Bank of Montreal Leaks, Ex-Con Plugged.

* 5/31/12 Conference before Judge Daniels
* Plaintiffs: Bank of Montreal, CMEG / NYMEX, CFTC and SEC
* Represented Defendants: Mark Nordlicht, Optionable, Edward O'Connor and Kevin Cassidy
* Location: Daniel Patrick Moynihan Courthouse 500 Pearl Street New York, NY

* Standard disclaimer: I am an Optionable shareholder and I attended the May 31 conference.  I took notes to the best of my ability.  These notes are not investment advice. These notes contain some personal observations and opinions.  Please do not send me to jail for 30 months for failing to disclose things you already know.

Part One: An Analogy

During the conference, several people tried but only partially succeeded in coming up with analogies that illustrated the actions Kevin Cassidy took in 2007 which brought him to a plea bargain in 2011. One defense lawyer compared Cassidy's actions to talking on a cell phone while driving.  Judge Daniels however chose to only see Cassidy's actions as a felony.  When the Judge wanted to know if Cassidy's actions were minor or serious, he asked to be told the length of Cassidy's prison sentence. Neither of these ways of evaluating Cassidy's actions seems complete. I am fairly confident that when Kevin Cassidy received quotes from David Lee, he wasn't comparing his actions to talking on a cell phone while driving, or much less wondering if his actions might one day be considered a felony.  He probably wasn't comparing himself to a hole in a granite fountain either, but we'll get to that.

Outside the courthouse I found a sculpture (pictured above) that is actually a self enclosed fountain. You can't see the water unless you look through one of the fountain's two holes.  If you stand close however, you can feel the water racing through it. Slowly, it began to occur to me that I just might have stumbled upon a viable analogy not just for Kevin Cassidy's actions, but for the whole mess that began when the Bank of Montreal needed a scapegoat to blame for its trading losses. I've been tinkering with this analogy for a few days - please read it through and see if works for you.

* The mysterious self enclosed fountain represents the Bank of Montreal (BMO)
* The water swirling around inside the fountain represents billions and billions of dollars.
* The large hole in the fountain represents ex-con Kevin Cassidy (of Optionable) receiving Bid and Ask quotes from David Lee and not specifically disclosing Lee's participation in the market survey reports later sent to BMO's Risk Management. (also known as "the felony")
* The small hole in the fountain represents Joseph Saab (of MF Global) receiving Bid and Ask quotes from David Lee and not specifically disclosing Lee's participation in the market survey reports later sent to BMO's Risk Management. (curiously, not deemed a criminal offense)

Now..... if BMO discovered the fountain was losing water they might call in a plumber.  In this analogy the auditing firm of Deloitte and Touche represents the plumber.  Let's say that the plumber identified several problems with the fountain's plumbing infrastructure as well as a few structural issues with the frame of the fountain itself.  Included in the list of structural issues were the two holes: Optionable and MFG.

OK, so now BMO has the list of its plumber's recommendations, but implementing the recommendations would take time, time that BMO did not have. BMO's fountain was losing water, and it was getting near time to meet with shareholders.  BMO hired a public relations firm to help them regain the trust of shareholders and industry analysts.  The public relations firm looked at the plumber's recommendations searching for a way to spin it so that BMO's management appeared to be in control, even though the fountain is leaking, and no one knows how much water has been lost.  The public relations team seizes upon Kevin Cassidy with his previous criminal record as the scapegoat to offer Federal Regulators, industry analysts and shareholders as the cause of the leaks.  The public relations firm knows that when people look at the fountain, they won't be able to see any of the plumbing flaws going on inside, but they will be able see the holes on the outside.  The PR firm knows it will intuitively make sense to people that the holes are to blame.

Once BMO focused people on the holes, no one seemed to be able to look beyond them.  In my opinion, the scheme BMO's PR firm developed fraudulently induced the US Government to bring criminal charges against Kevin Cassidy.  Once that was in play a myriad of other misfortunes befell Optionable, including the alienation of affection from NYMEX, the loss of any future potential business relationships, a class action lawsuit, and...  and... I'm sure I'm leaving something out, but I think you've got the idea. Optionable drowned in the leak BMO fraudulently blamed them for.

