SEC Obtains Final Judgment Against Defendant Jeffrey Auerbach For Role In Bribery Scheme

On February 5, 2024, the Securities and Exchange Commission obtained a final judgment against defendant Jeffrey Auerbach, whom the SEC previously charged for his role in a fraudulent scheme to bribe a stockbroker to buy a company’s stock in his customers’ accounts without the customers’ knowledge.

Case Summary

The Securities and Exchange Commission ("Commission") presents this Complaint against Defendants Jeffrey Auerbach ("Auerbach"), Jared Mitchell ("Mitchell"), and Richard Brown ("Brown") (referred to collectively as "Defendants") with the following allegations:

Between July 2014 and October 2015 (the “Relevant Period”), Auerbach, a former registered representative (i.e., a stockbroker) and purported investor-relations professional; Mitchell, a purported investor-relations professional with a prior securities fraud conviction; Richard Brown, a then-registered stockbroker; and Gino M. Pereira (“Pereira”), the then-CEO of Nxt-ID, Inc. (“NXTD”), a company specializing in security technology with publicly traded common stock on the Nasdaq Capital Market, allegedly defrauded investors through a stockbroker bribery scheme.

During the Relevant Period, Pereira arranged for NXTD to enter into what were purportedly “consulting agreements” with investor-relations firms owned by Auerbach and Mitchell. These agreements served as a facade for funneling bribes to Brown. Pereira transferred funds from NXTD's bank account to the firms’ accounts, disguising the transfers as payments for legitimate investor-relations services. However, Pereira, Mitchell, and Auerbach allegedly knew that some of these funds would be used to bribe Brown into purchasing NXTD stock in his client’s accounts.

In total, Pereira sent Mitchell and Auerbach at least $136,000, and they paid Brown at least $20,000 in cash bribes. In return, Brown recommended and purchased over $750,000 worth of NXTD common stock in his clients’ accounts without disclosing the bribes.

Violations

Based on the aforementioned conduct, Defendants are accused of violating Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rules 10b-5(a) and (c) thereunder.

If not restrained, Defendants may continue engaging in similar acts, practices, transactions, or courses of business detailed in this Complaint.

Nature Of The Proceedings And The Relief Requested

The Commission brings this action under the authority of Section 21(d) of the Exchange Act.

The Commission seeks a final judgment: (a) permanently enjoining each defendant from engaging in the alleged acts, practices, and courses of business and from committing future violations of the federal securities laws; (b) ordering Defendants to disgorge any ill-gotten gains resulting from the alleged violations and pay prejudgment interest; (c) imposing civil money penalties on Defendants pursuant to Section 21(d)(3) of the Exchange Act; (d) permanently prohibiting Mitchell and Brown from participating in any penny stock offerings under Section 21(d)(6) of the Exchange Act; and (e) granting any other relief the Court deems appropriate.

Defendants

1. Auerbach

Auerbach, aged 49 and residing in New York, purportedly provided investor-relations services to NXTD during the Relevant Period through two entities: Excelsior Global Advisors (“Excelsior”), in which both he and Mitchell were principals, and World Wide Holdings LLC, where he was the sole principal. Auerbach was a registered representative from approximately September 1993 to November 2013, facing scrutiny by the Financial Industry Regulatory Authority (“FINRA”) in 2015 for undisclosed private securities transactions, resulting in a $15,000 fine and a 90-day suspension. He also faced multiple customer complaints during his tenure.

2. Mitchell

Mitchell, aged 37 and recently incarcerated in Pennsylvania, purportedly provided investor-relations services to NXTD both before and during the Relevant Period through Excelsior and Mitchell & Sullivan Holdings, LLC (“M&S Holdings”). He faced legal action from both the Commission and a grand jury in 2016 for involvement in a fraudulent broker bribery scheme related to ForceField Energy Inc.

3. Brown

Brown, aged 40 and residing in North Bellmore, New York, was a registered representative during the Relevant Period at a Staten Island-based broker-dealer. He faced numerous customer complaints and legal actions in 2016, including suits by both the Commission and a grand jury.

Facts Of The Case

1. Forcefield Energy Inc. Charges

On May 13, 2016, the Commission filed a civil action against Mitchell, Brown, and others for a broker bribery scheme involving ForceField Energy Inc. The same day, Mitchell and Brown were arrested and indicted by a grand jury, leading to Mitchell's guilty plea and a final judgment in the Commission’s action.

2. Auerbach And Mitchell’s Role In The Bribery Scheme

During the Relevant Period, Pereira engaged firms run by Auerbach and/or Mitchell to provide investor-relations services to NXTD, intending for them to use part of their fees to bribe Brown into buying NXTD stock in his clients’ accounts.

