WEBVTT - Litvak Lawyer Uses Customer Blame Strategy (Audio) (Correct)

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<v Speaker 1>It's not often that you have a defense attorney saying

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

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<v Speaker 1>But that's part of the defense being used for former

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<v Speaker 1>bond trader Jesse Litfac In his second securities fraud trial.

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<v Speaker 1>Litvac is accused of lying to customers about the prices

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<v Speaker 1>of mortgage backed securities. He was found guilty in twenty fourteen,

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<v Speaker 1>but an appeals court throughout his conviction, saying the judge

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<v Speaker 1>should have let expert witnesses testify. Federal prosecutors have cracked

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<v Speaker 1>down on traders over mortgage bond pricing, bringing at least

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<v Speaker 1>seven criminal fraud cases in the past three years. A

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<v Speaker 1>conviction of former Jefferies and Company managing director Litfac will

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<v Speaker 1>support those other cases. Our guests of Professor James Cox

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<v Speaker 1>of Duke Law School and David Bissinger, a partner at

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<v Speaker 1>Bissinger Ashman and Williams Jim. In this opaque world of

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<v Speaker 1>bond trading, the defense is arguing that Litvac was dealing

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<v Speaker 1>with professionals who conduct their own research and know the

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<v Speaker 1>value of the bonds they buy and sell. Does proof

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

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<v Speaker 1>you know, the government never has to approve in these

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<v Speaker 1>cases that somebody actually relied upon a false statement. So

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<v Speaker 1>that's a part of the defense that was raised, and

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<v Speaker 1>I think the Second Circuit did a disservice to the

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<v Speaker 1>law quite frankly by thinking that that was a relevant part.

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<v Speaker 1>Now it does go to the question about materiality, but

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<v Speaker 1>materiality doesn't even determine to a tend upon whether the

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<v Speaker 1>lie was consequential of the fact is of material and

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<v Speaker 1>people go to prison for telling material lies. U by

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<v Speaker 1>simply making a statement where the investor says, let me

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<v Speaker 1>think about that, Oh, it doesn't change my mind, it

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<v Speaker 1>can still. All it requires is that the investor pause

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<v Speaker 1>over the information. So clearly, just to wrap up here, Clearly,

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<v Speaker 1>statements that you were getting the bonds at a fair price,

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

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<v Speaker 1>would have been something that least investor would have implaused about,

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<v Speaker 1>and more likely the investor would say, wait a minute,

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<v Speaker 1>if you disclose this fact to me that you had

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<v Speaker 1>marked it up ten percent, then I'm not willing to

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<v Speaker 1>pay that ten percent extra price. And it would have

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<v Speaker 1>had a consequence. But the consequence is not part of

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

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<v Speaker 1>a mistake. Okay, well, given that perhaps they made a mistake,

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<v Speaker 1>at least in Jim's opinion, David, what are we going

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<v Speaker 1>to here now at the trial from these expert witnesses

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<v Speaker 1>that fact is going to call the There's two witnesses.

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<v Speaker 1>There's a business school UH professor and bond analyst named

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<v Speaker 1>Ram Wilner, and then a regulatory and compliance attorney named

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<v Speaker 1>Mark Menchel, and both of them are going to testify

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<v Speaker 1>in substance that UH lit Vac's misstatements or allegement statements,

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<v Speaker 1>although at this point it's probably fair to say they

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<v Speaker 1>are misstatements because we've already had the first trial in

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<v Speaker 1>which he lost that, but that those misstatements are widely

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<v Speaker 1>considered in the industry as quote biased, close quote and

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<v Speaker 1>open quote often misleading close quote. To June's point at

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<v Speaker 1>the beginning of the broadcast, that you're gonna have UM

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<v Speaker 1>the used car defense, and that the UH people dealing

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<v Speaker 1>with Litvac, whether they were buying from or selling to

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<v Speaker 1>Litvak UH knew that lit back statements that UH he

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<v Speaker 1>was only going to be able to do certain things

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<v Speaker 1>and his his limit, his his pricing and stuff was

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<v Speaker 1>limited limited because of the other side of the trade. Uh,

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<v Speaker 1>those those states that that testimony will come in and

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<v Speaker 1>it I think it will be of some use for

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<v Speaker 1>lit back in at least showing the jury that Litvac

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<v Speaker 1>was not doing something outside of what happens in the

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<v Speaker 1>typical bond trading room. The jury may well think, well,

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<v Speaker 1>that's the problem for the whole bond trading room. But

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<v Speaker 1>it was an important issue for Litvac in the first

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<v Speaker 1>trial because the prosecutors argued really in effect that Litvak

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<v Speaker 1>was at the epicenter of the fraud. I believe in

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<v Speaker 1>the phrase they used in their rebuttal Jim and about

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<v Speaker 1>thirty seconds that we have here, Securities Industry and Financial

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<v Speaker 1>Markets Association's affirm that broker dealers aren't required to disclose

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<v Speaker 1>the prices they pay for bonds. Will that affect the jury?

