SPEAKERS CONTENTS INSERTS
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ONE BROKER GONE BAD:
PUNISHING THE CRIMINAL,
MAKING VICTIMS WHOLE
Thursday, May 23, 2002
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Financial Services
Washington, D.C.
The subcommittee met, pursuant to call, at 9:30 a.m., in Room 2128 House Office Building, Hon. Sue W. Kelly [chairwoman of the subcommittee] presiding.
Present: Representatives Kelly, Ney, Cantor, Tiberi, Inslee, Jones of Ohio, Clay, and Oxley (ex officio).
Also Present: Representatives Hastert and LaTourette.
Chairman KELLY. Good morning, ladies and gentlemen. This hearing of the Oversight and Investigations Subcommittee of the House Committee on Financial Services will come to order.
I want to thank all members of Congress who are present today. Without objection, all members present will participate fully in the hearing, and their opening statements and their questions will be made part of the official hearing record.
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On January 11, 2002, Frank Gruttadauria, a Cleveland branch manager and broker, mailed a letter to the FBI admitting to 15 years of wilful fraud and theft of his clients' savings, and he disappeared. In the aftermath of this revelation, law enforcement, the regulators, the successive owners of that branch, and Gruttadauria's clients, began to uncover the extent of this one broker's deceitfulness and the intricate web of lies that he employed to perpetrate his fraud.
We do know that Mr. Gruttadauria is accused of at least—stealing at least $40 million of his client's savings, while sending his clients fake statements stating that their savings had grown to an estimated combined total of $260 million. Today, Mr. Gruttadauria is in federal custody after less than a month of being on the run.
It appears that his efforts to evade detection by the firms and regulators were much better than his ability to evade the law. One issue is clear: Mr. Gruttadauria and any who assisted him will be punished for their crimes. From my initial review of this case, Mr. Gruttadauria had the ability to perpetrate this fraud because of his position in the Cleveland branch as both manager and a broker. This put him in the position of supervising himself, which is a key point in this case.
Another key point is the lack of complaints in regard to Mr. Gruttadauria's actions. The majority of investigations against problem brokers appear to be triggered by five or more complaints. Since Mr. Gruttadauria was able to send false statements to his clients and forged any authorization he needed, he appears to have avoided scrutiny, including anything that occurred through traditional warning signs.
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The purpose of this hearing is to examine this case in an effort to determine what steps are warranted to ensure that similar fraud and theft is prevented. Our responsibility is to ensure that scams such as this will not go undetected again. In order to do this, we must take a step back from the particulars of this case and examine the systems that firms and regulators have in place to detect such fraud by managers' brokers.
We know that the securities industry is very full of intelligent people. If they put their mind to it, they could potentially inflict a great deal of harm on the savings of many families and investors. To preserve and bolster investor confidence, we must gain an understanding of how the current systems were defeated so consistently over the course of approximately 15 years by Mr. Gruttadauria.
I want to thank all of our distinguished witnesses for taking the time out of their busy schedules to join us here today. The committee understands the constraints that some of our witnesses are under and their inability to discuss some of the specifics of the case due to the ongoing nature of the Gruttadauria investigation. The last thing we want to do is to inadvertently harm the prosecution of Mr. Gruttadauria or any of his accomplices.
We appreciate your willingness to come here today to discuss the issues to the best of your ability. I also want to make it clear to the members of this committee, and to our witnesses, it is my intention to enforce the five-minute rule, which limits statements and questions to a five-minute period. This will ensure that everyone has an equal chance to state their views, and I thank you all in advance for this effort.
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I want to now recognize the Speaker of the U.S. House of Representatives, our Speaker, Mr. Dennis Hastert, for an introduction.
Mr. Hastert, we welcome you here today. Your presence lends a great deal to this hearing. Thank you. Mr. Speaker, your mike needs to be turned on.
[The prepared statement of Hon. Sue Kelly can be found on page 64 in the appendix.]
The. SPEAKER. I haven't done this for a while. No.
[Laughter.]
Chairman Kelly, thank you very much for holding this hearing today. I also want to thank Mr. LaTourette, because he worked to bring this about, and also the Chairman of the full committee for making this happen.
You know, one of our bases of wealth in this country is the people having confidence in securities and 401Ks and money markets and mutual funds that they can invest their money, the money that they worked hard or inherited or saved or scrimped, or however they accumulated it, and to see that money grow, so that they can have something to live their life with and to pass on to their children and their grandchildren. And we have seen that wealth grow in this country over the last few years.
But I have a constituent here today, Mrs. Golda Stout, from Elgin, Illinois, who invested over $600,000, or her life savings, everything she had, with a broker, the same broker that you had mentioned in your opening statement. She lost that money, not because of fault of her own, in good faith, under the confidence that she was investing with a brokerage house that had a good name, a good reputation, and all of a sudden that fortune, that savings, that lifetime investment that she had, was gone.
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We need to make sure that, first of all, those people who perpetrated those deeds are punished. But that certainly doesn't make whole those people who were the investors. We also need in this Congress, the body that makes the laws for this country, to make sure that we have a system in place that people have confidence that they can invest in the markets, invest in the security systems that we have today, that they have confidence that if a brokerage house is there and has a good name, it is something that they can have confidence in, and that there is a system, that we have checks and balances, that this type of thing doesn't happen again.
So, Madam Chairman, thank you for having this hearing today. Again, I want to thank Mr. LaTourette for bringing this forward, and for the Chairman of the full committee for allowing this hearing. But most important, I also want to thank those people who are here today to bring this issue forward, to lay out what the problem is, and try to help us to start to find the solutions to this problem.
I also, again, want to thank my constituent, Mrs. Golda Stout, for being here today and testifying.
So thank you very much, Madam Chairman.
Chairman KELLY. Thank you very much, Mr. Speaker.
We go now to the Chairman of the full committee, Mr. Oxley, for an opening statement.
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Mr. Oxley.
Mr. OXLEY. Thank you, Madam Chairwoman.
And, Mr. Speaker, thank you for your appearance before the committee today. We welcome you back anytime.
I want to take this opportunity to thank you, Mrs. Kelly, for this important hearing. The subject of today's hearing, Mr. Gruttadauria, who had as many as 470 clients during the height of his success, earning more than $6 million in commissions in a good year, for some unknown reason that was apparently not enough. It appears that over 15 years he sent false statements to two dozen or more of his clients.
It is further alleged that over the same 15-year period he misappropriated possibly hundreds of millions of dollars, somewhere between $125- and $700 million from those clients, several of whom treated him as warmly as they would members of their own families. One client even made him the executor of his estate.
He was never caught. Apparently, feeling that he was on the verge of being found out, he called his activities to the attention of the FBI, fleeing to Colorado where he eventually surrendered to authorities. State and federal authorities, as well as the brokerage firms which employed him, are continuing their months-long effort to uncover the extent of his activities. We can only hope that those efforts will bring a sense of closure to his many victims and their families.
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It is my sincere hope that our efforts today will be of help in this ongoing investigation. We will have the opportunity to hear directly from several of Mr. Gruttadauria's victims, and we will learn first hand from them how he concocted a scheme whereby he misdirected their brokerage account statements to post office boxes which he rented and personally controlled. He then created false statements in order to mislead his clients about the real value of their investments.
Although some may feel that outages of the sort that were inflicted by Mr. Gruttadauria upon his trusting clients are systemic, the efforts being undertaken by the law enforcement prosecutors, SEC, and New York Stock Exchange, Lehman Brothers, and S.G. Cowen Securities would certainly indicate that this is certainly not the case. Hindsight is always perfect, yet our examination revealed that there were missed opportunities for the various authorities to stop his criminal activity.
The presence of representatives today from the SEC, New York Stock Exchange, the SIA, National Association of Securities Dealers, and North American Securities Administrators, underscores their commitment to ensure that violations of securities law such as this particularly egregious case do not occur in the future, and I look forward to hearing from them today about their efforts.
Let me also note that this committee was pleased to work with the SEC in order to provide it with a significant increase in its budget to allow for a much needed escalation of its enforcement capabilities. As a matter of fact, we provided in the reauthorization bill that passed this committee unanimously a 50 percent increase in the budget in the Enforcement Division of the SEC.
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Apparently, the SEC also had some information years ago on Mr. Gruttadauria, and I also look forward to hearing from the SEC about how it will improve its processes.
Before I close, Madam Chairwoman, I want to particularly pay tribute to our good friend, Steve LaTourette, for his doggedness and his determination on this case. Steve was a renowned prosecutor before he came to Congress, and he has taken those skills with him on this committee. We are pleased to have him on the committee as a very aggressive and active member, and this hearing, in many ways, is a tribute to his steadfastness on this issue.
And I am pleased to yield back the balance of my time.
[The prepared statement of Hon. Michael G. Oxley can be found on page 65 in the appendix.]
Chairman KELLY. Thank you very much, Mr. Chairman.
We now go to Ms. Tubbs Jones.
Mrs. JONES OF OHIO. Thank you, Madam Chairwoman.
To our Chairman of the committee and my colleagues, I find myself this morning in a sad situation. I look out in the audience, and I see people from the 11th Congressional District, who I have known for many, many years, in a position where their life savings have been denigrated as a result of the conduct of Frank Gruttadauria.
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When I look out in the audience, I see former Council President Jim Stanton from the great city of Cleveland; Mary Boyle, a County Commissioner from Cuyahoga County; Mr. Carl Fazio—and we have a great relationship because his grandson Anthony and my son Mervin attended school together.
It is, in my opinion, a shame that we would be here this morning where we have someone who has literally deprived hardworking people, who have worked all of their lives, of their life savings, of that blanket to cover them in a time of most need.
As we come today before this subcommittee, there are several questions that we will all want to have answered, but particularly of interest to me will be what, in fact, the SEC, in 1993, knew about Frank Gruttadauria and did not do enough to keep him from being engaged in a conduct subsequently.
I do want to have admitted to the record at some point, Madam Chairwoman, a finding by the New York Stock Exchange from 1998 of conduct of Frank Gruttadauria and S.G. Cowen's failure to supervise producing branch manage officers acting in the capacity of registered representatives. In this instance, we have Frank Gruttadauria acting as a branch manager/officer, who—and the compliance officer within that company was the person who reported directly to Frank Gruttadauria. If that is not a signal that something is going wrong, I don't know what is.
[The following information was subsequently furnished by Hon. Stephanie Tubbs Jones for the hearing record.]
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Chairman KELLY. Without objection.
Mrs. JONES OF OHIO. Thank you.
It is our job as members of Congress to sit and listen intently, constantly try to keep our sympathies for the victims of these crimes from clouding our objectivity that we must maintain. However, it is a tough piece to try and keep that sympathy from clouding part of our judgment in this instance.
But be that as it may, Frank Gruttadauria, who—frankly, whose conduct is shocking—is alleged to have stolen tens of millions of dollars, and I won't repeat that because everyone said that. But for the record, everyone knows the amount of dollars and the people involved. But how was he able to gain the trust of so many people? How was he able, for 15 years, to engage in this conduct and go undetected? How is it that there were prior violations by—noted by the New York Stock Exchange and the SEC where he was able to continue in his conduct?
And by the end of this hearing this morning, it is my hope that we will have information sufficient to assist these victims in the process of attempting to collect their dollars back from either Frank Gruttadauria or his supervisors, or the investment companies that are involved.
But even more so, that we will have information and opportunity to see that we put in place rules and regulations that will not allow other people to be victimized as a result of such conduct, and that we will be able to look past and maybe even foreshadow some of the other conduct that investors are engaged in in this instance.
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I yield the balance of my time, Madam Chairwoman. I want to compliment you and my colleague from northeast Ohio, Steve LaTourette, for giving us the opportunity to have this hearing this morning.
Thank you very much.
[The prepared statement of Hon. Stephanie Tubbs Jones can be found on page 67 in the appendix.]
Chairman KELLY. Thank you very much, Mrs. Tubbs Jones.
We turn now to Mr. Tiberi.
Mr. Tiberi, do you have an opening statement?
Mr. TIBERI. I do not have an opening statement, Madam Chairwoman.
Chairman KELLY. Thank you.
We turn to Mr. LaTourette. Mr. LaTourette, we are pleased to have you join us this morning.
Mr. LATOURETTE. Thank you very much, Madam Chairwoman, and I want to thank you, and also the Chairman of the full committee, Mr. Oxley, for convening this hearing today.
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I also want to compliment your staff, Madam Chairwoman, for the outstanding investigatory work that they have done in getting us ready for this hearing. And there is a number of people we could talk about, but Andy Cochran, who is seated to your left, has really done an outstanding job, and he deserves our thanks for getting us to where we are today.
Madam Chairwoman, many of us in the greater Cleveland area were startled, shocked, and dazed when we found out that a number of our friends and neighbors had been victimized by a broker who worked for Lehman Brothers, Frank Gruttadauria. We discovered that he had fled town, leaving a note and a computer disk for the FBI, after bilking the firm's clients out of money that has ranged from $40 million, it has been complained of, to, as the Chairman of the full committee indicates, up to $700 million.
I know we have Mr. Fazio here today, who will talk about $26 million that he and he alone lost. His victims ranged from some very wealthy people to moderate income people, who were investing for their retirement years.
By maintaining a desktop computer, in violation of his firm's rules, by setting up a phony post office box, by mailing fraudulent statements and juggling funds, it appears that Mr. Gruttadauria was able to craft a Ponzi scheme that lasted for 15 years, and only collapsed, despite what I read in The Wall Street Journal today, only collapsed because there was a cash call on a divorce case of a rather wealthy client, and also because of the persistence of Mrs. Golda Stout. And I think that perhaps the SEC and some of the regulators should hire Mrs. Stout to supervise and watch things. It is my understanding that she initially indicated she wanted to view her investments online, was told that, ''Oh, we don't offer that service,'' and it is only because she kept pushing and pushing and pushing that eventually Mr. Gruttadauria, among other reasons, left town.
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Some will come before this subcommittee today and say that this is just one very crooked broker gone bad, we are really sorry, but it happens, but that there are no systemic difficulties or problems that require the attention of this committee or any other committee in the Congress. That might be the case were there not some historical context not only for the Book of Business while it was maintained by S.G. Cowen, but also after it was purchased by Lehman Brothers.
Mrs. Tubbs Jones and others have mentioned the 1993 complaint, and in that complaint the SEC discovered that Mr. Gruttadauria was in charge of an account that had an equity of $96,000. It had losses of $86- to $88,000, and commissions charged of $39,000 in a six-month period. It is my understanding—and we are looking forward to hearing from the SEC today—but they neglected to talk to the account holder and only talked to Mr. Gruttadauria.
Someone who will not show up today as a witness is a friend of mine from Cleveland, Dominic Visconsi, Sr. His accounts will enter into evidence later, returned over a four-year period 54 percent, 99 percent, 19 percent, 100 percent, and 43 percent.
Also, Ms. Tubbs Jones mentioned the fine levied by the New York Stock Exchange for failure to supervise in 1998. And at the same time, Madam Chairwoman, Lehman Brothers was involved in litigation by another broker by the name of Ahmed Dahouk, who maintained a desktop computer, set up phony post office boxes, mailed fraudulent statements, juggled funds, and apparently in doing the due diligence when they purchased the Cowen business this did not seem to raise any red flags.
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Lastly, Madam Chair, it is my understanding that the supervising partner at Lehman Brothers, who supervised Mr. Gruttadauria for the year that he had the business, earned a base salary of $450,000, received bonuses of $8 million, and stock options of $29 million. And the question that I think needs to be raised is: why should he be worried about what happened with Mr. Gruttadauria and his clients?
Thank you. I yield back.
[The following information was subsequently furnished by Hon. Steve C. LaTourette for the hearing record.]
Chairman KELLY. Thank you, Mr. LaTourette. And without objection, we will accept that in the record.
Also, without objection, I would like to enter into the record a copy of the letter that Mr. Gruttadauria sent to the Cowen & Company and to Chase Manhattan and to the FBI. He sent copies of it to a number of people, not just those two listed. And without objection, that letter will also be included in the record.
With that, if there are no further opening statements, I am going to introduce the first panel. We sincerely appreciate the effort it took for all of you to prepare your testimony, and the two of you who have traveled here some distance to be here today with us.
Our panel includes Mr. Carl Fazio of Aurora, Ohio; and Mrs. Golda Lewis Stout of Elgin, Illinois; both of whose finances were devastated by Mr. Gruttadauria's fraud. Lori Richards, the Director of Office of Compliance, Inspections, and Examinations at the Securities and Exchange Commission. We welcome you, Ms. Richards. And Mr. David Doherty, Executive Vice President for Enforcement at the New York Stock Exchange.
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I want to thank each of you for agreeing to testify before us today, and I welcome you on behalf of the committee.
Without objection, your written statements and any attachments will be made a part of the record. You will each now be recognized for a five-minute summary of your testimony. There are lights in front of you that will indicate how much time you have. You see the boxes there on the table.
The green light signifies that you are in the first four minutes of your summary. The yellow light will turn on when you have a minute remaining. And the red light will turn on when your time has expired.
And we will begin now with you, Mr. Fazio. Thank you for being here.
STATEMENT OF CARL FAZIO, AURORA, OHIO
Mr. FAZIO. Thank you, Chairman Kelly, Members of the House Financial Services and Oversight and Investigations Subcommittee. Thank you for inviting me to be with you today. I will share with you my family's story of betrayal by four of America's great institutions—Lehman Brothers, Cowen & Company, S.G. Cowen, and Hambrecht & Quist.
Caution shown by today's investors not only reflects the lack of confidence the public has in corporate accounting; it demonstrates that the public also understands that major investment banking firms only say the right thing. They do not do it, and, more importantly, they apparently turn a blind eye when investors are hurt.
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I am Carl Fazio. I came to this country at the age of three. Through great effort and energy, my family was able to build one fruit stand into Fisher-Fazio's, a major chain of supermarkets which ultimately became a New York Stock Exchange company. At the time of its sale, I was its chairman, and we employed approximately 20,000 people.
Today, as I stand before you, although I earned and invested a handsome amount of money, I have a few liquid assets. I am unable, at the age of 85, to pay my bills as they become due, and I am forced to sell my home, all because of the greed of Lehman Brothers, Cowen & Company, S.G. Cowen, and, possibly, Hambrecht & Quist.
While focusing on generating fees, they failed to police their own brokers and employees. We have only recently learned that the New York Stock Exchange, in a disciplinary proceeding against Cowen & Company dealing with 1994 and 1995, criticized it for having compliance people subordinate to branch office managers. Even though the Stock Exchange found this deficiency, it was never corrected.
