[Summary: Monex sued by CFTC for a massive $290M+ fraud]
[Other Monex pages: CFTC/Monex Court Documents, Monex Companies and Ownership]
[News: CoinWeek, Los Angeles Times, my article at CoinWeek]
[See also: Bullion Dealer Data]
Court Dismisses CFTC LawsuitApril 17, 2017 9:40AM EST
The court has dismissed the CFTC lawsuit against Monex, but left the option for CFTC to pursure one of the 4 counts. It appears this order was made on March 26.
Essentially, the CFTC said that no "actual delivery" occurred in the Monex financed transactions, since customers could never do anything with their metal (it was always stored in a depository that the customer could not access), despite having legal ownership of the metal.
The Court points out that if they consider that there is no "actual delivery" with the Monex leveraged transactions, then they could not conceive of a case where retail leveraged transactions would be legal ("The Court can conceive of no plausible leveraged retail transaction of fungible commodities that would not involve at least some of the same alleged practices."). And that defeats the purpose of the law (e.g. the law would not have been written with an "actual delivery" exception if none had been envisioned).
This is unfortunate, as it seems clear that unregulated leveraged retail transactions should not be allowed. It seems to show that in order for them not to be allowed at all, a law will need to be written to forbid them.
That caused counts 1, 2, and 4 to be dismissed. That left Count 3: "Fraud in Violation of Section 6(c)(1) of the CEA and Regulation 180.1(a)(1)-(3)". That, too, was dismissed since it required the CFTC to show that Monex committed fraud that "affects or potentially affects the market and fraud-based market manipulation."
The Judge did leave room for the CFTC to amend their original complaint within 30 days, which would allow Count 3 to continue.
Class Action Lawsuit Filed Against Monex and OwnersNovember 7, 2017 2:05PM EST
Yesterday, a class action lawsuit was filed against Monex and its owners Louis Carabini and Michael Carabini. The class is listed as "All persons in the United States who opened an Atlas account with Monex and sustained losses in connection therewith, and who seek damages not exceeding $50,000.00." The $50,000 limit is due to the Monex "Arbitration Clause" that requires arbitration for anyone seeking over $50,000 in damages.
The lawsuit is essentially based on the CFTC lawsuit. Among other things, it claims "Monex operates the Atlas program with the intent to exploit all Atlas customers, especially those who lack commodities trading experience or familiarity with precious metals markets", "Monex account representatives are trained and incentivized—through compensation tied directly to account volume and trading activity, rather than account performance—to engage in high-pressure sales tactics", "Monex account representatives provide misleading and unsound investment advice, and downplay or conceal the risks associated with leveraged Atlas account trading", and "Monex does not disclose the significant risk of loss associated with leveraged Atlas account trading. To the contrary, Monex falsely claims in its advertisements and other marketing communications that the Atlas program is a safe and profitable way to invest in precious metals".
Court documents show a demand of $5,000,000,000, but that could be an error. The civil cover sheet shows a demand of ">$5,000,000" and the complaint refers to the matter in controversy exceeding $5,000,000. A back-of-the-envelope estimate suggests that the total could exceed $100,000,000.
I imagine that Monex will deny the allegations, and state that they will vigorously defend the lawsuit.
CFTC Agrees to Transfer to California CourtsOctober 16, 2017 12:15PM EST
The CFTC has agreed to allow the case to be handled by the courts in the Central District of California (Southern Division).
Monex Requests to Transfer VenueOctober 4, 2017 10:45AM EST
Monex has filed a motion to transfer the lawsuit from the Northern District of Illinois (where it currently is, and the CFTC lawsuit against Monex to force them to produce documents was) to the Central District of California (Southern Division).
Among other things, it points out that the defendants are all from California, and that California has the largest concentration of Monex loans.
They point out that about 20% of their loans are to California residents. They do not, however, point out that two other states have higher percentages of their populations that are Monex customers, and that while close to 20 out of every million California residents are Monex customers, about 10 out of every million Illinois residents are Monex customers. So California definitely has more Monex customers than Illinois, but there is not nearly as big a difference when population is factored in: California is simply a bigger state.
Monex also maintains at least 2 post office boxes in Illinois, that are used for customers sending money (and likely accessed by their bank).
However, it is clear that Monex operations are based out of California; they have no other offices anywhere outside of California. And indeed, there are a lot more Monex customers from California than from any other state.
Interestingly, the closest CFTC case to this from the perspective of typical retail bullion investors is The Tulving Company. The Tulving Company was located in California, but the company and owner were sued in North Carolina.