In total, Pereira sent Mitchell and Auerbach at least $136,000, resulting in Brown purchasing over $750,000 worth of NXTD stock in his clients’ accounts. This caused substantial losses to Brown’s clients, who were unaware of the bribery scheme.

Auerbach, Mitchell, and Pereira used encrypted messaging to conceal their communications regarding the scheme.

From July to November 2014, Pereira paid Mitchell around $74,000, part of which was used to bribe Brown into buying NXTD stock.

In January 2015, Pereira began paying Auerbach and Mitchell, totaling over $62,000, to bribe Brown into purchasing more NXTD stock.

Auerbach paid Brown $5,000 in cash from the proceeds of pawning a Rolex watch, while Mitchell facilitated payments to Auerbach and himself for their roles in arranging the bribes.

Between January and October 2015, Pereira wired Excelsior over $62,000, part of which was used to bribe Brown into buying NXTD stock.

Brown purchased over 107,000 additional shares of NXTD stock for his clients during this period without disclosing the bribes.

Claim For Relief

Defendants allegedly employed fraudulent schemes and engaged in deceitful acts in connection with the purchase or sale of securities, violating Section 10(b) of the Exchange Act and Rules 10b-5(a) and (c).

Relief Sought By The SEC

The Commission requests the Court to issue a Final Judgment:

I. Permanently enjoining Defendants from violating Section 10(b) of the Exchange Act and Rules 10b-5(a) and (c);

II. Ordering Defendants to disgorge ill-gotten gains with interest, and

III. Imposing civil monetary penalties.

IV. Permanently enjoining Mitchell and Brown from particpitaing in any offering of penny stock under Section 21(d)(6) of the Exchange Act.

Final Judgment

Auerbach, without admitting or denying the SEC’s allegations, agreed to a final judgment that permanently enjoins him from violating the antifraud provisions of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.

The judgment mandates disgorgement of $3,000.00, representing Auerbach’s ill-gotten gains from the conduct cited in the SEC’s complaint, plus prejudgment interest of $5,846.

However, this obligation is considered fulfilled by the restitution order imposed on Auerbach in the parallel criminal case, United States v. Auerbach, 19 Cr. 607 (E.D.N.Y.), which addresses the same conduct. No civil penalties are imposed due to Auerbach’s conviction and sentence in the criminal case.

Key Takeaways For Investors

Here are the key takeaways for investors from this case:

1. Transparency and Compliance

Investors should prioritize transparency and compliance when dealing with securities transactions. Any suspicion of fraudulent activities should be reported and investigated promptly.

2. Legal Ramifications

The case highlights the legal consequences individuals face for violating securities laws. In this instance, the defendant faced both civil and criminal actions for their involvement in fraudulent schemes.

3. Importance of Due Diligence

Investors should conduct thorough due diligence before engaging in any investment opportunity. Understanding the backgrounds and histories of individuals and companies involved can help mitigate risks associated with fraudulent activities.

4. Regulatory Oversight

The case underscores the role of regulatory bodies like the Securities and Exchange Commission (SEC) in enforcing securities laws and protecting investors. Investors should stay informed about regulatory updates and actions to safeguard their investments.

Risk Management: Implementing robust risk management strategies is essential for investors to protect their portfolios from potential losses resulting from fraudulent activities or market manipulation.

5. Legal Precedents

This case sets legal precedents regarding enforcement actions and penalties for securities fraud. Investors can learn from these precedents to better assess and navigate similar situations in the future.

Gayatri GuptaMay 6, 2024

Nasdaq Compliance

The Nasdaq Stock Market features three tiers of listed companies, namely: (1) The Nasdaq Global Select Market, (2) The Nasdaq Global Market, and (3) The Nasdaq Capital Market. These tiers are characterized by progressively stringent listing requirements, with the Nasdaq Global Select Market setting the highest standards for initial listings and the Nasdaq Capital Market serving as the entry-level tier, particularly suitable for most small-cap issuers.

To list securities on Nasdaq, a company must fulfill minimum listing requirements, encompassing defined criteria related to financial performance, liquidity, and corporate governance. Nasdaq retains extensive discretion in the listing process and reserves the right to reject an application, even if the technical prerequisites are satisfied, if it deems such denial essential to safeguard the interests of investors and the public.

After securing a listing on Nasdaq, a company is obligated to adhere to ongoing listing standards. To initiate the listing process, a company seeking inclusion on Nasdaq must diligently complete and submit a comprehensive listing application to Nasdaq. This application should include specific documents and information as outlined by Nasdaq's requirements.

