May 22, 2009
2008 SEC Government-Business Forum on Small Business Capital Formation Available
The SEC posted on its website its 2008 Annual SEC Government-Business Forum on Small Business Capital Formation.
SEC & Labor Dept. Solicit Requests to Participat in Target Date Funds Hearing
The SEC and the Department of Labor announced today that they are accepting requests to participate in a joint hearing on June 18 examining target date funds. Target date funds and other similar investment options are investment products that allocate their investments among various asset classes and automatically shift that allocation to more conservative investments as a “target” date approaches. This shift in asset allocation, often referred to as a fund’s “glide path,” may differ significantly among funds with the same target date.
Discussion topics at the joint hearing will include issues related to how target date fund managers determine asset allocations and changes to asset allocations (including glide paths) over the course of a fund’s operation; how they select and monitor underlying investments; how the foregoing and related risks are disclosed to investors; and the approaches or factors for comparing and evaluating target date funds.
The Commission requests persons interested in presenting testimony and answering questions at this public hearing to submit a written request to participate along with an outline of topics to be discussed. The information that is submitted will become part of the public record of the joint hearing.
SEC Takes Steps to Strengthen Its Internal Compliance Program
Following the announcement that the federal prosecutor was looking into allegations that SEC attorneys may have engaged in impermissible insider trading, SEC Chairman Mary Schapiro outlined a series of measures the agency is taking to strengthen its internal compliance program to guard against inappropriate employee securities trading.
The measures the agency is taking include:
First, the staff has drafted a set of new internal rules governing securities transactions for all SEC employees that will require preclearance of all trades. It also will, for the first time, prohibit staff trading in the securities of companies under SEC investigation regardless of whether the employee has personal knowledge of the investigation. The rules have been submitted to the federal government’s Office of Government Ethics, which approves agency ethics rules.
Second, the SEC is contracting with an outside firm to develop a computer compliance system to track, audit and oversee employee securities transactions and financial disclosure in real time.
Third, Chairman Schapiro has signed an order consolidating responsibility for oversight of employee securities transactions and financial disclosure reporting within the Ethics Office. She has also authorized the hiring of a new chief compliance officer.
May 21, 2009
Schapiro Responds to Proposal for New Consumer Agency
As expected, the SEC will not easily give up any of its regulatory authority. SEC Chairman Schapiro responded to reports that the Obama administration was considering a new regulatory commission that would focus on financial products to consumers, including credit cards, mortgages and mutual funds. She thinks the SEC should continue to regulate mutual funds. But, as the Washington Post reports today, this proposal is gaining traction and is a welcome sign that regulatory reforms may yet address the needs of consumers. WPost, As U.S. Weighs New Consumer Agency, SEC Stakes Out Regulatory Turf.
SEC Official Testifies on Municipal Finance Reform
Martha Mahan Haines, Assistant Director, Division of Trading and Markets, SEC, gave Testimony Concerning Legislative Proposals to Improve the Efficiency and Oversight of Municipal Finance before the U.S. House of Representatives Committee on Financial Services on May 21, 2009.
SEC Trading & Markets Division Co-Acting Director Speaks on Market Structure
James A. Brigagliano, Co-Acting Director, Division of Trading and Markets, SEC, gave the Keynote Address to the 2009 SIFMA Market Structure Conference on May 20.
SEC Charges Brokers with Unauthorized Trading in Customers' Accounts
On May 19, 2009, the SEC filed a complaint alleging that Guillermo David Clamens, FTC Capital Markets, Inc., a registered broker-dealer he controls, ("FTC"), and Lina Lopez, an FTC employee, engaged in a fraudulent scheme to engage in tens of millions of dollars of unauthorized securities trading through the accounts of two FTC customers. Clamens and Lopez defrauded FTC's customers in part to conceal their prior fraudulent sale of $50 million in non-existent notes to a Venezuelan bank through another Clamens-controlled entity, Emerging Markets. When the fictitious notes held by the Venezuelan bank purportedly came due in August 2008, Clamens misappropriated $50 million from FTC's customers to fund the redemption. In addition, the Complaint alleges that Emerging Markets is an unregistered broker-dealer.
