More On Legal & Compliancefrom The Advisor's Professional Library
- Updating Form ADV and Form U4 When it comes to disclosure on Form ADV, RIAs should assume information would be material to investors. When in doubt, RIAs should disclose information rather than arguing later with securities regulators that it was not material.
- Dealings With Qualified Clients and Accredited Investors Depending upon an RIAs business model and investment strategies, it may be important to identify “qualified clients” and “accredited investors.” The Dodd-Frank Act authorized the SEC to change which clients are defined by those terms.
The Securities and Exchange Commission on Thursday announced enforcement actions against a pair of brokers, an investment advisory firm, and several others involved in a variable annuities scheme to profit from the imminent deaths of terminally ill patients in nursing homes and hospice care.
The SEC Enforcement Division alleges that Michael A. Horowitz, a broker who lives in Los Angeles, developed an illicit strategy to exploit VAs’ death benefits by recruiting others to help him obtain personal health and identifying information of terminally ill patients in Southern California and Chicago.
Anticipating they would soon die, Horowitz sold variable annuities contracts with death benefits and bonus credit features to wealthy investors, and he designated the patients as annuitants whose death would trigger a benefit payout. “Horowitz marketed these annuities as opportunities for investors to reap short-term investment gains. When the annuitants died, the investors collected death benefit payouts,” the SEC says.
“This was a calculated fraud exploiting terminally ill patients,” said Julie Riewe, co-chief of the SEC Enforcement Division’s Asset Management Unit, in a statement. “Michael Horowitz and others stole their most private information for personal monetary gain.”
The Division alleges that Horowitz enlisted another broker, Moshe Marc Cohen, of Brooklyn, N.Y., and they each deceived their own brokerage firms to obtain the approvals they needed to sell the annuities.
Both falsified various broker-dealer forms used by firms to conduct investment suitability reviews. “As a result of the fraudulent practices used in the scheme, some insurance companies unwittingly issued variable annuities that they would not otherwise have sold,” the SEC states. Horowitz and Cohen, meanwhile, generated more than $1 million in sales commissions.
The SEC states that, after selling millions of dollars in variable annuities to individual investors, Horowitz still wanted to generate greater capital into the scheme and began pitching it to institutional investors.
According to the SEC, a pooled investment vehicle and its advisor BDL Manager LLC were created in late 2007 in order to facilitate institutional investment in variable annuities through the use of nominees. Commodities trader Howard Feder, who lives in Woodmere, N.Y., became each firm’s sole principal. Feder and BDL Manager fraudulently secured broker-dealer approvals of more than $56 million in annuities sold through Horowitz’s scheme.
“Feder furnished the brokers with blank forms signed by the nominees enabling the brokers to complete the forms with false statements indicating that the nominees did not intend to access their investments for many years,” the SEC says. “Feder understood that the purpose of Horowitz’s scheme was to designate terminally ill patients as annuitants in the expectation that their deaths would result in short-term lucrative payouts.”
BDL Group received more than $1.5 million in proceeds from its investment in the annuities.
Agreeing to settle the SEC’s charges are four non-brokers and a New York-based investment advisory firm recruited into the scheme. Also agreeing to settlements are two other brokers who are charged with causing books-and-records violations related to annuities sold through the scheme. A combined total of more than $4.5 million will be paid in the settlements.
The SEC’s litigation continues against Horowitz and Cohen.
Check out SEC: Banker Made Insider Trades in Accounts of Ex-Wife, Father to Pay Child Support on ThinkAdvisor.