Initial Decision Release No. 1398

Administrative Proceeding

File No. 3-17184

UNITED STATES OF AMERICA

Before the

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

In the Matter of

Christopher M. Gibson

Initial Decision

March 24, 2020

Appearances: Nicholas C. Margida, Gregory R. Bockin, George J. 

Bagnall, and Paul J. Bohr for the Division of Enforcement,

Securities and Exchange Commission

Thomas A. Ferrigno, Stephen J. Crimmins, and Elizabeth 

L. Davis, Murphy & McGonigle PC, and David E. Hudson, 

Hull Barrett PC, for Respondent

Before: James E. Grimes, Administrative Law Judge

Summary

Christopher M. Gibson was an investment adviser to Geier International 

Strategies Fund, LLC (the Fund), that had invested virtually all its assets in 

a single security, the common stock of Tanzanian Royalty Exploration 

Corporation (TRX). The Division of Enforcement alleges that Gibson engaged 

in three courses of conduct that breached his fiduciary duties to his client fund 

and created undisclosed conflicts of interest, in violation of the antifraud 

provisions of the Investment Advisers Act of 1940, the Securities Exchange Act 

of 1934, and rules under those Acts. 

First, Gibson engaged in a practice known as front running. The day 

before he executed a large block sale of the Fund’s position in TRX, he sold all 

the TRX shares in his personal brokerage account and two other accounts he 

controlled. Gibson did this while actively seeking to sell the Fund’s position in 

TRX.
2

Second, Gibson caused the Fund to buy a large block of additional TRX 

shares from the Fund’s majority owner in a private transaction. He later sold

those shares with the Fund’s remaining shares in a market transaction. Gibson 

operated under a conflict of interest when he executed this transaction; the 

investor effectively paid Gibson’s salary, and Gibson owed him a substantial 

debt at the time.

Third, Gibson engaged in another instance of front running. He bought 

put options in TRX for himself and his then-girlfriend, and he advised his 

father to do the same, while knowing that the fund sought to sell its remaining 

TRX shares. He then sold the Fund’s remaining TRX shares before the 

expiration date of the personal put contracts. This sale caused a drop in TRX’s 

share price. Gibson, his girlfriend, and his father exercised their put options 

the same day.

The evidence establishes that Gibson recklessly breached his fiduciary 

duties and failed to either eliminate or disclose conflicts of interest. I therefore 

find that Gibson violated Advisers Act Section 206(1), (2), and (4) and Rule 

206(4)-8, and Exchange Act Section 10(b) and Rule 10b-5(a) and (c).

1

For sanctions, I order Gibson to cease and desist from further violations

of the securities laws he violated; prohibit Gibson from the activities listed in

Section 9(b) of the Investment Company Act of 1940 and bar him from the 

securities industry under Advisers Act Section 203(f), with the right to reapply 

for reentry after three years for both sanctions; order disgorgement of 

$82,088.81 plus prejudgment interest; and impose second-tier civil penalties 

totaling $102,000.

Procedural Background

The Commission initiated this proceeding in March 2016 with an order 

instituting proceedings (OIP) under Exchange Act Section 21C, Advisers Act

Section 203(f) and (k), and Investment Company Act Section 9(b).

2 The OIP 

alleges that Gibson committed securities fraud through the three instances of 

conduct summarized above.

 

1 15 U.S.C. §§ 78j(b), 80b-6(1), (2), (4); 17 C.F.R. §§ 240.10b-5, 275.206(4)-8.

2 15 U.S.C. §§ 78u-3, 80a-9(b), 80b-3(f), (k).
3

An administrative law judge held a hearing in 2016 and issued an initial 

decision in 2017.

3 In August 2018, following the Supreme Court’s decision in 

Lucia v. SEC, the Commission remanded this proceeding, ordered that it be 

reassigned to an administrative law judge who had not previously participated 

in the matter, and directed that Gibson be given the opportunity for a new 

hearing.

4

I held a one-week hearing in July and August 2019. Post-hearing briefing 

concluded in October 2019.

The parties stipulated that nine affirmative defenses raised by Gibson 

alleging constitutional infirmities in this proceeding are preserved for 

Commission review.5 I briefly discuss aspects of these constitutional claims at 

the end of the decision to put matters in context.

In conducting this proceeding, I gave no weight to the opinions, orders, or 

rulings of the administrative law judge who presided over this proceeding

before the Commission’s remand.

6

Motions to Strike

I previously reserved ruling on two motions to strike, one filed by the 

Division and the other by Gibson. I now DENY both.

The Division asks me to strike all portions of Gibson’s proposed findings 

of fact and conclusions of law containing argument, citing my post-hearing 

order indicating that I would do so.7 In this instance, there is no point in 

removing improper arguments from the record that I can simply ignore or 

decline to adopt. Similar to a federal bench trial, concerns about confusion or 

 

3 Christopher M. Gibson, Initial Decision Release No. 1106, 2017 WL 

371868 (ALJ Jan. 25, 2017).

4 Pending Admin. Proc., Securities Act of 1933 Release No. 10536, 2018 WL 

4003609, at *1, *4 (Aug. 22, 2018); see also Lucia v. SEC, 138 S. Ct. 2044 (2018).

5 Gibson, Admin. Proc. Rulings Release No. 6668, 2019 SEC LEXIS 2319 

(ALJ Aug. 29, 2019).

6 See Pending Admin. Proc., 2018 WL 4003609, at *1. 

7 Div. Reply at 2; Div. Resps. to Resp’t’s Proposed Findings of Fact & 

Conclusions of Law at 2 (Oct. 4, 2019); see Gibson, Admin. Proc. Rulings 

Release No. 6648, 2019 SEC LEXIS 1937, at *3 (ALJ Aug. 5, 2019) (“I will 

strike findings or conclusions that contain argument.”).
4

undue prejudice from improper argument or evidence do not apply in this 

proceeding.8 Instead of striking portions of Gibson’s findings and conclusions

that contain improper argument, I have simply not relied on those points. 

Invoking Rule of Practice 152(f), Gibson asks me to strike what he 

considers “scandalous or impertinent matter” in the hearing record and in the 

Division’s post-hearing brief concerning Gibson’s current financial activities as 

reflected in his recent tax filings.9 In particular, Gibson wants any insinuation 

that he has been committing tax fraud excised from the record. The Division 

opposes the motion, arguing that the portions of testimony and argument 

objected to by Gibson are not scandalous and are relevant to Gibson’s claim of 

inability to pay and to his credibility.10

Rule 152(f) is mirrored, in part, by Rule 12(f) of the Federal Rules of Civil 

Procedure.11 In the federal court context, scandalous material “unnecessarily 

reflects on the moral character of an individual,” such as a party or other 

person, or contains “repulsive language that detracts from the dignity of the 

court.”12 Impertinent matter “consists of statements that do not pertain, and 

are not necessary, to the issues in question.”13

 

8 See Harris v. Rivera, 454 U.S. 339, 346 (1981) (“In bench trials, judges 

routinely hear inadmissible evidence that they are presumed to ignore when 

making decisions.”); City of Anaheim, Exchange Act Release No. 42140, 1999 

WL 1034489, at *2 (Nov. 16, 1999) (“Administrative agencies such as the 

Commission are more expert fact-finders, less prone to undue prejudice, and 

better able to weigh complex and potentially misleading evidence than are 

juries.”).

9 Resp’t’s Mot. Pursuant to Rule 152(f) for an Order Striking Scandalous & 

Impertinent Matter at 1 (Sept. 26, 2019); see 17 C.F.R. § 201.152(f).

10 Div. Opp’n to Resp’t’s Mot. to Strike at 2–3 (Oct. 2, 2019).

11 Compare 17 C.F.R. § 201.152(f) (“Any scandalous or impertinent matter 

contained in any brief or pleading or in connection with any oral presentation 

in a proceeding may be stricken on order of the Commission or the hearing 

officer.”), with Fed. R. Civ. P. 12(f) (“The court may strike from a pleading ... 

impertinent, or scandalous matter.”)

12 Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003); see Collura v. City of 

Philadelphia, 590 F. App’x 180, 185 (3d Cir. 2014).

13 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other

grounds, 510 U.S. 517 (1994).
5

The only portion of the hearing transcript objected to by Gibson that might

qualify as scandalous or impertinent is Division counsel’s remark that he could 

prove tax fraud if he wanted to, but was not going to try.14 I already stated that 

I would disregard that remark, so I need not strike it.

15 The sentence in the 

Division’s brief suggesting that Gibson’s current financial activities are further 

reason to bar him from the securities industry is not scandalous or

impertinent.16 It is argument, it cites the record, and it has a modicum of 

relevance. I will not strike it.

Findings of Fact

I base the following factual findings and legal conclusions on the entire 

record before me and the demeanor of the witnesses who testified at the 

hearing, applying preponderance of the evidence as the standard of proof.17 All 

arguments that are inconsistent with this decision are rejected.

1. Gibson and Hull set up the Fund in 2009 and 2010.

The relevant facts in this case are largely undisputed. But because the 

implication of the facts is vigorously disputed, I consider in detail what 

happened and the overall context. Although Gibson is the respondent in this 

matter, James Hull, the majority owner of the Fund, played a significant part 

in many of Gibson’s actions. I therefore detail Hull’s role below as well.

Gibson, now in his mid-thirties, was in his mid and late twenties during 

the relevant period.

18 He graduated from Williams College in 2006, and

immediately started working at Deutsche Bank Securities in New York in the 

securitized products group.

19 In that position, he worked on auto and mortgage 

loan securitizations.20 Gibson left Deutsche Bank in early 2009, took and 

 

14 Tr. 1516.

15 Tr. 1516–17. 

16 Div. Br. 39.

17 See Rita J. McConville, Exchange Act Release No. 51950, 2005 WL 

1560276, at *14 (June 30, 2005), pet. denied, 465 F.3d 780 (7th Cir. 2006).

18 Div. Ex. 216 (joint stipulations) ¶ 1.

19 Tr. 76–77.

20 Tr. 76.
6

passed the series 65 investment adviser exam, and returned to Augusta, 

Georgia—where he had grown up and where his parents lived.

21

At that time, Gibson’s father, John Gibson, was one of Hull’s business 

partners.22 John Gibson suggested that Gibson speak to Hull for career 

advice.23 Hull founded a real estate development business, then called Hull 

Land Company, in 1977.24 By 2010, the firm was called Hull Storey Gibson (as 

in Gibson’s father, John Gibson).

25 Hull’s company bought and ran shopping 

malls around the United States.26 By all accounts, the various iterations of 

Hull’s companies have been successful. According to one witness, Hull and his 

partners “made a lot of money” by “cut[ting] ... costs to the bone,” in part by 

cutting the number people involved in running the malls.

27 Hull is also quite 

involved in his community. In 2018, he was chair of the board of regents of the 

26-institution university system of Georgia, and he sits on the board of the 

Augusta University health system and a number of other civic entities.

28

From an office at Hull Storey Gibson, Gibson initially provided Hull with 

personal investment advice and helped with Hull’s real estate business.29 Hull 

and Gibson often discussed investing and Hull became quite interested in 

Gibson’s investment ideas.30 So he took roughly $20 million he held in accounts 

 

21 Tr. 77–79, 1083, 1105. Gibson had previously passed the series 7 and 63 

exams. Tr. 78–79.

22 Tr. 79, 670.

23 Tr. 1096–97.

24 Tr. 79, 520.

25 Tr. 79–80, 520–21.

26 Tr. 79.

27 Tr. 1257.

28 Tr. 668, 679. Additionally, Hull is a member of Augusta National Golf 

Club, annual host of the Masters Tournament, and home of one of the most 

famous golf courses in the world. See Tr. 143. He was also instrumental in 

securing government funding for the $100 million Hull McKnight Georgia 

Cyber Center. Tr. 679; see https://georgia.gov/agencies/hull-mcknight-georgiacyber-center-innovation-and-training.

29 Tr. 86, 1097–98; Div. Ex. 10.

30 Tr. 1098–99, 1257.
7

with two firms and had Gibson manage it.31 Gibson soon formed the Hull Fund 

and the Gibson Fund, investment partnerships that principally invested in 

physical gold and silver.32 It is apparent that Hull gave Gibson the opportunity 

to manage his investments in large part because of Hull’s business relationship 

with John Gibson.33

Gibson and Hull then began working together to set up the Fund as an 

investment hedge fund.34 Before setting up the Fund as a Delaware company 

in December 2009, Gibson formed Geier Group, LLC, in April 2009, and 

registered it as a Georgia investment advisory firm.35 It initially served as the 

Fund’s investment manager.36 In June 2009, he formed Geier Capital, LLC, 

also a Georgia company, and it was the Fund’s managing member for a time.37

Geier Group and Geier Capital were each owned 50% by Gibson, 35% by Hull, 

and 15% by John Gibson.38

In January 2010, the Hull Fund and the Gibson Fund rolled into the 

Fund.39 Starting in that month, Gibson distributed the Fund’s confidential 

private offering memorandum, operating agreement, and subscription 

agreement to potential investors.40 Each person who invested signed the 

operating and subscription agreements.41 Gibson signed the operating 

agreement as the managing director of the Fund’s managing member—Geier 

Capital—and as the managing director of Geier Group—the investment 

 

31 Tr. 1257; see Div. Ex. 10.

32 Tr. 86–87.

33 Tr. 1255.

34 See Tr. 140; Div. Ex. 10; Div. Ex. 31 at 2.

35 Div. Exs. 11, 12; Div. Ex. 21 at 1; Div. Ex. 216 ¶¶ 3, 10.

36 Div. Ex. 21 at 3; see Div. Ex. 64 (certificate of termination of Geier Group).

37 Div. Ex. 21 at 1; Div. Ex. 216 ¶ 5; see Div. Ex. 63 (certificate of termination 

of the Georgia Geier Capital).

38 Div. Ex. 216 ¶¶ 4, 9.

39 Tr. 87.

40 See Tr. 115–16; see Div. Ex. 24.

41 Tr. 116; see, e.g., Resp’t Exs. 9–16.
8

manager.42 The offering memorandum informed investors that “The success of 

the Company is significantly dependent upon the expertise and efforts of Chris 

Gibson.”43

Despite this information, and the fact that Hull is not mentioned in the 

offering memorandum or operating agreement, no one actually thought that 

Gibson was making major investment decisions for the Fund without Hull’s 

involvement.

44 Gibson knew Hull was in control45 and even Gibson’s father 

believed the Fund was ultimately being run by Hull.46 Hull, who approved the 

Fund’s structure, believed he exercised approval authority over any “major 

decision.”47 And many investors who knew Hull invested not so much because 

of Gibson’s involvement, as described in Fund documents, but because Hull

was involved in the Fund.48

In 2011, the Fund had 21 members total.49 Hull owned over 80% of the 

Fund valued at about $26 million.

50 Gibson, Gibson’s parents, and Giovanni 

Marzullo, the father of Gibson’s girlfriend, Francesca Marzullo, held another 

10% of the Fund.51 With the exception of one investor connected to Gibson, 

 

42 Div. Ex. 22 at 12; Div. Ex. 23 at 12.

43 Div. Ex. 24 at 17.

44 Tr. 1308–10, 1332.

45 See Tr. 1366–67, 1509–10; see also 1386 (discussing process of getting 

Hull’s approval for possible transactions), 1393 (same), 1411–12 (same).

46 Tr. 1258, 1287.

47 Tr. 570–71, 672–73.

48 See Tr. 1332; see also Tr. 754 (investor affirming that he did not read the 

operating agreement), 771–75 (investor affirming that he invested because his 

father, who invested and vacationed with Hull, wanted him to invest), 835–36 

(investor confirming he only “scanned over” certain Fund documents).

49 Div. Ex. 216 ¶ 11.

50 Tr. 529, 588, 669–70; Resp’t Ex. 206.

51 Tr. 561; Div. Ex. 33; Resp’t Ex. 206.
9

every remaining investor was one of Hull’s business associates or life-long 

friends or both.

52

2. The Fund’s offering documents disclosed features of the investment, and 

Hull required an “alignment of interest” between Gibson and the Fund.

Gibson and Hull spoke with nearly every investor before they invested.53

In these conversations, Hull made clear that the Fund was a “high-risk type 

venture.”54 The offering memorandum likewise stated that the Fund was “a 

highly speculative investment” that was “designed only for sophisticated” 

investors.55 The offering memorandum further affirmed that the Fund, like 

many such funds, “generally will not disclose all of its positions to Members on 

an ongoing basis,” suggesting that it could remain secretive about its positions 

and strategies.

56

The operating agreement and offering memorandum both warned

investors that affiliates of the Fund, such as Gibson, may conduct business “in 

competition with the” Fund.57 The offering memorandum further warned that 

affiliated parties, like Gibson, might serve as investment advisers to others, 

and might invest in the same securities as the Fund in separate accounts.58

Gibson in fact did both: he served as a personal adviser to Hull without further 

disclosing that relationship to the Fund, and he invested in TRX in his personal 

account.

59

 

52 Tr. 134, 142–43, 529, 541, 675–80; Resp’t Ex. 206.

53 Tr. 680, 1337–38.

54 Tr. 681. But cf. Tr. 836 (testimony that investor did not remember whether 

he was told the investment was “risky”).

55 Div. Ex. 24 at 1, 7, 10. 

56 Id. at 17; see Goldstein v. SEC, 451 F.3d 873, 875 (D.C. Cir. 2006) (“[Hedge 

funds typically remain secretive about their positions and strategies, even to 

their own investors.”).

57 Div. Ex. 21 at 2; Div. Ex. 24 at 19.

58 Div. Ex. 24 at 19.

59 Tr. 145, 254, 763, 827; Div. Ex. 86 at 1, 3 (statement from Gibson’s 

personal Schwab account); Div. Ex. 216 ¶ 23.
10

The offering memorandum also made clear that Gibson was to invest “the 

majority of his liquid net worth” in the Fund.60 This was because Hull wanted 

Gibson to have “total focus” on the Fund he was managing.

61 In fact, Gibson, 

Hull, and John Gibson each mentioned Hull’s desire to establish an “alignment 

of interest” between Gibson on one side and Hull and the Fund on the other.

62

Hull wanted both Gibson and his father “to have skin in the game and to be 

totally focused on this fund being successful.”63 When asked if he wanted 

“Gibson to be aligned with” him or with the Fund, Hull responded “I would 

view them one and the same.”64

Gibson was thus required to borrow close to $650,000 from Hull, invest 

virtually all of his money in the Fund, and invest outside the Fund in what the 

Fund invested in.65 And Hull loaned money to John Gibson to invest as well.

66

John Gibson agreed to this arrangement because of his “loyalty” to Hull and 

because he “had complete confidence in” him.67 By design, if the Fund lost 

money, Gibson would lose more than other investors, and his family and 

“individuals close to” him would be “exposed.”68 Indeed, when Gibson paid off 

his note to Hull in 2011, after receiving his bonus for 2010, Hull became “visibly 

upset,” and required Gibson to re-borrow the same amount.69 And the 

approximately $650,000 that would otherwise have gone to pay off the note 

went back into the Fund, not into Gibson’s pocket.

70 Although the Fund’s

offering documents disclosed Gibson’s investment in the Fund—and in fact 

 

60 Div. Ex. 24 at 1, 7.

61 Tr. 561–62. Both Gibson and his father testified that Hull wanted a 

“severe alignment of interest” between himself and the other investors in the 

Fund. Tr. 1112, 1472.

62 Tr. 562, 674, 736, 1112, 1259, 1340.

63 Tr. 674.

64 Tr. 736.

65 Tr. 1340, 1358–59; Resp’t Ex. 117 at 5.

66 Tr. 1359; see Tr. 1259.

67 Tr. 1259.

68 Tr. 1358.

69 Tr. 1360–61.

70 Tr. 1361–62.
11

required it—the documents did not disclose the loan from Hull, and Gibson did 

not otherwise reveal it to investors.

