Investment Adviser Settles Charges with the SEC Over Cherry-Picking Scheme

Last month, the Securities and Exchange Commission issued an Order Instituting Administrative and Cease-and-Desist Proceedings against Valor Capital Asset Management, LLC, a registered investment adviser, and its owner, Robert Mark Magee.  The SEC’s Order alleges that between July 2012 and May 2015, Magee “disproportionately allocated profitable or less unprofitable trades from Valor’s omnibus trading account to his personal accounts, while disproportionately allocating unprofitable or less profitable trades to Valor client accounts,” a practice known as “cherry-picking.”  Valor and Magee each submitted offers of settlement in conjunction with the Order.

According to the SEC’s Order, Valor had discretionary authority pertaining to the client accounts that were in Magee’s cherry-picking scheme.  Since Magee was Valor’s sole owner and employee, he was tasked with making trades and allocations for Valor’s clients’ accounts.  The SEC alleged that over a three-year period Magee mainly distributed the most unprofitable trades to clients’ accounts and mainly distributed the most profitable or less unprofitable trades to his own account.  The SEC also alleged that whenever Magee bought a block of securities using Valor’s omnibus account, he would delay allocating the block of securities “until after the relevant security’s intraday price changed.”  If the price increased, Magee allegedly would make a sale and allocate the trade to his own account, obtaining a gain.  If the price decreased, Magee allegedly would sell the security that same day and allocate the trade to Valor clients, resulting in a loss.  Alternatively, he would hold the security and allocate the purchase to Valor clients, which gave them an unrealized first-day loss.

The SEC’s Order alleges that the discrepancy between Magee’s first-day returns and Valor clients’ first-day returns was statistically significant.  The likelihood that “the disproportionate allocation of favorable trades to Magee’s personal account was due to chance is less than one in a trillion during the period of July 2012 to January 2015, and less than one in 100,000 during the period of February 2015 to May 2015.”  The SEC also determined that Magee’s success rate on first-day returns was far superior to that of his clients.  The trades in Magee’s personal account experienced an 81.9% rate of profitability from July 2012 to January 2015 and an 89.4% rate of profitability from February 2015 to July 2015.  By contrast, his clients’ accounts experienced a 16% rate of profitability from July 2012 to January 2015 and a 40.4% rate of profitability from February 2015 to July 2015.  Altogether, Valor and Magee allegedly obtained $505,663 in ill-gotten gains from the cherry-picking scheme.

The Order barred Magee from the securities industry.  Valor and Magee also agreed to pay disgorgement of $505,663, prejudgment interest of $50,208.57, and a $160,000 civil penalty.

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