UNITED STATES OF AMERICA

Before the

SECURITIES AND EXCHANGE COMMISSION

SECURITIES EXCHANGE ACT OF 1934

Release No. 99502 / February 9, 2024

INVESTMENT ADVISERS ACT OF 1940

Release No. 6551 / February 9, 2024

ADMINISTRATIVE PROCEEDING

File No. 3-21851

In the Matter of

 Guggenheim Securities LLC and 

 Guggenheim Partners

 Investment Management LLC,

Respondents.

ORDER INSTITUTING 

ADMINISTRATIVE AND CEASEAND-DESIST PROCEEDINGS, 

PURSUANT TO SECTIONS 15(b) AND 

21C OF THE SECURITIES 

EXCHANGE ACT OF 1934 AND 

SECTIONS 203(e) AND 203(k) OF THE 

INVESTMENT ADVISERS ACT OF 

1940, MAKING FINDINGS, AND 

IMPOSING REMEDIAL SANCTIONS 

AND A CEASE-AND-DESIST ORDER

I.

The Securities and Exchange Commission (“Commission”) deems it appropriate and in 

the public interest that public administrative and cease-and-desist proceedings be, and hereby 

are, instituted pursuant to Sections 15(b) and 21C of the Securities Exchange Act of 1934 

(“Exchange Act”) against Guggenheim Securities LLC (“Guggenheim Securities”) and Sections 

203(e) and 203(k) of the Investment Advisers Act of 1940 (“Advisers Act”) against Guggenheim 

Partners Investment Management LLC (“GPIM”) (collectively, “Respondents”).

II.

In anticipation of the institution of these proceedings, Respondents have submitted Offers 

of Settlement (“Offers”) that the Commission has determined to accept. Respondents admit the 

facts set forth in Section III below, acknowledge that their conduct violated the federal securities 

laws, admit the Commission’s jurisdiction over them and the subject matter of these proceedings, 

and consent to the entry of this Order Instituting Administrative and Cease-and-Desist 

Proceedings Pursuant to Sections 15(b) and 21C of the Securities Exchange Act of 1934 and 

Sections 203(e) and 203(k) of the Investment Advisers Act of 1940, Making Findings, and 

Imposing Remedial Sanctions and a Cease-and-Desist Order (“Order”), as set forth below. 
2 

III.

 On the basis of this Order and Respondents’ Offers, the Commission finds1 that:

Summary

1. The federal securities laws impose recordkeeping requirements on broker-dealers 

and registered investment advisers to ensure that they responsibly discharge their crucial role in 

our markets. The Commission has long said that compliance with these requirements is essential 

to investor protection and the Commission’s efforts to further its mandate of protecting investors, 

maintaining fair, orderly, and efficient markets, and facilitating capital formation.

2. These proceedings arise out of the widespread and longstanding failure of 

Respondents’ employees, including at senior levels, to adhere to certain of these essential 

requirements and Respondents’ own policies. Using their personal devices, these employees 

communicated both internally and externally by personal text messages, or other text messaging 

platforms such as WhatsApp (“off-channel communications”).

3. From at least January 2020, Guggenheim Securities employees sent and received 

off-channel communications that related to the business of the broker-dealer, and GPIM 

employees sent and received off-channel communications related to recommendations made or 

proposed to be made and advice given or proposed to be given, as well as the placing and 

execution of orders to purchase and sell securities. Respondents did not maintain or preserve the 

substantial majority of these written communications. Respondents’ failure was firm-wide and 

involved employees at various levels of authority. As a result, Guggenheim Securities violated 

Section 17(a) of the Exchange Act and Rule 17a-4(b)(4) thereunder, and GPIM violated 

Section 204 of the Advisers Act and Rule 204-2(a)(7) thereunder. 

4. Respondents’ supervisors, who were responsible for supervising junior 

employees, routinely communicated off-channel using their personal devices. In fact, senior 

managing directors responsible for supervising junior employees themselves failed to comply 

with Respondents’ policies by communicating using non-approved methods on their personal 

devices about Respondents’ broker-dealer business and/or investment adviser business, as 

applicable.

5. Respondents’ widespread failure to implement their policies and procedures that 

prohibit such communications led to their failure to reasonably supervise their employees within 

the meaning of Section 15(b)(4)(E) of the Exchange Act as to Guggenheim Securities and 

Section 203(e)(6) of the Advisers Act as to GPIM. 

