Accounting
Water ‘Ponzi’ that burned Jefferies had something for everyone, until it didn’t
The pitch went like this: Good, safe drinking water has become such a scarce resource that Americans will pay to fill up jugs — 30 or 40 cents to the gallon — at dispensers all across the country.
Hundreds of investors bought thousands of units, believing in the vision laid out by Ryan Wear, founder of a startup called WaterStation Management. They plunked down $8,500 for each vending machine and then waited for the dispensers to throw off a steady stream of cash. Among those lured in was a product manager in Oregon in 2021 and then, several months later, a dentist in Illinois. Each bought dozens of water dispensers, which Wear’s team would install and operate.
What they didn’t know is that at least one of those Hylyte-branded machines wound up being sold to both of them: serial number 101962, wedged in between a liquor store and a yoga studio in a strip mall in the Los Angeles suburb of Torrance, according to court records. To make matters worse, a machine with that same serial number was also pledged as collateral to back WaterStation bonds that were sold in April 2022 to the investment bank Jefferies Financial Group Inc.
Serial number 101962, faded and rusted in pictures submitted to court, is now gone from that strip mall, WaterStation is in
“This case involves a massive Ponzi scheme,” Assistant U.S. Attorney Justin Rodriguez told a federal judge in Manhattan Wednesday after Wear pleaded not guilty to
Voluminous legal filings describe a business that drew in military veterans, stock traders, pharmacists, salespeople and retirees by leveraging growing fears about contaminated tap water and microplastics and offering a lucrative solution that would churn out annual returns as high as 20%, year after year. That desire to make easy money, coupled with clever marketing and alleged diligence lapses, kept the sputtering business going until the money finally stopped flowing around June 2023, according to court documents.
“These schemes never arise in a vacuum,” said John Bender, a lawyer who is representing a committee of WaterStation creditors. “The tragic consequences of the WaterStation affair could have been avoided had it not been for a cabal of insiders and institutions that prioritized their greed over doing the right thing even if it meant devastating the lives of a lot of people.”
Earlier this month, the committee asked a judge overseeing the proceedings to rule that Wear’s business meets the legal definition of a Ponzi scheme — a type of operation that uses new money to pay returns of existing investors or other creditors, with promoters usually promising high returns for little risk. If granted, franchisees would likely get tax relief and advisors would have an easier time clawing back funds from entities that profited off WaterStation’s business, which “will lay the groundwork for future recoveries on behalf of victims of this Ponzi,” according to the committee’s filing.”
Machine mismatch
Formed in 2016 in Everett, Washington, WaterStation Management sold upwards of 21,000 machines and raised more than $380 million over the course of some seven years. Growth was fueled by a handful of banks that issued loans backed by the U.S. Small Business Administration, as well as about $100 million in bonds bought by a fund run by Jefferies. Wear claimed in a 2023 deposition that his business had more than 500 employees.
In actuality, Wear’s firm only deployed roughly 2,100 machines, many likely never existed at all and most of the money WaterStation raised paid other costs or payments to existing franchisees, according to court records. Many dispensers that do exist were sold to multiple buyers — like the one that was in Torrance — or were promised as Jefferies’ collateral. Serial numbers on other machines don’t correspond with addresses investors were given by the company, court papers indicate. Determining who owns each machine and who bears responsibility for the alleged scheme is being fought over in federal court.
To locate machines that were sold more than once, Bloomberg News analyzed thousands of serial numbers submitted in court by creditors with claims to WaterStation machines and more than a dozen investor lawsuits that have piled up. Restructuring advisers say in court papers that more than 10,000 water machines were sold to multiple purchasers.
Falling behind
WaterStation had trouble paying franchisees for years before monthly payments stopped completely two years ago, according to Becky Yang O’Malley, a GlassRatner Advisory Services managing director and certified fraud examiner retained by a committee representing WaterStation franchisees and other creditors. Franchisees have sued WaterStation and Wear, who along with Chirico, was sued by the Jefferies fund, while banks have sued franchisees who have fallen behind on business loans, according to court records. Jefferies has also sued one lender, First Fed Bank, alleging it helped keep WaterStation afloat after becoming aware of the alleged fraud in order to prioritize repayment of debt it was owed.
