UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
|In the Matter of:||)||CFTC Docket No. 99-8|
|SELWYN "SY" GAIBER,||)||ORDER MAKING FINDINGS AND|
|)||IMPOSING REMEDIAL SANCTIONS|
On March 4, 1999, the Commodity Futures Trading Commission ("Commission") filed a Complaint and Notice of Hearing ("Complaint") against Selwyn "Sy" Gaiber ("Gaiber"). The two-count Complaint charges that Gaiber violated Section 4m of the Commodity Exchange Act, as amended ("Act"), and Sections 4.31, 4.34 and 4.35 of the Commission's Regulations ("Regulations"), 17 C.F.R. §§ 4.31, 4.34 and 4.35 (1998).
Gaiber has submitted an Offer of Settlement ("Offer") which the Commission has determined to accept. Without admitting or denying any of the allegations of the Complaint or the findings herein, Gaiber acknowledges service of this Order Making Findings and Imposing Remedial Sanctions ("Order"). Gaiber consents to the use of the findings contained in this Order in this proceeding and in any other proceeding brought by the Commission or to which the Commission is a party.1
The Commission finds the following:
Selwyn "Sy" Gaiber ("Gaiber") co-founded and operated a private investment club called the Bulls and Bears Club, which existed from November 1996 through December 1997. In giving commodity futures trading advice to Bulls and Bears Club members, Gaiber acted as an unregistered commodity trading advisor ("CTA"), in violation of Section 4m of the Act, and failed to give the proper risk and performance disclosures to his clients, in violation of Regulations 4.31, 4.34 and 4.35.
Selwyn "Sy" Gaiber resides at 46403 Mountain Cove Drive, Indian Wells, California 92210. Between November 1996 and December 1997, Gaiber was the operator of the Bulls and Bears Club, and, from June 1997 through December 1997, Gaiber was a general manager of the club.
Gaiber has never been registered with the Commission in any capacity.
1. The Bulls and Bears Club
From November 1996 through December 1997, the Bulls and Bears Club provided its members with a facility in which they could obtain investment advice, monitor their investments, exchange investment ideas, and socialize with other members. The club's facilities included a trading area with computers which allowed members to monitor their investment accounts, and telephones from which members could place commodity futures and securities trades. There were television monitors throughout the club displaying current market activity. Most of the members paid an initiation fee and quarterly dues.
2. Gaiber Gave Commodity Trading Advice to Individual Bulls and Bears Club Members For Compensation
Between January 1997 and June 1997, Gaiber held weekly investment seminars at the Bulls and Bears Club, which were attended by both club members and non-members. At the seminars, Gaiber provided advice concerning commodity trading and described specific trading strategies.
During that same time period, approximately forty-seven of the eighty-eight members of the Bulls and Bears Club, most of whom had not previously traded commodities, opened individual commodity accounts. Gaiber acquired discretionary trading authority over seven individual members' commodity interest accounts and directed the trading in their accounts. Gaiber also gave approximately twenty other club members advice about trading their individual commodity accounts by recommending trades to them, individually or in small groups, while they were present at the club.
Gaiber received consulting fees from the Bulls and Bears Club as compensation in part for this furnishing of commodity trading advice.
3. Gaiber Directed Trading in the Commodity Interest Account of a Commodity Pool for Compensation
In June 1997, some of the Bulls and Bears Club members formed a general partnership known as the TNT Organization ("TNT"), which functioned as a commodity pool until December 1997. The TNT commodity pool had in excess of fifteen participants during its existence. Gaiber acted as the CTA for the TNT pool participants and directed TNT's commodity interest account pursuant to a written agreement which provided that he was to be paid a fee of 20% of any profits. Although the TNT pool was initially profitable, it ultimately suffered a net loss.
