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“Mismarking”: Developments in Valuation Fraud by Telemachus P

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“Mismarking”: Developments in Valuation Fraud by Telemachus P Business Crimes Bulletin ® Volume 27, Number 2 • October 2019 “Mismarking”: Developments In Valuation Fraud By Telemachus P. Kasulis marking a fund’s books. And as the providing support for their pre- DOJ expands its mismarking inqui- ferred valuation. For example, a One of the central business func- ries beyond stocks and bonds and quote from an outside broker that tions performed by an investment into areas like private equity, these it would buy or sell the bond at a fund is the valuation of its posi- cases also illuminate the increasing given price would suffice. tions. Knowing how much its in- need for robust internal controls Lumiere and others at Visium vestments are worth allows a fund designed to eliminate the incen- abused this system. Motivated to to redeem investors at accurate lev- tives for an employee or manager overvalue their positions to increase els, demonstrate performance to to overvalue assets. profits, they obtained inflated price prospective investors, and charge quotes from corrupt brokers eager LUMIERE: “OVERRIDING” THE an appropriate amount in fees. And to handle transaction flow for a sig- while some positions can be easy to PRICING SERVICES AND THE nificant fund like Visium. Prosecu- value — one need look no further MOTIVES TO MISMARK tors in the Southern District of New than Bloomberg or the Wall Street From 2011 through 2013, Stefan York showed at Lumiere’s 2017 trial Journal to know the going rate for, Lumiere worked at hedge fund Vi- that the brokers frequently did no say, Apple stock — more exotic or sium Asset Management, which at research on the bonds in question illiquid holdings can present a chal- its peak had a net asset value of and simply parroted back the price lenge for even the most conscien- approximately $8 billion. Lumiere Lumiere suggested. Indeed, Lumi- tious fund. was a senior analyst and a portfo- ere obtained “independent” broker They also present an opportuni- lio manager responsible for a sig- quotes that valued certain debt po- ty for fraud. At least according to nificant portion of Visium’s credit sitions at almost three times that the Department of Justice (DOJ), fund, which invested principally in listed by the pricing services. Unsur- which has aggressively targeted bonds and other debt instruments. prisingly, all of this was inconsistent valuation or “mismarking” fraud in Like many investment profession- with the way Visium had described a number of indictments brought als, Lumiere received a percentage its valuation process to investors within the last few years. But while of the profits he made on winning and Lumiere was convicted of secu- these cases create headlines, these rities fraud and other offenses. are far from easy prosecutions. Re- positions in the fund. GOOD FAITH AND THE cent cases demonstrate the hurdles Many of the bonds in the fund prosecutors must overcome and were significantly illiquid — that is, IMPORTANCE OF INSIDERS the effective defenses that can be purchases and sales of the bonds Critical to the case against Lumi- raised when so much at trial comes were rare. This made valuation ere had been the testimony of oth- down to whether reasonable judg- tricky. Visium’s back office would er participants in the scheme, who ment and good faith were used in obtain best estimate market prices strongly rebutted any suggestion from a third-party pricing service, that Lumiere had truly believed in like Markit. But members of the in- Telemachus P. Kasulis is a partner the value of his marks. The impor- at Morvillo Abramowitz Grand Iason vestment team like Lumiere could tance of this kind of insider testi- & Anello PC. “override” the pricing service by mony in mismarking cases was LJN’s Business Crimes October 2019 reinforced by two recent valuation in the trial of Premium Point Invest- private equity firm Abraaj Capital trials conducted within months of ments (PPI) founder Anilesh Ahuja Ltd. with criminal RICO offenses, each other earlier this year. and trader Jeremy Shor. Prosecutors claiming that they had deceived in- In May 2019, prosecutors in the alleged that Ahuja, Shor, and oth- vestors about the performance of Eastern District of New York tried ers orchestrated a large mismarking Abraaj portfolio companies as part three senior executives at the Plati- scheme at PPI — at times overstat- of a pattern of racketeering activity. num Partners hedge fund for al- ing the net asset value by more than The indictment noted that estimates legedly deceiving investors about, $200 million. As in the other cases, of the related loss have exceeded a among other things, the value of the defendants allegedly mismarked billion dollars. various oil and gas company secu- to increase PPI fees and defray During the same period, pros- rities held by the fund. The defen- investor redemption requests. Like ecutors also accused the founder dants, like Lumiere before them, Visium and Platinum, PPI employed and chief executive officer of Live argued Platinum had reasonably a back office function to mark Well Financial, Inc. with helming relied upon third-party pricing ser- positions which relied in significant a scheme to overvalue a portfolio vices to help mark positions. In part on data from pricing services. of mortgage bonds valued in the addition, they argued that various Traders were allowed to “challenge” hundreds of millions of dollars. The negative events associated with the proposed valuations in a manner SDNY U.S. Attorney’s Office an- underlying energy companies at is- similar to that at Visium. nounced that the chief financial of- sue had been disclosed to Platinum Ahuja and Shor defended them- ficer and head trader have both pled investors. selves at trial largely by arguing guilty and are cooperating with the Although the government called that if any securities had been mis- government. a number of witnesses from inside marked it had been done by oth- With the government’s charge the fund, none could testify that ers and without their knowledge or against mismarking showing no the defendants intentionally over- meaningful participation. Unlike in sign of abating, the defense of these marked their assets. While the pros- the Platinum trial, however, prose- cases will likely depend upon the ecutors relied on emails that dem- cutors were able to call three other ability of the defendants to discred- it the cooperating witnesses while onstrated the defendants may have members of the scheme as witness- demonstrating that they acted in known that the energy companies es to place the trial defendants in complete good faith. Showing that were struggling — and that this the middle of the conspiracy. The their funds made best efforts to im- could theoretically impact the value cooperating witnesses described in plement robust valuation and con- of the underlying securities — no detail how the conspirators worked trols systems won’t hurt either. witness or document could effec- to undermine the valuation controls tively close the loop and show the through obtaining fraudulent bro- defendants were not acting in good ker quotes and tinkering with as- faith. The court ultimately preclud- set valuation methodology, leaving ed the prosecutors from arguing to little doubt that the defendants had the jury that mismarking had oc- not acted in good faith or exercised curred, observing that the govern- reasonable judgment in valuing the —❖— ment had provided no qualified wit- fund’s positions. The jury convicted ness to undermine the valuations both defendants on all counts after at issue. All three defendants were a single day’s deliberations. ultimately acquitted of the charged scheme to defraud Platinum inves- CONCLUSION tors, although two were convicted There is no reason mismarking for unrelated conduct. should be limited to stocks and The next month, jurors in the bonds. Indeed, this year prosecutors Reprinted with permission from the October 2019 edition of the LAW JOURNAL NEWSLETTERS. © 2019 ALM Media Proper- Southern District of New York in the Southern District of New York ties, LLC. All rights reserved. Further duplication without per- mission is prohibited. For information, contact 877.257.3382 or reached a very different conclusion charged several executives of Dubai [email protected]. # 10022019-418631.
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