71

3. Gibson managed the Fund and received compensation for doing so.

As noted, Hull had great success in his real estate business by “cut[ting] 

... costs to the bone.”72 Hull decided to apply this idea to managing the Fund.73

And this meant that Gibson, at about 26 years of age, was managing a $32

million fund with little experience and without “a full staff” or an experienced 

investment adviser to give him guidance or advice.74 Gibson was thus alone in

managing the Fund’s day-to-day operations and performing investment 

advisory services for it.75 He also negotiated securities transactions on its 

behalf, tracked market conditions and the performance of the Fund’s portfolio, 

sent status reports about the Fund to investors, communicated with brokers 

and counterparties, spoke with the management of TRX, and submitted filings 

to the Commission.

76 Major decisions about the Fund’s investment strategy, 

such as which stocks to invest in and when to hold or sell, were approved by 

Hull in close consultation with Gibson.77

Gibson was compensated for his services to the Fund. From 2010 until 

early 2013, he received a salary from Hull’s real estate business.78 These 

payments were for his advisory services to the Fund.79 Through 2010, Geier 

 

71 Tr. 765–66, 828.

72 Tr. 1257. 

73 Tr. 1257.

74 Tr. 1257.

75 Tr. 129, 186, 567. The offering memorandum stated that Gibson was the 

managing member of Geier Group, and that Geier Group was “responsible for 

certain administrative and investment advisory matters” for the Fund. Div. 

Ex. 24 at 1. Gibson told investors that he was Geier Group’s investment 

adviser. Tr. 109–110; Div. Ex. 16 at 24407.

76 Tr. 185–87; see, e.g., Tr. 242–44, 279–80, 320–21; Div. Exs. 31, 39, 70, 71.

77 Tr. 569–71, 673; see, e.g., Div. Exs. 80, 91; Resp’t Exs. 59, 102.

78 Tr. 246–52; Div. Exs. 43, 128, 147, 156.

79 Tr. 247–49, 251–52; Div. Ex. 188 at 472–74 (Gibson’s investigative 

testimony).
12

Group repaid Gibson’s salary to Hull’s company; effectively, Gibson’s salary 

was paid by Geier Group while the entity existed.

80 Under the Fund’s operating 

agreement and offering memorandum, Geier Group was also entitled to an 

annual investment management fee equal to 1% of each member’s capital 

account.81 The agreements also entitled Geier Capital to a 10% “incentive 

allocation” if the Fund met certain benchmarks.82 Both the management fees 

and incentive allocation were compensation for Gibson’s advisory services to 

the Fund.83 The Fund paid investment management fees in 2010 and 2011.84

As a 50% owner of Geier Group and Geier Capital, Gibson was entitled to half 

this amount, which was around $250,000 for 2010 and 2011 combined.

85 He 

reinvested the money in the Fund.86 In 2010, the Fund also paid Geier Capital 

an incentive allocation of around $3 million.87 Gibson was entitled to half of 

this amount, which he reinvested in the Fund.88

4. Geier Group is dissolved and Gibson substitutes Geier Capital for 

another entity of the same name. 

At the end of December 2010, Gibson allowed Geier Group’s registration 

as a Georgia investment adviser to lapse.89 He did not tell the Fund’s investors, 

and in fact, solicited two new investors using offering documents stating that 

Geier Group was a registered investment adviser even though it was no longer 

registered.90 Geier Group was dissolved in April 2011; nonetheless, Gibson 

 

80 Tr. 248–54. The salary was distributed through Hull’s company and its 

payroll services to avoid the need to set up a separate payroll for Gibson’s 

advisory services to the Fund. Tr. 248.

81 Tr. 121; Div. Ex. 21 at 4; Div. Ex. 24 at 8; Div. Ex. 216 ¶ 12.

82 Tr. 123; Div. Ex. 21 at 5; Div. Ex. 24 at 8–9.

83 Div. Ex. 188 at 407, 461.

84 Id. at 402, 457, 461.

85 Id. at 403, 461; Div. Ex. 216 ¶ 13.

86 Div. Ex. 188 at 363–64, 461–62.

87 Div. Ex. 42 at 4; Div. Ex. 216 ¶ 14.

88 Tr. 123, 125–27; Div. Ex. 216 ¶ 13.

89 Div. Ex. 167; Tr. 149–51.

90 Tr. 151–52, 176–77; Div. Exs. 54, 56.
13

falsely indicated in Commission filings that it still existed.91 Despite Geier 

Group’s dissolution, Gibson continued to advise the Fund in 2011 just as he 

had in 2010.92 Gibson created a new Geier Capital entity in Delaware in 

December 2010 with the same ownership structure as the old one.93 He 

dissolved the Georgia Geier Capital in March 2011.94 Gibson neither disclosed 

to investors the dissolution of Geier Group nor the substitution of the Delaware 

Geier Capital for the Georgia entity, and he failed to amend the Fund’s offering 

documents to reflect these changes.95 The Fund’s operating agreement, 

however, stated that the managing member had the “sole discretion” to retain 

a different entity than Geier Group “to serve as the [c]ompany’s investment 

manager.”96

5. The Fund invests all its money in TRX, but as 2011 progresses, the 

stock’s value declines. 

Initially, the Fund invested in gold and other commodities.97 During 2010, 

the Fund was “up 110 percent.”98 But Hull became “irritated” in late 2010 on 

learning that the Fund’s successful commodities trading resulted in a large tax 

bill.99 To deal with this “unfavorable tax” situation, and to generate fees, he 

decided to increase the Fund’s equity investments instead.

100 Although Gibson 

thought the Fund should add additional employees to “cover a number” of 

potential investments, Hull favored a leaner operation.101 Based on his real 

 

91 Div. Exs. 60, 64; Tr. 159–60, 177–82.

92 Tr. 184, 187.

93 Tr. 182–83; Div. Ex. 40; Div. Ex. 216 ¶¶ 7, 9.

94 Div. Ex. 216 ¶ 6; Div. Exs. 49, 63.

95 Tr. 162, 184.

96 Div. Ex. 21 at 3.

97 Tr. 539–40, 1350; see Tr. 1363–64 (the Fund was trading in commodities 

in 2010).

98 Tr. 1362.

99 Tr. 540, 575, 672, 1364–66.

100 Tr. 540, 575, 672, 1366.

101 Tr. 1257, 1366.
14

estate experience, Hull favored having one employee—Gibson—and “owning a 

single stock.”102

Gibson knew that investing all of the Fund’s assets in one stock was 

risky.103 But he deferred to Hull’s experience and identified TRX as a suitable 

investment for the Fund.104 According to Gibson, TRX is a “junior” gold mining 

company that explores for gold resources in Africa.105 He testified that it had 

46 mining properties in Tanzania.

106 The Fund began investing in TRX in late 

2010 and early 2011.107 By the end of April 2011, the Fund’s assets were 

invested solely in TRX, and the Fund owned approximately 9.7 million shares 

of TRX stock (worth approximately $70 million), which was around 10.3% of 

all outstanding TRX shares.108

The Fund’s fortunes began to change soon after it concentrated its 

investments in TRX. In June 2011, TRX peaked at $7.46 a share, and then 

slowly declined the rest of the summer.109 Given that TRX was a gold-mining 

company and the price of gold was high, Gibson had difficulty understanding 

why TRX’s share price was declining.110 And Hull was concerned that TRX’s 

president and CEO, Jim Sinclair, was not doing the exploration necessary for 

TRX to succeed.

111 On August 5, Hull communicated his concerns to Gibson, 

 

102 Tr. 1257, 1366.

103 Tr. 1366–67.

104 Tr. 575, 1367 (“I ... had ... supreme respect for Mr. Hull’s judgment. Who 

am I? You know, I haven’t had nearly the success he has and I believed it would 

-- and I certainly also believed it was an achievable objective.”).

105 Tr. 189. Gibson testified that a junior gold mining company “is one that is 

entire[ly] or generally exploratory in nature, less capitalized, typically does not 

have the resources to fully develop the asset and is more dependent upon 

access to the capital markets and typically has a greater leverage to the gold 

price.” Tr. 1350.

106 Tr. 1351.

107 Tr. 1345; Div. Ex. 53 at 1.

108 Tr. 188; Div. Ex. 216 ¶¶ 15, 16.

109 Tr. 1347; Joint Ex. 1 at 3–4.

110 Tr. 1373.

111 Tr. 582.
15

noting that the Fund had lost most of its gains and “incurred a huge income 

tax obligation.”112 Hull also pointed out that “none of” his and Gibson’s 

“reasoning/predictions have come to [bear].”113 Gibson felt the pressure.

6. Gibson berates TRX’s president and considers a potential sale.

On August 10, when TRX was trading a little below six dollars a share, 

Gibson e-mailed Sinclair, saying that he was “physically ill over our

performance,” it would “[v]ery soon ... make sense to exit our positions,” and 

“[t]here is no time left.”114 In a separate e-mail, Gibson berated Sinclair, 

complaining about statements made by TRX’s chief geologist that contradicted

both Sinclair and TRX press releases and that Gibson worried would be 

publicly reported.115 Gibson demanded, “What is the answer,” and told TRX’s 

CEO to “make sure [the geologist] is on the same page.”116

Sinclair replied and tried to reassure Gibson that he was doing what he 

could to move the company forward.117 Gibson quickly responded asking 

whether certain things Sinclair had previously said were no longer accurate.118 

Receiving no immediate response, Gibson e-mailed Sinclair again (in all caps), 

asserting that “everything you say is always inaccurate,” “this is the last 

straw,” and Gibson was in danger of losing credibility with his investors 

because of Sinclair’s lapses.119 Sinclair responded that he “totally disagree[d]” 

 

112 Div. Ex. 75 at 71133.

113 Id.

114 Div. Ex. 76; Joint Ex. 1 at 4. Although all the e-mails discussed in this 

paragraph appear to have been sent on August 10, 2011, the time stamps are 

confused, and it is unclear whether this e-mail was sent before or during a 

separate exchange shown in Division Exhibit 77.

115 Div. Ex. 77 at 71655; see Tr. 1348 (identifying chief geologist).

116 Div. Ex. 77 at 71655.

117 Id. at 71654–55.

118 Id. at 71654.

119 Id. (“I TOLD MY INVESTORS YOU SAID THIS AND NOW IT IS NOT 

TRUE? HOW DO YOU EXPECT THEM TO STAND BY ME WHEN THIS 

HAPPENS OVER AND OVER AND OVER?”). 
16

and did “not intend to continue” the conversation.120 A few hours later, Gibson 

told Sinclair that “our share price is a disaster” and “[w]hatever we are doing 

is failing.”121 Gibson then instructed that “We need to be all hands on deck. We

need to be mapping out a calendar or announcements for the next six weeks. 

We need to be planning a roadshow. We need to be PRODUCING the gravels 

and tailings. We need to be announcing that.”122

On August 15, Gibson and Sinclair traded e-mails again about planning a 

roadshow to attract additional investors. Gibson felt that “[t]his is a priority 

whose significance I cannot sufficiently emphasize” and added that this was a 

“do or die moment” and if “we do not move by [September 2011], we are 

toast.”123 Sinclair assured Gibson that he was “working as hard and fast as 

possible.”124

In context, it is clear that although Gibson was worried about TRX’s share 

price, perhaps thought TRX’s management was not doing enough to raise that 

share price, and was trying to “[i]nstill a sense of urgency in Mr. Sinclair,” he

still believed that TRX had substantial value as a company.125 For one thing, 

he did not immediately sell his own TRX shares. And he told the Fund’s 

investors in a letter on August 22, that although his “performance year to date 

ha[d] been an exceptional failure,” the Fund was “positioned exceedingly well” 

and investors should “sit tight.”126

Gibson was, however, starting to consider selling the Fund’s interest in 

TRX. On the same day he communicated with Fund investors, he reached out 

 

120 Id. The parties presented little evidence about the nature of Gibson’s 

relationship with Sinclair. The record reveals, however, that at this point, 

Gibson was about 27 years old and Sinclair, who was approaching 70 years of 

age, see Div. Ex. 183A at 5, was TRX’s president and CEO.

121 Div. Ex. 77 at 71654.

122 Id.

123 Div. Ex. 78 at 73888.

124 Id.

125 Tr. 1380–82. According to Hull, the hyperbolic language Gibson used with 

Sinclair was typical of his “personality.” Tr. 583. Gibson would “run very hot 

and cold” and “go unhinged on them” but then be “nice.” Tr. 583. Gibson would 

sometimes “rant and rave about ... Jim Sinclair in a negative way.” Tr. 584.

126 Resp’t Ex. 51 at 2; see Tr. 1382.
17

to Richard Sands, a banker at Casimir Capital, and told Sands that he would 

be willing to sell the Fund’s entire position, but wanted $6.25 per share, which 

would have been a premium above the then-current market price of $5.85.

127

Sands did not think the price Gibson sought was “doable,” but looked into it, 

and came back with a buyer who was willing to buy at market price.128 Hull 

and Gibson “seriously” considered the offer, but rejected it because they “did 

not [think it] reflect[ed] the value of [the Fund’s] position.”

129 Hull and Gibson 

were therefore still sufficiently bullish in late August about TRX’s value that 

they would only have sold for a premium.

7. Gibson suspends management fees for the Fund in light of its poor 

performance.

But TRX’s share price continued to decline. On September 22, it tumbled 

from around $5.50 to around $4.50.130 Gibson again expressed displeasure to 

Sinclair, but in a more measured tone than in August.131 Meanwhile, Hull 

asked Gibson whether Hull should increase his personal investment in TRX 

because the stock had gone so low.132 Gibson told him that although he 

remained “bullish” on TRX, and expected the share price to recover over time, 

he did not recommend buying more shares.133 Later that evening, however, 

Gibson opined that the Fund should buy more TRX shares.134 Gibson also told 

Hull that although he would personally hold “TRX until its share price has the 

opportunity to better reflect its underlying value,” he had “failed to fulfill the 

expectations our partners and I have had for its performance” and would cease 

taking management fees for his work on behalf of the Fund.135

 

127 Resp’t Ex. 177 at 1–4.

128 Id. at 1; Tr. 1384–86.

129 Tr. 1386; see Resp’t Ex. 62 at 6 (e-mail from Sands noting in late 

September that Gibson had backed away from previous sale).

130 Joint Ex. 1 at 4.

131 Div. Ex. 79.

132 Tr. 1389; see Resp’t Ex. 52.

133 Resp’t Ex. 52 at 1; Tr. 1389–90; see Resp’t Ex. 54.

134 Resp’t Ex. 53 at 1 (“I think it is extremely compelling to do so. I would not 

buy anything else.”).

135 Id.
18

The following day, Gibson backed off his advice to Hull to buy TRX shares 

and instead urged caution.136 Gibson also told investors that the Fund was 

down “to only slightly above original principal investments last year,” and that 

at the end of the month, he would stop assessing management fees until the 

Fund’s performance returned to “acceptable levels.”137 He nonetheless

reiterated his faith in TRX’s “underlying value” and wrote, “Personally, I will 

not redeem my interest in Geier and TRX until the bull market matures over 

the coming years at what I strongly believe will be significantly higher 

levels.”138 Two investors responded to Gibson’s email stating that they 

remained supportive of his efforts.139

TRX’s share price dropped again on Friday, September 23, to $4.07.

140

Around the end of the trading day, Gibson sold 78,000 of the Fund’s TRX shares 

for $4.04 per share.

141 An investor urged Hull that day to consider diversifying 

the Fund’s portfolio in the near future, but Hull rejected the proposal.142

8. Hull and Gibson decide to sell the Fund’s investment in TRX.

Over the following weekend, however, Hull had a change of heart about 

holding TRX. He told Gibson that he was not sure “he had a tolerance for more 

losses,” which Gibson took to mean that he (Gibson) should “consider a sale” 

and “solicit a bid” for the Fund.143 Hull’s general guidance was to get out at 

 

136 Resp’t Ex. 54.

137 Resp’t Ex. 56 at 1.

138 Id.; Div. Ex. 81 at 1 (same letter). Context shows that when Gibson said 

he would not redeem his “interest in Geier and TRX,” he was talking about his 

personal investment in the Fund, and not about any investment he had in TRX 

outside the Fund. 

139 Resp’t Exs. 57, 58.

140 Joint Ex. 1 at 4.

141 Resp’t Ex. 17 at 4; Tr. 1391; Div. Ex. 216 ¶ 22.

142 Resp’t Ex. 59 at 1 (“[C]oncentration into one stock provides equal benefits 

(you can truly understand one company) and a thinly traded company has 

benefits as well.”).

143 Tr. 1392–93.
19

good prices.144 Gibson never informed the Fund’s investors of Hull’s change in 

strategy.145

Over the next month and a half, Gibson tried to sell the Fund’s TRX shares 

at good prices. Although there were times during this period when Hull and 

Gibson were content to briefly hold and wait for better offers,

146 the evidence 

shows—as will be detailed below—that Gibson regularly reached out to 

brokers and counterparties from September 25 until November 10 to try to 

liquidate the Fund’s holdings in TRX on favorable terms.

9. Gibson sells personal shares ahead of the Fund’s sale of a third of its 

TRX investment.

On Sunday evening, September 25, Gibson wrote to Sands at Casimir 

asking if there was a buyer for up to the Fund’s entire position in TRX.147

Gibson offered 10,250,000 shares, which was the total held by the Fund, 

combined with a block of around 680,000 shares held separately by Hull.148

Sometime on September 26, Sands informed Gibson that he thought he had a 

buyer for about three to five million shares.149 Gibson told Sands to “maximize 

the number of shares” and “price and book the sale” on September 27.150

As noted above, Gibson held TRX shares in his personal account outside

of the Fund.151 Sometime on September 26, he sold 2,000 TRX shares from his 

personal Schwab brokerage account.152 He also sold 1,000 TRX shares from 

Geier Group’s Schwab account.153 Finally, he sold 18,900 TRX shares from the 

 

144 Tr. 219–20, 605; Div. Ex. 187 at 77–78 (Gibson’s investigative testimony).

145 Tr. 220.

146 Resp’t Exs. 89, 101; Div. Ex. 91.

147 Resp’t Ex. 62 at 6, 8.

148 Tr. 1404–05.

149 Resp’t Ex. 62 at 4–5. 

150 Id. at 4.

151 Div. Ex. 216 ¶ 23.

152 Id. ¶ 26; Div. Ex. 86 at 3; Tr. 226, 1394.

153 Div. Ex. 88 at 7; Div. Ex. 216 ¶¶ 25, 28; Tr. 231–32, 1394.
20

account of his girlfriend, Francesca Marzullo.154 Ms. Marzullo was not invested 

in the Fund.155 Her account “was conceived by” and funded solely by her 

father.156 Gibson was “exclusively responsible for the trades in [Ms. Marzullo’s] 

account,” and he “reported those trades and discussed them daily with Mr. 

Marzullo.”157 He did not, however, speak with Mr. Marzullo before selling Ms. 

Marzullo’s shares on September 26.158

Gibson obtained an average share price of $4.04 to $4.05 for sales from the 

three accounts.159 No TRX shares remained in these accounts after the sales.160

Gibson never disclosed these transactions to Fund investors.

161 In light of 

Gibson’s investment in the Fund and its concentration in TRX, Gibson’s sale of 

his personal shares amounted to a “little under 1 percent” of his total exposure 

to TRX through the Fund.

162 So he remained “significantly long” in TRX.163 As 

Gibson testified, because of their relatively small size, there is no evidence that 

his September 26 sales materially affected TRX’s share price.164

Gibson testified that he sold his personal TRX shares because he had no 

liquid assets and management fees from the Fund had just been suspended.165

But given that Francesca Marzullo’s shares were funded by her father, 

 

154 Div. Ex. 87 at 2–3; Div. Ex. 216 ¶¶ 24, 27; Tr. 230. As noted, Ms. Marzullo 

was the daughter of Giovanni Marzullo, an investor in the Fund. Tr. 135, 227, 

1336.

155 Tr. 143.

156 Tr. 1395–97. Ms. Marzullo was an unemployed graduate student at the 

time. Tr. 1397.

