F I L E D

United States Court of Appeals

Tenth Circuit

JUL 7 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARC N. GEMAN,

Petitioner,

v.

SECURITIES AND EXCHANGE

COMMISSION,

Respondent.

No. 01-9512

On Petition For Review Of A Final Decision 

of the Securities and Exchange Commission (No. 3-9032)

Donald T. Trinen, Esq., Hart & Trinen, LLP of Denver, Colorado, Attorneys for

Petitioner.

Leslie E. Smith, Senior Litigation Counsel (Meyer Eisenberg, Deputy General Counsel,

Jacob H. Stillman, Solicitor, and Kermit B. Kennedy, Special Counsel, with her on the

brief), Securities and Exchange Commission, Washington, D.C., Attorneys for

Respondent.

Before BRISCOE, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.
1The ALJ found that the firm’s customers had always received best execution, meaning

the best price reasonably available at the time of the transaction. On review, the enforcement

staff asked the SEC to overturn that finding. The SEC ruled that the enforcement staff had failed

to prove a violation of the duty of best execution, but it did not affirm the ALJ’s finding that the

firm had always provided best execution and expressed its strong concern that the firm’s

deficient record keeping practices (which are discussed infra in Part II-F) made it difficult for the

enforcement staff to prove that customers had not always received best execution.

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I

A. Overview and Basis for Jurisdiction

Mr. Marc Geman brings a petition for review of a disciplinary order issued by the

SEC. Mr. Geman was a registered broker-dealer and investment adviser; he was also the

chief executive officer of a firm called Portfolio Management Consultants, Inc. (the firm). 

In proceedings before an administrative law judge (ALJ), Geman was found to have

violated several provisions of the securities laws, as described infra. In an opinion 

reviewing the ALJ’s disposition (the SEC Opinion), the SEC affirmed all of the findings

of violations but reduced the sanctions imposed.1 Geman was barred from association

with any securities or investment firm, but was permitted to apply for relief from that ban

after three years, and Geman was fined $200,000. (The ALJ had imposed a lifetime ban

and a fine of $500,000.) Separate proceedings against the firm and its president, based on

the same events, had previously been settled.

Geman filed a timely petition for review. This court therefore has appellate 

jurisdiction under section 9 of the Securities Act of 1933, 15 U.S.C. § 77i; section

25(a)(1) of the Securities Exchange Act of 1934, 15 U.S.C. § 78y(a)(1); and section 213

of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-13.
2Our recitation of the facts is taken primarily from the SEC’s opinion, which is published

at 2001 WL 124847. With one exception noted in the text, neither party challenges the facts as

determined by the ALJ and as discussed in the SEC’s opinion.

3The SEC noted that the record was unclear as to whether other broker-dealers may have

been used to execute some trades. SEC Opinion at 5, n.12.

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B. Background

Petitioner was chairman and CEO of the firm during the relevant time, October

1992 through April 1994.2 The ALJ found that “Geman was responsible for operations of

the broker-dealer part of the business, encompassing administrative and financial

functions as well as compliance and trading.” ALJ Decision at 3. The firm’s primary

business during that time was sponsoring a comprehensive “individualized managed

account” service, which in the industry is called a “wrap fee” program. Under the wrap

fee program, the firm’s customers paid an “all-inclusive” fee calculated as a percentage of

the customer’s assets under management. In return, the firm provided brokerage,

advisory, and custodial services. 

The firm assisted its customers in creation of a written investment policy, in the

allocation of assets, and in the selection of portfolio managers, but did not recommend

specific securities. Decisions such as the selection of securities to buy or sell were made

by the customers with the aid of portfolio managers who contracted with, but were

independent of the firm. The portfolio managers had complete discretion in advising the

firm’s customers about their accounts. Trades were executed through the firm.3 The firm

also monitored the performance of the accounts and distributed quarterly performance
4As the brochure seems to recognize, the duty of best execution is a legal duty inherent in

the relationship of the broker-dealer and its customer, arising from the duties of undivided

loyalty and reasonable care under the common law of agency, and thus would have applied to the

firm absent the firm’s express promises. Newton, 135 F.3d at 270.

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reviews. The firm had about 800 customers in the wrap fee program, with over $200

million in assets under management.

In its promotional literature, the firm represented that it would strive to ensure

“best net price” and “best execution” for each transaction. Doc. 74 at 4. “The duty of

best execution . . . requires that a broker-dealer seek to obtain for its customer orders the

most favorable terms reasonably available under the circumstances.” Newton v. Merrill,

Lynch, Pierce, Fenner & Smith, Inc., 135 F.3d 266, 270 (3d Cir. 1998) (en banc).4

Significantly, the firm specifically represented that it was undertaking fiduciary

responsibilities to its customers, as in a promotional brochure which said: “[A]s an

independent fiduciary, PMC is dedicated to providing the independent advisory and

administrative services necessary to support you in meeting your unique and specialized

goals and objectives.” Doc. 74 at 3.

