Viewed in this light, the Supreme Court case dealt with a basic issue: the rights of private property owners versus the rights of a democratically elected government. [183] In considering the appropriate sanctions, we must consider the impact of those sanctions on the Applicants. [227] We find that it is also appropriate to reprimand Alboini. The owners said no; the government said yes. Industrial Revolution Reference Library. [160] Sanctions Guideline 4.5 sets out factors to consider and recommended sanctions where the misconduct at issue involves the failure to keep and maintain at all times current books and records necessary to record business transactions properly (breaches of IIROC Rules 17.2 and 200) (which is alleged in Count 5(a)). In 1955 the Northern Pacific and Great Northern renewed talks of … A. In that case, the respondent suspected the firm's bookkeeper of fraud and immediately took corrective measures to reconcile the bank balances. Accordingly, specific deterrence is not necessary. [201] We heard evidence and strong submissions from Alboini as to the negative impact of the IIROC Decision on Alboini and NSI. Armonk, NY: M. E. Sharpe, 1994. NFC's total liabilities of $5,169,098 may be compared with its total liabilities of $2,958,131 as at March 31, 2012 before the IIROC Decision was released. The Commission found that the affidavits relating to the financial impact of proposed sanctions and character evidence are relevant to determining sanctions. [50] IIROC Staff has requested that the following sanctions and costs orders be made against the Applicants in this Sanctions and Costs Hearing: (a) sanctions against Alboini in relation to Count 1: (ii) a two-year suspension from registration in all capacities; (iv) Alboini disgorge $244,985 in commissions; (b) sanctions against Alboini in relation to Count 5(a), a fine of $35,000; (d) sanctions against NSI in relation to Count 5(a), a fine of $50,000 and costs of $15,000; (e) sanctions against Vance in relation to Count 2: (ii) a three-month suspension from registration in any supervisory capacity; and. The Panel also orders that Alboini disgorge the commissions earned by him in respect of the trades made in NSI's TA Account between August and November 2008, the amount thereof to be disclosed to IIROC by NSI and paid within 30 days of the date of this decision. 105(d) and Commission Decision, supra at para. Furthermore, if the leasehold improvements were accounted for properly, NSI would have been in "early warning" status on six occasions. Some of his political opponents argued that the government had no business interfering with business, and that in fact privately owned businesses were a necessary check on government power. The Panel also orders that Alboini be suspended from approval by or registration with IIROC in all capacities for two years commencing 14 days after the date of this decision, and that Alboini be permanently barred from approval by, or registration with IIROC as a UDP anywhere in the industry commencing 14 days after the date of this decision. 234 to 235); (c) the trading in the TA Account was inappropriate and permitted Jaguar to free-ride on Penson's capital (Commission Decision, supra at paras. [235] Alboini raised again the issue of the alleged prejudice arising from the confidential risk trend report ("RTR") that indicated that NSI was a high-risk firm. In our view, the failure of the IIROC Panel to provide reasons on the merits before the sanctions and costs hearing was unfair to the Applicants in the circumstances. [199] With respect to Count 2, we found that Vance engaged in serious misconduct by failing to make sufficient inquiries in response to the following red flags: (Commission Decision, supra at paras. [42] The Commission gave oral reasons on May 12, 2014. [81] According to IIROC Staff, these transactions exploited the "gap" in understanding between NSI and Penson in regards to which party was required to hold regulatory capital to cover purchases in the TA Account. I should have put in place independent responsibility for decision-making in the hands of Doug Chornoboy, Fred Vance and [our general counsel] because as UDP I was conflicted. [122] Alboini and NSI submit that the IIROC Panel's expressed fear of public statements by NSI and Alboini demonstrated that the IIROC Panel had an improper motive in considering sanctions and costs and as such they were biased when imposing sanctions. In his testimony, Alboini indicated that he is currently working in the securities industry through Added Capital, a division of NFC that was set up to focus on mergers and acquisitions advice and merchant banking. This issue was also addressed in the Commission Decision: The NSI RTR was not used or relied on by IIROC in the IIROC proceeding. Jaguar Financial Corporation ("Jaguar") is a publicly traded company whose shares are traded on the TSX. [115] Alboini and NSI submit that there were further financial consequences from the IIROC Decision. There may be significant financial benefits that can be obtained as a result of a contravention of IIROC Rules. As a result of this error, NSI was also held liable for the breach of IDA By-law 17.2 and IIROC Rule 17.2 (IIROC Decision, supra at para. [185] Another important consideration is the role that each of the individual Applicants had with NSI and the level of their responsibility. We note that IIROC Staff did not make specific submissions at the Sanctions and Costs Hearing on the issue of ungovernability and did not tender any evidence to show that Alboini was ungovernable. The IIROC panel in Re Stevenson found the CCO's conduct to have "besmirch(ed) the reputation of the firm where they work, and, ultimately, the entire securities industry" (Re Stevenson, supra at para. Lochner v. However, the date of retrieval is often important. In our view, there are no valid grounds for us to conclude that the references to the NSI RTR significantly prejudiced the Applicants or rendered the IIROC Hearing procedurally unfair or an abuse of process. Other Issues Raised by Alboini at the Sanctions and Costs Hearing. 