Voyager Digital: Asking Questions about Canadian Capital Markets

By Christine Duhaime | September 11th, 2022

Part 1 – Attempts to legislate securities Fraud in Canada

Voyager Digital

“Asking Questions About Canadian Capital Markets” is a series of articles about the capital markets in which we explore some Canadian public companies and ask questions. These questions may shed light on the now-defunct Canadian digital currency exchange called Voyager Digital. 

One of the founders of Voyager Digital is a Canadian attorney named Stephen Dattels. To understand Voyager Digital, it may help to understand the journey of some of its founders.

Voyager Digital, the digital currency exchange, is a subsidiary of a British Columbia public company(1). 

According to several media reports, some investors have filed a class action lawsuit in the US against Voyager Digital, alleging that it was a Ponzi scheme with US$5 billion allegedly missing(2).

When people talk about loses to investors, sometimes it’s not clear what they mean. In the case of digital currency exchanges, if they are public companies, there are two separate pools of investments – funds from investors who bought shares of the public company (e.g., shareholders), and funds from consumers taken in as a deposit-taking function and held in trust for consumers. 

The billions of dollars allegedly missing according to the US class action lawsuit refers to the money that ordinary consumers deposited in trust to buy digital currencies, some of which are so-called “tokens” or so-called “stable coins” and most are a securities. This series of articles is not about that activity or consumers; it’s about the capital markets side. 

In this Part 1, we explore historic attempts to federally legislate Canada’s capital markets and l’Affaire Uramin, also known as l’Affaire Areva.

Systemic securities fraud

There is a perception in Canada that legislators haven’t done much to address securities fraud in Canada.  According to research we conducted in early 2021 (see Business in Vancouver here), while Canada represents only 12.5% of the US population, it often represents 40% of securities fraudulent activities in the US capital markets involving micro-capitalized public companies. In 2020, we researched US Court records and calculated that there was over US$4.5 billion in open securities fraud cases involving Canadians in the US. 

When Covid-19 fraud started occurring in the capital markets with false representations by microcap public companies stating that they had magic Covid-19 drugs or cures, the US Securities and Exchange Commission (“SEC”) issued emergency orders to stop misrepresentative statements by suspending the trading of securities on more Canadian public companies than companies from anywhere else in the world. The SEC v. Frederick Sharp et. al. alleged securities fraud prong of cases with British Columbia actors adds another US$1 billion to the tally of open securities fraud cases involving Canadians.Canadian public companies cause more per capita harm to US investors and to the US capital markets than any other country. 

The problem has been known to US lawmakers since at least the 1940s. In a New York Times article dated June 2, 1940, a reporter noted that the best suckers grow in the US, suckered by Canadian fraudsters who target the US investors because they want access to a wealthy, large investment pool they can’t get in Canada. The Washington Post, in 1952, wrote that the US Senate’s concern for American investors being defrauded by Canadians with phoney stock claims, including phoney uranium mining claims, was so heightened there was talk of a treaty just to ship fraudsters from Canada to the US where they could be prosecuted.

Fraud on the capital markets (called by its 1920s name, “public markets,” in the Criminal Code of Canada) is a predicate offence under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, so if there is a capital markets fraud problem, we also have a money laundering problem in the capital markets.

From time to time, Canadian federal legislators have tried to address Canadian securities fraud and to force a cultural change using the law.  Unfortunately, to no avail.

Proposed federal securities legislation

In Canada in 2009, former Finance Minister Jim Flaherty set up a federal working group which drafted a federal securities act to replace provincial securities legislation. The legislation was designed to, among other things, address systemic fraud afflicting Canada’s capital markets, protect the Canadian financial system and investors, and enable the detection and prosecution of financial crimes arising from capital markets activities. Flaherty’s efforts were defeated by the Supreme Court of Canada which took a very provincial view and ruled in Reference re Securities Act, that capital markets had to remain provincial jurisdiction under The British North America Act, 1867.

The decision was rooted in a reality that existed in the last century when in Canada, capital markets were limited to Toronto and Montréal, and securities were evidenced on physical paper records and delivered to investors by horse and buggy.

The fact that the Canadian judiciary, in this day and age, thinks that the capital markets are like the 1890s is quite concerning. 

Where Canada’s capital markets were born – King and Bay Street, Toronto, Canada, circa 1890 (Source: Toronto Public Archives)

Senate attempts to amend Criminal Code

In 2016, the second federal attempt was undertaken by former Canadian Senator Céline Hervieux-Payette, who was the deputy chair of the Standing Senate Committee on Banking, Trade and Commerce. She introduced criminal legislation called the “Combating International Fraud Act”, to respond to fraud in the capital markets after a number of scandals involving public companies in Canada left investors (many of whom were elderly) destitute and which harmed Canada’s financial reputation internationally.

Senator Céline Hervieux-Payette, 2017 (Source: Eric Carrière, Flickr here)

Senator Hervieux-Payette said she was motivated to introduce the legislation because of Stephen Dattels. Stephen Dattels appears to be the only Canadian attorney, perhaps the only attorney anywhere in the world, in respect of which deterrent legislation has been drafted.

Uramin Inc.

In Parliament, the Senator stated that Dattels founded a company in Canada called Uramin Inc., which became a public company in Canada listed on the TSXV.  A short time after listing, Uramin’s stock price rose 467% and it was sold for US$2.5 billion to Areva S.A., a state-owned nuclear energy corporation in France.

According to its filed securities disclosure and a book that Dattels participated in about the deal, some of the people involved in Uramin Inc. with Dattels included John Ian Stalker, Edwin L. Phelps, Samuel Jonah, Neil Herbert, James Pitman, Ian Watson, Graham Mascall, Michael Beck, Francis Daniels and the Brexiter James Mellon.

Why did a foreign government pay US$2.5 billion for a little public mining company in Canada?  No one knows the answer. Literally. It may be because of representations Uramin made about the extent or value of its uranium resources. Its disclosure says its uranium resources totalled 262.6 million pounds in three African countries.

The Senator told Parliament “there was no uranium” and she stated that various audits, including one by the French Parliament found that “Dattels and his associates lied outright about their uranium reserves and deposits.” We have not been able to find an audit which says that. 

No uranium? Some uranium?

In France it took a while for Areva S.A. management to comprehend its own uranium acquisition and it wasn’t until 2010, that it hired external investigators to find out about its own deal. What they and investigative journalists (see “Areva: les secrets dune faillite” here) say they learned was that: (a)Uramin Inc. had uranium deposits in Namibia that were not exploitable because they were below 100 ppm U (below 100 ppm is graded “very low” and means there is 0.01% U or less); (b) deposits in the Central African Republic were not exploitable in part because of mining land access issues; and (c) there were no uranium mining rights in South Africa (see “Affaire Areva Uramin: 3 milliards en fuméehere).

“Affaire Areva Uramin: 3 milliards en fumée” (Source: YouTube Channel of Imineo Documentaires)

Uramin’s mining report, called a 43-101, states that the Uramin deposits in Namibia were, for the most part, above 100 ppm U and were “low” and not “very low”. Low grade is 1,000 ppm U or 0.1% U. After the deal closed, Areva was unable to access the mining site it bought from Uramin in the Central African Republic. It eventually agreed to pay an extortion of US$50 million to that government to access the mine site. The deal was negotiated by the Belgian George Forrest, a controversial figure who, according to the US government, was talking to the Iranian regime about buying uranium.

Some in France have called the Uramin deal a scam (une escroquerie) or a fiasco (see “Affaire Areva Uramin: révélations due un scandal d’état?” here).

“Affaire Areva Uramin: révélations sur un scandale d’Etat?” (Source: YouTube Channel of CNEWS)

There were other aspects of “l’affaire Areva” that involved Canada beyond accusations about exploitable reserves, and those were concerns involving money laundering. And although they involved allegations tied to Uramin Inc., they don’t originate from Uramin.

Money laundered here and there?

The first is that, according to TracFin, the French federal financial intelligence unit, the spouse of the CEO of Areva, Olivier Fric, had access to material undisclosed information about Uramin Inc. and was able to buy securities of Uramin for several weeks during its blackout period. He conducted those securities transactions using a BVI shell company called Amlon Limited and netted €300,000.

TracFin told the French prosecutor that the transactions buying and selling the securities of the Canadian public company were suspicious transactions for money laundering purposes for fraud.

And then there was another controversial figure with his own private jet, Saifee Durbar. He self-describes as a “bandit” and his role in the Uramin Affair has been described in The Times as one of a key player in a spy thriller.

Saifee Durbar in Mayfair (Source: Le Media)

He investigative journalists and the French prosecutor that allegedly, millions of dollars in proceeds of corruption were paid to a South African named Tokyo Sexwale at the closing of the Uramin deal, which originated from ScotiaBank in Toronto. The funds, he alleged, were laundered to Bermuda and then to South Africa for the benefit of Sexwale. In 2017, he gave more specific statements in respect of Sexwale and Uramin (see “Candidat à la Fifa, Tokyo Sexwale, éclaboussé par une affaire de corruptionhere).

