Following its finding in December that Mr Scholz had contravened s911A of the Corporations Act by carrying on a financial service business without an Australian Financial Services Licence, the Federal Court has now permanently prohibited Mr Scholz from hosting online groups for which a membership fee is charged without an AFSL, and carrying on a financial services business in Australia.
“Financial services laws exist for the protection of investors. ASIC sought permanent injunctions in this case because the people who paid Mr Scholz to access private online forums where he made recommendations about shares, as well as those people who purchased shares based on these recommendations, did not have the benefit of these protections,” said ASIC deputy chair Sarah Court.
“Anyone who recommends financial products or provides financial advice on social media must ensure they are complying with the law and may face ASIC enforcement action when they are not.”
In December last year, the corporate regulator said it had alleged Mr Scholz was carrying on a financial services business by providing financial product advice, regarding share trading on the ASX, without a licence. The regulator also alleged that Mr Scholz engaged in various areas of financial services by delivering training courses and seminars about trading in ASX-listed securities, during which he made recommendations about share purchases; promoting those courses and seminars on Twitter and Instagram; and by making share purchase recommendations on private online forums (that he administered) and on Instagram.
According to ASIC, Mr Scholz’s business to paying subscribers included subscription or membership fees of $500, $1,000 or $1,500; offers of various levels of share trading training, referred to as “Stage 1” and “Stage 3” packages, which were marketed as introductory or advanced seminars; offers of individual one-off share trading suggestions, or tips for a fee; and the Stage 2 package providing one year’s access to a private chat site, named “Black Wolf Pit”, using the online communications platform Discord.
In handing down the judgment in December, her Honour, Justice Kylie Downes said, “… the financial product advice given by Mr Scholz formed an integral part of this business. The advice which was given by him was not a one-off but formed part of the continuous and systemic business operations by which Mr Scholz derived profit”.
The judge noted that through his lifestyle posts and “life story” posts on the Instagram account, Mr Scholz had established a reputation as a successful share trader who had the ability to identify worthwhile companies in which an investment should be made. “It did not matter that the stories did not contain any overt recommendation to acquire the shares: it was enough that Mr Scholz referred to a company or its share in the stories, which was usually done in a way which indicated that he liked that company,” her Honour, Justice Downes said.