Wear in a sworn statement in April 2024 said franchisees’ allegations that machines don’t exist were untrue and their claims of fraud “are baseless, inflammatory and false.” Although WaterStation had occasionally experienced cash-flow issues, the business was legitimate and profits derived from water machines “were historically paid to plaintiffs,” Wear said at the time.
A First Fed spokesman said the bank isn’t able to comment on specific aspects of Jefferies’ lawsuit “as this is an ongoing legal matter,” but that the lender did nothing wrong. The bank will be submitting a formal response to Jefferies’ complaint next month, “which will provide additional clarity at that time,” he said.
‘Financially devastated’
Chirico, 41, has also denied wrongdoing. His lawyer has said Chirico is also a victim of the WaterStation fraud and that Jefferies has “tried to scapegoat our client for an alleged scheme that deceived him along with hundreds of other investors and major institutions.”
Jefferies’ 352 Capital fund, once managed by Chirico, filed a civil lawsuit against Chirico in New York state court after a federal judge in May dismissed an earlier complaint. The bond transactions and their risks “were no secret” to the firm and other institutions, Chirico’s lawyers said in a motion to dismiss the latest lawsuit. Chirico sought to protect the fund by removing Wear as manager and attempted “to stabilize the collateral so the possibility of a restructuring or refinancing could be explored,” according to his Aug. 14 motion.
Restructuring advisors face a daunting task of trying to return money to franchisees who face substantial losses after Wear’s businesses went bankrupt last year. The situation is worse for those who took out loans to buy machines because even though the business was an alleged fraud, franchisees are still responsible for the debt and certain banks have sued borrowers who have fallen behind on payments. Some investors contend banks that partnered with Wear’s business should have uncovered the alleged scheme earlier because they had access to machine lists with duplicate serial numbers.
“My family has been financially devastated by the WaterStation scheme,” one Indiana franchisee noted in a sworn statement. He said he spent $3.3 million on machines and took out loans from two banks to fund his investment, pushing his monthly loan payments to $35,000. He said WaterStation’s assurances that it would buy back machines and that the financing was “SBA-approved” made him believe the business was more profitable and secure than it actually was.
Bank loans
WaterStation was listed on the SBA’s database of franchises eligible for agency-approved loans starting in 2018. It gained momentum two years later, when Wear hired former bank-loan officer Kevin Nooney to help forge ties with banks and build a financing program to boost machine sales. The arrangement brought in new investor cash as the pandemic triggered a plunge in interest rates that motivated Americans to pile into a raft of alternative investments during lockdowns.
First Fed and fellow regional lenders Unibank and Celtic Bank were among the institutions that provided the most financing to investors, according to papers filed by a committee representing WaterStation creditors. Nooney said in a 2024 court filing that one of his former colleagues knew First Fed’s vice president of commercial lending, and that he also had “long-standing personal relationships” with Unibank’s former chief credit officer and a former loan officer.
Unibank and Celtic participate in the SBA’s preferred lending program, which lets private banks administer SBA-backed loans with minimal agency review. Preferred lenders approved 28,875 SBA loans worth nearly $30 billion in fiscal 2021, roughly 55% of all loans approved in the SBA’s flagship lending program, according to a 2022 congressional report.
Unibank and Celtic didn’t respond to requests for comment.
From the start, though, the machines that Wear’s business was built on never made enough money to pay investors or cover WaterStation’s other costs. Instead, Wear relied on investors’ money and other loans to pay returns he promised franchisees “and to perpetuate the illusion of a legitimate business,” according to Yang O’Malley’s report.
As new money rolled in, people who already purchased machines got payouts they thought were their cut of the money generated from the vending business, according to court documents. WaterStation paid out $31.5 million in investor returns in 2021, about double what it paid in 2020, and more than $44 million in 2022, according to Yang O’Malley’s report.
But cracks were already forming as soon as August 2021, when Nooney learned that WaterStation purchases could constitute a security, according to a complaint brought by Washington’s banking regulator in May. The company responded by altering how it pitched the opportunity and paid returns, and these changes had the effect of curtailing new purchases, the complaint said. A lawyer for Nooney didn’t return messages seeking comment.
