Cryptocurrency Founder “Bruno Block” Charged With Multimillion-Dollar Tax Evasion Scheme

 

 Audrey Strauss, the Acting United States Attorney for the Southern District of New York, William F. Sweeney Jr., the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (“FBI”), and Kelly R. Jackson, Special Agent in Charge of the Washington, D.C., Field Office of the Internal Revenue Service, Criminal Investigation Division (“IRS-CI”), announced today the unsealing of an Indictment in Manhattan federal court charging AMIR BRUNO ELMAANI, a/k/a “Bruno Block,” the founder of the cryptocurrency “Oyster Pearl,” with tax evasion.  As alleged, ELMAANI made millions of dollars from the sale of a new cryptocurrency but evaded reporting that income to the IRS, including by filing a false tax return, operating his business and owning assets through pseudonyms and shell companies, obtaining income through nominees, and dealing in gold and cash.  ELMAANI was arrested this morning in Martinsburg, West Virginia, and will be presented later today before United States Magistrate Judge Robert W. Trumble in the Northern District of West Virginia.   The case is assigned to Chief United States District Judge Colleen McMahon in the Southern District of New York.  

In a separate civil action, the Securities and Exchange Commission is filing civil charges against ELMAANI today. 

Acting Manhattan U.S. Attorney Audrey Strauss said:  “As alleged, Amir Bruno Elmaani purported to establish a high-tech method of financing a high-tech business, but the underlying scheme was old-fashioned fraud and tax evasion.  Elmaani allegedly generated millions by soliciting investor money through his own cryptocurrency, adding to the purportedly fixed number of tokens and converting them to other cryptocurrencies, and failing to report or pay tax on any of the proceeds.  Thanks to the FBI and IRS-CI, Elmaani is now in custody and facing federal prosecution.” 

FBI Assistant Director William F. Sweeney Jr. said:  “Taking advantage of the ever-so-popular cryptocurrency market, Elmaani allegedly capitalized on the investments of those who purchased virtual currency through Oyster Pearl, which he founded.  As it turns out, Elmaani was funneling the proceeds of his alleged cryptocurrency scheme through a shell company that hid the true nature of his financial interests, ultimately never paying taxes on his earnings.  With minimal reported income in 2018, he still managed to spend over $10 million for the purchase of yachts, but after today’s arrest, he won’t be sailing anywhere anytime soon.”

IRS Special Agent-in-Charge Kelly R. Jackson said:  “Ensuring the integrity of our tax system is a priority of IRS-CI.  Evading taxes only aims to deteriorate the confidence in this system and those who fail to pay their fair share will be investigated.  Using cryptocurrency as a means to defraud and evade taxes will not stop our agents from doing what we do best – following the money.”

As alleged in the Indictment unsealed today in Manhattan federal court:[1]

In September and October 2017, ELMAANI began promoting online his new cryptocurrency known as Pearl tokens.  Using a variation of his online pseudonym “Bruno Block,” ELMAANI stated that he planned to develop an online data-storage platform, known as Oyster Protocol, which would allow users to purchase online data storage with Pearl tokens.  Instead of using his real name, ELMAANI operated almost exclusively online under the pseudonym “Bruno Block.”  ELMAANI concealed his true identity from his prospective employees and business associates and never met them in person.

In the fall of 2017 and thereafter, ELMAANI sold Pearl tokens to the investing public through an “initial coin offering” and on cryptocurrency market platforms.  ELMAANI announced that he intended to take a “founder’s share” of Pearl tokens for his own personal use.  ELMAANI owned and controlled the subsequently established company Oyster Protocol Inc. through a shell company not associated with his true name. 

In a statement issued under ELMAANI’s online pseudonym on June 7, 2018, ELMAANI stated that he was retaining millions of Pearl tokens as his “ownership stake” in Oyster Protocol, but that he had to move the tokens to a different cryptocurrency wallet “in order to avoid being double-taxed.”  In truth, ELMAANI did not report or pay tax on any of his cryptocurrency proceeds.  At various points, ELMAANI used friends and family as nominees to receive cryptocurrency proceeds and transfer them or U.S. currency to his own accounts. 

ELMAANI dealt substantially in precious metals, kept gold bars in a safe on a yacht he owned, and used large amounts of cash to pay personal expenses. 

In late October 2018, although the number of Pearl tokens was purportedly fixed, ELMAANI used his access to the blockchain technology used to create Pearl tokens to mint new tokens, which he took for his own personal use (the “Exit Scheme”).  ELMAANI thereby increased the total volume of Pearl tokens.  Shortly after creating the new tokens, ELMAANI converted the Pearl tokens he had obtained to other types of cryptocurrency on an online marketplace or exchange.  As a result of ELMAANI’s conduct, trading in Pearl tokens halted on that exchange and the price of Pearl tokens held by investors dropped substantially.  Pearl tokens were subsequently de-listed from the primary exchange where they were traded.  Subsequent to the Exit Scheme, ELMAANI used his friends and family to receive cryptocurrency and to transfer funds to a bank account in his name. 