157 Tr. 1396–97.

158 Tr. 1471.

159 Div. Ex. 86 at 3; Div. Ex. 87 at 2–3; Div. Ex. 88 at 7.

160 Tr. 226, 230, 232.

161 Div. Ex. 188 at 662–63, 665–66, 669–71; Tr. 760, 823–24 (two investors 

testified that they were unaware of Gibson’s personal sales of TRX).

162 Tr. 1395.

163 Tr. 1398.

164 Tr. 1424.

165 Tr. 1394, 1472–73.
21

Gibson’s testimony regarding a need for liquidity does not explain why he sold

her shares.

166 Most importantly, Gibson’s explanation does not sufficiently 

address the timing of the sale. On the morning of Monday, September 26, 

Gibson was actively working to sell the Fund’s entire position.167 Gibson 

understood that Sands likely would have a buyer for a block sale and urged 

Sands “to price and book the sale” on Tuesday, September 27.

168 Although 

Gibson did not know exactly when the Fund’s block sale would take place, and 

any sale was still dependent on Hull’s approval,169 he was in the midst of a 

negotiation that he hoped would lead to a sale. The timing of the sale in the 

three accounts outside the Fund suggests that at the very least, Gibson was

attempting to avoid potential losses by selling personal shares ahead of the 

Fund’s impending block sale.

TRX closed at $4.11 on Monday, September 26, and opened at $4.24 on 

Tuesday, September 27.170 Following Sands’s instructions, Gibson transferred 

all of the Fund’s TRX shares to an account at Casimir.171 The volume of trading 

in TRX was heavy all day, with the share price rising to $4.34 and then 

dropping to $3.70 around 3 p.m.172 Around that time, Sands phoned Gibson 

with an offer of $3.50 a share for around 3.5 million of the Fund’s TRX 

shares.173 Gibson and Hull decided “in one minute to accept it.”174 The Fund 

 

166 See Tr. 1395–97, 1473.

167 Resp’t Ex. 62 at 6–7.

168 Id. at 4–5.

169 Tr. 1415–16, 1421–23.

170 Joint Ex. 1 at 4.

171 Resp’t Ex. 62 at 1–3; Resp’t Ex. 66; Div. Ex. 90 at 3. Sands told Gibson 

that Gibson needed to place all the Fund’s shares in its Casimir account in 

order to reassure the buyer because “no buyer will buy that quantity if they 

know another 5mm is being sold behind it.” Resp’t Ex. 62 at 1. 

172 Joint Ex. 1 at 4; Tr. 1007–08; Div. Ex. 184 at Exhibits p. 4 (Dr. Taveras 

Expert Report – TRX intraday trading for September 27); see Tr. 1679 

(reflecting Gibson’s counsel’s concession that Division expert Dr. Carmen A. 

Taveras’s calculations, as opposed to her conclusions, are not in dispute).

173 Tr. 1422; Div. Ex. 82 at 6711.

174 Tr. 1422–23.
22

sold 3,734,395 TRX shares for around $3.50 a share.175 TRX closed at $3.54 on 

a volume of over six million shares traded that day.176 If Gibson had sold his

personal TRX shares immediately after the Fund sold its shares and obtained

the same price as the Fund, he would have received around 54 cents less per 

share than he did.

177

10.Gibson considers other offers for the Fund in late 2011.

Gibson attempted to sell the remainder of the Fund’s TRX position 

throughout the end of September and in October. At the end of September, 

Gibson reached an agreement with Luis Sequiera, a principal at Roheryn 

Investments S.A., to buy the rest of the Fund’s TRX position, plus the 

additional block of shares held separately by Hull, at $3.50 a share.178 In early 

October, however, the sale fell through.179 When he told Hull the deal fell 

through, Gibson said that “[w]e’re going to very likely be best served holding 

our position” and “I would assume we are where we are for the next several 

months.”

180 Hull wanted Gibson to keep trying to find a different buyer or work

with Sequiera to make a deal.

181 Negotiations with Sequiera picked up again 

when Sequiera offered to buy about 200,000 of the Fund’s shares a day, but 

Gibson rejected the offer in mid-October.

182 Gibson told Hull on October 14, “I 

am contemplating our options but waiting for at least a few weeks.”183

Nonetheless, on October 16, Gibson e-mailed a broker at GarWood Securities

and said that the Fund “will be closing [its] TRX position in the next few weeks 

with a pre-arranged buyer beginning” the next day.

184 Indeed, Gibson testified 

that at this time, “[o]n a near-daily basis, we had a belief that we were 

 

175 Div. Ex. 82 at 6710; Div. Ex. 90 at 3.

176 Joint Ex. 1 at 4.

177 Tr. 234–35.

178 Resp’t Ex. 92 at 3; Resp’t Ex. 93; Tr. 1427–30.

179 Resp’t Ex. 101; Tr. 611–12, 1430–31.

180 Resp’t Ex. 101.

181 Resp’t Ex. 102.

182 Resp’t Ex. 104; Tr. 1433–34.

183 Resp’t Ex. 104 at 1.

184 Resp’t Ex. 108; Div. Exs. 92, 93.
23

imminently close to the consummation of that full sale.”185 But the planned 

transaction that was to begin on October 17—and which may again have been 

a deal with Sequiera—also fell through.186 The Fund, however, did sell 364,495 

TRX shares at an average price of $3.42 per share on October 17.187

11.The Fund purchases a block of TRX shares separately held by Hull.

The Fund’s offering memorandum provided that “purchase and sale 

transactions” between the Fund and “other entities or accounts” could take 

place subject to the following guidelines: (1) the sale had to be “for cash” at the 

“current market price” of the securities; and (2) “no extraordinary brokerage 

commissions or fees (i.e., except for customary transfer fees or commissions) or 

other remuneration shall be paid in connection with any such transaction.”188

On October 18, Gibson caused the Fund to buy the block of 680,636 TRX 

shares owned by Hull at the closing price that day, $3.60 a share.189 The 

purchase price was about $2.45 million.190 Given Hull’s over 80% interest in 

the Fund, the cost borne by other investors for this transaction was about 

$470,000.

191 Neither the Fund nor Hull paid a commission on the 

transaction.192 Gibson provided investment advisory services to both Hull and 

the Fund on this transaction.

193

Gibson testified that he proposed this sale to Hull.194 Hull first suggested 

that Gibson proposed the idea before conceding that he was unsure who 

proposed the sale.195 But both agreed that they were trying “to achieve a block 

 

185 Tr. 1434; see Tr. 260.

186 Tr. 260, 1434–35; see Resp’t Exs. 107, 109.

187 Tr. 1475.

188 Div. Ex. 24 at 19.

189 Div. Ex. 95; Joint Ex. 1 at 5; Tr. 260–61.

190 Div. Ex. 95. The exact figure was $2,450,589.60. Id.

191 In October 2011, Hull owned 80.702% of the Fund. Resp’t Ex. 206.

192 Tr. 262, 629–30.

193 Tr. 261.

194 Tr. 1438–39.

195 Tr. 706, 737.
24

sale” of all shares held by the Fund and its affiliates, consistent with Sequiera’s 

previous request.196

The Division’s expert, Dr. Gary Gibbons, opined that since the market 

volume for TRX on October 18 was just under 500,000 shares traded, if Hull 

had sold 680,000 shares into the market on that day, it would have depressed 

TRX’s share price.197 One potential implication of Dr. Gibbons’s observation is 

that the Fund should have received a block discount.198 In other words, the 

Fund should have purchased Hull’s shares for less than the closing price, 

because if those shares had been sold on the market, Hull would not have been 

able to obtain $3.60 for each share.199 The Fund, however, did not receive a 

block discount.200

Gibson’s expert, Daniel R. Bystrom, disagreed with Dr. Gibbons and the 

Division.

201 He testified that it is hard to know whether TRX prices would have 

been depressed if Hull sold his shares on the market.202 He admitted that a 

block discount could be appropriate when a private transaction avoids the 

price-depressing impact of a sale into the market, but noted that “[t]hose 

 

196 Tr. 705–06, 1435, 1438–39.

197 Div. Ex. 185 at 23; Joint Ex. 1 at 5; see Tr. 1484–85. Dr. Gibbons is a 

professor of finance and entrepreneurship at the Thunderbird School of Global 

Management, which is an independent college at Arizona State University. Tr. 

346–47. His work focuses on securities valuation, and he is a registered 

investment adviser. Tr. 347–48.

198 See Tr. 630, 1628. Dr. Gibbons did not say in his report or testimony that 

the Fund should have received a block discount in this transaction; he testified 

only that, because the shares were not sold in the market, the transaction did 

not occur at the current market price, even though the shares were sold at the 

closing market price on the day the Fund purchased them. See Tr. 945–46, 

950–52.

199 See Tr. 945–46, 1628.

200 Tr. 262.

201 Bystrom currently oversees risk management at a New York-based 

investment adviser. Tr. 1552. He has worked in the financial sector since 1992, 

and has been a portfolio manager at hedge funds. Tr. 1553. He is not a 

registered investment adviser. Tr. 1590.

202 Tr. 1628–31.
25

situations are really case by case” and that a motivated buyer “may be willing 

to pay at market price or even above market price.”203

When the Fund eventually liquidated its TRX holdings on November 10,

which is discussed below, it paid a commission on that sale.204 Although the

parties dispute whether the Fund’s purchase from Hull caused it to pay $1,360 

or $6,866 in extra commissions, because the Division is not asking for 

disgorgement of this extra commission, I need not decide who is correct.

205 In 

any event, because Hull owned over 80% of the Fund, only about 19.3% of the 

extra commission was borne by investors other than Hull.

206

 

203 Tr. 1628, 1630. Dr. Gibbons proved to be a difficult witness on crossexamination. He sometimes refused to answer simple yes-or-no questions with 

a yes or no, Tr. 408–09, 494–96, 501–03, 892–94, and fought counsel’s 

hypothetical premises because the premises did not match his view of the facts, 

e.g. Tr. 501, 503, 927–28. On occasion, I had to ask Dr. Gibbons to simply 

answer the question asked. Tr. 495–96, 883–84. A particularly frustrating 

exchange occurred when Gibson’s counsel asked Dr. Gibbons about a treatise 

on options. Counsel twice walked Dr. Gibbons through a point in the treatise 

and concluded by asking whether Dr. Gibbons agreed with the point only to 

have Dr. Gibbons ask, “In what context?” Tr. 915, 917. 

Dr. Gibbons’s demeanor diminished his credibility. These sorts of 

problems generally did not mar Bystrom’s testimony, however.

204 Tr. 1440–41.

205 Gibson testified that the Fund paid a commission of .2 cents per share 

when it liquidated its TRX assets. Tr. 1441. Multiplied by 680,636 shares, the 

total commission to sell Hull’s former shares would come to $1,361. Relying on 

the GarWood account statements detailing the sales, the Division notes that a 

mathematical comparison of the amounts sold with the proceeds received 

demonstrates that the commission was approximately one cent per share. Div. 

Ex. 122 at 14–24. The second to last row on page 24 of Division Exhibit 122 

indicates 100,000 shares were sold for $2.106 a share with proceeds of 

$209,594. Multiplying 100,000 by 2.106 equals 210,600. Subtracting 209,594 

from that amount yields 1,006. And dividing that by 100,000 shares yields 

approximately 1 cent per share. According to the Division’s calculation, which 

is based on more concrete evidence than Gibson’s, the total extra commission 

paid was $6,866. See Div. Proposed Findings of Fact ¶ 143.

206 Tr. 1441. Gibson, his parents, and Giovanni Marzullo, together owned 

10.278% of the Fund. Resp’t Ex. 206. Subtracting this percentage and Hull’s 
26

Dr. Gibbons opined that the Fund’s purchase of Hull’s shares was

“counterproductive to the goals of” the Fund because “the decision to liquidate” 

the Fund’s TRX holdings had already been made.207 Dr. Gibbons therefore

believed that the trade was made to benefit Hull at the expense of the Fund.208

But both Gibson and Hull testified that the purchase was in the Fund’s 

interest. According to Hull, the Fund purchased his shares in order to 

consolidate a larger block of shares available for sale, which could “entice the

buyer” and could garner a “substantially increased price.”209 Gibson testified, 

“We wanted to be in a position to sell the full shares of the fund and its affiliates 

in a single transaction.”210 Bystrom confirmed based on his industry experience 

that consolidating the shares “greatly simplifies the process of entering into a 

block transaction” because a “buyer would want to know that he’s seeing the 

whole piece for sale” and that there are no additional shares left behind.

211

The evidence lends some support Gibson’s contention that there were 

reasons to sell Hull’s shares in a block with the Fund’s shares.

212 Both Sands 

on September 26 and Sequiera on October 1 wanted confirmation from Gibson

that the Fund’s entire position would be available to sell, and that no shares 

would be left behind.213 When Gibson communicated with them, he included 

 

percentage from the total means that 9.01% of the extra commission was borne 

by the remaining Fund investors. And 9.01% of $6,866 is $618.63.

207 Div. Ex. 185 at 23.

208 Id.

209 Tr. 624, 627, 639.

210 Tr. 1435; see Tr. 1438–39. Elsewhere, however, Gibson was somewhat 

vague as to his reasons for the Fund’s purchase of Hull’s shares. On October 

17, he told Hull that the consolidation would “help me for regulatory and other 

reasons.” Div. Ex. 94. The same day, he told a banker involved with Hull’s 

account that it would be “easier to manage this position in one place.” Resp’t 

Ex. 110.

211 Tr. 1567; Resp’t Ex. 228 at 6 (Bystrom expert report).

212 Tr. 1435 (Gibson testified that the Hull transaction was consistent with 

Sequiera’s request that all shares of the Fund and its affiliates needed to be 

sold together).

213 Resp’t Ex. 62 at 7 (Sands said, “whatever we do needs to be a clean up”); 

Resp’t Ex. 93 at 1–2 (Sequiera wanted to make sure the Fund has no other 

shares to sell).
27

Hull’s 680,000 shares in the total amount he had available to sell in an effort 

to identify other large blocks as they had requested.

214 And Sands asked 

Gibson to move all of the Fund’s shares to an account at Casimir for this very 

reason; even though he was only brokering the sale of three to five million 

shares, he wanted everything in one account because “no buyer will buy that 

quantity if they know another 5 [million] is being sold behind it.”215 But the 

evidence also shows that the Fund did not need to purchase Hull’s shares for 

all of the shares to be sold at once.216

Gibson never disclosed the purchase of Hull’s stock to the Fund’s 

investors.

217

12.Gibson buys puts for himself, his girlfriend, and recommends puts to 

his father.

After arranging the purchase of Hull’s shares on October 18, Gibson 

continued to search for a buyer for the Fund’s remaining TRX position. On 

October 24, he told one Fund investor that he was planning to liquidate the 

Fund but, “to ensure we can achieve good execution on the sale,” had not 

disclosed his intent to investors.

218

On October 26, Hull’s executive assistant, Laurie Underwood, e-mailed 

Gibson a “sixteenth amended and restated demand promissory note,” 

evidencing that he owed Hull $636,921 with an 8% interest rate.219 Ms. 

Underwood, who included accounting figures for the note, asked Gibson to 

 

214 Tr. 1404–05, 1429–30.

215 Resp’t Ex. 62 at 1.

216 See Tr. 1429–30, 1621–22; Resp’t Ex. 92 at 3–4. It is true that Gibson did 

not consolidate Hull’s shares before the September 27 sale or as part of the 

failed deal with Roheryn. See Resp’t Ex. 92. But the September 27 sale was 

anticipated to be for three to five million shares, or less than all of the Fund’s 

shares. Resp’t Ex. 62 at 4–5. 

217 Tr. 261–62.

218 Div. Ex. 98 at 10236; Tr. 635.

219 Resp’t Ex. 117 at 1, 5.
28

execute the amended note and return it to her.220 Gibson realized at that point 

that a 50-cent drop in TRX’s share price would render him “insolvent.”221

The next day, Gibson began purchasing $4 TRX put option contracts with 

an expiration date of November 19 for his personal account and for Francesca 

Marzullo’s account.222 A put option gives the purchaser of the put the right, but 

not the obligation, to sell a security at a specified “strike price” (in this case $4) 

by a specified date.223 If the price of the underlying security declines below the 

strike price, the put is “in the money” and the put’s purchaser can sell it for a 

profit. Conversely, if the prices rises above the strike price, the put will expire 

worthless and the purchaser will only have lost the cost of the put. 

On October 27 and 28, Gibson bought a total of 1,604 $4 TRX put contracts

in Ms. Marzullo’s account, paying approximately $50,000.

224 On October 28, 

November 2, and November 8, Gibson bought a total of 565 $4 TRX put

contracts for his own account, paying approximately $20,000.

225 Each put 

contract covered 100 TRX shares and cost between 30 and 45 cents a share.

226

Gibson did not disclose his put purchases to the Fund or any of its investors, 

including Hull.227

Gibson testified that he purchased protective puts, fearing he might 

become insolvent, to hedge against a potential loss should TRX decline in 

 

220 Id. at 1; see Tr. 1445–46.

221 Tr. 312–13, 1446–47.

222 Tr. 300–01, 1446–47; e.g. Div. Ex. 102 at 2.

223 Div. Ex. 184 at 20–22.

224 Div. Ex. 216 ¶ 31; see Div. Ex. 102 at 2–3; Tr. 308.

225 Div. Ex. 216 ¶ 30; Div. Ex. 99 at 3; Div. Ex. 124 at 3. Gibson also bought 

some $2 TRX puts on November 10, which he was able to sell later that day for 

a profit of about $2,500. Div. Ex. 124 at 3. Although it may be that he timed 

his purchase and sale of these puts based on knowledge about the Fund’s 

activity, see Div. Ex. 184 at 23, Exhibits p. 18; see also Div. Ex. 187 at 103, the 

Division does not press this point or seek disgorgement of the resulting profit, 

see Div. Br. 41. 

226 Tr. 1443; Div. Ex. 99 at 3; Div. Ex. 102 at 2–3; Div. Ex. 124 at 3.

227 Div. Ex. 187 at 120, 215–16.
29

value.

228 As Bystrom explained, a protective put acts like an insurance 

policy.229 If one is long in a stock, then purchasing puts to cover a percentage 

of that exposure can “mitigate your loss below the strike price of the option”

should the value of the stock decline.230 Purchasing protective puts could allow 

an investor “to maintain long exposure, particularly through bouts of 

volatility.”231 A naked put, on the other hand, is the purchase of a put option

by an investor who does not have a long position in the underlying security.232

For example, if an investor who does not own a stock buys a put contract for 

that stock and exercises the put when the stock drops, the investor has made 

money even though the share price has fallen. If the same investor has a long 

position in the underlying stock even after purchasing puts, the best the 

investor will do by exercising the puts when the share price falls is mitigate a 

portion of the overall loss suffered.

233

When Gibson bought the puts in his personal account, his interest in the 

Fund equated to over 100,000 shares of TRX.

234 The puts covered 56,500 

shares.235 According to Bystrom, because Gibson was still long in TRX after 

purchasing the puts, his puts were protective.236 The Division’s experts, Dr. 

 

228 Tr. 312–13, 1445–46.

229 Tr. 1577; see Robert J. Aalberts & Percy S. Poon, Derivatives and the 

Modern Prudent Investor Rule: Too Risky or Too Necessary?, 67 Ohio St. L.J. 

525, 566 & n.262 (2006).

230 Tr. 1633.

231 Tr. 1574.

232 Tr. 1576–77.

233 See Tr. 1633.

234 Tr. 1444. Gibson’s counsel asserted that Gibson held around 220,000 

shares of TRX through his interest in the Fund. See, e.g., Tr. 1063–64. But 

Gibson stated that although he originally held over 230,000 shares, he only 

held about “half of those shares” when he purchased the puts. Tr. 1444. Indeed, 

when Gibson bought puts at the end of October and the beginning of November, 

the Fund had already liquidated half of its TRX position.