5. The Commission agreed with the IIROC Panel's conclusion that Alboini was ultimately responsible for Chornoboy's error. [47] The Commission gave oral reasons on May 12, 2014 and dismissed the Cross-Motion. (Sanctions Guidelines, supra at pages 9 to 12). [170] In Re Benarroch, supra, a UDP permitted and facilitated suspicious transactions in client accounts without making diligent inquiries to ensure the legitimacy of the transactions. We note, however, that Alboini confirmed that he can continue to carry on some of his business activities even though he is not registered. The company's lawyers also argued that there was a difference between conducting interstate commerce (business between states), which the federal government had the Constitutional power to regulate, and the act of buying or selling shares in a railroad company. One of IIROC's roles is to establish appropriate standards of conduct in the securities industry and not every action or activity can be expressly addressed in specific IIROC Rules. [6] The following background facts were agreed to at the hearing (the "IIROC Hearing") before the IIROC panel (the "IIROC Panel") in this matter and are set out in paragraph 4 of the IIROC Panel's decision (Re Northern Securities (2012) IIROC 63 (the "IIROC Decision")): 1. It took over twenty years before the federal government, under President Theodore Roosevelt, got around to challenging the "trusts" in court. [242] We did not receive any submissions on sanctions and costs from Vance because he was unable for medical reasons to provide instructions to his counsel. In a much larger sense, the Northern Securities decision opened the way for greatly expanded regulation by the federal government of companies, most of which engage in interstate commerce. [206] With respect to the ability to secure a new carrying broker, we note that Penson did not stop acting as NSI's carrying broker due to the IIROC Decision. Count 3: From 2006 to 2010, NSI, Alboini, as Ultimate Designated Person, and Vance, as Chief Compliance Officer, repeatedly failed to ensure that NSI corrected deficiencies found in three business conduct reviews and one trading review, thereby engaging in conduct unbecoming or detrimental to the public interest, contrary to IDA By law 29.1 and IIROC Dealer Member Rule 29.1. [244] Relevant decisions have emphasized the crucial "gatekeeper" function of the CCO, and the importance of the supervisory role of the CCO in a Dealer Member firm (see Re Murdoch, supra, Re Stevenson, supra and Re Benarroch, supra). 229). It seems to us that Warnes does not in any way indicate that general deterrence can be taken into account for punitive purposes, but rather, in the securities law context, that it can be taken into account in determining what is necessary to restrain conduct by others that is likely to be prejudicial to the public interest in having capital markets that are fair and efficient. At all material times, Alboini was a shareholder of NFC and its President and CEO. Amount of losses or compensation for which the Dealer Member is liable as a result of the employee(s) misconduct; 4. The Antitrust Impulse: An Economic, Historical, and Legal Analysis. of § 1 of the Sherman Act. "Northern Securities Co. v. United States, 193 U.S. 197 (1904). " In addition, Alboini and NSI emphasized that Chornoboy admitted the conduct relating to Count 5(a) and that in light of these admissions, they should not also be held responsible for this conduct. Further, one of the issues that the IIROC Panel was required to address at the sanctions and costs hearing was whether the sanctions and costs imposed were proportionate to the conduct and circumstances of the Applicants. However, the Commission indicated that the witnesses would not be permitted to testify as to conduct relating to the findings on the merits on Counts 1, 2 and 5(a). 0 0 1. That knowledge would have been important to Alboini in formulating his submissions on sanctions and costs. This practice had long been recognized as the nature of the business; did the Northern Securities Company do something beyond this sort of consolidation? [Based on earlier Supreme Court decisions it is clear] that although the act of Congress known as the anti-trust act has no reference to the mere manufacture or production of articles orcommodities within the limits of the several states, it does embrace and declare to be illegal every contract, combination, or conspiracy, in whatever form, of whatever nature, and whoever may beparties to it, which directly or necessarily operates in restraint of trade or commerce among the several states or with foreign nations; That the act is not limited to restraints of interstate and international trade or commerce that are unreasonable in their nature, but embraces all direct restraints imposed by any combination, conspiracy, or monopoly upon such trade or commerce; That railroad carriers engaged in interstate or international trade or commerce areembraced by the act; That