While ELMAANI initially attempted to hide even “Bruno Block’s” involvement in the Exit Scheme, he later effectively admitted to the conduct online under his “Bruno Block” pseudonym.  In a recorded call with the then-chief executive officer (“CEO”) of Oyster Protocol Inc., after the Exit Scheme, the CEO asked ELMAANI why he had to take the additional new Pearl tokens if he had already cashed out millions of dollars’ worth of Pearl tokens in the past.  ELMAANI responded, in part, that “taxes are pretty nasty.”  ELMAANI carried out the Exit Scheme only days before the exchange he had used to cash out his Pearl tokens was set to require “know your customer” personal identifying information from its users. 

ELMAANI filed a false 2017 tax return stating that he had only approximately $15,000 of income from a “patent design” business, and he filed no return and reported no income to the IRS in 2018.  Nevertheless, ELMAANI spent, in 2018, over $10 million for the purchase of multiple yachts, $1.6 million at a carbon fiber composite company, hundreds of thousands of dollars at a home improvement store, and over $700,000 for the purchase of two homes, one of which was titled in the name of a shell company and the other in the name of two of his associates.  

ELMAANI, 28, is charged with two counts of tax evasion, each of which carries a maximum sentence of five years in prison.  The maximum potential sentences are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant will be determined by a judge.

Ms. Strauss praised the investigative work of the FBI and IRS-CI and also thanked the Securities and Exchange Commission and the Commodity Futures Trading Commission for their assistance. 

The charges contained in the Indictment are merely accusations, and the defendant is presumed innocent unless and until proven guilty.

 [1] As the introductory phrase signifies, the entirety of the text of the Indictment, and the description of the Indictment set forth herein, constitute only allegations, and every fact described should be treated as an allegation.

Former Founder And CEO Of Nanotechnology Company Charged In Manhattan Federal Court In Connection With Multimillion-Dollar Securities Fraud Scheme

 

James Jeremy Barbera Charged with Defrauding Investors Out of Approximately $12.2 Million

 Audrey Strauss, the Acting United States Attorney for the Southern District of New York, and William F. Sweeney Jr., Assistant Director in Charge of the New York Field Office of the Federal Bureau of Investigation (“FBI”), announced that JAMES JEREMY BARBERA, the former founder and chief executive officer of a nanotechnology company based in New York, New York, was arrested this morning in New York on securities fraud and wire fraud charges stemming from a scheme to defraud investors in the company.  Among other illicit activity, BARBERA fraudulently induced dozens of investors to invest at least approximately $12.2 million based on false and misleading statements, by failing to use investors’ funds as promised, and by converting investors’ money to his own use.  BARBERA will be presented this afternoon in Manhattan federal court before U.S. Magistrate Judge Sarah Netburn.

Acting U.S. Attorney Audrey Strauss said:  “As alleged, James Barbera defrauded investors out of millions of dollars by offering the opportunity to invest in a seemingly plausible but wholly fictitious technology, purportedly developed in coordination with NASA.  Barbera allegedly further misled investors with false statements about institutional investors, licensing agreements, an imminent IPO, and other lies, and misappropriated investor money for his own use.  Now he is in custody and facing prosecution for his alleged crimes.”

FBI Assistant William F. Sweeney Jr. said:  “As we allege today, Barbera, in his position as founder and CEO of a privately-held nanotechnology company, fraudulently collected more than $12 million from investors and used approximately half the money to pay for personal expenses including private school and college tuition for his children and mortgage payments on his Central Park West apartment.  Among other misrepresentations he made, Barbera claimed his company had an exclusive relationship with NASA and even used NASA’s logo to solicit investors.  As we demonstrated today, Barbera’s non-existent ‘exclusive’ landed him nothing more than a trip through the federal criminal justice system.”

According to the allegations in the Complaint unsealed today in Manhattan federal court:[1]

Between in or about 2009 and in or about 2019, BARBERA was the founder and CEO of a privately held nanotechnology company that represented to investors that the company had developed a breathalyzer sensor technology that could detect cancer and narcotics in human breath, based on technology developed by the National Aeronautics and Space Administration (“NASA”), and that it was also partnered with a major U.S. research university. 

From at least in or about 2013 through in or about 2020, BARBERA and others perpetrated a scheme to defraud dozens of investors out of at least approximately $12.2 million (i) by soliciting investments in the company’s equity and notes through false and misleading statements, (ii) by failing to use investors’ funds as promised, and (iii) by converting investors’ money to his own use.  BARBERA and others made false and misleading representations to actual and potential investors, including as set forth below:

BARBERA falsely represented that the company had developed a breathalyzer sensor, based on technology developed by NASA, that could detect narcotics and cancer from a person’s breath.  In truth and in fact, and as BARBERA well knew, the company and NASA never developed such a technology.  Indeed, NASA conducted no research for the company related to this technology after in or about late 2017, and NASA did not permit research related to narcotics testing at NASA facilities.