And that's the situation we find ourselves in today.  Optionable's defense team can talk until they're blue in the face, and provide all sorts of factual explanations that show how BMO was disingenuous in linking Optionable to the losses that they knew were their own responsibility, but at the end of the day, to the casual observer, it's all just noise.

Try this exercise.  Take a look at the picture of the fountain (above).  If you heard in the news that this fountain was leaking and a hole installed by an ex-con was to blame, would you believe it? Maybe you're like me and you'd question the story, but even I have to admit that it makes a very compelling sound bite. I mean, it really doesn't make a lot of sense that holes that high up on the structure would be the source of the leak once you start thinking about it, but at a glance, it comes off as a very likely possibility.  I understand why people continue to buy BMO's version of the story, while Optionable's is so difficult to explain.

And.... not that it matters.... but in case you're wondering about the actual fountain outside the courtroom.... Being something of an inquisitive person, I put my hand inside the hole to see if it was wet.  It wasn't.

(Note: If anyone knows the name of the artist who created this sculpture, please let me know, as I would like to thank him or her publicly in this blog.)

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Part 2 - the notes

OK - enough of my analogy - here are the conference notes.  

  

* Disclosure: I am an Optionable shareholder and I attended the May 31 conference.  I took notes to the best of my ability.  These notes are not investment advice. These notes contain some personal observations and opinions.  

CFTC (on the phone):  Expects to resolve with Cassidy within a month.  Agreed to check in at the next conference in September.

BMO: has completed document production of over 6 million pages of data related to this case.  BMO requested 4 to 6 hours of access time during the depositions.  To be fair, I think it is worth noting that this document production was a huge undertaking by BMO and they should be commended for completing it. 

SEC: wanted to exclude the other prosecution teams from its depositions.  Judge Daniels said no that, but agreed that the SEC should get the 7 hours of deposition time they requested.  The Judge announced a Discovery schedule for the SEC case with milestones happening from Feb 2013 to May 2013.  Optionable is not named in that action. (although Cassidy and O'Connor are)

Depositions:  Kevin Cassidy will be deposed on June 21 and 22.  A third day with the SEC may be scheduled (if needed).  Kevin Cassidy's deposition schedule was the only deposition schedule discussed at the 5/31/12 hearing.  (Each day will consist of 7 hours of questioning - meaning that Cassidy is already scheduled to be questioned under oath for up to 14 hours, with a possibility that the SEC will want more time, pushing this up to a max of 21 hours of interrogation of a single witness.) 

CMEG / NYMEX (the main event of the 5/31/12 hearing) Motion for a Summary Judgment on the Express Warranty

NYMEX believes that Cassidy’s acceptance of a plea bargain, by itself, is enough for their request for a Summary Judgment to prevail.  Why?  Cassidy admitted to a crime and the warranty said – no crimes allowed.  NYMEX believes it had no obligation to Optionable once a crime was committed.  

Defense:

·         Nordlicht

·         The Nordlicht and Optionable defenses are allowed to claim that Cassidy’s actions were not a crime even though the Cassidy defense is prevented from saying or even implying this. 

o   The Judge thought this was a desperate Hail Mary strategy, and his comments had the SEC team snickering and elbowing each other.

·         * BMO knew that Lee was contributing quotes

·         * BMO could have told Cassidy to ‘cut it out’ but didn’t

·          * Cassidy’s actions were but one of several breaches in BMO’s preferred but undocumented  process. 

·         * Cassidy had no reason to believe that his breach of BMO’s preferred but undocumented  process was likely to have a material impact on Optionable’s business. 

