DJ The Lawyer at the Center of SEC Pump-and-Dump Case -- Barrons.com
By Bill Alpert
In a stock fraud suit filed last month by the U.S. Securities and Exchange Commission, regulators allege that billionaire drug entrepreneur Phillip Frost and his company Opko Health participated in pump-and-dump schemes organized by investor Barry Honig.
The complaint in Manhattan's federal district court says that Honig and his associates bought stock in three small companies, controlled the firms' managements, and planted promotional articles about them before unloading their shares. The schemers reaped more than $27 million, the SEC charges, before leaving public investors with virtually worthless stock.
Unmentioned in the SEC's case is how all three public companies in the alleged swindles used the same securities law firm and the same stock transfer agency. SEC filings over the past decade show that nearly two dozen public companies backed by Honig, or other defendants in last month's SEC complaint, used securities lawyer Harvey Kesner, a 61-year old partner at the leading small-cap law firm Sichenzia Ross Ference, until he retired from the firm just before the SEC action. Those companies also happened to use Equity Stock Transfer, a New York outfit that SEC registrations show was financed and controlled by Kesner.
A prominent Honig-backed firm that Kesner represented was Riot Blockchain (ticker: RIOT), whose shares rose tenfold in last year's cryptocurrency surge, to $46, before falling back to a recent $3.40. Riot wasn't named in the SEC's case, but its chief executive, John O'Rourke, was. He has resigned and said he'll fight the civil charges that he colluded in Honig's alleged swindles.
Following the SEC charges, Frost stepped down as chairman from the brokerage firm he controls, Ladenburg Thalmann Financial Services (LTS). The 81-year-old Frost and Opko (OPK) deny the wrongdoings alleged in the SEC's action. Honig has made no public statement. He did not respond to Barron's requests for comment. One defendant, John H. Ford, quickly settled the SEC's charges, without admitting or denying allegations that he took undisclosed payments to tout a couple of the stocks on the website SeekingAlpha.com.
Securities lawyers and transfer agents are essential gatekeepers under federal regulations meant to protect the investing public. But one of the three companies featured in the SEC's New York case, the tiny biotech firm MabVax Therapeutics Holdings (MBVX), says that Honig forced it to hire Kesner and the Sichenzia Ross firm as a condition of his financing, according to a little-noted malpractice case that MabVax filed in a San Diego state court after the SEC case became public.
The MabVax suit contends that Kesner and his law firm advanced the interests of Honig at the expense of MabVax, deceiving the company and committing malpractice that led to its delisting from Nasdaq. Although MabVax had retained Kesner's law firm "to keep the company safe," says the biotech's complaint, Kesner's firm instead "put MabVax in harm's way."
Neither Kesner nor Equity Stock Transfer responded to Barron's requests for comment or in court filings. Kesner's former firm strongly denies that it wronged its client MabVax. "There are very serious misstatements and misleading facts alleged in the complaint, as well as errors in law, " says Mark Anesh, a malpractice specialist from the firm Lewis Brisbois, who will represent Sichenzia Ross' lawyers in the California case, but not Kesner. "The firm intends to vigorously defend the lawsuit, and in the end we fully expect that the claims contained therein will be found to be completely and utterly without merit."
Kesner was a rainmaker at many of the firms where he worked. Before Sichenzia Ross Ference Kesner -- as the New York firm was known until Kesner's August departure -- he'd been with the Dallas firm Haynes and Boone until the firm terminated him in 2009. In a lawsuit that was quickly settled, Kesner demanded $15 million from the Dallas firm and alleged that its partners defamed him by telling others "Harvey is dirty" and "had relationships with clients that the firm did not wish to associate with."
A Haynes and Boone spokesman said, "Mr. Kesner left the firm in March of 2009. We resolved our disputes at that time and have had no further contact with him."
After arriving at Sichenzia Ross in 2009, Kesner helped build the firm into one of the busiest securities law practices in America's small-cap stock market. The firm's website has been intermittently offline lately while it scrubs mentions of Kesner, but it had featured many tombstone announcements of deals that SEC filings show were bankrolled by Honig, Frost, and their investing associates. Sichenzia Ross' website said that it "consistently ranked at the top of national league table rankings for issuer, investor and placement-agent legal counsel."
In MabVax's California complaint against the law firm, the biotech says that Honig and his associates forced MabVax to hire Kesner as part of a 2015 financing. The complaint says that Kesner later said that he worked on at least five deals a year for Honig's investment group. MabVax said it had found 22 other companies backed by Honig's group where "Sichenzia and Kesner have been inserted as counsel."
MabVax claims that the advice it got from Kesner was secretly designed to serve clients such as Honig. In 2015, MabVax alleges that Kesner tipped Honig off to a potential legal issue that weakened his control over the company. Honig repaired his position and then forced MabVax to issue $10 million worth of securities -- for free -- to Honig and his investment associates, who secretly included Kesner.
The company also says that Kesner's law firm inserted legal language in Honig's deals so that the investors could deny that they were acting as a controlling group. But doubts about the legitimacy of Kesner's techniques have since forced MabVax to disclaim four years worth of its previous SEC filings, alleges the company, and caused its Nasdaq delisting.
Sichenzia Ross' outside counsel in the MabVax case, Anesh, would not comment on any details alleged by MabVax. As for MabVax, it declined to comment through its outside attorney, Joel Fleming of Block & Leviton.
A key player in the world of small-cap finance is a company's stock transfer agent, which can allow the sale of unregistered shares and convert warrants or preferred shares into common stock. In the SEC action against Honig and his associates, the agency says the group used "false attorney opinion letters" to get a transfer agent to remove restrictions from Honig's share certificates, so that Honig could sell the unregistered stock. The transfer agent for the public companies involved in the SEC case -- and more than another dozen funded by Honig -- was Equity Stock Transfer.
Equity Stock Transfer's initial SEC registration in 2011 says that it was funded by one of Kesner's limited-liability companies and managed by Avital Even-Shoshan, a partner who just left Sichenzia Ross and one of the defendants in MabVax's case. Other SEC filings said that the transfer agency's "control persons" included Kesner, his wife Renee, and an employee of Kesner's law firms, Mohit Bhansali.
In its March 2018 registration with the SEC, the transfer agency said that it still owed money to Kesner and that its ownership was divided between Bhansali and an Atlanta management consultant named Michael Beeghley. Both Bhansali and Beeghley have served as directors of Honig-backed companies, including Riot Blockchain and PolarityTE (PTE), a Salt Lake City biotech startup whose $18 shares value the unprofitable company at about $400 million.
"Stock transfer agents are the gatekeepers of securities," says Bhansali in an online video interview linked on the transfer agency's website. "Security for securities, that's what we do!" Neither Equity Stock Transfer, Bhansali, nor Beeghley responded to Barron's questions about the transfer agency.
Riot Blockchain's interim Chief Executive Chris Ensey says his company no longer uses Kesner as its securities lawyer or Equity Stock Transfer as its transfer agent. PolarityTE still uses the transfer agent, but stopped using Kesner and the Sichenzia Ross law firm in the spring of 2018. Unlike MabVax, PolarityTE's managers say they were satisfied with Kesner's legal advice. "We were never forced to use Mr. Kesner," says PolarityTE Chief Operating Officer Edward Swanson.
Write to Bill Alpert at william.alpert@barrons.com
(END) Dow Jones Newswires
October 04, 2018 13:50 ET (17:50 GMT)
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