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Speaker 1: It's not often that you have a defense attorney saying

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Speaker 1: his client's actions were like that of a used car salesman.

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Speaker 1: But that's part of the defense being used for former

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Speaker 1: bond trader Jesse Litfac In his second securities fraud trial.

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Speaker 1: Litvac is accused of lying to customers about the prices

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Speaker 1: of mortgage backed securities. He was found guilty in twenty fourteen,

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Speaker 1: but an appeals court throughout his conviction, saying the judge

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Speaker 1: should have let expert witnesses testify. Federal prosecutors have cracked

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Speaker 1: down on traders over mortgage bond pricing, bringing at least

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Speaker 1: seven criminal fraud cases in the past three years. A

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Speaker 1: conviction of former Jefferies and Company managing director Litfac will

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Speaker 1: support those other cases. Our guests of Professor James Cox

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Speaker 1: of Duke Law School and David Bissinger, a partner at

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Speaker 1: Bissinger Ashman and Williams Jim. In this opaque world of

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Speaker 1: bond trading, the defense is arguing that Litvac was dealing

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Speaker 1: with professionals who conduct their own research and know the

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Speaker 1: value of the bonds they buy and sell. Does proof

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Speaker 1: of that get him to an acquittal? No, It doesn't think,

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Speaker 1: you know, the government never has to approve in these

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Speaker 1: cases that somebody actually relied upon a false statement. So

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Speaker 1: that's a part of the defense that was raised, and

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Speaker 1: I think the Second Circuit did a disservice to the

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Speaker 1: law quite frankly by thinking that that was a relevant part.

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Speaker 1: Now it does go to the question about materiality, but

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Speaker 1: materiality doesn't even determine to a tend upon whether the

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Speaker 1: lie was consequential of the fact is of material and

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Speaker 1: people go to prison for telling material lies. U by

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Speaker 1: simply making a statement where the investor says, let me

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Speaker 1: think about that, Oh, it doesn't change my mind, it

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Speaker 1: can still. All it requires is that the investor pause

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Speaker 1: over the information. So clearly, just to wrap up here, Clearly,

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Speaker 1: statements that you were getting the bonds at a fair price,

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Speaker 1: but in fact they weren't. They marked up substantially, UH

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Speaker 1: would have been something that least investor would have implaused about,

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Speaker 1: and more likely the investor would say, wait a minute,

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Speaker 1: if you disclose this fact to me that you had

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Speaker 1: marked it up ten percent, then I'm not willing to

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Speaker 1: pay that ten percent extra price. And it would have

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Speaker 1: had a consequence. But the consequence is not part of

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Speaker 1: the government's cases. It shouldn't be either. The second made

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Speaker 1: a mistake. Okay, well, given that perhaps they made a mistake,

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Speaker 1: at least in Jim's opinion, David, what are we going

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Speaker 1: to here now at the trial from these expert witnesses

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Speaker 1: that fact is going to call the There's two witnesses.

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Speaker 1: There's a business school UH professor and bond analyst named

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Speaker 1: Ram Wilner, and then a regulatory and compliance attorney named

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Speaker 1: Mark Menchel, and both of them are going to testify

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Speaker 1: in substance that UH lit Vac's misstatements or allegement statements,

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Speaker 1: although at this point it's probably fair to say they

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Speaker 1: are misstatements because we've already had the first trial in

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Speaker 1: which he lost that, but that those misstatements are widely

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Speaker 1: considered in the industry as quote biased, close quote and

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Speaker 1: open quote often misleading close quote. To June's point at

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Speaker 1: the beginning of the broadcast, that you're gonna have UM

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Speaker 1: the used car defense, and that the UH people dealing

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Speaker 1: with Litvac, whether they were buying from or selling to

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Speaker 1: Litvak UH knew that lit back statements that UH he

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Speaker 1: was only going to be able to do certain things

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Speaker 1: and his his limit, his his pricing and stuff was

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Speaker 1: limited limited because of the other side of the trade. Uh,

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Speaker 1: those those states that that testimony will come in and

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Speaker 1: it I think it will be of some use for

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Speaker 1: lit back in at least showing the jury that Litvac

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Speaker 1: was not doing something outside of what happens in the

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Speaker 1: typical bond trading room. The jury may well think, well,

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Speaker 1: that's the problem for the whole bond trading room. But

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Speaker 1: it was an important issue for Litvac in the first

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Speaker 1: trial because the prosecutors argued really in effect that Litvak

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Speaker 1: was at the epicenter of the fraud. I believe in

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Speaker 1: the phrase they used in their rebuttal Jim and about

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Speaker 1: thirty seconds that we have here, Securities Industry and Financial

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Speaker 1: Markets Association's affirm that broker dealers aren't required to disclose

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Speaker 1: the prices they pay for bonds. Will that affect the jury?

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Speaker 1: You know, it's going to have an influence on the jury.