·        *  If BMO hadn’t needed a scapegoat to blame for its losses, it never would have singled out Cassidy’s breach as having any significance – especially considering the myriad of other breaches by BMO itself.
* Personal observation: Basically, if you've got a Swiss Cheese process, there's gonna be holes, right?  And it's not just me, some kook on the internet saying that BMO's process had holes, it was the Auditors that BMO hired that said that BMO's process was significantly flawed in several key areas. 

o   The Judge countered that BMO’s actions are not relevant to the warranty made to NYMEX

o   The Judge said that Cassidy’s plea defines his actions as a crime and his admitted actions were happening during the period that the warranty was made to NYMEX.
o   Personal Opinion: What I believe the Judge missed is that Cassidy's actions were legal.  It was perfectly legal for Kevin Cassidy to receive quotes from David Lee, run them by a few other traders to check for reasonableness and then send them to BMO's Risk Management team.  Those are the "actions" we keep talking about.  The actions were outside of BMO's preferred but undocumented process, but they were not a crime.  These legal actions only became viewed as a crime after BMO lied to Federal Regulators, Industry Analysts and Shareholders at their Press Conference that: a) they were not aware of the actions, when they were and b) that the actions caused BMO to be misled about the value of Lee's portfolio, when BMO didn't even use Cassidy's reports to value Lee's portfolio.
"Whoa! Slow down there cowboy", you might interject.  If what I'm saying is true, why did Cassidy take a plea bargain?  Answer: As far as I can tell, where they snagged Cassidy was that he didn't disclose that Lee was a contributor of quotes from whom the report was based every time he faxed or emailed a report. Although it is clearly documented that both Cassidy and yes, even Lee (OMG!!!) told BMO Market Risk that Lee's quotes were included, Cassidy could not claim that he personally disclosed this fact each and every time he sent a report to BMO's Market Risk.  

·         Nordlicht’s summary points

o   Cassidy's plea is not binding to Nordlicht

o   Nordlicht has presented facts to NYMEX that they have failed to address

o   NYMEX’s request for Summary Judgment is premature – because the depositions have not happened yet, and they are only a few weeks away.

·         Optionable

o    Cassidy’s plea is not binding to Optionable

o   Optionable's reports disclosed their limitations.  BMO chose to ignore those warnings.

o   Optionable deserves the opportunity to defend itself.  The NYMEX request is premature.

O'Connor
o    While a technicality, O'Connor's lawyer pointed out that NYMEX missed a filing deadline and therefore NYMEX's reply papers should be stricken.  Judge Daniels acknowledged this point but decided to allow the papers - however he added that this point could be revisited if he rules in NYMEX's favor.
o    Corrected NYMEX's accusation that Optionable used the word 'independent' in their SEC filing when describing their quote service called Real Marks.  NYMEX has been corrected on this point previously.  You see, if Optionable had used the word 'independent' it would strengthen the argument that Kevin Cassidy was somehow legally obligated to disclose that the reports he sent to BMO were not independent.  The fact that NYMEX keeps claiming Optionable used the word 'independent' when they didn't, in my opinion weakens the argument that Kevin Cassidy was somehow legally obligated to disclose that the reports he sent to BMO were not independent.  Now, to be fair here, I will acknowledge that when Cassidy took the plea, he did admit that he knew BMO wanted independent quotes and that the quotes he sent were not independent.  What's interesting to me is that Optionable did not promise BMO independent quotes, and yet NYMEX's keeps saying in court hearings that they did.

Cassidy

·         BMO did not pay Optionable for the reports  (Personal note: I think the implication here is that a claim of fraud is weakened if the ‘victim’ did not pay for the purportedly fraudulent information)
*·         Cassidy sent Lee reports for several years, but there were only 7 or 8 reports sent during the time period under review.
** The reports were accurate.  (Let that sink in for a second.  The reports were accurate.  Optionable was destroyed, and a man is being taken away from his family for 2 1/2 years for sending ACCURATE reports.  That defies any concept of justice.)

·         Cassidy’s lawyer read Cassidy’s full allocution to the court.  He pointed out several allegations and assumptions that were being tossed around liberally by NYMEX that were not included in the allocution.  (And friends - there could be a lot more of that type of clarification coming from the depositions)  

·         NYMEX itself survived the discovery of a 10 year fraud being exposed, so it is not a fair conclusion to say that Optionable could not have survived this much less significant breach.  (Personal note:  Rather it was NYMEX's own abandonment of Optionable and not Cassidy's breach of an undocumented BMO process that caused NYMEX to lose money on their investment in Optionable.) 