The enforcement proceeding grew out of a change in practice instituted by the firm

after a period of heavy losses. Before October 1992 the firm had acted only on an agency

basis; that is, it executed trades on behalf of its customers with third parties. But in

October 1992, Geman directed the firm’s traders to identify transactions in which the firm

could profit by becoming a principal. Thus, for example, when a customer placed an

order to sell a certain stock, the firm might buy the stock from the customer, rather than
5More specifically, the NBBO is the highest quoted bid price and lowest quoted offer

price from among all quotations entered in the Consolidated Quotation Service. SEC Opinion at

3.

6The ALJ found that this represented about ten percent of the total transactions completed

by the firm for its customers. ALJ Decision at 5.

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merely acting as an intermediary by arranging a sale to a third party. In this example, the

firm would then “cover” by selling the stock it had just purchased from its customer. In

each instance of principal trading, whether the customer’s order was to buy or to sell, the

firm would cover by completing an offsetting trade. The covering trades were always for

the same number of shares of the same stock and were executed very promptly, always on

the same day as the transaction with the customer of the firm.

The firm’s traders were directed to evaluate each order to determine whether it was

in the firm’s interest to execute the trade as a principal or as an agent. The customer’s

price was always the “NBBO,” the national best bid and offer price based on price

quotations.5 If the traders thought it likely that the firm could execute a covering trade at

a more favorable price by the end of the trading day, the firm would execute as principal. 

Over a period of about 18 months, the firm executed over 8,000 trades as principal and

generated net profits of over $460,000, with two-thirds of its covering trades being

profitable to the firm and one-third unprofitable.6

The firm obtained the customers’ consent to a modification of the customer

agreement to allow it to trade in the capacity of a principal by sending the customers a

letter, approved by Geman, which included the language to be added to the agreement. 
-6-

The only explanation offered in the letter was that this and other changes to the customer

agreement were the result of “new regulatory interpretations and technological

improvement to [the firm’s] system capabilities.” Doc. 140. The letter went on to say

that the modifications of the customer agreement were necessary to allow the firm “to

fully utilize these automated systems.” Id. There was no evidence that any technological

improvements or new regulatory interpretations actually were related to the decision to

engage in trading as a principal. There was no disclosure of the firm’s intent to make

profits from these transactions as principal. The letter said that there would be no

changes to the fees charged.

Prior to March 1993, the firm reported the trades in which it participated as a

principal through the Automated Confirmation Transaction service, a trade reporting

service operated by the National Association of Securities Dealers (NASD). These

reports included the time of each transaction. In 1992, the NASD informed the firm that

these principal trades with customers could not be reported through its service because

the trades were “riskless.” Although Geman disagreed with the NASD’s characterization

of the trades as riskless (as he does in this appeal), he agreed to stop reporting the trades

as the firm had been doing. From March 1993 to December 1993, no alternative

procedure was implemented for recording the details of the firm’s trades in the capacity

of principal. Although the trades were not being reported, the firm continued to send its

customers confirmation statements which included the following language: “your price is
7The firm ostensibly included this awkward phrase on the required confirmation

statements because an SEC rule required it, when acting as a principal, to disclose any “mark-up,

mark-down, or similar remuneration” received by the firm. See 17 C.F.R. § 240.10b10(a)(8)(i)(A). The firm was also required to report its principal trades to the NASD. The

intended meaning of the phrase was, as we understand it, that the firm had not profited on the

transaction, that the “price reported,” i.e. the price received by the firm in a covering sale or paid

by the firm in a covering purchase, was the same as the price received or paid by the firm’s

customer.

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reported price difference is zero.”7

C. The SEC’s Opinion

The Commission, on review of the order of the Administrative Law Judge, noted

that the firm had held itself out as a fiduciary. The Commission held that the firm’s

conduct was fraudulent because, contrary to the fiduciary’s duty of full disclosure, the

firm’s disclosures regarding the change to principal trading were made “in a highly

misleading manner.” The purported reasons for the decision, changes in regulations and

in technology, were not actually factors in the decision at all. The firm failed to disclose

that the primary motivation was to earn profits, and misleadingly represented that its fees

would not be affected.

Another result of the firm engaging in trades as a principal, the SEC found, was

that the customers were deprived of the opportunity to take advantage of “price

improvement services” offered at the time by two of the wholesale dealers that the firm

used in executing its trades. These price improvement services guaranteed that the

customer’s market order would be executed at the NBBO and offered the possibility of

execution at better prices. The wholesale dealers were able to get these better prices for a
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small but significant portion of trades, somewhat less than ten percent. When the firm

acted as principal in a trade with its customer, the customer had no possibility of

benefitting from the price improvement service. 

