CFTC OBTAINS COURT ORDER FOR REPAYMENT OF DEFRAUDED CUSTOMERS IN COMMODITY CONTRACT POOL SCHEME

FROM: U.S. COMMODITY FUTURES TRADING COMMISSION
April 15, 2013

Federal Court in California Orders National Equity Holdings, Inc. and Its Principal, Robert J. Cannone, to Pay over $3.6 Million to Settle Fraud Charges in CFTC Action

Washington, DC - The U.S. Commodity Futures Trading Commission (CFTC) today announced that it obtained a federal court Order against Defendants National Equity Holdings, Inc. (National Equity) and its Principal, Robert J. Cannone, both of Orange County, California, requiring them to pay restitution to defrauded customers in accordance with restitution set in a related criminal action at $1,059,096 (U.S. v. Cannone, SACR 11-263). The Consent Order of Permanent Injunction also imposes civil monetary penalties of $2.8 million on National Equity and $800,000 on Cannone. The Order also imposes permanent trading and registration bans against the Defendants and prohibits them from violating the anti-fraud provisions of the Commodity Exchange Act (CEA), as charged.

The Order, entered on April 11, 2013, by the Honorable James Selna of the U.S. District Court for the Central District of California, stems from a CFTC Complaint filed on November 8, 2011, charging National Equity, Cannone, Francis Franco, and Thomas B. Breen with fraudulent solicitation, misappropriation, and registration violations.

The Order finds that between June 2009 to April 2010, Cannone, by and through National Equity, fraudulently solicited and accepted over $1.4 million to trade commodity futures contracts through a pool. In their solicitations, Cannone, by and through National Equity, (1) falsely claimed to have a successful and experienced trader (Franco) for the pool, (2) misrepresented the likelihood of profits and the risks associated with trading commodity futures, (3) failed to disclose that they were not properly registered with the CFTC to operate a pool, and (4) failed to disclose their intended uses of pool participant funds.

The Order further finds that Cannone and National Equity traded only a portion of the pool participant funds in proprietary accounts and sustained overall and significant losses. Cannone misappropriated the majority of the pool participant funds to make so-called returns to participants in monthly payments that Cannone, through National Equity, claimed were the profitable proceeds of their trading, the Order finds. Cannone also misappropriated pool participant funds for personal use, according to the Order.

Cannone and National Equity concealed their fraud and trading losses from the pool participants by issuing false account statements reflecting profits, the Order finds. A year after commencing their fraudulent scheme, their trading losses and misappropriation had depleted pool participant funds, but at meetings with several pool participants, the Defendants made promises and sometimes gave written guarantees to return the funds invested, according to the Order.

The Order also finds that National Equity failed to register with the CFTC as a Commodity Pool Operator and Cannone failed to register as an Associated Person of National Equity, as required.

The CFTC’s litigation continues against the remaining Defendant Breen. On July 12, 2012, the court entered a permanent injunction Order against Defendant Franco, barring him from further violations of the CEA, as charged, and from engaging in certain commodity-related activities, including trading for others and registration; however, the litigation continues to determine the appropriate amount of a civil monetary penalty to be imposed and the whether a personal trading ban should be imposed on Franco.

In related criminal actions, Cannone, as well as Breen and Franco, pled guilty to criminal violations of the CEA, as amended. Cannone was sentenced to 27 months in federal prison and ordered to pay the $1,059,096 million in restitution jointly with Breen and Franco.

The CFTC thanks the Federal Bureau of Investigation (Orange County Office) and the U.S. Attorney’s Office for the Central District of California (Santa Ana Office) for their assistance.

CFTC Division of Enforcement staff members responsible for this case are Michelle S. Bougas, Heather Johnson, James H. Holl, III, Gretchen L. Lowe, and Vincent McGonagle.

OWNER AND COMPANY ORDERED TO PART WITH $9.3 MILLION IN CFTC ANTI-FRAUD CASE

FROM:  COMMODITY FUTURES TRADING COMMISSION
Federal Court in Texas Orders Robert Mihailovich, Sr. and Growth Capital Management LLC to Pay over $9.3 Million in CFTC Anti-fraud Action
Washington, DC - The U.S. Commodity Futures Trading Commission (CFTC) today announced that it obtained an order of permanent injunction against defendants Robert Mihailovich, Sr. (Mihailovich, Sr.) of Rockwall, Texas, and Growth Capital Management LLC (GCM) requiring Mihailovich, Sr. and GCM to make restitution to defrauded customers, disgorge ill-gotten gains, and pay a civil monetary penalty together, totaling over $9.3 million for fraudulently soliciting over $30 million from customers to trade commodity futures contracts and foreign currency (forex). The order also imposes permanent trading and registration bans against the defendants.

The court’s order, entered on June 26, 2012, arises out of a CFTC complaint filed on July 27, 2010, against Mihailovich, Sr., GCM, and Robert Mihailovich, Jr. (Mihailovich, Jr.), Mihailovich, Sr.’s son. As alleged in the complaint, Mihailovich, Sr. was convicted and incarcerated on federal wire fraud charges, served 27 months, and while on a three-year supervised release, fraudulently solicited and accepted more than $30 million from approximately 93 customers to open managed trading accounts. The complaint also alleged that Mihailovich, Jr., at the time of GCM’s initial registration, failed to disclose Mihailovich, Sr.’s involvement with GCM, and failed to disclose in CFTC registration filings that his father was a controlling principal of GCM.

Previously, the federal court had entered an order of default judgment against GCM on March 15, 2011. The federal court later also entered an order of default judgment against Mihailovich, Sr. on November 22, 2011, as a sanction for discovery violations.

The federal court’s June 26, 2012, order finds that during discovery Mihailovich, Sr. engaged in a pattern of willfulness and bad faith. Mihailovich, Sr. failed to attend a number of court-ordered hearings, repeatedly failed to abide by court orders, failed to communicate with plaintiff CFTC, failed to appear or respond to his scheduled deposition, and failed to respond to written discovery requests, according to the order.

The June 26, 2012 order imposes sanctions against Mihailovich, Sr. and GCM arising out of the prior default judgments against them. The order requires Mihailovich, Sr. and GCM jointly and severally to pay $3,475,112 in restitution, to disgorge $389,006 in ill-gotten gains, and to pay a civil monetary penalty of $5,440,000. The order also permanently prohibits the defendants from violating the Commodity Exchange Act and CFTC regulations, as charged, and from engaging in certain commodity-related activities, including personal trading and applying for registration or claiming exemption from registration with the CFTC.

The CFTC previously obtained a consent order against Mihailovich, Jr., that imposed a $40,000 civil monetary penalty and banned him from seeking registration with the CFTC for 10 years and from engaging in certain commodity-related activities, including trading, for 5 years.  The CFTC thanks the U.S. Attorney’s Office for the Northern District of Texas, the Securities and Exchange Commission’s Fort Worth Regional Office, and the National Futures Association for their assistance.