There was another problem with Wear’s business. The company pitched its machines as a way to make passive income, even though SBA rules say the loans WaterStation benefited from can only be used to fund actively managed franchises, according to the complaint. The state regulator also said WaterStation exploited the SBA’s preferred lender program.
The SBA was “left in the dark” and relied on lenders to verify that funds for the WaterStation loans were being used for approved purposes, Washington authorities said.
Enter Jefferies
In need of fresh capital, Wear turned to the bond market. In 2022, a Jefferies hedge fund called 352 Capital purchased roughly $100 million in WaterStation bonds earmarked for machine purchases. The fund was run by Chirico, who had bought hundreds of machines prior to joining 352 Capital as portfolio manager, according to federal prosecutors. Chirico didn’t fully disclose to Jefferies his personal stake in WaterStation, according to the indictment, which he disputes.
The bonds have spawned a separate Jefferies lawsuit against First Fed, which the firm claims became aware in the summer of 2022 that many machines didn’t exist. The lender, a unit of First Northwest Bancorp, had serial numbers for machines purchased with loans it gave franchisees, as well as machines WaterStation claimed ownership of that served as collateral for the bonds, “and hundreds of machines appeared on both lists,” according to
First Fed has denied wrongdoing and last year sought a receiver to take over Wear’s business. In a July bankruptcy settlement, the bank also agreed to pay $2.87 million to creditors and make additional payments and concessions to benefit franchisees, according to court papers.
First Fed in a statement this month said the bankruptcy settlement will benefit creditors because the bank released claims against WaterStation as well as liens on properties owned by an affiliate company. Proceeds from those assets will “become available for ratable distribution” to creditors, the bank said.
‘Going to jail’
As for Chirico, prosecutors allege he had “learned of serious issues at WaterStation” by the summer of 2023. Then, in a phone call the following January, Wear admitted that thousands of machines supporting the bonds didn’t exist. But instead of telling Jefferies, Chirico allegedly directed the fund to purchase more WaterStation bonds, which Wear partly used to repay a debt to Chirico, according to the indictment.
At Wednesday’s arraignment, Rodriguez, the prosecutor, told a federal judge that a “lengthy recorded phone call” is among the evidence law enforcement collected along with messages from Wear’s business email account. An investor who was also on the recorded phone call told Wear this was the “largest franchise fraud case in the history of the United States” and that he was “going to jail,” according to the indictments.
As the legal process plays out, borrowers are still responsible for SBA loans even if they are victims of an alleged scam, said Paul Midzak, a lawyer who advises small business owners. However, borrowers like the WaterStation franchisees can raise the alleged fraud as a defense against their loans and challenge lenders in court, Midzak said. The SBA, meanwhile, can be slow in responding to borrowers and working with the agency can be “like dealing with a woolly mammoth,” he said.
An SBA spokesman directed Bloomberg News to the Department of Justice. The DOJ in its press release announcing the criminal charges this month said that the SBA’s Office of Inspector General was among the federal agencies that assisted law enforcement in the criminal investigation.
Outside court proceedings, the physical markers that remain of Wear’s business include the water dispensers that actually were deployed in places like Pahrump, Nevada, where a Hylyte machine sits near the Lakeside Casino & RV Park, serving water to travelers who stop at the casino for a $12 plate of steak and eggs before heading east to Las Vegas or west to Death Valley.
Another 4,000-plus machines are sitting idle in two dozen abandoned warehouses stretching from Everett to Missoula, Montana, and Fort Meyers, Florida. Liquidation firm TAGeX Brands was hired to inventory machines. It discovered that people have broken into the warehouses to harvest copper wiring from the walls and that some packaged food left inside has attracted rats, according to court papers.
The facilities “stand out as among the most disorganized warehouses I have encountered in my 38-year career,” TAGeX Chief Executive Officer Neal Sherman said in an August court filing. The machines lack insulation and pipes inside dispensers left in cooler climates often burst, making them impossible to sell.
“The water machines were in poor condition,” Sherman said, “and were poorly made.”
The Financial Accounting Standards Board met this week to discuss its projects on accounting for transfers of cryptocurrency assets and enhancing the disclosures around certain digital assets, such as stablecoins.
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During Wednesday’s meeting, FASB’s board made certain tentative decisions, according to a
At a future meeting, the board plans to consider clarifying the derecognition guidance for crypto transfer arrangements to assess whether the control of a crypto asset has been transferred.