L’OBS headline, February 16, 2016

The French national financial prosecutor established two judicial inquiries to investigate Areva S.A., including aspects of the Uramin deal.

At the end of the day, the prevailing theory among some people in Europe and Africa who were involved, and who spoke to investigative journalists, appears to be that the deal included a portion of the acquisition price going towards a black suitcase (see “Enquête Areva – Uramin, filouterie radioactive?here). A black suitcase is an expression used in France and China, perhaps other places, that means a bag for black money. Black money is money for crime, most often to make corruption payments.

It was Areva’s black suitcase, though, not Uramin’s but the suitcase was in Canada, if it existed. And if it existed, when the suitcase needed to be opened, it was opened in Canada and the money it held was sent to intended recipients.

In France, “l’affaire Areva” was a massive story for years. Several books have been written about it. 

“Vincent Crouzet. Enquête: Areva – Uramin, filouterie radioactive?” (Source: YouTube Channel of TV5 Monde)

Crickets in Canada

In Canada?  Nothing.

Senator Hervieux-Payette said that no securities regulator in any province conducted an investigation into “l’affaire Areva.” The Senator told Parliament that she tried to get the RCMP to investigate but that went nowhere she said. The Senator then conducted her own investigation, which led to her proposed legislation to strengthen criminal enforcement of Canadian capital markets. 

Her draft legislation included provisions for extraterritorial application of the Criminal Code insider trading and tipping offences.  The latter provision, the Senator told Parliament, could have been used to investigate what she called the Dattels gang. She submitted her investigation report to Parliament.

Hervieux-Payette stated that as “federal legislators, it’s our duty to protect Canadians against capital markets fraudsters.”

But Parliament didn’t enact the Senator’s legislation. We asked a former investigator in France who investigated “l’affaire Areva” for France, why there was no investigation in Canada if there was a case to be made, as alleged. He told us it was because Canada’s mining lobby group lobbied the Canadian government to take no action.

But how do we explain the fact that the Canadian media never picked up on or followed l’affaire Areva even though it was so significant a story in France and Africa? The answer is language – most of the Areva and Uramin coverage, including about Dattels, is in French and from France and Africa. Unless one is French or follows mining, or financial crime news in Africa, one wouldn’t necessarily learn about Uramin, Areva or its collateral players.

And Areva? It apparently never survived doing a deal with Uramin Inc. It melted down and filed for insolvency protection. 6,000 people lost their jobs in France, across the EU and across Africa.

And Canadian attorney Stephen Dattels? He moved to the United States, built a mansion in Palm Beach, Florida, and kept a footprint in Ontario’s thoroughbred horse breeding country. But he also stayed involved in little Canadian public companies.

We found him connected to a little Vancouver microcap company named BetterLife Pharma Inc., where he is mentioned in a fascinating lawsuit filed by a man named Aly Ismail, battling over a finder’s fee. 

Next up

In Part 2, we continue our journey to understand Voyager Digital and we explore BetterLife Pharma Inc. and the battle for a finder’s fee.

Footnotes:

(1) There is sometimes confusion about jurisdiction in cases where a Canadian company decides to operate in other countries. A British Columbia company means its jurisdiction is British Columbia, and Canada. If it is a reporting issuer, the company makes a decision on which province it wishes to attorn to as a matter of jurisdiction for securities regulation and enforcement and in respect of investors. It also selects a principal regulator, and informs investors and securities regulators who that principal is. That provincial principal regulator has primary jurisdiction in Canada. A third prong in respect of jurisdiction is the jurisdiction of its directors. In the case of Voyager, it made the decision to report to all provinces and asked Ontario to be its principal regulator for investors. It has, perhaps had now, directors in Canada. That does not mean, however, that US securities and other regulators have no jurisdiction; they have jurisdiction in respect of US investors, financings and listing matters if a US exchange was used to list stock. The US also has jurisdiction by virtue of correspondent banking rules, which means that all of the financial transactions of Voyager Digital fall under US jurisdiction, and that brings in the US Wire Act and financial crime laws.

(2) A Ponzi scheme simply means to take new investor money and use it to return money to old investors. Before Charles Ponzi, it was called “robbing Peter to pay Paul.” It’s one of the easiest alleged frauds to investigate and confirm because directors of a Ponzi scheme direct the making of statements about how much money is invested and held in trust and one call by a regulator to the DTC, or in the case of crypto, a review of its cold wallet holdings instantly affirms (or not) the truth of representations made to investors. That’s one of the things that happened with the Bernie Madoff Ponzi scheme – no regulator picked up the phone and called the DTC.

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Part 2: Understanding round-tripping in the capital markets

By Christine Duhaime | September 9th, 2022

Part 2

A mysterious man from Asia and the most famous round-tripping case

In Part 1 of “Understanding round-tripping in the capital markets” (here), we discussed round-tripping and looked at a rare SEC enforcement action involving round-tripping by executives of a microcap public company. In this Part 2, we look at the most famous round-tripping case involving a mysterious man from Asia named Hady Hartanto.

Hady Hartanto is a foreign national of Indonesia and China, and seems to have appeared in Vancouver, Canada, from time to time.

Early Vancouver-managed issuer

He has a long history of involvement in public companies in Asia but he also appears in an SEC revoked OTC-listed microcap company called Worldstar Energy Corp. managed from Vancouver. In 2007, Hartanto sold Worldstar 18% of 50 mining licences he said he owned in Mongolia, and thus became involved in Worldstar.

Worldstar Energy Corp. has one of the weirdest things in a US public reporting company – an anonymous person who was a director named “Supriadi”. No first name, no middle name, no last name – just “Supriadi”. That’s like appointing “Michael” as a director of a public company and hoping no one notices on the exchange, securities regulatory, corporate or AML banking side. Actually, no one did notice.

It is supposed to be against securities law disclosure rules to fail to identify a director of a pubic company.

When Hartanto became involved in Worldstar, Supriadi appeared too.

“Supraidi” in the Form 10-K of Worldstar Energy Corp.

One of the other directors at Worldstar with Supriadi was Richard Tay, a/k/a Tay Thai Seng, a Chinese national.

In Vancouver, Supriadi appears to have replaced a director named Taj Mohamed who controlled a British Columbia entity named Cheer Beauty Investment Ltd. Taj Mohamed was a “finder” and the control person of Worldstar, holding over 32% of its securities according to its filings.

Singapore Exchange action

The round-tripping case that is so famous started out as an enforcement action against Hady Hartanto and others by the Singapore Exchange in 2011 (see here).

The story goes like this – sometime in March 2011, Hartanto’s BVI company, Telemedia Pacific Group Ltd. (“Telemedia Pacific”), bought over 25% of the shares of a public company in Singapore named Scorpio East Holdings Ltd. (“Scorpio East“). Hartanto was appointed a director and officer of Scorpio East.

At that time, Scorpio East’s only potential business was film production revenues with several film producers who had signed on to create content worth S$12 million (the “Scorpio Contracts”). Scorpio East had paid a deposit of S$5 million for the Scorpio Contracts, representing 70% of its net asset value.

After Hartanto joined Scorpio East, he cancelled the Scorpio Contracts on his own, without consulting the other directors, without getting consent from the other directors with an executed consent resolution, and without issuing a news release to announce a material change to the company.

Hartanto worked deals with a man named Low Shiong Jin, and he brought Low Shiong Jin into Scorpio East’s affairs, inviting him to attend director’s meetings. But Low Shiong Jin had been blacklisted by the Singapore Exchange.

Then on March 17, 2011, Hartanto, all on his own, signed a S$6 million contract between Scorpio East and Alpha Entertainment Group Pte. Ltd (“Alpha Entertainment”), without consulting the other directors and without getting consent from the other directors with an executed consent resolution.

Who was one of the directors and shareholders of Alpha Entertainment?  Jung Jin, the wife of Low Shoing Jin, the person blacklisted by the Singapore Exchange.

Hartanto then wired S$3.2 million from Scorpio East to Alpha Entertainment, without consulting the other directors and without getting consent from the other directors with an executed consent resolution. The S$3.2 million was ostensibly a deposit for film production.

The round-tripping

Alpha Entertainment then round-tripped S$2.86 million back to Scorpio East. When the round-tripped funds landed back into the coffers of Scorpio East, Hartanto then told the other directors that the Scorpio Contracts were terminated. He also stated that he had obtained a refund of S$2.86 million from the S$5 million deposit paid. It was not true.

No refund was received and the intent was to have the round-tripped amount fraudulently recorded on financial statements as a refund and not an impairment.  

Hartanto then tried to get Scorpio East to wire S$3,300,000 out – S$3,000,000 of that amount to his personal lawyer at JLC Advisors LLP; the rest to Alpha Entertainment.  Hartanto did so without consulting the other directors and without getting consent from the other directors with an executed consent resolution.  

