Sunday, April 29, 2007 | 7:24 a.m.
CARSON CITY - The Nevada secretary of state's Web site invites businesses to the state with a wink and a nod. "Why incorporate in Nevada?" it asks, then answers: "Minimal reporting and disclosure requirements. Stockholders are not public record."
In other words, your investors need know little about how their money is being used, or by whom. If you prefer to operate in the shadows, Nevada is the place.
The pitch has worked. In 2005 alone, Nevada became host to nearly 40,000 new limited liability companies, or LLCs. In the process, the state has collected hundreds of millions of dollars in incorporation fees.
Among the companies that have flocked eagerly to the state: Goldmark Industries, a movie, TV and record company. If its Web site is a credible guide, however, the company has released no movies, no TV shows and no records. Goldmark doesn't answer its phone or respond to e-mail messages.
Nevertheless, late last year it enjoyed a spasm of investor enthusiasm. On Dec. 19 the company, which trades on a small-stock listing service called Pink Sheets, closed at $.17 on volume of 126,286 shares.
The next day, someone began a spam campaign, sending e-mails touting the company to thousands of potential investors. Many people were persuaded.
By Dec . 28 the stock had more than doubled, closing at $.35 on a volume of more than 5 million shares. Then, within two weeks, the stock tumbled back down to $.15.
By all appearances, it was a classic pump-and-dump scheme: Own and control a huge number of shares, push the stock so that its value rises as investors buy in to your e-mailed promises, then sell your shares at the peak and walk away.
Who wins? Usually, the original shareholders, who almost certainly are the people who created the company, often hiding behind a legal mask of anonymity.
Who loses? Average investors.
The federal Securities and Exchange Commission, which regulates publicly traded companies, suspended trading of Goldmark on March 8.
In fact, the SEC suspended trading of 34 other companies nationwide that day because they were involved in similarly suspicious trading patterns. Of those, 22 are Nevada corporations.
"Why incorporate in Nevada?"
"Minimal reporting and disclosure requirements. Stockholders are not public record."
In its quest to raise money by inviting businesses to incorporate in Nevada, the state has become a haven for companies that are vehicles for a rhythmic glossary of scams:
Pyramid and Ponzi.
Pump and dump.
Launder, embezzle and bribe.
Not to mention mortgage and securities fraud.
In short, fair or not, the state has become known in the white-collar crime world as an easy mark.
Some of the corporations and LLCs are infamous: Mitchell Wade's company, which bribed former Rep. Randy "Duke" Cunningham, who is now in prison; Southwest Exchange, the defunct mortgage company; Par Three Financial, a Ponzi scheme with a Las Vegas address.
And there are thousands of other Nevada companies whose true intentions are impossible to discern. A review by the Sun of a modest sample of Nevada corporations and LLCs found dozens of dubious Nevada companies that claim they offer limitless profits in gold and other valuable mining deposits, water and energy, telecommunications, entertainment and pharmaceuticals, although they often have no assets and no real business plan.
How and why Nevada became a major destination in the fraud kingdom is in dispute. Some, including a prominent U.S. senator and a federal agency, blame our laws and lax regulatory environment, which, they say, aid and abet criminality.
Legal experts here and elsewhere disagree. But even they acknowledge that if it's not Nevada's laws that attract criminals, then it's the way we market ourselves.
As described by Robert Keating, adviser to the American Bar Association on corporate law, and counsel to the Denver firm Holland & Hart: "You're a victim of your own marketing."
Either way, Nevada has put its stamp of legitimacy on scores of suspicious entities.
One in the news recently is Southwest Exchange, a firm under FBI investigation that suddenly closed in January while holding tens of millions of dollars in real estate investments.
Investors who checked the secretary of state's Web site to find out whom they were dealing with would not have found the name of the company's principal, Donald McGhan. If they could have seen the name, they could have quickly searched the Internet and court documents to learn about investors and customers who have sued him in the past.
They also could have discovered his prior settlement with the SEC and read a damaging story in The Wall Street Journal in which employees accused him of self-dealing.
But Nevada's incorporation process offers a high level of anonymity to those who want it, so the name Donald McGhan is nowhere to be found.
That level of anonymity has grabbed the attention of the U.S. Department of the Treasury, which issued two reports recently highly critical of Nevada and a few other states, including Delaware and Wyoming.