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Speaker 1: But I think what the also will be disclosed there

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Speaker 1: is that there are guidelines even for by Fenrop about

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Speaker 1: how much of a markup you can have. So the

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Speaker 1: idea would be, maybe don't have to disclose it. But

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Speaker 1: the question is what your is your behavior within kind

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Speaker 1: of the rules of the road of the industry, And

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Speaker 1: this gets into question about where the whole industry is corrupt.

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Speaker 1: The Fenderous position would be, no, Jim, why is this

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Speaker 1: case important enough for prosecutors to be pursuing it for

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Speaker 1: a second time? You know? The problem of markets, particularly

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Speaker 1: in the bond market, of UH, you know, is an

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Speaker 1: ongoing problem. I don't I don't think it's pervasive in

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Speaker 1: the sense that and we don't know whether it's true

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Speaker 1: or false, but it's hard to believe that it's It's

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Speaker 1: across the market, every traders marketing it up the same

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Speaker 1: way lit Back was doing. UH. But it's important to

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Speaker 1: send the signal out to the market that this is

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Speaker 1: a market that um important to America, is important to

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Speaker 1: the world, and and and and that needs to be

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Speaker 1: a fair market. So I think that that in and

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Speaker 1: of itself justifies being delivered here and UH with a

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Speaker 1: lot of certitude going forward. The second thing is that

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Speaker 1: the reasoning of the second circuit it's just crazy, quite frankly,

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Speaker 1: and perhaps there's an opportunity here by showing that the

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Speaker 1: defense didn't really work, which is what we have to

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Speaker 1: wait and see what happens in the second trial. Well

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Speaker 1: will new to that that that court's opinions, this is

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Speaker 1: just one of several opinions handed down by the Second

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Speaker 1: Circuit that I think we're very questionable. We saw the

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Speaker 1: Supreme Court pretty much reversing part of that inside of

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Speaker 1: trading case US against Newhaman this term, uh, it's it's

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Speaker 1: it's not the paragon of wisdom that the Second Circuit

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Speaker 1: used to be. So I think that that's that's important

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Speaker 1: as well. And third, once you mentioned earlier June, and

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Speaker 1: that is you have other prosecutions that could worse where

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Speaker 1: there was a settlement that could be unwound, should look

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Speaker 1: back be successful, David, the you know, Jim's alluded to

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Speaker 1: the reasoning of the court, and when you read the

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Speaker 1: court's opinion, the Second Circuit's opinion, it's sort of one

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Speaker 1: of them. That's sort of interesting about is it almost

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Speaker 1: seems to say that the reason it's okay to make

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Speaker 1: misstatements to these buyers is that they are so sophisticated

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Speaker 1: they wouldn't really rely on this information. So is the

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Speaker 1: Second Circuit really think we expect to hear the trial

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Speaker 1: that it depends on who's buying whether or not you

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Speaker 1: can lie to them. Well, I would say that the

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Speaker 1: Second circuits first opinion, first opinion did not go quite

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Speaker 1: that far because that that original opinion, and in December

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Speaker 1: UH said the rejected Litbax argument that misstatements were somehow

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Speaker 1: immaterialism a matter of law. In other words, the Second

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Speaker 1: Circuit said that should go to the jury. So I

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Speaker 1: don't think that the Second Circuit was totally off its rocker.

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Speaker 1: I think the thing that happened in the trial court,

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Speaker 1: and this is me coming at this case as a

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Speaker 1: trial lawyer, is that the way the district court, the

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Speaker 1: trial court prevented Mr lit Back from putting on this

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Speaker 1: expert testimony, the so called everybody does it expert testimony,

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Speaker 1: And then the government in the closing argument and the rebuttal,

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Speaker 1: when Mr Litvack did not have the opportunity to speak anymore,

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Speaker 1: the government stood up and said, essentially Mr lit Back

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Speaker 1: was at the middle of this, nobody else, that Jeffreys

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Speaker 1: did this, and and this was you know, Mr Litvack

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Speaker 1: essentially acting alone. And the testimony, of course from these

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Speaker 1: experts is no, that isn't the case. UH. And so

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Speaker 1: I think just as a practical matter, looking at the

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Speaker 1: way the case was tried, I think that's as big

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Speaker 1: of a problem uh for the government, or was this

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Speaker 1: big of a problem for the government as it was

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Speaker 1: saying the second circuit being completely off on policy grounds,

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Speaker 1: And I think that, um, you know, one of the

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Speaker 1: one of the points about this case that is so

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Speaker 1: sensitive to the government is this is part money. Uh

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Speaker 1: so the government is well with it. It's right, I

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Speaker 1: think to at least want to pursue the you know,

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Speaker 1: expenditure of part money, especially in an atmosphere in which

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Speaker 1: securities commissions and trading costs continue to go down. I

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Speaker 1: mean today's news as you prepare for this article, you

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Speaker 1: see continuing pressure on commissions and so forth. So why

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Speaker 1: should traders be able to get these big fat markups?