Atlas DataSeptember 24, 2017 7:50PM EST
Here are some stats regarding the Monex Atlas program. "Est. Sales" is my estimate of sales. "Avg. Loan" is the average customer loan balance for the year, "Liquidations" is forced liquidations (when an account got below 7% equity), "Loan Losses" is the amount that Monex lost (e.g. if the customer owed $7,000, but the metal is sold for less than $7,000), and "Commissions" is the estimated commissions that Monex received from the forced sales.
Note that estimating sales is far from an exact science. In this case, I based my estimates mostly from general numbers that came from Monex (e.g. statements of sales for the past 10 years, average loan balance by year, total sales since inception). However, there could be major discrepancies; for example, I may take one figure to refer to sales from 1967-2017, but it may actually be 1987-2017 (MDC formed in 1987, and Monex started offering the Atlas program in 1987). And "Over $40 billion in sales" could mean $40 billion or $50 billion or more. However, I expect that these numbers should not be anywhere near an order of magnitude away from the actual sales figures.
About the Old $378M IRS Lawsuit Against MonexSeptember 24, 2017 4:55PM EST
In June, 2008, the IRS filed a lawsuit against 7 Monex companies (see my 'Monex Companies and Ownership' page). This was for $133M of taxes from 1980-1984 (plus accrued interest), an assessment that the IRS entered against Monex International, Ltd. in 1998. In 2008, the IRS took Monex to court, requesting a judgment of $378M (which includes accrued interest). The IRS felt that the new companies constituted a "Monex enterprise" with "New Monex Entities" that were alter-egos, successors and fraudulent transferees of Monex International, Ltd. (the company the tax was assessed against), and therefore should be responsible for the taxes.
By August, 2011, a stipulation was filed, and the judge ended up ordering a judgment of $378,237,162.42 against Private Civil Corps Enterprise, Inc. (the renamed PCCE, Inc.). From the outcome, it looks like the IRS was unable to file a judgment against any entity except Private Civil Corps Enterprise, Inc. (which was renamed from PCCE, Inc. a/k/a Pacific Coast Coin Exchange, which had been renamed from Monex Corporation, which acquired Monex International, Inc.). I am guessing that the name was changed from "PCCE" to "Private Civil Corps Enterprise" to match the initials, while not being associated with PCCE, Inc. or Pacific Coast Rare Coins.
The IRS claimed that from 1980 to 1985, Monex International engaged in an abusive tax shelter. The Tax Court had previously (in 1995) entered judgment for deficiencies for the 1974 and 1978 tax years (about $6M). Forbes refers to the IRS disallowing a 1980s tax shelter involving London Metal Exchange straddles. It is unclear if that is the same as the tax shelter that Monex used with Merit Securities, Inc. (a subsidiary of Leema Enterprises, Inc.). Monex was actually the only clients of Merit using T-bill options from 1983-1988. Monex founder Louis Carabini and his family also used Merit for a tax shelter in 1981-1982 through an offshore entity. These shelters were apparently designed to defer as much income as desired from one tax year to another.
Sample Customer Trade AcknowledgementSeptember 18, 2017 4:40PM EST
All Monex accounts are self-directed: customers agree that "You are solely responsible for all purchasing, selling and borrowing decisions for your account.". Monex tells account reps that "An Account Representative may not place any order for a customer which the customer has not specifically directed the Account Representative to place. This practice is against the law". Despite this, some customers have claimed that their account reps made trades that the customer did not understand or did not realize they were placing (typically quantities that exceeded the customers' cash, generating a loan, or taking short positions). Monex is careful to get a signed agreement from each customer, a recorded verbal disclosure, and a recorded verbal acknowledgement of every order.
I thought it would be interesting to see exactly what a trade confirmation looks like. Fortunately, the CFTC provided a transcript of what a customer claims is a recording of a phone call with her account rep. Note that the "inaudible" portions could be due either to the quality of the phone connection or the recording of it. Here is the portion where an order is placed:
"Instruction code K" is the Monex code for a 'commodity loan return'. In other words, she had shorted 2,000 ounces of silver 9 days earlier, and today is closing out the position. This transaction resulted in the following on her statement:
06/24/16 | 413144 | PURCHASED/R | 2 | 1000 OUNCES SILVER 06/13/16 | (36,228.00) | | | | | LOSS $1,646.00 | | | | | | TRANSFER PROCEEDS | 34,582.00 | (34,582.00) ... 06/22/16 | 423122 | LMT-ORD PUR | 1 | 1000 OUNCES SILVER | |It appears that the "17759" in the first instruction is $17.759/oz, which works out to $35,518 plus a 2% commission ($710.36) is $36,228, the amount she paid for the metal. It looks like the spot price (per Kitco) was about $17.32 at the time the trade was made.
CFTC's 'Actual Delivery' 2013 InterpretationSeptember 14, 2017 4:00PM EST
Much of the CFTC's case against Monex rests on whether Monex "actually delivered" metal to Atlas customers within 28 days. If Monex did, they are likely exempt from regulation by the CFTC, which would otherwise be required by the Dodd-Frank Act of 2010.