235 Div. Ex. 216 ¶ 30.

236 Tr. 1580.
30

Gibbons and Dr. Taveras,237 agreed in substance with the definition of a 

protective put, and acknowledged that Gibson’s puts could be characterized as

protective puts because of Gibson’s long exposure to TRX through the Fund.

238

Although Gibson bought as many puts as he could, he felt in hindsight 

that he “wildly underhedged [his] risk” because he still lost a lot of money when 

the Fund liquidated its TRX holdings.239 Gibson further testified that he 

bought puts for Francesca Marzullo’s account to hedge her father Giovanni 

Marzullo’s exposure to TRX through the Fund.240 Gibson said he considered 

Francesca Marzullo’s parents as advisory clients of his, and he purchased puts 

to hedge their TRX exposure because “[t]hey were elderly[,] ... living on a fixed 

income[,]” and “had all of their liquid assets in the Fund.”241 Although the puts 

were really for Ms. Marzullo’s parents, Gibson testified that he bought them in 

Ms. Marzullo’s account because he had access to her account.242 But after 

Gibson received the proceeds from the sale of Ms. Marzullo’s puts on November 

10, he continued to trade in her account and lost all of the proceeds from the 

put sales on other options trades.243 I therefore doubt that Gibson’s actions

 

237 Dr. Taveras is a financial economist at the Commission. Tr. 963. Her 

report concerns the profits made by Gibson and others on the transactions at 

issue in this proceeding. Tr. 964–66.

238 Tr. 918–19, 928–30 (Dr. Gibbons acknowledged that although Gibson did 

not have any TRX stock in his personal account when he purchased the puts, 

he intended to hedge his exposure to TRX through the Fund); Tr. 1043, 1060–

62 (Dr. Taveras agreed with Gibson’s counsel that because Gibson was long in 

TRX through his exposure to the Fund, his puts could be characterized “as a 

hedge”).

239 Tr. 312–13, 1447; see Div. Ex. 187 at 130–31. The Division emphasizes 

that in his investigative testimony, Gibson called his put purchases “a short 

bet” against TRX. Div. Ex. 187 at 118–19; Tr. 301–03. But because Gibson was 

net long in TRX through his exposure to the Fund’s investment, his puts are 

better characterized as protective. See Div. Ex. 187 at 118–20 (agreeing that 

while in his personal account, he “had a short bet against TRX,” he was overall 

through the Fund “exceptionally long and far longer than anyone else in the 

Fund”).

240 Tr. 1447–48.

241 Tr. 1448.

242 Div. Ex. 187 at 113.

243 Tr. 331, 1507.
31

were motivated solely out of concern for the Marzullos as an elderly couple on 

a fixed income.

When asked the obvious question, Gibson testified that he did not buy puts 

to hedge the Fund’s position because he believed buying puts would not have 

been a responsible investment for the Fund.

244 The puts cost money, and 

Gibson said he “expected them to expire worthless.”245 The Fund had already 

sold about half of its interest in TRX, and given that the Fund was no longer 

one of the largest owners of the stock, Gibson said that he did not expect the 

impending sale of the remainder of the Fund’s shares to push TRX’s stock price 

down enough to render the puts valuable.246

In addition to his own put purchases, Gibson advised his father on 

November 8 to buy $4 TRX puts, sell the TRX shares he held in a personal IRA 

account, and then sell the puts.247 John Gibson was one of his son’s advisory 

clients.

248 After speaking to his son, John Gibson phoned his broker, which did 

not execute the sale of his TRX stock or the purchase of the puts until the next 

day.

249 When Gibson told his father to execute these transactions, he knew the 

Fund was planning imminently to sell the remainder of its TRX holdings.250

Gibson testified that he told his father to buy puts as “a hedge for execution 

 

244 Tr. 1450–51. Gibson purchased some $2 and $3 puts for the Fund on the 

day that the Fund sold the balance of its TRX shares. Div. Ex. 187 at 103; 

Resp’t Ex. 204. But neither party has raised any issue about those puts.

245 Tr. 1450.

246 Tr. 1450–51.

247 Tr. 322–23, 1107–08, 1114, 1243–44, 1253; Resp’t Ex. 207; see Tr. 1277–

79. On November 8, John Gibson spoke with Hull, who reported that “we’re 

going to do something here in Geier.” Tr. 1108. John Gibson asked what Hull 

meant and Hull told John Gibson to “just call Christopher and whatever he 

tells you to do, you do that.” Tr. 1108. So John Gibson called his son who, in a 

brief conversation, said “get a pen, buy a put, sell the stock, sell the put, do it 

immediately.” Tr. 1108.

248 Tr. 145.

249 Tr. 1108, 1114–18; Resp’t Ex. 191 at 2–3; Resp’t Ex. 192 at 1; see Tr. 1277–

79.

250 Tr. 322–25.
32

risk.”251 In other words, he wanted his father to sell his personal TRX shares 

as soon as possible but was afraid the sale transaction would not be executed 

immediately.252 Gibson, therefore, told his father to buy puts so he would not 

lose out if TRX’s share price dropped in the interim.253

13.The Fund sells the rest of its TRX stock into the market at great loss.

At the beginning of November, the Fund continued to incrementally sell 

its shares on the market or in negotiated transactions at around market 

price.254

Then, on November 7 or 8, Sands from Casimir contacted Gibson and told 

him “he had an offer that would make us very pleased.”

255 On November 9, 

after the market had closed for the day, Gibson met with Sands and Platinum 

Partners’s CFO, David Levy.256 In prior meetings with Levy, Gibson had tried

to negotiate a sale of the Fund’s TRX shares to Platinum.

257 But during the 

November 9 meeting, Levy instead told Gibson that Platinum would pay the 

Fund $10,000 a month not to sell any TRX shares for six months.258 Gibson 

was “shocked and disappointed,” and he told Hull, who was concerned that 

Platinum was trying to lock up the Fund’s shares so it could sell its TRX 

holdings before the Fund could sell.

259 Hull and Gibson decided to sell the 

remainder of the Fund’s TRX position the next day into the market.260 Hull 

and Gibson were hoping that if they sold the Fund’s shares, other large TRX 

investors like Platinum would be forced to buy TRX to prevent the share price 

 

251 Tr. 1449.

252 Tr. 1449.

253 Tr. 322–24, 1449.

254 Tr. 879–81, 885, 1455–56; Resp’t Ex. 121 (November 8 sale to Sequiera); 

Resp’t Ex. 153 at 1 (summary chart of the Fund’s sales).

255 Tr. 1456.

256 Tr. 323–24, 1456.

257 Tr. 319–21.

258 Tr. 321, 1457.

259 Tr. 1457–58.

260 Tr. 1458–59.
33

from dropping and to protect their own positions.

261 Gibson and Hull hoped 

that as other investors rushed in to buy the stock, the Fund would lose less 

money on the shares it sold as the day progressed.262 But Gibson was aware

that his strategy was risky.263

On the morning of November 10, Gibson emailed his broker at GarWood 

and told him to sell, noting, “We are going to potentially tank this stock.”264

Gibson explained that he told this to his broker to signal that there was no 

need to sell slowly and get best execution prices.265 Rather, Gibson wanted to 

sell aggressively to force the other large shareholders to buy the Fund’s shares 

as he had discussed with Hull.266

Gibson was half right. His strategy did not work but he did tank the stock. 

As the Fund sold its remaining 4.9 million shares of TRX into the market, other 

big investors sold too, and the stock price declined dramatically.267 TRX fell so 

fast that the New York Stock Exchange twice briefly halted trading in it.

268

Around 10:00 a.m., when TRX’s share price had fallen to approximately $2.00, 

Gibson sold all of the $4 puts in his account and in Francesca Marzullo’s 

account.269 The $4 puts from John Gibson’s account were also sold that day.270

The Fund liquidated its TRX holdings for average prices ranging from $3.15 to 

$1.65 per share.

271 TRX’s share price, which had opened at $3.41, went as low 

as $1.56 and closed at $2.29 on a volume of over 17 million shares traded.272

 

261 Tr. 1458.

262 Tr. 658–59, 1458–59.

263 Div. Ex. 105 at 11858; see Tr. 659.

264 Div. Ex. 105 at 11585; Tr. 1459–60.

265 Tr. 1461–62.

266 Tr. 1461–62.

267 Tr. 324–25, 659, 1462–63; Div. Ex. 216 ¶ 32.

268 Tr. 325; Div. Ex. 184 at Exhibits p. 12.

269 Div. Ex. 123 at 14; Div. Ex. 124 at 3; Div. Ex. 184 at 23, Exhibits p. 18.

270 Div. Ex. 114 at 46; Div. Ex. 184 at 23; see Tr. 1119–20.

271 Tr. 1051; Div. Ex. 184 at Exhibits p. 11.

272 Joint Ex. 1 at 5.
34

Gibson made $81,930 ($81,008.81 after commissions) on the sale of his $4 

puts. The puts in Francesca Marzullo’s account generated a profit of $254,380 

($251,879.81 after commissions). John Gibson made $43,240 ($41,823.06 after 

commissions).

273 Even with his profit from the puts, Gibson lost $724,660 in 

the Fund.274 Giovanni Marzullo lost $965,318, and Gibson’s parents lost 

$1,399,053.275

At some point, possibly as early as mid-February 2012, Gibson spoke with 

Sequiera by phone.276 During the call, Gibson used profane and often 

hyperbolic language to express his anger toward Sinclair.277 Relevant to this 

proceeding, Gibson said that Sinclair “lied to [Gibson] for a year,” had “taken 

everything from” Gibson, was “a complete crook,” and “screws everyone he 

deals with.”278

According to the Division, Gibson’s assertion that Sinclair had been lying 

for a year shows that Gibson knew Sinclair was dishonest in August 2011, 

when he berated Sinclair but gave investors a more positive view of TRX.279

But Gibson did not sell his personal shares in August 2011; rather, he

remained sufficiently bullish about TRX to decline a liquidation sale at $5.85 

per share, advised Hull in September 2011 that he remained “bullish” on TRX, 

and before September 23, told Hull the Fund should consider buying more 

shares. So the record does not show that before November 2011, Gibson 

thought Sinclair might be lying.280

 

273 Tr. 330–31; Div. Ex. 185 at 47; see Resp’t Ex. 205.

274 Resp’t Ex. 205.

275 Id.; Tr. 1143.

276 See Div. Exs. 183, 183A; see Tr. 845–46, 1487.

277 Div. Ex. 183A; see Tr. 847.

278 Div. Ex. 183A at 3–4, 6.

279 Tr. 848.

280 In a sarcastic e-mail sent November 4, 2011, Gibson asked Sinclair 

whether he’d done a number of things Gibson said Sinclair had promised to do. 

Div. Ex. 103. Gibson added that if Sinclair did not “fix what you’ve broken, it 

will be my life's goal to ensure your children will know you were a crook and 

the pain you caused so many people all in an effort at self glorification.” Id.
35

In context, therefore, Gibson’s phone conversation supports Hull’s 

observation—relevant to Gibson’s August 2011 berating e-mails to Sinclair—

that Gibson tended to “rant and rave about different things,” and sometimes 

would “rant and rave about ... Sinclair in a negative way.”281 The phone call

otherwise has little relevance.

14.The Fund shuts down in April 2013.

Gibson continued to manage the Fund until April 2013, when he closed it 

and returned money to its 13 remaining investors.282 In his wind-up letter to 

investors, Gibson admitted that the Fund’s performance had been “disastrous” 

and he accepted full responsibility for its failure.283 In his testimony, Gibson 

explained that he and Hull had made bad decisions, such as not accepting the 

buyout offer for its TRX stock at $5.85 a share in August 2011 and flooding the 

market with shares on November 10.284

Gibson currently lives in Montevideo, Uruguay, where he works for East 

Century Capital, Ltd., a Hong Kong consulting firm that advises companies in 

Africa.285

 

281 Tr. 584.

282 Tr. 334–35; Div. Ex. 154.

283 E.g., Div. Ex. 154 at 2149.

284 Tr. 1464–66.

285 Tr. 1492, 1498, 1502.
36

Discussion and Conclusions of Law

The Division alleges that Gibson willfully violated Advisers Act Section 

206(1) and (2) by engaging in a transaction that favored Hull over the interests 

of his advisory client, the Fund, and by engaging in front running transactions 

that benefited him and persons close to him.

286 I will first consider the 

allegations under these provisions and then consider whether, as the Division 

further alleges, Gibson also willfully violated Exchange Act Section 10(b) and 

Rule 10b-5(a) and (c), and Advisers Act Section 206(4) and Rule 206(4)-8, 

through the same conduct.287

1. The antifraud provisions of Advisers Act Section 206(1) and (2) impose 

federal fiduciary standards on investment advisers and require 

elimination or disclosure of even potential conflicts of interest.

Advisers Act Section 206 makes it:

unlawful for any investment adviser, by use of the mails 

or any means or instrumentality of interstate commerce, 

directly or indirectly—

(1) to employ any device, scheme, or artifice to defraud 

any client or prospective client; [or]

(2) to engage in any transaction, practice, or course of 

business which operates as a fraud or deceit upon any 

client or prospective client.288

Section 206 “establishes ‘federal fiduciary standards’ to govern the 

conduct of investment advisers.”289 As a result, investment advisers “owe their 

clients ‘an affirmative duty of utmost good faith, and full and fair disclosure of 

all material facts, as well as an affirmative obligation to employ reasonable 

care to avoid misleading [their] clients.’”290 To this end, the Act “reflects a 

 

286 OIP ¶¶ 2, 55, 56.

287 Id. ¶¶ 54, 57.

288 15 U.S.C. § 80b-6(1), (2).

289 Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 17 (1979) 

(quoting Santa Fe Indus. v. Green, 430 U.S. 462, 471 n.11 (1977)).

290 Montford & Co., Advisers Act Release No. 3829, 2014 WL 1744130, at *13 

(May 2, 2014) (alteration in original) (quoting SEC v. Capital Gains Research 
37

congressional recognition ‘of the delicate fiduciary nature of an investment 

advisory relationship,’ as well as a congressional intent to eliminate, or at least 

to expose, all conflicts of interest which might incline as investment adviser—

consciously or unconsciously—to render advice which was not disinterested.”291

An adviser must therefore “disclose information that would expose any” actual 

or potential conflicts of interest with a client.

292 The Commission “has long held 

that ‘[f]ailure by an investment adviser to disclose potential conflicts of interest 

to its clients constitutes fraud within the meaning of Section[] 206(1) and 

(2).’”293 “It is indisputable that potential conflicts of interest are ‘material’ facts 

with respect to clients and the Commission.”294

To establish liability under Section 206(1), the Division must show that a 

respondent acted with scienter.295 A showing of negligence, however, is 

sufficient to establish a violation of Section 206(2).296 Scienter may be shown 

by evidence of recklessness.297 In this context, recklessness is “an extreme 

departure from the standards of ordinary care ... present[ing] a danger of 

 

Bureau, Inc., 375 U.S. 180, 194 (1963)), pet. denied, 793 F.3d 76 (D.C. Cir.

2015).

291 Capital Gains, 375 U.S. at 191–92 (quoting Louis Loss, Securities 

Regulation 1412 (2d ed. 1961)).

292 Montford, 2014 WL 1744130, at *13 (quoting Kingsley, Jennison, McNulty 

& Morse, Inc., Advisers Act Release No. 1396, 1993 WL 538935, at *3 (Dec. 23, 

1993)).

293 Robare Grp. v. SEC, 922 F.3d 468, 472 (D.C. Cir. 2019) (first alteration in 

original) (quoting Fundamental Portfolio Advisors, Inc., Securities Act Release 

No. 8251, 2003 WL 21658248, at *15 & n.54 (July 15, 2003), pet. denied sub 

nom. Brofman v. SEC, 167 F. App’x 836 (2d Cir. 2006)).

294 Vernazza v. SEC, 327 F.3d 851, 859 (9th Cir. 2003). A misstatement is 

material if there is a substantial likelihood that a reasonable investor would 

view “disclosure of the omitted fact ... as having significantly altered the ‘total 

mix’ of information made available.” Matrixx Initiatives, Inc. v. Siracusano,

563 U.S. 27, 38 (2011) (quoting Basic Inc. v. Levinson, 485 U.S. 224, 231–32 

(1988)).

295 Montford, 2014 WL 1744130, at *14; see SEC v. Steadman, 967 F.2d 636, 

641 & n.3 (D.C. Cir. 1992).

296 Montford, 2014 WL 1744130, at *14.

297 Id. at *14 n.108.
38

misleading [clients] that is either known to the [actor] or is so obvious that the 

actor must have been aware of it.”298 “Negligence is the failure to exercise 

reasonable care.”

299

2. Gibson was an investment adviser to the Fund and used 

instrumentalities of interstate commerce.

Section 206 only applies to investment advisers.

300 An investment adviser 

is “any person who, for compensation, engages in the business of advising 

others ... as to the advisability of investing in, purchasing, or selling 

securities.”301

Gibson was the managing director of both the Fund’s managing member,

Geier Capital, and the Fund’s investment manager, Geier Group, while those

entities existed.

302 He acknowledged that he provided investment advisory 

services to the Fund.

303 He devised the strategy of investing in TRX,304

negotiated purchases and sales with brokers and counterparties,

305

communicated with Fund investors regarding the Fund’s future 

performance,

306 and held himself out as an adviser to regulators.307 For these 

services, he was paid a salary through April 2013 and, through Geier Group,

 

298 Id. (final alteration in original) (quoting David Henry Disraeli, Securities 

Act Release No. 8880, 2007 WL 4481515, at *5 (Dec. 21, 2007), pet. denied, 334 

F. App’x 334 (D.C. Cir. 2009)).

299 IFG Network Sec., Inc., Exchange Act Release No. 54127, 2006 WL 

1976001, at *11 (July 11, 2006).

300 15 U.S.C. § 80b-6.

301 15 U.S.C. § 80b-2(a)(11); see Abrahamson v. Fleschner, 568 F.2d 862, 871 

(2d Cir. 1977) (holding that advice can take the form of “exercising control over 

what purchases and sales are made with their clients’ funds”). 

302 Div. Ex. 22 at 1, 12; Div. Ex. 23 at 1, 12; Div. Ex. 24 at 1.

303 Tr. 184, 186, 187, 335 (admitting provision of advisory services both before 

and after dissolution of Geier Group); see Tr. 570 (Hull agreeing).

304 Tr. 575, 1367.

305 See, e.g., Resp’t Exs. 62, 92.

306 See, e.g., Resp’t Ex. 51.

307 See, e.g., Div. Exs. 31, 39, 70, 71.
39

was entitled to annual management fees and incentive allocations even if he 

did not receive them once the Fund started to fail.

308 For these reasons, Gibson 

meets the statutory definition of an investment adviser to the Fund.309

Liability under Section 206 requires that the adviser make “use of the 

mails or any means or instrumentality of interstate commerce.”310 This 

element is satisfied because when Gibson engaged in the problematic trading 

activities and the transaction with Hull, he used the telephone, e-mail, and the 

internet.311

3. Elimination or disclosure of conflicts where the client is a hedge fund.

Investment advisers owe their clients a duty of full disclosure.312 But 

Gibson’s advisory client was the Fund, not its individual investors.

313 Indeed, 

 

308 Tr. 246–52, 334–35; Div. Exs. 43, 128, 147, 156; Div. Ex. 24 at 2.

309 See SEC v. Fife, 311 F.3d 1, 11 (1st Cir. 2002) (finding that an investment 

adviser received compensation when “he understood that he would be 

compensated for his efforts by a commission based on a percentage of the 

profits from the investments, if successful”); SEC v. Ahmed, 308 F. Supp. 3d 

628, 652–53 (D. Conn. 2018) (finding a similar involvement in recommending 

investment opportunities and in negotiating the terms of transactions to be 

sufficient to establish that the defendant was an investment adviser); Timothy 

S. Dembski, Advisers Act Release No. 4671, 2017 WL 1103685, at *10 n.33 

(Mar. 24, 2017), pet. denied, 726 F. App’x 841 (2d Cir. 2018).

310 15 U.S.C. § 80b-6.