In Cleveland, Robert Semanek, the firm's compliance person, reported to Frank Gruttadauria. This is wrong. Neither Cowen & Company, S.G. Cowen, nor Lehman Brothers changed their procedures. That is a key reason why Frank Gruttadauria could generate fraudulent statements on his personal computer which he had in his office.
He had the computer even though, according to some newspaper reports, it was against company policy. My assets have been stolen from me, not just by Frank Gruttadauria, but by the collective efforts of the brokerage firms that lent them their credibility and resources and turned their backs on protecting me.
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After the sale of my company, at the request of my first wife, through her close friend, I entrusted some of my funds to Frank Gruttadauria and his firm. Over the years, he became as close to me as one of my own sons. I viewed him as a member of my family and proudly watched him receive accolades in the investment community and rise up the ladder to becoming a senior director of S.G. Cowen and the branch office manager for Lehman Brothers.
His positions in the companies gave me confidence. Little did I know that at some time, from the little records that I have been able to get since Frank Gruttadauria admitted his frauds and ran away, maybe as early as the 1990s, he took my money and misappropriated it in order to grow his commission income, all the while sending me false statements which reflected the trades I sought in the market.
He did this while encouraging me to deposit more and more money. Ultimately, all of my liquid assets were put under the control of Frank Gruttadauria, who stole them.
I believe I am a very knowledgeable investor. I told Mr. Gruttadauria what I wanted to buy and what I wanted to sell. I made my own trades. I was in constant contact with him and his office, and I reviewed what I believed to be confirmations and my statements. Little did I know that I was dealing with smoke and mirrors.
Now their greed has devastated me. And if the brokerage firm's actions are not bad enough, S.G. Cowen, a brokerage firm I sued, is now attempting to manipulate the court system by removing my claim to arbitration. As they said in their motion, and I quote, ''Plaintiffs must pursue their claims in arbitration before a panel of—an appropriate self-regulatory organization.''
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I am 85 years old. I need this money to live on now. On January 28, I met with Lehman Brothers and told them of my urgent need for money.
And I would like to close by reading you a portion of Lehman's mission statement. I quote, ''We are one firm, defined by our unwavering commitment to our clients.'' In my situation, they not only wavered, they punted, and now they just don't care.
Thank you for your time.
[The prepared statement of Mr. Carl Fazio can be found on page 126 in the appendix.]
Chairman KELLY. Mr. Fazio, we thank you for your statement. That is certainly a very, very moving statement.
I want to explain to the people here, and to our panel, that the business on the floor today is such that we may be moving back and forth to vote. We have a vote that has just been called.
So what I am going to try to do in order—because I know some of you have planes that you need to meet, and so forth, I am going to be trading off the Chair with people, so that we are going to have a rotating group of people moving back and forth, so that we can keep this hearing open and keep it going.
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So with that being said, I hope you will indulge us in changing people sitting in this char. I am still running the hearing, and I will be back. I am going to be going back and forth to vote now and then.
With that, I want to go to you, Mrs. Stout.
STATEMENT OF GOLDA LEWIS STOUT, ELGIN, ILLINOIS
Mrs. STOUT. I, too, want to thank the members of the Financial Service Committee and the subcommittee for inviting me to testify. Over the past months, I have watched others testify. I am impressed with their apparent confidence and calm demeanor. I assure you that this is not my state at this moment.
As my opening statement, I want to share with you an edited version of a letter sent to my Congressman for my district, Dennis Hastert. I met Dennis Hastert in Elgin many, many years ago when he was campaigning for his first term of the House of Representatives. We were both much younger at that time.
I was born in 1915 on a small farm in central Iowa. I suffered, along with millions of other American citizens, the ravages of depression. I made a commitment to work hard and save. My life has been productive, and I am very proud of my accomplishments. I have a family which I truly love, and they have the same feeling for me.
As a result of my savings and investing, I felt secure in knowing that my remaining years of life would be without financial worry, but all that was changed in January of 2002 with the news of the fraud perpetrated on many others and on me by the managing director of the Cleveland office of Lehman Brothers, Frank Dominic Gruttadauria, who formerly worked for S.G. Cowen, Cowen & Company.
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The complete story of Mr. Gruttadauria will not be known, if ever, for years to come. However, by his own witness statements to the FBI, he has defrauded his clients for over 15 years. Given some of the most recent articles, it appears to me that the process of recovering my lost investments may be long and expensive.
While I trusted my broker as many investment companies are stressing in their television advertising, I was not passive with the respect to monitoring the stockmarket and investment portfolio. I tracked the markets daily and have records going back to 1992. And I also verified my portfolio balance with each monthly report.
However, I did not receive the true reports. They were sent elsewhere by the brokerage firm as a result of Mr. Gruttadauria's actions. Instead, I received a very authentic-looking account statement, which agreed with my own personal records. I also received yearly the 1099s, which my accountant used to prepare for the individual tax returns. And over the years, Mr. Gruttadauria was privately looting my account. All of this occurred without detection by myself.
This brings me to the main point. Stockbrokers' misdeeds must be prevented from occurring again to any person who uses a brokerage account as an investment vehicle. As we all know, Social Security should not be the foundation of any retirement plan. IRAs, 401Ks, and other investment activities are the real foundation for retirement. In almost all cases, these activities will involve investments using a brokerage firm.
As pointed out in the article in The Wall Street Journal, the Plain Dealer of Cleveland, active compliance monitoring and reporting is critical. My hope is that you and your colleagues in the Congress can address, to the greatest extent possible, the need to prevent stockbroker fraud and to require the brokerage firms to monitor and enforce compliance by their officers and employees.
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Thank you.
[The prepared statement of Ms. Golda Lewis Stout can be found on page 129 in the appendix.]
Chairman KELLY. We thank you, Mrs. Stout.
We will go next to you, Ms. Richards.
STATEMENT OF LORI RICHARDS, DIRECTOR, OFFICE OF COMPLIANCE, INSPECTIONS, AND EXAMINATIONS, SECURITIES AND EXCHANGE COMMISSON
Ms. RICHARDS. Chairwoman Kelly, Chairman Oxley, members of the subcommittee, I appreciate the opportunity to appear before the subcommittee today on behalf of the Securities and Exchange Commission to discuss the Frank Gruttadauria matter and potential measures to prevent theft by registered representatives of stockbrokers.
As I think you know, the SEC filed an enforcement action against Mr. Gruttadauria alleging that he misappropriated customer funds for his own purposes, directing those funds to other customers' accounts, either as purported returns or to satisfy their withdrawal requests. In essence, this was a Ponzi scheme, pure and simple, taking money from some clients to cover the withdrawal requests that were made by other clients.
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The SEC alleges that Mr. Gruttadauria forged client signatures on withdrawals, made unauthorized transfers of funds, and took customer funds purportedly to open accounts, but never actually opened accounts. Then, to conceal the fraud from his customers, he created and sent false account statements to customers that greatly overstated the values of their accounts, and caused the clients' actual account statements to be sent to post office boxes under his own control.
I want to say, listening to the victims, Mrs. Stout and Mr. Fazio, how much I empathize with them.
I know that the subcommittee is most interested in what can be done to prevent future conduct like Mr. Gruttadauria's. At the most basic level, firms are responsible for establishing systems of supervision and internal controls that are reasonably designed to ensure that their employees are in compliance with the law. Broker-dealers are required, under current law, to have adequate procedures and controls to identify the kind of sales practices that Mr. Gruttadauria engaged in, and to conduct regular reviews of their employees' activities.
I am pleased to tell you that many firms have in place procedures to help them prevent and detect fraud by brokers. My written testimony that I submitted sets out, in some detail, some of the procedures that firms can use, including things like verifying changes of address directly with the customer, confirming customer authorizations to transfer funds out of their account, paying special attention to post office boxes and other addresses that are not the customer's home address, exercising control over account statements, supervising employees' use of personal electronic devices, and providing independent supervision and review of activity by producing managers. These are, I think, very important.
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I would like to switch gears for just a minute and briefly address the SEC's examination efforts. In one of our examinations in 1993, as has been raised today, we came very close to Mr. Gruttadauria. We conducted a cause examination of the Chicago, Illinois, office of Cowen where Mr. Gruttadauria serviced some of his accounts, after receiving an anonymous tip that alleged churning (or excessive trading) in one of his accounts.
While there were some flags that prompted the SEC examiner to conduct a detailed review of that particular account and other Gruttadauria accounts in the Chicago office, the examination was unable to establish sales practice abuse in that account sufficient to warrant further action. Now, I will say that knowing what we know now, I wish I could say that we had detected the fraud in 1993.
Well, what has the SEC done in response to this event? As you would expect, we have worked closely with the New York Stock Exchange and the NASDR to understand the alleged fraud in this case, and we intend to continue to vigorously prosecute Mr. Gruttadauria. Together with the SROs, we are focusing particular attention on examining firm procedures and systems to prevent fraud of this type in the future.
We have reminded securities firms of the importance of these procedures, and we will also be conducting a series of examinations focused solely on firm procedures designed to prevent theft by registered representatives.
We intend to ensure that the best practices that I have described in my testimony become the universal practices in the securities industry.
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I am pleased to answer any questions that the subcommittee may have.
[The prepared statement of Ms. Lori Richards can be found on page 69 in the appendix.]
Mr. LATOURETTE. [presiding] Thank you very much, Ms. Richards.
And before I yield to Mr. Doherty, for those of you from Cleveland or Illinois that don't come here on a regular basis, there is a 15-minute vote on the floor, and so I ran as quickly as I could to get to the Capitol and come back so we can keep the testimony going. And our colleagues will come back and join us for the question and answer period.
So I apologize that we are conducting legislative business at the same time we are doing this, but we wanted to not inconvenience anybody.
Mr. Doherty, welcome, and we are looking forward to hearing your testimony.
STATEMENT OF DAVID DOHERTY, EXECUTIVE VICE PRESIDENT FOR ENFORCEMENT, NEW YORK STOCK EXCHANGE
Mr. DOHERTY. Thank you. Good morning, Chairwoman Kelly, and members of the committee. I appreciate the opportunity to talk with you this morning about how the New York Stock Exchange regulates our member firms, and to provide some information about actions we have taken concerning Cleveland broker Frank Gruttadauria and others associated with him.
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Regulation of the securities industry in the United States depends upon self-regulation and begins with the broker-dealer itself. The Exchange plays a critical role by maintaining an extensive system for monitoring and regulating the activities of its membership with SEC oversight. The regulatory group of the Exchange currently employs approximately 560 people representing over one-third of the entire Exchange's staff, with an operating budget of $142 million.
The Division of Member Firm Regulation, with a staff of 265, oversees 260 member organizations that employee nearly 160,000 registered persons and service nearly 93 million customer accounts. That is more than 85 percent of the public customer accounts carried by broker-dealers in the United States.
Our staff conducts annual on-site examinations of every one of these firms. We visit the main office and approximately 200 branch offices each year, which are selected using a risk-based analysis. Our criteria and methodology for selecting branch offices for review is constantly being upgraded and refined based on experience and new technology. A more complete description of our exam program is included in my written testimony.
Serious or repeated violations found by our examiners are referred to the Exchange's Enforcement Division. The Enforcement Division, which has a staff of about 136, carries an inventory of approximately 700 cases and initiates over 200 enforcement actions a year. Enforcement staff conduct investigations often in cooperation with the SEC and decide whether to institute formal enforcement proceedings. Possible sanctions or penalties include censures, fines, suspensions, or permanent bars from our membership.
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The short-term objective of an effective enforcement program is to catch and punish the people who break the rules. The long-term objective is to deter other violative activity, induce compliance, and ultimately enhance investor confidence in the integrity of the market.
I would like to address the matter involving Mr. Frank Gruttadauria, the former broker for Lehman Brothers and S.G. Cowen. The Exchange learned of the Gruttadauria matter on January 22 of this year when we were contacted by officials from Lehman Brothers. We responded immediately by putting together a team of enforcement attorneys and examiners, meeting with the compliance officials at Lehman, discussing the case with the SEC, and beginning an investigation.
That investigation, which is ongoing, focuses on the manner in which Gruttadauria conducted his activities, the supervisory structure and procedures in the Cleveland office, and the overall supervisory structure of both Lehman and S.G. Cowen. The Exchange is working cooperatively with the SEC's Enforcement Division in this investigation.
The Exchange has taken the following actions so far regarding the Gruttadauria matter. On February 5, two weeks after first being notified of this matter, we issued charges against Gruttadauria for misappropriation of customer funds and failure to cooperate with Exchange investigation. A hearing was held, findings were made that he was guilty as charged, and on March 19 he was censured and permanently barred from association with any New York Stock Exchange member firm.
Also, in February and April, we issued charges against two of Gruttadauria's assistants based on their refusal to provide required information to us. It is worth noting that in 1998 the Exchange brought formal enforcement proceedings against Cowen for a number of violations. A major focus of the case was improper order ticket procedures, failure to comply with margin requirements, but other violations included failure to reasonably supervise producing branch office managers and failure to comply with rules governing discretionary accounts, among others.
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This resulted in a decision by consent in which Cowen received a censure, a fine of $380,000, and a requirement was imposed that Cowen correct procedural and supervisory deficiencies. Cowen's compliance with the 1998 decision is one of the matters that is under review in our current investigation.
Since the beginning of this year, the Exchange has undertaken a number of initiatives focusing on compliance systems and procedures at retail firms. These initiatives were partly in response to the Gruttadauria matter, but they also reflect our commitment to continually review, expand, and improve our regulatory program to adapt to new information and technological advances.
So, we have already permanently barred Frank Gruttadauria. We are investigating the supervisory structures at the firms where he worked. We have enhanced our examination procedure, and we have under consideration adoption of new rules to strengthen investor protection in this area.
Let me assure you of the Exchange's continuing commitment to our strong regulatory program. Thank you again for the opportunity to testify today.
[The prepared statement of Mr. David Doherty can be found on page 79 in the appendix.]
Mr. LATOURETTE. Mr. Doherty, we thank you very much for your testimony.
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The schedule indicates that other members of the panel, including the Chairman, will be back shortly. And so in light of the fact that there is great interest in asking questions of everyone who has testified so far, I think it is the Chair's predisposition to take a short recess. If you could not wander too far, so that when Mrs. Kelly comes back we don't have to gather people from the far reaches of the building, I would appreciate that.
And the subcommittee will stand in recess, subject to the call of the Chair.
[Recess.]
Chairman KELLY. [presiding] Is Mr. Doherty in the room? Absent Mr. Doherty, I think we will go ahead with some—with the questions. I would like to ask some questions of you, Ms. Richards.
Ms. Richards, on page 5 of your testimony, you refer to firm practices to prevent and detect fraud. One of these policies is, and I quote, ''special attention to P.O. boxes.'' Now, we are aware that this was a key way in which Mr. Gruttadauria was able to perpetuate his scam. Is this policy a requirement of the SEC or just a suggestion?
Ms. RICHARDS. I guess I think that under a broker-dealer's existing duty to supervise, they have an obligation under existing rules and regulations to make sure that their supervision is adequate. And use of P.O. boxes has been found not only in this case, but also in other cases, to facilitate fraud by registered representatives. This is not the first time that this P.O. box trick has been used.
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So in light of that, I think that broker-dealers must, under existing obligations to supervise, pay special attention to the use of P.O. boxes. And there is nothing inherently wrong with the customer using a P.O. box. Many customers in rural areas, for example, use a post office box. But when a firm sees that a customer has a post office box, they ought to pay special attention to ensuring that the customer has truly authorized the firm to use the P.O. box.
Chairman KELLY. Perhaps, Ms. Richards, it might be a good idea if the SEC took another look at some kind of oversight on the use of P.O. boxes. Would you agree?
Ms. RICHARDS. Absolutely. And that is exactly what we are doing now. Immediately after the Gruttadauria case broke, we met with the New York Stock Exchange and the NASD and decided to pay collectively, as securities regulators, special attention on these what I think are very basic compliance procedures designed to prevent theft.
So in all of our examinations going forward, we intend to focus on firm procedures, not only in this area but in the other areas that I have identified in my testimony. If through that process we determine that additional rules or regulations are appropriate, we intend to alert the Commission to that early, and to work closely with the self-regulatory organizations in determining whether or not additional rulemaking is appropriate.
Chairman KELLY. So, once again, though, you are looking at allowing the firms themselves to govern what is happening with regard to the relationship of the post offices boxes with regard to their clients and the delivery of the statements for the accounts. Is that correct?
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Ms. RICHARDS. Firms have an existing duty to supervise, and this is an area where they have got to pay, in my view, enhanced attention—compliance attention—to. They have got to scrutinize use of post office boxes carefully. I don't think it would be appropriate for regulators to prohibit the use of post office boxes, as I said, because many customers in rural areas in particular need to use post office boxes.
But when the firm sees that a customer has a P.O. box, or an''in care of'' address, or any address other than their home address, they need to pay particular attention to that.
Chairman KELLY. Well, let us go to an exam that was conducted by your examiner in 1993. You mentioned it on pages 4 and 5 of your testimony. That they did not contact the customer that was involved. Is it a normal practice to contact the customer when the account is being examined?
Ms. RICHARDS. It is a judgment call that is made by the examiner, based on the facts that are developed during the examination. If I could, I would like to describe to you in a little bit more detail what happened in the 1993 exam.
Chairman KELLY. Prior to your description, I would like to simply say that I understand this was done in December of 1993, that it was signed off by five supervisors, there is five signatures on that. I also would like you to submit that for the record within the next 24 hours. Will you please comply with that request?
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Ms. RICHARDS. We have made the entire examination report available.
Chairman KELLY. No, ma'am. I want it submitted for record.
Ms. RICHARDS. I would have to go back to our Commission and ask for authority to do that.
Chairman KELLY. Will you please do that?
Ms. RICHARDS. Yes, I will.
Chairman KELLY. Proceed with what your explanation was.
[The following information was subsequently furnished by Ms. Lori Richards for the hearing record.]
Ms. RICHARDS. In 1993, the Commission received an anonymous complaint about a customer's account that was maintained by Mr. Gruttadauria. The anonymous complaint alleged that there was churning in the account, and churning is simply excessive trading, trading that is not appropriate for the particular customer. It is designed to provide the registered representative with commissions, but involves trading that is not appropriate for the customer.
Based on that anonymous complaint, the Commission went in—examiners in Chicago went in to Cowen's Chicago office and conducted an examination focused primarily on that particular account. They examined the account statements that were provided not by Mr. Gruttadauria but by the firm itself, and the examiner noted that the trading was very significant. There was a lot of trading in the account during a six-month period three years before the examination.
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The fact that there was frequent trading, in and of itself, while it is a red flag, it is not in and of itself violative, because many customers engage in frequent trading. So what the Commission then does, after it noted that there was such frequent trading, in fact, the examiner computed a turnover rate in the account of 18 times. That is very significant. That is a lot of trading.