The SEC found that the “your price is reported price difference is zero” language

in the firm’s confirmation statements was deceptive in that it suggested that there was no

difference between the customer’s price and the price the firm obtained for itself in its

covering trade, when in fact in most cases there was a difference. The SEC also held that

the confirmations violated Exchange Act Rule 10b-10(a)(8)(i)(A), 17 C.F.R. § 240.10b10(a)(8)(i)(A), a regulation requiring a dealer that is not a market maker, when trading for

its own account, i.e., as a principal, to disclose in writing any “markup, markdown or

similar remuneration it receives.” SEC Opinion at 20. Finally, the SEC found that it was

undisputed that the firm had violated record keeping requirements when it failed to

institute a reporting system to replace the reports that the NASD had told the firm could

no longer be filed with their service.

The SEC held that Geman “willfully aided and abetted and caused the Firm’s

violations,” including the violation of the record keeping requirements. The sanctions

ordered have already been described. 
-9-

II

A. Issues presented and standard of review

Geman raises six issues on appeal. He contends that no fraud was committed by

the firm in its failure to disclose its profit motive for adoption of the principal trading

program, and likewise that the failure to disclose the price improvement opportunity was

not fraudulent because there was no evidence that any customer would actually have

benefitted from the service. We are further asked to review the conclusion that the firm’s

customer confirmation notices were not required to report profits on trading in a principal

capacity. Also with respect to the confirmation statements, Geman contends that there

was no misrepresentation in the statement’s inclusion of standard language that the price

received by the customer was the same as the prevailing market price. Geman also

contends that he should not have been held responsible for the firm’s reporting

deficiencies. Finally, Geman contends that he should not have been disciplined at all

because he did nothing wrong, and alternatively that the punishment was too severe.

In reviewing the decisions of the Commission, we accept its findings of fact unless

they are not supported by substantial evidence. See Steadman v. SEC, 450 U.S. 91, 96

n.12 (1981). We defer to the agency’s interpretation of the statutes it administers and its

rules and regulations. Sanctions imposed by the Commission are reviewed for abuse of

discretion. See C.E. Carlson, Inc. v. SEC, 859 F.2d 1429, 1438 (10th Cir. 1988).

B. Fraud in non-disclosure of motive for principal trading
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We begin with Geman’s attack on the Commission’s conclusion that the firm

violated various anti-fraud provisions by not disclosing the firm’s profit motive when it

engaged in principal trading. Geman contends that the firm was not obliged to make any

disclosure beyond the fact that it would begin acting as a principal in some trades and that

this is so whether or not the firm acted in a fiduciary capacity. Whether the firm must be

held to a fiduciary standard is significant in determining the extent of its disclosure duties. 

We agree with the Commission that the firm should be held to the standard of a fiduciary

with respect to its wrap fee customers.

Geman argues emphatically that the firm should not be held to a fiduciary standard

because it was not acting as an investment advisor with respect to the transactions. 

However, Geman fails to address what we perceive to be the cornerstone of the

Commission’s holding on this point – that the firm held itself out as a fiduciary as noted

supra. Fundamental principles of agency law support the Commission’s conclusion that a

fiduciary relationship was formed. “Agency is the fiduciary relation which results from

the manifestation of consent by one person to another that the other shall act on his behalf

and subject to his control, and consent by the other so to act.” Restatement (Second) of

Agency, § 1(1) (1958). Here, the customers’ response to the firm’s promotional material,

which included the statement quoted above to the effect that the firm would act as a

fiduciary, established an agency with its attendant fiduciary duties. Id. at § 13 (“An agent
7Neither the ALJ Decision nor the SEC Opinion states that all customers in fact received

the promotional materials. But because both decisions relied on the brochure, because of

Geman’s omission of any challenge on this point and because of our deferential standard of

review, we view the issue as the administrative decision makers did. Also, we think the charges

against Geman would still have to be viewed as very serious even if less than all firm customers

were misled.

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is a fiduciary with respect to matters within the scope of his agency.”).7 Accordingly, the

firm must be held to fiduciary duties with respect to the wrap fee program.

The duties of a fiduciary are strictly defined. “Courts have imposed on a fiduciary

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’ his

customers.” SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 194 (1963). As

the Commission said here, “when a firm has a fiduciary relationship with a customer, it

may not execute principal trades with that customer absent full disclosure of its principal

capacity, as well as all other information that bears on the desirability of the transaction

from the customer’s perspective.” SEC Opinion at 13 (emphasis added). Other

authorities are in agreement. For example, the general rule is that an agent charged by his

principal with buying or selling an asset may not effect the transaction on his own account

without full disclosure which “‘must include not only the fact that the agent is acting on

his own account, but also all other facts which he should realize have or are likely to have

a bearing upon the desirability of the transaction, from the viewpoint of the principal.’” 

