Articles Tagged with securities and exchange act of 1934

The Financial Industry Regulatory Authority (FINRA) has barred Chad David Kelly (Kelly) concerning allegations of churning (excessive trading) and unauthorized trading.  “Churning” is excessive investment trading activity that serves little useful purpose or is inconsistent with the investor’s objectives and is conducted solely to generate commissions for the broker.  Churning is also a type of securities fraud.

FINRA alleged that Kelly willfully violated Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act of 1934”), Rule 10b-5, and violated FINRA Rules 2020, and 2010, NASD Rules 2120, 2110, 2310, and IM-2310(a) and (b).

According to FINRA, excessive trading violation occurs when: 1) a broker has control over the account and the trading in the account, and 2) the level of activity in that account is inconsistent with the customer’s objectives and financial situation.  Where an intent to defraud or reckless disregard for the customer’s interests is present the activity is also churning.  Section 10(b) of the Exchange Act of 1934 prohibits the use of “any manipulative or deceptive act or practice” in connection with the purchase or sale of a security and Rule 10b-5 prohibits “any device, scheme, or artifice to defraud.”  NASD Rule 2310(a) provides that when recommending the purchase, sale, or exchange of any security a broker “shall have reasonable grounds for believing that the recommendation is suitable for such customer…”  A broker’s recommendations must “be consistent with his customer’s best interests.” NASD IM-2310-2(a)(1) also require that the broker must “’have reasonable grounds to believe that the number of recommended transactions within a particular period is not excessive.”  NASD IM-2310-2(b)(2) prohibits brokers from excessively trading in customer accounts.

Robert Gist (Gist) was recently fined $5.4 million by the Securities and Exchange Commission (SEC) and barred from association with any broker-dealer by the Financial Industry Regulatory Authority (FINRA).  Gist has been accused by both regulators of converting the funds of at least 30 customers in order to pay personal expenses and to fund the operations of a company controlled by Gist.

Gist resides in Atlanta, Georgia and is the president of Gist, Kennedy & Associates, Inc., (Gist Kennedy) a law firm specializing in estate planning and investments.  Gist is licensed to practice law in Georgia and has represented professional athletes as a sports agent.  From approximately 2002 through early 2013, Gist was CEO and president ENCAP Technologies, LLC (ENCAP), a company with its principal place of business in Roswell, Georgia.  ENCAP is in the business of developing industrial coatings for metal surfaces to prevent corrosion.  Gist has been associated or registered with numerous brokerage firms since the 1980s.  Most recently, Gist was registered with Resource Horizons Group LLC from March 2001 until his December 2011.

On May 31, 2013, the SEC charged Gist and Gist Kennedy with defrauding at least 32 customers out of at least $5.4 million while acting as an unregistered broker from approximately 2003 to the present.  According to the SEC’s complaint filed in the U.S. District Court for the Northern District of Georgia, Gist told customers that he would invest their funds conservatively on their behalves in corporate bonds and other securities.  However, according to the SEC Gist invested none of the customer funds, but, instead, used the funds for his personal expenses.

A “penny stock” is defined by the Securities and Exchange Commission (SEC) as a security issued by a very small company, micro-cap or less than $100 million in market capitalization, and trades at less than $5 per share.  Penny stocks generally are quoted over-the-counter, such as on the OTC Bulletin Board or OTC Link LLC.  However, not all penny stocks trade over-the-counter and many trade on securities exchanges, including foreign securities exchanges.  In addition, the definition of penny stock can also include private companies with no active trading market.

Penny stocks are inherently risky due to several contributing factors.  First, penny stocks may trade infrequently, meaning that it may become difficult to liquidate penny stock holdings once acquired.  Second, it may be difficult to find accurate quotes for certain penny stocks.  Therefore, it may be difficult or even impossible to accurately price certain penny stocks.  Due to these risks, penny stock investors may lose their whole investment.  When penny stock investing is combined with margin borrowing the results can be catastrophic for the investor.

If the inherent risks of penny stocks were not great enough, penny stocks are often used and manipulated for fraudulent purposes.  One common scheme is the “pump and dump” scheme. The idea behind a pump and dump scheme is to create unfounded hype for a penny stock the pumper already owns.  As the pumper’s victims buy into the hype additional purchases drive up the price of the stock artificially.  The pumper then sells his shares for a large profit while those the pumper recommended the penny stock to quickly lose their money as the stock’s value decreases precipitously.

Contact Information