Typically, the application process spans a duration of four to six weeks. Once the application is submitted, a Nasdaq analyst is designated as the primary liaison with the company. Within two to three weeks of submission, the company can expect to receive an initial comment letter. The comment and review process persists until a decision is reached on the approval or denial of the application. Similar to filing with the SEC, a meticulously prepared Nasdaq application tends to attract fewer comments and facilitates a more streamlined process. Generally, the company's securities counsel assumes a leading role, serving as the primary contact for preparing the application and engaging in communication with Nasdaq.

Similarly to the SEC review process, Nasdaq conducts a thorough examination of publicly accessible information pertaining to a company. This encompasses, but is not limited to, SEC filings, the company's website, management communications and speeches, as well as press releases. The iterative nature of the review process typically doesn't necessitate a formal protocol, and communication is commonly facilitated through email correspondence and phone calls.

Listing Criteria For Nasdaq
For a company to list its securities on Nasdaq, it must satisfy the following criteria:

Specific Initial Requirements:
- Quantitative Standards: Meeting defined thresholds for both quantitative and qualitative factors.
- Qualitative Standards: Fulfilling certain qualitative benchmarks.
Continuing Requirements:
- Quantitative Criteria: Adhering to ongoing quantitative benchmarks.
- Qualitative Criteria: Maintaining specified qualitative standards.

The initial quantitative thresholds are typically set at a higher level than those required for continued listing. This distinction aims to ensure that companies achieve a sufficient level of maturity before being listed. Additionally, Nasdaq imposes rigorous corporate governance standards that listed companies must adhere to throughout their tenure on the exchange.

Before formally submitting a comprehensive listing application, a company has the option to pursue a preliminary listing eligibility review. In this stage, the Listing Qualifications Staff conducts a thorough examination of the company's public filings to assess its compliance with numerical listing requirements. Additionally, the team evaluates the company's adherence to corporate governance requirements outlined in the Marketplace Rules ("Rules"). This preliminary review provides valuable insights into the company's eligibility for listing on Nasdaq before committing to the full application process.

Upon completion of the preliminary review, the Listing Qualifications Staff will make an assessment regarding whether the company meets the numerical listing criteria. Additionally, any corporate governance or regulatory concerns raised during this phase will be considered to determine their impact on the listing approval. It's important to note that while the preliminary review provides insights, final approval necessitates the submission of a formal listing application. This application undergoes a thorough examination by the NASDAQ Listing Qualifications Staff. Furthermore, the final approval process involves satisfactory compliance with specific qualitative reviews. This includes an examination of the regulatory history of the company's officers, directors, and significant shareholders. Meeting these criteria is integral to obtaining the final approval for listing on Nasdaq.

Financial And Liquidity Requirements

    Requirements

    Equity Standard
    Market Value of Listed Standard
    Net Income Standard

    Listing Rules

    5505(a)
and
5505(b)(1)
    5505(a)
and
5505(b)(2)
    5505(a)
and
5505(b)(3)
    
    Stockholders Equity

    	$5 million
    	$4 million
    	$4 million
    
    The market value of publicly held shares

    $15 million
    $15 million
    $
      5 million
    
    Operating History

    	Two years
    N/A
    N/A
    
    The market value of listed securities

    N/A
    $50 million
    N/A
    
    Net income from continuing operations (in the latest fiscal
a year or in two of the last three
fiscal years)

    N/A
    N/A
    $750,000
    
    Publicly held shares

    	1 million
    	1 million
    	1 million
    
    Bid Price

    	$4
    	$4
    	$4)
    
    Closing Price

    	$3
    	$2
    	$43
    
    Corporate Governance

    Yes
    Yes
    Yes
    
    Total Shareholders

    300
    300
    300

Corporate Governance Requirements

Across all three tiers of the Nasdaq Stock Market, corporate governance requirements remain largely consistent. The categories encompassing corporate governance standards include:

Distribution of Annual or Interim Reports
Independent Directors
Audit Committee
Compensation Committee
Nomination of Directors
Code of Conduct
Annual Meetings
Solicitation of Proxies
Quorum
Conflict of Interest
Shareholder Approval
Voting Rights

These governance elements play a crucial role in ensuring transparency, accountability, and ethical conduct within listed companies, irrespective of the specific tier within the Nasdaq Stock Market.