So with that information, the examiner then looked at whether or not the trading was indicative of a violation of the law. And the elements of a churning violation are really just two. First, is the trading excessive for that particular customer? And then, second, does the registered representative have control over that particular account? So the turnover ratio is just one part of the analysis.
The next step was to review the background of this particular investor. The account documents that were provided by the firm, not by Mr. Gruttadauria but by the firm, indicated that this was an experienced investor. This was someone with a very significant net worth of about $5 million and with 10 years or so of trading experience in equities and options. Based on that, it appeared to the examiner that this was an experienced trader, an experienced investor.
The next step was to review who was directing the trades, because this is an element in a churning charge—the trades must have been directed by the registered rep. Based on the registrant and Mr. Gruttadauria, the examiner was told that the trades were unsolicited. That is, that the investor herself was directing the trades.
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The Commission's examination procedures at that time would require the examiner to confirm that statement by looking at the order tickets.
The next step was to review other customers' accounts, because what we often find is that when a registered rep is engaged in churning one account, they will churn other customers' accounts. So we looked at a sample of Mr. Gruttadauria's other accounts in the Chicago office and found no indications of churning. We also—
Chairman KELLY. May I—I am sorry to interrupt you, but the account information that Mr. LaTourette has submitted for record today indicates that there was at least one account, if I am looking at it correctly, that was churned, in 1993, had a turnover ratio of 34 percent. He made a 99 percent commission rate on that.
In 1995, which was post this examination, there were some other really egregious types of churning here that should certainly but the ratio of 34 certainly ought to have had a red flag in 1993. I am going to interrupt your testimony here, but just because I have a question. I am going to run out of time, and I need to talk to Mr. Doherty. I am going to go—I would like to go back to you. I will go back to you. So stop yourself where you are, and we will come back.
I want the rest of the—I would like you to read into the record, or state for the record, exactly what happened in the 1993 exam. But I also want to caution you that the committee would expect a response from your organization within the next 24 hours regarding that report.
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Mr. Doherty, I wanted to ask you just one question, and I will come back to you. On page 13 of your testimony, you mention your 1998 enforcement action against Cowen for, among other things, and I am quoting— ''the failure to reasonably supervise branch office managers acting in the capacity of registered representatives.''
And then you also mention on page 14 of your testimony—and, again, I am quoting—''in 1999, outside counsel concluded in its report to the Exchange that Cowen had satisfied its undertaking in all material respects and made significant efforts in addressing areas of deficiency.''
I would like you to try to discuss what steps were taken to improve the supervision of branch office managers at that point, and any reasons that you are aware of that this improved supervision didn't detect Mr. Gruttadauria's actions. These people were defrauded. These people have lost their life savings.
Mr. DOHERTY. They certainly have. The enforcement proceeding that we brought in 1998 we considered to be a very significant one. There were a number of violations involved. A small part of it related to failure to supervise producing branch office managers in the 1995 exam in one of the New York offices.
We were sufficiently concerned with the supervisory deficiencies in that case that we not only imposed a significant fine, but we required, as a part of the settlement that Cowen entered into that a consultant be appointed who would come in and look at the systems and procedures that Cowen was putting in place and make an evaluation as to whether those systems and procedures, as enhanced, were adequate.
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And the consultant—it was an outside law firm—did that and filed a report and represented that they had confirmed that a number of enhancements had been made, such as the firm had appointed a senior person full-time whose job was to supervise producing branch office managers.
There was an indication and confirmation that the firm had developed a process where a detailed questionnaire would be sent out to branches required to be answered by the firms, and it got into areas that are involved here dealing with LOAs and post office boxes. That was supposed to be, under the procedures, followed up twice a year by branch office visits from this new supervisory structure that was put in place.
There was also a representation that the branch office manager's correspondence would be put in a separate file that would be reviewed monthly. And there was a general representation that all of the procedures put in place now had adequately enhanced supervision. There was a representation that the Compliance Department had enhanced supervision generally by, among other things, adding resources.
So one of the things that we are looking at carefully in our investigation now is whether these procedures were number one, actually put in place; number two, if put in place, maintained; and, number three, even if the procedures were put in place, were they adequately implemented? Sometimes we see procedures, and they are a great looking set of procedures, but implementation is not carried out.
So this is what we are looking at now in the course of our investigation. We required this enhanced review as a part of that enforcement proceeding, and we received assurances not only from the outside law firm, but the report was filed and it was certified by both the Board of Directors and the CEO that these procedures had been put in place.
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Chairman KELLY. Thank you, Mr. Doherty.
Mr. DOHERTY. Now, we are concerned that in light of this, the Gruttadauria activities were continued, and that is very much the focus of our investigation.
Chairman KELLY. Thank you, Mr. Doherty. One of the things that really concerns me about this case is it hasn't been just Mr. Gruttadauria. There have been other cases. We need to do as much as we can to have you do what you need to do to put the public's trust back into the system.
So with that being said, I am going to turn to my colleague, Ms. Tubbs Jones.
Mrs. JONES OF OHIO. Thank you, Madam Chairwoman.
Mr. Fazio, unfortunately, we only have five minutes to question. But it would be a shame that you wouldn't have a couple—another opportunity to be heard, at least briefly. Can you tell me, looking back, sir, what was it that engendered Mr. Gruttadauria to you? If we were going to talk to other senior citizens like you and Mrs. Stout, what would you tell them to look out for?
Mr. FAZIO. Do you mean now that—
Mrs. JONES OF OHIO. Yes, sir.
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Mr. FAZIO. —this happened?
Mrs. JONES OF OHIO. Looking back, in hindsight, sir.
Mr. FAZIO. Well, I would say that you need to talk to somebody above the branch manager in New York and check if, in fact, any brokerage company person ever called any investor when there was an address change to check it out, and to be careful because things can be done with these phony statements that we are learning and we know now.
And did any person ever call any customer? I never got a call from anyone else. I never did. And these numbers were changed, and my signature was forged, and so forth, to change them. Never got a call from anyone, and I didn't know what was going on. I really didn't. I didn't know that these box numbers even existed until now, until all of this—everything came up.
Mrs. JONES OF OHIO. But there was something about Mr. Gruttadauria that caused you to place some trust in him. But what I am asking you is: with regard to personality, or whatever, what would you say to another senior citizen who might have been—might be contacted by a broker?
Mr. FAZIO. Well, I would say that sometimes you have got to watch your closest friends. He was a very close friend. I told you I treated him like he was my son. That is how close we were.
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Mrs. JONES OF OHIO. Okay.
Mr. FAZIO. And you have got to be careful, and that is all you can do.
Mrs. JONES OF OHIO. Okay.
Mr. FAZIO. But mainly is that companies themselves have to check out their people. You know, you can't do it with the compliance officer, as I pointed out, in the same office reporting to the manager. You have got to do it where the compliance officer reports to somebody else above the manager, somebody in New York to check all these things out.
Mrs. JONES OF OHIO. Thank you.
Mrs. Stout, a short answer if I could get one from you as well. Go ahead.
Mrs. STOUT. Well, I wish that I had been smart enough to analyze why did I have checks with DeGrandis for the signature. Now, it should have been Lehman or Cowen. Instead, it was someone else. I had my own tax person. Why would I be having that firm as a tax representative?
Mrs. JONES OF OHIO. For the record, tell people who DeGrandis is, Mrs. Stout.
Mrs. STOUT. Well, I think that they are a tax firm working in Ohio.
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Mrs. JONES OF OHIO. Well, this was someone that Mr. Gruttadauria represented or expected that you might use for your tax purposes, an attorney in Cleveland, right?
Mrs. STOUT. He might have, but I was—never even hinted to say I would like to have or needed—
Mrs. JONES OF OHIO. Okay. Anything else you would say to other seniors who might be considering doing some investment, what they should look out for from your own perspective?
Mrs. STOUT. Well, when they start saying—I wanted to have online for my—so I could watch each day. When I called to ask, he said, ''Oh, no, we do not do that. I will not be harassed.'' When you start having—saying, ''I won't do this. I won't do that,'' that is a red flag. Watch. And in the future, don't have that person—he said, ''If this is the way that you feel so strongly, then I will get you another broker.'' I was—
Mrs. JONES OF OHIO. And you should have said, ''Then, get me another one,'' right?
Mrs. STOUT. Well, and so what I should have done—you know, I kind of hemmed and hawed there for a minute, and he said, ''I will tell you what I will do. I will send you the symbols, but this is against my principles.''
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Mrs. JONES OF OHIO. Okay.
Mrs. STOUT. You know what? It isn't his principles, it is mine, that I should be thinking about. And that was a mistake. You know what? You should come back on your own intuition. I did not. I was—I am like Carl. I thought he was like my son, and I trusted the firm. After all, it is a good firm. I thought he was in Chicago. I never knew that he was in Ohio. Had no idea.
He visited me, told me about—took me out for dinner, told me about the one daughter that was a candy striper at—
Mrs. JONES OF OHIO. He drew you in, in other words. He drew you in to his confidence.
Mrs. STOUT. Oh, honey, he was right there.
[Laughter.]
Mrs. JONES OF OHIO. Thank you, Mrs. Stout.
Let me go to Mr. Doherty from the New York Stock Exchange. Can you tell us how often brokerage firms incur charges like the one that was brought against Cowen & Company in 1998 with regard to failure to supervise branch manager officers, etcetera?
Mr. DOHERTY. Well, let me answer more broadly.
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Mrs. JONES OF OHIO. Okay.
Mr. DOHERTY. In a typical year, our enforcement program will bring about 200 formal enforcement proceedings. The large majority of those charged are individuals. But in a typical year, I would estimate 20 or 25 member firms themselves are charged as Cowen was in the example we have heard about.
Mrs. JONES OF OHIO. And of the—go ahead. I am sorry.
Mr. DOHERTY. Well, those charges range all the way from purely financial and operational kinds of things, a net capital violation, for instance, to, in some cases, inadequate supervisory procedures. And then some of the inadequate supervisory procedures cases relate to sales practice issues.
Mrs. JONES OF OHIO. Well, a firm signs up to be part of the New York Stock Exchange, what commitments do they make?
Mr. DOHERTY. Well, they make a commitment to not only abide by the federal securities laws, but they make a commitment to abide by the New York Stock Exchange's rules, which really impose on the firms not only a variety of particular rules but, importantly, our rules require that our firms operate consistent with ethical standards. So that it is a level of conduct which could be violated that doesn't reach a violation of the federal securities laws.
So our rules require such things as—or preclude conduct inconsistent with just and equitable principles of trade, and the like, ethical standards.
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Mrs. JONES OF OHIO. Do you have subpoena power as the New York Stock Exchange?
Mr. DOHERTY. We don't—
Mrs. JONES OF OHIO. To your members.
Mr. DOHERTY. We don't have subpoena power, but—and our jurisdiction is limited to our members and employees, people associated. But we—
Mrs. JONES OF OHIO. So if I fail to agree to provide you information or cooperate, what do you do to me?
Mr. DOHERTY. Well, with respect to the people we have jurisdiction over, we have something better than—
Mrs. JONES OF OHIO. That is what I meant, if I were a member. Okay.
Mr. DOHERTY. And that is we have a rule that requires that our members and people associated comply with our reasonable requests for information in our investigations and that is the provision which we have used to charge three people in this particular investigation. We use it often, and the usual consequence is that people are barred from the industry until they comply or perhaps barred after a certain period of time if they don't. So there are significant consequences.
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Mrs. JONES OF OHIO. Two shorter questions with hopefully shorter answers. You have heard Mr. Fazio, Mrs. Stout, and others say that the reason they invested with these companies was because of their reputation long term. Do you, as the Stock Exchange, treat people who have been long-term members any differently than you treat newer members to the Stock Exchange?
Mr. DOHERTY. No. We apply the same standards to everyone. We sue the big firms and the small firms equally.
Mrs. JONES OF OHIO. Do you treat sanctioned firms any differently than you treat non-sanctioned firms?
Mr. DOHERTY. The fact that a person or a firm had engaged in violative activity previously would be considered in the size of the sanction or punishment that would be imposed if there was another violation.
Mrs. JONES OF OHIO. For example, in '98, when you sanctioned Cowen & Company, what was the follow up after that sanction?
Mr. DOHERTY. Well, we haven't—that is the last enforcement proceeding—
Mrs. JONES OF OHIO. Okay.
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Mr. DOHERTY. —that we initiated against Cowen to my knowledge.
Mrs. JONES OF OHIO. But who, then, is responsible for overseeing whether or not they have complied with the sanction that you impose?
Mr. DOHERTY. Well, in the first instance, the firm has a continuing responsibility to, under our rules, and as Ms. Richards said, to run their business operation in a way that complies with the rules. Secondly, our examiners will typically go back into a member firm in the follow-on years where they have found problems to do a review to ensure that the problems have been corrected.
Mrs. JONES OF OHIO. Did you go back to Cowen after '98?
Mr. DOHERTY. Yes. We went—
Mrs. JONES OF OHIO. And who went back? And what did you find?
Mr. DOHERTY. Our examiners went back in and reviewed for compliance with many of the exceptions that were found, and they found no deficiencies that they felt were worthy of referring to the enforcement program.
Mrs. JONES OF OHIO. I am out of time, but I—we are going to have another round. Is that correct?
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Chairman KELLY. We will see if that is possible.
Mrs. JONES OF OHIO. Because I have a lot of questions for Ms. Richards, but thank you, Madam Chairwoman.
Chairman KELLY. Ms. Tubbs Jones, I am going to hold the record open for 30 days for questions and submitted answers for all members of the committee, because some of the members can't be here today. So by all means, if you have further questions of this panel, you may submit them, and we can expect their responses within 30 days. So feel free to do that, if we are not able to do a second round here.
We turn now to my colleague, Mr. Ney. Mr. Ney, are you ready?
Mr. NEY. Thank you, Madam Chairwoman.
I had a question, Mr. Doherty. A securities attorney quoted in the Cleveland Plain Dealer story said that a turnover rate of six times a year should raise a red flag, and that was reported in the PD. In your opinion, if the SEC could have told you the level of commissions and a turnover rate of 18 times in six months, do you think the Exchange might have wanted to take a more closer look at Gruttadauria's accounts?
Mr. DOHERTY. I think that we would have—it would have been a red flag, and it would have been something that we would have looked at carefully. I can't tell you that we would have done it any differently from what the SEC did. In hearing Ms. Richards' testimony, it sounds as though they brought to bear the same kind of analysis that we would have.
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Mr. NEY. Another question I had would be for Ms. Richards and Mr. Doherty. Mr. Gruttadauria apparently created these phony account statements on his own computer outside of the office system. How can that be prevented in the future, that they could be—or can it? Just some thoughts from both of you on that.
Ms. RICHARDS. One of the things that we recommend in our testimony is that broker-dealer firms maintain very tight control over blank account statements and other account documents of the firm, so that registered representatives and other unauthorized employees can't get hold of them, doctor them up, and send them out.
Another thing that many firms are doing now is creating account statements that are very difficult to duplicate. They have holograms or watermarks or special indicia on the original, so that it makes it easier to detect a forgery. So I think control over the actual sending of the account statements by brokerage firms is terribly important.
Mr. DOHERTY. If I could add that in 1999 we added an element to our exam program that required our examiners to do a careful review of this very area, to look to see whether there were any personal computers being used by any salesmen in the office, and to do an examination of what procedures the firms had in place to supervise the use of those personal computers.
And that is an area we are very much concerned about with electronic communications and use of the internet by registered reps, and we have brought a bunch of enforcement cases against registered reps in that area. This is something that we did at least two or three years ago in terms of extending our exam program.
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Mr. NEY. The other question I wanted to ask someone I guess—if people are receiving false statements for a number of years, and they have prepared their taxes, wouldn't Lehman Brothers have to send notification of earnings, and, therefore, the people overpaid their taxes that are sitting here? I don't know who wants to reflect on that, but—
Mrs. STOUT. I don't really see how it could be. I received the 1099s, my monthly statements—
Chairman KELLY. Ma'am, please turn on your microphone. Somehow it has gotten turned off. Pull it closer to your mouth, and then we can all hear what you say.
Mrs. STOUT. All right.
Chairman KELLY. Thank you.
Mrs. STOUT. I did receive the 1099s, my monthly statements. There was no other way that I figure that I could have been alerted.
Mr. NEY. Well, I guess my question—and probably maybe the other panel can answer it—my question is geared towards if you're—you know, you're receiving these false statements. Lehman Brothers, I assume, had to be responsible for notification to IRS of, you know, the real account. So, therefore, you know, I guess there was no IRS catching the difference, which would have alerted you early. I guess there is no mechanism.
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But, obviously, Lehman Brothers had to have sent those in. Isn't that correct? Isn't that the way it works? So it would have showed to the IRS, you have Mrs. Stout, here is how much she made, but she shows she made—and over a period of 10 years or nine, surely that should have gotten caught somewhere, I would assume, by IRS.
Mrs. STOUT. Well—
Mr. NEY. Although maybe I shouldn't—
Mrs. STOUT. —maybe I could come back and say now I had Microsoft, I had Cisco. That was—it would grow. I had—I started out with 750 shares. When I got my last statement, I had 12,000 of one and 27,000 of another, which showed that I had all of that, but it wouldn't show on my income tax, because it was still in the firm, and not—
Mr. NEY. I have gone past my time. Maybe later on somebody can clarify, was he sending false statements to Lehman Brothers, to the IRS? No. Right? Yes? No.
Chairman KELLY. Go ahead and ask that question. I will give you—
Mr. NEY. Thank you. If you could—
Chairman KELLY. —a little more time. Ms. Richards, if you could answer that.
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Ms. RICHARDS. I was just going to say our investigation is ongoing. I think if the firm was sending accurate 1099s to the addresses on file, for many of these customers those were post office boxes. So they would not be getting the accurate 1099s.
Mr. NEY. But they went to the IRS.
Ms. RICHARDS. Yes.
Mr. NEY. Right?
Ms. RICHARDS. Yes. I would think that—yes.
Mr. NEY. So it should show different what Mrs. Stout was reporting from the false—and then what the IRS was getting from Lehman Brothers. It should show a difference, I think.
Ms. RICHARDS. There would be a discrepancy. I just don't—I don't know what the IRS—
Mr. NEY. I mean, it is important to know whether that—I mean, I feel sorry for these people that have been burned. I am just wondering what system should have caught that.
Thanks very letting me exceed my time.
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Chairman KELLY. Perfectly all right. It is a legitimate question. It needs answering. It raises a lot of issues, and it is probably part of the ongoing judicial investigation.
Now we go to Mr. LaTourette.
Mr. LATOURETTE. You caught me by surprise, Madam Chairman. I thought Mr. Cantor was still here.