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

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<v Speaker 1>But I think what the also will be disclosed there

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<v Speaker 1>is that there are guidelines even for by Fenrop about

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<v Speaker 1>how much of a markup you can have. So the

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

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<v Speaker 1>the question is what your is your behavior within kind

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<v Speaker 1>of the rules of the road of the industry, And

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<v Speaker 1>this gets into question about where the whole industry is corrupt.

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<v Speaker 1>The Fenderous position would be, no, Jim, why is this

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<v Speaker 1>case important enough for prosecutors to be pursuing it for

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<v Speaker 1>a second time? You know? The problem of markets, particularly

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<v Speaker 1>in the bond market, of UH, you know, is an

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<v Speaker 1>ongoing problem. I don't I don't think it's pervasive in

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<v Speaker 1>the sense that and we don't know whether it's true

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<v Speaker 1>or false, but it's hard to believe that it's It's

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<v Speaker 1>across the market, every traders marketing it up the same

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<v Speaker 1>way lit Back was doing. UH. But it's important to

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<v Speaker 1>send the signal out to the market that this is

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<v Speaker 1>a market that um important to America, is important to

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<v Speaker 1>the world, and and and and that needs to be

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<v Speaker 1>a fair market. So I think that that in and

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<v Speaker 1>of itself justifies being delivered here and UH with a

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<v Speaker 1>lot of certitude going forward. The second thing is that

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<v Speaker 1>the reasoning of the second circuit it's just crazy, quite frankly,

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<v Speaker 1>and perhaps there's an opportunity here by showing that the

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<v Speaker 1>defense didn't really work, which is what we have to

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<v Speaker 1>wait and see what happens in the second trial. Well

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<v Speaker 1>will new to that that that court's opinions, this is

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<v Speaker 1>just one of several opinions handed down by the Second

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<v Speaker 1>Circuit that I think we're very questionable. We saw the

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<v Speaker 1>Supreme Court pretty much reversing part of that inside of

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<v Speaker 1>trading case US against Newhaman this term, uh, it's it's

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<v Speaker 1>it's not the paragon of wisdom that the Second Circuit

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<v Speaker 1>used to be. So I think that that's that's important

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<v Speaker 1>as well. And third, once you mentioned earlier June, and

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<v Speaker 1>that is you have other prosecutions that could worse where

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<v Speaker 1>there was a settlement that could be unwound, should look

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<v Speaker 1>back be successful, David, the you know, Jim's alluded to

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<v Speaker 1>the reasoning of the court, and when you read the

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<v Speaker 1>court's opinion, the Second Circuit's opinion, it's sort of one

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<v Speaker 1>of them. That's sort of interesting about is it almost

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<v Speaker 1>seems to say that the reason it's okay to make

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<v Speaker 1>misstatements to these buyers is that they are so sophisticated

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<v Speaker 1>they wouldn't really rely on this information. So is the

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<v Speaker 1>Second Circuit really think we expect to hear the trial

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<v Speaker 1>that it depends on who's buying whether or not you

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<v Speaker 1>can lie to them. Well, I would say that the

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<v Speaker 1>Second circuits first opinion, first opinion did not go quite

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<v Speaker 1>that far because that that original opinion, and in December

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<v Speaker 1>UH said the rejected Litbax argument that misstatements were somehow

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<v Speaker 1>immaterialism a matter of law. In other words, the Second

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<v Speaker 1>Circuit said that should go to the jury. So I

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

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<v Speaker 1>I think the thing that happened in the trial court,

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<v Speaker 1>and this is me coming at this case as a

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<v Speaker 1>trial lawyer, is that the way the district court, the

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<v Speaker 1>trial court prevented Mr lit Back from putting on this

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<v Speaker 1>expert testimony, the so called everybody does it expert testimony,

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<v Speaker 1>And then the government in the closing argument and the rebuttal,

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<v Speaker 1>when Mr Litvack did not have the opportunity to speak anymore,

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<v Speaker 1>the government stood up and said, essentially Mr lit Back

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<v Speaker 1>was at the middle of this, nobody else, that Jeffreys

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<v Speaker 1>did this, and and this was you know, Mr Litvack

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<v Speaker 1>essentially acting alone. And the testimony, of course from these

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

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<v Speaker 1>I think just as a practical matter, looking at the

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<v Speaker 1>way the case was tried, I think that's as big

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<v Speaker 1>of a problem uh for the government, or was this

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<v Speaker 1>big of a problem for the government as it was

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<v Speaker 1>saying the second circuit being completely off on policy grounds,

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<v Speaker 1>And I think that, um, you know, one of the

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<v Speaker 1>one of the points about this case that is so

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<v Speaker 1>sensitive to the government is this is part money. Uh

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

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<v Speaker 1>think to at least want to pursue the you know,

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<v Speaker 1>expenditure of part money, especially in an atmosphere in which

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<v Speaker 1>securities commissions and trading costs continue to go down. I

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<v Speaker 1>mean today's news as you prepare for this article, you

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<v Speaker 1>see continuing pressure on commissions and so forth. So why

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<v Speaker 1>should traders be able to get these big fat markups?