Companies seeking listing on Nasdaq must adhere to specific corporate governance standards, including the following:

Compensation Committee with Independent Directors:
- The company is required to establish a compensation committee comprised of independent directors.
- The committee must consist of at least two members.
- Rule 5605(d)(2)(A) introduces an additional independence test for compensation committee members.
Responsibility for Executive Compensation:
- The compensation committee is tasked with determining or recommending to the entire board the compensation of the chief executive officer (CEO) and all other executive officers.

These standards are designed to ensure a level of independence and scrutiny in the decision-making processes related to executive compensation within the company.

The Application And Documents

The Nasdaq application package encompasses several key components:

Symbol Reservation Form:
- Used to request the reservation of a specific trading symbol for the company.
Listing Application:
- Requires supplemental documents and details about the company's financials, operations, and other pertinent information.
Listing Agreement:
- A formal agreement outlining the terms and conditions of the listing on Nasdaq.
Corporate Governance Certification:
- A certification affirming the company's commitment to meeting Nasdaq's corporate governance standards.
Initial Application Fee:
- Payable via check or wire transfer, this fee is a prerequisite for initiating the listing process.
Logo Submission Form:
- Used for submitting the company's logo for use in Nasdaq's materials.

These application forms are completed through the Nasdaq website listing center, utilizing the online platform to facilitate the submission of supplemental and supporting documents. It is advisable to thoroughly review all required paperwork in advance, ensuring that the necessary information is readily available before initiating the application process.

Symbol Reservation Form

The symbol reservation form is a concise, one-page electronic form where applicants input information for Nasdaq's consideration. Nasdaq symbols, limited to 1-5 characters, adhere to guidelines established by the Intermarket Symbols Reservation Authority (ISRA). The ISRA system is designed to organize symbols efficiently, prevent duplication, and reduce programming and operational complexities. The ISRA operates within the framework of the NMS Symbology Plan, a plan utilized by Nasdaq.

Key details about the symbol reservation process:

Symbol Choices:
- The form allows applicants to propose three symbol choices in order of preference.
- While Nasdaq generally honors the first choice if available, it retains the authority to assign, rescind, or reassign a trading symbol at its discretion.
ISRA and Nasdaq Authority:
- The ISRA and Nasdaq have overarching authority in managing the assignment of symbols.
Additional Information:
- The form captures essential details about the issuer and the planned public offering.
- Information may include the name of the attorney, lead underwriter (if applicable), CEO and CFO names, yearly revenues, company website, and the sector in which the company operates.

Completion of this symbol reservation form initiates the process of securing a trading symbol on Nasdaq, and it's essential to provide accurate and comprehensive information to facilitate this stage of the listing application.

The Application

The Nasdaq listing application process is comprehensive and varies based on the circumstances surrounding the listing sought. There are twelve distinct listing applications catering to different situations, including changes of control, switches from other exchanges or markets, spin-offs, and initial public offerings (IPOs). Each application, spanning approximately seven pages, collects detailed information about the company, covering areas such as address, contact and billing details, securities attorney and auditor information, transfer agent particulars, and the company's officers and directors. Specific information on the company's securities, including type, par value, and cusip number, is also required.

Furthermore, the application mandates disclosure of legal proceedings involving the company, its officers or directors, or significant shareholders over the past ten years. This encompasses inquiries, investigations, lawsuits, litigation, arbitrations, and other legal and administrative proceedings. Documents supporting the backup and final disposition of these matters must be provided.

Regarding private offerings within the prior six months, including bridge financings, shelf registrations, and Regulation S offerings, the company is required to disclose such activities. Additionally, the application delves into the company's background, posing questions to ensure compliance with seasoning rules.

While Nasdaq retains the right to request relevant supporting documents, specific documents are mandatory based on the application type. For an uplisting from an existing U.S. market, the application must include letters from three market makers confirming their commitment to making a market in the subject securities. Other required documents include a listing agreement, a logo submission form, a corporate governance certification form, regulatory correspondence over the past 12 months, and shareholder confirmation documents. Nasdaq often seeks confirmation from the company's transfer agent regarding the eligibility of the security for the direct registration program (DRS).

During the review of an up listing application, Nasdaq may request additional information, such as a Broadridge share range analysis and NOBO list, a certified shareholder list, details about mitigating any going concerns or opinions, income statement and/or balance sheet projections for the next 12 months, and confirmation of Sarbanes Oxley Section 302 and 906 certifications by the company, among other inquiries related to compliance and financial matters.

