SEC v. Yorkville Advisors, LLC, Mark Angelo and Edward Schinik, Civil Action No. 12-CV-7728 (S.D.N.Y.) (GBD) (filed October 17, 2012)
SEC Charges Hedge Fund Adviser and Two Executives with Fraud
The Securities and Exchange Commission recently announced the filing of a civil enforcement action in the United States District Court for the Southern District of New York, charging a former $1 billion hedge fund advisory firm and two executives with scheming to overvalue assets under management and exaggerate the reported returns of hedge funds they managed in order to hide losses and increase the fees collected from investors.
The complaint alleges that New Jersey-based Yorkville Advisors LLC, founder and president Mark Angelo, and chief financial officer Edward Schinik enticed pension funds and other investors to invest in their hedge funds by falsely portraying Yorkville as a firm that managed a highly-collateralized investment portfolio and employed a robust valuation procedure. They misrepresented the safety and liquidity of the investments made by the hedge funds, and charged excessive fees to the funds based on the fraudulently inflated values of the investments.
According to the SEC's complaint, Yorkville, Angelo, and Schinik defrauded investors in the YA Global Investments (U.S.) LP and YA Offshore Global Investments Ltd hedge funds. The SEC alleges that Yorkville and the two executives:
- Failed to adhere to Yorkville's stated valuation policies.
- Ignored negative information about certain investments by the funds.
- Withheld adverse information about fund investments from Yorkville's auditor, which enabled Yorkville to carry some of its largest investments at inflated values.
- Misled investors about the liquidity of the funds, collateral underlying the investments, and Yorkville's use of a third-party valuation firm.
The SEC alleges that by fraudulently making Yorkville's funds more attractive to potential investors, Angelo and Schinik enticed more than $280 million in investments from pension funds and funds of funds. This enabled Yorkville to charge the funds at least $10 million in excess fees based on the inflated values of Yorkville's assets under management.
The SEC's complaint charges Yorkville with violating Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5. Yorkville also is charged with violating Sections 206(1), (2) and (4) of the Investment Advisers Act of 1940 and Rule 206(4)-8. Angelo is charged with violating Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5, and Sections 206(1), (2) and (4) of the Advisers Act and Rule 206(4)-8. He also is charged with aiding and abetting Yorkville's violations of the Exchange Act and Advisers Act. Schinik is charged with violating Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5, and with aiding and abetting Yorkville's violations of the Exchange Act and Advisers Act. The complaint seeks a final judgment permanently enjoining the defendants from future violations of the above provisions of the federal securities laws, ordering them to disgorge their ill-gotten gains plus prejudgment interest, and ordering them to pay civil penalties.
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