Litigation Release No. 15664 / March 10, 1998 SECURITIES AND EXCHANGE COMMISSION v. SWEENEY CAPITAL MANAGEMENT INC., TIMOTHY CHARLES SWEENEY, AND SUSAN MARY GORSKI, Civ. Action No. C 98-937 MMC (N.D. Cal) The Securities and Exchange Commission announced today that on March 10, 1998 it sued a San Francisco investment advisory firm, its owner, and a portfolio manager for misappropriating more than $109,000 in client-owned soft dollar credits and for trading securities for the clients without their informed consent. The Commission sued Sweeney Capital Management Inc. ("SCM"), an investment advisory firm with offices formerly in San Francisco; Timothy Charles Sweeney, 44, a San Rafael resident; and Susan Mary Gorski, 41, a Larkspur resident, in United States District Court in San Francisco. Sweeney is the sole owner and president of SCM, a California corporation registered with the Commission as an investment adviser from March 1993 until July 1997. Gorski is SCM's vice-president and a portfolio manager. The complaint alleges that SCM, Sweeney, and Gorski from April 1994 through May 1995 defrauded SCM's advisory clients out of more than $109,000 by purchasing and selling securities for the clients without disclosing that SCM was using soft dollar credits for its own benefit. Soft dollar credits, also referred to as "soft dollars," are rebates from a brokerage firm generated when an investment adviser places securities trades for its clients through the brokerage firm. Here, for example, SCM received a $1.00 soft dollar credit for every 1.75 of brokerage commissions generated by SCM's trades for its clients. Soft dollars are assets of the adviser's clients. Without informing their clients, Defendants arranged to have the brokerage firms use the soft dollar credits to pay for a variety of Defendants' business and personal expenses, including client gifts, telephone bills, marketing expenses, accounting and legal bills, postage and shipping, furniture, art work, business licenses, rent, parking, office supplies, and taxes. The defrauded clients included both individuals and a hedge fund whose assets SCM managed. During its fiscal year ended December 31, 1994, SCM paid approximately 70% of its operating expenses with soft dollars misappropriated from its advisory clients and the hedge fund. Without these soft dollar payments, SCM would have been insolvent during this period. In addition to SCM's fraudulent misappropriation of soft dollars, the complaint alleges that SCM, Sweeney, and Gorski engaged in other fraudulent soft dollar practices. At various times between April 1994 and May 1995, SCM, Sweeney, and Gorski submitted false invoices to soft dollar brokers for consulting work that was never provided to SCM in order to pay for, among other things, Gorski's salary, SCM's rent, and personal loans made to Sweeney. SCM, Sweeney, and Gorski also submitted multiple invoices for the same goods and services in order to be reimbursed twice for the same expense. ======END OF PAGE 1====== Finally, the Commission's complaint alleges that SCM and Sweeney filed false forms with the Commission, distributed misleading marketing materials to the public, made false claims to investors about the competitiveness of SCM's advisory fees, misused client assets in its custody, and misappropriated an elderly client's funds. In its complaint, the Commission seeks the following: (i) permanent injunctions against future violations of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and Sections 204, 206(1), 206(2), 206(4) and 207 of the Investment Advisers Act of 1940 and Rules 204-1, 204-3, 206(4)-1, 206(4)-2 and 206(4)-4 thereunder; (ii) disgorgement of illegal profits; and (iii) civil penalties against SCM, Sweeney and Gorski. ======END OF PAGE 2======