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ATTILIO ANTHONY FOSCHINI
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CONSENT ORDER |
I. PRELIMINARY STATEMENT
WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Chapter 672a of the General Statutes of Connecticut, the Connecticut Uniform Securities Act (“Act”), and Sections 36b-31-2 to 36b-31-33, inclusive, of the Regulations of Connecticut State Agencies promulgated under the Act (“Regulations”);
WHEREAS, Foschini was registered as a broker-dealer agent under the Act at various times from November 25, 1985 through the present, and as an investment adviser under the Act at various times from October 28, 2004 through the present;
WHEREAS, the Commissioner, through the Securities and Business Investments Division (“Division”) of the Department of Banking (“Department”), conducted an investigation pursuant to Section 36b-26(a) of the Act into the activities of Foschini to determine if he had violated, was violating or was about to violate provisions of the Act or Regulations;
WHEREAS, as a result of the Investigation, the Division obtained evidence that Foschini was contacted by three former clients to sell securities in their accounts at his former broker-dealer. Foschini, acting on behalf of such former clients, placed calls on three occasions to his former broker-dealer and identified himself as such former clients to the broker dealer in order to execute the sale of securities in the former clients’ accounts at a time when Foschini was not registered as a broker-dealer agent or investment adviser agent under the Act;
WHEREAS, Foschini did not have any financial gain from the transactions and believed that he had the clients’ consent to place the calls;
WHEREAS, the Commissioner has reason to believe that such conduct violates certain provisions of the Act and Regulations, and would support administrative proceedings against Foschini under Sections 36b-15 and 36b-27 of the Act;
WHEREAS, Section 36b-31(a) of the Act, provides, in relevant part, that “[t]he commissioner may from time to time make . . . such . . . orders as are necessary to carry out the provisions of sections 36b-2 to 36b-34, inclusive”;
WHEREAS, Section 36b-31(b) of the Act, provides, in relevant part, that “[n]o . . . order may be made . . . unless the commissioner finds that the action is necessary or appropriate in the public interest or for the protection of investors and consistent with the purposes fairly intended by the policy and provisions of sections 36b-2 to 36b-34, inclusive”;
WHEREAS, an administrative proceeding initiated under Sections 36b-15 and 36b-27 of the Act would constitute a “contested case” within the meaning of Section 4-166(2) of the General Statutes of Connecticut;
WHEREAS, Section 4-177(c) of the General Statutes of Connecticut and Section 36a-1-55(a) of the Regulations of Connecticut State Agencies provide that a contested case may be resolved by consent order, unless precluded by law;
WHEREAS, without holding a hearing and without trial or adjudication of any issue of fact or law, and prior to the initiation of any formal proceeding, the Commissioner and Foschini reached an agreement, the terms of which are reflected in this Consent Order, in full and final resolution of the matters described herein;
WHEREAS, Foschini, without admitting or denying any of the Commissioner’s allegations or findings, expressly consents to the Commissioner’s jurisdiction under the Act and to the terms of this Consent Order;
WHEREAS, the issuance of this Consent Order is necessary or appropriate in the public interest or for the protection of investors and consistent with the purposes fairly intended by the policy and provisions of the Act;
AND WHEREAS, Foschini, through his execution of this Consent Order, specifically assures the Commissioner that none of the violations alleged in this Consent Order shall occur in the future.
II. CONSENT TO WAIVER OF PROCEDURAL RIGHTS
WHEREAS, Foschini, through his execution of this Consent Order, voluntarily waives the following rights:
| 1. | To be afforded notice and an opportunity for a hearing within the meaning of Sections 36b-15(f) and 36b-27 of the Act and Section 4-177(a) of the General Statutes of Connecticut; |
| 2. | To present evidence and argument and to otherwise avail himself of Sections 36b-15(f) and 36b-27 of the Act and Section 4-177c(a) of the General Statutes of Connecticut; |
| 3. | To present his position in a hearing in which he is represented by counsel; |
| 4. | To have a written record of the hearing made and a written decision issued by a hearing officer; and |
| 5. | To seek judicial review of, or otherwise challenge or contest the matters described herein, including the validity of this Consent Order. |
III. ACKNOWLEDGEMENT OF THE COMMISSIONER'S ALLEGATIONS
WHEREAS, Foschini, through his execution of this Consent Order, acknowledges the following allegations of the Commissioner, without admitting or denying them:
| Foschini by placing calls to his former broker-dealer on behalf of his former clients and identifying himself as a former client to execute the sale of securities in the client’s account at a time when Foschini was not registered as a broker-dealer agent or investment adviser agent under the Act engaged in conduct which pursuant to Section 36b-4(b) of the Act would constitute grounds for an order under Sections 36b-15(a)(2)(H) and 36b-27 of the Act. |
WHEREAS, the Commissioner would have the authority to enter findings of fact and conclusions of law after granting Foschini an opportunity for a hearing;
AND WHEREAS, Foschini acknowledges the possible consequences of an administrative hearing and voluntarily agrees to consent to the entry of the sanctions described below.
WHEREAS, Foschini, through his execution of this Consent Order, consents to the Commissioner’s entry of a Consent Order imposing the following sanctions:
| 1. | Foschini shall cease and desist from engaging in conduct constituting or which would constitute a violation of the Act or any regulation or order under the Act, either directly or through any person, organization or other device; and |
| 2. | No later than the date this Consent Order is entered by the Commissioner, Foschini shall remit to the Department by cashier’s check, certified check or money order made payable to “Treasurer, State of Connecticut”, the sum of two thousand five hundred dollars ($2,500) as an administrative fine. |
V. CONSENT ORDER
NOW THEREFORE, the Commissioner enters the following:
| 1. | The Sanctions set forth above be and are hereby entered; |
| 2. | Entry of this Consent Order by the Commissioner is without prejudice to the right of the Commissioner to take enforcement action against Foschini based upon a violation of this Consent Order or the matters underlying its entry, if the Commissioner determines that compliance with the terms herein is not being observed; and |
| 3. | This Consent Order shall become final when issued. |
| Issued at Hartford, Connecticut, | _______/s/____________ | |
| this 17th day of February 2012. | Howard F. Pitkin | |
| Banking Commissioner |
CONSENT TO ENTRY OF ORDER
I, Attilio Anthony Foschini, state that I have read the foregoing Consent Order; that I know and fully understand its contents; that I agree freely and without threat or coercion of any kind to comply with the terms and conditions stated herein; and that I consent to the issuance of this Consent Order.
| ______/s/____________ |
| Attilio Anthony Foschini |
State of: Connecticut
On this the 6th day of February 2012, before me, Attilio A. Foschini [sic], the undersigned officer, personally appeared Attilio Anthony Foschini, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained.
___________/s/____________________________
Notary Public/Commissioner of the Superior Court
Date Commission Expires: 3/31/14