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Regulation and Compliance > Federal Regulation > SEC

SEC Commissioners Rail Against Oppenheimer & Co. Waiver

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Two commissioners at the Securities and Exchange Commission are railing against the agency’s decision to waive sanctions against Oppenheimer & Co. following the New York-based broker-dealer’s recent $20 million fine for penny stock and anti-money laundering violations.

Oppenheimer & Co. Inc. submitted a letter dated Dec. 10, requesting that the SEC grant a waiver of the “bad actor” disqualification under Rule 506 of Regulation D under the Securities Act of 1933. The SEC granted the request on Jan. 27, the same day Oppenheimer agreed to pay the $20 million fine — $10 million to the SEC and $10 million to the Treasury Department’s Financial Crimes Enforcement Network.

Oppenheimer & Co. is not affiliated with OppenheimerFunds.

In a Wednesday dissent, SEC Commissioners Luis Aguilar and Kara Stein argued that in granting the waiver, the Commission has turned a “blind eye to this firm’s repeated violations,” and that the SEC’s waiver departs from the Commission’s “long-established standard criteria.”

Rep. Maxine Waters, D-Calif., ranking member on the House Financial Services Committee, said in a Wednesday statement that she was “deeply disappointed” by the SEC’s decision to grant Oppenheimer & Co. a “full waiver of sanctions” after Oppenheimer admitted “serious violations” of the securities laws, and considering the firm’s “extensive recidivist history.”

Investors and the American public, Waters said, “are greatly disserved when our regulators throw away valuable enforcement tools and adopt a policy of ‘too-big-to-bar’”.

Oppenheimer & Co.’s “’bad actor’ disqualification was triggered by the firm’s egregious misconduct,” Aguilar and Stein state in their dissent.

The two commissioners argue that “the nature and extent of the violations that triggered [Oppenheimer’s] automatic disqualification, as well as the other violations involved, are significant,” because the firm “knowingly executed sales of billions of shares of penny stocks on behalf of a customer, even though its personnel recognized that these transactions were likely unregistered, and therefore unlawful.”

Also, the firm “failed to stop another customer, a Bahamian entity, from engaging in suspicious sales of billions of shares of penny stocks, despite red flags that these transactions were also unregistered.”

The firm also violated anti-money laundering laws, “knowing or having reason to suspect that this Bahamian entity was using its account to evade the payment of U.S. taxes. The firm also failed to withhold taxes owed by U.S. citizens,” Aguilar and Stein say.

What’s more, the two commissioners argue that the firm permitted the Bahamian entity to act as an “unregistered broker, knowingly allowing the entity to execute trades for its clients through Oppenheimer accounts.”

These violations, the two commissioners state, “are just the most recent chapter in a long and unfortunate history of regulatory failures, some more significant than others, but cumulatively indicative of a wholly failed compliance culture.”

Since 2005, there have been at least 30 separate regulatory actions against Oppenheimer for numerous violations of securities laws and rules, they said.

Said Aguilar and Stein: “It is difficult to conceive of a better justification for the bad actor disqualification under Rule 506, or a better reason to act with great care and caution in analyzing whether ‘good cause’ may exist to waive this automatic disqualification. In fact, it is questionable whether a waiver is appropriate at all in these particular circumstances.”


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