A director stepped in and stopped the payments.

The directors then halted the stock, launched an investigation, and self-reported the events to the regulator.

After its investigation, the Singapore Exchange held that Hartanto did not demonstrate the qualities expected of a director or officer of a Singapore-listed company, and had failed to act in the interests of the shareholders as a whole. He was blacklisted.

Hady Hartanto with Горбулин Олег

Hartanto then sued the other directors of Scorpio East in Singapore over statements made in the required continuous disclosure over the Hady Hartanto affair.

The Court found that Hartanto’s failure to inform the other directors of what was going on, and to obtain the approval of the other directors for the transactions he approved on his own, was a breach of his fiduciary duties.  The Court also held that the Alpha Entertainment deal was not in the interest of Scorpio East. Hartanto’s lawsuit was dismissed.

Other lawsuits involving Hartanto

Hartanto was involved in a number of lawsuits after that, which centered around the movement of large sums of money or securities of public companies.

For example, in 2014, his company, Telemedia Pacific, sued a Swiss bank operating in Hong Kong for following the instructions of its bank account signatory to transfer securities, which allegedly caused a financial loss. The securities were of a Singapore public company called Next-Generation Satellite Group (“NextGen“).

Basically, the claim was that the bank signatory’s authority had been revoked by Hartanto and because the bank completed a transfer on the basis of the authority of that bank signatory, the bank was liable for the transfers and resulting loss of securities. If there was a change in authorized signatories, no one informed the bank.

Remember “Supriadi”? In that lawsuit, Hartanto gave evidence that Supriadi is his nominee for banking purposes. A nominee for banking purposes means a person who opens a bank account on behalf of another.

In another case, an investor in Hong Kong named Huang Li sued Hartanto and Telemedia Pacific in 2014, over a stock sale. She alleged that in January 2011, at a dinner in Shenzhen, Hartanto offered the sale of securities of NextGen to her for HK$10 million. She paid him via cheque and made the cheque out to a different entity name (not NextGen). After she had paid, she never received the NextGen shares. She chased him for 3 years and finally in 2014, he informed her that he had sold her warrants, not shares, and that he had given the money to another shareholder who was supposed to transfer the securities to her. She obtained a worldwide mareva injunction against Hartanto and Telemedia Group. No progress seems to have been made on the case since 2018.

EY reports on public company affairs

In the interim, NextGen launched an investigation into its affairs after its directors discovered that certain funds of the public company had been transferred to a Hong Kong MSB named Niaga Finance, and its records did not reconcile. It hired EY to investigate the matter.

At that time, two of the directors of NextGen were Hady Hartanto and Tay Thai Seng, a/k/a Richard Tay, the director on the Form 10-Ks of the Vancouver-managed Worldstar Energy Corp.

The non-conflicted directors of NextGen believed Niaga Finance was a bank. Hartanto co-owned and was a director of the MSB Niaga Finance. Hartanto told EY that the public company’s money was wired to his MSB because he was more comfortable with it being there, as director of both entities.

If you’re like “what??”, you wouldn’t be alone.

Hartanto and Tay Thai Seng a/k/a Richard Tay were two signatories of the MSB’s bank account at HSBC, where the public company’s money landed.

Early Hady Hartanto connections (zoom out on a trackpad to read)

According to EY, S$22.5 million was transferred from the public company’s bank account at Barclay’s Bank to the MSB’s bank account at HSBC. From the MSB, the money then went to the credit of a company named Omega Creation Worldwide, which had no ties to the public company.

The funds were then wired to BNP Paribas under Omega’s name and no one could tell EY who controlled that bank account, although Hartanto told EY that it may be Tay Thai Seng. Another S$24 million was transferred to Niaga Finance according to EY for which EY stated there was no paperwork to explain such transfers. Additionally, S$20.7 million and S$17.3 million were transferred to Niaga Finance from the public company for unknown purposes, according to EY.

The first EY report was released in 2014 (available here). EY then was engaged to continue the investigation in 2014, and released a second report in 2017 (available here).

The 2017 EY report discusses the role of — a “Supriadi” — and stated that Supriadi appeared to be a “purported” director and shareholder of an entity named Bright Beach, together with another director named Wye Man, who told EY that she acts as Hartanto’s “dummy director.”

A “dummy” director? A “nominee” banker? A “purported” officer? Millions of dollars owned by a public company sent to an MSB and unrecoverable? The weirdness described in the two EY reports is quite astounding and it makes the round-tripping seem like child’s play.

世纪星⾠新材料(保定 ) 有限公司

We did some due diligence on Hartanto in China and according to federal government records in China, one of his companies, 世纪星⾠新材料(保定 ) 有限公司, is blacklisted.

Back to Vancouver

Hartanto has another private company in Hong Kong, called a “Foundation”, incorporated in 1997, from which he recently made a move to enter into a distribution deal with a British Columbia company. The deal fell through but it would likely have been blocked by RBC Royal Bank of Canada’s AML officers, which is the bank of the British Columbia company whose directors are connected to Hartanto, but it’s funny how it all started in Vancouver in 2007, and round-tripped back to Vancouver 15 years later.

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Part 1: Understanding round-tripping in the capital markets

By Christine Duhaime | August 6th, 2022

Part 1

SEC files rare round-tripping enforcement action against Canadian issuer

We tend to think of round-tripping as tax evasion round-tripping tied to FDI, where investments are routed through a no tax jurisdiction before being reimported into the economy of origin as FDI. Mauritius comes to mind, because billions of dollars are round-tripped there every year, from India and emerging nations of Africa. The FATF has cautioned Mauritius about this type of activity.

But before there was sophisticated tax-evasion round-tripping, local capital markets had their own version of round-tripping, with new public companies inflating sales or revenues, to increase valuations to sell stock and dump it on unsuspecting investors. Round-tripping is as old as the capital markets themselves but for some reason, in the last 50 years, it has rarely been prosecuted.

That is until recently when the Securities and Exchange Commission (“SEC“) filed a handful of enforcement actions specifically addressing round-tripping, some involving Canadians.

Round-tripping is frequent and yet so infrequently addressed in the law, that we’ve decided to cover it in a two part series.

In Part 1, here, we discuss what round-tripping is and a recent SEC enforcement action. In Part 2, we explore the world’s most famous round-tripping case involving a mysterious man from Asia named Hady Hartanto.

What is round-tripping?

Round-tripping is a scheme involving financial transactions of public companies. It literally means money that went around and ended up at the same place (it went around in a circle), but deceptively, so that it appears to those not-in-the know that new money came in, when the same money re-enters an issuer. A round-trip involves several financial transactions, and combined, we use the term round-tripping.

Round-tripping happens frequently enough with little issuers – they do it to inflate their sales and revenues artificially to deceive banks, investors and analysts. Issuers may also round-trip to obtain a loan from a financial institution, and insiders sometimes take money from an issuer and circle it around to acquire securities using the issuer’s own money (instead of their own).

In terms of money laundering, round-tripping usually goes hand-in-hand with trade-based money laundering. To round-trip to deceive, the issuer has to fabricate invoices and sales to move the money, and that part of round-tripping is trade-based money laundering. The underlying crime is fraud (fraudulent financial statements, false documentation to obtain credit, etc.), and the proceeds are proceeds of crime, and thus the financial transactions are laundered funds.

SEC case involving round-tripping

In June, the SEC filed a claim against Mark Korb (“Korb“), the CFO of a Canadian issuer called Petroteq Energy Inc. (“Petroteq”), listed on the TSXV, OTC and Frankfurt exchanges. The CEO of Petroteq was Aleksandr Blyumkin (“Blyumkin”). 

Korb was charged by the SEC with multiple failures to disclose material information to investors, including executive compensation, related party transactions and mining rights.  

Failures to Disclose Related Party Transactions

In 2013, business associates of Blyumkin began buying shares of Petroteq, accumulating 8.96% of Petroteq’s shares and as a result of owning that amount of securities, became its control person (the “Control Group”).

That Control Group acquired mining rights from third parties on certain federal land leases in Utah for $275,000 and then flipped the mining rights to Petroteq for $23.8 million, meaning that the issuer’s own control person entered into a non-arms length deal and made over $23 million. Petroteq filed a Form 10-K, that was certified, which failed to disclose that the transaction was a related party transaction with its control person, and that the Control Group had an interest in the transaction.

Money From Acquisition of Mining Rights Round-Tripped

Petroteq acquired the mining rights in two transactions from the Control Group.  In the first transaction, Petroteq acquired a 50% interest from Vendor A for $10.8 million, satisfied with a $1.8 million cash payment and the remainder in Petroteq shares. It then acquired the remaining 50% interest from Vendor B for $13 million, satisfied with payments in cash and Petroteq shares. 

Most of the $1.8 million cash that Petroteq paid to Vendor A for mining rights was returned (round-tripped) to Petroteq and to Blyumkin. Blyumkin directed that $1.4 million paid by Petroteq be wired to two companies in the Control Group.  These two companies then wired $1.39 million back to Petroteq to buy its shares. The result was that the same money came in, went out and came back in. Issuers cannot round-trip in this manner.