The Listing Agreement

The Listing Agreement is a concise document, spanning two pages, serving as a formal affirmation of the company's commitment to adhere to all rules and regulations set forth by the Nasdaq Stock Market. It includes provisions for indemnifying and holding Nasdaq harmless from liability. Notable points in the agreement include:

Compliance Assurance:
- The company explicitly agrees to comply with all rules and regulations stipulated by the Nasdaq Stock Market.
Indemnification Clause:
- The company indemnifies Nasdaq, meaning it undertakes to compensate or reimburse Nasdaq for any losses or damages incurred. This includes harm resulting from third-party trademark infringement claims related to the company's symbol and logo, as well as Nasdaq's use of the same.
Disclaimer of Warranty and Liability:
- The agreement contains a disclaimer of warranty and liability against Nasdaq for trading issues, with the exception of those resulting from gross negligence or willful misconduct.

This agreement establishes a clear framework for the relationship between the listed company and Nasdaq, emphasizing the company's commitment to regulatory compliance while providing indemnification for certain specified matters and delineating the scope of Nasdaq's liability.

Corporate Governance Certification Form

The corporate governance certification form certifies compliance with the governance requirements related to an audit committee, director nomination process, compensation committee, board composition, executive sessions, quorum, and codes of conduct. Where an exemption applies, the form requires specification of the exemption terms. The document specifies the different rules and exceptions in a check-the-box format.

Logo Submission Form

The logo submission form contains the guidelines for the logo and affirms Nasdaq’s rights to use the same. Nasdaq uses company logos in its marketing materials, on the MarketSite Video Wall and Tower, and websites.

Fees

Entry fees are based upon the aggregate number of shares to be listed at the time of initial listing, regardless of class, with a maximum cap of $75,000. Fees are assessed on the entry date in The Nasdaq Capital Market, except for $5,000, representing a non-refundable application fee. This fee must be submitted with the company’s application.

Nasdaq does not charge application or entry fees for any securities transferred from a national securities exchange.

Benefits Of Trading On An Exchange

There are many benefits to trading on an exchange instead of the OTC Markets. The most significant benefits to a business are the ability to attract analyst coverage and institutional investors and the corresponding increase in liquidity that comes with both. Stocks that trade on Nasdaq tend to have a lower bid/offer spread — again encouraging trading volume and liquidity. Exchange-traded securities are exempt from the penny stock definition, allowing more market maker and broker-dealer participation. As further explained below, a broker-dealer cannot recommend a penny stock transaction to its retail clients. Therefore, no analysts, financial advisors, or institutional investors make recommendations for purchases of penny stocks.

As an aside, this is one of the reasons that OTC Markets created the OTCQX market tier, which does not list penny stocks. It is also why the small-cap industry is pushing for a supported valid venture exchange (for further reading.

In today’s world, depositing stock and/or trade-in non-exchange traded securities is increasingly difficult. Despite the congressional efforts and SEC rulemaking in support of small-cap capital formation (for example, the JOBS Act, including the emerging growth company regulations, new Regulation A+ and Title III Crowdfunding and the new FAST Act), through enforcement and investigative proceedings, both the SEC and FINRA continue to apply pressure on broker-dealers, clearing firms and transfer agents to reduce the secondary trading and free flow of penny stocks. For more information on difficulties in depositing stocks.

Further On Penny Stocks

NASDAQ and NYSE MKT traded securities are exempted from the definition of a “penny stock” due to the initial and ongoing listing standards. Penny stock rules focus on broker-dealers’ activity in effectuating trades in penny stocks. The Securities Enforcement Remedies and Penny Stock Reform Act of 1990 (the “Penny Stock Act”) prohibits broker-dealers from effecting transactions in penny stocks unless they comply with the requirements of Section 15(h) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The rules promulgated thereunder, particularly Exchange Act rules 15g-1 through 15g-100 (the “penny stock rules”).

Section 15(h) of the Exchange Act provides that no broker or dealer may effectuate a customer’s purchase or sale of any penny stock unless such broker or dealer.

Approves the customer for the specific penny stock transaction and receives a written agreement to the transaction from the customer.
Furnishes the customer a risk disclosure document describing the risks of investing in penny stocks.
Discloses to the customer the current market quotation, if any, for the penny stock, including the bid and ask prices and the number of shares that apply to such bid and ask prices.
Discloses to the customer the amount of compensation the firm and its broker will receive for the trade.

In addition, after executing the sale, a broker-dealer must send its customer monthly account statements showing the market value of each penny stock held in the customer’s account.

Moreover, brokers and dealers subject to the penny stock rules are subject to additional disclosure requirements outlined in Rules 15g-2 through 15g-9. For my information on penny stocks and the rules affecting broker-dealer activity.

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