13
finding it was “beyond dispute that [Defendants] earned profits from wrongdoing by engaging in
selling dealer transactions,” and “the disgorgement request represent[ed] income defendants
earned when they intentionally or recklessly engaged in selling dealer transactions without
legally required disclosures.” Id. at 169.
3
The case on which Commonwealth principally relies—In re Robare Grp., Ltd.,
Investment Advisers Act of 1940 Release No. 4566, 2016 WL 6596009 (Nov. 7, 2016), vacated
in part on other grounds, Robare Group, Ltd. v. SEC, 922 F.3d 468 (D.C. Cir. 2019), is
inapposite here. In Robare, the Securities Exchange Commission, on an appeal of an ALJ
determination, found that the registered investment advisers had violated § 206(2) of the
Advisers Act by failing to adequately disclose conflicts of interest inherent in an arrangement
whereby the advisers received compensation from their clients’ investment custodian for
maintaining client assets in certain investments. 2016 WL 6596009, at *1. In a footnote, the
Commission denied the Division of Enforcement’s request for disgorgement because the
3
Commonwealth attempts to distinguish Westport and Ambassador Advisors because the
investment advisors interacting with clients in those cases were aware of the revenue sharing
agreements, while here it is “undisputed [] that the Commonwealth IARs did not know about
Commonwealth’s revenue sharing arrangement . . . much less receive any portion of the
revenue.” Commonwealth Final J. Opp. 3 [Doc. No. 136] (emphasis in original). This is merely a
different flavor of the argument Commonwealth has made twice now, on summary judgment and
on reconsideration, that its IAR’s insulation from knowledge of the revenue sharing agreement
meant that no harm came to its clients from the failure to disclose those agreements. The court
has repeatedly rejected this reasoning and does not credit it now. The court determined on
summary judgment that, regardless of the knowledge that Commonwealth’s client-facing
advisors had of the revenue sharing agreements, Commonwealth itself is an investment adviser
for purposes of the Advisers Act and had a duty to disclose its conflicts of interests. See Mem. &
Order 22-23 [Doc. No. 109]. Commonwealth’s failures to disclose deprived its clients of the
ability to make informed decisions about where their money was invested, regardless of whether
its IARs knew of Commonwealth’s failures. See Ambassador Advisors, 2022 WL 4097327, at *7
(“Because [d]efendants did not make their clients aware of the true cost of their services, they
deprived their clients of an opportunity to make an informed decision about which adviser to
invest with.”).
Case 1:19-cv-11655-IT Document 138 Filed 03/29/24 Page 13 of 29