STOCKGATE TODAY-Captured Regulators Twist of Irony
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Captured Regulators Twist of irony - September 6, 2007
David Patch
This week the Securities and Exchange Commission announced a major settlement between the Commission and the Boston Stock Exchange. The settlement pertained to a lack of regulatory oversight by the exchange over years of illegal trading activities by exchange specialists.
In the settlement agreement the Boston Stock Exchange was censured and has agreed to pay near $1 Million to have two separate third party audits of their surveillance systems take place through the course of the next year. In addition the former exchange president James B. Crofwell was fined $75,000 for his role in failing to enforce exchange and federal securities laws.
On any other day this would be great news. Fact is it is disturbing news.
In the Administrative Proceeding presented by the Commission staff the irony of the commentary provided cannot be overlooked. The SEC was holding the Boston Stock Exchange in contempt for "failing to enforce Exchange rules to prevent specialists from trading for their own accounts ahead of marketable customer orders."
In layman's terms, the regulatory arm of the exchange was aware of but did not prevent the illegal trading activities and stock manipulation activities engaged in by the exchange specialists.
The Administrative Proceeding shined a closer light however on exactly who was responsible for the near 5 years of fraudulent trading activities. Would it surprise you if I were to say it was the Securities and Exchange Commission who was ultimately responsible?
Starting in 1999 an SEC audit of the Boston Stock Exchange surveillance systems highlighted the flaw in detecting the abusive trading practices of the specialist. Based on that audit the SEC Commission staff issued a memo to the Boston Stock Exchange and Crofwell directing him to "immediately develop trading ahead surveillance procedures." Crofwell responded to the directive in writing stating that the BSE would work to implement a same-day review of trading ahead activity by the target date of June 30, 1999 and would keep the staff informed of progress.
"Keep the staff informed of progress." This is the Commission staff we are talking about here.
According to the SEC documents the June 30, 1999 target was not only missed but the effort was not completed for nearly five years later. So where was this staff who was to be kept informed and who was responsible for taking appropriate steps when such deadlines simply came and went without completion?
Understand here, between 1999 and 2004, representing more than 1,250 trading days, the SEC contends that hundreds to thousands of trades were being executed illegally daily. Each trade executed to the advantage of the specialist over their clients.
Investors, with market orders were not getting the best price executions but instead received sub-standard trade executions so that these specialists could turn risk free profit. SEC examples provided in the AP identify that nearly 2-3% of all trades executed were illegal and represented tens of millions of illegal trades or more over the time period in question.
The AP is littered with evidence that the SEC was aware of the ongoing problems at the exchange year over year between 1999 and 2004 and yet did nothing to stop the abuse. Not a single enforcement action was taken against a single specialist during this window of opportunity. Likewise the SEC failed to take action against the exchange despite the awareness that the exchange was failing in their regulatory duties. Only today, 2007 has the SEC taken action.
Hence the irony.
The SEC has censured the Boston Stock Exchange and fined former president James Crofwell for failing to regulate and yet for 5 years the SEC failed to regulate and enforce the highest rules of our capital markets, the Federal Exchange Acts of 1934.
As for the fines imposed, consider this.
Crofwell and the Boston Stock Exchange failed to put proper compliance systems in place because they failed to allocate the necessary resources to the project. It was a money issue and Crofwell did not want to pay the expenses necessary in 1999 - 2004. Had Crofwell dedicated such expense in 1999 the total cost to the exchange between 1999 and 2004 would have been far greater than the $1 Million the exchange must now pay for the two independent audits.
There was a benefit of cost avoidance for the exchange and Crofwell personally and the SEC walked right into it. Crofwell's compensation would be based on the financial performance of the exchange and the $75,000 civil fine imposed on Crofwell pales to the compensation he most likely obtained through this cost avoidance and through the specialist revenues created off illegal trading activities.
So where is the restitution to those cheated by the Boston Exchange specialists?
There will be none. The specialists have been allowed to keep their ill-gotten gains and the exchange has been given a hall pass on a half decade of fraud, deceit, and manipulation.
Fortunately the actions of these specialists constitute fraud. They stole money from clients and with tens of millions of illegal trades executed the money stolen would clearly rise to levels constituting criminal fraud. Criminal investigations take place outside the captured walls of the SEC.
From the SEC Press Release:
"As today's action shows, the Commission continues to be vigilant in seeking to ensure that self-regulatory organizations fulfill their obligations as regulators," said Linda Chatman Thomsen, Director of the SEC's Division of Enforcement. "Self-regulatory organizations must expend the resources necessary to vigorously enforce their own rules and to detect and prevent misconduct by their member firms."
What Ms. Thomsen continues to fail to respect is that the SEC, representing the highest tier of regulatory enforcement has an equal responsibility to enforce member misconduct and exchange misconduct in an expeditious manner. This SEC case proves they failed at the expense of an unknown number of innocent victims.
SEC Spokesman John Heine was non responsive to questions regarding the Commissions role in the longstanding allowance of fraud. David Bergers, Regional Director of the Boston Office responsible for this case did not return a call for comment. I would hope Mr. Bergers is out seeking new employment as was the case with his predecessor after he failed to respond to whistleblower allegation in later became a multi-billion dollar market timing scandal.
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