Mrs. Stout, since this story broke, has anyone other than Mr. Gruttadauria from Lehman Brothers come to visit you in Elgin, Illinois?
Mrs. STOUT. Yes. I had representatives of Lehman.
Mr. LATOURETTE. Right. Can you tell us about that exchange or what happened when they came to see you?
Mrs. STOUT. I beg your pardon?
Mr. LATOURETTE. What was the purpose for which they came to visit you, and what happened?
Mrs. STOUT. Well, I had called the office and wanted to have an explanation, and they, I assume, decided they wanted to come I think maybe to check to see if I was going to be an easy customer, if they would be able to hoodwink me, and I—and they left. I had no information from them.
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Mr. LATOURETTE. Did you ask them about your money? I mean, what—
Mrs. STOUT. Oh, yes, I did. And I asked if there was a chance that I would be getting it back.
Mr. LATOURETTE. And what did they tell you?
Mrs. STOUT. No answer.
Mr. LATOURETTE. Okay. When Mr. Fazio comes back, I have a couple of questions for him.
But, Ms. Richards, I am going to ask my legislative assistant to hand you a document that the Chairwoman was talking to, and this is—when you were indicating before the—and, Mrs. Stout, just back to you, Mrs. Cuneo is your sister, right?
Mrs. STOUT. Yes.
Mr. LATOURETTE. Your sister.
Mrs. STOUT. Yes.
Mr. LATOURETTE. And that was—Mrs. Cuneo's account was the subject of the 1993 complaint, Ms. Richards, is that the anonymous complaint, the—
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Mrs. STOUT. I am not sure, but it could be.
Mr. LATOURETTE. I am asking Ms. Richards. Cuneo was the investor involved in the 1993 anonymous complaint?
Ms. RICHARDS. The identity of the accounts that we examine are typically not public.
Mr. LATOURETTE. Right. But they will be when you comply with Mrs. Kelly's request. And I think it is Mrs. Stout's sister that was ripped off in 1993, and we will determine that.
I have put in front of you a document that is an account belonging to a fellow by the name of Dominic A. Visconsi, Sr., and it goes from '92 to '96. And at the bottom—I think Mr. Ney asked you—it is my understanding under federal law, and also S.G. Cowen's own internal manual, that a turnover ratio of six gives rise to a conclusive presumption of excessive trading or churning. Is that your understanding, or am I mistaken?
Ms. RICHARDS. We would actually look very hard at any account that had a turnover ratio of less than six. We would look at an account that had a turnover—an annualized turnover ratio of two to three. We would then focus hard on those accounts.
Mr. LATOURETTE. What about the ones that are turned over more than six times?
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Ms. RICHARDS. Well, certainly, those would trigger our attention.
Mr. LATOURETTE. Well, in the document I have put in front of you, in 1992, Mr. Visconsi's account, with an average equity of $416,000, was charged commissions of $113,000, and turned over 18 times. Would you consider that to be unusual activity worthy of your examination, had you known about it?
Ms. RICHARDS. Absolutely.
Mr. LATOURETTE. And, likewise, in 1993, average equity of $447,000, commissions of $221,000, and a turnover ratio of 34 times. I would imagine that would grab your attention as well, had you known about it.
Ms. RICHARDS. Yes.
Mr. LATOURETTE. And, Mr. Fazio, I have had a chart made of an account that your lawyer was kind enough to give me last night. If we could put the chart up on the easel. It is your account 00-00068. And the year that we have highlighted is 1990, and I would just like you to take a look at it. And, one, does that look familiar to you? Do I read it right that, in 1990, your account had an average equity of $103,000 roughly, that the commissions charged on it were $67,471.70, and the turnover ratio was a little over 15 times, is that a correct reading?
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Mr. FAZIO. That is correct.
Chairman KELLY. Excuse me. I want to know if you would like to have that entered into the record.
Mr. LATOURETTE. Yes, please.
Chairman KELLY. So moved.
[The following information was subsequently furnished by Mr. Carl Fazio witness] for the hearing record.]
Mr. LATOURETTE. And, Ms. Richards, likewise, with the Visconsi account, and we are, again, in the same time period as your investigation in 1993 of the account we believe was owned by Mrs. Stout's sister, would you find the information that is on that board to be worthy of your attention and examination?
Mrs. STOUT. I am sorry. I did not—
Mr. LATOURETTE. No, no, I was talking to Ms. Richards. I am sorry, Ms. Stout.
Ms. RICHARDS. We would definitely scrutinize an account with that kind of turnover ratio. I think it is important to note that we focus on firms' exception reports, which would typically flag accounts with turnover ratios of certainly that high. And then we would drill down and focus specifically on those accounts.
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So if the firm's exception reports were accurately identifying accounts with those kinds of turnover ratios, we would drill down very hard and focus on them.
Mr. LATOURETTE. And, lastly, let me ask you, it is my understanding, in response to the questions by the Chairwoman, that your investigators made a judgment call not to talk to the investor in 1993 in that investigation. And basically—and, Mrs. Stout, let me come back to you, who was the executor of your sister's estate? Do you recall?
Mrs. STOUT. Frank.
Mr. LATOURETTE. Frank Gruttadauria. Doesn't that create sort of, Ms. Richards, a closed loop? If you go and you talk to Mr. Gruttadauria, who apparently is trusted by people like Mr. Fazio and Mrs. Stout, and apparently her sister, and you have an account that has been turned over 18 times in six months, charged commissions of $39,000 on an equity of $96,000, does due diligence or an appropriate investigation stop with a guy like Frank Gruttadauria? I mean, don't we have an obligation to go out and talk to somebody else besides the thief?
Ms. RICHARDS. Well, again, focusing on the information that the examiner had before him at the time, it was a judgment call. And one of the critical factors that the examiner relied on was whether or not the investor that owned the account had complained. And, in fact, this investor had never complained about the trading in her account.
Looking back on it now, with all that we know about what Mr. Gruttadauria did and what he was capable of, yes, I certainly wish we would have talked to the customer. But, I mean, now, looking back, I don't know what the customer would have said.
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Mr. LATOURETTE. Of course not.
Ms. RICHARDS. Truly, I don't know if, looking back on it now, if the customer wished to engage in frequent trading and herself directed the trading, as we were told by the firm.
Mr. LATOURETTE. But I think if you put the '93 account together with the Visconsi account together with the Fazio account, I mean, something smells pretty bad here, and perhaps we should have talked to additional people. And I had a question and now it is out of my head.
Mrs. Stout, back to you, let me—when Lehman Brothers visited you, did you have the impression that it was an attempt to get you to settle any claim you might have against them?
Mrs. STOUT. No.
Mr. LATOURETTE. Okay. Did they inquire as to whether or not you were represented to counsel, whether you had a lawyer?
Mrs. STOUT. I had not had a chance to get counsel.
Mr. LATOURETTE. Okay. And lastly, Ms. Richards—and I appreciate the Chair's indulgence—was the investigation conducted in 1993 shared with S.G. Cowen?
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Ms. RICHARDS. S.G. Cowen compliance personnel were in the room when we interviewed Mr. Gruttadauria, and when we asked questions about the accounts and the exception reports. So they were very well aware of what we were focused on.
Mr. LATOURETTE. Would your investigative file have been available to Lehman Brothers when they were conducting their due diligence when they purchased the retail business of S.G. Cowen in the year 2000?
Ms. RICHARDS. No, because the examination didn't result in conclusive findings of violations. There was no deficiency letter sent to the firm.
Mr. LATOURETTE. Would your investigative file have been shared with Mr. Doherty in the Enforcement Division of the New York Stock Exchange?
Ms. RICHARDS. We share examination reports with the SROs whenever it's relevant for either party. But in this case, it wasn't.
Mr. LATOURETTE. And I was going to ask Mr. Doherty, before reading it in the newspaper, being advised during the course of these proceedings, any idea that Mr. Gruttadauria had been the subject of this anonymous complaint in 1993?
Was there any idea by you, Mr. Doherty, that Mr. Gruttadauria had been the subject of this 1993 complaint?
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Mr. DOHERTY. Not to my knowledge, no.
Mr. LATOURETTE. Thank you very much, Madame Chairman.
Chairman KELLY. Thank you. Mr. Inslee, do you have questions?
Mr. INSLEE. If I may, Madame Chair, I'd like to yield to my colleague from Ohio my time in this regard. She's been doing excellent work on it.
Chairman KELLY. Thank you.
Ms. JONES. Thank you, Mr. Inslee. I want to start and continue the line of questioning from Mr. LaTourette, Ms. Richards.
In 1993, you got an anonymous complaint. You went and reviewed the record. Under all anonymous complaints, is it that you never talked to the customer?
Ms. RICHARDS. No, that certainly is not the policy. I think our policy currently—
Ms. JONES. Take me back to 1993, not currently.
Ms. RICHARDS. In 1993, our policy would have been to contact a customer if there were any loose ends, if there was any indication.
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Ms. JONES. But who better than the customer than to tell you or to signal to you of some difficulty?
Ms. RICHARDS. Well, in fact, the examiner made the decision not to contact the customer because he was focused on the fact that the customer had never complained to the firm, the fact that the trades appeared to be directed by the customer and the fact that this customer appeared to be an experienced trader.
Ms. JONES. Appearances are deceptive. Would you agree with me on that, Ms. Richards?
Ms. RICHARDS. This was according to the new account form that the customer would have filled out with the brokerage firm. The customer would have indicated to the brokerage firm his or her net worth, his or her investment experience, his or her investment—
Ms. JONES. Back up a minute. You said it appeared that the customer signed the form. What I'm trying to get to is appearances are deceptive. We're sitting here with people like Mr. Fazio, Mrs. Stout, Mr. Glazier. Under the appearances invested with Mr. Gruttadauria, you were the examination folk. It's incredible to me that—I'm a former prosecutor, you're an examiner. You go after the witnesses. The best witness would be the customer that you would talk with them to find out in any instance, would it not be?
Ms. RICHARDS. Sitting here now, I wish we would have called the customer, absolutely. I don't know what the customer would have said.
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Ms. JONES. We never know what anybody is going to say.
Ms. RICHARDS. But sitting here now, I certainly wish we would have talked to the customer, yes.
Ms. JONES. So now the rules, seeing as we're now trying to get so instances like this don't happen again, you talk to the customer now?
Ms. RICHARDS. Yes, we have a much more liberal policy on when the government contacts the customer about a particular account, absolutely.
There's another change, if I could—
Ms. JONES. Please.
Ms. RICHARDS. There's another change in the law that I think will be helpful in preventing similar situations like this. Under new rules that were adopted by the Commission a couple of months ago. The information that I described on a new account form about the customers' name, address, investment objectives, net worth, that information now will have to be sent to the customer for verification, so that will prohibit a registered representative from falsifying information on the new account form and I think that's a terribly important—
Ms. JONES. It won't prohibit falsification.
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Ms. RICHARDS. Well, the registered representative will be out of the picture. The firm will send that statement to the customer and the customer can look at it and say—
Ms. JONES. Where does the firm get the customer's address?
Ms. RICHARDS. The firm would get the customer's address from the customer.
Ms. JONES. So you're saying that every firm now will have a direct contact with a customer even though there is another representative involved in the process?
Ms. RICHARDS. Yes, the firm itself will communicate directly with the customer and the customer will then be able to verify yes, that's my name, that's my address or no, it's not or that's not my investment objective, that's not my net worth. It will make it much more difficult for registered reps to lie about those things—
Ms. JONES. And what caused you to make this rule change in the last two months?
Ms. RICHARDS. It had been in the works for some period of time. We worked very closely with the state securities regulators who suggested to us that this was a change that needed to be made to prevent theft by brokers. The Commission agreed with it and made the change a couple of months ago.
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Ms. JONES. What other changes have you made to assure an investing public that you are going to do your job?
Ms. RICHARDS. Well, there's another change imposed in the same books and records rule that I think Mr. Fazio alluded to and that is the protection against registered representatives opening post office boxes in their control. The new rule would require that brokerage firms send a change of address confirmation to the old address and the new address. That, I think, will go a long way towards preventing registered representatives from creating these fictitious post office boxes, because the customer will get a notice from the firm that says have you or have you not changed your address to a post office box? I think that's an important protection.
Ms. JONES. Did you see all of these events that are occurring and I look at them, oh wow, okay—I can finish that question or not? No, okay, I won't. I'll go back.
Chairman KELLY. Mr. Tiberi. We'll let you hold that thought and come back.
Mr. Tiberi.
Mr. TIBERI. Thank you. Thank you, Madame Chairwoman. Just a couple of questions. Ms. Richards, of your total investigative force meaning like attorneys, investigators, supervisor attorneys, senior trial counsels, how many are employed in the Northeast Region in New York?
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Ms. RICHARDS. The Northeast Region is comprised of both enforcement attorneys as well as examiners and accountants who conduct examinations of broker dealers, investment advisers, and investment companies. I don't know offhand the total number of staff in the New York office, but I'm happy to provide that to you.
Mr. TIBERI. That would be great. My understanding is is that the bulk of the employees who do criminal investigations, the staff attorneys are located here in Washington, D.C. and they're sent out rather than having a stronger presence throughout the United States. And it would seem to me that maybe that has created a problem.
Ms. RICHARDS. We have 11 regions and districts in major metropolitan centers which are staffed by not only enforcement attorneys who bring enforcement cases, but also in my office, by examiners and accountants who conduct examinations of registered firms in their regions and districts.
Here in Washington in the examination program, we have a staff of about 100 accountants, examiners and attorneys who also conduct examinations and assist in the examinations conducted by the field offices.
Mr. TIBERI. You'll provide that information to us?
Ms. RICHARDS. Sure.
Mr. TIBERI. Thank you. Ms. Stout, you mentioned in your testimony that with respect to on-line services that Mr. Gruttadauria was dissuading you from, in your own words, accessing your on-line account. How did he do that? How did he dissuade you from doing that?
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Ms. STOUT. He really had not persuaded me not to. I was still insistent on doing it, but when I called—he told me that he had made up his mind when he went into business that he would never have any on-line. He would not be harassed by his clients and I said I have never harassed you, Frank. I would like to do it. It's a joy for me to learn new things and he said if you feel so strongly I will have to get you another broker. And I thought, well, I don't know. And I kind of led him on and he said I'll tell you what, Golda, I've know you for all these years. I will send you the symbols and I thought all right. But I didn't get the symbols. And then I was going to call and say forget it.
Mr. TIBERI. Over the years you received monthly statements, Ms. Stout?
Ms. STOUT. Yes.
Mr. TIBERI. I assumed you paid taxes on those statements?
Ms. STOUT. Oh, yes, I did.
Mr. TIBERI. How much tax do you believe you paid in the end on money that you didn't earn?
Ms. STOUT. Well, two years ago I almost went into hysterics. I ended up paying $32,000 to the government. I paid quite a little bit to the state, plus I had been paying quarterly for the estimated. Now that will give you an idea of what I did do.
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Mr. TIBERI. Ms. Stout, did either Cowen or Lehman offer to take responsibility?
Ms. STOUT. No.
Mr. TIBERI. Okay. Has either company offered to make up the losses incurred?
Ms. STOUT. No.
Mr. TIBERI. Mr. Fazio, has either company offered to make up losses that you incurred?
Mr. FAZIO. No. They have not offered anything.
Mr. TIBERI. And neither Cowen or Lehman will take responsibility, Mr. Fazio?
Mr. FAZIO. No, they have not. I asked for some substance of some kind until we settle it. They didn't offer a dime, nothing.
Mr. TIBERI. Madam Chair, I'd like to yield the balance of my time to Mr. LaTourette.
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Mr. LATOURETTE. Thank you very much, Mr. Tiberi, for the courtesy on the little less than a minute that you have remaining.
Mr. Fazio, I wanted to reference before we go into other matters, there was a rather obnoxious column in the Cleveland Plain Dealer a couple of months ago and it's unusual for the Cleveland Plain Dealer, it's a fine newspaper, but it suggested that those of you who lost money were either sloppy, greedy or inattentive and that perhaps participated in your own demise. And I would just like you, sir, to indicate for the purposes of the record, were you a sloppy, inattentive or a greedy investor?
Mr. FAZIO. Absolutely not. I kept track of everything I did and checked it against the statements and everything balanced. If it didn't, he would correct it. I was not a sloppy investor and this person, I was so mad when I read that article I wanted to cancel the Plain Dealer.
Mr. LATOURETTE. The statements that you received from Mr. Gruttadauria, did they mirror the notes and notations that you—
Mr. FAZIO. Yes, they mirrored my investments as I kept track in several notebooks of my trades. They did. I want to add one other thing, that in answer to another question, the customer did not sign the form. When Lehman took over, I'm the client, it was forged. My name was forged. Customers had no way of knowing about the trades, the excessive trades or anything else. Signatures were forged.
Mr. LATOURETTE. Thank you very much and thank you again, Mr. Tiberi, for your courtesy.
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Chairman KELLY. Thank you, Mr. LaTourette. Mr. Clay, have you questions?
Mr. CLAY. Thank you, Madame Chair. Let me thank you for conducting this hearing as well as I'd like to ask unanimous consent to submit my statement in the record.
Chairman KELLY. So moved.
Mr. CLAY. And yield the balance of my time to Ms. Jones.
Ms. JONES. Thank you, Mr. Clay. Ladies and gentlemen, I've been able to twist all of my colleagues' arms to tell them this is my jurisdiction, give me your time and I thank each of them for being willing to do so.
For the record, Madame Chairwoman, we had asked Mr. Samuel Glazier to come and testify and under advice of his counsel, he chose not to, but he is seated here in the room today and we do have a letter from Mr. Glazier's attorney that I'd like to submit for the record, so that everybody will understand why it was he chose not to testify.
[The following information was subsequently furnished by Hon. Stephanie Tubbs Jones for the hearing record.]
Chairman KELLY. So moved.
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Ms. JONES. Great. Thank you. Let me see, where did I leave off.
Let me go back to you, Ms. Richards. Tell us how you perceive and Mr. Doherty, you can answer this question, that you, the Stock Exchange, and you the SEC, are going to collaborate to see that Mr. Glazier and Mr. Fazio and Ms. Stout and Mr. Stanton and others may be able to get some relief?
Ms. RICHARDS. Well, in our enforcement action that we filed against Mr. Gruttadauria, we asked for disgorgement of any and all ill-gotten gains. Any ill-gotten—
Ms. JONES. Just for the record, why don't you tell us what disgorgement is, okay?
Ms. RICHARDS. That's a request to the Court that Mr. Gruttadauria be ordered by the Court to turn over any monies or property that he may have obtained unlawfully.
Ms. JONES. And so has he been enjoined from disposing of those assets, have you corralled those assets for purposes of the possible victims?