4. Gaiber Failed to Register as a CTA and Failed to Provide his Clients with the Required Disclosures
Gaiber was not registered as a CTA. He did not provide to any of the persons whose commodity interest trading he directed or guided from January 1997 through December 1997 any documents disclosing the risks associated with managed commodity accounts, or the record of his performance in directing the trading of commodity accounts.
D. LEGAL DISCUSSION
1. Gaiber violated Section 4m of the Act by failing to register as a CTA
Section 1a(5) of the Act defines a CTA as any person who, for compensation or profit, advises others, either directly or through publications, writings, or electronic media, as to the value of or as to the advisability of trading in any futures contracts or any commodity option.
Gaiber furnished commodity trading advice to Bulls and Bears Club members, including the participants in the TNT commodity pool, as set forth above. He was compensated indirectly, through consulting fees, for advising club members other than those who participated in the TNT commodity pool. Moreover, he directed the trading of TNT's account pursuant to an agreement "for compensation or profit." Accordingly, he acted as a CTA within the meaning of Section 1a(5) of the Act.
Section 4m(1) of the Act makes it unlawful for a CTA unless registered, to make use of the mails or any means or instrumentality of interstate commerce in connection with his business as a commodity trading advisor. Section 4m(1) also provides that a CTA is exempt from registration if, during the course of the preceding twelve months, he has not furnished commodity trading advice to more than fifteen persons and does not hold himself out generally to the public as a commodity trading advisor.
For the twelve month period from January 1997 through December 1997, Gaiber furnished commodity trading advice to more than fifteen Bulls and Bears Club members, on an individual or small group basis and as partners of the TNT general partnership.2 Accordingly, he was required to register, and by failing to do so, he violated Section 4m(1) of the Act.
2. Gaiber violated Regulations 4.31, 4.34 and 4.35 by failing to deliver disclosure documents
Pursuant to Commission Regulations 4.31 and 4.34, every CTA registered or required to be registered under the Act must deliver disclosure documents to prospective clients whose commodity interest trading he intends to direct or guide which set forth, among other information, the risks associated with managed commodity accounts. Pursuant to Commission Regulation 4.35, every CTA registered or required to be registered under the Act must disclose to prospective clients whose commodity interest trading he intends to direct or guide the past performance of all accounts directed by him, or, if the CTA has not previously directed any accounts, he must make a written disclosure that he has not previously directed any accounts.
Gaiber failed to do so, thereby violating Commission Regulations 4.31, 4.34, and 4.35, 17 C.F.R. §§ 4.31, 4.34 and 4.35 (1998).
OFFER OF SETTLEMENT
Gaiber has submitted an Offer of Settlement in which, without admitting or denying the findings herein, he:
1. admits the jurisdiction of the Commission with respect to all matters set forth in this Order;
(a) a hearing;
(b) all post-hearing procedures;
(c) judicial review by any court;
(d) any objection to the staff's participation in the Commission's consideration of the Offer;
(e) any claim of Double Jeopardy based upon the institution of this proceeding or the entry in this proceeding of any order imposing a civil monetary penalty or any other relief; and
(f) all claims which he may possess under the Equal Access to Justice Act, 5 U.S.C. § 504 (1994) and 28 U.S.C. § 2412 (1994), as amended by Pub. L. No. 104-121, §§ 231-232, 110 Stat. 862-863, and Part 148 of the Regulations, 17 C.F.R. §§ 148.1 et seq. (1997), relating to, or arising from this proceeding;
3. stipulates that the record basis on which this Order is entered consists solely of the Complaint, this Order and findings to which he has consented in the Offer, which are incorporated in this Order; and
4. consents to the Commission's issuance of this Order, which makes findings and:
(a) orders Gaiber to cease and desist from violating Section 4m of the Act and Sections 4.31, 4.34 and 4.35 of the Regulations;
(b) prohibits Gaiber, for a period of three years from the date of this Order, from trading for his own account or for any account in which he has a direct or indirect interest on any contract market;
(c) notes the appropriateness of a civil monetary penalty, but waives the assessment of a civil monetary penalty based upon a lack of assets as disclosed in his sworn financial statement; and
(d) orders Gaiber to comply with his undertakings as set forth below.
