  According to the SEC’s complaint, the scheme caused approximately $11.6 million in damages. SEC

March 9, 2017

California-based marijuana “consulting” company Medbox and its founder Vincent Mehdizadeh will pay $12 million to settle allegations of falsely touting “record” revenue numbers to investors and claiming to be a “leader” in the marijuana industry while some of the company’s earnings came from sham transactions with a secret affiliate.  According to the SEC’s complaint, Medbox claimed to sell vending machines capable of dispensing marijuana on the basis of biometric identification.  The SEC alleges that Mehdizadeh created a shell company called New-Age Investment Consulting, installed his then-fiancé, Yocelin Legaspi, as its CEO, and caused it to carry out illegal stock sales and used the proceeds from those sales to boost Medbox’s revenue.  Medbox allegedly issued press releases headlining the phony revenues as record earnings to legitimize itself as a viable commercial operation when in fact nearly 90 percent of the company’s revenue in the first quarter of 2014 stemmed from sham transactions with New-Age.  The SEC also charged Medbox’s then-CEO Bruce Bednick with being complicit in the scheme and personally profiting.  The SEC also charged New-Age and Legaspi with unlawfully selling unregistered securities.  The SEC’s litigation against Bedrick, Legaspi, and New-Age continues. SEC

February 14, 2017

The SEC charged California-based penny stock company Terminus Energy, Inc. and four of its corporate officers with misleading investors about the research, development, and profitability of their purported business to manufacture power generation products such as fuel cells.  The SEC alleges that while raising approximately $7.9 million from investors, Terminus and its officers claimed to have a viable prototype capable of being sold and earning revenue.  In fact, Terminus did not have the fuel cell technology or the funding to match their claims.  Rather, the officers were allegedly converting substantial amounts of investor funds to their own use.  According to the SEC’s complaint, the company failed to disclose to investors that Terminus’ operations manager George Doumanis is a convicted felon who went to prison for securities fraud and was secretly acting as an officer of the company despite being barred from participating in penny stock offerings.  In addition, Emanuel Pantelakis served on the Terminus board of directors despite having been permanently barred by the Financial Industry Regulatory Authority.  Also charged are Terminus’ CEO Danny B. Pratte and its former president, director, and legal counsel Joseph L. Pittera.  Terminus also allegedly used unregistered brokers to sell its securities and paid them more than twice as much in commissions as was disclosed to investors in offering documents.  Joseph Alborano is charged with soliciting and selling investments for which he received more than $1 million in commissions.  SEC

February 14, 2017

The SEC announced two enforcement actions involving disclosure violations that deprived investors of material information during battles for corporate control of publicly traded companies.  In one case, the SEC’s order found that Texas-based oil refinery CVR Energy made inadequate disclosures in SEC filings about “success fee” arrangements with two investment banks retained by the company to fend off a hostile takeover bid.  Shareholders were consequently unaware of potential conflicts of interest that stemmed from the fee arrangements, namely that the banks could still earn success fees even if the hostile bidder secured control of the company.  CVR will not pay a penalty due to its remedial acts and extensive cooperation with the investigation.  In the other case, the SEC’s order found that groups of investors failed to properly disclose ownership information during a series of five campaigns to influence or exert control over microcap companies.  Jeffry E. Eberwein and Charles M. Gillman collaborated with mutual fund adviser Heartland Advisors in some of these campaigns.  Others involved Lone Star Value Management, a hedge fund adviser headed by Eberwein, or Boston Avenue Capital, a private fund advised by Gillman.  In each of these campaigns, the groups collectively owned more than five percent and sometimes even more than 10 percent of the companies’ outstanding stock, yet the required ownership filings to disclose that information to the investing public were either incomplete, untimely, or altogether absent.  Eberwein, Gillman, Lone Star, and Heartland will collectively pay penalties of $420,000.  SEC

February 2, 2017

The SEC charged Connecticut-based investment advisory business Sentinel Growth Fund Management and its founder Mark J. Varacchi with misrepresenting to investors that money deposited with the firm would be allocated to up-and-coming hedge fund managers for investment purposes.  Instead, according to the SEC’s complaint, Varacchi and Sentinel did not transfer all the money as promised, co-mingled investor assets, and manipulated account activity, account balances, and investment returns as part of a scheme to siphon away investor funds.  Varacchi and his firm allegedly stole at least $3.95 million from investors, including more than $1 million to settle litigation brought by Varacchi’s prior employer.  SEC

January 23, 2017

Shipping conglomerate Overseas Shipholding Group (OSG) and its former CFO Myles R. Itkin will pay $5 million and $75,000 respectively for to settle charges that they failed to recognize hundreds of millions in tax liabilities in OSG’s financial statements.  According to the SEC’s order, OSG’s credit agreements from 2000 to the second quarter of 2012 contained a provision making OSG’s controlled foreign subsidiary Overseas International Group Inc. (OIN) and another subsidiary Overseas Bulk Ships (OBS) jointly and severally liable for OSG’s debt.  The provision triggered current income tax liability under Section 956 of the Internal Revenue Service Code which addresses “investments in United States property” for amounts that OSG borrowed, and deferred tax liabilities for amounts not borrowed but available under the credit agreements.  During this period, OSG and Itkin, who participated in the negotiation of the credit agreements and signed them, failed to recognize OSG’s tax liability despite significant indicia that the structure of its credit agreements in effect made OIN a guarantor under the agreements and could trigger tax consequences, including tax memos from outside counsel and communications with the banks during the negotiation phase of the credit agreements.   As a result of the misconduct, OSG materially understated its income tax liabilities by approximately $512 million (17% of its total liabilities).  In November 2012, following discovery of the tax liabilities, OSG filed for bankruptcy protection.  SEC

January 17, 2017

Allergan Inc. will pay a $15 million penalty for disclosure failures in the wake of a hostile takeover bid.  The SEC’s order finds that Allergan failed to disclose in a timely manner its negotiations with potentially friendlier merger partners in the months following a tender offer from Valeant Pharmaceuticals International and co-bidders in June 2014.  Allergan publicly stated in a disclosure filing that the Valeant bid was inadequate and it was not engaging in negotiations that could result in a merger.  It was required to amend the filing if a material change occurred.  According to the SEC’s order, Allergan never publicly disclosed material negotiations it entered with a different company that would have made it more difficult for Valeant to acquire a larger combined entity.  And after those negotiations failed, the investing public wasn’t informed that Allergan entered into merger talks with Actavis, the company that ultimately acquired Allergan, until the announcement that a merger agreement had been executed.  SEC

February 14, 2017

Carlos Javier Ramirez and his companies, Gold Chasers, Inc. and Royal Leisure International, Inc. were charged with misappropriation, fraudulent sales solicitation, and issuing false statements in fraud schemes involving gold. According to the CFTC Complaint, between February 2012 through at least January 2016, the defendants allegedly fraudulently offered contracts to sell gold to at least 20 customers. This resulted in defendants allegedly fraudulently obtained at least $4.1 million. CFTC