"Legal jurisdictions that offer strict secrecy law, lax regulatory and supervisory regimes, and corporate registries that safeguard anonymity are obvious targets of money launderers," reads the "U.S. Money Laundering Threat Assessment," a 2005 report.
"A handful of U.S. states offer company registrations with cloaking features - such as minimal information requirements and limited oversight - that rival those offered by offshore financial centers. Delaware, Nevada and Wyoming are often cited as the most accommodating jurisdictions in the United States for the organization of these legal entities."
Federal authorities, as well as Sen. Carl Levin, D-Mich., fear that Nevada is among a small number of states with corporate laws that abet money laundering, and, as such, could become a breeding ground for terrorist financing.
Levin has told those states to make fixes, or face federal legislation to compel action.
In fairness, the laws in Nevada, Delaware and a few other places aren't much different from other states. All states offer a great degree of anonymity for shareholders of limited liability companies and corporations.
"I think the anonymity point is way overblown and misguided," said Lawrence A. Hamermesh, a professor of corporate law at the Widener School of Law in Delaware.
Delaware has long been a place where thousands of blue-chip corporations, including General Motors and Google, incorporate. The state has a favorable tax structure, indemnity for directors against lawsuits, as well as one of the world's most highly regarded business courts, the Court of Chancery. Because it has been a primary place of incorporation for so long, the Chancery has a well-developed case law to help it settle disputes.
"If you're going to do a $1 billion deal, you want to make sure you have the laws, but also the precedents," said Ann Conaway, another professor of corporate law at Widener. "You want to have case law that says this is how something like this works."
Nevada adopted its current corporation laws in 1991. To raise money for the state government and create a friendly business environment, the Legislature enacted laws to make the Silver State the "Delaware of the West."
Nevada made it an easy, fast and relatively inexpensive place to incorporate or create LLCs.
Every time a new entity forms a corporation or limited liability company in Nevada, the state collects money - $75 for the cheapest filing, with one-hour expedited service available for $1,000.
The state also benefited as a cottage industry of firms that specialize in establishing and maintaining Nevada corporate status for out-of-state companies popped up, creating hundreds of jobs.
Matched with an efficient corporate filing division under the secretary of state, the new laws helped raise hundreds of millions of dollars, $87 million last year alone.
Still, Delaware remains where the biggest and best firms incorporate.
Nevada's corporation growth has been of a different sort.
Consider De Beira Goldfields. After it began trading about a year ago on a small stock exchange for $1.33 a share, the price climbed for five weeks before hitting nearly $15 in June.
It was a curious company, though. The president was Mike Fronzo, a longshoreman with no experience in hunting for gold or running a mining company. He stepped aside in favor of Susmit Shah and Reg Gillard, former board members of Adultshop.com, a purveyor of Internet pornography.
Despite the unconventional leadership and lack of mining assets, the company, which incorporated in Nevada in 2004, rode a wave of investor optimism until it hit a market value of $600 million in 35 days.
Now it trades for about $1 a share.
What likely happened in the interim is that De Beira insiders dumped their shares, and the stock is now more or less worthless. Turns out those insiders were stock promoters in Vancouver, B.C., who have a history of aggressive stock promotion of companies with no assets and ill-defined business plans.
George Pemberton, a Royal Canadian Mounted Police special agent, said the episode looked like a classic pump-and-dump scheme, though he would not confirm or deny that authorities were investigating.
The connection between Canada and Nevada is not unusual. Many shady stock operators with offices in Vancouver incorporate new entities in Nevada.
Martin Eady, the director of corporate finance with the B.C. Securities Commission, said the Vancouver stock exchange, TSX Venture Exchange, was once the Wild West of the investment world, until regulators cleaned it up.
Once they did so, the worst operators went south and began working on the least regulated exchanges in the United States, the so-called Pink Sheets and the Over-the-Counter Bulletin Board, neither of which has the rigorous controls of the New York Stock Exchange or the other major markets.
Many of the companies, though run out of Vancouver, are incorporated in Nevada.
Hartley Bernstein, who runs a stock watchdog site called StockPatrol.com, recently offered one clue to determining whether a company is legitimate or is a pump-and-dump scheme: If the company is incorporated here and operated out of Canada.
Not all the fraudulent companies are operating out-of-state, however.