Arst v. Stifel, Nicolaus & Co., 86 F.3d 973, 979 (10th Cir. 1996) (applying Kansas law)

(quoting Restatement (Second) of Agency § 390 cmt. a (1958)). 
-12-

At this point it might be helpful to review the key facts underlying this issue. The

firm’s brochures told prospective customers that the firm would act as a fiduciary in

providing advisory and administrative services. The letters through which the firm

solicited its customers’ assent to the practice of principal trading told them that the

changes to the customer agreement were necessary to allow the firm to utilize new

automated systems. This constituted both an affirmative misrepresentation – offering a

completely false reason for asking the customers to consent to the amendment of the

agreement – and a misleading omission – failing to disclose the firm’s profit motive and,

in particular, the fact that the entire plan rested on the firm’s expectation that in many

cases a better price for a particular trade would be available on the same trading day that

the customer’s order was to be filled.

Geman contends that any reasonable investor would have understood that the firm

hoped to profit by trading as a principal and therefore that there was no duty to disclose

this fact. We may assume that Geman is correct that a reasonable investor would

understand that the firm hoped to profit by trading as a principal. But the firm did not

merely hope to profit at some undefined time. Instead, the firm calculated, correctly for

the most part as it turned out, that it could profit on the same trading day that the

customer’s order was filled. As the Commission stated in its opinion, the firm “sought to

cover its principal trades as quickly as possible and apparently did so ‘by the end of the

trading day.’” SEC Opinion at 23. (See discussion in Part II-D, infra.) The fact that a
8See note 1, supra.

9We note also that the ALJ’s finding that the firm fulfilled its duty to provide best

execution by executing its trades with the customers at the NBBO was based on In re Merrill

Lynch Securities Litigation, 911 F. Supp. 754, 771 (D.N.J. 1995), affirmed sub nom. Newton v.

Merrill, Lynch, Pierce, Fenner & Smith, Inc., 115 F.3d 1127 (3d Cir. 1997), in which the district

judge found that the duty of best execution was ambiguous due to evolving standards. That case

was subsequently reversed by the en banc court, 135 F.3d 266 (3d Cir. 1998), which held that the

evidence was sufficient to require a jury to decide whether, at the time in question, it “was

feasible to maximize the economic benefit to the customer by taking advantage of better prices

than the NBBO.” Id. at 272.

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more favorable price was often available on the same day was a material fact which the

firm had a duty to disclose.

Geman also argues that the fact that the firm hoped to profit from trading as a

principal was not material because the customers still received “best execution.” This

argument is not persuasive. The customers may have received best execution,8 meaning

the best price reasonably available at the time of the transaction, but customers might

have chosen to give different instructions had they been fully and properly informed. For

example, the customers could have done what the firm itself did to improve its return, and

that is to place limit orders in an attempt to benefit from price changes during the trading

day.9

It is clear that the firm did not live up to its duties of disclosure as a fiduciary. By

failing to inform its customers fully about the way it was conducting trades as a principal,

the firm deprived its customers of the opportunity to obtain for themselves the more

favorable prices that the firm was realizing in two-thirds of its principal trades. Clearly

the firm was guilty of breaching its fiduciary duties in this respect. 
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C. The SEC conclusion of violation of the anti-fraud rules

We turn next to the question whether this conduct violated the anti-fraud rules, as

the SEC found. With regard to this issue, we note that at oral argument Geman contended

that Rule 10b-5 is a codification of the common law of fraud and deceit and that this

proceeding marks an unwarranted expansion of that doctrine because, according to him,

there was no intent to defraud, no reliance, and no injury here. Although we usually do

not address contentions made for first time at oral argument, we believe that it is

important to point out that this argument is based on a faulty premise. An enforcement

action by the Commission is much different from a common law action for damages: 

“[T]he antifraud provisions of the securities laws are not coextensive with common law

doctrines of fraud. Indeed, an important purpose of the federal securities statutes was to

rectify perceived deficiencies in the available common law protections by establishing

higher standards of conduct in the securities industry.” Herman & MacLean v.

Huddleston, 459 U.S. 375, 388-89 (1983) (footnote omitted). The SEC is not required to

prove reliance or injury in enforcement actions. See SEC v. Rana Research, Inc., 8 F.3d

1358, 1363 & n.4 (9th Cir. 1993); SEC v. Blavin, 760 F.2d 706, 711 (6th Cir. 1985). See

also SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191-92 (1963) (similar

holding under the Investment Advisers Act).