There is a lot more to the civil case against Korb than round-tripping, including in respect of related party disclosure, which can be read here, and it is highly recommended for Vancouver CFOs and auditors.

Criminal round-tripping

Round-tripping can be dealt with criminally as well.

In USA v. Vitaly Fargesen and Igor Palatnik (involving the cannabis issuer Canadian CanaFarma), two CanaFarma control persons were charged for raising money from investors on false statements, lying about having cannabis facilities and creating bogus deals to round-trip money around to create fake revenue for the issuer. They were hoping that by round-tripping using fake deals for technology, the stock price would increase and because they were the control persons, their stock holdings would be more valuable and they could cash out.

The auditor signed off on round trip transactions but likely was not aware of round-tripping risks or how to detect them.

YouTube Channel of SAExploration

In another case, USA v. Whiteley, the CFO of SAExploration, a well-known public oil and gas company was charged for round-tripping $12 million through several companies to create the illusion of having sales on the books in order to qualify for a corporate loan. In doing so, he certified to false financial statements which were filed with the SEC. The CFO pled guilty to securities and wire fraud and at his plea hearing, stated that he understood that he faced a 90 year jail sentence.

Stay tuned for Part 2, where we review the most famous round-tripping case involving a mysterious man from Asia.

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BVI Premier arrested for conspiracy to import cocaine for Mexican cartel and money laundering

By Christine Duhaime | April 29th, 2022

BVI – a global money laundering safe haven

The Premier of the British Virgin Islands, Andrew Alturo Fahie, and BVI port authority head Oleanvine Maynard (“Maynard“), were arrested on drug trafficking and money laundering charges in Miami yesterday, shortly after looking at $700,000 in cash in a private jet that was earmarked for them.

The cash, they were told, was a payment from the Sinaloa cartel in Mexico for facilitating the movement of cocaine and money through the BIV.

Alas, that wasn’t true – they were looking at bags of cash that were never going to come to them because they were the target of a US investigation to root out corruption in foreign government tied to drug trafficking and money laundering.

The case was a DEA undercover operation involving the BVI.

In an affidavit, a DEA agent says that persons who said they are members of the Lebanese terrorist organization Hezbollah, met a DEA undercover agent in Tortola and gave him Maynard’s name as a BVI government official who could help with drug importations and money laundering.

The DEA undercover agent was posing as a “fixer” for the Sinaloa, seeking a transshipment point for cocaine from Colombia. The Hezbollah told the DEA undercover agent that he “owned” Maynard and that BVI government officials would need to be paid to help with drug transshipments.

The son of Maynard, Kadeem Maynard, was also arrested. He acted as the contact person between the Hezbollah and the DEA undercover agent, and later for access to his mother. At the first meeting, Kadeem Maynard informed the undercover agent that he had been trafficking drugs for 20 years.

With respect to money laundering, at that first meeting Maynard told the DEA undercover agent that “we set up shell companies” for banking to get the proceeds of crime into the BVI. Her son owns a real estate company in Florida and Maynard offered his company bank accounts to launder money in the US.

Maynard told the agent that BVI Premier Fahie was “a little crook sometimes” and “not always straight.”

Oleanvine Maynard (Source: Government of BVI)

The undercover agent eventually met BVI’s Premier Fahie through Maynard, and they reached an agreement for drug trafficking protection in exchange for a cut of the drug proceeds. Part of the arrangement involved providing Fahie with seizures of bad drugs and money in the BVI so that Fahie would avoid suspicion and it would appear to the world as if he was combatting drug trafficking and money laundering in the BVI, when of course he was not.

Fahie said he wanted $500,000 upfront and he would handle the ports and airports. He also asked for an advance of $83,000 to pay a man from Senegal who had “fixed” some political issues for him in the past.

Andrew Fahie, Premier of BVI (Source: Government of BVI)

When he was being arrested, Fahie asked: “Why am I getting arrested? I don’t have any money or drugs.”

People say the most prophetic things to undercover law enforcement officers – take Fahie, for example. Almost like he was foreshadowing, at the beginning of the relationship, he told the undercover agent that he hoped the agent was not law enforcement because it took him 20 years to become Premier and he didn’t want to lose it all in 20 minutes being caught in a drug trafficking operation. He knew, in his gut, that the agent was law enforcement and in the end, many weeks later, he did lose it all – in 20 minutes. Maybe even in two.

Next steps

The defendants are charged with conspiring to import more than five kilos of cocaine into the US and conspiring to commit money laundering, and will be prosecuted in Miami.

The DEA issued a statement about the arrest, noting the agency’s “resolve to hold corrupt members of government responsible for using their positions of power to provide a safe haven for drug traffickers and money launderers in exchange for their own financial and political gain.”

AML Risks

The BVI has a population of only 29,000 and yet it has 400,000 shell companies and other private companies (with bank accounts attached to them). It is a known money laundering safe haven for politically exposed persons, criminal organizations and oligarchs. In the chart, below, we describe the money laundering and narco-trafficking risks for each Caribbean nation, including the BVI (on page 2).

If you look at Cayman Islands (page 3 of the document below), while it has similar shell, banking and money laundering risks as the BVI, the ratio of the population to shell companies is significantly less, as is the number of shells. That’s because while the Cayman Islands is a money laundering haven, it does not have the narco-trafficking transshipment footprint that the BVI has.

Checklist of AML Risks for each Caribbean Nation

If you’re wondering about the Hezbollah and whether they really are chilling in Tortola, setting up shells and moving dirty money and drugs, we don’t know from the DEA whether in this case, it really was Hezbollah operatives or Lebanese nationals just claiming to be the Hezbollah, who made the connection for the DEA to alleged corrupt BVI government officials.

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Vancouver full-patch member of Hells Angels part of a group that controlled eight public companies

By Christine Duhaime | April 28th, 2022

The Securities and Exchange Commission (“SEC“) filed two more cases in New York over Easter, targeting actors in the Canadian capital markets. The cases are for alleged pump and dump schemes. One of the two latest cases by the SEC charges Courtney Vasseur, a full-patch member of the Hells Angels in Vancouver, with securities fraud and alleges that he was part of a group that controlled eight public companies.

In total, five cases were filed or unsealed around Easter charging a group of mostly Canadians with securities fraud brought by the SEC and/or the US government. The defendants in the first set of actions are David Sidoo, Ronald Bauer, Craig Auringer, Adam Kambeitz, Alon Friedlander, Massimiliano Pozzoni, Daniel Mark Ferris, Petar Dmitrov Mihaylov, Chris Lehner (“Lehner“), Julius Csurgo (“Csurgo“), Anthony Korculanic, Dominic Calabrigo (“Calabrigo“), Hasan Sario (“Sario“) and Courtney Vasseur (“Vasseur“). 

All five cases are tied to the US$1 billion securities fraud case in Vancouver, SEC v. Frederick Sharp, Avtar Dhillon et. al., which is a series of actions brought by the SEC and the US government. That case alleges that for at least a decade, Vancouver’s Frederick Sharp (“Sharp”) and his associates (the “Sharp Group”) ran a factory of fraud in Vancouver offering securities fraud services, with a tight circle of gate-keepers, facilitators and “corrupt intermediaries”, who together, allegedly defrauded the capital markets and investors of US$1 billion. The money and the securities of many little public companies was laundered and integrated through the Vancouver financial system. 

First Case

The first newest case by the SEC charged defendants Dean Shah (“Shah“), Csurgo, Henry Clarke and a corporate entity owned by Csurgo in Toronto, Canada, called Antevorta Capital Partners Ltd. (“Antevorta“). Henry Clarke is tied to Shah in the corporate sense in Malta.

Antevorta Capital Partners website

In this case, the SEC alleges that Shah and Clarke were clients of the Sharp Group, and used his services to acquire and conceal control of several public companies to run pump and dumps to defraud investors. Part of the manner in which this was accomplished was using multiple private companies to act as nominee shareholders. 

According to the SEC, Sharp sold shelf companies to clients as part of the alleged obfuscation services. In order to communicate secretly, Sharp established an encrypted communication service with devices called X phones, that he used with clients to run the operation and, according to the FBI, assist clients commit fraud without law enforcement visibility. The SEC alleges that Shah and Clarke used the X phone service. 

Because the beneficial owners of the stocks involved were concealed behind private companies, the SEC alleges that the defendants were able to pump stocks and dump them on innocent investors at inflated prices. Investors were unaware that stocks they were buying were allegedly derived from fraud and from a secret control group. 

The SEC says that one of the pump and dump schemes conducted by the defendants was of Zenosense Inc. (“Zenosense”), and the fraud was carried out in several phases. 

The SEC says that Shah and Clarke acquired Zerosense from Sharp, and came to control most of its issued and outstanding shares. When they became the controller of the issuer, and therefore its affiliate, they hid that fact from the market, and failed to make the requisite disclosure filings. 