Nevada led the nation in 2005 in white-collar crime committed using the Internet, a favored medium for sham stock promoters, according to the Internet Crime Complaint Center, a joint operation of the FBI and a nonprofit group.
The state was tied for fourth in the nation as home to 6 percent of all telemarketing crooks, according to the National Fraud Information Center. Nevada ranked second in the nation, per capita, in mortgage fraud in 2003 and 2004, according to the FBI.
Secretary of State Ross Miller, who took office in January, has made this epidemic of white-collar crime in Nevada a priority. He inherited the current Web site with its wink-and-nod invitation from his predecessor, Dean Heller, who's now a congressman.
Miller said he has already changed the Web site, so it no longer boasts about Nevada not having an information-sharing agreement with the Internal Revenue Service, and he said more changes are coming.
Miller is a former prosecutor and said he's keenly aware of the problem, as well as the watchful eye of the federal government. He has formed a task force of law enforcement and industry officials to find a solution that will make criminals less attracted to Nevada and its corporate structure.
Miller said he would like to see the Legislature give him the ability to collect information on "beneficial ownership" of limited liability companies and corporations. Beneficial ownership refers to the real owners of a company. They could no longer remain largely anonymous.
That modest step, however, would hardly protect investors in advance. Miller said his office would collect the information but share it only if law enforcement asked.
Levin, the U.S. senator, favors similar legislation. By knowing who really owns a company, they say, law enforcement could trace money flows and more effectively investigate fraud.
Even that modest step is controversial.
John Fowler, a prominent business attorney on Miller's task force, disagreed with the secretary of state. Fowler said criminals would easily find ways around the reporting requirement.
He also predicted it would become a massive regulatory burden, and "an incredible intrusion into business privacy. These laws have been in place since early 19th century," he said. The real answer, he said, is the laborious and expensive work of law enforcement. The SEC is largely responsible for regulating publicly traded stocks, and it doesn't have the resources to investigate the now-common penny stock pump-and-dumps being executed with Nevada corporations.
As for Nevada, the state has little money to pay for its own investigators. Moreover, if investigations began to deter criminals from incorporating here, state revenue would then decline.
John Netzorg, a real estate attorney who has represented burned investors in high-profile mortgage lending collapses in Las Vegas, said the state is known to have the best regulatory regime in the country when it comes to casinos, but has left the door open for abuse in other areas.
Nevada compounds its problem by touting its weaknesses on the secretary of state's Web site, said Hamermesh, the Delaware corporate law expert.
"You're advertising for trouble," Hamermesh said. "It's a vice strategy. The people you're going to attract are the people who value an unusual amount of anonymity and want to operate under the radar.
"I wouldn't encourage that as a strategy," he said. "That's not Delaware's target audience."
Perhaps that strategy is what drew Michael Kelly, who's accused in a recent indictment of running a $400 million Ponzi scheme out of South Bend, Ind., but incorporated here in Nevada.
One of his alleged victims is Eunice Buchmuller, a 92-year-old forced to leave Nevada and return to Virginia to live with family because nearly her entire life savings were lost.
Albert Sousa Jr. is another victim. He's a retired mechanic who lives in Sparks. Sousa went to his bank, U.S. Bancorp, for investment advice in late 2002. The bank directed him to one of its registered agents, who sold him on Resort Holdings International, a time-share investment in a Mexican hotel.
Many scam artists prey on the greed of the mark, who thinks he can gain something for nothing. That wasn't the case with Sousa. He was promised a relatively modest 9 percent per year in exchange for investing his life savings of about $410,000 for three years. The fact that his agent was affiliated with his bank gave him confidence. Not long after he invested, though, a sinking feeling crept into his heart.
He soon realized the money was gone. "I felt my whole world come to an end," he said in an interview. "That was my whole life there. My whole life was in that investment."
Attorney David Liebrader has made a career out of fighting on behalf of people like Sousa, who have been ripped off in investment scams. He was able to show an arbitrator that U.S. Bancorp was liable because it wasn't keeping a close enough watch on its agent, and Sousa won some of his money back.
Nevertheless, "It changed my whole outlook on life. A person like me, I don't understand when the market is way high . If we get a 9 percent offer, OK, that sounds like something to take advantage of. But we don't understand how that works. We rely on the law to protect us."
Sun reporters Mary Manning and Steve Kanigher and researcher Rebecca Clifford contributed to this report.