Today, the Commodity Futures Trading Commission (CFTC or Commission) announced the filing of a Proposed Consent Order to resolve claims against a Ponzi-scheme operator that fraudulently solicited more than $41.6 million from at least 12,500 individuals in the U.S. and abroad.

From at least September 2020 through February 2022, Defendant Empires Consulting Corp. (Empires Consulting) and co-Defendants Emerson Pires, Flavio Goncalves, and Joshua Nicholas solicited funds from customers in the U.S. and abroad through commodity interest pools under the name of “EmpiresX.” Pool participants understood their funds were being invested into “futures products” such as commodity futures and binary options, as well as stocks and other products traded on multiple markets and available 24 hours a day. In fact, Defendants deposited only $1 million of participant funds in a futures trading account at Interactive Brokers. Defendants also used participant funds to hold or trade digital asset commodities, including bitcoin (BTC), ether (ETH), and tether tokens (USDT).

Throughout the scheme, Defendants made numerous misrepresentations, including creating fake websites that mimicked real trading websites, misrepresenting their trading success on weekly update calls, and creating statements for pool participants with false account balances and investment returns. Defendants also misrepresented that their registration status with the Commission. Defendants misappropriated over 75% of the customer funds deposited with their enterprise. The misappropriated funds were used for luxury travel, fine dining, expensive car leases, and retail shopping to facilitate celebrity-like lifestyles.

Nicholas is currently serving a 51-month prison sentence in Florida for securities fraud committed as a part of this scheme. Pires and Goncalves are believed to be in Brazil and the Department of Justice continues to seek their extradition.

On June 30, 2022, the CFTC charged Empires Consulting with violations of Sections 4m(1), 4o(1)(A) and (B), and 6(c)(1) of the Commodity Exchange Act. Empires Consulting is currently controlled by a receiver appointed by a Florida state court in a putative class action regarding the same conduct.

Under the Proposed Consent Order announced today, Empires Consulting faces permanent trading and registration bans and must pay $32 million in restitution and an additional $32 million as a civil monetary penalty. The Consent Order also requires Empires Consulting to continue to cooperate with the CFTC in the ongoing litigation and in any related future investigation or action.

Another Example of a Ponzi Scheme

Despite the high-tech gloss, the scheme here is simply garden-variety fraud and an old-school Ponzi scheme. This case represents yet another in a recent line of similar cases.[1] As I have previously noted,

[t]his age-old sleight of hand gained its contemporary moniker “Ponzi scheme” from the 1920’s financial fraud perpetuated by Charles Ponzi.[2] For proof of the enduring and pernicious legacy of fraudsters such as Ponzi and his predecessors, recall the revelation of Bernie Madoff’s $50 billion Ponzi scheme.[3] Prosecutors continue to work today—a decade after Madoff confessed that his investment advisory fund was “all just one big lie” —to compensate victims.[4]

The CFTC has appropriately taken a strong stance in this matter, which reflects an intent to effectively address fraud in our markets, with a laser focus on eliminating fraud schemes that target retail customers. I have repeatedly made clear that protection of customer funds is one of the CFTC’s core missions:

creating and enforcing effective, well-tailored rules governing the custody, investment, and preservation of customer funds must be among the Commission’s highest priorities. Without these rules and rigorous enforcement, our markets would lack the foundation of trust upon which every transaction is built.[5]

The CFTC must act preemptively to protect customer funds through appropriate regulation, and I have continuously advocated for the preservation and extension of such customer-focused regulation. When misuse of funds and fraud nevertheless occurs, as here, the CFTC must forcefully respond with enforcement action.

I want to expressly recognize the hard work of the Division of Enforcement staff on this case, including Ben Sedrish, Heather Dasso, Elizabeth Pendleton, Scott Williamson, and Robert Howell.

[1] See, e.g., CFTC Release No. 9706-23, CFTC Charges Five Defendants with Fraudulent Digital Assets Trading Scheme, May 24, 2023, https://www.cftc.gov/PressRoom/PressReleases/8706-23; Statement of Commissioner Kristin N. Johnson: Enforcement Action To Stop Bitcoin Fraud Targeting the Spanish-Speaking Community, May 24, 2023, https://www.cftc.gov/PressRoom/SpeechesTestimony/johnsonstatement052423; CFTC Release No. 8660-23, CFTC Charges California-based Company and Its CEO with Fraudulent Solicitation and Misappropriation of Digital Asset Commodities, Feb. 16, 2023, https://www.cftc.gov/PressRoom/PressReleases/8660-23; Statement of Commissioner Kristin N. Johnson Regarding Fraud and Misappropriation by a Digital Asset Ponzi Scheme, Feb. 16, 2023, https://www.cftc.gov/PressRoom/SpeechesTestimony/johnsonstatement021623; CFTC Release No. 8656-23, CFTC Charges Three Puerto Rico Residents and Their Companies with Misappropriating Over $13 Million in Connection with Commodity Pool Ponzi Scheme, Feb. 13, 2023, https://www.cftc.gov/PressRoom/PressReleases/8656-23; Statement of Commissioner Kristin N. Johnson Regarding CFTC Action Against Retail Forex Ponzi Scheme Targeting Spanish Speakers in Puerto Rico and the Continental United States, Feb. 14, 2023, https://www.cftc.gov/PressRoom/SpeechesTestimony/johnsonstatement021423.

[2] In addition to careful academic scholarship and investigative journalism revealing the impact of Charles Ponzi’s scheme, popular television and film continue reference Ponzi’s scheme. For example, one finds colorful explanations of Ponzi’s scheme and descriptions of investors who suffered losses as a result of the scheme in Comedy Central, Drunk History, “Scoundrels,” Downton Abbey; and Boardwalk Empire.

[3] Diana Henriques, The Wizard of Lies: Bernie Madoff and the Death of Trust (2011).

[4] See U.S. Dep’t Just., Justice Department Announces Total Distribution of Over $4 Billion to Victims of Madoff Ponzi Scheme, Sept. 28, 2022, https://www.justice.gov/opa/pr/justice-department-announces-total-distribution-over-4-billion-victims-madoff-ponzi-scheme. See Statement of Commissioner Kristin N. Johnson Regarding CFTC Action Against Retail Forex Ponzi Scheme Targeting Spanish Speakers in Puerto Rico and the Continental United States (Johnson Ponzi Statement), Feb. 14, 2023, https://www.cftc.gov/PressRoom/SpeechesTestimony/ johnsonstatement021423.

[5] Kristin N. Johnson, Commissioner, CFTC, Statement on Preserving Trust and Preventing the Erosion of Customer Protection Regulation (Nov. 3, 2023), https://www.cftc.gov/PressRoom/SpeechesTestimony/johnstatement110323.

[6] See id.