As a result of this conduct, the Complaint alleges that defendants FTC, Emerging Markets, Clamens and Lopez violated Section 17(a) of the Securities Act of 1933 ("Securities Act"), Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 thereunder; defendant FTC violated Section 15(c) of the Exchange Act; defendant Emerging Markets violated Section 15(a) of the Exchange Act; and defendants Clamens and Lopez aided and abetted FTC's violations of Exchange Act Section 15(c) and Emerging Markets' violations of Exchange Act Section 15(a). In its Complaint, the Commission seeks permanent injunctions, disgorgement and prejudgment interest and civil penalties against all defendants.
SEC Charges Four in Delaware with Pump and Dump Scheme
The SEC filed a complaint in the United States District Court for the District of Delaware against Pawel P. Dynkowski, Matthew W. Brown, Jacob Canceli, Gerard J. D’Amaro, Joseph Mangiapane Jr., Nathan M. Michaud, Marc J. Riviello and Adam S. Rosengard, alleging that that in 2006 and 2007, Dynkowski engaged in market manipulation schemes with at least four separate stocks: GH3 International, Inc., Asia Global Holdings, Inc., Playstar Corp., and Xtreme Motorsports of California, Inc. As alleged in the complaint, Dynkowski’s co-defendants each participated in one or more of these schemes, which together generated more than $6.2 million in illicit profits.
The SEC’s complaint alleges that these fraudulent schemes generally followed the same pattern: Dynkowski and his accomplices agreed to sell large blocks of shares for penny stock companies in exchange for a portion of the proceeds. The companies put these shares in nominee accounts that Dynkowski and his accomplices controlled. The defendants pumped the market price of the stocks using wash sales, matched orders and other manipulative trading, often timed to coincide with false or touting press releases by the companies, to give the market the false impression that there was real demand for these stocks. After artificially inflating the market price of the stocks, Dynkowski and his accomplices then dumped the shares obtained from the issuers and divided the illicit proceeds.
The SEC’s complaint alleges that Dynkowski and Brown violated Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 (“Securities Act”), Sections 10(b) and 13(d) of the Securities Exchange Act of 1934 (“Exchange Act”), and Rules 10b-5, 13d-1 and 13d-2 thereunder; that Canceli, D’Amaro, Mangiapane, and Riviello violated Sections 5(a), 5(c), and 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10b-5; that Michaud violated Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Rule 10b-5; and that Rosengard violated Sections 5(a) and 5(c) of the Securities Act. The complaint seeks against each defendant a permanent injunction against future violations, disgorgement of ill-gotten gains with prejudgment interest, and civil monetary penalties, and, as to certain defendants, orders barring them from participating in penny stock offerings.
The U.S. Attorney’s Office for the District of Delaware also announced today felony criminal charges against Dynkowski, Brown, Canceli, D’Amaro, Mangiapane, and Riviello.
NASAA Supports Arbitration Fairness Act of 2009
NASAA today announced its full support of the Arbitration Fairness Act of 2009 (S. 931, H.R. 1020), which seeks to protect the right of Americans to have their day in court by making pre-dispute agreements requiring arbitration for any employment, consumer, franchise or civil rights disputes unenforceable. The legislation was introduced by Sen. Russ Feingold (D-WI) and seven cosponsors in the Senate and Rep. Hank Johnson (D-GA) in the House, where H.R. 1020 has the support of 57 cosponsors.
NASAA specifically noted that the Senate version of the proposed legislation specifically includes services relating to securities. Currently almost every broker-dealer includes in their customer agreements a provision that requires public investors to submit all disputes that they may have with the firm and/or its representatives to mandatory arbitration. NASAA has long supported reforms to this system.
May 20, 2009
SEC Publishes Proposed Custody Rules for Investment Advisers
The SEC posted on its website its proposed rules relating to Custody of Funds or Securities of Clients by Investment Advisers under the Investment Advisers Act of 1940 and related forms. The amendments, among other things, would require registered investment advisers that have custody of client funds or securities to undergo an annual surprise examination by an independent public accountant to verify client funds and securities. In addition, unless client accounts are maintained by an independent qualified custodian (i.e., a custodian other than the adviser or a related person), the adviser or related person must obtain a written report from an independent public accountant that includes an opinion regarding the qualified custodian’s controls relating to custody of client assets. Finally, the amendments would provide the Commission with better information about the custodial practices of registered investment advisers. The amendments are designed to provide additional safeguards under the Advisers Act when an adviser has custody of client funds or securities.
