Wall Street's Wild West
Investors are largely on their own in the penny stock market, as the case of Mark Ellis' Winsted Holdings shows.
By RONALD CAMPBELL
The Orange County Register
In early 2003 Irvine businessman Mark Ellis bought control of Indiginet, a nearly broke public company.
Over the next three years, by Ellis' own accounting, the renamed Winsted Holdings paid him more than $60 million in stock and $3 million in cash.
But an Orange County Register investigation found his success came at a high price to others: employees whose paychecks bounced, landlords with unpaid rents, and franchisees saddled with unexpected six-figure bills.
Investors as a group fared worst of all. If you had purchased $1,000 in shares when Ellis took over, your stake would now be worth three hundred-trillionths of a penny.
Selling stock was Winsted's primary business. From 2003 to mid-2006, the company sold at least 3 billion shares for nearly $4 million.
Thebuyers were small investors such as Shaker Zayed, 22, who plays the stock market while working in his father's Cleveland convenience store. He and his father bought 9 million shares of Winsted for $900 last August because of a rumor on an Internet message board.
Today, that stock is essentially worthless.
Even after the Securities and Exchange Commission opened a fraud investigation in June 2005 and even after the agency took Ellis to court in March 2006 to force him to testify, the SEC let Winsted sell tens of millions of shares at a time.
The Ellis story shows that the penny stock market – the darkest corner in American finance – also is the neighborhood with the fewest cops.
The rules that Congress and the SEC enacted 15 years ago to protect penny stock investors were written for a world without online trading, spam and message boards.
"This case discloses a lot of weaknesses in our regulatory system," said James J. Angel, a finance professor at Georgetown University and an expert on financial markets. "Here's a guy who's already on the SEC's list. … They have to go to court to make him testify. And they're letting him sell stock to the public."
While SEC officials declined to comment specifically on Ellis or Winsted, deputy enforcement director Peter Bresnan said, "We're redoubling our efforts to investigate micro-cap fraud, which remains a top priority of the enforcement division."
Ellis, 40, declined repeated requests for an interview but did answer a few questions posed by e-mail.
"There is no story here," he wrote. "Business(es) start up and close down all of the time. Do you write about them?"
ON THEIR OWN
For 70 years, federal law has required public companies to disclose "material facts" – anything that might influence an investor's decision to buy or sell. And for 70 years, federal law has assumed that investors would read these disclosures.
But a growing body of research shows that most investors don't bother.
"How much of the general public even knows what a 10-K or 10-Q is?" asked Laura Frieder, an assistant professor of finance at Purdue University, referring to the annual and quarterly reports that public companies file with the SEC."It's extremely burdensome. If you're working 40 to 60 hours, how much time does (an investor) really have to investigate this stuff?"
Since taking over Winsted in early 2003, Ellis has filed 90 public reports with the SEC. Together, they take up 7.6 megabytes on the SEC Web site – 1 ½ times the size of the collected works of Shakespeare. Like most such disclosures, Winsted's are littered with legalese and accounting terminology. Some run more than 100 pages.
Anyone with the time and patience to study Winsted's reports could have discovered many red flags. With most companies, however, an investor doesn't have to play financial detective.
In the top tier of American finance – the world of Nasdaq and the New York Stock Exchange – stock analysts and financial journalists do the detective work for small investors by digesting quarterly and annual reports into a page or a paragraph or maybe a single word like "Buy" or (far less often) "Sell."
But in the lowest tier of American finance, the Over-the-Counter Bulletin Board and Pink Sheets, investors get their information from puffed-up news releases, delivered via message boards and e-mail spam.
The informal cops are missing. The SEC is the lone watchman.
The penny stock market is "the wild, wild West," Angel said. "For the cowboy who does wander into the wild, wild West, they're on their own."
Ellis is a California native and an amateur bodybuilder who started his first business at age 25. Former colleagues describe him as energetic and a bit bombastic, a born salesman.
"He was kind of a Ralph Kramden type," said Bryan Burlison, referring to the Jackie Gleason character on "The Honeymooners." Burlison worked for Ellis for 1 ½ days in 2005 and quit, he said, without cashing his paycheck.
"He spins this swirling, phantasmic tale, and you – and I – bought it," said Shannan Ryan, who paid Ellis $40,000 in mid-2005 for a medical spa franchise in Jacksonville, Fla. "I bought it hook, line and sinker."
