Articles Posted in Market Timing

The U.S. Court of Appeals for the Fifth Circuit has affirmed the Securities and Exchange Commission’s lifetime bar against a former Southwest Securities Inc. stockbroker. Scott Gann, who allegedly committed Texas securities fraud, is no longer allowed to associate with dealers, investment advisers, and brokers.

The SEC imposed the permanent bar against Gann because of his alleged involvement in a mutual fund market timing scheme. The appeals court says that the SEC’s ruling is not an abuse of discretion and is supported by the record.

Gann and George Fasciano, also a former Southwest Securities broker, are accused of engaging in market timing trades for Haidar Capital Management and Capital Advisor. They allegedly got around the rules of some of the mutual funds that prohibit market timing by using multiple representative and account numbers. Despite receiving 69 block notices from 34 mutual funds, their strategy allowed them to continue executing market timing trades.

The SEC filed an enforcement action in federal district court accusing the two men of violating the 1934 Securities Exchange Act Section 10(b). Fasciano settled before the case went to trial.

The district court held that Gann was in violation of Section 10(b). An SEC administrative law judge then entered a permanent associational bar against the ex-Southwest Securities broker. The SEC affirmed the bar, as did the appeals court.

The appeals court also noted that as Gann is convinced he did not engage in any wrongdoing-even though the SEC and two courts found that Gann acted wrongfully-there is no guarantee he won’t commit future violations.

Related Web Resources:
Gann v. SEC, (PDF)

1934 Securities Exchange Act, Cornell University Law School Continue reading

The US Securities and Exchange Commission is upholding the market timing violations against two AG Edwards and Sons Inc. supervisors and one of its stockbrokers. Billions of dollars were involved in the mutual fund market timing transactions.

While market timing, which involves the buying and selling of mutual fund shares in a manner that takes advantage of price inefficiencies, is not illegal, a violation of 1934 Securities Exchange Act Section 10(b) and Rule 10b-5. can arise when there is intent to deceive.

Last year, the ALJ found that AG Edwards and Sons brokers Charles Sacco and Thomas Bridge intentionally violated antifraud provisions when they engaged in market timing activities even though they had been restricted from doing so. The ALJ also found that supervisors Jeffrey Robles and James Edge failed to properly supervise the stockbrokers.

The antifraud charges filed against Bridge by the SEC Enforcement Division involved 1,352 trades (representing $1.126 billion) he executed over a two-year period for companies belonging to client Martin Oliner. The Enforcement Division accused Sacco of entering 25,533 market timing trades (representing $4.036 billion) for two hedge fund clients between 5/02 – 9/03.

The SEC determined that Edge, who was Bridge’s supervisor, knew and was complicit in the latter’s actions. Although Robles was not considered to have been complicit in Sacco’s alleged broker fraud, the commission said he should have noticed there were problems.

The SEC ordered Bridge to cease and desist from future violations. He is also barred from associating with any dealers or brokers for five years. Sacco has already settled his broker-fraud case.

Edge is barred from acting in a supervisory role over any dealer or broker for five years. Robles received a similar bar lasting three years. All three men were ordered to pay penalties, while Bridge was ordered to disgorge almost $39,000 plus $16,665.57 in prejudgment interest.

Related Web Resources:
Read the SEC’s Opinion regarding this matter

Commission Sanctions Thomas C. Bridge for Violations of the Antifraud Provisions of the Securities Laws and James D. Edge and Jeffrey K. Robles for Failing to Supervise Reasonably, Trading Markets, September 29, 2009 Continue reading

The US Court of Appeals for the Fifth Circuit is affirming the Securities Exchange Commission’s enforcement action against Southwest Securities broker Scott Gann who is accused of engaging in market timing activities that violated certain funds’ restrictions. The 5th circuit’s decision affirms a lower court’s ruling in favor of the SEC.

In 2002, Scott Gann and George Fasciano, both employees of Southwest Securities Inc, designed a plan for Haidar Capital Management and Capital Advisor that would allow them to trade mutual funds by engaging in market timing. The two men agreed to share the commissions.