Aside from the fact that Geman’s argument is unsupported by precedents, it fails

when considered in light of the overall aims of the securities laws and common sense. In
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effect, Geman proposes that the Commission should take no action until an investor has

suffered actual injury even when, as is the case here, the Commission is aware that a

broker-dealer or investment adviser is employing deceptive practices which are virtually

certain to lead to investor losses. The courts have rejected this contention for sound

policy reasons.

Unfortunately, the Commission has not assisted us by stating specifically what

elements, short of the elements of common law fraud, it did have the burden of

establishing in this enforcement action. The SEC Opinion affirmed the ALJ Decision that

the inadequate disclosures violated the following anti-fraud provisions: Section 17(a) of

the Securities Act of 1933, 15 U.S.C. § 77q; Section 10(b) of the Securities Exchange Act

of 1934, 15 U.S.C. § 78j, and Rule 10b-5 thereunder, 17 C. F. R. § 240.10b-5; and

Sections 206(1) and 206(2) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6. 

Section 17(a) of the Securities Act of 1933, in pertinent part makes it unlawful 

for any person in the offer or sale of any securities . . . directly or indirectly – 

(1) to employ any device, scheme, or artifice to defraud, or

(2) to obtain money or property by means of any untrue statement of a

material fact or any omission to state a material fact necessary in order to

make the statements made, in light of the circumstances under which they

were made, not misleading; or

(3) to engage in any transaction, practice, or course of business which

operates or would operate as a fraud or deceit upon the purchaser.

15 U.S.C. § 77q.

Similarly, Section 10(b) of the Securities Exchange Act provides in pertinent part:

 It shall be unlawful for any person, directly or indirectly, . . . – 
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 . . . 

 (b) To use or employ, in connection with the purchase or sale of any

security . . ., any manipulative or deceptive device or contrivance in

contravention of such rules and regulations as the Commission may

prescribe as necessary or appropriate in the public interest or for the

protection of investors.

15 U.S.C. § 78j. Rule 10b-5, promulgated under authority of this provision of the

Exchange Act of 1934, provides in part:

 It shall be unlawful for any person, directly or indirectly, . . . 

 (a) To employ any device, scheme, or artifice to defraud, 

 (b) To make any untrue statement of a material fact or to omit to state a

material fact necessary in order to make the statements made, in the light of

the circumstances under which they were made, not misleading, or 

 (c) To engage in any act, practice, or course of business which operates or

would operate as a fraud or deceit upon any person,

in connection with the purchase or sale of any security. 

17 C. F. R. § 240.10b-5.

Finally, Sections 206(1) and (2) of the Investment Advisers Act of 1940 provide:

 It shall be unlawful for any investment adviser . . ., directly or indirectly – 

 (1) to employ any device, scheme, or artifice to defraud any customer or

prospective customer;

 (2) to engage in any transaction, practice, or course of business which

operates as a fraud or deceit upon any customer or prospective customer[.]

15 U.S.C. § 80b-6 (1-2).

Other courts have indicated that the following are the elements the SEC must

prove to establish a misrepresentation violating Rule 10b-5: “(1) a material

misrepresentation, (2) in connection with the purchase or sale of a security, (3) scienter,

[and] (4) use of the jurisdictional means . . . .” SEC v. Rana Research, Inc., 8 F.3d 1358,
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1363 (9th Cir. 1993) (citing SEC v. Hasho, 784 F.Supp. 1059, 1106 (S.D.N.Y. 1992), and

SEC v. Tome, 638 F.Supp. 596, 620 & n. 46 (S.D.N.Y. 1986)). Depending on the

circumstances, the first element may be satisfied in alternative ways, such as by showing

an omission where there is a duty to speak. SEC v. Hasho, 784 F.Supp. at 1106. Such an

omission has been established here. With respect to this aspect of the case, Geman has

challenged only the materiality element, and we have rejected that challenge.

The Commission’s decision in this case is consistent with its prior interpretations

of the anti-fraud provisions. See In re Arleen W. Hughes, 27 S.E.C. 629 (1948), affirmed,

174 F.2d 969 (D.C. Cir. 1949). This view, to which we owe deference in any event, see

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), is a reasonable one, we conclude. 

We think that the Commission’s decision in Mr. Geman’s case is also supported by the

case law, especially SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180 (1963)

(violations of the Investment Advisors Act). We think the firm’s course of conduct, for

which Geman was clearly responsible, does indeed fall within the reach of the anti-fraud

provisions as the Commission decided. Thus the Commission’s ruling holding Geman

liable for the non-disclosures concerning the firm’s principal trading should be upheld.

