Recent SEC action against Luca Funds highlights perils of EB-5 deals for investors

By Joel D. Rothman, Douglas Hauer

Here is a summary of the claims by the SEC in the Commission's recent action against Luca Funds, authored by Joel Rothman, an Attorney with Mintz Levin's Litigation Department and Institutional Investor Class Action Recovery Practice. 

The Securities and Exchange Commission (“SEC”) appears to be stepping up enforcement in the EB-5 area. On July 6, 2015, the SEC filed a complaint and a separate cease and desist order against the perpetrators of a Ponzi scheme targeting EB-5 investors. These enforcement actions highlight the perils that EB-5 investors face when dealing with unregistered brokers and investing in unregistered private placements. EB-5 investors should be sure to conduct thorough due diligence before investing.

The SEC complaint alleges that an oil and gas company and its CEO ran a Ponzi scheme that targeted Asian investors, including some solicited as part of the EB-5 program. According to the SEC, the CEO set up a number of investment funds (the “Luca Funds”) and engaged in a fraudulent scheme targeting the Chinese American community and Asian EB-5 investors.  Specific to the EB-5 program, the CEO and the CEO’s “chief fundraiser” recruited investors through seminars in China where, the SEC claims, they distributed brochures that “were unfounded and inconsistent with the actual performance” of the Luca Funds. Further the SEC alleges that the CEO raised approximately $8 million by representing in a private placement memorandum given to EB-5 investors that their money would be used to make fully secure loans that would finance the development costs for eight oil and gas drilling projects.  In fact, according to the SEC, the entity receiving the money, which the CEO controlled, had no realistic possibility of ever repaying the loans, and the CEO diverted the funds for personal gain.

The SEC’s complaint alleges the CEO violated of Section 17(a) of the Securities Act, and Sections 206(1), 206(2) and 206(4) of the Investment Advisors Act, by making material misstatements to investors in the Luca Funds.  The complaint further alleges that the CEO violated the registration provision of Sections 5(a) and 5(c) of the Securities Act through the unregistered offer and sale of securities in the Luca Funds. Additionally, the SEC claims that the CEO’s chief fundraisers violated Section 15(a) of the Exchange Act “by receiving hundreds of thousands of dollars in commissions for soliciting investment in the Luca Funds without being registered broker-dealers.”

In connection with the complaint, the SEC issued a cease and desist order to another individual who, according to the SEC, solicited investments from Japanese investors in furtherance the Ponzi scheme in violation of Section 15(a) of the Exchange Act. The order requires the solicitor to disgorge the commissions that he earned, totaling more than $1.1 million.

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    Joel D. Rothman

    Special Counsel

    Joel D. Rothman is an attorney who handles commercial, securities, insurance, and employment litigation matters for Mintz clients. Joel advises institutional investors on securities class actions, represents shareholders in merger disputes, and counsels insurers in coverage disputes.

    Douglas Hauer

    Member

    Douglas Hauer is a Mintz attorney and noted authority on the EB-5 investor visa program, which gives developers a path for securing capital for real estate, hospitality, and infrastructure projects. He's an essential resource for companies looking for financing from offshore sources.