The Securities and Exchange Commission recently announced an emergency enforcement action against an asset manager who has boasted remarkable investment success throughout the global financial crisis while allegedly exaggerating the value of the assets he manages and concealing major losses from investors.
The SEC alleges that Nikolai Battoo claims to manage $1.5 billion on behalf of investors around the world, including at least $100 million for U.S.-based investors. But contrary to Battoo’s proclaimed track record of exceptional risk-adjusted returns for his investors, he actually suffered major losses in 2008 due to his investments in the Bernard Madoff Ponzi scheme and a failed derivative investment program. Rather than admit the losses to investors, Battoo has been overstating the value of his investments in a variety of ways. By boasting benchmark-beating returns, he has continued to attract new investors. However, during the past several months, investors have requested redemptions on their investments with Battoo. Instead of paying them, Battoo has provided a series of excuses ranging from the MF Global collapse to others placing a hold on investors’ money due to government investigations.
In U.S. District Court for the Northern District of Illinois this week, the SEC sought and obtained a freeze of U.S.-based assets belonging to Battoo and two of his companies – BC Capital Group S.A. based in Panama and BC Capital Group Limited based in Hong Kong – in order to prevent additional harm to U.S. investors. In addition to Battoo and his companies, the SEC has charged Tracy Lee Sunderlage – an unregistered broker-dealer who was banned from the industry in a previous SEC enforcement action – for his involvement with Battoo’s investment program.
“Battoo attracted quite a following of investors by proclaiming his investments withstood the test of the financial crisis, but reality seems to have finally caught up with him,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “Now, Battoo is offering investors one excuse after another for holding their money hostage.”
According to the SEC’s complaint, Battoo’s financial empire is an amorphous syndicate of funds, entities, and affiliates. Battoo manages significant assets for companies that sell investment products to U.S. investors, and has investment proceeds channeled to him by a network of U.S.-based investment advisers. Battoo has created for clients individualized “portfolios” that he manages under a brand name Private International Wealth Management (PIWM). These portfolios consist of holdings in several hedge funds he manages, holdings in other hedge funds, and other investments.
The SEC’s complaint alleges that Battoo pitches himself as a highly successful alternative asset manager with a track record unblemished by the global financial crisis of 2008. Battoo hyped his purported success at a “due diligence conference” that he and Sunderlage sponsored for existing and prospective investors at the Four Seasons Hotel in Las Vegas in January 2009. A promotional material for that conference boasted, “How is it that PIWM-I can produce positive results or significantly reduce market losses when nearly everyone else is losing 35 to 50%?”
According to the SEC’s complaint, Battoo arranged for “asset verifications” in 2009 to reassure clients that their money was safe and secure following the market collapse. The asset verifications, however, contained false and backdated information. For example, they identify investments in at least seven hedge funds that Battoo did not manage. Battoo’s actual investments in these hedge funds amounted to about $9 million while his asset verifications falsely stated the investments to be worth approximately $33 million. Moreover, these asset verifications improperly included backdated investments that also inflated the value of the PIWM portfolios.
The SEC’s complaint alleges that while Battoo claimed success, he actually sustained particularly heavy losses in 2008. First, he was terminated as an investment adviser to the master fund of a large international bank, which terminated him from a “fund linked certificate” program through which Battoo-managed hedge funds collectively invested about $138 million. After Battoo’s termination, the net asset value of the hedge fund managed for the bank plummeted by nearly 50 percent, and Battoo’s losses on the fund linked certificates exceeded $100 million. The other major loss suffered by Battoo’s asset management business later that year flowed from Bernie Madoff’s Ponzi scheme, in which several Battoo-managed hedge funds were heavily invested. However, following Madoff’s arrest, Battoo assured his investors that the Madoff fraud had only a nominal or minimal impact on the portfolios. However, several Battoo-managed portfolios held substantial investments in hedge funds that fed into the Madoff scheme. In fact, Battoo had borrowed money to amplify the size of his Madoff investments. Battoo similarly concealed from investors the losses stemming from the fund linked certificates. Without knowledge of these substantial losses, investors have collectively invested tens of millions of dollars with Battoo since 2009.
According to the SEC’s complaint, once investors increasingly began seeking redemptions late last year, Battoo offered several false explanations for not paying them. Originally, Battoo claimed that the significant exposure of some of his investment portfolios to the MF Global liquidation prevented him from redeeming investments. However, Battoo’s actual exposure to MF Global is only a small fraction of what he has claimed. More recently, Battoo has said that certain counterparties had frozen the assets he manages based on investigations by U.S. government agencies, and that his attorneys were negotiating a “release” with the SEC. Prior to filing this complaint, Battoo’s assets were not frozen and he was not negotiating any release with the SEC.
The SEC alleges that Sunderlage – who was charged and banned from the industry by the SEC for participating in an offering fraud in 1986 (SEC v. Sunderlage, et al., 86 C 6101 (N.D. Ill.)) – received commissions from the sale of investments and also received management fees for acting as the designated investment adviser to numerous client trusts that invested with Battoo. Sunderlage thus acted as an unregistered broker-dealer and investment adviser in violation of his industry bar.
The SEC alleges that Battoo and his companies violated Section 17(a) of the Securities Act of 1933, Sections 10(b) and 15(a)(1) of the Securities Exchange Act of 1934 and Rule 10b-5, and Section 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-8. The SEC alleges that Sunderlage violated Section 15(a)(1) and 15(b)(6)(B)(i) of the Exchange Act and Section 203(f) of the Advisers Act.