BARBERA falsely represented that the company had an exclusive license with NASA for certain patents related to a breathalyzer sensor technology for the life of the patents, and used NASA’s name and logo to solicit investors in the company.  In truth and in fact, and as BARBERA well knew, the company did not have an exclusive license with NASA.

BARBERA falsely represented to potential and actual investors that institutional investors, including a large, publicly traded chemical company, had made substantial investments in the company.  In truth and in fact, and as BARBERA well knew, that institutional investor never invested in the company.

BARBERA falsely represented that the company would soon have an initial public offering (“IPO”), which would result in large profits to investors.  In truth and in fact, and as BARBERA well knew, the company was not close to an IPO. 

BARBERA converted to his own use approximately 50 percent of the approximately $12.2 million in investor funds in the form of cash withdrawals and to pay personal expenses, including private school and college tuition for his children, mortgage payments on his Central Park West apartment, and for his other personal items, such as credit card bills, jewelry, automobiles, and daily living expenses.

Previously, BARBERA was the CEO of a publicly traded company.  On or about July 29, 2014, the U.S. Securities and Exchange Commission (“SEC”) announced the settlement of federal securities fraud charges against BARBERA and that company for making materially false and misleading statements about the true business operations and finances of that company.  As part of that settlement, BARBERA was permanently enjoined from future violations of the antifraud provisions of the federal securities laws, and agreed to pay a $100,000 penalty and to be permanently barred from acting as an officer or director of a public company.

BARBERA, 64, was arrested this morning at his home in New York, New York.  BARBERA was charged with one count of securities fraud and one count of wire fraud, each of which carries a maximum sentence of 20 years in prison.  He was also charged with one count of conspiracy to commit securities fraud and wire fraud, which carries a maximum sentence of five years in prison.  The charges carry a maximum fine of $5 million, or twice the gross gain or loss from the offenses.  The maximum potential sentences in this case are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.

Ms. Strauss praised the outstanding work of the FBI and NASA’s Office of Inspector General, and also thanked the SEC for its assistance and cooperation in this investigation. 

The charges contained in the Complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty.

[1] As the introductory phrase signifies, the entirety of the texts of the Complaint and the descriptions of the Complaint set forth below constitute only allegations, and every fact described should be treated as an allegation.

MAYOR DE BLASIO DAILY MEDIA AVAILABILITY

EDITOR'S NOTE: 

Because of personal business we did not try to call in to Mayor de Blasio's press conference today, and see that most of the usual reporters were called on.

Mayor Bill de Blasio: Good morning, everybody. Last night, I got another reminder of the goodness of this season in Grand Army Plaza, lighting a tree to celebrate the holidays with Bishop DiMarzio and the Diocese of Brooklyn. The tree itself is spectacular and a joyous reminder of the Christmas season and the holiday season, and why we remember in the season to be there for each. There’s also an extraordinary sculpture, which I urge everyone to go see – amazing tribute to immigrants and what they mean to this city and this nation, and a reminder of the need to welcome and respect all people. Very moving gathering last night. And it is a reminder in this time of challenge, a challenge unlike any we've seen in the history of New York City, anything we've ever seen in our lives, that the most important thing is to be there for each other, to support each other, protect each other, to have compassion for each other regardless of who we are, where we come from. And that is what New York City has done during this crisis. I'm so proud of all New Yorkers, all of you, for the way you've handled this, the way you've looked out for each other.  

 

Look, we've been through just the toughest time, but now we can see the light at the end of the tunnel. And I really want to emphasize that this is the last great battle we're going to go through these next few months, this last great battle against the coronavirus, because now the vaccine is literally just days away. The vaccine will change everything, but it'll take a lot of work to make sure the vaccine gets to everyone who needs it as quickly as possible. The good news is, every step along the way we hear better and better news about the vaccine. FDA has now released its analysis, which is a very positive one. This is being reviewed now further by FDA and CDC, but the good news is we see very promising results. And I want to emphasize to all New Yorkers, we're not just leaving it to Washington. Our extraordinary Health Department, our whole health care team is constantly analyzing the data as well related to the vaccine and we like what we see. And we are working every day to perfect the rollout plan, because, as the vaccine arrives, the goal is to get it to move quickly. And our Health Department is very well poised to do that because we have an extraordinary history of ensuring that New Yorkers are vaccinated over decades and decades. Our Health Department has led the way in making sure that people get the protection they need. So, here to give you an update, a lot of new information that’ll be, I think, very helpful to understand how the vaccination efforts are going to go and why we have confidence in the vaccines that are emerging, our Health Commissioner Dr. Dave Chokshi. 