D. Fraud in depriving customers of price improvement services

As described above, when the firm participated in transactions as a principal, the

customer would lose the possibility of getting a price better than the NBBO, a price that

was achieved in some trades through the “price improvement” services offered by two of
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the wholesale dealers that executed trades for the firm. The Commission found that the

firm had violated its fiduciary duties and the anti-fraud provisions discussed in Part II-B,

supra, by failing to disclose this fact. We agree.

Geman contends that the firm’s failure to disclose this fact does not constitute a

violation of the anti-fraud provisions, absent evidence that use of the price improvement

service would actually have benefitted any customer. This proposition is similar to the

previous one in that Geman contends that he and the firm are immune from discipline

absent a showing of one of the elements of common law fraud, in this case actual loss. 

And this contention fails for the same reason – because the SEC in an enforcement action

is not required to prove all of the elements of common law fraud.

In his discussion of this issue in his opening brief, Geman repeatedly relies on the

assertion that the Commission made a determination that the firm had provided best

execution, and he goes on to argue vehemently that this “precludes the Commission’s

finding of fraud based on a failure to inform customers that a price improvement

opportunity was available.” Petitioner Geman’s Opening Brief at 13. The Commission

did not make a finding that the firm had provided best execution, and counsel’s repeated

assertions to the contrary are very troubling to this court.

As noted supra, the ALJ made a finding of best execution which the Commission

declined to overturn, commenting that the firm’s “record keeping deficiencies

detrimentally affected the Division’s ability to assemble the requisite evidence in this
10The record keeping deficiencies are discussed infra in Part II-F of this opinion.

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case.” SEC Opinion at 29.10 The Commission further stated that, even though the

Enforcement Division had been unable to prove a violation of the duty of best execution,

“we nevertheless are deeply troubled by the Firm’s trading practices, particularly its

failure to utilize a price improvement service on behalf of its customers.” Id. at 30

(emphasis added).

E. The firm’s confirmation statements

The firm was required by Commission Rule 10b-10 to send a written confirmation

of each trade executed for a customer. The Commission affirmed the ALJ’s decision that

the firm violated a subsection of this regulation which, under the circumstances of the

firm’s principal trading, required the firm to disclose its profits from its covering trades in

its confirmation statements. Geman asserts that the Commission erred as a matter of law

in its determination that the firm was required to disclose in its confirmation statements

any profits it realized from trading as a principal.

As we have seen, when a customer placed an order with the firm, the traders were

instructed to gauge whether the transaction was one on which the firm might realize a

profit by acting as a principal. If so, the firm would buy the securities the customer

wanted to sell or, if the order were a buy order, would “sell” to the customer. In the latter

event, because the firm did not have an inventory from which to make the sale, the firm

would commit itself to acquiring the securities for sale to the customer at the customer’s
11The regulation has since been amended so that this provision no longer appears in this

subsection.

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stated price. See SEC Opinion at 7-9. Whether the trade it was executing as a principal

was a buy or a sell order, the firm would then seek to “cover” its commitment by an offsetting transaction. Id. Thus, if it bought 50 shares of a particular stock from the

customer, it would immediately try to sell those shares. Often, about two-thirds of the

time, the firm would succeed in executing a cover transaction at a profit. 

The provision of the Rule at issue states, in pertinent part, that if a broker or dealer

is not a “market maker” in the security being traded

and, if, after having received an order to buy from such customer, he

purchased the security from another person to offset a contemporaneous

sale to such customer or, after having received an order to sell from such

customer, he sold the security to another person to offset a

contemporaneous purchase from such a customer, the amount of any markup, mark-down, or similar remuneration received in an equity security [must

be disclosed].

17 C.F.R. § 240.10b-10(a)(8)(i)(A) (2002).11 In this case, the SEC held that for each

trade that the firm executed as a principal, the firm’s profit constituted a “markup,

markdown or similar remuneration” that the firm was required to report to the customer

who had placed the original order. This holding followed from the conclusion that the

firm’s covering trades were so closely connected in each instance to the customer’s order

that initiated the trading that the two should be viewed as two halves of a single

transaction, rather than as separate events.

In announcing the adoption of this rule, the SEC had said that “the purpose of
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requiring dealers in what are characterized as ‘riskless’ principal transactions to disclose

their mark-up or mark-down is to ‘enable customers to make their own assessments of the

reasonableness of transaction costs in relation to the services offered by broker-dealers.’” 

SEC Opinion at 21 (quoting Securities Confirmations, 15 SEC Docket 1245, 1250). The

Commission rejected Geman’s argument that the regulation is inapplicable to the firm’s

trading because the firm’s trades were not “riskless.” The Commission reasoned that the

critical features were that the principal trades at issue were contemporaneous and

designed to be offsetting, which are the two conditions set out in the rule.