·         Optionable did not provide BMO with valuations, they provided them with Bid and Ask quotes.  BMO had their own department that handled valuations.  (The confusion between valuations and quotes is a misunderstanding I was guilty of as well … until now.  How important is that clarification?  Well, it sure makes you wonder why BMO claimed the reports from Optionable confused them about the valuation of Lee's holdings.)

·         NYMEX had people living and breathing at Optionable months before it invested.  It had plenty of time for due diligence.  It had the knowledge and sophistication to understand how Optionable rolled.

Trust Me. I'm Elvis.

Sometimes it’s hard to be a lunatic voice on the internet claiming that when a multinational bank lost money in sketchy high risk derivatives they sacrificed their own employee and scapegoated a small brokerage firm while explaining the hundreds of millions in losses to industry analysts and investors.  It doesn’t get any easier when a Federal Court Judge sentences the guy I'm thinking did nothing wrong to 30 months in jail.  At times like this, even a lunatic needs to take a step back and say, perhaps I was wrong.

Take a look at how neat and tidy Grant McCool of Reuters makes the story sound.  (link below) After reading a few factual and concise paragraphs anybody but a lunatic would conclude the following:

* David Lee inflated the fair market value of the natural gas options positions in his derivatives trading portfolio in the daily reports he sent to BMO's Market Risk Division from 2003 to 2007.
* David Lee funneled a portion of his business to Optionable in exchange for Kevin Cassidy agreeing to use David Lee's valuations, as opposed to the valuations of other non-BMO traders in the same markets, as the baseline for the twice monthly reports that Cassidy sent to BMO's Market Risk Division.
* Had BMO only known that Cassidy's reports contained input from Lee, they would have been quicker to take certain corrective measures when Lee's trading slipped from being profitable to unprofitable. .
* Both David Lee and Kevin Cassidy have taken plea bargains admitting their roles.

What’s not to get?  How could anyone but a lunatic claim that there's more to the story?

Well, here's something the story doesn't address: There was no valid business reason for BMO to use Optionable's validation services - period.  There were other industry standard valuations services around that didn't come with such inescapable conflicts of interest.  If BMO had wanted to throw Lee and Cassidy a bone while Optionable was beta testing its then new "Real Marks" service in early 2007, then sure, they could have used Real Marks as a back-up second opinion valuation. But there was no valid business reason to rely on Optionable's valuations exclusively.  These reports were what BMO was using to safeguard not just hundreds of millions of dollars of investments, but hundreds of millions of dollars in sketchy high risk investments where even the best market intelligence money could buy was subjective and murky at best.

Here's why I say that: 

* At all times from 2003 to 2007 an industry-standard multi-contributor independent valuation service was available to BMO.  A second service became available in 2004. BMO did not subscribe to, let alone rely upon, such a service until the latter part of 2006, after Lee's trades became unprofitable.

* At all times from 2003 in 2007, BMO was aware of the temptation their traders faced to mismark their valuations.  After incurring a large loss, BMO had fired Lee’s predecessor and accused him of mismarking his portfolio too.

* At all times from 2003 to 2007 BMO’s Market Risk Division was required to select the valuation service used to validate their trader’s marks.  BMO created this requirement to protect themselves as well as to prevent their traders from yielding to temptation.  David Lee was denied the protection from temptation that this requirement would have given him, had it only been enforced.

* At all times from 2003 to 2007 the people working in BMO’s Market Risk Division knew that they had not selected the validation source of David Lee’s marks.  Instead they knew that David Lee himself had selected the validation source against their strenuous objections.

* At all times from 2003 to 2007 David Lee's insistence on selecting the validation service created an appearance of impropriety.  After all, if Lee had nothing to hide, why would he force the Market Risk Division to accept his validation source instead of the industry standard one?  This point was never lost on the people in the BMO Market Risk Division.