311 Larry C. Grossman, Securities Act Release No. 10227, 2016 WL 5571616, 

at *4 n.11 (Sept. 30, 2016), vacated as to certain sanctions, 2019 WL 2870969

(July 3, 2019).

312 Montford, 2014 WL 1744130, at *13.

313 See Goldstein, 451 F.3d at 881 (a hedge fund “adviser owes fiduciary duties 

only to the fund, not to the fund’s investors,” because “[i]f the [individual] 

investors are owed a fiduciary duty and the entity is also owed a fiduciary duty, 

then the adviser will inevitably face conflicts of interest”). To be clear, Gibson 

had separate advisory relationships with his parents and the Marzullos, but 

those relationships had nothing to do with any investment in the Fund those 

individuals might have had. See Tr. 804; Inv. Adviser Advertisements; Comp. 

for Solicitations, 84 Fed. Reg. 67,518, 67,527 & n.66 (Dec. 10, 2019) (noting 

that an “adviser’s ‘clients’ ... are the pooled investment vehicles themselves” 

and explaining that “[t]here are circumstances under which an investor in a 

pooled investment vehicle is also a client of the investment adviser” such as 
40

the Division conceded that although the Fund was Gibson’s advisory client, the

Fund’s investors were not Gibson’s advisory clients simply by virtue of their 

investment in the Fund.

314 The Fund, however, was a mere legal entity with 

no independent decision-makers. Gibson was therefore essentially “in the 

perverse position” of disclosing conflicts or potential conflicts to himself as the 

client’s agent.

315 This sort of disclosure to himself, which would have amounted 

to no disclosure at all, could not have been sufficient.316

Because this is the case, the question is to whom Gibson should have made 

disclosures once conflicts of interest arose. Arguably, disclosure to investors in 

the Fund would not have been sufficient, and could have even been harmful. 

The interests of individual investors could have easily been drawn into conflict 

with the Fund’s interests.

317 Moreover, individual investors had no decision-

 

“when the investor has its own investment advisory agreement with the 

investment adviser”). In this regard, Goldstein, “did not hold that no hedge 

fund adviser could create a client relationship with an investor,” United States 

v. Lay, 612 F.3d 440, 446–47 (6th Cir. 2010), and the OIP could be read as 

alleging that Gibson breached duties as to other clients as well as the Fund, 

see, e.g., OIP ¶ 2. The Division, however, has focused on the allegation that 

Gibson breached his fiduciary duties to the Fund. See, e.g., Div. Br. 1–2, 12; Tr. 

804.

314 Tr. 804.

315 J. Tyler Kirk, A Federal Fiduciary Standard Under the Investment 

Advisers Act of 1940: A Refinement for the Protection of Private Funds, 7 Harv. 

Bus. L. Rev. Online 19, 20 (2016).

316 See id. Gibson has not argued that disclosure to himself as an agent of the 

Fund would have been sufficient to remedy any conflict that arose, nor is such 

an argument viable. See id. at 28–31 & n.77 (arguing that an agent’s 

knowledge should not be imputed to the principal when the principal is the 

agent’s intended victim); Kirschner v. KPMG LLP, 938 N.E.2d 941, 952 (N.Y. 

2010) (“[T]he presumption that an agent will communicate all material 

information to the principal operates except in the narrow circumstance where 

the corporation is actually the victim of a scheme undertaken by the agent to 

benefit himself.”); see also Div. Ex. 185 at 20 (Dr. Gibbons opined that “it was 

not adequate that the intended misconduct of Gibson as adviser was known to 

Gibson as managing member. Gibson’s own knowledge of his plans to engage 

in improper conduct cannot be attributed to the Fund or its investors.”).

317 See Goldstein, 451 F.3d at 881. For example, a disclosure that Gibson 

intended to sell his personal shares of TRX due to a potential conflict with the 

Fund’s impending block sale could have caused other investors to attempt to 
41

making authority for the Fund, and no meaningful recourse had they known

of Gibson’s intended actions. The operating memorandum limited their ability 

to even withdraw money and permitted Geier Capital to suspend their right to 

withdrawal under certain conditions.

318

For these reasons, because the transactions Gibson intended to effectuate 

posed conflicts or potential conflicts of interest, he should have refrained from 

engaging in those transactions or, failing that, established an appropriate 

disclosure mechanism through which a disinterested committee or person 

could have independently evaluated those conflicts and transactions on behalf 

of the Fund.

319 Thus, in Gibson’s circumstances, a failure to obtain independent 

advice or abstain from a transaction in the event of even a potential conflict 

would constitute a violation of the Advisers Act.320

 

sell their personal shares, which in turn could have adversely affected TRX’s 

share price or limited the Fund’s ability to later sell its shares.

318 Div. Ex. 24 at 3, 16, 20–22.

319 Independent disclosure mechanisms may involve, for example, disclosure 

to an independent conflicts committee or an independent person in 

management to evaluate the conflict and render a decision for the Fund. See

SEC v. DiBella, 587 F.3d 553, 568 (2d Cir. 2009); Asset Managers’ Committee, 

Best Practices For The Hedge Fund Industry 42, 48–49 (2008), 

https://www.treasury.gov/press-center/press-releases/Documents

/amcreportapril152008.pdf; Div. Ex. 185 at 20. As “[c]onflicts are inherent in 

the asset management business as in many other financial services 

businesses,” a fund “[m]anager should adopt policies and procedures to identify 

and address potential conflicts of interest that may arise in its specific 

businesses” and “establish a Conflicts Committee.” Best Practices at 47–48. 

Typically, a fiduciary must seek independent, disinterested advice when he or 

she has divided loyalties or lacks the ability to make the decision at hand. 

Accord Leigh v. Engle, 727 F.2d 113, 132 (7th Cir. 1984) (addressing ERISA 

fiduciaries with divided loyalties).

320 See Capital Gains, 375 U.S. at 191 (an adviser must “eliminate, or at least 

... expose” all potential conflicts of interest).
42

4. Front running in the investment adviser context.

The Division argues that Gibson is liable for front running.321

“Frontrunning may be generally defined as involving trading a stock, option, 

or future while in possession of non-public information regarding an imminent 

block transaction that is likely to affect the price of the stock, option, or 

future.”

322 As is the case with insider trading, there is no specific statute or 

regulation prohibiting front running. But unlike insider trading, which courts 

have long addressed under the federal securities laws, there is little case law 

addressing front running under the antifraud provisions of federal securities 

law.323

 

321 Div. Posthearing Br. at 4–7, 16–20, 26–27. 

322 Memorandum Prepared by the Division of Market Regulation in Response 

to the Questions Contained in the Letter of March 4, 1988, from the Honorable 

John D. Dingell and the Honorable Edward J. Markey Regarding Short Selling 

and Frontrunning 11 (May 13, 1988), http://www.sechistorical.org/museum

/papers/1980/page-14.php (scroll to May 13); see Lewis D. Lowenfels & Alan R. 

Bromberg, Securities Market Manipulations: An Examination and Analysis of 

Domination and Control, Frontrunning, and Parking, 55 Alb. L. Rev. 293, 313 

(1991); see also John R. D’Alessio, Exchange Act Release No. 47627, 2003 WL 

1787291, at *2 (Apr. 3, 2003) (stating that a broker who times “the purchase or 

sale of shares of a security for his own account so as to benefit from the price 

movement that follows execution of large customer orders, [engages in] a 

practice commonly known as trading ahead or frontrunning”), pet. denied, 380 

F.3d 112 (2d Cir. 2004). 

323 See Thomas A. Russo & Marlisa Vinciguerra, Financial Innovation and 

Uncertain Regulation: Selected Issues Regarding New Product Development, 69 

Tex. L. Rev. 1431, 1527–28 (1991); Lowenfels & Bromberg, 55 Alb. L. Rev. at 

313–21, 337; see, e.g., SEC v. Yang, 795 F.3d 674, 680 (7th Cir. 2015) (declining

to reach defendant’s argument that front running should never be considered 

fraudulent conduct under Section 10(b) and Rule 10b-5 because he had failed 

to preserve the issue). The Commission has largely left it to self-regulatory 

organizations—most recently the Financial Industry Regulatory Authority, 

Inc. (FINRA)—to regulate front running. See, e.g., Self-Regulatory 

Organizations; FINRA; Order Approving Proposed Rule Change, as Modified 

by Amendment No. 1, To Adopt Existing NASD IM-2110-3 as New FINRA Rule 

5270 (Front Running of Block Transactions) With Changes in the Consolidated 

FINRA Rulebook, 77 Fed. Reg. 55,519, 55,522 (Sept. 10, 2012) (approving 

adoption of FINRA Rule 5270); D’Alessio, 2003 WL 1787291, at *3, *7–9 

(affirming a violation of NYSE Rule 92 prohibiting front running); E.F. Hutton 

& Co., Exchange Act Release No. 25887, 1988 WL 901859, at *1, *4 (July 6, 
43

In Capital Gains, the Supreme Court found that scalping, a manipulative 

technique related to front running, violated the Advisers Act.

324 An investment 

adviser purchased shares of a stock for his own account, recommended the 

security to his clients, and then immediately sold his personal shares at a profit 

upon the stock’s gain due to his buy recommendation.325 The Court held that

one who

secretly trades on the market effect of his own 

recommendation may be motivated—consciously or 

unconsciously—to recommend a given security not 

because of its potential for long-run price increase (which 

would profit the client), but because of its potential for 

short-run price increase in response to anticipated 

activity from the recommendation (which would profit the 

adviser).

326

The Advisers Act required the “adviser to make full and frank disclosure of his 

practice of trading on the effect of his recommendations,” and his failure to do 

so was fraud.327

The conflict of interest in Capital Gains between the adviser and his 

clients is clear. As one commentator has noted: “Scalpers seek to move the 

market price of a security by triggering client investment action and to profit 

by taking action opposite to the clients immediately after the movement.”328 In 

 

1988) (affirming a violation of NASD rules); Smith, Barney, Harris Upham & 

Co., Exchange Act Release No. 21242, 1984 WL 472586, at *3–4 (Aug. 15, 1984) 

(affirming a finding by AMEX). Private firms often also have codes of ethics 

prohibiting front running. See, e.g., Div. Ex. 185 at 22 n.41 (Dr. Gibbons noted 

in his report that Deutsche Bank, Gibson’s former employer, explicitly 

prohibited front running).

324 Capital Gains, 375 U.S. at 181, 196–97; see David M. Bovi, Rule 10b-5 

Liability for Front-Running: Adding A New Dimension to the “Money Game”, 7 

St. Thomas L. Rev. 103, 106–07 (1994) (noting that scalping is sometimes 

confused with front running, but that the two practices are different).

325 Capital Gains, 375 U.S. at 181.

326 Id. at 196.

327 Id. at 196–97.

328 Harvey E. Bines & Steve Thiel, Investment Management Law and 

Regulation 807 (2d ed. 2004).
44

a sense, “Scalping is little more than price manipulation as an end in itself.”329

Front running “is less blatant a breach of the duty of loyalty than scalping,”

but is still a “deliberate subordination of the client’s interest.”330

Cases have usually analyzed front running as a violation of a broker’s duty 

of best execution, since the price obtained for the customer’s order may not be 

as favorable as it would have been had the customer’s order been executed 

first.

331 Whether or not the price obtained for a client order would have been 

the best price but for the investment adviser’s front running is, however, not a 

dispositive consideration. Under the Advisers Act, it is immaterial whether the 

conduct actually harmed the client or whether the adviser intended to harm 

the client.332 Investment advisers are fiduciaries “governed by the highest 

standards of conduct.”333 An investment adviser has not only a duty of best 

execution,334 but also a duty of undivided loyalty335 and an affirmative duty of 

 

329 Id.

330 Id.

331 See, e.g., United States v. Dial, 757 F.2d 163, 168–69 (7th Cir. 1985) 

(analyzing a broker’s practice of trading ahead of client under mail and wire 

fraud statutes); D’Alessio, 2003 WL 1787291, at *3–4 (analyzing a broker’s 

practice of trading ahead of a client under NYSE Rules).

332 See Capital Gains, 375 U.S. at 192.

333 Fundamental Portfolio Advisors, 2003 WL 21658248, at *15 (quoting 

Victor Teicher & Co., Exchange Act Release No. 40010, 1998 WL 251823 (May 

20, 1998), pet. granted in part on other grounds, 177 F.3d 1016 (D.C. Cir. 

1999)); see also Montford, 2014 WL 1744130, at *13 (“The ‘fundamental 

purpose of [the Advisers Act is] to substitute a philosophy of full disclosure for 

the philosophy of caveat emptor and thus ... achieve a high standard of 

business ethics in the securities industry.’” (quoting Capital Gains, 375 U.S. at

186) (alterations in original)).

334 See Clarke T. Blizzard, Advisers Act Release No. 2253, 2004 WL 1416184, 

at *2 (June 23, 2004).

335 See IMS/CPAs & Assocs., Securities Act Release No. 8031, 2001 WL 

1359521, at *8 (Nov. 5, 2001), pet. denied sub nom. Vernazza v. SEC, 327 F.3d 

851 (9th Cir. 2003).
45

utmost good faith and must eliminate or expose even potential conflicts of 

interest.336

The exact contours of front running need not be defined to capture or 

contemplate every form of misconduct. Here, it suffices to say that there is a 

potential conflict of interest when an investment adviser’s personal trading or

recommendation to close friends or relatives coincides with the adviser’s 

possession of confidential information about a client’s forthcoming trading 

plans in the same security. An adviser is “not entitled to benefit from the 

fiduciary relationship except to the extent provided for by fees and 

compensation the client expressly consents to pay.”337

Absent the client’s consent, it is a breach of an adviser’s fiduciary duties 

to use confidential client information to benefit himself or others—whether to 

avoid losses or realize gains.338 Moreover, front running can potentially 

 

336 See Capital Gains, 375 U.S. at 194; Montford, 2014 WL 1744130, at *13; 

Fundamental Portfolio Advisors, 2003 WL 21658248, at *15. “One activity 

specifically mentioned and condemned by investment advisers” leading up to 

the passage of the Advisers Act “was trading by investment [advisers] for their 

own account in securities in which their clients were interested.” Capital 

Gains, 375 U.S. at 189. Although the Supreme Court did not go as far as to say 

that all such personal trading is prohibited, there is little doubt that it could 

lead to conflicts of interest. See id. at 196.

337 Feeley & Willcox Asset Mgmt. Corp., Securities Act Release No. 8249, 2003 

WL 22680907, at *12 (July 10, 2003).

338 See Thomas W. Heath, III, Exchange Act Release No. 59223, 2009 WL 

56755, at *4 (Jan. 9, 2009) (observing that the duty to maintain confidentiality 

of client information, which “is grounded in fundamental fiduciary principles,”

is “one of the most fundamental ethical standards in the securities industry”), 

pet. denied, 586 F.3d 122 (2d Cir. 2009); Restatement (Third) of Agency § 8.01 

(2006) (“Unless the principal consents, the general fiduciary principle ...

requires that an agent refrain from using the agent’s position or the principal’s 

property to benefit the agent or a third party.”); id. § 8.05 (setting forth an 

agent’s duty “not to use or communicate confidential information of the 

principal for the agent’s own purposes or those of a third party,” and stating 

that “it is a breach of an agent’s duty to use confidential information of the 

principal for the purpose of effecting trades in securities although the agent 

does not reveal the information in the course of trading”). The same principle 

is expressed in case law on insider trading. See United States v. O’Hagan, 521 

U.S. 642, 652 (1997) (“[A] fiduciary’s undisclosed, self-serving use of a 

principal’s information to purchase or sell securities, in breach of a duty of 

loyalty and confidentiality, defrauds the principal of the exclusive use of that 
46

undermine the client’s interests or involve conflicting motivations that cannot 

be adequately judged in hindsight. For example, the adviser might usurp a 

trading opportunity that otherwise should have gone to the client. Or the

adviser’s front running, even in small quantities, could cause unexpected price 

movements in a thinly traded stock. The adviser could also be motivated, even 

in part, to execute a client’s block trade so that he or someone close to him can 

realize gains before the expiration date of previously purchased put option 

contracts in the same security. None of these scenarios need be proven or 

realized, however. The point is that front running poses the potential for the 

adviser’s outside interests to conflict with those of the client. This makes the 

practice especially problematic.339

Given the potential conflict in this context, the client must be permitted 

to evaluate the adviser’s “overlapping motivations” and “decid[e] whether an 

adviser is serving ‘two masters’ or only one.”340 And if the client does not 

consent, then the adviser must abstain from his outside trading or 

recommendations to others. Requiring anything less—or subjecting the client’s 

interests to hindsight analysis—would undermine the Advisers Act’s manifest 

purpose.

5. Gibson’s trading ahead of the Fund violated fiduciary duties and posed 

potential conflicts of interest. 

Gibson’s sale of personal shares on September 26, 2011, constituted a 

fraud in violation of the Advisers Act. When he sold, he was actively 

 

information.”); Dirks v. SEC, 463 U.S. 646, 662 (1983) (“[A] purpose of the 

securities laws was to eliminate ‘use of inside information for personal 

advantage.’” (quoting Cady, Roberts & Co., Exchange Act Release No. 6668, 

1961 WL 60638, at *4 n.15 (Nov. 8, 1961))).

339 In discussing conflicts in the investment-adviser context, the Supreme 

Court relying on precedent on the problems that flow from contingent-fee 

arrangements for obtaining government contracts, noted that a person “who 

occupies confidential and fiduciary relations toward another” should remove 

“any temptation” to violate those trust relations. Capital Gains, 375 U.S. at 

196 n.50 (quoting United States v. Miss. Valley Generating Co., 364 U.S. 520, 

550 n.14 (1961)). The Court further posited: “The objection rests in their 

tendency, not in what was done in the particular case. The court will not 

inquire what was done. If that should be improper it probably would be hidden, 

and would not appear.” Id. (ellipses omitted) (quoting Miss. Valley Generating, 

364 U.S. at 550 n.14). 

340 Id. at 196.
47

negotiating a block sale of millions of shares of the Fund’s TRX position. The 

particulars of that impending sale was not known to anyone but Gibson, his 

broker Sands, and maybe Hull, rendering the information non-public.341

Gibson testified that he sold his personal shares and those of his girlfriend to 

earn some liquidity, but the timing of the sale suggests that he was attempting

to avoid potential losses by selling the shares ahead of the Fund’s impending 

block sale. Perhaps he was concerned that the Fund’s block sale, even though 

it was negotiated in the upstairs market, could lower TRX’s share price.342 But 

whatever the reason, he should not have engaged in outside trading while 

negotiating his client’s trades in the same security. As discussed earlier, the 

Fund lacked any independent disclosure mechanism to evaluate Gibson’s 

outside activities. He failed to fully consider—and lacked the independence to 

consider—the impact that his personal trading may have had on the Fund. In 

trading when he did, Gibson breached his fiduciary duties to his client and 

created a potential conflict of interest. Whether or not, in hindsight, his actions 

actually harmed the Fund is irrelevant.

Gibson’s purchase of put options for himself and in Francesca Marzullo’s 

account, and his recommendation to his father to purchase puts also 

constituted a fraud. When he purchased the puts, he used the Fund’s 

confidential information that it was in the process of liquidating its TRX 

holdings for his own potential advantage and the advantage of those close to 

him. The Fund never waived the use of its information for its adviser’s personal 

advantage. Moreover, by all appearances, when Gibson bought $4 puts for 

himself and others but not for the Fund, he was favoring his own position over 

his client’s. He explained at the hearing why he did this: puts are not free, and 

he had assessed that the Fund should not take on the additional financial 

burden because the puts might have expired worthless.343 Still, he lacked the 

independence necessary to evaluate the conflict between the position he was 

taking for himself and those close to him versus the one appropriate for the 

 

341 Although market participants knew that the Fund was willing to consider 

offers for its TRX shares because Gibson previously sought to sell the Fund’s 

TRX shares at the end of August, this fact does not change the confidential 

nature of the block sale on September 27, 2011. See Resp’t Br. 21. No one aside 

from Gibson and his broker knew exactly what the Fund intended to do or 

when, even if some knew that the Fund was willing to negotiate a transaction.