 

Commissioner Dave Chokshi, Department of Health and Mental Hygiene: Thank you, Mr. Mayor. Well, yesterday, we truly saw a shot heard round the world, as the United Kingdom's Margaret Keenan received the world's first approved COVID vaccine. We should all be inspired by her words afterwards – if I can do it, well, so can you. Every moment like this one represents a step forward in New York City and beyond, and I want to give everyone an update on what we can expect in the days ahead. Yesterday, the FDA made public the data Pfizer provided in their emergency-use authorization application, which offers promising information about the safety and efficacy of the Pfizer vaccine. The new COVID-19 MRNA vaccines, like the Pfizer vaccine, teach ourselves how to build immunity to the virus that causes COVID-19. MRNA does not affect or interact with a person's DNA and the cell breaks down and gets rid of the MRNA as soon as it is finished using that information.  

 

Here are a few things that we've learned about the Pfizer vaccine. First, the vaccine is moderately effective within 10 to 14 days of the first dose, which is good news. But the second dose remains very important, because the two-dose vaccine is what was tested and found to be highly effective – that's that 95 percent – at preventing COVID-19. Second, the Pfizer vaccine worked across adult age groups, ethnicities, and people with underlying medical conditions, such as diabetes, obesity, and high blood pressure who participated in the trials. Third, there were side effects, but they were mild to moderate. They were more common after the second dose and they generally lasted one to two days. The most common side effects included pain at the injection site, fatigue, and headache. We will continue to update New Yorkers about this so that they know what to expect with a vaccination.  

 

Now, over the next several weeks, there will be a lot of movement with the vaccine rollout. Tomorrow, an independent FDA advisory committee is scheduled to discuss authorization. The FDA could issue an emergency-use authorization as soon as Saturday. And, if so, on Sunday, a CDC advisory committee will also meet and vote on clinical guidance to accompany the vaccine rollout. If all goes according to plan, the first doses of the Pfizer vaccine would arrive in New York City as soon as next Tuesday on December 15th. Next week, a similar process will unfold for the Moderna vaccine, which could arrive a week or two after the Pfizer vaccine. Preparations are already underway to vaccinate our health care workers who are at the highest risk of exposure. We also give priority to long-term care facility staff and residents. And, in partnership with hospitals and clinicians, we are ensuring our systems are ready. We conducted a successful trial run of the entire COVID vaccine ordering process with Bronx Care from submitting the order all the way to the facility confirming receipt of the test package.  

 

As we move forward with the COVID-19 vaccine and the coming weeks, we will keep New Yorkers informed. We will post vaccine information as we have it on the Health Department website at nyc.gov/covidvaccine. The vaccine is one step to protect New Yorkers, especially the health care heroes who have been tireless in keeping our friends, neighbors, and family members alive. I remember joining rounds with the teams on the Elmhurst COVID wards back in March and in the Bellevue ICU's in April as well. And it gives me hope that those extraordinarily dedicated colleagues will soon receive the vaccine. This remarkable scientific breakthrough also reminds me of the every-day miracle of vaccination and the protection it gives us against illnesses like the flu. As you wait for the COVID vaccine, it's not too late to protect yourself and your family against influenza. Get your flu shot today. Thank you. 

 

Mayor: Thank you so much, Dr. Chokshi. And thank you for reminding us of the heroism of our health care workers and the fact that you were there at the frontline in some of the places that were bearing the brunt, you understand very personally what extraordinary work our health care heroes did and how important it is to protect them, going forward. And, of course, then to protect all New Yorkers. The vaccine’s coming. As you can hear, our Health Department's ready. And these next weeks are going to be a challenge because of the rise in cases we're seeing, but they're also going to be inspiring, because we're going to see the fight back get even deeper against the coronavirus as more and more people get vaccinated. And, as you heard, even the first dose has a very important impact. So, there's really important news, good news here about how we fight back.  

 

But now, let's talk about what we have to do even beyond the vaccine and what New Yorkers overwhelmingly have been doing, wearing the masks, practicing social distancing, avoiding gatherings, not holding those indoor gatherings, not traveling. We're going to keep talking about this throughout, but it's also important to talk about what allows you to be safe, the rules, the laws that protect you. Because, look, we're saying to people, if you're sick, don't go to work. If you're sick, protect yourself and others. Get the help you need. If you need the help of our Test and Trace Corps. and our Take Care Initiative, it's there for you for free. We want to support people, but we also want people to know, if you are sick, you should not have to fear for your job. You would not have – should not have to worry about whether your job's still going to be there or whether you can make ends meet. This is why in 2014, we passed the paid sick leave law, to protect the most fundamental rights of New Yorkers – to say, if you're sick, or a member of your family is sick, getting well really matters. We have to be there for you and support you. It can't be a choice between your health and your job, your health and your livelihood. We made that decision in 2014, that’s something I'm very proud of. One of the things we did that has a lasting impact for the city. We didn't know that there'd be a pandemic, but paid sick leave has taken on even greater meaning because of the pandemic. And I really want to thank everyone at our Department of Consumer and Worker Protection, who took the paid sick leave law and brought it to life and continue to make sure that people's rights are acknowledged. But this takes on other greater meaning in the middle of a pandemic. Here to tell you about this effort to protect people's rights and make sure that their health care truly comes first, my great pleasure to introduce our Commissioner for Department of Consumer and Worker Protection Lorelei Salas. 

