Lek Securities Corporation (“LEK”), a US-registered broker-dealer and Samuel Lek, its 70 percent owner and chief executive officer, were sued by the Securities and Exchange Commission for facilitating manipulative trading activity by its customer, Avalon FA Ltd, a non-US entity, and its two control persons, Nathan Fayyer and Serge Pustelnik.

According to the SEC’s complaint, Avalon engaged in two types of manipulative conduct: layering and cross-market manipulation involving equities and related options from December 2010 through at least September 2016.

The SEC alleged that on “hundreds of thousands of instances” during this period, Avalon placed false orders in various stocks on one side of a marketplace to drive a stock’s price up or down. It did this, said the SEC, “to trick and induce other market participants to execute against Avalon’s bona fide orders (i.e., orders that Avalon did intend to execute) for the same stock on the opposite side of the market.” After executing its legitimate orders at more favorable prices, Avalon cancelled its other-side-of-the-market layering or spoofing orders, the SEC claimed.

In addition, charged the SEC, from April 2012 through December 2015, Avalon bought and sold stocks at losses in order to influence the market for corresponding options on the stocks. Avalon then made a profit by trading these options at “artificial prices,” said the SEC.

The SEC alleged that Avalon generated more than US $28 million of profits during the relevant time period through its illicit trading activity.

In its complaint, the SEC charged that LEK and Mr. Lek were aware of Avalon’s improper activities when, among other things, Mr.Lek received an email in May 2012 explicitly describing the layering scheme from an individual who shortly afterwards became an Avalon trade group leader, as well as when regulators, exchanges and other market participants alerted LEK and Mr. Lek on various occasions from 2012 through 2016 that they were concerned that Avalon was engaging in layering. In many instances, said the SEC, the regulators provided LEK and Mr. Lek with “detailed descriptions” of Avalon’s supposed problematic conduct.

The SEC said that LEK and Mr. Lek received similar information from regulators that Avalon’s cross-market activity was also potentially manipulative beginning in August 2012 through the present. Mr. Lek also authorized the relaxation of triggering thresholds for software used by LEK to prevent layering activity for Avalon at the request of Mr. Pustelnik, charged the SEC. During the relevant time period Mr. Pustelnik was first a foreign finder for LEK and later a registered representative – while at all times retaining his association with Avalon.

The SEC filed its complaint in a federal court in New York City. Among other remedies, the SEC seeks injunctions, disgorgement and fines against each of the defendants.

Last year, a decision by the Financial Industry Regulation Authority to fine LEK US $100,000 for failing to establish and implement adequate anti-money laundering procedures was upheld by the National Adjudicatory Council – a FINRA committee that reviews initial decisions from disciplinary and membership proceedings. A FINRA panel found after a hearing in 2014, that from January 1, 2008, through October 31, 2010, LEK’s AML procedures were inadequate because they “contained little guidance with regard to manipulative trading that might require the filing of a suspicious activity report.” (Click here for details of this decision in the article, "Just Calling Sam Is Inadequate Substitute for Robust AML Procedures Even at Small Broker-Dealer Rules FINRA Adjudicatory Council" in the October 16, 2016 edition of Bridging the Week.)

Compliance Weeds: As the SEC’s action against LEK and Mr. Lek, as well as the Commodity Futures Trading Commission’s recent enforcement action against Advantage Futures LLC and two of its principals demonstrates, neither the SEC nor the CFTC appear hesitant to bring an enforcement action against a registrant if the registrant fails to take what the regulators consider to be responsible appropriate action in the face of well-supported allegations of wrongdoing by a customer. Advantage, Joseph Guinan, its majority owner and chief executive officer, and William Steele, who until May 2016 was Advantage’s chief risk officer, recently settled charges brought by the CFTC related to the firm’s handling of the trading account of one customer in response to three exchanges’ warnings regarding the customer’s possibly illicit trading conduct. According to the CFTC, between June 2012 and April 2013, three exchanges alerted Advantage to concerns they had regarding the trading of one unspecified customer’s account, which they thought might constitute disorderly trading, spoofing and manipulative behavior, in violation of the exchanges’ relevant rules. The CFTC claimed that, initially, Advantage failed “to adequately respond to the Exchange inquiries and did not conduct a meaningful inquiry into the suspicious trading.” Only after the three exchanges threatened to hold Advantage responsible for its customer’s conduct, did Advantage cut off the trader’s access to three exchanges. However, noted the CFTC, Advantage failed to augment its oversight of the trader’s remaining trading or control his access to other exchanges “despite knowing that he employed the same strategy across all markets.” (Click here for details of this enforcement action in the article “FCM, CEO and CRO Sued by CFTC for Failure to Supervise and Risk-Related Offenses” in the September 25, 2016 edition of Bridging the Week.) Registrants should consider developing databases that permit them to log all regulatory inquiries and other extraordinary matters regarding their customers so they can more systematically evaluate potential red flags regarding customers’ conduct.