The SEC says that when new shares were being issued, Clarke asked Sharp if the certificates should be mailed to shareholders. 

Sharp is alleged to have replied: “Nooo. Never.” 

The SEC says that Sharp told Clarke that the share certificates should be sent to a lawyer who would forward them to Sharp. Clarke replied that he was working with a “straight” lawyer, which he stated was concerning. Sharp told Clarke to find a lawyer who would be willing to take the certificates from the transfer agent and send them to Sharp. 

According to the SEC, Sharp informed Clarke that the purpose of layering securities[1] was to insulate Sharp in the event of an investigation by the SEC because, according to Sharp, the SEC would not bother the lawyer. 

The SEC alleges that a lawyer in Canada working for one or more of the defendants deposited money wired from a bogus financial entity into their law firm trust account. That lawyer then wired the money to another law firm. The SEC says that in some instances, no legal services were rendered in connection with the movement of such money in and out of law firm trust accounts. 

Once Shah and Clark had secret control of Zerosense, they allegedly incorporated a shell in Belize through Sharp to act as the hidden payor for promotions of the stock, then pumped the stock and sold it when the price became artificially high, unjustly becoming enriched in an amount equal to US$2.3 million. 

A few years later, they allegedly undertook a second pump and dump of Zerosense. This time, Shah and Clarke allegedly partnered with Csurgo in Toronto and his company, Antevorta, to gain control of 90% of Zenosense’s issued and outstanding shares.

The SEC alleges that some of the defendants prepared fake stock purchase agreements purporting to evidence the purchase by Antevorta of the stock of one or more of the issuers for alleged consideration. One such agreement was with a company named Total Investment Holdings Ltd. The two pages of that agreement, below, show, for example, that there is not even a seller of the shares identified, as well as inconsistencies in respect of the parties to the contract and the use of a corporate seal.

For comparison purposes, except for the fictitious party names, the two pages, below, are from a real stock purchase agreement.

Total Investment Holdings Ltd. is a shareholder of a public company in Vancouver named Green 2 Blue Energy Corp., now G2 Technologies Corp.

The SEC alleges that Csurgo also acquired Zenosense shares from Sharp, and also executed a fake stock purchase agreement purporting to evidence an alleged payment for such shares when no consideration was paid for those shares. The Csurgo alleged fake stock purchase agreement was allegedly sent to broker-dealers to defeat their compliance processes. 

The SEC alleges that the Zerosense stock was pumped with Shah, Clarke and Csurgo selling over 6.3 million shares and earning proceeds of US$7.9 million. According to the SEC, they conducted a third pump and dump of Zenosense, earning US$3.2 million.

The SEC alleges that the same pattern of activity took place in respect of Drone Guarder Inc., Envoy Group Corp. and EnviroTechnologies International Inc., whereby one or more defendant amassed secret control of the stock of issuers for no consideration, orchestrated promotional activity, and engaged in manipulative trading to condition the market ahead of a pump and dump, subsequent to which shares were then dumped on innocent investors and everyone in the chain was unjustly enriched thereby.

Csurgo posted a video on YouTube on how stock manipulation works.

Second Case

In the second case, the defendants are Calabrigo, Lehner, Sario and Vasseur and they face similar allegations of securities fraud.

Vasseur is a full-patch member of the Hells Angels in Vancouver. Although a member of transnational organized crime, Vasseur was allegedly able to infiltrate the capital markets and with one or more of the defendants, allegedly controlled eight public companies.

The SEC says that for a three year period, some or all of the defendants manipulated the stock of at least nine public companies, including Zenosense, Blake Therapeutics Inc., Bingo Nation Inc., Drone Guarder Inc., Horizon Minerals Corp., I-Wellness Marketing Group Inc., Oroplata Resources Inc., Preston Corp. and Vilacto Bioscience Inc. and earned US$39 million in unlawful proceeds. 

The SEC alleges that they obtained the majority of the shares of these companies from Sharp associates or from the conversions of purported debt for shares, and held such shares in various nominee and shell companies which enabled them to conceal their control of the public companies. The SEC says that they were Sharp clients and part of the Sharp circle.

The SEC alleges that Vasseur helped draft promotional emails sent to investors for at least two of the companies. In one such promotional email, investors were promised returns of 15,000%. 

With another company called Bingo Nation, the defendants alleged that the company supplied gambling kiosks to gaming venues in the US which would generate US$30 million per week in revenues which promised to turn a US$2,000 investment into US$26,880 for investors.

The SEC suspended trading of the shares of Bingo Nation, and the SEC says that the company’s officers lied and denied knowledge about the pumping of its stock. 

The SEC says that the defendants used a boiler room to help promote the stock of issuers they controlled. Vasseur, Lehner and Sario allegedly worked with Luis Carrillo. In August 2021, he was charged criminally and civilly in connection with alleged securities fraud as part of the Sharp cases and was allegedly part of the Sharp circle.

When the stock prices were elevated, the SEC says that one of more of the defendants liquidated stock of the issuers. 

In order to move the proceeds around without running into questions by anti-money laundering professionals, the SEC says that the defendants used fake invoices and fake consulting agreements to wire funds.[2]

In these cases collectively, the SEC alleges that the defendants are responsible for pulling off a US$194 million securities fraud scheme.

There may be more cases coming down the pipe against Vancouver capital markets actors tied to the Sharp circle. But this set of cases, in particular, is important because of the threat posed to the capital markets arising from the fact that transnational organized crime allegedly infiltrated the capital markets through Vancouver and were able to allegedly control, with others, eight public companies.

In terms of liability for gate-keepers providing services for criminality to enter the capital markets, the YBM Magnex case in Canada reminds us that the costs can be high – in that case, the insurers of auditors, brokers, book-runners, underwriters and lawyers had to pay $185 million to investors for facilitating Russian organized crime figures to raise money and launder it using the capital markets of Canada. Almost everyone has ignored the YBM Magnex case for over two decades but have recently come to pay it more heed as a result of new interest in the provenance of dirty money held by Russian oligarchs.


[1] Layering is a money laundering term and it involves obscuring criminal origin and as far as possible, to distance money or securities and the beneficial owners from their sources and to make it difficult for an investigator to trace the securities or funds back to that source. Layering may be done in part through repeated transfers in different locations and may involve the use of a variety of transactions and the use of corporate structures as cover. 

[2] This is called trade-based money laundering, whereby fake documentation including invoices, or documentation that changes the amount or value of goods, services or securities, is created to launder money and often to defraud customs agencies. Although infrequently explored, TBML can be a material component of cross-border securities fraud and is prevalent in Vancouver, Canada.

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SEC charges several Canadians, including David Sidoo, with securities fraud over alleged pump and dump fraud ring that generated $145 million in proceeds of crime

By Christine Duhaime | April 15th, 2022

The Securities and Exchange Commission (“SEC“) today filed a complaint in the Southern District of New York, charging eight defendants, half of whom are from Vancouver, with alleged securities fraud that allegedly generated US$145 million in proceeds of crime.

In a parallel criminal proceeding over the same alleged scheme, the US government filed three indictments against ten defendants, four of which are the defendants in the SEC action and one of whom is a full-patch member of the Hells Angels in British Columbia.

The SEC Case

In the SEC case, the defendants are David Sidoo, Ronald Bauer, Craig Auringer, Adam Kambeitz, Alon Friedlander, Massimiliano Pozzoni, Daniel Mark Ferris and Petar Dmitrov Mihaylov. Mihaylov’s nick name is “Petar the Bulgarian”.

Among the public companies they are alleged to have used for securities fraud, is a British Columbia microcap public company named American Helium Inc.

Bauer runs a VC firm and is alleged by the SEC to be the ring leader of the stock scheme.

Ronald Bauer on the right in blue (Source: Behance)

Sidoo lives in Vancouver and used to be a stockbroker. He was convicted in the US of participating in the College Admissions Scandal. He paid $200,000 for someone else to ghost-write the SAT exams for his two children so that they could get into elite US universities.

The indictment against Sidoo in the College Admissions Scandal case alleged that he planned to pay again for a ghost exam writer to take the LSAT for his son in Vancouver to get into law school but the plan wasn’t put into place when a fake ID ordered from China was of low quality.

Sidoo entered into a deal to plead guilty to lesser charges and serve three months in jail in connection with the US charges and was released in December 2020. He was in the news afterwards in connection with a Covid-19 party at his $35 million Vancouver mansion, where some attendees overdosed on illegal drugs (they were attended to by BC emergency personnel).

At sentencing for the College Admissions Scandal case, Sidoo said he hoped people would not judge him. His lawyer told the judge at sentencing that Sidoo made one mistake which was, he represented to the court, inconsistent with “his entire personal life story.” In an interview here after his release from jail, Sidoo stated that everyone makes mistakes but “you move on from it.”