 

Commissioner Lorelei Salas, Department of Consumer and Worker Protection: Thank you for making the time today to remind New Yorkers about such a saving benefit. Paid sick leave law saves lives. In fact, not only did you, under your leadership – did we get this great benefit for workers, but it was also extended several times to make it one of the most broad laws in the country, protecting workers. And, as recent as earlier this year, the State and federal governments finally recognize how critical this law is in fighting COVID. They passed their own protections. So, thank you to everyone. And we're all in this together, as the Mayor mentioned. We all need to fight this virus together.  

 

A couple of things about the paid sick law. In New York City, the law gives you 40 hours of sick leave in addition to the State and federal leave laws. That means that you first need to use the State and federal laws if you have COVID, if you are having ordered to quarantine. You don't not do not need to use any other days. Now, the sick days under New York City are on top of that leave, and that is a very important reminder for New Yorkers. Now, we have been fighting to collect wages for workers, schools who were denied the sick leave, but it is much more important than collecting money. It is much more important that this benefit be actually available for workers. That is what we're looking for. We're seeking full compliance with this particular law. And we are here for you, we have investigators and attorneys who look into this law. We also have staff who are conducting a lot of outreach to businesses to make sure our small business owners understand their obligations under the law. Very important to notice – to know that under the City, the State, and the federal laws workers are protected against retaliation and the law is available to all workers, regardless of immigration status.  

 

Most employers are doing the right thing, Mayor, but, recently, we had a couple of situations where workers were fired because they were sick and they tried to take, you know, enforce their rights. My office fought back. Those workers are back in their jobs with the same salary, the same hours that they had before and with the lost wages for those days where they lost what they were illegally fired. So, we have your back if you need to call us if you have questions or if you need to file complaints. But I want to mention just a couple of changes in our New York City law, as a result of some recent amendments in the State law. Very important to know that workers no longer have to wait in order to enjoy this benefit. So, new hires no longer have to wait. There used to be a waiting period before, but, again, because of COVID-19, that waiting period has gone away and you start accruing leave the moment you are hired. 

 

Another thing is that domestic workers are now treated the same as workers in any other industry. Domestic workers have the right to at least 40 hours of sick leave a year. It's, again, important to remind New Yorkers that the New York City law is very broad in its coverage. You can use it to take the flu shot. You will be able to use it to take your vaccine against COVID. You can use that to take care of yourself or your loved ones. You can also use it in situations in which the schools, the public schools are closed, and you need to take care of your kids, because there's a state of emergency, or even if your employer was ordered to shut down and you have leave that you have available to you. We have some changes again – and, as of January 1st, employers that are bigger, that have a 100 employees or more will be able – will have to give employees up to 56 hours of sick leave.  

 

So. again, this is a law that we are prioritizing. My office takes it very seriously. We need to – you know, this is not about workers versus employers. It's about all of us being in this together in order to have a full recovery. We want to make sure that the law is being complied with. Call us with questions, with complaints. We have information on our website in many different languages. We are hosting a lot of round tables right now with the chambers of commerce and with worker organizations. You can call us at 3-1-1 and say paid safe and sick leave. Or, you can visit our website at nyc.gov/workers. And I just want to wish everyone the safest and healthiest holiday season. 

 

Mayor: Thank you so much. Thank you, Commissioner Salas. Thank you to you and your entire team, doing extraordinary work, protecting the rights of working people and consumers in this city. So, thank you for that great work. And, everyone, look, it's as simple as this. If you are sick, stay home. That is the best thing for you, your family, your city. We will protect your rights. If you're sick, stay home. If your child's sick, don't send your child to school. This is how we protect everyone. Look, if you're an employer – and I want to give credit, the vast majority of employers in this city have really shown a lot of compassion for their workers, and I thank you for that deeply. But listen, every employer needs to follow the rules, follow the law to protect working people. So, everyone, this is how we get through this together, recognizing the humanity in each of us and really respecting each person in the challenges they are facing. These laws are here to protect working people, to protect their families, protect their health.  

 

Okay, let's go to today's indicators. Again, this is a new format we're using. Number one, current hospital admissions, daily number of people admitted to New York City hospitals for a suspected COVID-19. – today's report is 196 patients. Now, again, our threshold is 200. We’re right up on that now. We’ve got to keep fighting back to get and stay under that threshold. It is so important. Again, our hospitals are doing a great job. They are using techniques and approaches that they learned from the spring that are much more effective now. So, hospitals are handling the challenges very, very well, and that's really important, but that number is still higher than we need it to be. We’ve got to push it back down. The new indicator we've added hospitalization rate per 100,000 people – 2.34 percent today. I'm sorry, 2.34 people per 100,000 today. That is still too high. We want to get under two. Number two, current new cases – now, this includes, again, the probable cases from the antigen tests as well as the confirmed cases. Today's number on a seven-day average, 2,738 – obviously, way too high. We want to get that back under 550. That's going to take time to say the least, but the vaccine is going to contribute greatly more and more in the weeks ahead to getting that number down. And number three, this is now the percentage of New York City residents tested positive on a seven-day rolling average. It's the only one we're now presenting the seven-day rolling average, the truest number – 4.81 percent today. We’ve got to be under five percent. Today, we are. We’ve got to work hard to keep pushing that number down.  