Ms. RICHARDS. We asked for, at the time we filed the complaint, an asset freeze, a freeze of all of his accounts and the Court entered that order.
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Ms. JONES. So who is it, if you can answer this question, responsible for corralling—you know, we generally set up someone who has oversight over such assets. Has someone been assigned to do that and are you able to tell us for the record what the value of those assets may be at this time?
Ms. RICHARDS. As far as the value of the assets, I think it's too early to know. The Commission's enforcement staff is still in the midst of taking discovery and very actively investigating this matter, not only as to Mr. Gruttadauria, but also as to other individuals who may have assisted or participated in the fraud along with him.
Ms. JONES. In light of the fact that Mr. Gruttadauria was employed by Lehman Brothers had you corralled any of Lehman's assets in order to be able to satisfy the possible losses of these victims?
Ms. RICHARDS. Under the securities laws' framework, there is a remedy of arbitration. Each customer can arbitrate his or her dispute with a brokerage firm. In addition, I know that a number of customers are considering taking action in Federal Court and State Court.
Ms. JONES. Let me ask my question again, in light of the fact that Mr. Gruttadauria was employed by Lehman Brothers, have you corralled any of the assets of the Lehman Brothers or SG Cowen in order to satisfy the losses of the victims of this particular incident?
Ms. RICHARDS. The Commission doesn't have authority to obtain monies directly on behalf of investors. Typically, when we obtain disgorgement of ill-gotten gains, we would then seek the Court's approval to disperse those moneys back to investors who were defrauded.
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Ms. JONES. Isn't it conceivable, Ms. Richards, that Mr. Gruttadauria had ill-gotten gains, Lehman Brothers also had ill-gotten gains, so in fact, their assets ought to be corralled? Let me cut if off. It's conceivable that if Gruttadauria got ill-gotten gains, so did Lehman Brothers, because it's based on a commission. Is that true?
Ms. RICHARDS. The Commission is continuing to investigate the conduct by the two brokerage firms that employed him.
Ms. JONES. So you're saying the SEC has no authority to deal with Lehman Brothers as they're dealing with Gruttadauria in term of assets?
Ms. RICHARDS. The Commission has the authority to bring enforcement actions against both of those firms and we are very actively investigating them. Both of these firms are still in business. Both of these firms are healthy. They have adequate net capital. They have adequate reserves. This is not a situation—
Ms. JONES. How long does it take to declare bankruptcy, Ms. Richards?
Ms. RICHARDS. I don't know. These firms have adequate capital to continue to do business.
Ms. JONES. I'm trying to get my staffer to find me a newspaper article where Lehman is, in fact, claiming the possibility that so many suits to cause them to be placed in financial difficulty. Have you seen that article?
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Ms. RICHARDS. I saw an article where they disclosed that the firm was taking a reserve against the potential for lawsuits.
Ms. JONES. So what does that tell you?
Ms. RICHARDS. It tells me they're starting to set aside money for the possibility that they'll have to make some of the victims whole.
Ms. JONES. So you're saying to the world on behalf of the SEC that Lehman Brothers is going to be in a position to settle or pay up all these folks who have lost money. Help her out, come on.
Mr. DOHERTY. Could I add something? Since we're investigating this matter right now, I'd rather not comment on what we have in mind here. But I can tell you that when we get involved in an investigation and we see customers who have been damaged and have had money stolen, very much a high priority of our concern before we resolve that enforcement action is that those customers get taken care of and dealt with fairly by our member firms.
Ms. JONES. So are you saying that the stock exchange is going to have the back of Lehman Brothers for satisfying the claims of all these folks?
Mr. DOHERTY. What I'm saying is that since I can't comment on what we're going to do in this case, I'll tell you what we've always done and what has been our consistent practice where investors have had their money stolen by an employee of a member firm. We have made it very clear to our member firms that we expect them to deal fairly with their customers and reimburse their customers. They understand that and I cannot think of a case in the last 10 years where an employee of one of our member firms has stolen money and that that customer has not been taken care of by the member firm.
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Ms. JONES. Thank you, Madame Chairwoman. I appreciate the time.
Chairman KELLY. Thank you. Ms. Richards and Mr. Doherty, I'd like an answer to this question. Do either of your institutions have any rules about the appropriateness of branch managers or brokers who supervise their compliance officers? Do either of you have any rule in existence now and did you back a couple of years ago? How long has this rule been in place?
Ms. Richards, do you want to answer that first and then we'll go to Mr Doherty?
Ms. RICHARDS. Yes, as I said, broker-dealers have a duty to reasonably supervise. We would not consider a reasonable supervisory system a structure in which supervision was had by a subordinate. That to us would not reflect a reasonable system of supervision. Supervision must be independent to be effective, so we would look to someone outside of the branch manager's chain of command to supervise that branch manager's activities.
I would note that that's something that was specifically set forth in my testimony as one of the practices that we intend to focus on very hard in our examinations.
Mr. LATOURETTE. Will you yield to me just for that, on that point?
Chairman KELLY. Of course.
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Mr. LATOURETTE. In this situation where Mr. Semanek is the compliance officer on behalf of Lehman Brothers and he's a subordinate of Mr. Gruttadauria, are you indicating that that is a nonsatisfactory arrangement?
Ms. RICHARDS. I can't comment on the facts of this particular case because that very situation is under investigation by our enforcement staff, but a situation in which a subordinate of a branch manager is supervising that branch manager's activity, in my view, doesn't reflect a reasonable system of independence.
Mr. LATOURETTE. With the Chairwoman's indulgence because I don't want to parse words or have anybody leave here and be confused, so you're not going to comment about Mr. Semanek and Mr. Gruttadauria, but if, for the purposes of a hypothetical there was a guy in Cleveland who was the branch manager and his compliance officer was his subordinate, would you find that to be an inappropriate supervisory structure?
Ms. RICHARDS. In Cleveland or wherever—
Mr. LATOURETTE. Anywhere in the world.
Ms. RICHARDS. Yes, we would be very critical of that.
Mr. LATOURETTE. Thank you.
Mr. DOHERTY. Could I add that in our view a producing branch office manager needs to be supervised with respect to his own production like any other salesman and so that I would completely agree with Ms. Richards that supervision by a subordinate, if that's the sole aspect of the supervision, would not be, in our view, reasonable and we have brought enforcement cases against firms and others where we felt that was a deficiency.
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Chairman KELLY. Ms. Richards, it's my understanding that you put this oversight in place about 1998. Is that correct?
Ms. RICHARDS. Oversight?
Chairman KELLY. The oversight of the decision being that it was inappropriate for a branch manager or a broker to supervise their own compliance officer. Wasn't that in place in 1998?
Ms. RICHARDS. The duty to supervise has certainly been in place and is the framework, the linchpin of the federal securities laws—
Chairman KELLY. So it was not enough to stop Mr. Gruttadauria, is that correct? Must have been. Is that correct?
Ms. RICHARDS. Existing duties to supervise apparently failed with respect to Mr. Gruttadauria.
Chairman KELLY. Thank you very much. Does either the SEC or the New York Stock Exchange believe that they require greater authority to detect fraud similar to Mr. Gruttadauria's? Is there something here that we need to look at at the federal level that will not impinge on the trading that's occurring, will not impinge on the markets and yet do you need another tool in your toolbox?
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Ms. RICHARDS. I would say that, on behalf of the Commission, that we have 250 examiners for a population of 8,000 registered broker dealers, some 90,000 branch offices and 678,000 registered representatives that we police, with the SROs, with 250 examiners. The Commission is now engaged in a top-to-bottom review of its resources to determine whether or not we need more—just simply need more people to do the job that we need to do. Chairman Pitt has spearheaded that effort and we're working closely with him to make those kinds of determinations.
Chairman KELLY. What about you, Mr. Doherty?
Mr. DOHERTY. My reaction is I don't think we need additional authority. I think we need to continue to gather information and adapt our program. We have under consideration some rules that would impose more specific requirements in this area that would hopefully go a long way toward enhancing investor protection in this area.
In the final analysis, however, responsibility has to be on the member firms to put in place the kind of procedures that the rules require and run their business in a way that's compliant with the rules. We oversight that. The SEC oversights that.
Overall, this system, has given us the best markets in the world, but that doesn't mean that we can't improve things and that's what we're trying to do.
Chairman KELLY. Well, I thank you all for your testimony. I want to note that some Members may have additional questions. I'm sure they do have additional questions for this panel and they may wish to submit them in writing. So without objection, the hearing record will remain open, as I had stated earlier, for 30 days for Members to submit written questions to these witnesses and to put their responses in the record.
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I'd like to thank the first panel very much for appearing here. We appreciate your testimony and I want to especially say to you, Mr. Fazio, and Ms. Stout, you are excellent spokespeople for those people who were damaged by Mr. Gruttadauria's actions and we thank you for traveling so far to be with us today.
With that, I'm going to excuse this first panel with our great appreciation. Thank you so much.
Ms. JONES. Madame Chairwoman, just for the record, I found that newspaper article that I was talking about with Lehman Brothers with the reserves and not having enough money to help out these folks and I would just like to submit it for the record.
Chairman KELLY. With unanimous consent, so ordered.
Ms. JONES. Thank you.
Chairman KELLY. This panel is excused. I'd like to have the second panel start taking their seats.
For our second panel we welcome Mark Kaplan, Managing Director and General Counsel, SG Cowen Securities; Mr. Thomas Hommel, Managing Director and Co-Head of Global Litigation for Lehman Brothers; Daniel Sibears, did I pronounce that correct? Mr. Sibears, did I pronounce that correctly?
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Mr. SIBEARS. It's pronounced Sibears.
Chairman KELLY. Sibears, thank you very much. Mr. Sibears, Senior Vice President and Deputy for Member Regulation for the National Association of Securities Dealers; Mr. Bradley Skolnik, Indiana Securities Commissioner and Chairman of the Enforcement Section of the North American Securities Administrators Association; and Marc Lackritz, President of the Securities Industry Association. And we thank all of you for being here. I appreciate your testimony before us today and I welcome you on behalf of the full committee. Without objection, your full written statements and any attachments that you have will be made part of the record and you'll each now be recognized for a 5-minute summary of your testimony.
I'd like to begin with you, Mr. Kaplan.
STATEMENT OF MARK E. KAPLAN, MANAGING DIRECTOR AND GENERAL COUNSEL, SG COWEN SECURITIES
Mr. KAPLAN. Thank you. Madame Chair, Members of the Subcommittee, I thank you for the opportunity to come before this Panel for this important hearing. On behalf of SG Cowen, I pledge our company's full support for your efforts. We applaud the Subcommittee for its leadership in working to protect investors from fraud and other abuses.
SG Cowen is committed to doing everything possible to get to the bottom of this scheme and to do what's right for our former clients by making every effort to reach a fair and equitable resolution of their claims.
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I want to begin by briefly reviewing SG Cowen's short involvement in the retail brokerage business and where Frank Gruttadauria fit into that business. In July 1998, SG Securities purchased most of the assets of Cowen & Company, a wholly unrelated firm. Frank Gruttadauria had worked for Cowen & Company for over eight years.
SG Securities did not have a retail brokerage business until this acquisition. With the purchase, SG Cowen was formed as a full-service investment banking and retail brokerage firm in the United States.
In October 2000, a little over two years later, SG Cowen's retail brokerage business, including Frank Gruttadauria and his accounts, were sold to Lehman Brothers. Our firm has been out of the retail brokerage business since that time.
Because we sold that business, we are faced with a unique and significant challenge in piecing together what happened in the Gruttadauria scheme. First, practically everyone involved in SG Cowen's retail brokerage business no longer works at the firm. As a result, we lack the institutional memory that would help us resurrect and reconstruct what happened during the time that Mr. Gruttadauria worked at the firm.
Second, the files that we are researching are stored on vast amounts of paper and microfiche, not electronically. That requires us to manually review more than 11,000 boxes of documents relating to hundreds of thousands of transactions and, to unravel this scheme, we must analyze every transaction in every account.
Lastly, we are attempting to unravel a scheme that escaped detection, notwithstanding the due diligence, compliance procedures and independent reviews of several distinct companies and outside entities—which points to the sophistication and the complexity of this scheme. Even so, speaking for SG Cowen, we wish our efforts had uncovered it sooner and we're doing everything we can to ferret out what really happened.
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To do that, and from the very first day we learned of this problem, SG Cowen has dedicated substantial company resources to the complex task of reconstructing client records. This includes well over 100 people working on a nearly around-the-clock basis. We estimate that more than 30,000 person-hours have been expended in this effort and we are far from finished.
While this is very much a work in progress, we have learned some things that I would like to share with the panel. However, and as I am sure you understand, we simply cannot comment on matters that bear on the on-going investigations of the SEC and the New York Stock Exchange and that are the subject of private litigation.
What I can say is that some clients did receive false statements with inflated account balances from Mr. Gruttadauria. When they sought to withdraw funds, based on these artificially high levels, Mr. Gruttadauria had to get the money from somewhere else and that turned out to be the accounts of other clients. That appeared to require him in turn to provide false statements to those other clients and so the scheme grew. Thus, at its root, this was a scheme in which Frank Gruttadauria appears to have been robbing Peter to pay Paul. Many questions still remain. Did some people lose substantial sums? Did some people wind up with substantially more money than their investments would have earned? Were the compliance procedures and supervision at the various firms inadequate? Or was Frank Gruttadauria's scheme unusually sophisticated in evading detection?
Because of the nature of this scheme, we need to understand what happened with all transactions and all affected accounts before we can determine how to address any individual client's claim. Again, we are pursuing this task with great urgency, but it will take time.
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Members of the Subcommittee, we offer our sincere apology to the former clients of SG Cowen for the harm that Frank Gruttadauria's conduct has caused them. His conduct is anathema to us. That is not the way we do business and that is not who we are. We are proud of our hard-earned reputation for integrity in the marketplace and for what we do for our clients. That is why SG Cowen will continue to work tirelessly to determine exactly what happened and to make every effort to reach a fair and equitable resolution of our former clients' claims. We know that that can't happen fast enough for them and they are absolutely right.
With that, I thank you very much for the opportunity and welcome the chance to answer any questions you may have.
[The prepared statement of Mr. Mark Kaplan can be found on page 96 in the appendix.]
Chairman KELLY. Thank you very much, Mr. Kaplan.
Mr. Hommel.
STATEMENT OF THOMAS E. HOMMEL MANAGING DIRECTOR AND CO-HEAD OF GLOBAL LITIGATION, LEHMAN BROTHERS
Mr. HOMMEL. Thank you, Madame Chairwoman. My name is Thomas Hommel. I'm a Managing Director with Lehman Brothers in New York. I have a few remarks that I'd like to read into the record, after which I'd be happy to answer any questions that the Committee may have for me.
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In January of this year, Frank Gruttadauria reportedly sent a letter to the FBI admitting that he had defrauded his clients for a period of 15 years. Mr. Gruttadauria worked for Lehman Brothers for only 15 months at the very end of this 15-year period. His employment resulted solely from Lehman's acquisition of certain retail customer accounts and branch offices from SG Cowen & Company in October of 2000. Prior to Lehman's acquisition of the Cowen branches, we performed due diligence with respect to Cowen's personnel and operations. Our due diligence disclosed that Mr. Gruttadauria had a spotless compliance record with not even a single customer complaint against him, nor were there any significant number of customer complaints in the entire Cleveland Office.
Lehman acquired over 60,000 accounts from Cowen, including 4,900 in the Cleveland Branch Office. Approximately 470 of those accounts were handled by Frank Gruttadauria. It now appears that Mr. Gruttadauria was indeed deceiving a relatively small number of those clients, as well as his employers. He did so by diverting account statements generated by the brokerage firms for which he worked and preparing and sending to these clients false statements reflecting nonexistent trades and false account balances. These activities took place for a 15-month period at Lehman Brothers for two basic reasons. First, the addresses received by Lehman for 40 of Mr. Gruttadauria's 470 accounts were incorrect. These were the diverted statements. Second, the assets delivered over to Lehman from Cowen in those accounts were relatively small and the account activity, both trading activity and transfers of funds, was virtually nonexistent outside of a handful of accounts. Since a brokerage firm is charged with safeguarding a client's securities and funds, compliance systems are designed to do just that and a lack of activity in these accounts at Lehman meant that they were not singled out for scrutiny.
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At the cornerstone of supervisory procedures for every broker-dealer is the ability independently to send to all of its customers confirmations and monthly statements reflecting all activity in their accounts. In the tape to tape or computer transfer of account information from Cowen to Lehman in October of 2000, the incorrect addresses that Mr. Gruttadauria had put in place at Cowen were transferred to Lehman. Thus, a fundamental supervisory tool had been taken away from Lehman without its knowledge as a result of purchasing accounts that had defective addresses.
Moreover, nothing about the addresses that were on these accounts appeared suspicious in any way. In virtually all instances, the addresses appeared to be accounting firms or law firms which presumably had been employed by the high net worth client, or otherwise contained street addresses. Indeed, there is nothing extraordinary about a high net worth client directing his broker to send account statements to his accountant or to a lawyer. One of the accounting firms listed had a post office box included in the address, while another was, in fact, an actual accounting firm with its actual street address listed. Thirty of the 40 accounts transferred from Cowen to Lehman that had incorrect addresses were directed to one or the other of these accounting firms. The 40 accounts that were transferred to Lehman that had bad addresses contained assets of less than $5 millon. The false account statements for those same accounts reflected equity of over $250 million. From these hard facts, it is clear that to the extent that the assets reflected in the false account statements ever existed, they had been dissipated long before they reached Lehman Brothers. Because there were relatively modest amounts in the Lehman accounts, there was little or no trading in these accounts. There were few transfers of funds as well, again, putting aside a small handful of accounts.
On January 17, 2002, the very same day Lehman learned about the alleged misappropriation, it sent a new management team to Cleveland, as well as various other personnel to immediately meet with clients. Lehman also immediately notified its regulators and has fully cooperated with the numerous inquiries it has received from those regulators and other governmental entities. The complete former management team of the office was replaced. All of Mr. Gruttadauria's clients were immediately contacted to ensure that they knew precisely what was in their accounts and meetings were conducted with the affected customers to fully share with them what information the firm had regarding their accounts. Indeed, within 3 weeks of Mr. Gruttadauria's disappearance, Lehman Brothers had contacted substantially all of Mr. Gruttadauria's 470 clients and we personally have met with representatives, either family members or counsel, of 24 of the families involved in Mr. Gruttadauria's scheme, accounting for all but a few of the 60 accounts, which includes the fictitious accounts, for which false statements were prepared.