6. Commission staff uncovered Respondents’ misconduct after commencing a riskbased initiative to investigate the use of off-channel and unpreserved communications at brokerdealers. Respondents have initiated a review of their recordkeeping failures, and begun a 

program of remediation. As set forth in the Undertakings below, Respondents will retain an 

1

 The findings herein are made pursuant to Respondents’ Offers of Settlement and are not 

binding on any other person or entity in this or any other proceeding. 
3 

independent compliance consultant to review and assess Respondents’ remedial steps relating to 

their recordkeeping practices, policies and procedures, related supervisory practices, and 

employment actions. 

Respondents

7. Guggenheim Securities LLC is a Delaware corporation with its principal office in 

New York, New York and is registered with the Commission as a broker-dealer. 

8. Guggenheim Partners Investment Management LLC is a Delaware corporation 

with its principal office in Santa Monica, California and is registered with the Commission as an 

investment adviser. 

Recordkeeping Requirements Under the Exchange Act and Advisers Act

9. Section 17(a)(1) of the Exchange Act and Section 204 of the Advisers Act 

authorize the Commission to issue rules requiring, respectively, broker-dealers and investment 

advisers, to make and keep for prescribed periods, and furnish copies of, such records as 

necessary or appropriate in the public interest, for the protection of investors or otherwise in 

furtherance of the purposes of the Exchange Act and the Advisers Act. 

10. The Commission adopted Rule 17a-4 under the Exchange Act and Rule 204-2 

under the Advisers Act pursuant to this authority. These rules specify the manner and length of 

time that the records created in accordance with Commission rules, and certain other records 

produced by broker-dealers or investment advisers, must be maintained and produced promptly 

to Commission representatives. 

11. The rules adopted under Section 17(a)(1) of the Exchange Act, including 

Rule 17a-4(b)(4), require that broker-dealers preserve in an easily accessible place originals of 

all communications received and copies of all communications sent relating to the brokerdealer’s business as such. These rules impose minimum recordkeeping requirements that are 

based on standards a prudent broker-dealer should follow in the normal course of business. 

12. The rules adopted under Advisers Act Section 204, including Advisers Act 

Rule 204-2(a)(7), require that investment advisers preserve in an easily accessible place originals 

of all communications received and copies of all written communications sent relating to, among 

other things, any recommendation made or proposed to be made, any advice given or proposed to 

be given, and placing or execution of any order to purchase or sell any security. 

13. The Commission previously has stated that these and other recordkeeping 

requirements “are an integral part of the investor protection function of the Commission, and 

other securities regulators, in that the preserved records are the primary means of monitoring 

compliance with applicable securities laws, including antifraud provisions and financial 

responsibility standards.” Commission Guidance to Broker-Dealers on the Use of Electronic 

Storage Media under the Electronic Signatures in Global and National Commerce Act of 2000 

with Respect to Rule 17a-4(f), 17 C.F.R. Part 241, Exchange Act Rel. No. 44238 (May 1, 2001). 
4 

Respondents’ Policies and Procedures

14. Respondents maintained certain policies and procedures designed to ensure the 

retention of business-related records, including electronic communications, in compliance with 

the relevant recordkeeping provisions. 

15. Respondents’ employees were advised that the use of unapproved electronic 

communications methods, including on their personal devices, was not permitted, and they 

should not use personal email, chats or text messaging applications for business purposes, or 

forward work-related communications to unapproved applications on their personal devices. 

16. Messages sent through firm-approved communications methods were monitored, 

subject to review, and archived. Messages sent through unapproved communications methods, 

such as WhatsApp and other unapproved applications on personal devices, were not monitored, 

subject to review or archived. 

17. Respondents’ policies were designed to address supervisors’ supervision of 

employees’ training in Respondents’ communications policies and adherence to Respondents’ 

books and recordkeeping requirements. Supervisory policies notified employees that electronic 

communications were subject to surveillance by Respondents. Respondents had procedures for 

all employees, including supervisors, requiring annual self-attestations of compliance. 

18. Respondents, however, failed to implement a system of follow-up and review to 

determine that supervisors were reasonably following Respondents’ policies. While permitting 

employees to use approved communications methods, including on personal phones, for business 

communications, Respondents failed to implement sufficient monitoring to assure that their 

recordkeeping and communications policies were being followed. 

Respondents’ Recordkeeping Failures Across The Brokerage and Investment Advisory 

Businesses

19. In September 2021, the Commission staff commenced a risk-based initiative to 

investigate whether registrants were properly retaining business-related messages sent and 

received on personal devices. Respondents cooperated with the investigation by voluntarily 

interviewing a sampling of senior personnel from Guggenheim Securities and GPIM, and 

gathering and reviewing messages found on the individuals’ personal devices. These personnel 

included senior leadership, such as managing directors and desk heads. 