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Speaker 1: And Mr Liffack is gonna face the serious problem because

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Speaker 1: these witnesses that the government is calling from, say places

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Speaker 1: like Alliance Burnstey not necessarily. I mean, these are sophisticated

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Speaker 1: people are gonna say, we discovered what Mr Liffack was doing,

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Speaker 1: we stopped doing business with them, and uh with Mr

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Speaker 1: Liftack because of that. Uh And and this is not

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Speaker 1: the way it ought to be done. So I think

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Speaker 1: that Mr Liftack has an uphill uh, definitely an up

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Speaker 1: hill road to climb here. Still, but the second circuits,

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Speaker 1: reasoning on the expert witness issued again from from the

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Speaker 1: trial overs perspective, I think uh was was worthy of

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Speaker 1: a reversal. Jim, did this case cause banks to reevaluate

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Speaker 1: their policies, um, and to go away from the idea

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Speaker 1: of negotiating tactics considered like puffery? Well, my, my, myjest.

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Speaker 1: The banks probably aren't taken in by puffery because puffery

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Speaker 1: is sort of general statements. It's hard to think that

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Speaker 1: when somebody is actually manipulating the price that we'd ever

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Speaker 1: concealed that um probably boxed it up as puffery. I

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Speaker 1: do think, I do think that the cases that were

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Speaker 1: brought in the in the pervasiveness of serious markups should

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Speaker 1: cause the banks that want to take a look at

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Speaker 1: what the fairness of the market is. And you know,

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Speaker 1: we we didn't talk about earlier, but the possibility that

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Speaker 1: maybe the banks actually expressed interest and continuing prosecutions for

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Speaker 1: these cases because they're the victims of these cases. Um

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Speaker 1: uh and so um, you know, we don't know, but

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Speaker 1: I think the notoriety that surrounds the lift back case

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Speaker 1: prosecution and and and the other cases around with it

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Speaker 1: certainly shine a light on conduct that should have aroused

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Speaker 1: the the self preservation instincts of the banks. David. One

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Speaker 1: of the one of the questions that sort of comes

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Speaker 1: up as you read through all this and think about

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Speaker 1: how the trial's gonna go is whether or not how

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Speaker 1: particular this this decision is, that is, as a particular

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Speaker 1: to the bond market, or is this going to how

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Speaker 1: could this conceivably of wider implications depending on how on

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Speaker 1: how lid Fect does at the trial. Well, I think

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Speaker 1: the focus of this really is the bond market in

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Speaker 1: the sense that security markets are so transparent. I mean,

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Speaker 1: there's so much public pricing and putting aside questions about

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Speaker 1: high frequency trading and so forth. Uh the spread on

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Speaker 1: your typical equity trade is, you know, usually within pennies.

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Speaker 1: But the bond mark it is this case exemplified. Uh

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Speaker 1: the spread in a say a sixty dollar bond, seveny

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Speaker 1: dollar bond could be as much as a dollar dollar fifty,

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Speaker 1: sometimes even more. And uh So the bond market historically

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Speaker 1: has been much more opaque. Yet it's a much bigger

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Speaker 1: part of the securities market. So the amount of money

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Speaker 1: made by bond traders is you know, really really substantial.

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Speaker 1: And again, in this atmosphere of compressed trading, continually compressed

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Speaker 1: trading costs. I think the episode, I think the target

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Speaker 1: here will be the bond market. But that's a big target.

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Speaker 1: Jim about a minute ago. So in a retrial, lit

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Speaker 1: Vac knows what the government is going to present against him.

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Speaker 1: This time, he is also able to introduce expert witnesses.

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Speaker 1: Is it still an uphill battle for him? I think

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Speaker 1: I think it is. I mean, you know, I get

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Speaker 1: before a jury not among the favorite species in America

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Speaker 1: these days. Uh you know, did not we were not candid.

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Speaker 1: I think the used car analogy evaporates. You know, it's

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Speaker 1: one thing for the persons they belonged to a little

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Speaker 1: od ladies school teacher, okay, your little man school teacher.

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Speaker 1: It's another thing to set the odometer back. This is

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Speaker 1: setting the odometer back. I don't think people are gonna

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Speaker 1: like that. So I think I think he's got an

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Speaker 1: uphill battle. Uh um, yeah, So it'll be interesting to see.

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Speaker 1: I wondered when I saw that as well, whether you

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Speaker 1: want to tell a jury that someone's like a used

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Speaker 1: car salesman. Thank you both for being Thanks for you

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Speaker 1: both for being on Bloomberg Law. That's Professor James Cox

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Speaker 1: of Duke Law School and David Bissing. You're a partner

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Speaker 1: at Bissing. Your Ashman and Williams