DATES: Comments must be received on or before July 28, 2009.
SEC Votes for Proposed Rule on Shareholders' Nominations for Directors
The SEC today voted (3-2 along party lines) to propose a comprehensive series of rule amendments to facilitate the rights of shareholders to nominate directors on corporate boards. From its release:
The nation and the markets are experiencing one of the most serious economic crises of the past century. This crisis has led many to question whether boards of directors are truly being held accountable for the decisions that they make. These concerns include questions about whether boards are exercising appropriate oversight of management, whether boards are appropriately focused on shareholder interests, and whether boards need to be held more responsible for their decisions regarding such issues as compensation structures and risk management. Because of these concerns, the Commission has decided to revisit whether and how the federal proxy rules may be impeding the ability of shareholders to exercise their fundamental right under state law to nominate and elect members to company boards of directors.
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To address this situation, the Commission is proposing rule amendments that would provide shareholders with a meaningful ability to exercise their state law rights to nominate the directors of the companies that they own. Under the proposal, shareholders who otherwise are provided the opportunity to nominate directors at a shareholder meeting would be able to have their nominees included in the company proxy ballot that is sent to all voters. Shareholders would also have the ability to use shareholder proposals to modify the company's nomination procedures or disclosure about elections, so long as those proposals do not conflict with state law or Commission rules.
Getting Nominees Included in the Company's Proxy Materials:
New Exchange Act Rule 14a-11 - shareholders could, under certain circumstances, include a nominee or nominees for director in company proxy materials
Under the proposed rule, certain shareholders would be able to include their nominees for director in the company's proxy materials unless the shareholders are otherwise prohibited — either by applicable state law or a company's charter/bylaws - from nominating a candidate for election as a director.
The proposed rule would apply to all Exchange Act reporting companies, including investment companies, other than debt-only companies.
Which shareholders would be able to have their nominees included in the proxy materials?
Shareholders would be eligible to have their nominee included in the proxy materials if:
They own at least 1 percent of the voting securities of a "large accelerated filer" (a company with a worldwide market value of $700 million or more) or of a registered investment company with net assets of $700 million or more.
They own at least 3 percent of the voting securities of an "accelerated filer" (a company with a worldwide market value of $75 million or more but less than $700 million), or of a registered investment company with net assets of $75 million or more but less than $700 million.
They own at least 5 percent of the voting securities of a non-accelerated filer (a company with a worldwide market value of less than $75 million) or of a registered investment company with net assets of less than $75 million.
Shareholders would be able to aggregate holdings to meet applicable thresholds.
Shareholders would be required to have held their shares for at least one year.
Shareholders would be required to sign a statement declaring their intent to continue to own their shares through the annual meeting at which directors are elected.
Shareholders would be required to certify that they are not holding their stock for the purpose of changing control of the company, or to gain more than minority representation on the board of directors.
What requirements would a shareholder's nominee be required to meet to be nominated?
The nominee's candidacy or, if elected, board membership must not violate applicable laws and regulations.
The nominee must satisfy objective independence standards of the applicable national securities exchange or national securities association.
The nominating shareholder may have no direct or indirect agreement with the company regarding the nomination of the nominee.
How many board nominees for director would a shareholder be able to include in company proxy materials?
No more than one shareholder nominee, or a number of nominees that represents up to 25 percent of the company's board of directors, whichever is greater. (For example, if the board is comprised of three members, one shareholder nominee could be included in the proxy materials. If the board is comprised of eight members, up to two shareholder nominees could be included in the proxy materials.)
What would have to be disclosed about nominating shareholders and their nominees?
The nominating shareholder would be required to file with the Commission and submit to the company a new Schedule 14N. The Schedule 14N would require disclosure of the amount and percentage of securities owned by the nominating shareholder, the length of ownership, and intent to continue to hold the securities through the date of the meeting. The Schedule 14N would require a certification that the nominating shareholder is not seeking to change the control of the company or to gain more than minority representation on the board of directors.
The company would include in its proxy materials disclosure concerning the nominating shareholder, as well as the shareholder nominee or nominees, that is similar to the disclosure currently required in a contested election.