Attorney General James Leads Multistate Lawsuit Seeking to End Facebook’s Illegal Monopoly

 

AG James Leads Bipartisan Coalition of 48 Attorneys General Charging Anticompetitive Conduct

Facebook Thwarted Competition, Reduced Consumer Privacy for Profits

 New York Attorney General Letitia James today filed a lawsuit against Facebook Inc., alleging that the company has and continues today to illegally stifle competition to protect its monopoly power. The lawsuit alleges that, over the last decade, the social networking giant illegally acquired competitors in a predatory manner and cut services to smaller threats — depriving users from the benefits of competition and reducing privacy protections and services along the way — all in an effort to boost its bottom line through increased advertising revenue. Attorney General James leads a bipartisan coalition of 48 attorneys general from around the nation in filing today’s lawsuit to stop Facebook’s anticompetitive conduct.

“For nearly a decade, Facebook has used its dominance and monopoly power to crush smaller rivals and snuff out competition, all at the expense of everyday users,” said Attorney General James. “Today, we are taking action to stand up for the millions of consumers and many small businesses that have been harmed by Facebook’s illegal behavior. Instead of competing on the merits, Facebook used its power to suppress competition so it could take advantage of users and make billions by converting personal data into a cash cow. Almost every state in this nation has joined this bipartisan lawsuit because Facebook’s efforts to dominate the market were as illegal as they were harmful. Today’s suit should send a clear message to Facebook and every other company that any efforts to stifle competition, reduce innovation, or cut privacy protections will be met with the full force of our offices.”

Since 2004, Facebook has operated as a personal social networking service that facilitates sharing content online without charging users a monetary fee, but, instead, provides these services in exchange for a user’s time, attention, and personal data. Facebook then monetizes its business by selling advertising to firms that attach immense value to the user engagement and highly targeted advertising that Facebook can deliver due to the vast trove of data it collects on users, their friends, and their interests.

In an effort to maintain its market dominance in social networking, Facebook employs a variety of methods to impede competing services and — as Chairman, Chief Executive Officer, and controlling shareholder Mark Zuckerberg has stated — to “build a competitive moat” around the company. The two most utilized strategies have been to acquire smaller rivals and potential rivals before they could threaten Facebook’s dominance and to suffocate and squash third-party developers that Facebook invited to utilize its platform — allowing Facebook to maintain its monopoly over the social networking market and make billions from advertising. As one market participant noted, if an application (app) encroached on Facebook’s turf or didn’t consider selling, Zuckerberg would go into “destroy mode,” subjecting small businesses to the “wrath of Mark.”

Consumers Suffer – Reduced Privacy and Fewer Options

Facebook’s unlawful monopoly gives it broad discretion to set the terms for how its users’ private information is collected and used to further its business interests. When Facebook cuts off integration to third-party developers, users cannot easily move their own information — such as their lists of friends — to other social networking services. This decision forces users to either stay put or start their online lives from scratch, if they want to try an alternative.

Because Facebook users have nowhere else to go, the company is now able to make decisions about how to curate content on the platform and use the personal information it collects from users to further its business interests, even if those choices conflict with the interests and preferences of Facebook users.

Additionally, while consumers initially turned to Facebook and other apps now owned by the company seeking privacy protection and control over their data — Facebook’s “secret sauce” — many of those protections are now gone.

Who Would Turn Down a “High Enough Price”?

The harm to consumers over the last decade comes as a direct result of Facebook’s acquisition of smaller firms that pose competitive threats. Facebook employs unique data-gathering tools to monitor new apps all in an effort to see what is gaining traction with users. That data helps Facebook select acquisition targets that pose the greatest threats to Facebook’s dominance. Once selected, Zuckerberg and Facebook offer the heads of these companies vast amounts of money — that greatly inflate the values of the apps — all in hopes of avoiding any competition for Facebook in the future.

When it came to startups, Zuckerberg has observed, that if these companies were not inclined to sell, “they’d have to consider it” if Facebook offered a “high enough price.”

The elimination of competitive alternatives means users have no alternative to Facebook, fueling its unfettered growth without competition and further entrenching its position. The two most obvious examples of this successful strategy were Instagram and WhatsApp — both which posed a unique and dire threat to Facebook’s monopoly.

#TotalDomination – Purchase of Instagram

Facebook and Zuckerberg saw Instagram as a direct threat quickly after the company launched. After initially trying to build its own version of Instagram that gained no traction, Zuckerberg admitted, in early 2012, that Facebook was “very behind” Instagram and a better strategy would be “to consider paying a lot of money” for the photo-sharing app in an effort to “neutralize a potential competitor.”

