On June 5, 2013, the SEC charged a microcap company that was ensnared in an SEC trading suspension proactively targeting questionable penny stocks, and also charged the CEO who illicitly profited from selling his shares while investors were unaware of the company’s financial struggles.
The SEC alleged that Laidlaw Energy Group and its CEO Michael B. Bartoszek sold more than two billion shares of Laidlaw’s common stock in 35 issuances to three commonly controlled purchasers at deep discounts from the market price. Laidlaw did not register this stock offering with the SEC, and no exemptions from registration were applicable. Bartoszek knew that the purchasers were dumping the shares into the market usually within days or weeks of the purchases to make hundreds of thousands of dollars in profits. Laidlaw’s $1.2 million in proceeds from these transactions was essentially the sole source of funds for the company’s operations during most of its existence. Laidlaw, which is based in New York City, purports to be a developer of facilities that generate electricity from wood biomass.
The transactions allegedly made by Laidlaw diluted the value of shares previously purchased by common investors in the market who were not told about the huge blocks of cheap stock Laidlaw was selling. Investors also were not aware that Laidlaw relied on these transactions to fund its operations entirely. The SEC suspended trading in Laidlaw stock in June 2011.
According to the SEC’s complaint filed in federal court in Manhattan, Bartoszek violated insider trading laws when he personally sold more than 100 million shares of Laidlaw common stock from December 2009 to June 2011, and he made more than $318,000 in profits. Bartoszek was in possession of material, non-public information while making these trades on the basis of his insider knowledge about Laidlaw’s poor financial condition, the illegal fire sale of more 80 percent of Laidlaw’s stock, and adverse developments about Laidlaw’s business prospects. As a result of the volume of Bartoszek’s sales and the lack of current, publicly available information about the company, these sales also violated the registration requirements of the federal securities laws.
The SEC further alleged that Laidlaw and Bartoszek made subsequent false statements about the ownership of Laidlaw shares in SEC filings to register certain common stock following the trading suspension. Laidlaw and Bartoszek misled investors to believe that the purchasers of the two billion unregistered shares had acquired them to hold as an investment in the company. The filings falsely represented that these purchasers were the current “beneficial owner” of more than 80 percent of Laidlaw’s common stock, an assertion that only could have been true if the purchasers had not sold any of their Laidlaw stock. In fact, as Laidlaw and Bartoszek knew, the purchasers had long ago dumped all of the stock.
The SEC’s complaint charged Laidlaw and Bartoszek with violations of Sections 5(a) and 5(c) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934. The complaint also charged Bartoszek with violations of Section 17(a) of the Securities Act and secondary liability under Sections 20(a) and 20(e) of the Exchange Act for Laidlaw’s violation of Section 10(b) of the Exchange Act and Rule 10b-5. The SEC is seeking disgorgement plus prejudgment interest, financial penalties, and injunctive relief, and penny stock and officer and director bars against Bartoszek.