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Moreover, Lehman has already paid substantial sums to certain customers, including the customers whose accounts served as the bank for Mr. Gruttadauria's scheme at Lehman Brothers, to reimburse them for funds misappropriated from their accounts while at Lehman, without requiring those people to sign releases. Lehman believes that the amounts already paid represent a substantial portion of any funds that may have been misappropriated while Mr. Gruttadauria was employed by Lehman, and is continuing its efforts to identify and reimburse any remaining customers for any such misappropriation that may have occurred at Lehman. Lehman Brothers, unfortunately, was in the unenviable position of having to tell these customers that they were not worth what they thought they were. However, substantially all of the alleged inflation in the account value and substantially all of the alleged misappropriation took place prior to these people ever become customers of Lehman Brothers. Lehman Brothers, as part of its 150 year tradition, places an enormous premium on earning the trust and confidence of its clients. We regret deeply that these events took place, but also firmly believe that our systems of supervisory procedures are more than reasonably designed to prevent and/or detect this type of activity.
Indeed, Lehman's compliance record since 1994, when the new Lehman Brothers re-emerged, is an enviable one, with not a single regulatory sanction associated with our private client services business. We will continue to work with the affected clients, with their counsel, with the regulators and the Courts, to resolve the claims that have been raised in the most fair and efficient manner possible.
Thank you.
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[The prepared statement of Mr. Thomas E. Hommel can be found on page 104 in the appendix.]
Chairman KELLY. We thank you.
We next go to Mr. Sibears.
STATEMENT OF DANIEL M. SIBEARS, SENIOR VICE PRESIDENT AND DEPUTY FOR MEMBER REGULATION, NATIONAL ASSOCIATION OF SECURITIES DEALERS
Mr. SIBEARS. Chairman Kelly, Members of the Committee, thank you for the opportunity to testify on behalf of the NASD. First, let me briefly describe the NASD. The National Association of Securities Dealers is the world's largest self-regulatory organization or SRO. Under federal law, the roughly 5500 brokerage firms and almost 700,000 registered representatives in the U.S. securities industry, comes under our jurisdiction. Employing industry expertise and resources, we license industry participants, write rules to govern the conduct of brokerage firms, educate our members on legal and ethical standards, examine them for compliance with NASD and federal rules, investigate infractions and discipline those who fail to comply. We have a staff of 2,000 with headquarters in Washington, D.C. and 15 district offices throughout the country. We are governed by an independent Board of Governors, at least half of whom are unaffiliated with the securities industry.
I'm the Senior Vice President and Deputy for the Member Regulation Department which has over 800 dedicated employees. My testimony today will focus on the exam program which is the largest function carried out by member regulation. I recognize that the Committee has a significant interest in the Gruttadauria case. For the reasons set forth in my written statement, however, I am not in the position to comment specifically on that matter which is under investigation by the New York Stock Exchange and the Securities and Exchange Commission.
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On an annual basis, the NASD examines approximately 2600 brokerage firms' headquarters and over 200 branch offices. The yearly schedule of exams is prepared in conjunction with other SROs, including the New York Stock Exchange, pursuant to an agreement to maximize cooperation and to minimize duplication among regulators.
The exam process has advanced with technology. In the mid-1990s, the NASD developed automated exam modules, essentially taking the paper modules procedures and schedules of the past and placing them on a computer. With the NASD's recent development of INSITE which stands for Integrated National Surveillance and Information Technology Enhancements, we use sophisticated data mining techniques to detect signals of change in member firm activities. This includes statistical analysis of customer complaints, transactional and trading information, registration information and financial information.
All this technology is helpful in identifying problems, but our goal is to have the systems that encourage firms to identify and stop problems before they happen. We use all the tools at our disposal, automated, manual and intellectual, to anticipate problems. The tools used to conduct the exams have changed and although the scope has grown, what we examine for has not changed radically. During our on-site visits to the firm's office, the examiners review the firm's books and records such as financial computation work papers and subsidiary ledgers, order tickets and confirmations, complaint and correspondence file and many other records. Examiners check that the firm's records support the regulatory filings that the firm has made to the NASD in the case of trade reporting, financial filings, complaint filings and advertising filings, for instance. Examiners prepare independent financial calculations to determine the financial condition of the firm, including such measures as net capital and customer reserve. Examiners also interview the firm's compliance officers and management to learn about its supervision in operational practices. The front line of our system of preventive compliance is at the securities firm itself. All securities firms are required to have supervisory systems and internal controls. NASD takes our members' supervisory obligations very seriously. Effective evolving supervisory systems form the foundation of a firm's ability to ensure that its associated persons are appropriately dealing with customers and the customers are protected. Appropriate supervision safeguards the firm and increases investor confidence, thereby ultimately ensuring the fair and efficient functioning of our markets.
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However, ordinary supervisory procedures may be insufficient to ensure compliance in certain circumstances, circumstances that may warrant heightened supervisory controls include registered representatives who have been the subject of numerous customer complaints, disciplinary actions or arbitrations, registered representatives terminated from association with prior firms for regulatory reasons or concerns, registered representatives who have frequently changed their employment and registered representatives whose trading practices or customers appear on certain exception reports generated by the firm to monitor customer accounts.
Firms that ignore such signals or red flags of sales practice violations or that never put in heightened supervision of problem brokers may themselves be the subjects of disciplinary action for failure to supervise the brokers. While today's hearing is focused on one bad actor, the overwhelming majority of NASD members materially comply with the letter and the spirit of the rules and the law. They view their own reputation for fair dealing and high standards as a competitive asset in a competitive industry.
The NASD's job is to protect investors by setting high standards of conduct and by disciplining those that fail to live up to those standards, sometimes by barring them from the industry for life.
I'd be pleased to take any questions that you may have.
[The prepared statement of Mr. Daniel Sibears can be found on page 109 in the appendix.]
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Chairman KELLY. Next we go to Mr. Skolnik.
STATEMENT OF BRADLEY W. SKOLNIK, INDIANA SECURITIES COMMISSIONER AND CHAIRMAN, ENFORCEMENT SECTION, NORTH AMERICAN SECURITIES ADMINISTRATORS ASSOCIATION
Mr. SKOLNIK. Chairwoman Kelly and Members of the Subcommittee, I'm Brad Skolnik, Indiana Securities Commissioner and Chairman of the Enforcement Section of the North American Securities Administrators' Association. I commend you for holding this hearing and thank you for the opportunity to appear today.
The Securities Administrator in your state is responsible for the licensing of investment professionals and securities offerings, investor education and most importantly the enforcement of state securities laws. We've been called the local cops on the beat and I believe that is an accurate characterization.
Today, our focus is on the case of Frank Gruttadauria. My testimony will focus on two questions. What should be done to prevent another Gruttadauria from cheating investors out of their money and what steps can investors take to better protect themselves from these criminals?
I believe our securities laws and regulations are fundamentally sound. One lesson from this case might be that compliance departments need to toughen their enforcement of the rules already on the books. Compliance departments must have reasonably designed standards and systems in place to prevent and detect fraud. For example, it's important that firms implement an effective, centralized compliance system to approve the opening of accounts and to monitor associated name and address changes.
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In addition, I encourage brokerage firms of a reasonable size to provide on-line access to their customers' account statements. Investors will then be able to check their mailed account statements against the information provided directly by the firm's website which is not subject to manipulation by a crooked broker.
Another useful tool would be more resources for regulators. I applaud recent House action to raise the SEC budget. We need to make sure that both state and federal regulators have the resources they need to do their jobs. There's also another way to fight these criminal fraudsters. Securities regulators must work with prosecutors to obtain more criminal convictions. The prospect of serious jail time is the only way to deter these calculating cold-blooded recidivist criminals. Anything less is viewed as just the cost of doing business.
Think about it. Someone steals your car, they go to prison. A con artist steals the money your parents saved for retirement and all too often, only gets fined. That's just not right.
Make no mistake about it. Frank Gruttadauria stands accused of being an unscrupulous scam artist and his alleged criminal activities will be addressed in a court of law. However, as a State Securities Commissioner, I've encountered too many fraudsters who have swindled hard-working Americans out of their life savings.
Indeed, over the past few years, in my home state of Indiana, we've encountered at least two high profile incidents where stock brokers employed some of the same tactics such as the issuance of fictitious account statements to plunder their clients.
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The question is how can we better protect investors from being victimized by the next Gruttadauria? We need to realize that no matter what we do, there will be always be diabolical con artists. That's why stiff penalties and long prison sentences are so important.
In addition, NASAA has some tips for how investors might better protect themselves from these sophisticated scams. First, periodically check mailed account statements against on-line information from the firm's website or by calling the firm's headquarters. Secondly, we've all heard the saying, don't put all your eggs in one basket. Investors should consider spreading their investments possibly among two or three firms. Third, contact your State Securities Regulator to check out a broker before doing business with them. We can tell you if the company or individuals offering investment advice are licensed or if they have any disciplinary history. Fourth, use common sense. If written account statements show you're making lots of money at a time when the stock market is in decline, maybe you should double check your accounts with the firm's compliance office. Fifth, with the advent of desktop publishing and technology, it's not difficult to create bogus account statements. I encourage investors to carefully check for typographical errors that sometimes appear on falsified statements. Sixth, many investment professionals use either custodians or clearing brokers to hold their clients' funds and securities. Investors should periodically compare statements received from their broker with these independent third parties for confirmation and accuracy. And finally, investors should make sure their account statements are issued by the brokerage firm or mutual fund complex and not from some other assumed business name used by the investment professional.
I applaud you for holding these hearings in an effort to shed light on the criminal abuses in the securities markets. The problems in this area are serious, but can be successfully addressed if securities regulators and policy makers work together on solutions and if investors are properly educated so they can protect themselves. Thank you very much.
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[The prepared statement of Mr. Bradley Skolnik can be found on page 116 in the appendix.]
Chairman KELLY. Thank you very much, Mr. Skolnik. I hope that anyone who receives a transcript or has any indication of what you've just said who is an investor will listen and act upon those seven suggestions. Thank you for putting them into the record.
We go now to Mr. Lackritz.
STATEMENT OF MARC E. LACKRITZ, PRESIDENT, SECURITIES INDUSTRY ASSOCIATION
Mr. LACKRITZ. Thank you, Madame Chairwoman, and Members of the Subcommittee. Thank you very much for the opportunity to testify today to describe the regulatory structure of the securities industry which I know you've already heard a little bit about, the efforts that we're making to continually improve compliance and prevent fraud, and a new investor education and information efforts underway to help empower investors and prevent this kind of incident.
The securities industry is profoundly concerned whenever an investor loses money through fraud and we share your Subcommittee's outrage over this particular incident. Indeed, we're embarrassed that this type of fraud has even occurred because although it happens only rarely, it simply should not occur at all. Our industry prides itself on our dedication to ensuring the highest ethical standards among our professionals and our deep commitment to earn the public's trust and confidence that the markets operate fairly with complete integrity. When that trust and confidence are undermined in any way, our reputations are diminished and investors become more reluctant to provide the capital that companies need to grow and flourish, employ more workers and provide financial returns that boost our nation's prosperity. That's why we have no tolerance for those who have broken the law and we believe that bad actors should be prosecuted to the full extent of the law.
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Although this, episode of fraud is egregious and unacceptable, it is important to note how rare these incidents are. More than 99.99 percent of all transactions result in no complaints, a record that other industries and professions envy. Since 1995 the increases in dollar volume in securities transactions dwarf the increase in complaints. Every single day nearly $700 billion in transactions clear and settle on the stock and debt markets based on a handshake, a nod, a hand signal, a keystroke or a phone call. This would not be possible without strong, fair regulatory scheme that protects investors and ensures the integrity of the markets.
The securities industry multi-tiered regulatory structure makes them amongst the most highly regulated industries. The first layer of investor protection occurs within the brokerage firm itself. Broker dealers are responsible for complying with every law and regulation pertaining to their business, including the strict supervision of all personnel. They must also comply with mandatory continuing education programs.
SROs, the second tier of regulation, verify that brokerage firms have systems and procedures in place to manage themselves properly and to comply with securities regulations, review firm's books and records, and administer tests and supervise the industry's mandatory continuing education requirements. They also create a compliance system by which individuals and securities firms can police their own activities. For example, the NASD regulation maintains a public disclosure program on its website. I've give you that address in my written testimony, as well as a toll-free telephone number that provides disciplinary information on all licensed securities brokers. This resource which we believe is unique in any profession, enables investors to know instantly whether a broker with whom they are considering doing business has ever had disciplinary action taken against him or her.
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As you know the SEC is charged with preserving the integrity, efficiency and fairness of the securities markets by administering and enforcing the federal securities laws. And it also oversees the SROs. They have a long and successful history of detecting fraud and punishing wrongdoers. This year already, the SEC brought more enforcement actions in the first quarter, 61 cases, than it did during the same period last year and in taking the helm of the SEC, Chairman Harvey Pitt is refocusing the agency's role on catching problems early rather than spending years developing a case and then imposing penalties. We support this effort and Chairman Pitt's request for more resources to expand the commission's legal and enforcement staff and we appreciate this Subcommittee's and Committee's full support of greater resources for the SEC because a fully-funded SEC is critical for both the securities industry and our customers.
As you know, Congress is the ultimate overseer and ensures that the SEC is fulfilling its responsibility to regulate the markets.
This regulatory structure has been extremely successful by fostering the broadest, deepest, most transparent markets in the world and now countries across the globe are trying to emulate our system. I think we've established a record the entire industry can be proud of, the public can rely on and other industries can only envy. Yet, once in a while a bad actor slips through the structure and defrauds our customers. When this happens, the industry works very, very hard to make customers whole and to improve our system by detecting and stopping fraud. Broker-dealers use sophisticated technology to detect abuses. For example, computers compare clients' electronically-stored profile against the trades he or she is trying to undertake. If the two don't match, the broker-dealers' compliance officers will scrutinize the activity immediately. Market regulators also use advanced state-of-the-art software and computerized surveillance systems to detect and investigator signs of foul play.
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In addition to our efforts to stop fraud before it happens, the broker-dealers in the industry are redoubling our investor education efforts so that investors will have the necessary tools and skills to invest responsibly and avoid being defrauded. We have published literally dozens of educational brochures and participated in investor town meetings across the country organized by the SEC. In addition, we fully support the Treasury Department's new campaign for financial literacy, a goal our industry has been committed to achieving for more than 25 years through our stock market gain. More than 600,000 students in fourth through twelfth grade participate in this 10-week program that combines basic economic education with an investment simulation exercise.
We also recently launched a new website, www.siainvestor.org which provides interactive on-line learning tools that addresses investors' different needs and it's free to anyone that accesses it.
The securities industry works in concernt with government, regulators and self-regulatory organizations to promote a culture of trust and confidence which are our most important assets. In such an environment, innovation soars, competition thrives and investor confidence flourishes. We will continue to work together to eliminate any and all incidents of wrong-doing through effective leadership, compliance, self-regulation and more investor education. These actions will help maintain and enhance the public's trust and confidence which is good for investors, good for our industry and good for our country.
Thank you very much.
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[The prepared statement of Mr. Marc Lackritz can be found on page 122 in the appendix.]
Chairman KELLY. We thank you. I'd like to open the questioning with a question to Mr. Kaplan and Mr. Hommel. Have you contacted Mr. Fazio and Ms. Stout with regard to their accounts because they said here, today that you have not?
Mr. KAPLAN. I can begin. I did hear their testimony. I have not personally spoken to them. I have personally spoken to many of Mr. Gruttadauria's clients. The only thing that I can say, Chairperson Kelly, is that we are committed to reaching a resolution, a fair resolution with each of these clients. It is very difficult, we understand, for these clients to have gone through this. We are committed to that process. We understand that it has been a long one, but this is one that we are committed to and one we have devoted a tremendous amount of resources to.
Chairman KELLY. Mr. Kaplan, if I understand the testimony here this morning, Mr. Gruttadauria had less than 500 clients, is that correct?
Mr. KAPLAN. I believe that may be generally accurate, correct.
Chairman KELLY. And Mr. Kaplan, all of this happened, the problem became apparent as I understand it, in January. How long do these people have to wait before they get some kind of contact from your company?
Mr. KAPLAN. I agree with the Chairperson that this process has not moved as quickly as we would like and I know the clients would like. As I indicated in our oral statement, the process for us of unraveling this scheme has been a very complex one and one that has required a lot of time and a lot of resources.
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As I indicated, this for us, has not just meant reviewing the two years that he worked at SG Cowen, but we have gone back to look at all of the records while he worked at Cowen and Company and this has required us to piece together each of the individual transactions in each of the accounts which, because of the way records were kept, has required a manual review of all of those records. We have devoted at this time about $4 to $5 million to try to recreate these accounts. This has meant scores of lawyers, scores of accountants. We recognize the urgency. We appreciate your efforts and you have our pledge that we will work as quickly as possible to try and reach a fair and equitable resolution with those clients.
Chairman KELLY. Mr. Hommel, you have not answered these questions. Will you, please?
Mr. HOMMEL. Madame Chairwoman, within 30 days after Mr. Gruttadauria's disappearance, I personally met with Ms. Stout in her home in Elgin, Illinois, as well as with Mr. Fazio and his counsel, Mr. Kranz, in Mr. Kranz' office in Cleveland. We also met with representatives or the clients of 24 of the other families who were involved in Mr. Gruttadauria's scam. The purpose of the meeting was to make sure that these folks had the information that we had so that we were all dealing with the same set of facts, and in fact, many of the folks did not have their actual account statements. We brought them with us and gave them to them. We asked them to show us the false account statements that they were receiving so that we knew what they were receiving and from that point forward, we've engaged them, in some instances with greater success than in others, in discussions that are designed to ultimately lead to a resolution of this situation.
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Chairman KELLY. Mr. Kaplan, you're aware, I know, of the New York Stock Exchange 1998 enforcement action against Cowen. Can you discuss with us the changes, if any, that the firm made to address the failure to reasonably supervise branch office managers acting in the capacity of registered representatives, that that terminology was in that report. Can you address that?
Mr. KAPLAN. Yes. Shortly before SG Securities acquired Cowen and Company, Cowen and Company did enter into a consent order with the New York Stock Exchange that related to a number of different issues. As a result of that consent order, SG Cowen implemented a number of changes. It hired a number of additional personnel in the compliance department, including a new director of branch examination whose role was to go out and conduct audits of each of the branches. There was a compliance committee formed at the very top of the company to review both the progress with this order and to review generally the compliance procedures. There were personnel changes in the margin department and there were supervisory changes within the firm. I do know from looking back at this material that six months later, an outside independent law firm came and reviewed the changes that were made. That law firm certified to the Exchange and certified to the executives at SG Cowen that changes, in fact, were made. The issue that you raise is an important one, which is whether those changes could have prevented this fraud from happening. That is an issue that we are looking at as well. That is an issue that we are cooperating on with the New York Stock Exchange.