The court says the two men studied the fund companies’ rules and requirements regarding market timing and that everyone involved was aware that the trades would have to take place “under the radar” so block notices wouldn’t be sent to them. The two men then opened up 21 accounts for nine HCM affiliates-each one had the same investors.

Trading for HCM started on Feb 10, 2003. SWS was issued a block notice 15 days later. Fasciano and Gun then switched the identifier number that was being used so they could keep trading.

They made 2,500 trades over a seven-month period in 56 companies mutual funds. They were sent 69 block notices.Their trades had an aggregate value of $650 million. Gann made about $56,640.67.

The SEC filed its enforcement action against the two men in 2005 and contended that the trades violated Section 10(b). Without admitting to wrongdoing, Fasciano settled.

The district court found that Gann had made material misstatements with the intent to deceive and had violated Section 10(b) and Rule 10b-5. The court ordered Gann to disgorge his profits from the HCM trades and pay a penalty of $50,000. The court also further enjoined him from future violations. This was affirmed by the appeals court.

In the 5th Circuit Court, Judge Jacques Wiener Jr. said that Gann failed to make a factual showing to show that the district court clearly made a mistake when it ruled in favor of the SEC and found that Gann violated the 1934 Securities Exchange Act Section 10(b).

While the court notes that market timing is not against the law, there are a number of mutual fund companies that do not allow this type of activity. Brokers who engage in market timing will occasionally get “block notices” from funds to let them know that they’ve gone against the fund’s restrictions, as well as bar certain accounts controlled by the broker from future trades.

Related Web Resources:
Southwest Securities to Pay $10 Million, and Three Present or Former Managers to Receive 12-Month Supervisory Suspensions, in Settlement of Administrative Proceedings Based on Southwest Securities and Managers’ Failure to Supervise Registered Representatives Who Committed Fraud,, January 10, 2005
Market TIming, Investopedia
Isn’t market timing illegal?, Continue reading

Three A.G. Edwards & Sons Inc. brokers are being ordered to pay $750,000 in fines for their participation in a market-timing scheme that involved mutual funds that benefited certain customers.

The brokers, Thomas Bridge, James Edge, and Jeffrey Robles, were also ordered to serve suspensions from the securities industries. Bridge, a former registered representative in the firm’s Boca Raton, Florida office, must also disgorge $39,808.53. Edge was the branch manager at the same office. Robles worked as a branch manager at Edwards’ Back Bay office.

Securities and Exchange Commission Chief Administrative Law Judge Brenda Murray ordered the sanctions. The market-timing scam occurred from the Edwards’ branch offices in Lake Worth, Boca Raton, and Boston.

The Securities and Exchange Commission is suing two ex-Morgan Stanley advisers for allegedly circumventing the market timing restrictions of 50 mutual fund companies, and, as a result, allegedly defrauding some 50 mutual fund companies.

Between January 2002 and August 2003, Former advisers Darryl Goldstein and Christopher O’Donnell earned about $1 million in fees and commissions because of their alleged misconduct. Attorneys for both men say their clients will fight the charges.

The SEC says that the two men, on more than one occasion, strategically engaged in several deceptive practices, including the opening of several brokerage accounts and trading in them, trading with variable annuity contracts, and using a number of financial advisor identification numbers while trading. The deceptive practices were meant to get around the restrictions that mutual funds had regarding market timing.

Rafferty Capital Markets LLC says it will pay over $400,000 in sanctions and abide by a 90-day ban preventing it from opening mutual fund brokerage accounts for customers. The penalties resolve FINRA charges that Rafferty Capital engaged in improper market timing trading practices. FINRA also charged Rafferty Capital with getting rid of e-mails pertaining to the transactions in question and failing to respond to warnings of improper timing practices.

According to FINRA, Rafferty Capital helped six hedge fund customers circumvent market timing restrictions without detection from January 2001 to August 2003. The firm i s accused of using various broker branch codes to engage in market timing.