With Monex, an Atlas customer purchasing leveraged metal will pay for part of the metal and take out a loan for the rest. All the metal will be deposited at one of Monex's depositories. Monex will let the depository know that the metal belongs to the customer, and the depository will print out a "CTTN" (Commodity Title Transfer Notice) and send it to the customer. The metal will be titled in the name of the customer.
The catch, however, is that there is very little the customer can actual do with the metal. Monex maintains possession, control, and security interest of the metal. The customer cannot hold it, they cannot move it, they cannot loan it out. And while the customer has title, Monex has the right to liquidate it without notice (typically only if the equity goes below 7%, when the metal will automatically be sold). Customers cannot sell or transfer the metal to anyone except Monex. However, if the customer wishes physical delivery, they can pay off the loan and have metal shipped to them.
Class Actions ContemplatedSeptember 14, 2017 3:40PM EST
There are now at least 2 law firms investigating Monex and considering class action lawsuits: Kessler Topaz Meltzer & Check, LLP and Girard Gibbs, LLP.
To be clear, law firms routinely investigate large matters like this. The fact that the law firms are investigating simply means they are looking for business, and does not indicate that any wrongdoing occurred. However, if you are or were a customer of Monex, and feel that you were defrauded, you may want to consider contact them.
September 25, 2017 6:30PM EST UPDATE: There is another law firm, Peiffer Rosca Wolf, that is planning to try to recover money from third-party entities not named in the CFTC complain, that they believe assisted and enabled Monex’ alleged fraud.
November 7, 2017 1:40PM EST UPDATE: AXIS Legal Counsel is also conducting a class action investigation.
Tips WantedSeptember 14, 2017 8:30AM EST
I always am looking for more information about the companies that I follow.
If you have any information, I would be happy to receive it. You can use the anonymous tips page. The anonymous tips page also has an E-mail address you can use if you are comfortable sending the information via E-mail, and the ability to upload files.
Monex: Corporate History and OwnershipSeptember 13, 2017 2:40PM EST
I have gone through lots of documents, and compiled a page on Monex companies and ownership.
It covers most/all of the companies related to Monex, a brief description of what they do, and the ownership of the companies.
The summary is that Monex is almost entirely owned by Michael Carabini (son of founder Louis Carabini), either directly or through trusts.
Monex: Previous IssuesSeptember 6, 2017 8:20PM EST
Court documents show that Monex had previous issues. Forbes said in 2009 that "Monex has a long history of suing and being sued." There are a number of related companies, which I will normally refer to generically as "Monex" (as is done in court documents).
Monex: From our Reading RoomSeptember 6, 2017 4:45PM EST
This comes from the about.ag Reading Room:
MONEX is a large gold dealer, formed in 1967, located in Newport Beach, CA. One of the few companies to offer leverage to individuals.
Monex Sued by CFTC for Massive $290M+ FraudSeptember 6, 2017 4:25PM EST
Today, the CFTC finally announced that is has charged Monex Deposit Company, its affiliates, and their Principals (Louis Carabini and Michael Carabini) with a massive fraudulent precious metals scheme. I started following Monex (quietly) in 2014, when they refused to provide information to the CFTC.
The charges refer to Monex's "Atlas" program, where customers put down 22%-25% to buy gold or silver, financing the rest at a variable interest rate (5.9% is often mentioned). So you might pay $10,000 to buy $40,000 of metal (losing $1,770 of metal each year in interest). The complaint alleges that there were about 12,000 customers who realized over $290M in losses from July 16, 2011 and March 31, 2017 (averaging over $24,000 in losses per customer), and that about 90% of Atlas accounts lost money. During this time, about 140,000 trades were made.
The CFTC states that the Dodd-Frank Act "made it illegal to offer or enter into leveraged commodity transactions with retail customers, unless the transactions are conducted on a regulated derivatives exchange, among other requirements."
The charges state that if a customers' equity (the value of their portfolio minus what they owe) goes below 7%, the position is automatically liquidated. Of the 12,000 accounts, 3,000 were subject to a margin call, and at least 1,850 had trading positions force-liquidated. The charges also state that Monex imposed a 3% bid-ask spread, and compare that to COMEX: The CFTC says 5,000oz of silver on COMEX would have a spread of about $25, whereas at Monex it would be about $2,550 (at $17 spot).
According to the CFTC, the spread generated about $95M for Monex during the 2012-2017 time period. Interest generated $57M, commissions generated $14M, and service fees generated $6.4M.
In one case, a 77-year-old man invested his life savings of $400,000 in August, 2009, only to be told in 2013 that "things had gone crazy" in the metals market. He did not realize he was trading on margin, and only got back $8,900.
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