Would the nominating shareholder be liable for information provided to the company?
As is the case when directors nominate candidates, the nominating shareholder or group would be liable for any false or misleading statements in information provided to the company that is then included in the company's proxy materials.
The proposed rule would provide that the company will not be responsible for information provided by the shareholder, unless the company knows or has reason to know the information is false.
Allowing Shareholders Proposals:
Amended Exchange Act Rule 14a-8(i)(8) - shareholders could require companies, under certain circumstances, to include proposals in their proxy materials that would amend, or request an amendment to, the company's governing documents to address the company's nomination procedures or other director nomination disclosure provisions that do not conflict with the Commission's rules.
Currently, Exchange Act Rule 14a-8(i)(8) permits companies to exclude shareholder proposals that "relate to an election." Under the proposal, this so-called "election exclusion" would be narrowed, thereby allowing in the proxy materials more shareholder proposals regarding elections. Specifically, shareholder proposals by qualifying shareholders that would amend, or that request an amendment to, provisions of a company's governing documents concerning the company's nomination procedures or other director nomination disclosure provisions (so long as those disclosure provisions don't conflict with proposed Rule 14a-11 above) would not be excludable.
Which shareholders would be able to submit a shareholder proposal?
The current eligibility provisions of Rule 14a-8 would continue to apply. Those provisions require that a shareholder proponent have continuously held at least $2,000 in market value (or 1 percent, whichever is less) of the company's securities entitled to be voted on the proposal at the meeting, for a period of one year prior to submitting the proposal.
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The full text of the proposed rule amendments will be posted to the SEC Web site as soon as possible.
GAO Report on Sovereign Wealth Funds
The GAO released a report on SOVEREIGN WEALTH FUNDS: Laws Limiting Foreign Investment Affect Certain U.S. Assets and Agencies Have Various Enforcement Processes. Here is the summary:
Foreign investors in U.S. companies or assets include individuals, companies, and government entities. One type of foreign investor that has been increasingly active in world markets is sovereign wealth funds (SWF), government-controlled funds that seek to invest in other countries. As the activities of these funds have grown they have been praised as providing valuable capital to world markets, but questions have been raised about their lack of transparency and the potential impact of their investments on recipient countries. GAO’s second report on SWFs reviews (1) U.S. laws that specifically affect foreign investment, including that by SWFs, in the United States and (2) processes agencies use to enforce them. GAO reviewed policy statements, treaties, and U.S. laws, and interviewed and obtained information from agencies responsible for enforcing these laws. GAO also interviewed legal experts and organizations that track state foreign investment issues.
What GAO Recommends
To enhance oversight of foreign investments, GAO recommends that FCC, Agriculture, and DOT review the information they currently monitor to detect changes in ownership of U.S. assets subject to restriction or disclosure and assess the value of supplementing it with information from other government and private data sources on investment transactions.
SEC Proposes Rules to Permit Shareholders to Nominate Directors
Once again the SEC is proposing changes to the proxy rules that will allow shareholders access to the management's proxy process to nominate directors. Chairman Schapiro stated in the open meeting:
I believe that the most effective means of providing accountability — in a way that is both cost effective and timely — is to ensure that shareholders have a meaningful opportunity to effectuate the rights that they already have under state law to nominate directors.
Under the proposal before us today, shareholders who otherwise have the right to nominate directors at a shareholder meeting will be able to have their nominees included in the company proxy ballot that is sent to all voters. Given the reality of how the proxy process works, this would turn what would otherwise be a somewhat illusory right to nominate into something that is real — and has a real chance of holding boards of directors accountable to company owners.
As a means of further ensuring that shareholders determine the rules that affect their own rights, shareholders will also be able to use shareholder proposals to affect nomination procedures in any way that does not conflict with the Commission’s rules.
Obama Considers Consumer Protection Agency for Financial Products
The Washington Post reports that the Obama administration is seriously considering the creation of a new federal agency that would have broad authority to protect consumers who use financial products, including mortgages, credit cards and mutual funds. Professor Elizabeth Warren (Harvard Law), the leading proponent of the commission, chairs the Congressional Oversight Panel that released, in January 2009, a Special Report on Regulatory Reform that outlined the concept. Industry opposition is expected to be fierce, and the SEC is sure to resist losing authority to regulate mutual funds -- an area where, to my mind, it has done a very poor job. WPost, U.S. May Add New Financial Watchdog.