20. The Commission staff’s investigation uncovered pervasive off-channel 

communications at various seniority levels within Guggenheim Securities and GPIM. The 

investigation determined that nearly all broker-dealer and investment adviser personnel sampled 

had engaged in at least some level of off-channel communications. Overall, personnel sent and 

received numerous off-channel communications, involving other Respondents’ personnel, 

Respondents’ broker-dealer customers and other participants in the securities industry. Within 

Respondents, significant numbers of senior managing directors participated in off-channel 

communications.
5 

21. From at least January 2020, Guggenheim Securities personnel sent and received 

off-channel messages that concerned the broker-dealer’s business.

22. For example, a senior managing director within Guggenheim Securities 

exchanged numerous off-channel business-related messages with at least 10 Guggenheim 

Securities colleagues, over 50 customers, investors, or other market participants, and with six 

individuals at other financial firms. Within Guggenheim Securities, the individual 

communicated with senior managing directors, managing directors, and junior employees under 

their supervision. These messages related to the broker-dealer’s business as such. 

23. In addition, another senior managing director within Guggenheim Securities 

exchanged numerous off-channel business-related text messages and WhatsApp messages with 

at least 10 Guggenheim Securities colleagues and with over 25 customers investors, or other 

market participants. Within Guggenheim Securities, the managing director communicated with 

senior managing directors and vice presidents, and junior employees under their supervision. 

These messages related to the broker-dealer’s business as such. 

24. Furthermore, another senior managing director within Guggenheim Securities 

exchanged numerous off-channel business-related messages with at least 10 Guggenheim 

Securities colleagues and with over 20 customers, investors, or other market participants. Within 

Guggenheim Securities, the individual communicated with senior managing directors, and junior 

employees under their supervision. These messages related to the broker-dealer’s business as 

such. 

25. From at least January 2020, GPIM personnel sent and received off-channel text 

messages subject to the record-keeping requirements of Advisers Act Rule 204-2. 

26. For example, in one off-channel text exchange between GPIM employees, the 

employees discussed placement of various orders to purchase or sell securities.

Respondents’ Violations and Failure to Supervise

27. As a result of the conduct described above, from at least January 2020 through the 

date of this Order, Guggenheim Securities willfully2

 violated Section 17(a) of the Exchange Act 

and Rule 17a-4(b)(4) thereunder, which require broker-dealers to preserve for at least three years 

originals of all communications received and copies of all communications sent relating to its 

business as such. 

28. As a result of the conduct described above, from at least January 2020 through the 

date of this order, Guggenheim Securities failed reasonably to supervise its employees with a 

view to preventing or detecting certain of its employees’ aiding and abetting violations of 

2

 “Willfully,” for purposes of imposing relief under Section 15(b) of the Exchange Act and 

Section 203(e) of the Advisers Act “‘means no more than that the person charged with the duty 

knows what he is doing.’” Wonsover v. SEC, 205 F.3d 408, 414 (D.C. Cir 2000) (quoting 

Hughes v. SEC, 174 F.2d 969, 977 (D.C. Cir. 1949)). 
6 

Section 17(a) of the Exchange Act and Rule 17a-4(b)(4) thereunder, within the meaning of 

Section 15(b)(4)(E) of the Exchange Act. 

29. As a result of the conduct described above, from at least January 2020 through the 

date of this Order, GPIM willfully violated Section 204 of the Advisers Act and Rule 204-2(a)(7)

thereunder, which require investment advisersto preserve in an easily accessible place originals of 

all written communicationsreceived and copies of all written communicationssent relating to,

among other things, any recommendation made or proposed to be made, any advice given or 

proposed to be given, and placing or execution of any order to purchase or sell any security. 

30. As a result of the conduct described above, GPIM failed reasonably to supervise its 

employees with a view to preventing or detecting certain of its employees’ aiding and abetting 

violations of Section 204 of the Advisers Act and Rule 204-2(a)(7) thereunder, within the 

meaning of Section 203(e)(6) of the Advisers Act. 

Respondents’ Remedial Efforts

31. In determining to accept the Offers, the Commission considered steps promptly 

undertaken and cooperation afforded the Commission staff by Respondents. Prior to and after 

being approached by Commission staff, Respondents provided their personnel with firm issued 

devices or other firm-approved applications, thereby making communications through approved 

channels more readily retainable.