The Commission cited an opinion letter issued from the staff of the Division of

Market Regulation in 1980. In that letter, addressing this same issue under similar

circumstances, the staff had opined that disclosure under the rule was required because

the transactions at issue, like those here, were “designed to be offsetting,” and were in

close time proximity. The SEC observed that it was implicit in the letter’s reference to

close time proximity that a brief interlude during which the firm was at risk due to

changes in the market was not sufficient to negate the disclosure rule. Acknowledging

that the “Market Regulation Letter” was not binding, the SEC adopted its reasoning while

rejecting Geman’s arguments.

On appeal, Geman relies again on the contention that the regulation is inapplicable. 

His argument focuses on the assertion that the firm’s principal trades were not “riskless”

transactions. The SEC counters with the assertion that the rule speaks to transactions that
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are contemporaneous and offsetting, without use of the terms “risk” or “riskless.”

Geman does not dispute that the trades were designed to offset the trades done to

fill the customers’ orders. As noted, the traders were instructed to execute the offsetting

trades quickly, always by the end of the trading day. The Commission’s ruling that this

temporal element satisfies the rule’s requirement that the trades be “contemporaneous”

appears to be a reasonable one. We need to say no more than that, given the deference

due to the agency’s interpretation of its own rule. See Chevron U.S.A., Inc. v. NRDC, 467

U.S. 837 (1984).

The Commission also ruled that the use in the confirmation statements of the

phrase “your price is reported price difference is zero” was misleading because it

“suggested falsely that there was no difference between the prices customers paid or

received in principal transactions with the Firm and the prices the Firm paid or received

in its covering trades that were reported . . . .” SEC Opinion at 23. This holding again

rested on the conclusion that the firm’s trades with its customers and its subsequent

covering trades should be viewed together. Having decided to affirm the Commission’s

ruling that the firm was required to disclose its profits on the confirmation statements, we

also affirm the ruling that the quoted phrase was misleading because it suggested that

there were no such profits.

F. Geman’s liability for the firm’s record keeping failures

This is the one area in which Geman contends that the SEC made an erroneous
12The applicable rules are found at 17 C.F.R. § 240.17a-3(a)(6-7).

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finding of fact. It is undisputed, however, that the firm failed to report its principal

transactions in violation of applicable rules12 from March 1993 to December 1993, as

described supra. It is undisputed that the person with primary responsibility for reporting

these trades was the firm’s chief financial officer, Vali Nasr. 

The Commission found that Nasr had no prior experience supervising a trading

department, which Geman asserts is clearly erroneous. Geman cites a single page of the

hearing transcript, where Nasr testified regarding his duties at the broker-dealer firm by 

which he was employed for about a year just prior to his joining Geman’s firm. Nasr

testified that he was the treasurer of that firm and that: “I oversaw – you know, made

sure – I kept track of the books and records and I did the regulatory reports.” 

(Transcripts Vol. 3 at 541.) Any inconsistency between this statement and the SEC’s

finding is less than obvious. More importantly, however, Mr. Nasr later in his testimony

was directly asked, “Now, prior to coming to PMC, had you ever had responsibility for

supervising a trading department?” Mr. Nasr answered, “No.” (Id. at 547.) We cannot

say, in light of this testimony, that it was clearly erroneous for the SEC to find that Nasr

had no experience supervising a trading department.

In any event, the issue is whether the Commission properly concluded that Geman

was responsible for aiding and abetting the record keeping failures of Nasr and the firm. 

In support of its conclusion, the SEC cited the fact that Geman had personally conducted
-24-

the correspondence with the NASD which culminated in the NASD’s decision to require

the firm to cease reporting the principal trades in the way it had been. Thus, Geman

clearly was aware of the cessation of reporting under the former system and, with his

extensive background and experience, surely knew that an alternative reporting practice

was necessary (which he does not deny). In spite of this, the SEC observed, Geman “took

no steps to ensure that – or inquire whether – [the firm] was making alternative

arrangements to satisfy record keeping obligations. Geman’s inaction, which was at the

very least reckless, amply supports a finding that he wilfully aided and abetted the Firm’s

record keeping violations.” SEC Opinion at 34.

Geman argues that he cannot be held at fault except under a theory of strict

liability because he reasonably delegated the record keeping duties to Nasr. We disagree. 

Mr. Nasr’s testimony establishes that Geman was more than just his titular supervisor

with respect to the reporting requirements. Nasr testified as follows on direct

examination by the SEC enforcement division attorney:

Q. Who was responsible for determining what kinds of records should be

kept to meet the requirement of recording the time of execution with a

customer?

A. I would say I would have been responsible to make sure that would

happen.

Q. Did Mr. Geman also have responsibility for that?

A. Well, again, I mean, I reported to Mr. Geman, and Mr. Geman was the

compliance officer and the head of the firm so, I mean, I was the

responsible party line person but Mr. Geman was involved as well.
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Transcripts vol. 3 at 551 (emphasis added).

