New York Securities Fraud Lawyers Blog

Outrageous ETFs: Not Appropriate for All Investors

June 7, 2011 | Malecki Law Team

Forbes.com recently published an article entitled “The 15 Most Outrageous ETFs“. The article highlights the explosion in the Exchange Traded Fund (“ETF”) market and the growing trends in ETF development: the kinds of funds that have New York securities attorneys up in arms.

Since 2006, over 900 new ETFs have been launched. These funds utilize various complex structured products and derivatives to help their performance track their target index. Many funds also employ various techniques to increase their returns, called “leveraging”. However, these techniques also increase the risk of these investments.

Some ETFs on the market today that employ leveraging include Direxion Daily Semiconductor Bull 3x Shares, Direxion Daily Financial Bull 3x, Direxion Daily Small Cap Bear 3x, and Direxion Daily Energy Bear 3x. While these funds promise to return three times the return of their target index, many fall short. For example, during a seven month period just this past year, the Direxion Daily Semiconductor Bull 3x ETF returned a loss of 6.25% despite a positive return of 5% on its target index.

Tourre/Goldman Sachs Face New York Securities Fraud Case with More Questions than Answers

June 3, 2011 | Jenice L. Malecki, Esq.

The New York securities fraud case against Fabrice Tourre stands out for a number of reasons — not the least of which is because he is the only person charged with connection with the sale of mortgage-backed securities, which were instrumental in the nation’s economic collapse. Now, evidence apparently found on a trashed laptop raises all kinds of legal and ethical issues.

As HuffPost Tech reports, it’s a cautionary tale that data never dies. To say nothing of the fact that the case creates a poster child for the worst way of disposing of old computers with sensitive information.But a New York Securities Lawyer would be quick to note that there is a big difference between what might be found in the trash — or published in the newspaper — and what makes it into a court of law. In this case, the computer was found in the trash and was still importing e-mails between Tourre and his attorney, as they discussed how to handle the criminal and civil accusations surrounding him. Such communications would also be protected under attorney-client privilege.

Editor and Publisher reports the New York Times has denied hacking Tourre’s e-mail account.

Two More Financial Professionals Plead Guilty in Insider Trading Scheme

May 31, 2011 | Malecki Law Team

Federal prosecutors in New York obtained two more guilty pleas stemming from an investigation into supposed “expert network” firms, a hallmark of New York securities fraud in which connect investors to industry experts for a fee.

Samir Barai, a former hedge fund manager, and Sonny Nguyen, a former financial analyst at Nvidia Corp., were the seventh and eighth individuals to plead guilty to a variety of conspiracy and securities fraud charges. So far a total of 13 people have been charged in the scheme.

Mr. Barai admitted to receiving confidential inside information about a publicly traded technology company and sharing it with two other hedge fund managers. He also admitted to trying to conceal his crimes by ordering a research analyst at his firm to shred documents and destroy electronic files related to trading in November 2010, after learning about the government’s insider trading crackdown.

Former Heads of Jenkins & Gilchrist and BDO Seidman LLP Convicted of Tax Shelter Fraud in New York Federal Court

May 27, 2011 | Malecki Law Team

On May 24, 2011, several attorneys from now-defunct law firm Jenkins & Gilchrist and a former executive of BDO Seidman, LLP were convicted in the United States District Court for the Southern District of New York for their roles in developing, promoting, marketing and implementing fraudulent tax shelters, and drawing unwanted attention from New York securities lawyers in the process. A press release (link below) from the United States Attorney for the Southern District of New York stated that the convicted individuals made profits of approximately $130 million over ten years with the fraudulent tax shelters. The Department of Justice worked with the Internal Revenue Service (IRS) to investigate and prosecute the action.

Federal prosecutors had alleged that the tax shelters at issue generated more than $1 billion in false tax losses for high net worth individuals.

Tax shelters are generally understood to be schemes that reduce one’s tax liability, and are not necessarily illegal. In fact, it is entirely within one’s rights to minimize their tax liability, albeit legally. The development of tax shelters that skirted and sometimes flagrantly flouted the United States Tax Code occurred mainly in the late 1990s and early 2000s and have led to convictions of professionals from some of the Country’s most well-respected law firms, and the world’s largest banks and accounting firms.

SEC Approves New Whistleblower Rules to Provide Cash Award to Insiders Who Report Securities Fraud

May 26, 2011 | Malecki Law Team

On Wednesday May 25, 2011, the SEC approved new rules to flesh out a provision of the Dodd-Frank Act which provides for large cash rewards for employees who report suspected securities fraud through internal compliance programs or directly to the SEC. Under the new law, employees who report securities fraud either directly to the SEC or internally may be eligible, provided the firm passes on the information to the agency. The provision is thought by many a victory for New York whistleblowers and whistleblower attorneys alike.

Many firms were concerned that direct reporting to the SEC would make the large compliance programs these firms put in place in response to Sarbanes-Oxley essentially obsolete. In response, the SEC agreed to consider an employee’s participation in her company’s internal compliance program as a factor that could increase the amount of the reward. Under these new rules, some rewards can be as high as 30% of the penalty paid.

To be eligible for the reward, an individual must be a whistleblower. To be treated as a whistleblower from the date they report violations internally, an employee must also report the information to the SEC within 120 days.