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Monday, August 22nd, 2022

No GAAP violation, no expert, no problem

Are accounting standards and securities laws as complex as the tax code? Not according to the Second Circuit. In United States v. Petit, Taylor, Nos. 21-543-cr, 21-559-cr (2d Cir. Aug. 22, 2022) (summary order), the Second Circuit upheld the securities fraud convictions of two former public company executives charged with using “accounting tricks to artificially inflate” their company’s reported revenue in quarterly reports.

The defendants, who were convicted after trial, argued that the government failed to prove their so-called “tricks” violated any Generally Accepted Accounting Principles (GAAP). They also argued that the district court gave erroneous jury instructions on the scienter element (“knowingly and willfully”) and conscious avoidance.

The Circuit was unmoved. According to the Circuit, the “government was not required to prove” the defendants “violated GAAP,” so long as the defendants “intentionally misled investors.” Similarly, to prove the charged fraud, the government “did not need to offer expert …

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Categories: conscious avoidance, securities law

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Tuesday, July 20th, 2021

But is it one conspiracy? And is it securities fraud?

The answer to those questions is pretty much always “yes.” In United States v. Khalupsky, Nos. 19-197-cr, 19-780-cr (2d Cir. July 19, 2021), the Second Circuit affirmed the trial convictions of two defendants, rejecting various legal challenges. According to the circuit, the evidence at trial established that the defendants participated in a multi-year scheme to use stolen pre-publication press releases to make securities trades. Specifically, “hackers in Ukraine” “hacked into three newswires” that disseminated press releases for publicly traded companies, and passed those press releases to an intermediary (Dubovoy) before they were published. This intermediary then equipped and funded each defendant for trading, and gave them access to the releases. The defendants traded, kept a percentage of trading profits for themselves, and passed the rest back to Dubovoy.

On appeal, the defendants argued that there was not sufficient evidence to establish the existence of the single charged conspiracy, since …

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Categories: conscious avoidance, conspiracy, constructive amendment, securities law

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Monday, October 7th, 2019

Second Circuit reverses district court’s grant of a new trial in securities fraud case: United States v. Gramins, No. 18-2007-cr, __ F. 3d__, 2019 WL 4554521 (Sept. 20, 2019).

This was a government appeal from the district court’s grant of a new trial motion, under Fed.R.Crim.P. 33, on a count of conspiracy to commit security fraud,  in violation of 18 U.S.C. § 371. See 15 U.S.C. § 78j(b) (securities fraud).  The Circuit, however, reversed the district court and remanded “with instructions to reinstate the conviction and proceed to sentencing.” 2019 WL 4554521 at *1.

The case concerned the distinctive market of Residential Mortgage Backed Securities (“RMBS”). The district court granted the defendant’s Rule 33 motion on the only count on which the jury convicted (out of 9 total counts), on evidentiary grounds relying on  United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) (“Litvak II”), which concerned the same RMBS market. The district court found that —  similar to what occurred in Litvak II  — a government witness misstated relevant agency law in a way …

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Categories: fraud, Rule 403, securities law

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Categories: fraud, Rule 403, securities law

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Friday, May 4th, 2018

Second Circuit Reverses Insider Trading Conviction on 401/403 Grounds (Short Summary)

Yesterday, in a headline-making white collar case, United States v. Litvak, No. 17-1464 (2d Cir. 2018) (Winter, Chin, Korman (EDNY)), the Circuit reversed an insider trading conviction on Rule 401 and 403 grounds. In very general terms, the Circuit ruled that the district court erroneously admitted testimony of a witness’s subjective belief as to a bond trader defendant’s fiduciary responsibilities with respect to a trade, even though the belief was unreasonable and thus irrelevant to whether the defendant made a material misstatement. Time permitting, we will blog about the case in the coming weeks.  In the meantime, the opinion is available here.…

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Categories: insider trading, mortgage fraud, Rule 403, securities law

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Friday, August 25th, 2017

Second Circuit Relaxes “Personal Benefit” Requirement for Insider Trading Offenses

This week, in United States v. Martoma, the Circuit held that a “meaningfully close personal relationship” does not need to exist between an insider and a tippee in order to establish an insider trading violation under a “gift theory” of liability. The Circuit reached this conclusion on the ground that the Supreme Court abrogated the holding of United States v. Newman, 773 F.3d 438 (2d Cir. 2014), and thereby relaxed the “personal benefit” requirement necessary to support an insider trading conviction. You can access the Martoma opinion here.

Martoma was convicted of insider trading in violation of 15 U.S.C. §§ 78(b) & 78ff for trading on material, nonpublic information that he received from a neurologist concerning the results of a clinical drug trial. To establish an insider trading violation in this context, the government must prove that the insider stood to personally benefit, “directly or indirectly, from his …

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Categories: insider trading, jury instructions, securities law

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Monday, April 18th, 2016

Second Circuit Updates – April 18, 2016

No published opinions today, and only one notable summary order involving an SEC civil enforcement action.

SEC v. DAVID SMITH, LYNN SMITH, et al., Nos. 15-1314-cv(L), 15-1317-cv(con), 15-1354-cv(con) (Summary Order of April 18, 2016) (Pooler, Park, and Livingston). This summary affirmance addressed multiple disgorgement orders by a district court in a civil enforcement action relating to violations of the securities laws.