A few months later, in April 2012, Facebook acquired Instagram for $1 billion, despite the company not having a single cent of revenue and valuing itself at only $500 million. Zuckerberg offered Instagram’s owners double the valuation that Instagram came up with even though Zuckerberg previously described the initial $500 million value as “crazy.”

$100 Million Isn’t Cool. You Know What’s Cool?…$19 Billion – Purchase of WhatsApp

The mobile messaging app WhatsApp also posed a unique threat to Facebook’s growth, giving users the ability to send messages on their mobile devices both one-to-one and to groups. While Facebook focused on several emerging mobile messaging services, WhatsApp was viewed as the “category leader” with over 400 million active users worldwide in 2014, and the one that could potentially provide the greatest threat.

Facebook feared WhatsApp eroding its monopoly power, stating WhatsApp or similar products posed “the biggest competitive threat we face as a business.” Facebook was also concerned that WhatsApp could ultimately be bought by a competing behemoth that had previously shown interest in social networking — namely Google.

This led Facebook, in February 2014, to acquire WhatsApp for nearly $19 billion — wildly more than the extravagant price Zuckerberg had recommended paying a few months earlier and the $100 million another competitor offered to buy the company two years earlier.

Here Today, Gone Tomorrow – Cutting Competitors Off from Facebook Overnight

As laid out in today’s complaint, Facebook targets competitors with a ‘buy or bury’ approach: if they refuse to be bought out, Facebook tries to squeeze every bit of oxygen out of the room for these companies. To facilitate this goal, Facebook has used an “open first–closed later” strategy to stop competitive threats, or deter them from competing, at the inception.

Facebook opened its platform to apps created by third-party developers in an effort to increase functionality on the site and, subsequently, increase the number of users on Facebook. Facebook also drove traffic to third-party sites by making it easier for users to sign in, so that Facebook could capture valuable data about its users’ off-Facebook activity and enhance its ability to target advertising.

Not only did Facebook benefit monetarily through the third-party developers’ revenue, but Facebook’s services were expanded, as Facebook did not have the capacity to create and develop all the useful social features offered through third-party developers.

After years of promoting open access to its platform, in 2011, Facebook began to rescind and block access to the site to apps that Facebook viewed as actual or potential competitive threats. Facebook understands that an abrupt termination of established access to the site can be devastating to an app — especially one still relatively new to the market. An app that suddenly loses access to Facebook is hurt not only because its users can no longer bring their friend lists to the new app, but also because a sudden loss of functionality — which creates broken or buggy features — suggests to users that an app is unstable. In the past, some of these companies experienced almost overnight drop-off in user engagement and downloads, and their growth stalled.

Facebook’s response to competitors also serves as a warning to other apps that if they encroach on Facebook’s territory, Facebook will end their access to crucial integrations. Additionally, Facebook’s actions deter venture capitalists from investing in companies that Facebook might in the future see as competitors.

Ads Aren’t Cool…But They Are Profitable

As a consequence of Facebook’s expansive user base and the vast trove of data it collects from its users and users’ connections, Facebook is able to sell highly targeted advertising that firms greatly value.

The volume, velocity, and variety of Facebook’s user data give it an unprecedented, virtually 360-degree view of users and their contacts, interests, preferences, and activities. The more users Facebook can acquire and convince to spend additional time on its platforms, the more data Facebook can accumulate by surveilling the activities of its users and thereby increase its revenues through advertising — reaping the company billions every month.

Specific Violations

Facebook is specifically charged with violating Section 2 of the Sherman Act, in addition to multiple violations of Section 7 of the Clayton Act.

Remedies

Attorney General James and the coalition ask the court to halt Facebook’s illegal, anticompetitive conduct and block the company from continuing this behavior in the future. Additionally, the coalition asks the court to restrain Facebook from making further acquisitions valued at or in excess of $10 million without advance notice to the state of New York and other plaintiff states. Finally, the court is asked to provide any additional relief it determines is appropriate, including the divestiture or restructuring of illegally acquired companies, or current Facebook assets or business lines.

The complaint was filed in the U.S. District Court for the District of Columbia.

Separately, but in coordination with the coalition led by Attorney General James, the Federal Trade Commission (FTC) also today filed a complaint against Facebook in the U.S. District Court for the District of Columbia. Attorney General James wishes to thank the FTC for its close working relationship and collaboration during this investigation. 

Attorney General James leads this lawsuit with an executive committee comprised of the attorneys general of California, Colorado, Florida, Iowa, Nebraska, North Carolina, Ohio, Tennessee, and the District of Columbia. The executive committee is joined by the attorneys general of Alaska, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and the territory of Guam.

Statement from New York City Comptroller Scott M. Stringer on NYS Common Retirement Fund Divestment

 

“Climate change is the most pressing challenge of our time, and we need to take on the climate emergency to protect our people, our planet, and our pensioners. Since we announced a first-in-the-nation divestment goal, the urgent financial risks of climate change have only become more severe, and other states and cities have joined the fight. The future is on the side of clean energy, not big oil, and I applaud Comptroller DiNapoli for taking this major step toward a sustainable economy and all those who have worked tirelessly on these efforts. We proudly stand side by side in our commitments to a greener future for our children.”