342 See Tr. 1022; cf. Div. Ex. 187 at 108 (Gibson acknowledged that large sales 

of a stock—at least ones into the market—generally lowered its share price).

343 Tr. 1450–51.
48

Fund.344 Finally, at the same time as he was negotiating the Fund’s sale, 

Gibson was seeking to mitigate losses through a hedging strategy of buying 

put options. He thus lacked the independence to decide the appropriate timing 

of the Fund’s liquidation of its TRX position, as that decision could significantly 

affect the value of those puts.

On each occasion, Gibson’s misconduct demonstrated scienter. Even 

though he never intended to harm the Fund, he was a licensed securities 

professional who was well aware of his fiduciary responsibilities.345 And he 

knew that front running was a problematic practice.346 In this context, Gibson’s 

decision to use the Fund’s non-public information to protect his and others’ 

investments was “an extreme departure from the standards of ordinary care”

which created conflicts with his duties “so obvious” that he “must have been 

aware of” them.347

Contrary to Gibson’s argument, the disclosures in the offering documents 

were insufficient to alert investors to the potential conflicts created by Gibson’s 

front running.

348 The offering memorandum allowed Gibson to invest in the 

same securities as the Fund, advise his other clients in ways that differed from 

his advice to the Fund, and conduct business in competition with the Fund.349

It noted that Gibson might have conflicts of interest when effecting 

transactions for the Fund and when transacting in other entities in which he 

 

344 See Commission Interpretation Regarding Standard of Conduct for 

Investment Advisers, 84 Fed. Reg. 33,669, 33,677 (July 12, 2019) (“When 

allocating investment opportunities among eligible clients, an adviser may face 

conflicts of interest either between its own interests and those of a client or 

among different clients. If so, the adviser must eliminate or at least expose 

through full and fair disclosure the conflicts associated with its allocation 

policies, including how the adviser will allocate investment opportunities, such 

that a client can provide informed consent.”); see also Montford, 2014 WL 

1744130, at *16 (“The soundness of [an adviser’s] investment advice is 

irrelevant to their obligation to be truthful with clients and to disclose a conflict 

of interest”).

345 Tr. 77–78.

346 See Div. Ex. 68; Tr. 235–36, 1426–27.

347 Montford, 2014 WL 1744130, at *14 n.108 (quoting Disraeli, 2007 WL 

4481515, at *5).

348 Resp’t Br. at 19–20.

349 Div. Ex. 24 at 19.
49

had a financial interest.350 But “for disclosure to be full and fair, it should be 

sufficiently specific so that a client is able to understand the material fact or 

conflict of interest and make an informed decision whether to provide 

consent.”351 The offering memorandum speaks in generalities. It was not 

specific enough to disclose that Gibson might front run the Fund for his own 

personal advantage and the advantage of those close to him. The Fund did not 

consent to Gibson’s behavior nor were there any conflict resolution 

mechanisms in place.

352

As a result of his front running, Gibson violated Advisers Act Section

206(1) and 206(2).

6. Gibson violated fiduciary duties when he arranged the Fund’s purchase 

of Hull’s shares.

On October 18, 2011, during the period when Gibson and Hull were trying 

to sell the Fund’s entire position in TRX, Gibson had the Fund purchase 

680,636 TRX shares from Hull for the closing market price that day. Hull was 

not charged a commission, but the Fund paid a commission when it later sold 

Hull’s shares together with its remaining TRX shares in a market transaction. 

The Division argues that Gibson had a conflict of interest that he recklessly 

failed to disclose when he executed the Hull transaction.353

The Division claims that Gibson burdened the Fund with additional TRX 

shares at a time when he was trying to sell the Fund’s position in TRX, and 

that the only plausible explanation was that Gibson intended to benefit Hull 

at the Fund’s expense.354 The evidence, however, shows that Gibson suggested 

consolidating Hull’s TRX shares with the Fund’s because he believed that it 

 

350 Id.

351 Commission Interpretation, 84 Fed. Reg. at 33,676.

352 Investors essentially gave Gibson control over how conflicts would be 

managed, as the offering documents lean on his expertise and provide no 

mechanism for conflict disclosure or remediation should one arise. See Div. Ex. 

24 at 17. If anything, this makes Gibson’s decision to breach the investors’ trust 

and front run the Fund even more problematic.

353 Div. Br. 20–26.

354 Id. at 20–21, 24–25.
50

might put the Fund in a better position to liquidate its TRX position.355 As 

noted earlier, Bystrom opined that consolidating shares made block 

transactions easier because buyers would then know that no shares were being 

left behind.356 Gibson’s experiences with Sequiera and Sands provided 

examples of this, although those experiences also show that the Fund did not

necessarily need to purchase Hull’s shares for them to be sold as a block.

357 In 

short, it is true, as the Division maintains, that Hull’s shares did not 

necessarily need to be consolidated with the Fund’s in one account to facilitate 

their sale,358 but because Gibson was the one to suggest the consolidation, the 

Division has not established that he lacked a good-faith belief that it would be 

helpful to the Fund. I cannot retrospectively critique Gibson’s judgment on the 

current record. 

But this does not mean that the transaction was free of conflicts of 

interest. As the Division argues, when Gibson arranged the trade with Hull on 

the Fund’s behalf, Gibson owed Hull over $600,000 and Hull was paying 

Gibson’s salary for advising the Fund.359 Gibson had a clear and obvious 

conflict of interest. His impartiality in arranging any purchase from Hull for 

the Fund would thus be questionable, regardless of the transaction’s merit. In 

fact, Gibson testified that he was acting as an adviser to both Hull and the 

Fund on this transaction.360 This is the kind of situation where an advisory 

client must “be permitted to evaluate such overlapping motivations, through 

appropriate disclosure, in deciding whether an adviser is serving ‘two masters’

or only one.”361

 

355 See Div. Ex. 94.

356 Tr. 1567; Resp’t Ex. 228 at 6.

357 Resp’t Ex. 62 at 1; Resp’t Ex. 93 at 1–2; Tr. 1404–05.

358 Div. Reply at 9–10.

359 Div. Br. 23–24; Div. Reply at 9.

360 Tr. 261.

361 Capital Gains, 375 U.S. at 196; cf. Frey v. Fraser Yachts, 29 F.3d 1153, 

1156 (7th Cir. 1994) (a broker and fiduciary “cannot act as the representative 

for both buyer and seller in the same transaction unless both parties are fully 

aware of such dual representation and consent to it” and must “disclose to each 

all facts which he knows or should know would reasonably affect the judgment 

of each in permitting such dual agency” (quoting Quest v. Barge, 41 So.2d 158, 

160 (Fla. 1949))); UBS AG, Stamford Branch v. HealthSouth Corp., 645 F. 
51

As mentioned earlier, the Fund lacked any independent disclosure 

mechanism. It is not possible to say how disclosure by Gibson would have 

played out. It’s also not possible to say on the current record that the Fund’s 

purchase of Hull’s shares harmed the Fund or that it lacked a legitimate 

purpose. The problem is not that Gibson caused the Fund to buy Hull’s shares 

but rather that he did so while operating under a serious, undisclosed conflict

of interest.

362 It thus suffices to say that Gibson’s conduct failed to account for 

the potential conflict of interest and he failed to take measures to remedy or 

eliminate the conflict before executing the transaction.

Gibson’s conduct was reckless. He knew of his fiduciary responsibilities. 

It should have been obvious to him that a transaction with Hull, to whom he 

owed so much money and on whose salary payments he depended, conflicted

with his duties to the Fund. Again, it does not matter whether Gibson believed 

the transaction would promote the Fund’s interest. There were still obvious 

conflicts that Gibson recklessly disregarded in carrying out the Hull

transaction.

I reject, however, the Division’s arguments that the Hull transaction

violated the terms of the Fund’s offering memorandum. The Division asserts 

that the sale was not done “at the current market price” as required.363 But

TRX closed at $3.60 that day and the Fund purchased at $3.60 per share. The 

transaction was thus in accordance with the plain meaning of words “current 

market price.” 

The Division also contends that the transaction contravened the offering 

memorandum because the Fund paid an extra commission to sell Hull’s shares 

when it liquidated its holdings on November 10.364 But the offering 

memorandum proscribed only “extraordinary brokerage commissions ... in 

connection with ... [a] transaction,” and not “customary transfer fees or 

 

Supp. 2d 135, 144 (S.D.N.Y. 2008) (explaining that under New York law, a 

fiduciary violates his duty if he “omits to disclose any interest which would 

naturally influence his conduct”).

362 It is true that Hull sold without giving a block discount or paying a 

commission. But, as explained below, it’s not clear that the lack of a block 

discount was problematic, and the failure to charge a commission was 

marginal compared to the conflict of interest.

363 Div. Ex. 24 at 19; Div. Br. 21–22.

364 Div. Br. 22–23.
52

commissions.”365 Even if the commission paid on November 10 can be 

considered “in connection with” the purchase of Hull’s shares on October 18—

an issue I do not decide—there is no evidence that it was not a “customary” 

commission usually charged for such transactions, let alone evidence that it 

was “extraordinary.”

The Division argues that notwithstanding the offering memorandum, 

$3.60 per share was not the appropriate price for this transaction.

366 As noted 

above, if Hull had sold his shares into the market instead of to the Fund, then 

given the stock’s trading volume, it would likely have depressed TRX’s share 

price and he would not have been able to sell for $3.60 per share.367 But Hull 

did not sell his shares into the market, and the Division has not shown that a 

block discount is always appropriate in upstairs-market transactions like this 

one.

368 Even if some discount was warranted, it is not apparent what price 

would have been more appropriate. Dr. Gibbons opined that Gibson could have 

hired a valuation expert to determine fair market value, but presumably such 

experts charge for their services.

369 I cannot determine on this record whether 

it would have been more cost effective for the Fund to hire an expert to value 

the shares at a discount or just to pay the market price of $3.60 a share. Maybe, 

as Dr. Gibbons opined, the Fund could have bought Hull’s stock slowly over 

time in the market, and then each transaction would have been at market 

price.370 But nothing required the Fund to structure the transaction in this 

 

365 Div. Ex. 24 at 19.

366 Div. Br. 21–22; Div. Reply at 10–11.

367 See supra at 24–25.

368 The Division tried to show that on several occasions when the Fund sold 

its shares in the upstairs market, it had to give a block discount, but Gibson 

demonstrated that this was untrue. Tr. 265–78. Even though Dr. Gibbons 

opined that the Fund did not purchase Hull’s shares at the current market 

price—because the sale did not occur in the market—he did not specifically say 

that Gibson should have obtained a block discount for the Fund in the Hull 

transaction. See Tr. 945–46, 950–52. And Bystrom said that the

appropriateness of a block discount depends on the situation, and sometimes 

buyers pay a premium to buy a stock. Tr. 1628, 1630.

369 Tr. 951.

370 See Tr. 950–51.
53

manner. In any event, whether or not the Fund charged Hull the wrong price,

Gibson was reckless in ignoring the conflicts inherent in the transaction.

Finally, the Division argues that because the Fund charged Hull no 

commission, the transaction allowed Hull to avoid paying a commission when 

the Fund ultimately sold his shares along with its own, and this needlessly 

favored Hull.

371 The Division is right about this. Even though Gibson concluded

that it was in the Fund’s best interest to purchase Hull’s shares, he should 

have conducted the sale in a manner that did not favor Hull in any manner. 

Because it was likely that the Fund would pay a commission when it sold its 

shares into the market, Gibson should have recouped those costs for the Fund 

by charging Hull a commission when purchasing his shares or disclosed what 

he was doing.372 Yet, the Fund paid at most $6,866 extra to sell Hull’s shares, 

of which Hull effectively paid more than 80% because of his ownership stake 

in the Fund.

373 Gibson’s failure to disclose this aspect of the transaction only 

marginally adds to his reckless behavior surrounding this transaction.

Accordingly, Gibson violated Advisers Act Section 206(1) and (2) for his 

conduct related to the Hull transaction.

7. Gibson violated Exchange Act Section 10(b) and Rule 10b-5.

The Division also alleges that Gibson’s front running and the Hull 

transaction violated Exchange Act Section 10(b) and Rule 10b-5(a) and (c).374

Section 10(b) prohibits any person, using any means or instrumentality of 

interstate commerce or the mails, “[t]o use or employ, in connection with the 

purchase or sale of any security ... any manipulative or deceptive device or 

contrivance” that contravenes Commission rules promulgated under this 

section.375 Rule 10b-5(a) and (c) prohibit any person, directly or indirectly, from

“employ[ing] any device, scheme, or artifice to defraud,” and from “engag[ing] 

in any act, practice, or course of business which operates or would operate as a 

fraud or deceit upon any person.”376 The terms used in Rule 10b-5(a) and (c) 

 

371 Div. Br. 22–23; Div. Reply 11.

372 Indeed it seems that the offering memorandum would have permitted the 

Fund to charge Hull a “customary” commission. See Div. Ex. 24 at 19.

373 See supra at 25; see also supra nn. 205–06.

374 OIP ¶ 54; Div. Br. 34–36.

375 15 U.S.C. § 78j(b).

376 17 C.F.R. § 240.10b-5(a), (c) (emphasis added).
54

“‘provide a broad linguistic frame within which a large number of practices 

may fit’” and “connote a broad proscription against conduct that deceives or 

misleads another.”377 The Division must demonstrate scienter to establish any 

violation of Section 10(b) and Rule 10b-5.378

Gibson’s conduct involved interstate commerce and the purchase and sale 

of TRX stock. As to whether his actions were a fraudulent scheme or practice, 

“for the purpose of rule 10(b)-5, an investment adviser is a fiduciary and 

therefore has an affirmative duty of utmost good faith to avoid misleading 

clients. This duty includes disclosure of all material facts and all possible 

conflicts of interest.”379 And “nondisclosure in violation of a fiduciary duty 

involves ‘feigning fidelity’ to the person to whom the duty is owed and is 

therefore deceptive.”380 Gibson breached his duty to the Fund because he 

recklessly failed to disclose or otherwise remediate his conflicts of interest.381

This deceptive and fraudulent conduct violated Exchange Act Section 10(b) and 

Rule 10b-5(a) and (c).

8. Gibson violated Advisers Act Section 206(4) and Rule 206(4)-8.

The Division also alleges that Gibson’s conduct violated Advisers Act 

Section 206(4) and Rule 206(4)-8.382 Advisers Act Section 206(4) prohibits an 

investment adviser from engaging “in any act, practice, or course of business 

which is fraudulent, deceptive, or manipulative” as further prescribed by

Commission rule.383 Rule 206(4)-8 makes it prohibited under Section 206(4) 

for any investment adviser to a pooled investment vehicle

to: 

 

377 Dennis J. Malouf, Securities Act Release No. 10115, 2016 WL 4035575, at 

*7 (July 27, 2016) (quoting SEC v. Clark, 915 F.2d 439, 448 (9th Cir. 1990)), 

pet. denied, 933 F.3d 1248 (10th Cir. 2019).

378 Aaron v. SEC, 446 U.S. 680, 701–02 (1980).

379 Laird v. Integrated Res., Inc., 897 F.2d 826, 835 (5th Cir. 1990).

380 Malouf, 2016 WL 4035575, at *8 (quoting O’Hagan, 521 U.S. at 655).

381 Vernazza, 327 F.3d at 859 (“It is indisputable that potential conflicts of 

interest are ‘material’ facts with respect to clients and the Commission.”).

382 OIP ¶ 57; Div. Br. 30–34.

383 15 U.S.C. § 80b-6(4).
55

(1) Make any untrue statement of a material fact or to 

omit to state a material fact necessary to make the 

statements made, in the light of the circumstances under 

which they were made, not misleading, to any investor or 

prospective investor in the pooled investment vehicle; or

(2) Otherwise engage in an act, practice, or course of 

business that is fraudulent, deceptive, or manipulative 

with respect to any investor or prospective investor in the 

pooled investment vehicle.384

The Division need not prove scienter to establish a violation of Section 206(4); 

a showing of negligence is sufficient.385

Gibson violated Section 206(4) and Rule 206(4)-8 for the conduct discussed

above. The rule applies because the Fund was a type of pooled investment 

vehicle.

386 And Gibson’s potential conflicts with the Fund would have been 

material information to investors.387 Since, for the reasons discussed earlier, 

Gibson’s actions constituted a fraud within the meaning of the securities laws, 

he also deceived investors.

Gibson argues that he could not have violated this rule because he owed a 

duty exclusively to the Fund and not to its investors.388 But Gibson misreads

the rule. It is true that because he breached no fiduciary duty to investors, he 

did not directly defraud them under Section 206(2) through his lack of 

disclosure.389 By its terms, however, Rule 206(4)-8 applies even when there is 

no fiduciary duty to the investors.

390 Conduct that operates as a fraud against 

 

384 17 C.F.R. § 275.206(4)-8.

385 Steadman, 967 F.2d at 647.

386 See 17 C.F.R. § 275.206(4)-8(b); see also 15 U.S.C. § 80a-3(a)(1); 

Prohibition of Fraud by Advisers to Certain Pooled Investment Vehicles, 72 

Fed. Reg. 44,756, 44,758 (Aug. 9, 2007); Tr. 140; Div. Ex. 31 at 2. 

387 Vernazza, 327 F.3d at 859.

388 Resp’t Br. 26–27 (citing Goldstein, 451 F.3d at 881).

389 See Prohibition of Fraud, 72 Fed. Reg. at 44,760 (“Rule 206(4)-8 does not 

create under the Advisers Act a fiduciary duty to investors or prospective 

investors in a pooled investment vehicle not otherwise imposed by law.”).

390 See 17 C.F.R. § 275.206(4)-8; Inv. Adviser Advertisements, 84 Fed. Reg. at 

67,527; SEC v. Quan, No. 11-cv-723, 2013 WL 5566252, at *16 n.10 (D. Minn. 
56

the Fund can also by extension be materially misleading as to investors under 

Rule 206(4)-8. The investors were deceived by Gibson’s failure to disclose his 

front running and the Hull transaction or abstain from those transactions, 

which brings his conduct within the ambit of Section 206(4) and Rule 206(4)-8.

In fact, this is exactly the type of misconduct the rule was designed to 

capture.391

9. Gibson is not charged with making false statements to investors 

regarding Geier Group and Geier Capital, and, in any event, such 

misstatements appear immaterial.

Gibson contends that two additional allegations should not be grounds for 

liability under Rule 206(4)-8: (1) his failure to disclose the dissolution of Geier 

Group and the Georgia Geier Capital; and (2) his solicitation of two investors

for the Fund using offering documents falsely stating that Geier Group was a 

registered investment adviser at the time.392 I agree. Although the OIP 

mentions these facts—and they were proven at the hearing—the OIP 

specifically predicates liability on the front running and the Hull 

transaction.393 Furthermore, the Division, which does not contend in its 

opening brief that these failures or false statements give rise to liability, failed 

to preserve this argument.

394 The OIP appears to mention these matters for a 

 

Oct. 8, 2013) (“the existence of a fiduciary duty is not required to prove a 

violation of Rule 206(4)-8”), aff’d, 870 F.3d 754 (8th Cir. 2017).

391 See Prohibition of Fraud, 72 Fed. Reg. at 44,756–57 (explaining that the 

rule, which the Commission promulgated in response to Goldstein, “clarifies 

that an adviser’s duty to refrain from fraudulent conduct under the federal 

securities laws extends to the relationship with ultimate investors” in pooled 

investment vehicles), 44,759 (“section 206(4) encompasses ‘acts, practices, and 

courses of business as are * * * deceptive,’ thereby reaching conduct that is 

negligently deceptive as well as conduct that is recklessly or deliberately 

deceptive”).