Sidoo receiving some sort of order from the Government of Canada (Source: Twitter)

According to a plain reading of the SEC complaint, and assuming the allegations are true, he did not move on from it, and the fraud committed under the College Admissions Scandal clearly was not inconsistent with his entire personal life story.

The SEC says that, with the other defendants, Sidoo participated in an illegal pump and dump scheme that started in 2006 that involved, for the group, at least 17 public companies. The SEC alleges the defendants controlled stock which was not disclosed, paid for misleading promotions of the stock of several public companies to lure innocent investors to invest and then sold their inflated stock and funneled the proceeds to themselves through offshore entities to obfuscate the transactions. Innocent investors were left holding the bag of much depreciated stocks.

The defendant Craig Auringer is a Vancouver native, whom the SEC says, ran the promotions for the alleged pump and dump schemes. He used to hang out in the Vancouver Yaletown club scene, and dated one of the women from the TV show “Real Housewives of Vancouver.”

Mary Zilba
Craig Auringer with one of the Real Housewives of Vancouver (Source: Flickr)

Two of the defendants are recidivists – Bauer (see here) and Mihaylov, thus it seems likely that to denunciate and deter, they and Sidoo will face maximum penalties if convicted.

For over two years, we’ve been tracking and data-basing certain stock promoters, lawyers, auditors, finders fee recipients, and hidden control persons operating in British Columbia’s capital markets – we know from network analysis of our database that some of the persons and entities connected to this SEC complaint were in the Vancouver Blockchain, then ICO space, with two microcap public companies that went bust after raising tens of millions of dollars, and the exact same people are presently raising money from investors in the NFT space.

Not surprisingly, this is another hidden control person case. For decades, Vancouver capital markets players have ignored the rules against secret control persons hidden behind microcap public companies, regardless of how often the SEC or US government takes enforcement or criminal action against the Vancouver capital markets ecosystem. In a 34-year-old case that we dug up (here), Vancouver’s Madam Justice Southin, who was an iconic judge, warned Vancouver capital markets players against using whom she called “monkeys” (facilitators) to commit securities fraud by not disclosing control persons to investors.

Criminal Indictments and Hells Angels

At the same time, the US Attorney for the Southern District of New York, and Michael Driscoll, the Assistant Director-in-Charge of the New York Office of the FBI, announced parallel criminal proceedings in connection with an alleged US$100 million securities fraud scheme involving similar conduct described in the SEC complaint but against ten defendants, including Bauer, Auringer, Ferris and Mihaylov (but not the other four).

The other defendants in the criminal actions are Chris Lehner, a/k/a “Santa”, a Canadian, Julius Csurgo, a/k/a Gyula Karoly Csurgo, a Hungarian national, Anthony Korculanic, a Croatian national, Dominic Calabrigo, a Canadian, Hasan Sario, a Turkish national, and Courtney Vasseur, a Canadian who goes by the name “Arctic Shark”. The US government says that they sought the assistance of Guernsey and Crypus, among others, for intel and evidence – those two jurisdictions are interesting because they are the preferred jurisdictions of Russian, Ukrainian and other Eastern European members of organized crime for corporate entities. They are favored because like British Columbia, their incorporation structures are designed to be impenetrable to law enforcement, preventing the ascertainment of the identity of legal shareholders of companies.

According to the Combined Forces Special Enforcement Unit in British Columbia (see here), “Arctic Shark” is a full-patch Hells Angels, who belongs to the Nomads chapter, with previous charges for drug trafficking.

Hells Angels member Courtney Vasseur (Source: CFSEU and Vancouver Sun)

Bauer, Lehner, Vasseur, Csurgo, Korculanic, Mihaylov and Calabrigo were arrested in different countries, which is quite a coordination achievement by law enforcement agencies who have to move at the exact same time to arrest alleged securities fraudsters so that no one target makes a phone call to inform the others. Three others remain at large.

The indictments for the criminal charges include money laundering and are somewhat vague as to all the companies involved and other participants, which usually means that information is being withheld because it ties into ongoing investigations. The indictment for “Arctic Shark” is here.

How a known member of a translational criminal organization (the Hells Angels) was able to infiltrate the capital markets in British Columbia, instruct local solicitors, participate in the creation of disclosure material with solicitors, and have bank accounts to receive proceeds of the alleged securities fraud is something no doubt all of Vancouver is waiting to learn from the US Department of Justice once Vasseur is extradited.

Some of the information that is disclosed in the criminal indictments, especially the alleged use of Swiss platforms, as well as the alleged Hells Angels connection, seems to suggest that it ties into the global Frederick Sharp, Avtar Dhillon et. al. prong of cases (our slow burn summary of those allegations here). Not just that, we believe that Csurgo was a client of the Frederick Sharp group, which is another tie to that case.

The Frederick Sharp, Avtar Dhillon et. al. prong of cases include a US$1 billion set of allegations by the SEC that Vancouver capital markets players set up what can be described as a factory of fraud in downtown Vancouver which offered specialized services – those specialized services were allegedly securities fraud services involving a circle of gate-keepers and facilitators who allegedly, among other things: helped harvest and acquire shell and shelf companies; helped secret control persons hide their control of the stock of microcap public companies; helped complete RTOs; helped advise on, write and disseminate press releases and other disclosure material containing false information about microcap public companies to cause the stock price to jack up; helped create false central securities registers that falsely reflected the names of shareholders; created false legal opinions so that securities could be free-trading and which contained false information about control persons; promoted the stock to innocent investors; sold the stock at artificially high prices to enrich members of the alleged organized fraud scheme; used offshore brokerage and bank accounts to hide the movement of the proceeds of securities fraud; and then layered, and integrated all the proceeds – US$1 billion of it – right back into Vancouver through the gate-keepers and facilitators.

Where did the proceeds end up? Chances are high, if the allegations are true, that it was integrated into the financial system for the purchase of mansions, luxury cars, private schools, fancy watches, fast boats and trips on private jets because, after all, it’s Vancouver.

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Two famous global brands sue over NFTs

By Christine Duhaime | March 27th, 2022

As NFTs become more mainstream, so too are lawsuits involving NFTs – two lawsuits observers in the NFT space are watching closely are by two global brands – Hermès Paris and Miramax Film’s Pulp Fiction

Hermès NFT Lawsuit

At the beginning of the year, the famous French luxury brand Hermès Paris filed a complaint in New York against a California artist who created Metaverse NFTs that are digital knock-offs of the Hermès Birkin bag. 

The NFTs are called MetaBirkins.

The Hermès complaint alleges that the digital bags infringe on the Hermès trademark and harm its global brand. 

The MetaBerkins NFTs were created as a collection of 100 digital purses shaped like a Hermès Birkin bag with some of its features, that are each identical except they each have a layer overlaid on top with a different combination of digital faux fur and different colours. 

They were listed for sale on the NFT platform OpenSea and sold for between 5 to 25 Eth each (US$15,000 to US$80,000). As of December 2021, the project had revenues of 200 Eth from sales of the MetaBirkins. By January 2022, revenues surpassed US$1 million. 

Instagram account promoting the sale of MetaBirkins NFTs (Source: Instagram)

A Hermès Birkin bag in the real world starts at about US$10,000 and can go up to US$300,000 on the secondary market (private re-sales).

Except in France, in order to be eligible to buy a Birkin bag from Hermès, a person must be an existing customer of Hermès and have spent an amount in the past equal to the price of a Birkin bag.

An image of a real Birkin bag (Source: Hermès complaint)

According to the complaint, although OpenSea listed the NFTs for sale which used the Hermès and Birkin names, it later agreed to de-list them after lawyers acting for Hermès demanded they be removed. 

Hermès alleges that the artist then created a Discord channel to sell the MetaBirkins NFTs after OpenSea removed the collection from its platform. 

When the Discord channel was launched, Hermès filed an amended complaint on March 2, 2022, partly to include the move to Discord, presumably because it meant that the sale of MetaBirkins NFTs was continuing, and if a Court were to find that there was an infringement, then damages also continued. 

The complaint alleges that the artist is ripping off Hermès’ brand to “get rich quick” through NFTs, and that the use of the Hermès brand will confuse consumers and lead the public to believe that the MetaBerkins NFT project is associated with Hermès. 

Hermès is seeking an injunction to stop sales of the MetaBirkins NFTs, and an order that all the NFTs minted be destroyed, and for custody and control of the project website, as well as damages for expropriating its intellectual property. 

The artist who created the MetaBirkins NFT collection stated on Instagram that the Hermès lawsuit was groundless and that his lawyer informed him that the US First Amendment allows him to make art that depicts Hermès’ Birkin bags in the same way that Andy Warhol was allowed to create paintings depicting a can of Campbell’s soup. Andy Warhol, however, never received consent from Campbell’s for his paintings and while Campbell’s initially contemplated action, it eventually tacitly approved of his use of their logo and his appropriation of their IP, even sending him a box of Campbell’s soup.