STATEMENT FROM MAYOR BILL DE BLASIO ON COMPTROLLER DINAPOLI’S FOSSIL FUEL DIVESTMENT PLAN

 

 “Fossil fuels not only harm our planet – they’re a bad investment. I applaud Comptroller DiNapoli’s bold plan to divest New York State’s $226 billion pension fund from risky oil and gas companies and target a net zero portfolio by 2040. In 2018, New York City made history by committing to divest our pension funds from fossil fuels within five years. We’re well on our way to achieving this goal and keeping our promise to future generations, and our pensioners, to build a greener, more sustainable future.”  

Christmas Tree Lightings in Pelham Bay and Allerton

 

 In Pelham Bay there was a tree lighting with Councilman Mark Gjonaj, Assemblyman Michael Benedetto, and a some local community members at Keane Square Park located at the corner of Hobart and Buhre Avenues. 

Right after the Pelham Bay tree lighting people gathered at the Triangle of Allerton Avenue and Boston Road to meet Santa Councilman Mark Gjonaj Allerton International Merchants President Gene De Francis, and newly promoted Deputy Inspector Natiw of the 49th Precinct. There was hot chocolate provided by IHOP and other surprises for those who attended.

Above - Some of those who gathered to light the Pelham Bay Christmas Tree.

Below - The unlit Pelham Bay Christmas Tree.

Above - The lit Pelham Bay Christmas Tree.

Above - Santa is on Allerton Avenue with AIM President Gene De Francis and Community Board 11 member Veronica Castro.

Below - Councilman Mark Gjonaj hands Santa some face masks to distribute to children for school with the toys he leaves them.

Above - People gather with Santa, Councilman Gjonaj, Deputy Inspector Natiw AIM President De Francis for a photo.

Below - The lit Allerton Avenue Christmas Tree.

NYS Office of the Comptroller - New York State Pension Fund Sets 2040 Net Zero Carbon Emissions Target

 

Announcement Builds on Fund’s Climate Action Plan

Review Of Energy Sector Investments To Be Completed By 2025, With Potential Divestment For Riskiest Companies

Sponsors of Fossil Fuel Divestment Act Support Fund’s Strategy

 New York State Comptroller Thomas P. DiNapoli announced today that the New York State Common Retirement Fund (Fund), valued at an estimated $226 billion, has adopted a goal to transition its portfolio to net zero greenhouse gas emissions by 2040. This process will include completion within four years of a review of investments in energy sector companies, using minimum standards to assess transition readiness and climate-related investment risk, with, where consistent with fiduciary duty, divestment of companies that fail to meet minimum standards.

On the eve of the 5th anniversary of the Paris Agreement, as the world increasingly moves toward net zero emissions targets by or before 2050, this goal will continue to ensure the Fund’s portfolio is adapting to the anticipated transition. This ambitious and multifaceted effort continues State Comptroller DiNapoli’s leadership on management of climate risk to investments, for which the Fund is already top-ranked in the United States by the Asset Owners Disclosure Project.

“New York State’s pension fund is at the leading edge of investors addressing climate risk, because investing for the low-carbon future is essential to protect the fund’s long-term value,” State Comptroller DiNapoli said. “Achieving net-zero carbon emissions by 2040 will put the Fund in a strong position for the future mapped out in the Paris Agreement. We continue to assess energy sector companies in our portfolio for their future ability to provide investment returns in light of the global consensus on climate change. Those that fail to meet our minimum standards may be removed from our portfolio. Divestment is a last resort, but it is an investment tool we can apply to companies that consistently put our investment’s long-term value at risk. I am grateful for Senator Liz Krueger’s focus on addressing climate risk, her recognition of our work, and her appreciation of the importance of the State Comptroller’s independent, fiduciary duty and constitutional authority as trustee of the Fund for the benefit of our members, retirees and beneficiaries. My thanks as well to Assemblymember Felix Ortiz for his efforts on this issue.”

Building on DiNapoli’s 2019 Climate Action Plan, the Fund will continue its use of minimum standards for determining whether a company is well-prepared for the transition to a low-carbon global economy. The Fund has already set minimum standards for the thermal coal mining industry and divested from 22 coal companies.

The Fund is currently wrapping up its evaluation of nine oil sands companies, and will develop minimum standards for investments in shale oil and gas. Those will be followed by; integrated oil and gas; other oil and gas exploration and production; oil and gas equipment and services; and oil and gas storage and transportation. Minimum standards for all of these sectors, and a determination of which companies are suitable to remain in the Fund’s portfolio, will be completed by 2025. After completing initial reviews, the Fund will continue to reassess whether the remaining companies are meeting minimum standards and are on viable low-carbon transition pathways. The Fund will be hiring additional staff and engaging consulting partners to support these critical efforts.