Ellis was 29 when he first got in trouble with regulators.
In 1996, the Federal Trade Commission alleged he was falsely promising that his Huntington Beach business, Universal Credit Corp., could improve customers' credit reports. Ellis and his wife settled by closing their business and paying the FTC $50,000. They did not admit any wrongdoing.
Ellis switched to selling long-distance telephone service. To raise money, he sold stock in his company, Norstar Communications.
Official documents show his salesmen cold-called residents, offering shares in Norstar for $1.60 each. It was a great deal, one salesman explained, because the shares would be worth $12 to $15 each in a few months when Norstar went public.
Norstar never went public. Regulators in Missouri, Pennsylvania and Colorado all ordered Norstar to stop selling unregistered stock.
Meanwhile, the Federal Communications Commission fined another Ellis company, Universal Broadband Communications, for "slamming" long-distance customers – shifting them without permission to new carriers.
By late 2002, his long-distance business was running out of money. Ellis failed to pay the $16,000-a-month rent that November and December for his 10th-floor suite in an Irvine tower.
Ellis bought Winsted and moved on.
A FLOOD OF SHARES
When Ellis took over Winsted, the company had no business and few assets. Over the next three years, he raised cash by issuing at least 3 billion new shares.
To put that number in perspective, General Motors, with $469 billion in assets, has just 565 million shares outstanding.
From 2003 through mid-2006, Winsted sold stock for $3.8 million. The company in turn spent most of that cash on salaries for Ellis and his wife. That's legal if the stock itself is properly issued. But Winsted would later disclose that many of its stock sales "violate(d)" or were "possible violations" of securities laws.
The huge volumeof stock sales profited Ellis but hurt other investors by watering down the value of their shares. Investors got hurt quickly. In the four months after Ellis began issuing stock, Winsted's stock price fell by 93percent.
So Ellis employed a standard technique to boost the price – a reverse stock split.
In a typical reverse split, a company would replace, say, five old shares with one new share. The one new share would be worth as much as the five old shares combined. Companies frequently do reverse splits to boost their share price above $5, the minimum required to attract the notice of big investors.
For example, HealthSouth did a one-for-five reverse split in October as part of its effort to recover from an accounting scandal. Tyco, another big company damaged by scandal, plans a one-for-four reverse split later this year.
In August 2003, Ellis, as the dominant shareholder in Winsted, decreed a one-for-250 reverse split.
Within seven months Winsted issued 300 million new shares.
That put more money in his pocket but drove down the stock price again, setting the stage for another reverse split. He repeated this cycle – a reverse split followed by a torrent of new shares – five times in 2 ½ years.
His largest was a reverse split exchanging one share for 1,500.
If Winsted had been traded on the New York Stock Exchange, the exchange itself would have intervened to stop the company from harming shareholders. But Winsted was traded on the Bulletin Board, a price quotation service for brokers. There was no exchange to stand up for shareholders.
"There is nothing wrong with reverse splits," Ellis said in an e-mail to the Register.
The SEC disagreed. In a letter to Winsted, it said the "pervasive pattern of reverse splits" appeared to violate federal securities law.
Penny stocks are a gambler's market.
"It is a very high-risk proposition," said Manuel Rodriguez, a Winsted investor from Hialeah, Fla, "and if you have the stomach for it, fine. If you don't, you wind up with ulcers."
The risk is part of the appeal. A penny stock can and often does swing 50 percent in a single day.
"This is a little more exciting" than normal stocks, said Atlanta resident and Winsted investor Robert Jackson. "It keeps me from running to Las Vegas."
Penny stock investors aren't just gamblers, however. Some also are naïve.
"You're dealing with investors who are uninformed or got a tip from their barber or spam," said Peter D. Wysocki, an accounting professor at the Massachusetts Institute of Technology. "Unfortunately, there's (always) a new crop of uninformed individuals. …There's a new batch who haven't been burned yet."
Penny stocks, Angel said, are for "the kind of person who likes to look through junk on the curb."
Of the 5,000 or so companies on the Pink Sheets, Angel said, several hundred are doing little more than dumping their shares on the public.
But there also are some reputable penny stock firms like Ohio Art Co., maker of the Etch A Sketch. And there are many startups hoping to be the next Nasdaq National Market Inc., which graduated from the Bulletin Board to Nasdaq in 2005.