The Hermès case is being touted as the first Metaverse infringement case but it isn’t really about the Metaverse except tangentially – the MetaBirkins could be sold and used in the Metaverse and to that extent, it appears to be the first case of a lawsuit by a global brand suing over (among other things), the use of its trademark prospectively in the Metaverse, and in that respect, could be said to be in unchartered legal territory. 

Pulp Fiction Lawsuit

In November 2021, a somewhat similar lawsuit involving IP and NFTs was filed by the iconic film brand Miramax LLC against film director Quentin Tarantino over “secret” NFTs that Tarantino said he was creating of scenes from the Miramax film Pulp Fiction.

That lawsuit, however, is not Metaverse-related and is a copyright infringement case. 

Secret Pulp Fiction NFTs (Source: YouTube)

Miramax says that it sent Tarantino a cease and desist letter when it found out about the proposed NFT project, subsequent to which Tarantino allegedly stepped up efforts to market the “secret” NFTs, and announced that OpenSea was going to list them for sale. 

Miramax alleges that Tarantino created a website and used the likenesses of Pulp Fiction actors John Travolta, Samuel Jackson and Uma Thurman on the Tarantino NFT website to promote the NFTs. 

It also alleges that a Twitter account was created for the Tarantino NFTs, which contained a Tweet with a GIF from another Miramax film, Kill Bill: Vol 2. That Twitter account appears to now be empty. 

The defendants, including Tarantino, filed a response in which they state that each secret NFT is merely a scan, saved in a digital format, of a page of a typed portion of the screenplay for Pulp Fiction, which are minted as NFTs, and such photos of photocopied pages of the typed screenplay are not the intellectual property of Miramax. 

Tarantino says (in the YouTube link above) that the typed-up pages of the Pulp Fiction screenplay were created by a typist and the physical screenplay has remained unopened for over two decades and includes some of his doodles and drawings on some pages. And that physical copy of the screenplay created in 1993, Tarantino seems to be arguing, remained his property and was not sold or assigned to Miramax. It’s an interesting point because this was before word processing software existed and was widely used, so if Miramax did not acquire all the rights to the screenplay, what did they get? And wearing a 1993 lens, if the agreements do not expressly include all copies and pages of the screenplay, could it not be implied that they are included?

One of the Tarantino NFTs sold for over US$1.1 million in January 2022.

Pulp Fiction dancing scene (Source: Twitter)

The plaintiffs in both lawsuits are seeking the destruction of all allegedly infringing minted NFTs which means that if one or both are successful, the buyers of those NFTs will be holding worthless NFTs.

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NFT

China grappling with HFT activities run by foreign firms in its capital markets

By Christine Duhaime | March 26th, 2022

China’s influential newspaper Caixin, recently investigated the renewed use of high-frequency trading (HFT) in China’s futures market, operated by foreign companies that, it reports, are incorporated under fictitious corporate purposes.

According to Caixin, some HFT firms are ostensibly registered to engage in the trading of physical goods in China, when in reality they are engaged in HFT activities in China’s markets, and exiting the proceeds from China to other countries.

In China, unlike western countries, the incorporation process involves, among other things, selecting the type of business activities the company intends to engage in and pursuant to which it is approved for registration and operation.

Deliberately selecting a wrong set of business activities to do business in China during the incorporation phase is done to keep a company’s real activities off the regulatory radar.

There is no parallel in the west except that is it similar to the practice in the Bitcoin space among digital currency exchanges and online gambling companies of mischaracterizing their activities to be erroneously merchant-coded as a low-risk activity by credit card processors and banks.

In 2019, the profits to HFT firms operating in China were estimated to be 5 billion yuan, or US$725 million, and 60% of that exited China to foreign HFT firms.

As Caixin explains, foreign firms have been barred from trading in China’s commodity futures market for a long time. In 2018, the crude oil market was opened to registered foreign firms and in November 2021, commodity futures were opened to foreign firms but only under the Qualified Foreign Institutional Investor program and its yuan-denominated program.

The Good Morning Shanghai program on November 2, 2015, discussed the Yishidun HFT investigation by LE in China (Source: Government of Shanghai)

The well-known case of Yishidun International Trading Co. 张家港保税区伊世顿国际贸易有限公司 shows that foreign firms have been engaging in HFT activities in China since at least 2014.

Yishidun is a Chinese registered company owned by two Russian nationals, who controlled the company through two Hong Kong entities, Quantstellation Investment Management (HK) Limited and Vulkan Capital Advisers Limited. It developed HFT software and managed HF trades.

According to Caixin, it traded 3.77 million futures contracts on two major stock indexes in China – the CSI 300 Index and CSI 500 Index – and made profits of 389 million yuan in just over two months during China’s stock market tumble that began on June 12, 2015, and resulted in US$5 trillion being wiped out of the market.

In 2016, Yishidun was prosecuted for market manipulation and the Court determined that it illegally connected its HFT software and technology system to the systems of the China Financial Futures Exchange. It did that through a registered broker in China.

Yishidun was fined 300 million yuan (US$43.9 million) and ordered to disgorge 389 million yuan in proceeds of crime from illegal gains from HFT activities. Three people in China were charged and convicted of criminal offences involving securities market manipulation, and sentenced to terms of incarceration.

The two Russian nationals allegedly departed from Hong Kong to avoid arrest in the case.

Caixin reported that Yishidun invested US$700,000 and did a capital raise in China of 3 million yuan, and made a profit of 2 billion yuan.

Shanghai No. 1 Intermediate People’s Court, Yishidun International Trading Co. hearing (Source: Government of China, Shanghai No. 1 Intermediate People’s Court)

The prosecution caused a chill in respect of the deployment by foreign firms of HFT in China’s markets. But apparently not for long. Fast forward to 2022, and Caixin reports that several foreign firms once again have a strong presence in the HFT space in China, including one called Hudson River Trading in the US and another in Russia called AIM Tech. Most, however, are based in the US, according to the Caixin investigation.

One of the issues faced by Yishidun was the problem of converting and exiting its profits out of China under the currency control rules because the proceeds from the trading activity was neither a capital nor a current account qualified category for conversion or exiting by that firm.

Except for the US$50,000 annual amount permitted by SAFE to be converted and exited by Chinese nationals pursuant to the current account rules, any conversion and exiting of currency must be approved and foreign firms engaging in HFT activities do not fit under the set categories determined by SAFE and thus the issue of conversion and exiting still exists at the bank end.

In its periodic reports of money laundering and bank fraud cases using abuses of the current or capital categories to exchange and exit funds, SAFE provides numerous examples of underground banking techniques used and of trade-based money laundering, as mechanisms in which funds are often moved to circumvent the SAFE regulations.

The issue still remains in 2022 from a money laundering and foreign currency conversion and exiting perspective, as it did in 2015 – namely, how is any of the HFT proceeds being converted and exited from China to Russia and the US?

In 2020, China’s Supreme Court cited Yishidun’s conduct as part of seven case studies of securities crime, calling the criminal activities a “new type of manipulation” of the futures market.

It was part of a series of four cases prosecuted in China.

Another was the prosecution of Xu Xiang, who ran a billion dollar hedge fund which was, in essence, the Chinese version of a pump and dump factory, manipulating the stock of many unknown companies. The fund grew 800% in five years.

Until his arrest, Xu was a legend in China because he was a real rags to riches story who turned an investment of 30,000 yuan into 28 billion yuan, with his own sweat and talent. Unfortunately, in the latter years of his fund, the growth was derived from criminal activities and stock market manipulation, and Triads had joined the fund to reap the financial rewards.

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Vancouver fraudster charged in alleged US$58 million boiler room stock scam; related to Frederick Sharp case

By Christine Duhaime | March 18th, 2022

The Securities and Exchange Commission (SEC) has filed another enforcement action related to the Frederick Sharp case, this one involving the operation of a boiler room in Colombia used to solicit investments from investors for little issuers.

The SEC alleges that the defendants ran a call centre boiler room in the cocaine capital of the world, Medellin, Colombia, which generated US$58 million in proceeds of stock fraud. They allegedly hurt elderly victims and other investors in Canada and the US, and using high pressure sales techniques, sold them stock they knew would be worthless because the stock was controlled by hidden control persons, and was being dumped on the market. The defendants allegedly charged a commission of 65% of the proceeds of stock fraud.

The defendants are Canadian residents Francis Jason Dean Biller, Raymond Christopher Dove, Troy Gran-Books and Justin Plaizier, and American Chester Bruce Alvarez.

Biller is a/k/a Frank Biller, who has a criminal record in British Columbia for fraud related to the Eron Mortgage Corporation securities fraud Ponzi scheme in Vancouver. He was permanently banned by the Ontario Securities Commission from serving as an officer or director of an Ontario issuer, and was found by the British Columbia Securities Commission to have engaged in illegal and fraudulent activities. 2,285 investors were defrauded of $240 million in the Eron Mortgage Corporation case.

Biller received a light jail sentence of three years, despite that it was BC’s biggest financial crime case at the time. The Frederick Sharp case, to which this is related, is now the biggest financial crime case in British Columbia and Biller is involved again in a now bigger financial crime case in British Columbia.