May 19, 2009
New York AG's Statement on Code of Conduct for Pension Fund Industry
STATEMENT FROM ATTORNEY GENERAL ANDREW CUOMO ON COMPTROLLER THOMPSON'S DECISION TO URGE NYC PENSION FUNDS TO ADOPT REFORM CODE OF CONDUCT
"I commend Comptroller Bill Thompson for his quick and decisive action in asking that the City pension funds adopt the principles in the Code of Conduct we have developed in our pension fund investigation. The public pension fund industry is badly in need of reform and it is high time we ended pay to play. I appreciate Comptroller Thompson's commitment to doing his part to promote needed reforms like banning the use of placement agents and eliminating campaign contributions to those who make or influence pension fund investment decisions. My hope is that our Code of Conduct will become a model for reform and Comptroller Thompson's action is yet another step in that direction."
SEC Will Consider Shareholder Director Nominations at May 20 Open Meeting
SEC Open Meeting Agenda for Wednesday, May 20, 2009
Item 1: Facilitating Shareholder Director Nominations
Office: Division of Corporation Finance
Staff: Brian Breheny, Lillian Brown, Tamara Brightwell, Eduardo Aleman
The Commission will consider whether to propose changes to the federal proxy rules to facilitate director nominations by shareholders.
Arizona Attorney Enjoined From Unregistered Stock Sales and Fraud
Two federal district courts recently entered orders against David B. Stocker, an Arizona attorney. First, the United States District Court for the Northern District of Texas recently permanently enjoined David B. Stocker and Curtis-Case, Inc., a corporation that he controlled, from offering or selling securities in unregistered securities offerings in violation of Section 5(a) and (c) of the Securities Act of 1933. In its complaint, the SEC alleged that during 2004, Stocker and Curtis-Case offered and sold the securities of six corporations when no registration statements had been filed with the Commission: American Television & Film Company (ATFT), Ecogate, Inc. (ECGT), Media International Concepts, Inc. (MEIC), Vanquish Productions, Inc. (VQPI), Auction Mills, Inc. (AUML), and Custom Designed Compressor Systems, Inc. (CUPY). Stocker and Curtis-Case consented to entry of the injunctions without admitting or denying the allegations.
Second, the United States District Court for the District of Arizona entered an order permanently enjoining Stocker and Carrera Capital, Inc.from engaging in securities fraud and from offering or selling securities in violation of Section 5(a) and (c) of the Securities Act of 1933. In its complaint, the Commission alleged that during 2006, Stocker and Carrera Capital through false and misleading statements acquired control of the securities of seven corporations that had previously been publically traded and then sold the shares in transactions when no registration statements had been filed with the Commission: Avalon Stores, Inc. (AVNS), Westmark Group Holdings, Inc. (WGHI), Electronic Transmissions Corp. (ETSM), Accel International Corp. (ACLE), Access Developers, Inc. (AONE), Chemtrack Inc. (CMTR), and Computer Communications, Inc. (CCMM). Stocker and Carrera Capital consented to entry of the injunctions without admitting or denying the allegations.
SEC Charges Northern California Residents with Fraudulent Multi-Level Marketing Scheme
On May 13, 2009, the SEC charged two Northern California residents and two of their companies, one of which is a purported savings and loan association, with securities fraud in connection with a multi-level marketing scheme. The SEC obtained an emergency court order freezing their assets and halting the scheme. According to the complaint, Bich Quyen Nguyen, Johnny E. Johnson, and their entities, Sun Group and Sun Investment Savings and Loan, raised more than $9 million by promising guaranteed returns on high-yield instruments. Instead, the amended complaint alleges that the defendants misused investor funds for their own personal use or sent money to other entities under their control.
The SEC had previously charged two other entities, Empire Capital Asset Management ("ECAM"), and Sun Empire, and two individuals, Delilah Proctor and Shauntel McCoy, for also participating in the multi-level marketing scheme.