392 Resp’t Br. 27.

393 OIP ¶¶ 2–11, 14, 15; see supra at Facts Section 4.

394 See Dembski, 2017 WL 1103685, at *8. In its response to Gibson’s proposed 

findings of fact and conclusions of law, the Division counters that these facts 

were material, but does not elaborate. See Div. Responses to Resp’t’s Proposed 

Findings of Fact & Conclusions of Law ¶ 135.
57

different reason: to show that despite the dissolution of Geier Group and Geier 

Capital, Gibson was still the Fund’s investment adviser.395

In any event, the Division failed to prove that the status of Geier Group 

or Geier Capital was material to investors. Most, if not all of the Fund’s

investors invested because of their personal relationships with Hull and 

Gibson, and knew that Gibson and Hull were managing the Fund.396 Moreover, 

Gibson testified that after Geier Group was dissolved, his role as adviser to the 

Fund did not change.397 And the Fund’s operating agreement stated that a 

different entity could be substituted for Geier Group at the sole discretion of 

the Fund’s managing member.398 Gibson’s false statements about Geier Group

and his failures to disclose the dissolution of Geier Group and Geier Capital

did not violate Rule 206(4)-8 because the Division did not establish their 

materiality.

Sanctions

The Division requests that Gibson be ordered to cease and desist from 

violations of the securities laws, be permanently barred from the securities 

industry under the Advisers Act and the Investment Company Act, disgorge 

$82,088, and pay civil money penalties of $825,000.399 I impose a portion of the 

sanctions the Division requests for Gibson’s misconduct.

1. Industry bars.

Advisers Act Section 203(f) authorizes the Commission to bar or suspend 

any person from associating with various segments of the securities industry 

if, in relevant part, that person willfully violated any provision of the Advisers 

Act, Exchange Act, or rules promulgated under either Act; was associated with 

an investment adviser at the time of the misconduct; and the sanction is in the 

public interest.

400

 

395 See OIP ¶¶ 14, 15.

396 See, e.g., Tr. 529, 541, 1337–38.

397 Tr. 184, 187.

398 Div. Ex. 21 at 3.

399 Div. Br. at 37–43.

400 15 U.S.C. § 80b-3(e)(5), (f).
58

Investment Company Act Section 9(b) authorizes the Commission to 

prohibit any person, either permanently or temporarily, from serving or acting 

in various capacities with respect to a registered investment company, if that

person has willfully violated a provision of the Advisers Act or Exchange Act, 

or a rule promulgated under them; and the sanction is in the public interest.

401

In considering the public interest, the Commission starts with the factors 

set out in Steadman v. SEC.

402 These factors include:

the egregiousness of a respondent’s actions, the isolated 

or recurrent nature of the infraction, the degree of 

scienter involved, the sincerity of the respondent’s 

assurances against future violations, the respondent’s 

recognition of the wrongful nature of his or her conduct, 

and the likelihood that the respondent’s occupation will 

present opportunities for future violations.403

The Commission also considers the public at large,404 the welfare of 

investors as a class, standards of conduct in the securities business 

generally,405 and the threat a respondent poses to investors and the markets 

in the future.406 The public-interest inquiry is flexible, and no single factor is 

dispositive.407

 

401 15 U.S.C. § 80a-9(b)(2).

402 603 F.2d 1126, 1140 (5th Cir. 1979), aff’d on other grounds, 450 U.S. 91 

(1981); see Brendan E. Murray, Advisers Act Release No. 2809, 2008 WL 

4964110, at *10 (Nov. 21, 2008).

403 Schield Mgmt. Co., Exchange Act Release No. 53201, 2006 WL 231642, at 

*8 (Jan. 31, 2006).

404 Christopher A. Lowry, Advisers Act Release No. 2052, 2002 WL 1997959, 

at *6 (Aug. 30, 2002), pet. denied, 340 F.3d 501 (8th Cir. 2003).

405 Arthur Lipper Corp., Exchange Act Release No. 11773, 1975 WL 163472, 

at *15 (Oct. 24, 1975), penalty modified, pet. otherwise denied, 547 F.2d 171 (2d 

Cir. 1976).

406 Tzemach David Netzer Korem, Exchange Act Release No. 70044, 2013 WL 

3864511, at *5 (July 26, 2013). 

407 Conrad P. Seghers, Advisers Act Release No. 2656, 2007 WL 2790633, at 

*4 (Sept. 26, 2007), pet. denied, 548 F.3d 129 (D.C. Cir. 2008).
59

Gibson acted as an investment adviser to the Fund, and was therefore 

associated with an adviser for the purposes of the sanctions requested under 

the Advisers Act.

408 His violations were willful because he intended to take the 

actions that resulted in the violations.

409

Turning to the public interest, the Commission considers misconduct 

involving a breach of fiduciary duty to be egregious.410 In September 2011,

Gibson sold personal shares ahead of the Fund’s sale, and in October and 

November, he purchased and recommended that others purchase put options 

while the Fund was trying to find a buyer for its remaining TRX shares. In 

doing so, Gibson recklessly used his client’s confidential information without 

consent to benefit himself and those close to him, which created potential 

conflicts with his client. He further recklessly engaged in the Hull transaction

in October 2011, despite his numerous conflicts of interest with respect to Hull. 

Gibson’s recurrent failures to appropriately disclose or remediate his conflicts 

of interest breached his fiduciary duty and were therefore egregious. Given 

that Gibson was a securities professional with several exam licenses, his 

misconduct—committed with scienter—cannot be excused.

411

Gibson has not expressed remorse or made any assurances against future 

violations. Although he is not directly involved in the securities industry now, 

given his relative youth, he could work in the industry in the future. Gibson 

 

408 Anthony J. Benincasa, Investment Company Act of 1940 Release

No. 24854, 2001 WL 99813, at *2 (Feb. 7, 2001) (a person who “function[s] as 

an investment adviser in an individual capacity ... meets the definition of a 

‘person associated with an investment adviser’”); Alexander V. Stein, Advisers 

Act Release No. 1497, 1995 WL 358127, at *2 (June 8, 1995) (“[A]uthority to 

proceed under Section 203(f) ... rest[s] on whether or not an entity or 

individual in fact acted as an investment adviser”).

409 See Wonsover v. SEC, 205 F.3d 408, 413–14 (D.C. Cir. 2000) (willfulness 

means the intentional commission of the act that constitutes the violation of 

the securities laws; there is no requirement that the actor be aware that he or 

she is violating any statutes or regulations); accord Robare Grp., 922 F.3d at 

479.

410 James S. Tagliaferri, Securities Act Release No. 10308, 2017 WL 632134, 

at *6 (Feb. 15, 2017).

411 See Blizzard, 2004 WL 1416184 at *5 (“Securities professionals are 

required to be knowledgeable about, and to comply with, requirements to 

which they are subject.”).
60

presents some risk to the investing public, particularly since the “existence of 

a violation raises an inference that it will be repeated.”

412

In a typical case in which a respondent committed fraud and showed no 

remorse, consistent with Commission precedent, I would impose a permanent 

bar and be disinclined to give the individual a second chance.413 But this is not 

a typical case and there are several mitigating factors. 

First, there is no evidence that Gibson intended to harm the Fund. When 

he liquidated the personal accounts on September 26, he believed that the 

small size of his personal trades would have no effect on the Fund’s impending 

sale.414 Indeed, when he traded, it was unclear when the Fund’s sale would go 

through. Gibson’s front running is thus different from a case in which a broker 

holds a client’s order and then executes personal trades immediately ahead of 

a client’s trades, which could lead to the client receiving a worse execution than 

the broker.415 And the puts Gibson purchased for himself were hedging 

transactions; Gibson was not taking a short position contrary to the Fund’s 

long one.

416 He was nearly insolvent because Hull required him to execute a 

promissory note he didn’t need and was trying to protect his own investments

rather than trying to harm the Fund. The same is also true with regard to the 

Hull transaction. Although he was deeply conflicted, the evidence shows that 

 

412 Korem, 2013 WL 3864511, at *6 n.50 (quoting Geiger v. SEC, 363 F.3d 481, 

489 (D.C. Cir. 2004)).

413 See id. at *5 (“Ordinarily, and in the absence of evidence to the contrary, 

it is in the public interest to bar a respondent who is enjoined from violating 

the antifraud provisions.”); see, e.g., Stanley Jonathan Fortenberry, Initial 

Decision Release No. 748, 2015 WL 860715, at *32–33, *35 (ALJ Mar. 2, 2015).

414 Tr. 1424.

415 See, e.g., Dial, 757 F.2d at 168–70; D’Alessio, 2003 WL 1787291, at *3.

416 The puts Gibson purchased for Francesca Marzullo might be different, 

although the record is not entirely clear. On the one hand, she was not a Fund 

investor and owned no TRX shares in late October and early November 2011, 

which suggests that her puts were not hedges. And although Gibson testified 

that he purchased Ms. Marzullo’s puts to hedge her father’s position in the 

Fund, he later lost her profits in other options trades. This fact diminishes the 

credibility of Gibson’s explanation. On the other hand, these facts are not 

strictly contradictory: it is possible that Gibson purchased the puts to hedge 

Giovanni Marzullo’s position in the Fund and later decided to risk the profits 

in other trades.
61

Gibson thought the purchase of Hull’s shares would improve the Fund’s

chances of selling its remaining shares. And in addition to the fact that Gibson 

did not intend to harm the Fund, it is not clear that his front running 

transactions or the Fund’s purchase of Hull’s shares actually caused investors

any significant losses.

Second, Gibson’s lack of remorse must be seen in context. Throughout this 

proceeding, the Division has claimed that: Gibson misled investors by telling 

them that he still had faith in TRX even though he privately believed it was 

failing; and gave Hull a “sweetheart” deal by dumping his shares on the Fund 

after the decision had been made to exit TRX.417 At times, the Division has also 

suggested that by purchasing puts, Gibson was taking a short position in

TRX.418 The record does not support these claims. I therefore do not hold

against Gibson his vigorous defense of these particular charges. Still, Gibson’s 

reckless disregard of his fiduciary duties is on its own a serious matter which 

he has failed to acknowledge.

Finally, Gibson ended up in a nearly impossible situation as investment 

adviser to the Fund. No one presented evidence about why he left Deutsche 

Bank in early 2009, but within a year after he left, he found himself, at about 

27 years of age, “managing” a $32 million fund involving not just his father’s 

business partner, Hull, but also Hull’s contemporaries and their children, and 

Gibson’s family and his girlfriend’s family.

Gibson only received this opportunity because Hull was his father’s 

business partner. And although Gibson’s name was on Fund documents, 

Gibson knew Hull was the Fund’s ultimate decision-maker and that he was 

not in a position to question Hull’s judgment.419 Moreover, Hull enjoyed the 

respect of a large portion of his community. The pressure all of this might have 

placed on Gibson was evidenced at times in Gibson’s over-the-top and

desperate sounding e-mail and phone communications.

 

417 See, e.g., Div. Br. 3–4, 19–21, 24–25.

418 See OIP ¶ 45; Tr. 49, 301–03. 

419 Hull described himself as irascible. Tr. 568, 583. From watching his 

testimony and demeanor, that description is apt. It is clear that he has little 

tolerance for incompetence. Given this trait plus Hull’s forceful personality, 

experience, and standing in his community and among his peers, it would have 

been difficult for Gibson—at age 26 or 27 with no prior advisory experience—

to question Hull’s judgment if he disagreed with Hull. 
62

What’s more, this opportunity came with a significant string attached. 

Gibson and his family had to be all in. Hull required Gibson and his family to 

be aligned with Hull and the Fund. As a condition to managing the Fund, Hull 

required Gibson to invest his entire net worth in the Fund, and even loaned 

him money to do so, which increased the pressure on him.420 This meant that 

if the Fund’s investments declined, Gibson and those close to him would feel 

that decline the most. Gibson recalled that Hull required:

that at all times, over any period of time -- a year, a 

month, a week, a day, an hour -- at every point in time, 

that if the securities or investments that we owned in that 

fund declined, I would lose more than other investors and 

that the individuals close to me and everything that 

mattered to me in my life would be exposed in that 

regard.421

And when Gibson wanted to repay Hull’s loan, Hull refused to let him.422

Additionally, in late 2010, Hull decided to invest all the Fund’s money in one 

stock, TRX, which made Gibson’s fortunes even more precarious.423

In hindsight, the problems with this situation are obvious. The entire 

setup created a conflict of interest between Gibson and the Fund. But at the 

time and given Gibson’s circumstance, it is not difficult to understand how 

Gibson ended up in the situation that led to this proceeding. Gibson’s reckless 

violations of his fiduciary duties to mitigate his losses cannot be excused, but 

should be seen in context.

Gibson’s lapses of judgment were serious. He cannot, at this time, be 

permitted to remain in the securities industry. But because of the mitigating 

factors I’ve noted, I will give him the opportunity to return. I impose full 

industry bars under Advisers Act Section 203(f) and a prohibition under 

Investment Company Act Section 9(b), with the right to reapply for reentry 

after three years for both sanctions.

 

420 Div. Ex. 24 at 1, 7; Resp’t Ex. 117 at 5; Tr. 1358–59.

421 Tr. 1358.

422 Tr. 1360.

423 See Tr. 1366–67.
63

2. Cease-and-desist order.

Exchange Act Section 21C and Advisers Act Section 203(k) authorize the 

Commission to issue a cease-and-desist order against any respondent who

violates a provision of those acts or a rule promulgated under them.

424 The 

public interest factors discussed above inform the decision whether to impose 

a cease-and-desist order.425 The Commission also considers “whether the 

violation is recent, the degree of harm to investors or the marketplace resulting 

from the violation, and the remedial function to be served by the cease-anddesist order in the context of any other sanctions being sought in the same 

proceedings.”426 No single factor in this analysis is dispositive, and the entire 

record is considered when deciding whether to issue a cease-and-desist 

order.427

To issue a cease-and-desist order, “there must be some likelihood of future 

violations.”428 But the “risk” of future violations “need not be very great to 

warrant issuing a cease-and-desist order. Absent evidence to the contrary, a 

finding of violation raises a sufficient risk of future violation.”429

Giving the length of time this case has been pending, Gibson’s violations 

are not recent. Although his failures to remediate his conflicts of interest did 

not necessarily cause his client to lose money, an adviser who fails to address

conflicts of interest poses a risk to the securities industry as a whole. Moreover, 

Gibson has shown no remorse, and until he fully understands the need to take 

his fiduciary duties more seriously, there remains a risk of future violations. 

In combination with the other sanctions imposed, a cease-and-desist order is 

warranted.

 

424 15 U.S.C. §§ 78u-3(a), 80b-3(k)(1).

425 KPMG Peat Marwick LLP, Exchange Act Release No. 43862, 2001 WL 

47245, at *23 & n.114, *26 (Jan. 19, 2001), pet. denied, 289 F.3d 109 (D.C. Cir. 

2002); see Dembski, 2017 WL 1103685, at *14.

426 KPMG Peat Marwick, 2001 WL 47245, at *26.

427 Id.

428 Id. at *24.

429 Id.; see also id. at *26.
64

3. Disgorgement.

Advisers Act Section 203(j) and (k)(5), Exchange Act Sections 21B(e) and 

21C(e), and Investment Company Act Section 9(e) authorize disgorgement, 

including reasonable interest, in this proceeding.

430 “Disgorgement is an 

equitable remedy designed to deprive a wrongdoer of his unjust enrichment 

and to deter others from violating the securities laws.”431 To establish the 

appropriate amount of disgorgement, the Division need show only “a 

reasonable approximation of profits causally connected to the violation” in 

question.432 Ordinarily, once the Division makes the required showing, the 

burden shifts to the respondent to show that the disgorgement figure was not 

a reasonable approximation.433

The Division seeks disgorgement of the losses Gibson avoided by selling 

the TRX shares in his personal account on September 26, 2011, as well as the 

profits he made from the purchase of $4 put options in his own account in 

October and November 2011.

434

The Division wants Gibson to disgorge $1,080 for the September front 

running. This sum represents the difference between the price he obtained per 

share on September 26 for the 2,000 personal shares ($4.04), and the price he 

would have obtained had he sold on September 27 directly following the Fund’s 

sale, when he would have received 54 cents less per share ($3.50).

435 This figure 

represents a reasonable approximation of the losses Gibson avoided, because 

in the analogous insider trading context, “the proper amount of disgorgement 

is generally the difference between the value of the shares when the insider 

sold them while in possession of the material, nonpublic information, and their 

 

430 15 U.S.C. §§ 78u-2(e), 78u-3(e), 80a-9(e), 80b-3(j), (k)(5).

431 Montford, 2014 WL 1744130, at *22 (quoting SEC v. First City Fin. Corp., 

890 F.2d 1215, 1230 (D.C. Cir. 1989)). 

432 First City Fin., 890 F.2d at 1231; see also Montford & Co. v. SEC, 793 F.3d 

76, 83–84 (D.C. Cir. 2015).

433 SEC v. Calvo, 378 F.3d 1211, 1217 (11th Cir. 2004).

434 Div. Br. 40. The Division does not ask that Gibson disgorge the losses he 

avoided in September by selling the shares in Ms. Marzullo’s account or the 

shares in the Geier Group account that belonged to him because of his 50% 

ownership of the entity. See id. at 41. The Division also does not request that 

Gibson disgorge any profits realized on puts other than his own.

435 Div. Br. 41; see Tr. 234–35.
65

market value ‘a reasonable time after public dissemination of the inside 

information.’”436 Although Gibson could have sold his shares at any time, such 

as when TRX was slightly higher at the end of October, he testified that he sold 

when he did to obtain liquidity due to his suspension of management fees, 

which shows he would not have wanted to wait much longer to sell.437 The 

Division has therefore met its burden of showing that $1,080 is a reasonable 

approximation of the amount by which Gibson was enriched but-for his front 

running.

438 Gibson does not attempt to rebut the Division’s reasonable 

approximation.

Gibson also does not dispute that he sold his $4 TRX puts for $81,930 more 

than he purchased them.439 These profits are causally connected to his 

violation; had he refrained from purchasing the puts or obtained independent 

advice as his fiduciary obligations demanded, he would not have made the 

profits from the puts which mitigated his losses in the Fund. I will, however, 

deduct the broker commissions he paid to sell his puts.440 Gibson must 

therefore disgorge his $81,008.81 net profit from his sale of the $4 puts.

441

In total, Gibson must disgorge $82,088.81, plus prejudgment interest as 

calculated according to the ordering paragraphs below.442

 

436 SEC v. Happ, 392 F.3d 12, 31 (1st Cir. 2004) (quoting SEC v. MacDonald, 

699 F.2d 47, 54–55 (1st Cir. 1983) (en banc)); see also SEC v. Patel, 61 F.3d 

137, 139 (2d Cir. 1995).

437 Tr. 1394; see Joint Ex. 1 at 5.

438 See Jay T. Comeaux, Securities Act Release No. 9633, 2014 WL 4160054, 

at *3 (Aug. 21, 2014) (requiring but-for causation for disgorgement).

439 Tr. 330.

440 The Division deducts broker commissions from the requested 

disgorgement amount. See Div. Br. 41–42. This deduction of “expenses 

customarily incurred in the purchase and sale of stock” is permissible. See SEC 

v. JT Wallenbrock & Assocs., 440 F.3d 1109, 1114 (9th Cir. 2006).

441 Div. Ex. 185 at 47 (Dr. Gibbons’s calculation of Gibson’s net profits).

442 17 C.F.R. § 201.600(a) (requiring the payment of prejudgment interest on 

disgorgement ordered).
66

4. Civil penalties.

Exchange Act Section 21B(a)(2) and Advisers Act Section 203(i)(1)(B)

authorize civil penalties in cease-and-desist proceedings against a respondent

who has violated a provision of those acts or a rule promulgated under them.

443

Investment Company Act Section 9(d)(1)(A) and Advisers Act Section 

203(i)(1)(A) authorize civil penalties against a respondent who has willfully 

violated a provision of the Advisers Act or Exchange Act, or a rule promulgated 

under them, if a penalty is in the public interest.444

The statutes set out a three-tiered system for determining the maximum 

monetary penalty for each act or omission constituting a violation.445 First-tier 

penalties are available based on the fact of the violation alone.