The firm also allegedly allowed two hedge fund clients to continue market timing from April 2001 through April 2002 and circumvented efforts by mutual fund companies to prevent this type of trading. This alleged misconduct resulted in 118 more mutual fund exchanges. The $59,605 profit was made at the expense of other investors.

Hartford Financial Services Group will pay $115 million to settle market-timing and broker-compensation charges brought by the Attorney General offices of Connecticut, New York and Illinois.

The three state regulators charged that the Hartford insurance unit failed to properly oversee hedge funds that were engaging in market-timing sales of its variable annuities. New York Attorney General Andrew Cuomo said his investigation also found that Hartford invested into a hedge fund that was market-timing Hartford’s variable annuities, reaping nearly $16 million in profits from the hedge fund, while hiding its role and profit to customers.

The Connecticut Attorney General said his investigation revealed that Hartford also provided fictitious quotes to insurance brokers including the Marsh & McLennan Companies. He stated that Hartford provided Marsh with the intentionally high and noncompetitive bids, knowing it could “deceptively create the mirage of a competitive market–with the understanding that it could win other desirable future business from Marsh,” adding, “Hartford colluded with brokers and agents to pay concealed contingent commissions to get steered business.”

After a widespread investigation into late-trading of mutual funds the SEC levied sanctions against various mutual fund management companies and others, including fines as well as orders to disgorge profits and to reimburse the victims of the fraudulent trading. In 2004, Invesco was ordered to pay $325 million and AIM Advisors was ordered to pay $50 million.

The basis of the fraud was simple: Closing prices of mutual fund shares are set based on closing prices of the shares held in the funds. However, inflow and outflow of funds can legitimately occur based on orders placed prior to the close. The fraudulent orders were placed after the market closed but were made to appear as earlier orders. Those transacting the late orders had the unfair advantage of news announced after the close as well as post-closing changes in stock prices.

Over several years, billions were reaped from such improper market timing activities. The victims of the fraud were the millions of legitimate owners of the mutual funds. The SEC has established what it calls “Fair Funds” to reimburse victims of late trading and other scams. This week over $300 million will be also distributed to Time Warner shareholders who bought based on improper financial data. The SEC says that, with these distributions, the total paid from Fair Funds now tops $2 billion.

The Securities and Exchange Commission recently made a $37 million disbursement to more than 300,000 investors in the Columbia Funds who were injured in the widespread fraudulent mutual fund market timing scandal. The SEC said this was the first of four anticipated distributions of approximately $140 million total to be paid to 600,000 affected Columbia account holders.

These funds were obtained in a settlement in 2004 with Columbia Management Advisors Inc. and Columbia Funds Distributor Inc. The SEC had charged that between 1998 and 2003, the two entered into or allowed arrangements to market-time Columbia funds.

The SEC has returned more than $1.8 billion through such distributions, said Linda Thomsen, director of the agency’s Division of Enforcement. Additional information can be learned by contacting David P. Bergers, John T. Dugan, or Celia D. Moore in the SEC’s Boston Regional Office at 617-573-8900.

The Securities and Exchange Commission says that investors who were affected by the fraudulent market timing in the PBHG Funds will receive $73 million. This is the second of three disbursements to be made from the Pilgrim Baxter Fair Fund.

Pilgrim Baxter & Associates, Ltd. was the investment adviser for PBHG Funds during the time when the fraudulent market timing took place. By the time the third disbursement is made, 384,000 investors affected by this fraud scheme will have been paid.

The Fair Fund came about because of the SEC enforcement actions charging the PBHG Funds of “unlawful market timing” by Harold J. Baxter, Gary L. Pilgrim, and Pilgrim Baxter & Associates Ltd. The charges against PBA for allowing certain investors to market time were settled three years ago when PBA agreed to the fine of $90 million in civil penalties and disgorgement (although PBA did not deny or admit guilt). It also agreed to put into place mutual fund governance and compliance reforms.