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<v Speaker 1>And Mr Liffack is gonna face the serious problem because

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<v Speaker 1>these witnesses that the government is calling from, say places

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<v Speaker 1>like Alliance Burnstey not necessarily. I mean, these are sophisticated

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<v Speaker 1>people are gonna say, we discovered what Mr Liffack was doing,

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<v Speaker 1>we stopped doing business with them, and uh with Mr

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<v Speaker 1>Liftack because of that. Uh And and this is not

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<v Speaker 1>the way it ought to be done. So I think

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<v Speaker 1>that Mr Liftack has an uphill uh, definitely an up

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<v Speaker 1>hill road to climb here. Still, but the second circuits,

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<v Speaker 1>reasoning on the expert witness issued again from from the

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<v Speaker 1>trial overs perspective, I think uh was was worthy of

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<v Speaker 1>a reversal. Jim, did this case cause banks to reevaluate

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<v Speaker 1>their policies, um, and to go away from the idea

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<v Speaker 1>of negotiating tactics considered like puffery? Well, my, my, myjest.

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<v Speaker 1>The banks probably aren't taken in by puffery because puffery

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<v Speaker 1>is sort of general statements. It's hard to think that

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<v Speaker 1>when somebody is actually manipulating the price that we'd ever

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<v Speaker 1>concealed that um probably boxed it up as puffery. I

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<v Speaker 1>do think, I do think that the cases that were

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<v Speaker 1>brought in the in the pervasiveness of serious markups should

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<v Speaker 1>cause the banks that want to take a look at

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<v Speaker 1>what the fairness of the market is. And you know,

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<v Speaker 1>we we didn't talk about earlier, but the possibility that

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<v Speaker 1>maybe the banks actually expressed interest and continuing prosecutions for

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<v Speaker 1>these cases because they're the victims of these cases. Um

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<v Speaker 1>uh and so um, you know, we don't know, but

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<v Speaker 1>I think the notoriety that surrounds the lift back case

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<v Speaker 1>prosecution and and and the other cases around with it

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<v Speaker 1>certainly shine a light on conduct that should have aroused

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<v Speaker 1>the the self preservation instincts of the banks. David. One

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<v Speaker 1>of the one of the questions that sort of comes

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<v Speaker 1>up as you read through all this and think about

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<v Speaker 1>how the trial's gonna go is whether or not how

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<v Speaker 1>particular this this decision is, that is, as a particular

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<v Speaker 1>to the bond market, or is this going to how

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<v Speaker 1>could this conceivably of wider implications depending on how on

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<v Speaker 1>how lid Fect does at the trial. Well, I think

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<v Speaker 1>the focus of this really is the bond market in

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<v Speaker 1>the sense that security markets are so transparent. I mean,

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<v Speaker 1>there's so much public pricing and putting aside questions about

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<v Speaker 1>high frequency trading and so forth. Uh the spread on

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<v Speaker 1>your typical equity trade is, you know, usually within pennies.

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<v Speaker 1>But the bond mark it is this case exemplified. Uh

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<v Speaker 1>the spread in a say a sixty dollar bond, seveny

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<v Speaker 1>dollar bond could be as much as a dollar dollar fifty,

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<v Speaker 1>sometimes even more. And uh So the bond market historically

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<v Speaker 1>has been much more opaque. Yet it's a much bigger

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<v Speaker 1>part of the securities market. So the amount of money

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<v Speaker 1>made by bond traders is you know, really really substantial.

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<v Speaker 1>And again, in this atmosphere of compressed trading, continually compressed

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<v Speaker 1>trading costs. I think the episode, I think the target

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

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<v Speaker 1>Jim about a minute ago. So in a retrial, lit

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<v Speaker 1>Vac knows what the government is going to present against him.

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<v Speaker 1>This time, he is also able to introduce expert witnesses.

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<v Speaker 1>Is it still an uphill battle for him? I think

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<v Speaker 1>I think it is. I mean, you know, I get

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<v Speaker 1>before a jury not among the favorite species in America

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<v Speaker 1>these days. Uh you know, did not we were not candid.

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

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<v Speaker 1>one thing for the persons they belonged to a little

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<v Speaker 1>od ladies school teacher, okay, your little man school teacher.

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<v Speaker 1>It's another thing to set the odometer back. This is

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<v Speaker 1>setting the odometer back. I don't think people are gonna

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<v Speaker 1>like that. So I think I think he's got an

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

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<v Speaker 1>I wondered when I saw that as well, whether you

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<v Speaker 1>want to tell a jury that someone's like a used

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<v Speaker 1>car salesman. Thank you both for being Thanks for you

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<v Speaker 1>both for being on Bloomberg Law. That's Professor James Cox

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<v Speaker 1>of Duke Law School and David Bissing. You're a partner

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<v Speaker 1>at Bissing. Your Ashman and Williams