Despite their tawdry reputation, "98 percent (of penny stock companies) are run by real people who are decent," said Frank Speight, who heads a 400-member lobbying group for penny stock companies, the Microcap Company Political Alliance Corp. He also runs American Capital Partners Limited, a penny stock company in West Palm Beach, Fla.
Speight argues that the nation's 15,000 penny stock companies are being crushed by regulation. At the same time, however, he said investors aren't getting enough solid information about tiny public companies. Instead, he said, they have to rely on spam e-mail and message boards that "are totally unregulated … and can make some outlandish claims."
Ellis seized investors' attention with a blizzard of news releases, more than 50 in 2005 alone.
Online news services like Yahoo Finance routinely carried his releases. He also bought coverage, paying $5,700 in cash and stock in September 2005 for plugs on IBC Radio Network's "Stock Talk Live."
His news releases ricocheted around the Internet as investors posted and reposted releases on message boards such as Raging Bull, which carried 1,600 postings on Winsted, and AllStocks .com and Investors Hub (300 postings each).
On Sept. 20, 2005, for example, as the nation was reeling from Hurricane Katrina, Ellis announced that Winsted had acquired 90 percent of GaeaCare, an environmental services company.
"We believe that with the federal government tripping over themselves to get New Orleans cleaned up as fast as possible, GaeaCare is in the right place at the right time," Ellis said in the news release.
Winsted stock doubled that day.
Two months later, in a routine regulatory filing, Winsted disclosed that it had paid just $3,000 for GaeaCare. Accountants decided the GaeaCare stock had no value and wrote it down to zero. Buyers of Winsted stock had paid about $547,000 on Sept. 20 to get a piece of the GaeaCare deal – 182 times what Winsted paid for the company.
RED FLAGS WAVING
In August 2003, Winsted disclosed a problem.
The SEC allows companies to issue stock as compensation. But it sets stiffer rules when a company raises capital from stock sales. Winsted sidestepped those rules by repeatedly issuing stock in the guise of compensating officers and consultants, then keeping 85 percent of the money for itself.
The company acknowledged in a 16-page filing that it had used these stock sales to raise capital – a violation of SEC rules.
In November 2003, Winsted's auditor abruptly resigned. The auditor said in an SEC filing that the company had used the stock proceeds to loan Ellis $253,000, a possible violation of federal securities law.
At a more prominent company, the auditor's resignation would raise a big red flag. But Winsted was not an ordinary public company. No analysts or reporters or lawyers drew investors' attention to the auditor's letter.
On the day the auditor resigned, Ellis and his wife bought a $1.875 million home in Corona del Mar, on the ocean side of Pacific Coast Highway.
The year 2004 was terrible for Winsted but a great year for Ellis. The company's dying long-distance and Web design businesses eked out $24,000 in revenue. For that performance, Winsted paid Ellis $692,000 in cash and $58.3 million in stock.
At a more prominent company, a pay package like this would draw newspaper headlines and perhaps a challenge at the annual shareholders meeting. But Winsted was too small to attract the attention of the financial media. And dissident shareholders had no way to voice their objections.
The dominant shareholder, Ellis, never convened a shareholders meeting.
MED SPA FRANCHISES
By late 2004 Winsted had a new way to make money: medical spas dispensing Botox, laser hair removal and other beauty treatments.
Ellis and his wife opened Bare Skin Medspa near Fashion Island in Newport Beach in mid-2003. In summer 2004, he formed two companies, Nu Image Medspas and Medspa Solutions, to franchise med spas and provide consulting services to their owners.
In early December, he, his wife and three partners sold Medspa Solutions to Winsted for $3.4 million in stock. Ellis got $2.2 million. A few months later, Winsted's accountants decided the new company was worthless.
Meanwhile Ellis was selling Nu Image Medspa franchises and consulting services, promising a swift path to riches. He brought prospects from across the country to Newport Beach, chauffeuring them in stretch limos to tours of Bare Skin Medspa.
Dr. Rakesh Shishodia, a Bakersfield physician, was among the first prospects. Ellis told him he could open a med spa for $225,000 – half the cost estimated by competing med spa franchisers. Shishodia paid Ellis $50,000 for consulting.
It took Shishodia a year to open his med spa. It cost about $450,000, twice what Ellis estimated. The physician has yet to make a profit.
"I wish I had never started this business," he said.
Four other clients told similar stories: Ellis' franchise agreement estimated the total investment at $236,000 to $346,000. But opening a spa cost as much as $500,000 and took as long as a year. And once Ellis had their money, he rarely returned calls.