Undertakings

32. Prior to this action, Respondents enhanced their policies and procedures, and 

increased training concerning the use of approved communications methods, and began 

implementing significant changes to the technology available to employees. In addition, 

Respondents have undertaken to: 

33. Independent Compliance Consultant.

a. Respondents shall retain, within thirty (30) days of the entry of this Order, the 

services of an independent compliance consultant (“Compliance Consultant”) that is not 

unacceptable to the Commission staff. The Compliance Consultant’s compensation and 

expenses shall be borne exclusively by Respondents. 

b. Respondents will oversee the work of the Compliance Consultant. 

c. Respondents shall provide to the Commission staff, within sixty (60) days of 

the entry of this Order, a copy of the engagement letter detailing the Compliance 

Consultant’s responsibilities, which shall include a comprehensive compliance review as 

described below. Respondents shall require that, within ninety (90) days of the date of 

the engagement letter, the Compliance Consultant conduct: 

i. A comprehensive review of Respondents’ supervisory, compliance, and 

other policies and procedures designed to ensure that Respondents’ electronic 
7

communications, including those found on personal electronic devices, including 

without limitation, cellular phones (“Personal Devices”), are preserved in 

accordance with the requirements of the federal securities laws.

ii. A comprehensive review of training conducted by Respondents to 

ensure personnel are complying with the requirements regarding the preservation 

of electronic communications, including those found on Personal Devices, in 

accordance with the requirements of the federal securities laws, including by 

ensuring that Respondents’ personnel certify in writing on a quarterly basis that 

they are complying with preservation requirements. 

iii. An assessment of the surveillance program measures implemented by 

Respondents to ensure compliance, on an ongoing basis, with the requirements 

found in the federal securities laws to preserve electronic communications, 

including those found on Personal Devices.

iv. An assessment of the technological solutions that Respondents have

begun implementing to meet the record retention requirements of the federal 

securities laws, including an assessment of the likelihood that Respondents 

personnel will use the technological solutions going forward and a review of the 

measures employed by Respondents to track employee usage of new 

technological solutions. 

v. An assessment of the measures used by Respondents to prevent the use 

of unauthorized communications methods for business communications by 

employees. This assessment should include, but not be limited to, a review of 

Respondents’ policies and procedures to ascertain if they provide for any 

significant technology and/or behavioral restrictions that help prevent the risk of 

the use of unapproved communications methods on Personal Devices (e.g., 

trading floor restrictions). 

vi. A review of Respondents’ electronic communications surveillance 

routines to ensure that electronic communications through approved 

communications methods found on Personal Devices are incorporated into 

Respondents’ overall communications surveillance program. 

vii. A comprehensive review of the framework adopted by Respondents 

to address instances of non-compliance by Respondents’ employees with 

Respondents’ policies and procedures concerning the use of Personal Devices to 

communicate about firm business in the past. This review shall include a survey 

of how Respondents determined which employees failed to comply with 

Respondents’ policies and procedures, the corrective action carried out, an 

evaluation of who violated policies and why, what penalties were imposed, and 

whether penalties were handed out consistently across business lines and seniority 

levels. 
8

d. Respondents shall require that, within forty-five (45) days after completion of 

the review set forth in sub-paragraphs 33.c.i. through c.vii. above, the Compliance 

Consultant shall submit a detailed written report of its findings to Respondents and to the 

Commission staff (the “Report”). Respondents shall require that the Report include a 

description of the review performed, the names of the individuals who performed the 

review, the conclusions reached, the Compliance Consultant’s recommendations for 

changes in or improvements to Respondents’ policies and procedures, and a summary of 

the plan for implementing the recommended changes in or improvements to 

Respondents’ policies and procedures.

e. Respondents shall adopt all recommendations contained in the Report within 

ninety (90) days of the date of the Report; provided, however, that within forty-five (45) 

days after the date of Report, Respondents shall advise the Compliance Consultant and 

the Commission staff in writing of any recommendations that Respondents consider to be 

unduly burdensome, impractical, or inappropriate. With respect to any recommendation 

that Respondents consider unduly burdensome, impractical, or inappropriate, 

Respondents need not adopt such recommendation at that time, but shall propose in 

writing an alternative policy, procedure, or disclosure designed to achieve the same 

objective or purpose.

f. As to any recommendation concerning Respondents’ policies or procedures on 

which Respondents and the Compliance Consultant do not agree, Respondents and the 