According to the SEC's amended complaint, Nguyen solicited investors through Sun Group and Sun Investment Savings and Loan and encouraged club leaders to find investors who were unemployed or recently bankrupt. Through Sun Investment Savings and Loan, Nguyen offered certificates of deposit with returns as high as 19.30%. Johnson represented to prospective investors that they could double their investment with Sun Group and could earn "many times more than 10% returns." Both Nguyen and Johnson promised a full guarantee for the original investment and profit. In fact, according to the amended complaint, Sun Investment Savings and Loan is not a savings and loan at all.
May 18, 2009
SEC and WellCare Health Plans Settle Fraud Charges
The SEC and WellCare Health Plans, Inc. ("WellCare"), a managed care services company that administers federal government-sponsored health care programs, settled charges that the company committed securities fraud. According to the Commission's complaint, from at least November 2003 to October 2007, WellCare fraudulently retained over $40 million it was required to return to Florida state agencies under programs that provided mental health services to Medicaid recipients and health care services to uninsured children. As a result, WellCare materially overstated its publicly reported net income and diluted earnings per share in periodic filings made with the Commission.
As alleged in the complaint, WellCare executed its scheme by intentionally underpaying refunds it owed to two Florida state health care entities, the Florida Agency for Health Care Administration ("AHCA"), and the Florida Healthy Kids Corporation ("Healthy Kids"). Under these contracts, WellCare received funds, or "premiums," from the state to be used to provide medical and health benefits. To ensure a proper balance between cost savings and quality health care, the state required WellCare to spend a certain percentage of the premiums on eligible medical expenses. If WellCare spent less than the minimum amounts on eligible expenses, it was required to refund some or all of the difference to the state.
According to the Commission's complaint, WellCare did not follow the state's guidelines and regulatory framework governing how the company was required to calculate the refunds under each program. Instead, the company evaded the statutory requirements and fraudulently included ineligible payments to a subsidiary and administrative expenses as legitimate medical expenses. In addition, for certain refunds, WellCare considered a range of arbitrary amounts to refund to AHCA, and then reverse-engineered a methodology to arrive at a particular refund target. WellCare also engaged in a rate-swapping scheme whereby it inflated reimbursement rates for its Healthy Kids plan in exchange for lower Medicaid and Medicare rates at two Florida hospitals. In total, through its fraudulent conduct, WellCare reduced the refunds it paid to AHCA by approximately $35 million and to Healthy Kids by approximately $6 million.
WellCare's fraudulent retention of over $40 million materially inflated its net income and earnings per share by essentially the same amounts — 14% for fiscal year ("FY") 2004, 9% for FY 2005, 13% for FY 2006, and 9% for the first quarter of FY 2007. On January 26, 2009, WellCare filed its Form 10-K for FY 2007 and restated its financial results for its FYs 2004 through 2006 and the first two quarters of FY 2007.
Without admitting or denying the allegations in the Commission's complaint, WellCare has consented to the entry of a final judgment for violations of the antifraud and reporting provisions of the federal securities laws. In addition, the company has agreed to pay $1 in disgorgement and a $10 million civil penalty. The Commission acknowledges WellCare's cooperation with its investigation.
SEC and Monster Worldwide Settle Backdating Charges
The SEC and Monster Worldwide, Inc. settled charges that Monsster engaged in a multi-year scheme to secretly backdate stock options granted to thousands of Monster officers, directors and employees. Monster agreed to pay a $2.5 million penalty to settle charges that the company defrauded investors by granting backdated, undisclosed "in-the-money" stock options while failing to record required non-cash charges for option-related compensation expenses.
The SEC's complaint alleges that in connection with this scheme, Monster filed false and materially misleading statements concerning the true grant date and exercise price of stock options in its annual, quarterly and current reports, proxy statements and registration statements. Many of these documents also falsely represented that stock options were being granted at fair market value. Further, Monster failed to record and disclose the compensation expense associated with the "in-the-money" portion of stock option grants. As a result, Monster materially overstated its quarterly and annual earnings in its financial statements and was required to restate its historical financial results for 1997-2005 in a cumulative pre-tax amount of approximately $339.5 million to record additional non-cash charges for option related compensation expenses.
Without admitting or denying liability, Monster agreed to be permanently enjoined from securities law violations as well as the $2.5 million penalty. The Commission took into account the cooperation that Monster provided Commission staff during the course of the investigation.