South Florida Arbitration & Litigation Lawyer Blog
Income Note LLC. Fraud, Misrepresentation and Negligent Supervision FINRA Arbitration and Litigation Attorney, Russell L. Forkey, Esq.
December, 2011:
Timothy Michael McGinn (CRD #813935, Registered Principal, Schenectady, New York) and David Lee Smith (CRD #427284, Registered Principal, Saratoga Springs, New York) were barred from association with any FINRA member in any capacity. The sanctions were based on findings that Smith misused investor funds when he sold approximately $89 million in income notes issued by four limited liability companies (Income Note LLCs) he controlled. Smith told the investors that the Income Note LLCs would place their funds in a broad array of public and private investments. Contrary to Smith’s representations, he diverted most of the invested funds for the benefit of business entities that he and McGinn owned or in which they had a financial interest. Smith also loaned approximately $590,000 of funds directly to himself. The findings also stated that Smith made misrepresentations and omissions of material facts relating to the Income Note LLCs when he recommended to investors that they participate in the private offerings and purchase the income notes. In addition to falsely representing that the Income Note LLCs would place their funds in private and public investments, Smith stated that the member firm would charge an annual 2 percent commission or fee. In actuality, the proceeds of the investments were diverted to entities McGinn and Smith owned, which were illiquid and in poor financial condition with little or no revenues, and the firm charged recurring annual commissions or fees amounting to approximately 8 percent of the investors’ purchases. Smith failed to inform investors that the Income Note LLCs would invest in, and make loans to, entities in which he and McGinn maintained a financial interest, and that the majority of the funds would be invested in illiquid, non-public companies. The findings also included that Smith directed the sales efforts by which customers purchased the Income Note LLCs. The notes were not registered with the SEC and were not eligible for exemption from registration, but the offerings falsely claimed to be exempt from the registration requirement pursuant to Rule 506 of the Securities Act of 1933, Regulation D.
FINRA found that Smith sent letters to income note investors containing material misrepresentations and omissions concerning their investments. One letter informed certain Income Note LLCs holders that their annual interest rates of return would be reduced because of market conditions, and Smith falsely represented that the firm would suspend further collection of fees from the Income Note LLCs but it continued to collect them, totaling approximately $6.7 million. Another letter informed all Income Note LLC holders that they would be unable to redeem notes on a particular day because of conditions in financial credit markets and the resultant liquidity crises. Smith also falsely represented that the firm would forfeit all annual fees and commissions in order to improve the liquidity of the Income Note LLCs, but it continued to charge fees and commissions. In both letters, Smith failed to disclose to the note holders that the poor financial condition of the Income Note LLCs was caused in part by his decision to lend or invest most of the investors’ funds in illiquid entities that he and McGinn owned and controlled, had few or no revenues, and were in financial distress. FINRA also found that the firm, through Smith, failed to establish and maintain a supervisory system, and failed to establish, maintain and enforce WSPs reasonably designed to achieve compliance with the applicable FINRA rules and securities laws related to suitability, disclosure and verification of investor accreditation status. For approximately five years, the firm’s principal source of revenues was from private placements, including the Income Note LLCs. The subscription contracts potential investors submitted in income note offerings were inadequate because they did not contain information about the investors’ liquid net worth, but the firm relied on them to review and approve individual investments; many investor documents were incomplete, and many were altered after they were submitted by the investors to make it appear that the investors had a higher net worth and qualified as accredited investors. The firm did not have, and Smith did not implement, procedures for reviewing customer documents reasonably designed to allow the firm to identify any potential alterations and to take appropriate action, and did not have a procedure for spot-checking customer documents and contacting customers directly to ascertain if the documents were accurate. Despite the fact that the PPM for the income notes and subscription agreements provided that only accredited investors would be eligible to invest, Smith approved and accepted investments from approximately 250 non-accredited investors. FINRA found that McGinn and Smith provided false documents to FINRA in response to requests for information relating to loans from certain business entities they controlled. McGinn and Smith submitted copies of promissory notes relating to the loans, dated to appear that they had been previously signed; each note contained a certification attesting that it had been executed and delivered on the date specified. The certifications were false, as McGinn, Smith and a registered representative actually prepared, dated and signed the notes after the FINRA request for documents. (FINRA Case #2009017984501).