We think that this is sufficient factual basis for the conclusion that Geman aided

and abetted the violations with a state of mind of recklessness, if not willful disregard.

G. The sanctions

As we have noted, the SEC affirmed the ALJ’s decision that Geman should be

barred from associating with a broker or dealer, investment adviser, member of a national

securities exchange or member of a registered securities association, but the agency held

that Geman should be allowed to re-apply after three years. The Commission agreed that

a substantial fine was appropriate, but reduced the fine from $500,000 to $200,000, which

is more accurately described as three fines totaling that amount. 

The sanctions were imposed under the authority of Section 21B of the Exchange

Act, 15 U.S.C. § 78u-2, and under Section 203(i) of the Advisers Act, 15 U.S.C. § 80b3(i). The agency determined that Geman’s role in the firm’s “fraudulent disclosure to its

customers” merited a “Third Tier” fine of $100,000, and that “Second Tier” fines of

$50,000 were appropriate for his conduct in connection with the firm’s record keeping

violations and its violation of Exchange Act Rule 10b-10(a)(8)(i)(A). The terminology of

Second Tier and Third Tier comes from the Exchange Act. A Third Tier penalty of up to

$100,000 (for a natural person) for each act or omission is authorized if – 

(A) the act or omission . . . involved fraud, deceit, manipulation, or

deliberate or reckless disregard of a regulatory requirement; and

(B) such act or omission directly or indirectly resulted in substantial

losses or created a significant risk of substantial losses to other persons or
-26-

resulted in substantial pecuniary gain to the person who committed the act

or omission.

15 U.S.C. § 78u-2(b)(3). A Second Tier penalty of up to $50,000 (for a natural person) is

authorized when a violation “involves fraud, deceit, manipulation, or reckless disregard

of a regulatory requirement” without regard to whether substantial losses or the risk

thereof or substantial gain has been shown.

Mr. Geman contends that the Commission abused its discretion in setting the

penalties for his actions. He argues first that because he did nothing at all that was

blameworthy, there should have been no discipline. This we must of course reject in light

of our foregoing holdings.

Geman next contends that he was punished too severely. He raises a number of

objections we will address briefly. First, with regard to the Third Tier penalty for what

the SEC termed his role in the firm’s “fraudulent disclosure to its customers,” Geman

repeats arguments that we have already rejected. To his assertion that there was no duty

to disclose the firm’s profit motive underlying its adoption of principal trading, we have

answered that there was affirmative misrepresentation as to the reason for the change, not

a mere failure to disclose that the motive was to make money, and we have held that it

was fraudulent and in breach of the firm’s fiduciary duties not to disclose that the firm’s

decision was based on its belief that, in many cases, it could get a better price than the

customer was getting within minutes or hours of filling the customer’s order. 

Moreover, Geman says that there was no duty to disclose that the firm’s trading as
-27-

a principal would deny the customers the opportunity for better terms through the use of

the price improvement mechanism available on some trades through the wholesale dealers

by which the firm executed its trades. Geman again relies on the lack of evidence that

any specific customer was deprived of this opportunity on any specific trade, and he terms

it a “non-existent” opportunity. 

We have held, however, that when the price improvement opportunity was

available on a significant portion of the firm’s business, about eight per cent of all trades,

the firm’s fiduciary duties to its customers prohibited the firm from taking advantage of

this to the detriment of its customers, absent specific consent which, of course, was never

solicited since the firm made no disclosure at all regarding this. In light of the fiduciary

duties owed, we have deferred to the SEC’s conclusion that this omission was fraudulent. 

Geman further argues that the non-disclosures must have been material to support a

holding of fraud, but we have no doubt that these facts would have been material to a

reasonable investor.

Geman further contends that he had no intent to defraud. It is well settled,

however, that recklessness is tantamount to intent. Geman assails the Commission for

having, throughout the years, enforced a standard that, he maintains, has diluted the

recklessness standard until it amounts to a mere negligence standard. We need not review

decades of administrative decisions because we agree with the SEC that recklessness, not

mere negligence, has been established here.
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With regard to the Second Tier penalties, Geman again asserts his complete

innocence, which assertion we have already rejected. Geman also argues that the SEC

did not find reckless or deliberate misconduct on his part with regard to the firm’s record

keeping dereliction. To the contrary, the agency found that his conduct “was at the very

least reckless . . . .” SEC Opinion at 34.

Conclusion

In sum, we hold that the SEC’s conclusions are consistent with controlling 

precedents, its findings are not clearly erroneous, and we find no abuse of discretion in

the penalties imposed. Accordingly the order of the Commission is

AFFIRMED.