One problem applying that ruling in this instance: here, we have a site charging $3 million in fees for the "opinions." The second you charge fees you're no longer making mere "opinions" but delivering investment advice, as our old SI amigo Tokyo Joe could tell you, since he lost his "opinions" argument in federal court:
The Court notes initially that Defendants meet the basic definition of an “investment adviser” in that over the Internet they “for compensation, engage in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issue or promulgate analyses or reports concerning securities.” 15 U.S.C. § 80b-2(a)(11); cf. Lowe, 472 U.S. at 203-04, 105 S. Ct. 2569. Thus, Defendants must fall within an exclusion in order to not be considered an “investment adviser.” Moreover, in order to avail themselves of the publishers exception, Defendants' publications over the Internet web site must be both “bona fide” and have a “general and regular” circulation. See id. at 206, 105 S. Ct. at 2571. The SEC has alleged that Defendants' publications are neither.
…a "bona fide" publication is one that is genuine in that it would contain disinterested commentary and analysis and not be promotional material disseminated by a "tout." …The SEC has alleged that Defendants' publications were not disinterested. On the web site, Defendants persuaded subscribers to purchase, sell, or hold specific stocks using several methods, including posting effusive testimonials and misleading performance results, urging subscribers to hold stocks until they reached certain target numbers, and falsely stating Societe Anonyme's intentions to purchase certain stocks. Further, the SEC maintains that in certain instances, Defendants were acting as "touts," by promoting stocks in which they either had an interest or for which they were being paid to recommend without revealing their interests.
United States SEC v. Gun Soo Oh Park a/k/a Tokyo Joe and Tokyo Joe’s Societe Anonyme Corp., 99 F. Supp. 2d 889, 895-896 (D. Ill., 2000) |