Jurists criticized the Biller sentence because it was devoid of deterrence or denunciation, required elements in sentencing, and sent out a clear signal that financial crime pays in Vancouver.

Frederick Sharp is a Vancouver-based “company service provider”, as that term is known under the FATF Recommendations. This enforcement action is a prong of a much larger case against Sharp and his associates in Vancouver which alleges that they orchestrated a US$1 billion stock fraud over a ten year period in Vancouver by running a type of fraud factory, servicing Vancouver capital markets players with the assistance of numerous professional facilitators who laundered securities and money.

In the new Biller enforcement action, the SEC added relief defendants including Lia Patricia Sepulveda Salazar, a/k/a Patricia Biller, who allegedly received over US$3 million from the stock fraud proceeds in accounts in her name and Edward Thomas Clark in British Columbia, who allegedly received US$630,000 from the proceeds in Canada.

In this complaint, the SEC focuses on three little issuers: (a) Oroplata Resources Inc. (“Oroplata”) in the Dominican Republic, now American Battery Metals Corporation, which alleges it is a lithium battery maker; (b) Vancouver-based Garmatex Holdings Ltd. (“Garmatex”), which is now Evolution Blockchain Group, which stated that it released an ICO and ran an online gambling service in Vancouver; and (c) New Jersey-based PureSnax International Inc. (“PureSnax”), now IQST, which allegedly sells FinTech, Blockchain, and electric vehicle services, as well as operates a digital currency exchange. Previously, it allegedly manufactured healthy snacks but reported having no employees or facilities.

The SEC says that Biller and Dove led the boiler room operation. According to the SEC, Biller and Dove promoted two little issuers at a time under a fictitious company name and set up a website for that fake entity. They expropriated the names of professionals and firm names for credibility and legitimacy, which they used during the sales calls. When that so-called “platter” of two issuers was pumped and dumped and became worthless stock, they started all over again with two more under new company names and new expropriated names of professionals.

The SEC says that the Oroplata (now American Battery Metals Corporation) pump and dump involved a situation where the hidden control persons controlled 100% of the issued and outstanding shares, and in the case of Garmatex (now Evolution Blockchain Group), 90% of the issued and outstanding shares were secretly controlled. In the latter, they earned US$7 million in proceeds of fraud for the alleged pump and dump of Garmatex (now Evolution Blockchain Group). One retired investor lost US$2 million buying Garmatex stock.

The defendants are charged with fraud and stock manipulation.

Note: To GenZs, a boiler room is a cool secret EDM concert that takes place in a small location. For anyone older than GenZs, a boiler room is an illegal cold calling sales centre.

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New York lawsuit for $20 million against Deltec Bank and Others, reveals a little about the ICO world

By Christine Duhaime | March 11th, 2022

An interesting civil complaint was filed in the US District Court for the Eastern District of New York on March 10, 2022, which gives a rare window of visibility on the initial coin offering (“ICO“) process. Its a world not too many have knowledge of and which many thought was a thing of the past with the prosecution of one ICO project after another in the US.

The complaint was filed by a company in New York called Dreamr Labs Limited against the bank infamous for banking Bitfinex-Tether – Deltec Bank & Trust Limited in Bahamas. The Bitfinex-Tether bank apparently has a company that provides ICO services, similar to the ICO services once offered by Vancouver’s ICO company Vanbex, called Delchain Limited and it is also a defendant.

Other co-defendants are SFH Suisse Finance Holding SA, DeBruno Macchialli and Richard Iamunno. SFH Suisse Finance Holding SA appears to be a payments processor which provides encrypted messaging services, and offers financial services to send money to anyone by linking debit and credit cards.

Macchialli allegedly runs the Deltec Bank’s ICO advisory firm located in Porte Vedra, Florida. Iamunno is an executive of an investment firm called Atlantic Capital LLC also in Florida, according to the complaint. SFH Suisse Finance Holding SA is apparently directed by a foreign lawyer practicing and residing in Florida. All the parties are in or connected to the US, except the Bitfinex-Tether bank, Deltec Bank & Trust. Deltec Bank & Trust is or was run by someone named Gregory Pepin, who is an executive of a public company in Canada called Braingrid, an agriculture company, recently renamed Tony-G Co-Investment Holdings, and now a mixed crypto news and clothing investment company. The principal regulator appears to be the Ontario Securities Commission.

In the filed complaint, Dreamr is seeking US$20 million in damages for alleged fraud, defamation, breach of contract, fraudulent inducement, conversion and tortious interference. 

According to the complaint, Dreamr hired Delchain to work on its ICO, get it listed and to promote the investment to investors. It’s unclear why they needed someone else to do this work except that the complaint alleged that Dreamr was obliged to open an account at the Deltec Bank and did open such account.

The complaint alleges that it was represented to Dreamr that it would earn US$100 million from its ICO if the ICO was promoted because they (it does not say who) could cause or assist the price to be US$1.00 per ICO unit.

Dreamr says it paid US$80,000 in bank fees and service fees to Delchain and Deltec Bank & Trust Limited. 

Dreamr alleges it entered into an agreement with Suisse Finance Holdings SA for the preparation of investment material for investors of the ICO, as well as to act as what is called a finder, introducing investors to invest in the ICO. It’s unclear if they ultimately acted as a finder, charging finder’s fees for locating investors of the securities.  

Dreamr then allegedly entered into another agreement, this time with Atlantic International Capital LLC, for services that the complaint allege involved fast tracking the approval for accounts. It is unclear what this service is – there is no such thing in the banking, crypto or securities world. The only way to fast track an account approval if it involves financial services is to circumvent AML processes.

Dreamr says it paid Bittrex, the digital currency exchange, US$140,000 to have its ICO listed.

Then things got weird when the ICO was ready for launch.

Apparently, when the ICO tokens were created and issued but not yet listed, Dreamr allowed the Deltec people (the bank and its US ICO advisory arm) to hold its property in trust by custodying the ICO units. Why they did that is unclear. There are firms regulated as trust companies by US state financial regulators and insured to custody crypto assets in the US.

When the ICO was listed and was ready to be pumped out to the market by those hired to promote it, Macchialli allegedly caused the Dream ICO to be stopped for alleged due diligence concerns.

Dreamr says it was having concerns in respect of SFH Suisse Finance Holding SA and on September 1, 2021, it allegedly sent a confidential email to Macchialli and Iamunno in respect of SFH Suisse Finance Holding SA. It alleges that they forwarded their client’s confidential email without the knowledge or consent of the client, to SFH Suisse Finance Holding SA. The client, Dreamr, only found out about the breach of confidentiality in February 2022.

Dreamr alleges that although the Dream ICO was listed and was being bought by investors, the crypto assets held in trust for Dreamr in the custody of the Deltec Bank and the Deltec Bank ICO advisory company in Florida, were not being returned to the client – in effect, (the complaint does not use these words) it appears that the bank and its US ICO advisory branch imposed a mareva injunction over the client’s crypto assets, preventing the client access, with no juridical reason if the allegations are true. Considering the firm was US based and the assets were US assets belonging to a US firm, it seems surprising that a bank would mareva without obtaining a mareva injunction from a court of law.

As at November 17, 2021, the Dream ICO was US$0.12 per unit equal to US$21,793,346 million based on the issued and outstanding ICO units. 

Dreamr alleges that during the Deltec-generated mareva injunction period, all the defendants allegedly sold Dream ICO units, and profited thereby. The complaint has some significant gaps and it is unknown whether the complaint is alleging that the defendants transacted in Dream ICO units that were held in trust and liquidated some or part of the client’s property, or whether they were issued ICO units as insiders in consideration for services rendered, which often happens with ICOs, and sold their insider ICO units on the market. It is possible they actually bought some of the ICO units and were selling those.

The concept of issuing tokens to insiders for no consideration and without disclosure, and subsequent insider trading was a topic first raised in 2016, in Canada with the issuance of Ether by Ethereum. It wasn’t resolved then, and as a result, most ICOs then followed the Ether model of issuing substantial portions of the issued and outstanding ICO units to insiders for no consideration, and allowing the insiders to cash out without a hold period. We do not know if this ICO involved any insider issuances.

By November 20, 2021, Dreamr alleges that a new reason was provided by Macchialli at Delchain for the hold (mareva injunction) over the client’s financial assets, which was that they allegedly received a letter from a third party which alleged fraud in connection with the Dream ICO. Delchain and Deltec Bank & Trust Limited allegedly refused to provide the alleged letter that they had allegedly received to their client, asserting that it was “confidential.” 

Eventually, they released the client’s property back to the client but by then Dreamr says the price per ICO had dropped 50%. They also allegedly disclosed to their client that the author of the alleged letter allegedly claiming fraud on the part of Dreamr was the other advisor on the ICO project – SFH Suisse Finance Holding SA, and ergo not even a third party.

The defendants have not filed a response yet.

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