Compliance Consultant shall attempt in good faith to reach an agreement within sixty 

(60) days after the date of the Report. Within fifteen (15) days after the conclusion of the 

discussion and evaluation by Respondents and the Compliance Consultant, Respondents 

shall require that the Compliance Consultant inform Respondents and the Commission 

staff in writing of the Compliance Consultant’s final determination concerning any 

recommendation that Respondents consider to be unduly burdensome, impractical, or 

inappropriate. Respondents shall abide by the determinations of the Compliance 

Consultant and, within sixty (60) days after final agreement between Respondents and the 

Compliance Consultant or final determination by the Compliance Consultant, whichever 

occurs first, Respondents shall adopt and implement all of the recommendations that the 

Compliance Consultant deems appropriate.

g. Respondents shall cooperate fully with the Compliance Consultant and shall 

provide the Compliance Consultant with access to such of Respondents’ files, books, 

records, and personnel as are reasonably requested by the Compliance Consultant for 

review.

h. Respondents shall not have the authority to terminate the Compliance 

Consultant or substitute another compliance consultant for the initial Compliance 

Consultant, without the prior written approval of the Commission staff. Respondents 

shall compensate the Compliance Consultant and persons engaged to assist the 

Compliance Consultant for services rendered under this Order at their reasonable and 

customary rates.
9 

i. For the period of engagement and for a period of two years from completion of 

the engagement, Respondents shall not (i) retain the Compliance Consultant for any other 

professional services outside of the services described in this Order; (ii) enter into any 

other professional relationship with the Compliance Consultant, including any 

employment, consultant, attorney-client, auditing or other professional relationship; or 

(iii) enter, without prior written consent of the Commission staff, into any such 

professional relationship with any of the Compliance Consultant’s present or former 

affiliates, employers, directors, officers, employees, or agents acting in their capacity as 

such. 

j. The Report by the Compliance Consultant will likely include confidential 

financial, proprietary, competitive business or commercial information. Public disclosure 

of the Report could discourage cooperation, impede pending or potential government 

investigations or undermine the objectives of the reporting requirement. For these 

reasons, among others, the Report and the contents thereof are intended to remain and 

shall remain non-public, except (1) pursuant to court order, (2) as agreed to by the parties 

in writing, (3) to the extent that the Commission determines in its sole discretion that 

disclosure would be in furtherance of the Commission’s discharge of its duties and 

responsibilities, or (4) as otherwise required by law. 

34. One-Year Evaluation. Respondents shall each require the Compliance Consultant 

to assess Respondents’ respective programs for the preservation, as required under the federal 

securities laws, of electronic communications, including those found on Personal Devices, 

commencing one year after submitting the Report required by Paragraph 33.d above. 

Respondents shall require this review to evaluate Respondents’ progress in the areas described in 

Paragraph 33.c.i-vii above. After this review, Respondents shall require the Compliance 

Consultant to submit a report (the “One Year Report”) to Respondents and the Commission staff 

and shall ensure that the One Year Report includes an updated assessment of Respondents’ 

respective policies and procedures with regard to the preservation of electronic communications 

(including those found on Personal Devices), training, surveillance programs, and technological 

solutions implemented in the prior year period. 

35. Reporting Discipline Imposed. For two years following the entry of this Order, 

Respondents shall notify the Commission staff as follows upon the imposition of any discipline 

imposed by Respondents, including, but not limited to, written warnings, loss of any pay, bonus, or 

incentive compensation, or the termination of employment, with respect to any employee found to 

have violated Respondents’ respective policies and procedures concerning the preservation of 

electronic communications, including those found on Personal Devices: at least 48 hours before the 

filing of a Form U-5, or within ten (10) days of the imposition of other discipline. 

36. Internal Audit. In addition to the Compliance Consultant’s review and issuance of 

the One Year Report, Respondents will also have their Internal Audit function conduct a separate 

audit(s) to assess Respondents’ progress in the areas described in Paragraph 33.c.i-vii above. 

After completion of this audit(s), Respondents shall ensure that Internal Audit submits a report to 

Respondents and to the Commission staff.
10 

37. Recordkeeping. Guggenheim Securities shall preserve, for a period of not less 

than six (6) years from the end of the fiscal year last used, the first two (2) years in an easily 

accessible place, any record of compliance with these undertakings. GPIM shall preserve any 

record of compliance with these undertakings in an easily accessible place for a period of not less 

than five (5) years from the end of the fiscal year during which the entry was made on such 

record, the first two (2) years in an appropriate office of GPIM. 