Chairman KELLY. Thank you. I'm out of time and I'm going to go now to Ms. Jones.
Ms. JONES. Thank you, Chairwoman Kelly. Let me say at the outset to all the panelists I have 5 minutes. I'm going to ask short questions. I'd like short answers, if you could facilitate me, please.
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Mr. Kaplan, during the period of time that Mr. Gruttadauria was employed with SG Cowen, how much money did you make from his trades?
Mr. KAPLAN. I am not sure.
Ms. JONES. Could you get an answer for me, sir?
Mr. KAPLAN. Yes, I will.
Ms. JONES. It was more than $2 million, $3 million, $4 or $5 million that you could say that, could you not, sir?
Mr. KAPLAN. I can't speculate, but I will provide you with that exact information.
Ms. JONES. How much money did SG Cowen make in 1995?
Mr. KAPLAN. We did not acquire Cowen and Company and Mr. Gruttadauria until 1998.
Ms. JONES. How much did you make in 1998?
Mr. KAPLAN. Again, I apologize that I do not have those specific figures.
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Ms. JONES. You understand why I'm asking these questions, do you not, Mr. Cowen
Mr. KAPLAN. You are right to focus on those issues. I apologize that I don't have the answers for you right now.
Ms. JONES. In fact, the people who lost dollars as a result of his conduct—strike that. You do understand that you are responsible for the conduct of Mr. Gruttadauria, do you not, sir?
Mr. KAPLAN. We understand our responsibility here.
Ms. JONES. That wasn't my question. My question is that you do understand that you are responsible for the conduct of Gruttadauria?
Mr. KAPLAN. We do understand that and, as I indicated, we are committed to reaching a fair and equitable resolution with his clients.
Ms. JONES. There may be a little question as to what is fair and equitable in light of the fact that Mr. Gruttadauria represented to these people and they relied upon his representation that they have a certain amount of money when you may now come and say well, the real thing you have was X, but I have a piece of paper that said I had 10 times that?
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Mr. KAPLAN. Well, I think that is one of the issues that will go into the decision or the discussion as to what is a fair and equitable resolution. There are clients—
Ms. JONES. Thank you very much. I hate to cut you off. Let me go on now to Mr. Hommel. Pronounce it for me, sir?
Mr. HOMMEL. Hommel.
Ms. JONES. Hommel. How much did you make even though you only had Mr. Gruttadauria, at least that's your statement work for you for only 18 months, how much money did you make from his trading?
Mr. HOMMEL. I also do not have precise figures for you, but I would note that the trading activity during Mr. Gruttadauria's tenure at Lehman Brothers was very, very low.
Ms. JONES. That wasn't the question I asked you.
Mr. HOMMEL. I don't know, ma'am.
Ms. JONES. You can get that information for me, can you not, sir?
Mr. HOMMEL. I will.
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[The following information was subsequently furnished by Mr. Thomas E. Hommel for the hearing record.]
[During the period of time Mr. Gruttadauria was employed by Lehman Brothers Inc. the gross revenue generated by transactions in the accounts serviced by him was $3,122,515. Mr. Gruttadauria's total compensation for salary and sales credit for that same time frame was approximately $1,007,000.]
Ms. JONES. Can you tell me who Mr. Steve Lessing is?
Mr. HOMMEL. Mr. lessing is the head of sales for our organization.
[From 1996 through April 2000, Stephen M. Lessing was Head of Global Sales and Research of Lehman Brothers Inc., responsible for the Firms's Fixed Income and Equity Sales and Research organizations, as well as the Private Client Services business. In April 2000, Mr. Lessing became the Senior client Relationship Manager for the Firm and Head of the Private Client Services Group.]
[The following information was subsequently furnished by Mr. Thomas E. Hommel for the hearing record.]
Ms. JONES. How long has he worked for Lehman Brothers?
Mr. HOMMEL. Mr. Lessing has been there for at least as long as I have which is 16 years, but I don't quite know the exact—
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[Mr. Lessing has worked for Lehman Brothers for 22 years.]
Ms. JONES. Okay, and what was his supervisory authority, sir?
Mr. HOMMEL. He is basically the global head of sales.
[As head of Private Client Services, Mr. Lessing had general executive responsibility for the operation of that business, but was not the day-to-day business head.]
Ms. JONES. Then he had oversight over Mr. Gruttadauria?
Mr. HOMMEL. That would include institutional sales, retail sales, sales in many different forms.
[From October 2000 to January 22, 2002, Mr. Gruttadauria was employed in the Private Client Services business of Lehman Brothers.]
Ms. JONES. The answer is yes or no, sir.
Mr. HOMMEL. Yes ma'am.
Ms. JONES. Okay, thank you. And what was he paid, sir?
Mr. HOMMEL. I don't know, ma'am.
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Ms. JONES. Can you get that information for me?
Mr. HOMMEL. I will do so.
[For the fiscal year 2001, Mr. Lessing was paid a salary of $450,000 and received a cash bonus of $2,050,000. He also received $2.5 million worth of restricted stock units which will vest over a period of five years in accordance with the terms of the plan pursuant to which they were issued. Mr. Lessing also received options for the purchase of 300,000 shares of Lehman Brothers Holdings Inc. stock.]
Ms. JONES. And you can also get for me the information as to how much money you made as a result of the sales by Mr. Gruttadauria.
Mr. HOMMEL. We will do that.
Ms. JONES. Let me go on a little bit. There's an article dated April 27th that says the SEC accuses Mr. Gruttadauria of stealing client money for himself and using some of it to shower Ms. English with $600,000 in cash and $100,000 worth of gifts. Let me take you to the NASD standards for discipline and somewhere it's either there or one of your other people who testified said that is a signal for a broker to not be giving gifts to other employees in the firm. I'm not quite saying it correctly, but you understand what I'm saying to you, don't you, sir?
Mr. HOMMEL. Yes, we have a policy which prohibits managers from making such gifts.
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Ms. JONES. In fact, could you find out for me how much money was showered upon Ms. English as a result of the conduct of Mr. Gruttadauria and if, in fact, it was in violation of your standards, what you did about it?
Mr. HOMMEL. We will endeavor to do that. Of course, we may not have all the information necessary to get a complete picture. Ms. English would be in a better position to do that.
[We are not in possession of any records or information regarding the value or extent of any gifts allegedly given by Frank Gruttadauria to Laurie English. Lehman Brothers was unaware of any such gifts.]
Ms. JONES. Let me ask you. What is a Lehman Brothers policy with regard to a broker, a branch office manager supervising a compliance officer and then who supervises a branch office manager? All right, who didn't want me to talk? It's okay. I'm going to go anyway. Who supervises the branch office manager in his investment and trading?
Mr. HOMMEL. In this instance, Mr. Gruttadauria had a direct reporting line into the regional management office in Chicago, so he was supervised directly by the regional manager in Chicago and the regional office in Chicago.
Ms. JONES. And who was that person?
Mr. HOMMEL. The regional manager in Chicago's name is Michael Smith.
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Ms. JONES. Was he the regional manager at the time that Mr. Gruttadauria was employed by your company?
Mr. HOMMEL. He was.
Ms. JONES. How much money did he make as a result of the trading of Mr. Gruttadauria?
Mr. HOMMEL. I do not know.
Ms. JONES. You can get that information for me as well?
Mr. HOMMEL. I'd be happy to get that for you.
Ms. JONES. Thank you very much.
[There was no direct relationship between revenues generated by Frank Gruttadauria and Michael Smith's compensation.]
Chairman KELLY. You're out of time.
Ms. JONES. I'll come back.
Chairman KELLY. Would you like to have those articles that you held entered into the record?
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Ms. JONES. Yes ma'am, thank you very much.
Chairman KELLY. With unanimous consent, so moved. Mr. Tiberi.
Mr. TIBERI. Thank you, Madame Chair. To Mr. Kaplan and Mr. Hommel, did Lehman and Cowen have a policy requiring disclosure of a special fiduciary relationship and I'm speaking to the issue of Mrs. Cuneo who passed away in 1997 and the fact that Mr. Gruttadauria was named executor of her estate.
Mr. KAPLAN. On behalf of SG Cowen, I am not sure what the firm's policy was at that time as to individual brokers acting as trustees for client accounts.
Mr. TIBERI. Can you get us that information?
Mr. KAPLAN. I can.
Mr. TIBERI. And can you get us that information of what—well, it wouldn't apply to you. Mr. Hommel?
Mr. HOMMEL. Yes. I can tell you that if a firm employee were to accept responsibilities in that capacity, it would have to be disclosed. I will let you know whether or not there was a prohibition on that, but I can tell you that if there were an acceptance of those responsibilities it would have to be disclosed to the compliance department of the firm.
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[S.G. Cowen approved of Mr. Gruttadauria acting as the broker for the Estate of Anne Cuneo with respect to which he acted as the Executor. Since that account was acquired by Lehman, the relationship remained in place. At Lehman, the decision whether to allow a broker to service an account where he or she may be acting in a fiduciary capacity is made on a case-by-case basis.]
Mr. TIBERI. Do you know, to your knowledge, did anyone check those disclosures in Mr. Gruttadauria's case?
Mr. HOMMEL. I don't know.
[There is no record of any inquiry with respect to Mr. Gruttadauria acting as Executor of the Estate of Anne Cuneo.]
Mr. TIBERI. You can find out?
Mr. HOMMEL. We will find out for you.
Mr. TIBERI. Thank you. Continuing, Mr. Hommel, are the press reports accurate that your firm gave Mr. Gruttadauria a $5 million bonus to remain in the Cleveland office and run it?
Mr. HOMMEL. We paid Mr. Gruttadauria a $5 million retention bonus as part of that acquisition, as we paid a retention bonus to the other brokers of Cowen who came over to Lehman Brothers. We believe that that is commonplace in these types of transactions. I personally don't know of any transaction involving the sale and purchase of retail assets that did not involve retention bonuses for the simple reason that ours is a very fluid industry from the employment perspective. Brokers are free to go to whomever they'd like to work with.
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Mr. TIBERI. Thank you. With that purchase, did you also accept their liabilities and their assets?
Mr. HOMMEL. I'm sorry?
Mr. TIBERI. With that purchase, did you accept their liabilities and their assets?
Mr. HOMMEL. No, we didn't. We purchased accounts and the asset purchase agreement is very clear that we did not accept liabilities.
Mr. TIBERI. During the purchase, were you aware of the 1998 fine against that office from the New York Stock Exchange?
Mr. HOMMEL. Yes, we were.
Mr. TIBERI. You were. And Mr. Kaplan, just to follow up on Ms. Kelly's question earlier, you said you had met with victims or met with some of the victims. What efforts have been made by Cowen to fully make the victims whole?
Mr. KAPLAN. At this point our efforts have been focused on trying to understand what happened in each individual client's accounts. As I indicated in my oral testimony, this scheme was perpetrated by shifting monies from one account to another account. In order to understand what is a fair and equitable resolution with each client, we must understand how much a client put in and how much a client took out. That process has involved a tremendous amount of work and when we complete that process, we will meet with each of the clients to reach that resolution.
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Mr. TIBERI. What's the time line, Mr. Kaplan, do you have any idea?
Mr. KAPLAN. I hope to complete that process within the next several months.
Mr. TIBERI. I yield the balance of my time to Mr. LaTourette.
Mr. LATOURETTE. Thank you very much, Mr. Tiberi. Mr. Kaplan, on October 15 of 1997, the New York Stock Exchange sat down with counsel for Cowen, I believe they're Wilke, Farr and Gallagher, and during the course of that and that had to do with the allegation of violation of New York Stock Exchange Rule 342, failure to supervise in accordance with those procedures. And then in the response document, do you have your response document from that time with you?
Mr. KAPLAN. I do not have it, sir, although I have some familiarity with it.
Mr. LATOURETTE. Okay, and Madam Chairwoman, I'd ask unanimous consent that this response document be made part of the record and I'd ask that the document be supplied to Mr. Kaplan so that he can refer to it. But the salient points are that Cowen promised a sea of changes relative to the investigation by the New York Stock Exchange and in pertinent part on page 76 indicates Cowen recognizes the concern that arises from a situation in which the operations manager is placed in a position of supervising to even a limited extent the individual to whom he or she reports. Does that comport with your response to the New York Stock Exchange's inquiry?
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Mr. KAPLAN. Well, again, SG Cowen or SG Securities, when it purchased Cowen and Company in 1998, was made aware of this consent order and, as I indicated, implemented a number of changes in conjunction with the Exchange. In order to address these very problems raised by the Exchange, it is clear that that is one of the issues that we are looking into as to whether those changes could have caught someone like Mr. Gruttadauria who perpetrated this scheme.
Mr. LATOURETTE. When Mr. Doherty met with me the other day, he indicated that the $385,000 fine levied by the New York Stock Exchange, only 12 fines have been larger in the history of the Exchange. I don't ask you to comment on that, but the question is if the statements in that pleading were true, when SG Cowen acquired the business in 1998, it's my understanding, even though you couldn't answer Ms. Tubbs-Jones' question that Mr. Gruttadauria generated for SG Cowen $5 million in 1998 and $5 million in 1999 as commission. Now I'll ask you to go back and check that out. And my question is, if that's true, and I'm going to ask you to assume that that's true, how, by examining the accounts that you took possession of in 1998, could there ever be a justification for fees or commissions of $5 million produced by this man? The amount of equity in the accounts versus what the commissions were, if you accept my statement that he earned $5 million for your firm, they don't match and why didn't that do something to you guys? Why didn't that raise a red flag? Why didn't that come to anybody's attention?
Mr. KAPLAN. Mr. Gruttadauria, as we have heard all of this morning, put together a very complex and sophisticated scheme. You heard how he gained the trust of his clients. He betrayed the trust of these clients. One of the things that we're looking into is whether this was a matter of someone who put together a very complex and sophisticated scheme that evaded detection by all of the firms he worked for, firms that conducted due diligence, and by their compliance departments and their supervisors. That is one of the issues that we know we are obligated to address to this panel, his former clients and to the Exchange. That is a very important issue. I cannot at this point indicate how that took place.
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Mr. LATOURETTE. Madam Chairwoman, I see Mr. Tiberi's time has expired. If I might continue on my own time?
Chairman KELLY. By all means, proceed.
Mr. LATOURETTE. Thank you very much. Mr. Hommel, that raises a question of you and I'll ask you to assume for the purposes of my question that, in fact, Mr. Gruttadauria did earn commissions for SG Cowen of $5 million in 1998 and 1999, but regardless of what the number is, during the course of the due diligence conducted by Lehman, you would be aware of what his potential was or what he had generated for Cowen or no?
Mr. HOMMEL. We would know what his production statistics were, yes.
Mr. LATOURETTE. For 1998 and 1999?
Mr. HOMMEL. Yes.
Mr. LATOURETTE. If I'm correct that for both years it was $5 million or there abouts and if you are correct that most of the thefts that occurred prior to the transfer of these accounts from SG Cowen to Lehman Brothers, does that not raise some question in your mind how accounts that you say have a diminished value, by the time you receive them, have produced $5 million in commissions for SG Cowen in the two previous years?
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Mr. HOMMEL. Certainly in retrospect, as we look at it now. As we looked at it then, looking at the New York Stock Exchange investigation and the results of it and Mr. Gruttadauria's statistics, there was nothing to indicate to us at that point that whatever commission level Mr. Gruttadauria earned in 1998 and 1999, was through the use of anything but trading on a legitimate basis with his accounts.
Mr. LATOURETTE. And Mr. Kaplan, back to you. We've heard talk about the 1993 anonymous complaint filed with the Securities and Exchange Commission and how that was resolved. Were you aware of that, sir?
Mr. KAPLAN. No. As I indicated, SG Securities did not acquire the firm until five years later. We first learned of this anonymous complaint as it hit the press yesterday. We have checked our records and we have seen no evidence of that in any of the due diligence or in his files.
Mr. LATOURETTE. And Mr. Hommel, the same question to you. Before it was reported in the press, yesterday, did you have any indication of this 1993 complaint?
Mr. HOMMEL. No, none whatsoever.
Mr. LATOURETTE. Mr. Kaplan talked about perhaps this was a fellow who was engaged in a rather elaborate scheme, sort of indicating a uniqueness to it, but what Mr. Gruttadauria was up to was not unique at all. This has happened before, has it not, this same pattern of behavior, Mr. Hommel?
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Mr. HOMMEL. I don't see this as a pattern of behavior that we have experienced before.
Mr. LATOURETTE. You do not see it?
Mr. HOMMEL. No, if you're referring to—
Mr. LATOURETTE. Let me get to that. I think that Mr. Daouk and when you were in my office, you indicated that Mr. Daouk is different because he was a referring broker, as opposed to someone who is an employee and I guess that I became surprised then when I read the District Court decision from 1998 that indicated that Lehman effectively made WIS, Mr. Daouk's company its de facto branch office. And as I understand the facts in the Daouk case which is currently—is it resolved yet?
Mr. HOMMEL. No, it's still pending.
Mr. LATOURETTE. Then it was pending at the time that you were doing your due diligence in an attempt to purchase SG Cowen's retail business, was it not?
Mr. HOMMEL. It was.
Mr. LATOURETTE. It's my understanding that in the Daouk matter, Mr. Daouk had created new signatures for clients to allow them to authorize future transactions, that he had prepared and distributed forged monthly account statements, that he had used a personal off-network computer and that he had established post office boxes where he intercepted the client information sent from Lehman and that he churned accounts in order to generate excess commissions which were shared by both he and Lehman Brothers.
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Is it your observation that that pattern of conduct that Mr. Daouk is accused of engaging in is significantly different from Mr. Gruttadauria's behavior?
Mr. HOMMEL. I do.
Mr. LATOURETTE. And can you explain to me why you think that is so?
Mr. HOMMEL. I think that because first, Mr. Daouk was never an employee of Lehman Brothers. He was never an employee of Shearson Lehman Brothers. He was an employee of E.F. Hutton back in the mid-1980s in its Beirut office. E.F. Hutton closed its Beirut office in 1986 and the office was taken over by a firm called World Investor Services which never had any direct affiliation with Shearson Lehman Brothers or Lehman Brothers. I think the passage you're referring to is the court's recitation of an allegation in the complaint.
However, the fact is that World Investor Services entered into an introducing broker relationship with E.F. Hutton to which Shearson Lehman Brothers succeeded when Shearson bought Hutton in late 1987 or early 1988. That contractual relationship persisted through 1992 when the business left us. Mr. Daouk worked for an introducing broker that referred accounts to E.F. Hutton and later to Shearson Lehman Brothers. They were the primary point of contact with those clients. The clients were predominantly Lebanese nationals with some Saudi nationals. The accounts were largely opened in the mid-1980s when there was a civil war in Lebanon. Mail service was sporadic, if existent at all, and post office boxes to my understanding, were in wide use. In any event, we never had direct contact with these clients. Mr. Daouk, as the referring broker, did. He also took discretion on the accounts so that Shearson Lehman Brothers and Hutton before them, essentially acted as a clearing broker for these trades.