FASB also began deliberations on the
The board decided to provide illustrative examples in Topic 230, Statement of Cash Flows, to clarify whether certain digital assets such as stablecoins can meet the definition of cash equivalents. It also decided to include the following concepts in the illustrative examples:
- Interpretive explanations that link to the current cash equivalents definition;
- The amount and composition of reserve assets; and,
- The nature of qualifying on-demand, contractual cash redemption rights directly with the issuer.
FASB plans to clarify that an entity should consider compliance with relevant laws and regulations when it’s creating a policy concerning which assets that satisfy the Master Glossary definition of the term “cash equivalents“ will be treated as cash equivalents.
“I agree with the staff suggestion to look at examples,” said FASB vice chair Hillary Salo. “From my perspective, I think that is going to help level the playing field. People have been making reasonable judgments. I agree with that. And I think that this is really going to help show those goalposts or guardrails of what types of stablecoins would be in the scope of cash equivalents, and which ones would not be in the scope of cash equivalents. I certainly appreciate that approach, and I think it has the least potential impact of unintended consequences, because I do agree with my fellow board members that we shouldn’t be changing the definition of cash equivalents, and it’s a high bar to get into the cash equivalent definition.”
“I’m definitely supportive of not changing the definition of cash equivalents,” said FASB chair Richard Jones. “I believe that’s settled GAAP in a way, and we’re not really seeing a call to change it for broader issues. I am supportive of the example-based approach. The challenge with examples, though, is everybody’s going to want their exact pattern, but that’s not what we’re doing.”
The examples will explain the rationale for how digital assets such as stablecoins do or do not qualify as cash equivalents and give a roadmap for other types of digital assets with varying fact patterns to be able to apply.
“We really don’t want to be as a board facing a situation where something was a cash equivalent and then no longer is at a later date,” said Jones. “That’s not good for anyone, so keeping it as a high bar with certain rigid criteria, I think, is fine.”
Stablecoins are supposed to be pegged to fiat currencies such as U.S. dollars and thus provide more stability to investors. “In my view, while a stablecoin may meet the accounting definition established for cash equivalents, not every one of those stablecoins in the cash equivalent classification represents the same level of risk,” said FASB member Joyce Joseph.
She noted that the capital markets recognize the distinctions and have established a Stablecoin Stability Assessment Framework to evaluate a stablecoin’s ability to maintain its peg to a fiat currency. Such assessments look at the legal and regulatory framework associated with the stablecoin, and provide investors with information that could enable them to do forward-looking assessments about the stability of the stablecoin.
“However, for an investor to consider and utilize such information for a company analysis the financial statement disclosures would need to include information about the stablecoin itself,” Joseph added. “In outreach, the staff learned that investors supported classifying certain stablecoins as cash equivalents when transparent information is available about the entities at which the reserve assets are held. Therefore, in my view, taking all of this into consideration a relevant and informative company disclosure would include providing investors with the name of the stablecoin and the amount of the stablecoin that is classified as a cash equivalent, so investors can independently assess the liquidity risks more meaningfully and more comprehensively by utilizing broader information that is available in the capital markets and its emerging information.”
Such information could include the issuer, reserves, governance and management, she noted, so investors would get a more holistic look at the risks that holding the stablecoin would entail for a given company.
The board decided to require all entities to disclose the significant classes and related amounts of cash equivalents on an annual basis for each period that a statement of financial position is presented.
Entities should apply the amendments related to the classification of certain digital assets as cash equivalents on a modified prospective basis as of the beginning of the annual reporting period in the year of adoption.
FASB decided that entities should apply the amendments related to the disclosure of the significant classes and amounts of cash equivalents on a prospective basis as of the date of the most recent statement of financial position presented in the period of adoption.
The board will allow early adoption in both interim and annual reporting periods in which financial statements have not been issued or made available for issuance.
FASB also decided to permit entities to adopt the amendments to be illustrated in the examples related to the classification of certain digital assets as cash equivalents without the need to perform a preferability assessment as described in Topic 250, Accounting Changes and Error Corrections.
The board directed the staff to draft a proposed accounting standards update to be voted on by written ballot. The proposed update will have a 90-day comment period.