When Ellis made his pitch, Palm Beach Gardens, Fla., franchisee Dale Smith recalled, "We said, 'We can work with this.' And once you get in this deep you can't get out."
While Ellis was pursuing consulting clients, the SEC was beginning to pursue him.
The SEC was investigating whether Winsted, 10 other penny stock companies and Irvine broker-dealer Finance 500 Inc. had sold unregistered securities and defrauded investors.
In a prepared statement Finance 500 said, "Mr. Ellis was a customer of an individual associated with our firm. That individual left the firm in 2005. We have cooperated with the SEC on this matter."
In the summer of 2005, the SEC twice asked Ellis to come to a voluntary interview about Winsted. He didn't show.
In early 2006, the SEC issued a subpoena, then a second, then a third. In an e-mail to SEC attorney Andrea Wood, Ellis said, "I will plead the Fifth (Amendment) on everything."
On March 30, 2006, the SEC went to federal court in Chicago to compel him to testify. Within days, the agency won a court order compelling the testimony. It's unknown whether Ellis testified or what he said.
Investors would not learn about the investigation for nearly four months. In the meantime, Winsted kept issuing new stock – an average of 14.9 million new shares a day from April through July.
On July 21, a Friday, 37 minutes after stock trading halted for the weekend, Winsted filed a disclosure admitting that it had violated securities laws and would be restating results for all of 2005 and the first quarter of 2006. Winsted also acknowledged that it was admitting the violations in response to a review by the SEC.
At a more prominent company, a statement like this would be the prelude to glaring headlines, downgrades by securities analysts and class-action lawsuits.
None of that happened.
Instead, more spam e-mail went out, pumping Winsted's med-spa business while anonymous posters on message boards predicted a "pop," a big increase in the stock price.
On the following Monday, July 24, some 1.25 billion shares of Winsted changed hands, nearly equaling the volume of the entire, 3,000-company Nasdaq market. Within minutes of opening, it reached three-hundredths of a penny, a 50 percent increase from Friday. For brief moments that day, it hit four-hundredths of a penny.
Robert Jackson, who owns a window business in Atlanta, was among the buyers that day. He had gotten a spam e-mail about Winsted.
"Nine times out of 10, I ignore them," Jackson said. "This one caught my eye because of med spas. And I was like, hey, I've heard of them. This was something I'd actually seen and driven by."
He paid $600 for 2 million shares of Winsted.
During the next month, massive trading in Winsted shares attracted small investors hungry for a "momentum" stock.
One of these buyers was Rodriguez, the investor from Hialeah, Fla.
A friend tipped him to Winsted. He bought $200 in shares.
Shaker Zayed and his father invested their $900 into 9 million shares on Aug. 28 after reading a rumor on an Internet message board, The Stock Alarm. An anonymous poster predicted "juicy PR" for Winsted, causing a one-day surge in buying. The "juicy PR" never arrived.
On Friday, Sept. 1, no Winsted shares changed hands. The stock has rarely traded since then. On Sept. 21, Rodriguez sent Ellis an e-mail asking what was going on. Ellis sent a two-word reply: "no buyers."
That could never happenon Nasdaq or the New York Stock Exchange. Market makers serve as buyers of last resort, guaranteeing that a desperate seller can always cash out.
But on the Bulletin Board, where Winsted traded until late November, and on the Pink Sheets, where it has traded since then, there is no buyer of last resort. The small investors who bought Winsted shares were on their own.
Jackson and the Zayeds could not sell their stock, they said in January. Neither could Keith Burks, a Simi Valley advertising manager who bought 500,000 shares for $100 last spring.
"I can't get rid of this thing in my portfolio," Burks said. "It's stuck in there. Until it's delisted, I can't even deduct it from my taxes."
Winsted's six-month slumber abruptly ended last week, two days after the Register told Ellis that this story was about to be published. On Wednesday, he issued a news release, his first in three months, saying that Winsted was looking for potential acquisitions and also talking with unnamed companies about being acquired.
Investors snapped up 1.3 billion shares in three days – seven times the total volume since Sept. 1.
The SEC declined to comment on the Winsted investigation. It sometimes takes two years or more to resolve such cases.
In an e-mail to the Register in January, Ellis said he was working with the SEC to prosecute wrongdoers.
"The SEC is investigating companies that I am helping them put away," he wrote.
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