38. Deadlines. For good cause shown, the Commission staff may extend any of the 

procedural dates relating to the undertakings. Deadlines for procedural dates shall be counted in 

calendar days, except that if the last day falls on a weekend or federal holiday, the next business 

day shall be considered to be the last day. 

39. Certification. Respondents shall certify, in writing, compliance with the 

undertakings set forth above. The certification shall identify the undertakings, provide written 

evidence of compliance in the form of a narrative, and be supported by exhibits sufficient to 

demonstrate compliance. The Commission staff may make reasonable requests for further 

evidence of compliance, and Respondents agree to provide such evidence. The certification and 

supporting material shall be submitted to Alison R. Levine, Assistant Regional Director, 

Division of Enforcement, New York Regional Office, Securities and Exchange Commission, 100 

Pearl Street, Suite 20-100, New York, NY, 10004-2616, or such other person as the Commission 

staff may request, with a copy to the Office of Chief Counsel of the Enforcement Division, no 

later than sixty (60) days from the date of the completion of the undertakings. 

IV.

In view of the foregoing, the Commission deems it appropriate and in the public interest 

to impose the sanctions agreed to in Respondents’ Offers. 

Accordingly, pursuant to Sections 15(b) and 21C of the Exchange Act as to Guggenheim 

Securities and pursuant to Sections 203(e) and 203(k) of the Advisers Act as to GPIM, it is 

hereby ORDERED that: 

A. Guggenheim Securities cease and desist from committing or causing any 

violations and any future violations of Section 17(a) of the Exchange Act and Rule 17a-4 

thereunder. 

B. GPIM cease and desist from committing or causing any violations 

and any future violations of Section 204 of the Advisers Act and Rule 204-2 thereunder. 

C. Respondents are censured. 

D. Respondents shall comply with the undertakings enumerated in paragraphs 32 to 

39 above. 

 

 E. Respondents, jointly and severally, shall, within 14 days of the entry of this 

Order, pay a civil money penalty in the amount of $15,000,000 to the Securities and Exchange 

Commission for transfer to the general fund of the United States Treasury, subject to Exchange 
11

Act Section 21F(g)(3). If timely payment is not made, additional interest shall accrue pursuant 

to 31 U.S.C. § 3717. 

Payment must be made in one of the following ways: 

(1) Respondents may transmit payment electronically to the Commission, 

which will provide detailed ACH transfer/Fedwire instructions upon 

request; 

(2) Respondents may make direct payment from a bank account via Pay.gov 

through the SEC website at http://www.sec.gov/about/offices/ofm.htm; or 

(3) Respondents may pay by certified check, bank cashier’s check, or United 

States postal money order, made payable to the Securities and Exchange 

Commission and hand-delivered or mailed to: 

Enterprise Services Center

Accounts Receivable Branch

HQ Bldg., Room 181, AMZ-341

6500 South MacArthur Boulevard

Oklahoma City, OK 73169

Payments by check or money order must be accompanied by a cover letter identifying 

Guggenheim Securities and GPIM as the Respondents in these proceedings, and the file number 

of these proceedings; a copy of the cover letter and check or money order must be sent to 

Thomas P. Smith, Jr., Associate Regional Director, Securities and Exchange Commission, 100 

Pearl Street, Suite 20-100, New York, New York 10004-2616. 

F. Amounts ordered to be paid as civil money penalties pursuant to this Order shall 

be treated as penalties paid to the government for all purposes, including all tax purposes. To 

preserve the deterrent effect of the civil penalty, Respondents agree that in any Related Investor 

Action, they shall not argue that they are entitled to, nor shall they benefit by, offset or reduction 

of any award of compensatory damages by the amount of any part of Respondents’ payment of a 

civil penalty in this action (“Penalty Offset”). If the court in any Related Investor Action grants 

such a Penalty Offset, Respondents agree that they shall, within 30 days after entry of a final 

order granting the Penalty Offset, notify the Commission’s counsel in this action and pay the 

amount of the Penalty Offset to the Securities and Exchange Commission. Such a payment shall 

not be deemed an additional civil penalty and shall not be deemed to change the amount of the 

civil penalty imposed in this proceeding. For purposes of this paragraph, a “Related Investor 

Action” means a private damages action brought against Respondents by or on behalf of one or 
12

more investors based on substantially the same facts as alleged in the Order instituted by the 

Commission in this proceeding.

By the Commission.

Vanessa A. Countryman

Secretary