Senators introduced several pieces of tax-related legislation this week, including measures aimed at improving customer service at the Internal Revenue Service, cracking down on tax evasion and curbing the carried interest tax break, in addition to efforts in the House to repeal the Corporate Transparency Act.
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Senators Bill Cassidy, R-Louisiana, and Mark Warner, D-Virginia, teamed up on introducing a bipartisan bill, the
The bill would establish a dashboard to inform taxpayers of backlogs and wait times; expand electronic access to information and refunds; expand callback technology and online accounts; and inform individuals facing economic hardship about collection alternatives.
“Taxpayers deserve a simple, stress-free experience when dealing with the IRS,” Cassidy said in a statement Wednesday. “This bill makes the process quicker and easier for taxpayers to get the information they need.”
He also mentioned the bill during a
“I’m happy to meet with the team … and do all I can to make it as good as you want it to be,” said Bisignano.
“My bill would equip the IRS with the legislative mandate to create an online dashboard so that taxpayers can monitor average call wait time and budget time accordingly,” said Cassidy. He noted that the bill would allow a callback for taxpayers that might need to wait longer than five minutes to speak to a representative, and establish a program to identify and support taxpayers struggling to make ends meet by providing information about alternative payment methods, such as installments, partial payments and offers in compromise.
“I know people are kind of desperate and don’t know where to turn for cash, so I think this could really ease anxiety,” he added. “This legislation is bipartisan and is likely to pass this Congress.”
Cassidy and Warner
“Taxpayers shouldn’t have to jump through hoops to get basic answers from the IRS — and in the last year, those challenges have only gotten worse,” Warner said in a statement. “I am glad to reintroduce this bipartisan legislation on Tax Day to ease some of this frustration by increasing clear communication and making IRS resources more readily available.”
Stop CHEATERS Act
Also on Tax Day, a group of Senate Democrats and an independent who usually caucuses with Democrats teamed up to introduce the Stop Corporations and High Earners from Avoiding Taxes and Enforce the Rules Strictly (Stop CHEATERS) Act.
Senate Finance Committee ranking member Ron Wyden, D-Oregon, joined with Senators Angus King, I-Maine, Elizabeth Warren, D-Massachusetts, Tim Kaine, D-Virginia, and Sheldon Whitehouse, D-Rhode Island. The bill would provide additional funding for the IRS to strengthen and expand tax collection services and systems and crack down on tax cheating by the wealthy.
“Wealthy tax cheats and scofflaw corporations are stealing billions and billions from the American people by refusing to pay what they legally owe, and far too many of them are getting a free pass because Republicans gutted the enforcement capacity of the IRS,” Wyden said in a statement. “A rich tax cheat who shelters mountains of cash among a web of shell companies and passthroughs is likelier to be struck by lightning than face an IRS audit, and Republicans want to keep it that way. This bill is about making sure the IRS has the resources it needs to go after wealthy tax cheats while improving customer service for the vast majority of American taxpayers who follow the law every year.”
Earlier this week. Wyden also
The Stop CHEATERS Act would provide the IRS with additional funding for tax enforcement focused upon high-income tax evasion, technology operations support, systems modernization, and taxpayer services like free tax-payer assistance.
“As Congress seeks ways to fund much-needed policy priorities and address our growing national debt, there is one common sense solution that should have unanimous bipartisan support: let’s enforce the tax laws already on the books,” said King in a statement. “Our legislation will make sure the IRS has the resources it needs to confront the gap between taxes owed and taxes paid – while ensuring that our tax enforcement professionals are focused on the high-income earners who account for the most tax evasion. This is a serious problem with an easy solution; let’s pass this legislation and make sure every American pays what they owe in taxes.”
Carried interest
Wyden, King and Whitehouse also teamed up on another bill Thursday to close the carried interest tax break for hedge fund managers that
Carried interest is a form of compensation received by a fund manager in exchange for investment management services, according to a
Under the bill, the
“Our tax code is rigged to favor ultra-wealthy investors who know how to game the system to dodge paying a fair share, and there is no better example of how it works in practice than the carried interest loophole,” Wyden said in a statement. “For several decades now we’ve had a tax system that rewards the accumulation of wealth by the rich while punishing middle-class wage earners, and the effect of that system has been the strangulation of prosperity and opportunity for everybody but the ultra-wealthy. There are a lot of problems to fix to restore fairness and common sense to our tax code, and closing the carried interest loophole is a great place to start.”