combinations, even among private manufacturers or dealers, whereby interstate or international commerce is restrained, are equally embraced by the act; That Congress has the power to establish rules by which interstate and international commerce shall be governed, and, by the anti-trust act, hasprescribed the rule of free competition among those engaged in such commerce; That every combination or conspiracy which would extinguish competition between otherwise competing railroads engaged in interstate trade or commerce, and which would in that way restrain such trade or commerce, is made illegal by the act; That the natural effect of competition is to increase commerce, and an agreement whose direct effect is to prevent this play of competition restrains instead of promoting trade and commerce; That tovitiate a combination such as the act of Congress condemns, it need not be shown that the combination, in fact, results or will result, in a total suppression of trade or in a complete monopoly, but it is only essential to show that, by its necessary operation, it tends to restrain interstate or international trade or commerce or tends to create a monopoly in such trade or commerce and to deprive the public of the advantages that flow from free competition; That the constitutionalguaranty of liberty of contract does not prevent Congress from prescribing the rule of free competition for those engaged in interstate and international commerce; and, That under its power to regulate commerce among the several states and with foreign nations, Congress had authority to enact the statute in question.…, The means employed in respect of the combinations forbidden by the anti-trust act, and which Congress deemedgermane to the end to be accomplished, was to prescribe as a rule for interstate and international commerce (not for domestic commerce [within one state]) that it should not bevexed by combinations, conspiracies, or monopolies which restrain commerce by destroying or restricting competition. ", (d) "It is clear that I wore too many hats which caused concern to IIROC in these proceedings. The Court ruled 5 to 4 against the stockholders of the Great Northern and Northern Pacific railroad companies, who had essentially formed a monopoly, and to dissolve the Northern Securities Company. [253] Finally, we recognize the fact that Chornoboy has already suffered significant negative consequences as a result of his error. In August 1807 Robert Fulton’s steam-powered ship, the Clermont, traveled up the Hudson River from New Y…, At the beginning of the twentieth century, U.S. reformers sought to end the practice of child labor. [96] IIROC Staff suggests that there were several mitigating factors to consider as well: Vance did not have any prior disciplinary record, Vance was not involved in Alboini's trading practices, and Vance did not directly benefit from NSI's and Alboini's misconduct. Thus, as stated in article 6 of thebill, "by making the stockholders of each system jointly interested in both systems, and by practically pooling the earnings of both for the benefit of the former stockholders of each, and byvesting the selection of the directors and officers of each system in a common body,to wit , the holding corporation, with not only the power, but the duty, to pursue a policy which would promote the interests, not of one system at the expense of the other, but of both at the expense of the public, allinducement for competition between the two systems was to be removed, avirtual consolidation effected, and a monopoly of the interstate and foreign commerce formerly carried on by the two systems as independent competitors established." [31] The IIROC Panel issued its brief decision on the merits on July 23, 2012. [37] On April 21, 2014, IIROC Staff brought a motion to limit the scope of Alboini and NSI's proposed evidence at the Sanctions and Costs Hearing (the "IIROC Motion"), and on May 5, 2014, Alboini and NSI filed a cross-motion to dismiss the IIROC Proceeding (the "Cross-Motion"). The decisions in state courts upon this general subject are not only numerous and instructive, but they show the circumstances under which the anti-trust act was passed. [260] We have considered the same mitigating factors referred to in paragraphs 251 and 252 above. Alboini has not been employed by NSI since March 2013 and Alboini does not believe that he can work in the securities industry again. As a result, on June 10, 2014, counsel for Vance requested an adjournment on behalf of Vance (see paragraph 242 of these reasons). (2d) 475, the Ontario Court of Appeal stated: The absence of such a definition requires the board to judge the appellant by the objective standards of his own profession. The Court ruled 5 to 4 against the stockholders of the Great Northern and Northern Pacific railroad companies, who had essentially formed a monopoly, and to dissolve the Northern Securities Company. The appropriate forum for those submissions is an appeal to the Divisional Court, if Alboini and NSI wish to file one. The CCO in Re Stevenson accepted personal loans from a representative who was under his supervision, thereby raising a significant conflict of interest in his supervisory role. [245] We find that Vance's failure to properly supervise Alboini and inquire into the ten new Jaguar accounts, and into Alboini's trading activities, constituted serious misconduct. The payments were financed by Alboini's loans made to NFC in the total amount of approximately $217,000; (g) NFC incurred a loss of $6,049,000 for the fiscal year ended March 31, 2013; (h) NFC's debt increased from $2.6 million as at March 31, 2012 to $5.2 million as at March 31, 2013; and. In Re Matthews and Board of Directors of Physiotherapy (1987), 61 O.R. 10) and the fact that the respondent had agreed to a voluntary payment plan to compensate the Dealer Member for client losses (the payments totaled $154,041.83) (Re Cuthbertson, supra at para. (1) In addition to imposing any of the penalties set out in Rule 20.33, 20.34 or Rule 20.45, the Hearing Panel may assess and order any Corporation Staff investigation and prosecution costs determined to be appropriate and reasonable in the circumstances. However, due to medical issues, this witness was unable to attend and provided a written statement instead. 