Defendant David Smith, who was ordered to return $87,433,218 obtained from investors, claimed that collateral estoppel limited the disgorgement amount in the SEC case to the amount awarded in restitution in a preceding criminal action. The court disagreed and noted that the SEC allegations proven spanned from 2003 to 2009, whereas the criminal cases addressed only from 2006 to 2009. In addition, the court declared that disgorgement and restitution are “separate remedies with separate goals, and need not be treated the same.”

Defendants David and Lynn Smith together …

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Sunday, September 11th, 2011

Tipper Gored

United States v. Gansman, No. 10–0731-cr (2d Cir. September 9, 2011) (Cabranes, Chin, CJJ, Keenan, DJ)

From 2005 to 2007, James Gansman, an attorney at Ernst and Young, was having an affair with one Donna Murdoch. Perhaps as part of their “pillow talk,” Gansman – the “tipper” – would pass Murdoch material, non-public information, on which Murdoch – the “tippee” – traded profitably. Gansman was ultimately prosecuted for securities fraud under the “misappropriation” theory – as described by the Supreme Court, this occurs when a defendant misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information.Liability can attach even if the defendant does not trade on it himself.

Gansman, whose defense was that he did not intend to commit securities fraud, sought a jury instruction under SEC Rule 10b5-2, asking the court to instruct that Gansman shared information with Murdoch as …

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Categories: misappropriation theory, securities law, Uncategorized

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Sunday, June 12th, 2011

PC World

Here are two per curiams in white collar cases, decided on the same day.

First, in United States v. Lauerson, No. 09-0255-cr (2d Cir. June 7, 2011) (McLaughlin, Pooler, Sack, CJJ) (per curiam), the circuit agreed that the district court lacked the authority to waive the delinquency and default penalties arising from the defendant’s falling behind on his restitution payments. The relevant statute, 18 U.S.C. § 361, permits courts to, in some circumstances, modify or remit the restitution order itself, but does not permit waiver of those penalties.

And, in United States v. Wolfson, No. 10-2786-cr (2d Cir. June 7, 2011) (Kearse, Pooler, Lynch, CJJ), the court found no error in the jury instructions at a“pump and dump” securities fraud trial. The scheme operated by having corrupt stock brokers selling overvalued stocks, for which they were rewarded with “exorbitant” commissions that they either failed to disclose at all or lied …

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Categories: restitution, securities law, Uncategorized

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Saturday, January 17th, 2009

Lies My Broker Told Me

United States v. Kelley, No. 06-5536-cr (2d Cir. January 5, 2009) (per curiam)

Kevin Kelley, a stock broker, was convicted of securities and wire fraud based on his fraudulent activities with respect to four separate securities. For each of them he would either (1) purchase stocks for his clients without their authorization (2) do so without disclosing his own interest in the company or (3) misappropriate client funds for his own use. Kelley subsequently deceived his clients about the value of their investments by sending them false account statements.

Over his objection, those account statements were admitted into evidence on the securities fraud counts. On appeal, he pursued that claim, again without success. Kelley’s specific argument was that under 15 U.S.C. § 78j – section 10(b) of the Securities Exchange Act of 1934 – it is a crime to “employ, in connection with the purchase or sale of any security …

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Categories: Rule 801(d)(2)(D), securities law, Uncategorized

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Thursday, December 18th, 2008

Taking Stock

United States v. Elgindy, No. 06-4081-cr (2d Cir. December 17, 2008) (Sack, Katzmann, CJJ, Rakoff, DJ)

Defendants Elgindy and Royer were convicted of securities fraud-based racketeering counts, as well as related extortion charges relating to a complex stock manipulation scheme. On appeal they challenged, inter alia, venue and the district court’s jury instructions on the securities fraud counts. The circuit affirmed.

The Scheme

In 1998, Elgindy started Pacific Equity, a company that provided information for stock investors. It had a publicly available website that published negative information about publicly traded stocks, while a subscriber-only site profited from this information by advising its subscribers to short-sell those same stocks. In 2000, Elgindy began receiving misappropriated negative law enforcement information about certain stocks from Royer, who was then an FBI agent. Elgindy would pass on this information to his subscribers and instruct them to short the stock before he made the information …

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Categories: manufactured venue, securities law, Uncategorized

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Sunday, July 27th, 2008

Deceptively Simple

United States v. Finnerty, No. 07-1104-cr (2d Cir. July 18, 2008) (Jacobs, Pooler, CJJ, Restani, J)

The New York Stock Exchange functions, essentially, as an auction market. Specialist firms are designated to facilitate the auction of a particular stock by processing the bids to buy and offers to sell it. Specialists also trade for their own firm’s accounts. “Interpositioning” occurs when the specialist interposes himself in the middle of public trades to make a profit for the firm. It is prohibited by NYSE rules.

Defendant Finnerty engaged in thousands of instances of interpositioning, making $4,500,000 in profit for the firm’s account, and thereby inflating his bonus. He was charged with, and convicted of, three counts of securities fraud. After trial, the district court granted his motion for a judgment of acquittal, holding that the government failed to prove that interpositioning was a “deceptive act” under securities law because the government …

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