Tuesday, December 22, 2009

Triton Financial Scandal

On the afternoon of Oct. 23, 2008, the in-boxes of 102 retired NFL players were filled with a newly arrived business pitch. The visible list of recipients spanned the alphabet, from the obscure to the celebrated -- from A (as in Aguiar, Louie, the Chiefs punter), to D (as in Dickerson, Eric, the Hall of Fame Rams back), to N (as in Newton, Nate, the embattled Cowboy lineman), to W (as in Wycheck, Frank, the Titans tight end). The sender of such a mass mailing was a fellow member of the NFL fraternity: former quarterback Jeff Blake.

Blake was writing on behalf of Triton Financial, a registered investment firm and a well-publicized commodity in the sports world. Triton, based in Austin, Texas, is an official partner of the Heisman Trophy Trust and the sponsor of the eponymous Triton Financial Classic, a PGA senior tour event. Blake directs Triton's "athlete services" department -- a marketing arm for the company that recruits players as clients -- alongside three other ex-QBs: Chris Weinke and the Detmer brothers, Ty and Koy. "I wanted to reach out to former players who may have an interest with Triton Financial," Blake said in the e-mail, a copy of which was obtained by SI, "and make myself available to help in anyway."

After a few sentences describing the benefits of buying commercial real estate in the current market, Blake presented a particularly stunning statistic, without caveat or disclaimer: "Triton is averaging 32 percent annualized return on its investments within the past five years." That is, you could have quadrupled your money with Triton in the span of the past 60 months.

In magnitude, such figures are actually not too far off from what Triton publicly claims (online, with disclaimers) as its target. The firm says on its Web site that it aims for "an internal annualized rate of return of 30+ percent (in addition to return of invested capital)" over a "typical hold period of 24 to 36 months." (The standard disclaimer, in less prominent type at the bottom of the site's pages, says, "All investments and tax strategies have risks. Past performance and/or forward statements are never an assurance of future results.") But more generally, commercial real estate returns across the United States are now at -9.22 percent over the last five years and -32.75 percent so far in 2009, according to the National Association of Real Estate Investment Trusts.

"In this economy, especially in real estate, anything you bought in the last two years is deeply underwater," said Paul Cohen, a real estate investor for 20 years who owns properties in Austin. "I guess what [Triton is] saying could happen. But then again, I could target the moon with my rifle and shoot, but I ain't gonna hit it."

Triton CEO Kurt Barton, who points to the firm's method of seeking "distressed ownership" -- also known as buying and then flipping the commercial properties of those in financial straits -- said he stands by the 30+ percent goal as a target, not a guarantee. But both he and Triton's General Counsel and Chief Compliance Officer, David Tuckfield, admitted to SI that Blake's e-mail was a mistake and that they are, as Barton puts it, "not supposed to publish specific numbers about past performance like that" without significant disclaimers, due to laws protecting prospective investors from fraud and misleading advertisements. According to a prior SEC ruling, advertisements by investment advisers must "disclose any material conditions, objectives or investment strategies used to obtain the results portrayed (e.g., the model portfolio contains equity stocks that are managed with a view towards capital appreciation)."

But as far as Triton's internal operations go, two other key areas of discrepancy arose in interviews with The one I got Blog:

Barton said that the firm had registered with the SEC "roughly six months ago, around October" and now has "about $300 million" in assets under management (or AUM). Likewise, Triton's Web site claims that the firm is on "an aggressive growth path with a goal of $500 million in assets under management within the next three years." Barton also said that Triton already had "over $100 million" in AUM two years ago. Ty Detmer, however, estimated that their current AUM is "over $100 million right now," following the acquisition of a "group of financial planners last month." Blake, meanwhile -- who said he doesn't "see the books" himself, and serves more as a marketing representative to athletes -- guessed that it was somewhere between $100 million and $300 million.

But Tuckfield, who actually files the firm's government forms, told SI that Triton is, in fact, still registered only with the state of Texas, and not with the SEC, because the firm has not yet reached the necessary threshold of $25 million in AUM, which legally allows them to do so. (According to representatives from both the SEC and the Texas State Securities Board, investment advisers often aim to register with the SEC -- which becomes mandatory by law upon reaching the $30 million threshold -- simply because that higher tier of assets signified is more attractive to potential investors and connotes a heightened level of credibility.)

Both the SEC and the Texas State Securities Board, alongside publicly available government documentation, also confirm that registration with the SEC for Triton does not exist. "Right now, we're only registered with Texas," Tuckfield said, declining to provide any specific dollar value for the firm's current AUM. "But we're passing the [assets under management] threshold, and we're confident that we'll need to file this year."

Tuckfield, Detmer, Blake and Barton all echoed the Triton Web site and said that the company not only invests in real estate but manages the securities portfolios of athletes and other clients. (According to various estimates from Detmer, Blake and Barton, respectively, either 30, 70 or 100 athletes are clients in some way.)

Yet, on the section titled "Assets Under Management" (Item 5, Part F) of their current registration form with the state of Texas (known as the Form ADV), Triton answered "no" when asked whether it provides "continuous and regular supervisory or management services to securities portfolios" (either discretionary or non-discretionary). Which means, according to the Texas State Securities Board, that they do not claim to have any such assets under management, and thus do not have to officially list the number of those assets or their dollar amount as requested in the second part of that question. (Notably, this section also contains the following instruction: "Part 1A Instruction 5.b. explains how to calculate your assets under management. You must follow these instructions carefully when completing this Item.")

"That is strange," a representative from the Texas State Securities Board told SI, after examining the remainder of Triton's Form ADV. "Everything seems consistent except for answering 'no' in that section." Assets under management are listed, for example, as a form of compensation in Part II, Page 2, Part 1-C -- a section of the Form ADV dated Feb. 6, 2009.

"My question is this," said Cynthia L. King, a corporate and securities attorney specializing in securities regulation who spent 11 years with the Financial Industry Regulatory Authority (formerly the NASD), "if they say they don't provide ongoing supervisory or management services for assets, what do they do and how do they even get their purported returns?"
Courtesy of SI