227 to 233); (b) there was a conflict of interest between Alboini's obligations as UDP, RR and CEO of NSI and his interests as CEO and a shareholder of Jaguar (Commission Decision, supra at paras. We always set up a "project" investment. Staff of the Commission ("Commission Staff"), while present during the Sanctions and Costs Hearing did not make any submissions. 69; see paragraph 229(d) above). (Commission Decision, supra at para. [99] IIROC Staff submits that the breach committed in Count 5(a) is significant because it was in the period of time when the activities in Count 1 occurred. Those whowere stockholders of the Great Northern and Northern Pacific and became stockholders in the holding company are now interested in preventing all competition between the two lines, and, as owners of stock or of certificates of stock in the holding company, they will see to it that no competition is tolerated.… No scheme or device could more certainly come within the words of the [Sherman Antitrust] act,—"combination in the form of a trust or otherwise … in restraint of commerce among the several states or with foreign nations. The settlement agreement considered several mitigating factors such as the fact that the respondent had no prior disciplinary record; the breach was technical; no client was put at risk and no clients suffered prejudice; the breach was not intentional; the respondent cooperated fully during the investigation and there was never any negative RAC as a result of the breach. The Sanctions Guidelines were established by IIROC to assist with determining appropriate sanctions to be imposed as part of a settlement agreement or at the end of a disciplinary proceeding. Industrial Revolution Reference Library. The American economy changed substantially following the American Civil War (1861 – 1865). [261] We note that NSI does have a prior disciplinary record and has entered into three settlement agreements referred to in paragraph 239 of these reasons. The IIROC panel considered aggravating factors such as the fact that the UDP permitted and facilitated suspicious transactions; the UDP personally participated in and benefited from the transactions; there were multiple incidents over a number of years; the conduct was intentional and the UDP's experience in the industry. 263). There will, however, always be negative consequences to a registrant from an IIROC sanctions order and those consequences are recognized as a consideration in imposing sanctions. [271] We find that costs should not be ordered against Alboini and Chornoboy with respect to Count 5(a). The Sanctions Guidelines emphasize that "[s]anctions should be based on the circumstances of the particular misconduct by a respondent with an aim at general deterrence" (Sanctions Guidelines, supra at page 8). For Douglas Michael Chornoboy and Frederick Earl Vance, For the Investment Industry Regulatory Organization of Canada. The term "trust" derives from English common law. 26). [229] During the course of his submissions, Alboini raised a number of issues relating to Count 1 which were previously addressed in the Commission Decision. That is a substantial amount that is slightly in excess of the commissions we have ordered disgorged below. The branch manager received a twelve-month suspension from acting in any supervisory capacity and a fine of $50,000. [18] It is these findings that we must consider in determining appropriate sanctions to impose on Alboini in respect of Count 1. The Northern Securities Case In general, by the first decade of the twentieth century American railroads were consolidating into great interregional systems. However, Vance's misconduct was not as severe as the conduct in the decisions referred to us by the parties in their submissions. The Northern Securities Case in effecting a reorganization of the Northern Pacific, entered into an arrangement with Mr. Hill by which the stockholders of the Great Northern were to … The IIROC Panel issued an oral decision on the merits on July 23, 2012 with reasons to follow. The Commission found that Alboini would not have known in advance of the sanctions and costs hearing that his resistance to governance or ungovernability would be an issue at that hearing and he would not have known what findings the IIROC Panel was relying on to support a permanent ban. 16). [87] With respect to Alboini's submissions regarding the impact of the IIROC Decision on him and NSI, IIROC Staff submits that Alboini's impact evidence was unsubstantiated. 236 to 243); (d) Penson was misled by Alboini (Commission Decision, supra at para. This was the case … [38] IIROC Staff objected to certain affidavits and witnesses that Alboini and NSI intended to introduce or call at the sanctions and costs hearing. 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