Repealing Corporate Transparency Act
The House Financial Services Committee is also planning to markup a bill next Tuesday that would fully repeal the Corporate Transparency Act, which has already been significantly
If enacted, the repeal would eliminate beneficial ownership reporting requirements, removing a transparency measure designed to help law enforcement and national security officials identify who is behind U.S. companies.
“This repeal would turn the United States back into one of the easiest places in the world to set up anonymous shell companies, something Congress worked for years to fix,” said Erica Hanichak, deputy director of the FACT Coalition, in a statement. “These entities are routinely used to facilitate corruption, financial crime, and abuse. Rolling back the CTA doesn’t just weaken transparency, it signals to bad actors around the world that the U.S. is once again open for illicit business.”
The Internal Revenue Service rarely penalizes taxpayers who have high balances in foreign bank accounts and fail to file the proper forms, according to a new report.
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The
Taxpayers with specified foreign financial assets that meet a certain dollar threshold are also required to report the information to the IRS by filing Form 8938. Failure to file the form can result in penalties of up to $60,000. However, TIGTA’s previous reports have demonstrated that the IRS rarely enforces these penalties.
The IRS created an Offshore Private Banking Campaign initiative to address tax noncompliance related to taxpayers’ failure to file Form 8938 and information reporting associated with offshore banking accounts, but it’s had limited success.
Even though the initiative identified hundreds of individual taxpayers with significant foreign bank account deposits who failed to file Forms 8938, the campaign only resulted in relatively few taxpayer examinations and a small number of nonfiling penalties. The campaign identified 405 taxpayers with significant foreign account balances who appeared to be noncompliant with their FATCA reporting requirements.
The IRS used two ways to address the 405 noncompliant taxpayers: referral for examinations and the issuance of letters to them.
- 164 taxpayers (who had an average unreported foreign account balance of $1.3 billion) were referred for possible examination, but only 12 of the 164 were examined, with five having $39.7 million in additional tax and $80,000 in penalties assessed.
- 241 noncompliant taxpayers (who had an average unreported account balance of $377 million) received a combination of 225 educational letters (requiring no response from the taxpayers) and 16 soft letters (requiring taxpayers to respond). None of the 241 taxpayers were assessed the initial $10,000 FATCA nonfiling penalty.
“While taxpayers can hold offshore banking accounts for a number of legitimate reasons, some taxpayers have also used them to hide income and evade taxes,” said the report.
Significant assets and income are factors considered by the IRS when assessing whether taxpayers intentionally evaded their tax responsibilities, the report noted. Given the large size of the average unreported foreign account balances, these taxpayers probably have higher levels of sophistication and an awareness of their obligation to comply with the law.
TIGTA believes the IRS needs to establish specific performance measures to determine the effectiveness of the FATCA program. “If the IRS does not plan to enforce the FATCA provisions even where obvious noncompliance is identified, it should at least quantify the enforcement impact of its efforts,” said the report. “This will ensure that IRS decision makers have the information they need to determine if the FATCA program is worth the investment and improves taxpayer compliance.
TIGTA made three recommendations in the report, including revising Campaign 896 processes to include assessing FATCA failure to file penalties; assessing the viability of using Form 1099 data to identify Form 8938 nonfilers; and implementing additional performance measures to give decision makers comprehensive information about the effectiveness of the FATCA program. The IRS disagreed with two of TIGTA’s recommendations and partially agreed with the remaining recommendation. IRS officials didn’t agree to assess penalties in Campaign 896 or with implementing performance measures to assess the effectiveness of the FATCA program.
“From our perspective, TIGTA’s conclusions regarding IRS Campaign 896 are based, in part, on a misguided premise and overgeneralizations, including the treatment of ‘potential noncompliance’ as tantamount to ‘egregious noncompliance’ that warrants a monetary penalty without contemplating the variety of justifications that may exempt a taxpayer from having to file Form 8938,” wrote Mabeline Baldwin, acting commissioner of the IRS’s Large Business and International Division, in response to the report.
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