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Mr. LATOURETTE. The two accountant firms, accountancy firms that Mr. Gruttadauria established, I'll find my notes, but basically where these statements were going, WJS and DH—
Mr. HOMMEL. One is an actual accounting firm.
Mr. LATOURETTE. Which one is an actual accounting firm?
Mr. HOMMEL. I believe it's DeGrandis and DeGrandis.
Mr. LATOURETTE. Okay. And then how many of the fraudulent statements were going to—the real statements were going to that accounting firm.
Mr. HOMMEL. There's a universe of 40 accounts that were transferred over. There were 60 accounts for which false accounts were created, but a number of them had—they were fictitious in their entirety, that is, there was no corresponding Lehman Brothers account. For the 40 accounts that came over from Cowen for which fictitious account statements were created, but for which real accounts did exist, 30 of those account statements were diverted to one or the other of the accounting firms. Seventeen, I believe, went to JYM Accounting. JYM had a post office box. Those 17 were—17 of the 18 of the accounts that had post office boxes. The other one happened to be a legitimate account so that the customer was actually getting the fake statement and the real statement with the same number at the same address. However, 30 of the 40 went to the accounting firms. Seventeen of them went to the post office boxes in the name of JYM.
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Mr. LATOURETTE. Were you in the room when the first panel testified?
Mr. HOMMEL. I was.
Mr. LATOURETTE. You had the opportunity to listen to those folks. The exhibits that we put up relative to the activity, just based upon your experience and how you guys run your firms, the activity of Mr. Fazio's account in 1990 that we had on the chart, is there anything that in your experience would have triggered perhaps an inquiry by members of your firm had you been aware of it?
Mr. HOMMEL. I think that those numbers may have triggered some type of response from compliance supervisory systems, but to say out of context right now what our reaction would have been back then had it been us instead of some other firm, I don't think that I can speak to that.
Mr. LATOURETTE. How about you, Mr. Kaplan?
Mr. KAPLAN. I have the same response. Without knowing Mr. Fazio and what his intentions are and investment philosophy, it is hard for me to speculate as to what actions would have been taken at the time.
Mr. LATOURETTE. Do you think, when we were talking to Ms. Richards from the SEC, that perhaps it would at least cause you to make an inquiry of the investor? Were they sort of this hyperactive investor that wanted to turn over their account 18 times in six months?
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Mr. KAPLAN. It is traditional in our industry that our compliance officers, when they see an account with an unusual activity, that they will make contacts with the client to ensure that that trading is consistent with what they want.
Mr. LATOURETTE. How about you, Mr. Hommel?
Mr. HOMMEL. I would agree with Mr. Kaplan's statement on that point.
Mr. LATOURETTE. Thank you very much. Thank you, Madam Chairman.
Chairman KELLY. Thank you very much. The questions here, I know that they seem difficult, but on the other hand, they're very, very important to us in terms of understanding what has gone on here and what our need is to respond to this.
I'd like to address a question to you, Mr. Sibears. Since we know that the SEC had a clear indication of churning in 1993, and the stock exchange performed some review of the Gruttadauria accounts in 1994 which might have caught him, I have to ask you, did the NASD ever review specific customer account statements of Gruttadauria clients?
Mr. SIBEARS. Chairman Kelly, we have gone back and done an exhaustive review of the records of the exams that we've conducted of firms that Mr. Gruttadauria was associated with and we've not been able to detect any accounts that we have reviewed in the course of examination program that were accounts of Mr. Gruttadauria's clients.
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Chairman KELLY. Mr. Sibears, I find that a very interesting statement since there was obviously some question here in 1993. Again, 1998, there were some flags raised and yet there's no record of your looking back at what happened here, is that correct?
Mr. SIBEARS. Well, we certainly have a record of what examinations that we conducted that related to the firms in question, but as Mr. Doherty testified to, the New York Stock Exchange has a number of firms that are members of the New York Stock Exchange. I don't believe, at least his oral testimony, mentioned the fact that some of those firms, in fact, virtually all of those firms, not everyone, are dual members of the New York Stock Exchange and the NASD. And we have a very highly cooperative program between the New York Stock Exchange and the NASD that is designed to ensure that firms do not receive any kind of regulatory overlap or unnecessary duplication.
So, for example, in a firm like these that we've been talking about, when we did our reviews of Cowen and Lehman, our focus tended to be not on financial issues or operational issues, but on things that were unique to our jurisdiction such as municipal underwritings, private securities transactions, trading of market making rules that are unique to our authority as a regulator so as to avoid the overlap. So in this kind of instance, it wouldn't be particularly unusual.
Chairman KELLY. On page 5 of your testimony, sir, you go into great detail about the number of scams that the NASD has found that are carried out through the use of bogus post offices or bogus addresses. You mentioned that you sent a member alert highlighting that concern to your member firms. Can you tell me when you sent that member alert?
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Mr. SIBEARS. Yes. We sent that on January 28th and what we did was—
Chairman KELLY. January 28th of this year?
Mr. SIBEARS. 2002 and it was posted to our website which we—is our standing operation procedure now, to get the broadest attention and audience.
Chairman KELLY. You also mentioned that you revised your examination procedures with this regard. Can you tell me when you made those revisions?
Mr. SIBEARS. That was earlier in this year and the revisions that we talk about in that testimony were directly related to the Gruttadauria matter. We did have certainly a number of very extensive supervisory procedure examination steps, but those procedures in that exam protocol was refined as a result of this matter.
Chairman KELLY. All right, thank you very much. I have one question for all of the witnesses and that is do you think that the regulators need any new authority to enable them to specifically detect this type of fraud, the type of fraud that was demonstrated by Mr. Gruttadauria and I'm asking all of you.
Mr. Lackritz, why don't we start with you?
Mr. LACKRITZ. Thank you, Madame Chairwoman. We would strongly support increased resources for enforcement of the SEC as I mentioned in my testimony. We strongly appreciated and supported your Committee's action to increase the authorization of the SEC, specifically for enforcement activity and I think that's the main area that we would recommend changing.
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Chairman KELLY. Mr. Skolnik, have you a comment?
Mr. SKOLNIK. Madame Chairwoman, I believe that the securities laws presently in place and the authority that state regulators, as well as federal regulators and SROs have is adequate. I do concur, I think that regulators at all levels probably need more resources to deal with the demands that have been created by just the vast increase in the number of investors who have entered our capital markets in the last couple of decades.
Chairman KELLY. Mr. Sibears?
Mr. SIBEARS. With the caveat, Madame Chairman, that hopefully we can supplement the record after we talk about this a little bit more back at the NASD because I've been thinking of your question since you asked Mr. Doherty and Ms. Richards. I think it's an incredibly important question, but it strikes me that we have very good and very broad authority and the important thing is the ability to both try to be very proactive and catch these problems through our processes before they occur and have the flexibility to very quickly amend our procedures and refocus our examination and enforcement programs once something is brought to our attention which, for example, in this case, we were able to do. But I would hope to be able to possibly even respond to this while the record is open more fully.
Chairman KELLY. Mr. Hommel, Mr. Kaplan, would either one of you like to respond?
Mr. HOMMEL. We believe that the current regulatory scheme is adequate to protect the interest of investors. We firmly believe that actually our compliance systems were the reason that Mr. Gruttadauria's scheme came to an end.
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Chairman KELLY. Mr. Kaplan?
Mr. KAPLAN. I would agree that increased resources is critical for the SEC and its audit function. However, these regulators cannot be everywhere. They cannot look at every account and I think each member firm, has an obligation to make sure that we maintain a review of our clients, a review of our employees. That obligation is on us as well.
Chairman KELLY. Thank you. Thank you very much. Ms. Tubbs-Jones, do you have any more questions for this panel?
Ms. JONES. Lots. I only have 5 minutes. Mr. Hommel, did you say that you believe it was your compliance system that brought to light the conduct of Mr. Gruttadauria?
Mr. HOMMEL. We think that our compliance systems contributed to the fact that he went underground when he did.
Ms. JONES. Now there's a difference in contributing and bringing to light. You do understand the distinction between the words?
Mr. HOMMEL. I didn't mean to say anything other than that our compliance systems contributed to the fact that he did.
Ms. JONES. I accept that change in your statement, sir. Did you also say that you had an asset agreement that when the—the accounts transferred from SG Cowen or whatever the name of the company—
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Mr. HOMMEL. We purchased assets from SG Cowen. The assets were the accounts.
Ms. JONES. And did you say that your agreement, in the agreement you did not accept any liabilities?
Mr. HOMMEL. No, the agreement we feel is quite clear that any liabilities that arise from the operation of that business prior to the closing date of the transaction remained with SG Cowen.
Ms. JONES. But any liabilities that result from any conduct after the date of that transaction, you are responsible for?
Mr. HOMMEL. That's correct.
Ms. JONES. Is that a fair statement?
Mr. HOMMEL. That is a fair statement.
Ms. JONES. Making that statement then, can you tell me when you will respond to all these folks seated in the audience for that liability?
Mr. HOMMEL. Well, we have responded to some of them, as I said in my opening statement. We have reached interim resolutions with some of the clients where we've identified misappropriated funds. We have credited those clients. If I may, with respect to the folks in here and many other folks, we're in a difficult position in that the assets that came over were pretty much static when they hit Lehman Brothers. That is, there was no change in their actual financial situation. That is a generalism, but largely true throughout the 40 accounts for which false statements were produced.
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Ms. JONES. That's your allegation. According to all these people in the room the accounts have changed significantly since the time they came from Cowen to Lehman.
Mr. HOMMEL. I don't know that that's what they say because when they came in, the false account statements carried very large balances which over time have not tremendously declined.
Ms. JONES. So you're saying that most of the people in this room were not damaged by the conduct of Mr. Gruttadauria?
Mr. HOMMEL. No, I'm not saying that at all.
Ms. JONES. I don't want to press words with you. Let me move on, okay?
Mr. Lackritz, in your statement, you say that there are three levels of regulation or supervision in your industry. The first level is investor protection from the brokerage firm. The second is the self-regulatory organizations and the third is the Securities and Exchange Commission.
Mr. LACKRITZ. Yes.
Ms. JONES. If you were called as an expert witness in the lawsuit, all of these good folks against Lehman Brothers, what level and I will ask you in your opinion, based on your background and experience, sir, at what layer was there a breakdown? What layer would that be, 1, 2 or 3? A breakdown in the supervision to avoid what we have in place, the losses we have in place today, sir.
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Mr. LACKRITZ. That's a very tough question to answer, Congresswoman.
Ms. JONES. I know I ask tough questions. So give me a tough answer, sir.
Mr. LACKRITZ. I'll do my best.
Ms. JONES. Okay.
Mr. LACKRITZ. I think that's what the litigation and the enforcement actions are in the process of uncovering right now. There are facts in each of these circumstances with respect to each of these firms. Obviously, there was a breakdown in the system and obviously, this was an incident that—I'm embarrassed to be here. I'm apologizing on behalf of the industry to the victims. In terms of—it was a breakdown throughout the process.
Ms. JONES. So you would assess blame at every level of supervision? Or responsibility?
Mr. LACKRITZ. Yes, responsibility certainly.
Ms. JONES. So what would you do to improve, improve every level?
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Mr. LACKRITZ. I think that we have continually place emphasis on improving compliance systems and technology in the firms which we're doing. We have to continue to increase investor education which we're doing and improve compliance programs.
Ms. JONES. Thanks. I've got one last round of questions.
Mr. Skolnik, let me back up, real quick. Mr. Hommel, did you say you didn't learn until very recently about the 1993 case, sir?
Mr. HOMMEL. That's correct.
Ms. JONES. And Mr. Kaplan, you said the same thing. Is that correct?
Mr. KAPLAN. That is correct.
Ms. JONES. Then Mr. Skolnik, how could every day Joe and Stephanie call the NASSA or their state security regulator to find out about Frank Gruttadauria if neither of these companies who specialize in hiring brokers knew about the 1993 conduct, sir?
Mr. SKOLNIK. Congresswoman, it's very clear here that these investors were vigilant. As we heard today from the testimony that I think touched us all, they did carefully scrutinize account statements and did ask, I think Mrs. Stout talked about how she challenged Mr. Gruttadauria and did ask questions.
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One thing investors can do is to contact their state securities regulator to inquire whether the investment professional, the stock broker or investment advisor they're dealing with is properly licensed to be conducting business and to determine if they have any disciplinary history.
In this case, unfortunately, it would not have necessarily have detected any wrongdoing on behalf of Mr. Gruttadauria because he did not have a disciplinary record. However, in a lot of cases, a lot of enforcement cases and investigations that we initiate, we see situations where if investors had taken the opportunity to contact a state securities regulator, they would have learned that the investment professional they are dealing with may have had a disciplinary record or worse yet, maybe was not even properly licensed to conduct business.
Chairman KELLY. Thank you, Ms. Tubbs-Jones.
Ms. JONES. Thank you, Madame Chairwoman.
Chairman KELLY. Mr. LaTourette.
Mr. LATOURETTE. Thank you, Madame Chairwoman. I'd like to throw this open to anyone on the panel because it's a question that comes up from time to time. Is there a recognized rule of thumb for what the measure of damages should be in the situation that we find ourselves in today?
Mr. Hommel?
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Mr. HOMMEL. Given the pendency of litigation, I'm a bit restrained in what I can talk about. There are several theories of recovery that have been advanced by the plaintiffs.
Mr. LATOURETTE. I'm not interested in their theories. I guess I'm wondering in cases that you've encountered during the course of your career is there sort of a rule of thumb that this is what this kind of theft is worth?
Mr. HOMMEL. I've not encountered a case specifically like this in my career, but I would imagine that in approaching the situation, what we try to do is define common ground with the complaining customers' rooted in the actual cash flows. That has been something that has prevented us from moving along in the negotiations with some of these folks because, as I said, the cash flows at Lehman Brothers simply did not exist in many of these accounts.
Mr. LATOURETTE. Anyone else have an observation about how these things are normally taken care of?
Mr. LACKRITZ. I think that in almost all of these situations, it's the responsibility of the firm to make their clients whole or to treat their clients fairly and in almost all of these situations when they occur and it's very rare that they occur. I think it's important and I want to stress, the system actually works very effectively. Unfortunately, there are these rare instances when this kind of behavior occurs and when it does, the firms take responsibility to treat their customers fairly and make them whole in the circumstance.
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Mr. LATOURETTE. And I think as I understood Mr. Hommel, we can have different definitions of what making them whole means, but is there any notion in this type of litigation relative to punitive damages as opposed to negligence or not paying attention or when someone actually goes out and steals, it's under your supervision as appears to be the case here, is there any notion of punitive damages in any of the cases that you're aware of? If you know. If you don't that's fine. I'm talking to you, Mr. Lackritz, I'm sorry.
Mr. LACKRITZ. I'm only aware of punitive damages in very rare and unusual instances where there's gross and willful negligence as opposed to failure to supervise or something like that.
Mr. LATOURETTE. But in essence, if gross negligence gives you punitive, I suppose intentional actions are even higher than gross negligence and the other observation I would make is that Mr. Hommel has never seen the situation, I guess, I would describe this as unique, based upon the breadth of his experience.
Mr. Hommel, let me—you talked about due diligence when Lehman bought the business from SG Cowen. Can you describe in a little detail for us what that means and specifically does due diligence include going into each and every one of Mr. Gruttadauria's accounts and physically looking at them or not?
Mr. HOMMEL. No, there would be no reason to go into Mr. Gruttadauria's accounts at that point. There were almost 100 brokers who came over with accounts that numbered in excess of 60,000, so it would require going into 60,000 accounts which is fairly impractical. What we did was we reviewed the compliance records of every one of the brokers who were coming over and for each broker who had one or more entries on his compliance record, complaints on his compliance record, we gave them special scrutiny. We also did an analysis of the customer complaints throughout the Cowen system and we checked all the arbitrations and litigations that were pending against any of the registered representatives in the system.
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We looked at the Cowen audits going back several years to see what was turned up, all of which is, I would submit, somewhat standard, but in this instance we also took a look at the New York Stock Exchange report and the New York Stock Exchange report had several issues that needed to be dealt with. As we look back, it appeared that a prominent New York law firm had come in, had assisted Cowen, in addressing those problems, had made recommendations that were subsequently adopted and as we looked at that incident as a whole it appeared to us, not as a red flag, but as an indication that Cowen had been inspected and corrected.
Mr. LATOURETTE. When you say that you looked at any complaints filed against the brokers that came over, we know today that a complaint was filed against Mr. Gruttadauria in 1993. Are you saying that the only complaints that you looked at were those that resulted in a finding, some sort of adverse finding?
Mr. HOMMEL. No, we looked at complaints that were on the CRD, the Central Registration Depository. There are certain requirements that a broker must report, complaints to the CRD, so we get the broker's registration file, which is the CRD file, and we see any complaints that have been registered against that broker. For reasons that were explained before, apparently, this 1993 incident did not make it on to Mr. Gruttadauria's compliance record.
Mr. LATOURETTE. Okay. I thank you. I don't think I have anything else.
Chairman KELLY. Thank you very much. The Chair notes that some Members may have additional questions for this Panel and they may wish to submit them in writing, so without objection the hearing record is going to remain open for 30 days for Members to submit written questions and for these witnesses to place their responses in the record.
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The Chair also notes that Mr. Fazio and Ms. Stout have stayed for this Panel's testimony and let me say that I sincerely hope for both of them that this hearing and that their testimony will result in better protections for all investors. We appreciate the fact that they came such a distance and took so much time and I think it's incumbent of all of the agencies that have been here, giving testimony today that they understand that this is not—it cannot be business as it has been in the past. We must have better regulatory oversight so this kind of thing and these kinds of people are never again damaged. We must have a change. If you need this to come from the federal government in the form of a law, then we will do it. We need to do whatever we can to help the people of this nation feel that they cannot lose their entire savings when they put their savings in the trust of someone like Mr. Gruttadauria.
I will excuse the second Panel with our great appreciation for your time. I want to briefly thank all of the Members and their staffs, but also I want to thank my counsel, Mr. Andy Cochran, for his terrific work on this panel and the other staff here on this Financial Services Committee. They've worked very hard on this hearing and I thank them for their assistance in making the hearing possible.
This hearing is now adjourned.
[Whereupon, at 1:00 p.m., the hearing was concluded.]