FINDINGS OF VIOLATIONS
Based on the foregoing, the Commission finds that Gaiber violated Section 4m of the Act and Sections 4.31, 4.34 and 4.35 of the Regulations.
Accordingly, IT IS HEREBY ORDERED THAT:
1. Gaiber shall cease and desist from violating Section 4m of the Act, 7 U.S.C. § 6m (1994), and Sections 4.31, 4.34 and 4.35 of the Regulations, 17 C.F.R. §§ 4.31, 4.34 and 4.35 (1998);
2. The Commission notes the appropriateness of a civil monetary penalty based upon Gaiber's conduct, but waives the assessment of a civil monetary penalty, based on sworn financial statements submitted by Gaiber. Gaiber has submitted a sworn Financial Statement and has provided other evidence regarding his financial condition and has asserted his financial inability to pay a civil monetary penalty and/or restitution. If at any time following the entry of the Order, the Division of Enforcement ("Division") obtains information indicating that Gaiber's representations concerning his financial condition were fraudulent, misleading, inaccurate or incomplete in any material respect at the time they were made, the Division may, at any time following the entry of the Commission's order, petition the Commission to (1) reopen this matter to consider whether Gaiber provided accurate and complete financial information at the time such representations were made; (2) determine the amount of civil monetary penalty to be imposed; and (3) seek any additional remedies that the Commission would be authorized to impose in this proceeding if Gaiber's Offer had not been accepted. No other issues shall be considered in connection with this petition other than whether the financial information provided by Gaiber was fraudulent, misleading, inaccurate or incomplete in any material respect, the amount of civil monetary penalty to be imposed, and whether any additional remedies should be imposed. Gaiber may not, by way of defense to any such petition, contest the validity of, or the findings in, the Order, contest the allegations of the Complaint, or assert that payment of a civil monetary penalty should not be ordered;
3. Gaiber shall be prohibited for three years from the date of this Order from trading for his own account or for any account in which he has a direct or indirect interest, on any contract market, and all contract markets shall refuse Gaiber trading privileges for that period; and
4. Gaiber shall comply with his undertakings:
(a) never to apply for registration with the Commission in any capacity and never to engage in any activity requiring such registration or act as an agent or officer of any person registered or required to be registered with the Commission; and
(b) that he shall not take any action or make any public statement denying, directly or indirectly, any finding in the Order or creating, or tending to create, the impression that the Order is without a factual basis; provided, however, that nothing in this provision affects Gaiber's testimonial obligations, or his right to take contrary factual or legal positions, relating to any proceeding to which the Commission is not a party. Gaiber will undertake all steps necessary to assure that all of his agents and employees understand and comply with this agreement.
BY THE COMMISSION
--------------------------------------------------------- Jean A. Webb Secretary to the Commission Commodity Futures Trading Commission Dated: June 29, 1999 --------------------------------------------------------
1 Gaiber does not consent to the use of his Offer, the findings to which he has consented in his Offer, or this Order, as the sole basis for any other proceeding brought by the Commission other than a proceeding brought to enforce the terms of this Order. Nor does Gaiber consent to the use of the Offer or this Order by any other person or entity in this or any other proceeding. The findings to which Gaiber has consented in the Offer as contained in this Order are not binding on any other person or entity named as a respondent or defendant in this or any other proceeding.
2 In determining whether a CTA meets the "no-more-than-fifteen person test" of the Section 4m(1) registration exemption, where the client is other than a natural person, the Commission's Division of Trading and Markets typically "looks through" the client and counts the individual participants therein. Interpretative Letter No. 96-43, [1994-1996 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,713 at 43,961 n.8 (May 15, 1996); Interpretative Letter No. 95-39, [1994-1996 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,380 at 42,731 n.4 (Dec. 5, 1994).