An SEC investigation found that E*TRADE Securities and E*TRADE Capital Markets sold billions of penny stock shares for customers during a four-year period while ignoring red flags that the offerings were being conducted without an applicable exemption from the registration provisions of the federal securities laws. E*TRADE Securities remains an E*TRADE subsidiary while E*TRADE Capital Markets was sold earlier this year and is now called G1 Execution Services.
E*TRADE Securities and G1 Execution Services agreed to settle the SEC’s charges by paying back more than $1.5million in disgorgement and prejudgment interest from commissions they earned on the improper sales. They also must pay a combined penalty of $1 million.
In addition to the enforcement action, the SEC staff today published a Risk Alert and FAQs to remind broker-dealers of their obligations when they engage in unregistered transactions on behalf of their customers.
“Broker-dealers serve an important gatekeeping function that helps prevent microcap fraud by taking measures to ensure that unregistered shares don’t reach the market if the registration rules aren’t being followed,” said Andrew J. Ceresney, Director of the SEC’s Division of Enforcement. “Many billions of unregistered shares passed through gates that E*TRADE should have closed, and we will hold firms accountable when improper trading occurs on their watch.”
According to the SEC’s order instituting a settled administrative proceeding, the failures by E*TRADE occurredperiodically from March 2007 to April 2011. The securities laws generally require all offers and sales of securities to be registered with the SEC unless those offers and sales qualify for an exemption. When brokers facilitate an unregistered sales transaction on behalf of a customer, they must reasonably ensure that an exemption does indeedapply.
The SEC’s order finds that three customers of E*TRADE routinely deposited to their E*TRADE accounts large quantities of newly issued penny stocks they had acquired through private, unregistered transactions with little-known, non-reporting issuers. The customers claimed that these penny stockswere “freely tradable” and they placed orders for E*TRADE to sell the securities to the public through “resales” without any registration statements in effect. Following the resales, the customers immediately wired the sales proceeds out of their accounts.
According to the SEC’s order, E*TRADE encountered numerous red flags indicating potential improper sales of securities. Nevertheless, the firm relied on a registration exemption for broker-dealers that permits them to execute a customer’s unregistered sales of securities if, after a reasonable inquiry, the broker-dealer is not aware of circumstances indicating that the customer is violating registration requirements. E*TRADE initially failed to identify any exemptions potentially available to these customers. When it later identified the purported exemptions upon which the customers claimed to be relying, E*TRADE failed to perform a searching inquiry to be reasonably certain that such exemptions applied for each unregistered sale executed by the three customers.
“E*TRADE failed to fulfill its obligation to determine whether any exemptions applied to the sale of billions of shares of securities thereby depriving investors of critical protections under the federal securities laws,” said Stephen L. Cohen, Associate Director of the SEC’s Division of Enforcement. “Firms must take their reasonable inquiry obligations seriously and do more than check the box, particularly when red flags are apparent.”
The SEC’s order finds that E*TRADE Securities and G1 Execution Services violated Sections 5(a) and 5(c) of the Securities Act of 1933. In addition to the monetary sanctions and without admitting or denying the SEC’s findings, the two firms agreed to be censured and consented to the order requiring them to cease and desist from committing or causing any future violations of the registration provisions of the Securities Act.