446 Second-tier 

penalties are permitted if a respondent’s misconduct involved fraud, deceit, 

manipulation, or deliberate or reckless disregard of a regulatory 

requirement.447 Third-tier penalties require the additional finding that the 

misconduct, directly or indirectly, resulted in either “substantial losses or 

created a significant risk of substantial losses to other persons” or “substantial 

pecuniary gain to the person who committed the act or omission.”448 For the 

time period from March 4, 2009, to March 5, 2013—when Gibson’s misconduct 

occurred—the maximum first-, second-, and third-tier penalties for each 

violation are, respectively, $7,500, $75,000, and $150,000 for a natural 

person.

449

When determining whether civil penalties are in the public interest, the 

Commission considers six factors listed in the securities statutes: (1) whether 

the violation involved fraud, deceit, manipulation, or deliberate or reckless 

disregard of a regulatory requirement; (2) the resulting harm, directly or 

indirectly, to other persons; (3) any unjust enrichment and prior restitution;

(4) whether the respondent has prior violations of the securities laws; (5) the 

 

443 15 U.S.C. §§ 78u-2(a)(2), 80b-3(i)(1)(B).

444 15 U.S.C. §§ 80a-9(d)(1)(A), 80b-3(i)(1)(A).

445 15 U.S.C. §§ 78u-2(b), 80a-9(d)(2), 80b-3(i)(2).

446 15 U.S.C. §§ 78u-2(b)(1), 80a-9(d)(2)(A), 80b-3(i)(2)(A).

447 15 U.S.C. §§ 78u-2(b)(2), 80a-9(d)(2)(B), 80b-3(i)(2)(B).

448 15 U.S.C. §§ 78u-2(b)(3), 80a-9(d)(2)(C), 80b-3(i)(2)(C).

449 17 C.F.R. § 201.1001, tbl. I; see 15 U.S.C. §§ 78u-2(b), 80a-9(d)(2), 80b3(i)(2).
67

need to deter the respondent and other persons, and (6) such other matters as 

justice may require.450

The Division requests second-tier penalties for Gibson’s reckless front 

running violations, which I agree are justified given that his violations of the 

relevant laws were willful and committed with scienter.

451 Considering the 

public interest, Gibson recklessly deceived the Fund by using its confidential 

information. The Division has not shown that the violations harmed investors 

monetarily, although they unjustly enriched Gibson. Gibson also has no prior 

convictions or securities law violations. Still, he must be deterred from further 

violations, and others in the industry must realize that front running is a 

serious offense that is actionable under the securities laws. Commensurate 

with the disgorgement amount imposed, I impose two second-tier penalties 

totaling $82,000, comprised of $41,000 for Gibson’s September 26 front 

running, and $41,000 for all of his put transactions and recommendations.

The Division argues that Gibson’s conduct regarding the Hull transaction 

deserves third-tier penalties because it burdened the Fund with additional 

TRX stock that it sold at a loss on November 10, which means that the Fund’s 

investors lost a substantial sum.

452 It was not clear at the outset, however, that 

the transaction was to the Fund’s detriment. To the contrary, Bystrom opined 

that the purchase could have aided the Fund.453 And Gibson believed that 

consolidation would encourage a buyer to come forward. When Gibson engaged 

in the Hull transaction, he did not know that TRX’s share price would fall 

farther, and most importantly, he had no plans to sell the Fund’s shares into 

the market, which precipitated the tremendous decline in TRX’s value. And it 

is possible that the Hull transaction could have saved the Fund money; it 

prevented Hull from separately selling his personal shares into the market at 

some point and depressing the price of TRX. I will impose second-tier penalties 

for this instance of reckless misconduct.

Regarding the public interest, as noted, it is difficult to measure the harm, 

if any, that Gibson’s reckless conduct caused to the Fund and its investors.

Further, unlike with the front running violations, Gibson was not unjustly 

 

450 15 U.S.C. §§ 78u-2(c), 80a-9(d)(3), 80b-3(i)(3).

451 See SEC v. M & A W. Inc., 538 F.3d 1043, 1054 (9th Cir. 2008) (“[T]he

imposition of second-tier penalties requires an assessment of scienter.”).

452 Div. Br. 43. 

453 Tr. 1567; Resp’t Ex. 228 at 6.
68

enriched in this transaction. And Gibson believed he was looking after the 

Fund’s best interests. Thus, even though Gibson’s compliance with his 

fiduciary duties was severely wanting, I impose a reduced second-tier penalty 

of $20,000, for total civil penalties of $102,000.

454

5. Gibson has ability to pay monetary sanctions.

In determining whether disgorgement, interest, or monetary penalties are 

in the public interest, the Commission or its administrative law judges may 

consider evidence concerning ability to pay.455 Considering this evidence is an 

exercise of discretion, and even if the Commission considers ability to pay, it 

“is only one factor ... and is not dispositive.”456 A respondent bears the burden 

of proving his inability to pay.457

Gibson has not established that he is unable to pay sanctions. His primary 

liabilities are large loans he owes to his father.458 One loan is for some of the 

costs John Gibson incurred in paying for Gibson’s legal defense in this 

proceeding.459 The other is the loan that Gibson originally owed to Hull and 

that he now owes to his father after his father assumed his obligation to 

Hull.

460 Although both notes accrue interest annually, they are only payable 

upon demand, and so far, no demand has been made for the principal or the 

 

454 Cf. Rockies Fund, Inc., Exchange Act Release No. 54892, 2006 WL 

3542989, at *7 (Dec. 7, 2006) (imposing only mid- to upper-level second tier 

penalties, despite the seriousness of the fraud, as there was no harm to 

investors or unjust enrichment), pet. denied, 298 F. App’x 4 (D.C. Cir. 2008).

455 17 C.F.R. § 201.630(a).

456 Thomas C. Bridge, Securities Act Release No. 9068, 2009 WL 3100582, at 

*25 (Sept. 29, 2009) (reserving power to impose full sanction when conduct is 

sufficiently egregious), pet. denied sub nom. Robles v. SEC, 411 F. App’x 337 

(D.C. Cir. 2010).

457 Philip A. Lehman, Exchange Act Release No. 54660, 2006 WL 3054584, at 

*4 & nn.29–30 (Oct. 27, 2006).

458 See Gibson’s Form D-A at 3 (of 114) (August 25, 2019).

459 Div. Ex. 217; Tr. 1224–25.

460 Tr. 566.
69

interest.

461 Gibson’s father could also forgive the notes at any time.462 I will 

therefore discount these liabilities in considering Gibson’s ability to pay. 

Although Gibson has some credit card debt, it appears to be short term. The 

documentation Gibson provided for his credit card accounts is deficient, but it 

appears he has not carried over a significant credit card balance from month 

to month.463 Similarly, although he has not yet paid his 2018 taxes, and he 

believes his liability will be substantial, he is not carrying over any tax liability 

from year to year.464

Gibson’s expenses between August 2018 and August 2019 exceeded his 

income by a couple thousand dollars.

465 His salary from East Century Capital 

fluctuates from year to year, and it is hard to understand Gibson’s testimony

about the amount he has made and in what years he received such income.

466

He has not submitted any W-2s or other tax forms that might help determine 

his exact compensation. Nonetheless, in 2018 at least, his income was well in 

excess of $100,000, which is substantially higher than his average basic living 

expenses.467 And given his age, education level, ability to find work, and lack 

of dependents to support, it is reasonable to assume that he will continue to 

earn a sufficient income. Perhaps most significantly, in addition to some cash 

on hand, he has a large securities investment that alone could be sold to pay a 

significant percentage of the disgorgement and penalties I am ordering.468 For 

these reasons, I reject Gibson’s inability-to-pay defense.

 

461 Tr. 1228.

462 Tr. 1228.

463 Compare Form D-A at 3 (of 114) (listing significant credit card debt) with 

Resp’t Ex. 240 (relying on account statements from early July 2019 and listing 

virtually no credit card debt).

464 Tr. 1505; Form D-A at 3, 26 (of 114).

465 Form D-A at 4–5 (of 114).

466 See Tr. 1498–1505.

467 Form D-A at 26 (of 114).

468 Id. at 3, 22 (of 114).
70

Constitutional Issues

Gibson raised a number of constitutional affirmative defenses in his 

answer to the OIP.469 Because Gibson did not address all of these defenses in 

his prehearing brief, I asked his counsel during the final prehearing conference 

which defenses were actually at issue.470 Counsel reserved answering and in 

advance of the merits hearing filed a letter asserting three constitutional

defenses: (1) “Respondent has been denied due process,”

471 (2) “the 

appointment of the ALJ violates the [Constitution’s] removal provisions,” and

(3) Gibson “is entitled to a trial by jury.”

472

After the merits hearing, the parties filed a stipulation in which they 

agreed that Gibson had preserved these arguments and others not discussed 

in Gibson’s counsel’s letter.473 Although the Commission will decide what 

issues Gibson has preserved and will ultimately decide those issues, I include 

the following observations about the constitutional issues raised in Gibson’s 

counsel’s July 28, 2019 letter in order to set those issues in context.

Throughout this proceeding Gibson has attempted to raise a due process 

claim related to the Division’s conduct when it took Hull’s February 2015

investigative testimony.474 Specifically, during Hull’s investigative testimony, 

Division counsel defined a short position as “borrowing stock and selling stock 

in the hope that the stock’s price will decline.”475 Counsel then represented to 

 

469 Answer 11–13.

470 Prhr’g Tr. 24 (July 23, 2019).

471 This argument includes several sub-arguments: (1) unfairness because I 

am situated in the agency whose officials allegedly engaged in misconduct in 

this case, (2) the lack of counterclaims in Commission proceedings, (3) the lack 

of discovery in Commission proceedings regarding alleged due process 

violations, and (4) the Commission issued the OIP that contained alleged 

misstatements of Division staff, but allowed the OIP to be re-served after 

Lucia. Letter from Thomas A. Ferrigno at 1 (July 28, 2019).

472 Id. at 1–3. Counsel’s letter also referenced a statute-of-limitations defense. 

Id. at 4.

473 Jt. Stipulation at 1 (Aug. 27, 2019).

474 See Prehr’g Tr. 63 (July 9, 2019); see Opp’n to Mot. to Preclude Testimony

of Current and Former Division Counsel at 4–5, 10–15 (June 3, 2019).

475 Resp’t Ex. 187 at 37.
71

Hull that “in October and November 2011 ... Gibson took a short position in 

TRX in his” personal investment account.476 After hearing this, Hull hit the 

roof and asked for a tolling agreement with Gibson and his father so that he 

could potentially sue them.

477 Hull also spoke to other Fund investors about 

what he learned.478 But when Hull learned that Gibson had not taken a short 

position in TRX, his views about Gibson and his put purchases changed.

479 No 

one who witnessed Hull’s testimony during the merits hearing has any doubt 

that he currently is more favorably inclined toward Gibson and has a decidedly 

negative view of the Division’s position and its attorneys.480

Believing the Division’s conduct during Hull’s investigative testimony

amounted to a due process violation, Gibson listed three Division attorneys on 

his witness list, explaining that he expected them to testify about their 

“representations to James Hull during his investigative testimony regarding 

short sales and short positions in TRX securities by Christopher Gibson.”481

The Division moved to bar Gibson from calling its attorneys to testify and 

Gibson opposed the Division’s motion.482 I granted the Division’s motion 

because Gibson had not shown that the testimony he sought from counsel was 

crucial or unavailable from other sources.483 I did not, however, rule on the 

validity of Gibson’s then-unspecified due process claim.

Fast forward to early July 2019, when I heard oral argument on the 

parties’ motions. During the argument, I asked Gibson’s counsel “what exactly 

 

476 Id. at 43.

477 See Tr. 711–12. 

478 Tr. 712.

479 Tr. 712.

480 See Tr. 1526–27.

481 Resp’t Witness List at 4 (May 10, 2019).

482 See Gibson, Admin. Proc. Rulings Release No. 6615, 2019 SEC LEXIS 

1544, at *1 (ALJ June 28, 2019).

483 Id. at *10–11.
72

is your due process claim?”484 Counsel and I engaged in an extended discussion 

during which the basis for Gibson’s claim shifted.485

During the merits hearing, we again discussed Gibson’s claim with 

reference to his counsel’s letter.

486 After some discussion, counsel stated that 

Gibson’s due process claim had two parts, the first being part of a systemic 

attack on Commission administrative proceedings and the second being that 

the Division “soured” Hull toward Gibson.487 But counsel conceded that 

however Hull may have previously felt about Gibson, by the time of the 

hearing, his “understanding of the situation ... [was] very different” from 

immediately after his investigative testimony.488 After counsel seemed to 

suggest that Hull’s former antipathy toward Gibson, resulting from what 

Division counsel told him, might have leaked to other witnesses, I remarked 

on the fact that Gibson had presented no evidence on that score.489 At that 

point, counsel stated that although he needed to consult with his client, he was 

satisfied with the record on the prejudice argument.

490 Indeed, Gibson did not 

raise the prejudice argument in his briefing, and consistent with my order 

following the parties’ joint stipulation on constitutional issues, I need not say 

anything further on the matter.491

Similar to many respondents in recent Commission administrative 

proceedings, Gibson also argued that the tenure protections that apply to the 

Commission’s administrative law judges violate the Constitution’s separation 

 

484 Prhr’g Tr. 63 (July 9, 2019).

485 Prhr’g Tr. 63–68 (July 9, 2019).

486 Tr. 1520–29.

487 Tr. 1523–25.

488 Tr. 1527.

489 Tr. 1527–28.

490 Tr. 1529, 1532. During the discussion, I disagreed with counsel’s 

argument that respondents in Commission administrative proceedings cannot 

obtain discovery relevant to due process claims, pointing out that I had 

previously “granted discovery on due process claims.” Tr. 1531; see Charles L. 

Hill, Jr., Admin. Proc. Rulings Release No. 2706, 2015 SEC LEXIS 2016 (ALJ 

May 21, 2015). Counsel agreed that such discovery is allowed. Tr. 1531–32.

491 See Gibson, 2019 SEC LEXIS 2319, at *1.
73

of powers.492 I’ve previously addressed and rejected this argument.493 In any 

event, if either party appeals this initial decision, the Commission will have 

the opportunity to decide the issue. 

Record Certification

I certify that the record includes the items set forth in the record index 

issued by the Secretary of the Commission on January 10, 2020, and five 

additional items: (1) a letter dated July 28, 2019, from Thomas A. Ferrigno to 

me concerning Gibson’s constitutional challenges; (2) another letter dated July 

28, 2019, from Mr. Ferrigno concerning the admissibility of Division Exhibits 

183 and 183A; (3) a March 20, 2020 e-mail from Stephen J. Crimmins waiving 

paper service of all opinions and orders; (4) a March 20, 2020 e-mail from 

Gregory R. Bockin also waiving paper service; and (5) a stipulation and notice 

of parties’ agreement on service of papers dated March 23, 2020.

494

Order

Under Section 21C of the Securities Exchange Act of 1934 and Section 

203(k) of the Investment Advisers Act of 1940, Christopher M. Gibson must 

CEASE AND DESIST from committing any violations or future violations of

Section 10(b) of the Securities Exchange Act of 1934 and Exchange Act Rule 

10b-5(a) and (c), and Section 206(1), (2) and (4) of the Investment Advisers Act 

of 1940 and Advisers Act Rule 206(4)-8.

Under Section 203(f) of the Investment Advisers Act of 1940, Christopher 

M. Gibson is BARRED from associating with an investment adviser, broker, 

dealer, municipal securities dealer, municipal advisor, transfer agent, or 

nationally recognized statistical rating organization—with the right to reapply 

for reentry after three years to the appropriate self-regulatory organization, or 

if there is none, to the Commission.

Under Section 9(b) of the Investment Company Act of 1940, Christopher 

M. Gibson is PROHIBITED from serving or acting as an employee, officer, 

 

492 See Letter from Thomas A. Ferrigno at 2–3 (July 28, 2019) (relying on Free 

Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010)).

493 See David Pruitt, CPA, Admin. Proc. Rulings Release No. 6675, 2019 SEC 

LEXIS 2850, at *1–24 (ALJ Sept. 16, 2019). In that order, I also rejected a 

Seventh Amendment challenge. Id. at *24–30 (discussing Atlas Roofing Co. v. 

Occupational Safety and Health Review Comm’n, 430 U.S. 442 (1977) and 

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)).

494 See 17 C.F.R. § 201.351(b). 
74

director, member of an advisory board, investment adviser or depositor of, or 

principal underwriter for, a registered investment company or affiliated person 

of such investment adviser, depositor, or principal underwriter—with the right 

to reapply for reentry after three years to the appropriate self-regulatory 

organization, or if there is none, to the Commission.

Under Sections 21B(e) and 21C(e) of the Securities Exchange Act of 1934, 

Section 203(j) and (k)(5) of the Investment Advisers Act of 1940, and Section 

9(e) of the Investment Company Act of 1940, Christopher M. Gibson must 

DISGORGE $82,088.81, plus prejudgment interest. The prejudgment interest 

owed will be calculated from December 1, 2011, the first day of the month 

following Gibson’s last violation, to the last day of the month preceding the 

month in which payment of disgorgement is made.495 Prejudgment interest will 

be computed at the underpayment rate of interest established under Section 

6621(a)(2) of the Internal Revenue Code, 26 U.S.C. § 6621(a)(2), and 

compounded quarterly.496

Under Section 21B(a) of the Securities Exchange Act of 1934, Section 

203(i) of the Investment Advisers Act of 1940, and Section 9(d) of the 

Investment Company Act of 1940, Christopher M. Gibson must PAY A CIVIL 

MONEY PENALTY in the amount of $102,000.

Payment of civil penalties, disgorgement, and interest must be made no 

later than 21 days following the day this initial decision becomes final, unless 

the Commission directs otherwise. Payment must be made in one of the 

following ways: (1) transmitted electronically to the Commission, which will 

provide detailed ACH transfer/Fedwire instructions upon request; (2) direct 

payments from a bank account via Pay.gov through the SEC website at 

http://www.sec.gov/ofm; or (3) by certified check, bank cashier’s check, bank 

money order, or United States postal money order made payable to the 

Securities and Exchange Commission and hand-delivered or mailed to the 

following address alongside a cover letter identifying Respondent and 

Administrative Proceeding No. 3-17184: Enterprise Services Center, Accounts 

Receivable Branch, HQ Bldg., Room 181, AMZ-341, 6500 South MacArthur 

Blvd., Oklahoma City, Oklahoma 73169. A copy of the cover letter and 

 

495 See 17 C.F.R. § 201.600(a); see, e.g., Terence Michael Coxon, Advisers Act 

Release No. 2161, 2003 WL 21991359, at *14 (Aug. 21, 2003) (ordering “that 

the interest run from the date of the last violation”), aff’d, 137 F. App’x 975 

(9th Cir. 2005).

496 See 17 C.F.R. § 201.600(b).
75

instrument of payment must be sent to the Commission’s Division of 

Enforcement, directed to the attention of counsel of record.

This initial decision will become effective in accordance with and subject 

to the provisions of Rule 360.497 Under that rule, a party may file a petition for 

review of this initial decision within 21 days after service of the initial decision. 

Under Rule of Practice 111, a party may also file a motion to correct a manifest 

error of fact within ten days of the initial decision.498 If a motion to correct a 

manifest error of fact is filed by a party, then a party has 21 days to file a 

petition for review from the date of the order resolving such motion to correct 

a manifest error of fact.

The initial decision will not become final until the Commission enters an 

order of finality. The Commission will enter an order of finality unless a party 

files a petition for review or motion to correct a manifest error of fact or the 

Commission determines on its own initiative to review the initial decision as 

to a party. If any of these events occur, the initial decision will not become final 

as to that party.

_______________________________

James E. Grimes

Administrative Law Judge

Served by e-mail on all parties.

 

497 See 17 C.F.R. § 201.360.

498 See 17 C.F.R. § 201.111.