* At all times from 2003 to 2007 BMO could have enforced the requirement to have the Market Risk Division rather than Lee, the trader under review, select the valuation service. Interestingly, BMO chose not to ruffle Lee's feathers while he was up, but then ordered the Market Risk Division to "release the hounds" when Lee's trading was down. And friends..... weren't they quick to parade Lee's bloody shirt around for industry analysts and investors.



Additionally: 

* At all times from 2003 to 2007 BMO had accurate Accounting records of Lee’s trades.

* At all times from 2003 to 2007, size mattered.  BMO claims they were misled about the value of Lee's portfolio, but they can not claim that they were ever misled about the massive size of it. At times, Lee's positions were the largest of any trader in those tiny markets. If Lee wasn't holding so many sketchy high risk derivatives in illiquid markets where valuations vary widely, then any variances in the reported valuations would not have mattered quite so much. Whether his motivation was greed, or a desperate attempt to get back to even, BMO knew that Lee had become a Pig.

* At all times from 2003 to 2007 BMO was able to compare the difference (if any) between the portfolio valuation claimed by Lee and revenue realized when Lee traded those positions for cash.  If Lee was monetizing his portfolio at prices near the valuations in his daily reports, this calls into question the entire notion that he was "systemically mismarking" in the first place.

* When taking the plea, Cassidy said that he believed the reports he sent to BMO’s Market Risk unit were accurate despite Lee’s involvement.  That's either a very brazen lie to make under oath while accepting a plea bargain, or it's the truth. Why didn't the Federal Prosecutors challenge Cassidy's statement?  Could Cassidy be going to jail for 30 months for sending BMO accurate reports that only fell under suspicion due to BMO's Market Risk Division being cut out of the selection process?

I know, I know, I know.  Tie me down and call me Elvis.  The bank’s version of events has held up so far, and people who question it wind up looking crazy, like me.

Read Grant McCool's story here:

Disclosure: I am an Optionable investor.

Read this story on the CNN self publishing website (iReport) here: 

Infighting at the Bank of Montreal

4/20/12 Updated:

Last week Kevin Cassidy signed Consent Orders in the SEC and CFTC cases. Cassidy's admissions from  the criminal case are brought into these cases as fact. There are some implications for Cassidy from each Consent Order, but monetary penalties, if there will be any, were not specified.

Optionable investors (like me) tend to overlook the SEC case since neither Optionable nor the Bank of Montreal are named as defendants in it. However the SEC made some statements in their complaint (filed November 2008) that reflect poorly on the Bank of Montreal’s internal controls. (in my opinion)

Under the theory that any critic of BMO is a potential friend of mine, let’s take a closer look at the SEC’s complaint. (text marked with an * indicates text found in the SEC complaint) Did you know that:

* A multi-contributor independent valuation service was available since 1997 and a second became available in 2004, but BMO did not even subscribe to, let alone rely upon, such a service until the latter part of 2006.

* BMO’s market risk unit (“Market Risk”) supervised an internal control system that was intended to obtain independent price verification. Market Risk personnel were required to select third parties to serve as a source for independent quotes. (emphasis added)

However……
* David Lee’s unit, the Commodity Products Group (CPG) successfully resisted efforts by Market Risk to transition to available multi-contributor independent valuation services until shortly before the “fraud” unraveled. (quotes around the word fraud added)

What this means to me:
1) There was an internal power struggle between BMO’s Market Risk group and BMO’s Commodity Products Group. Lee was the Managing Director of CPG.

2) BMO had a documented process requiring BMO’s Market Risk group to select the source of the third party independent verification of the CPG group’s valuations. In my opinion, if BMO had met this requirement, Optionable would still be in business and Kevin Cassidy would not be heading towards jail. Why do I say that? I say it because I think it was the appearance of impropriety that damned Optionable more than any discrepancy between the reported valuations.

3) For whatever reason, (certainly beyond the influence of Optionable), this requirement went undelivered and David Lee was able to “bully” the Market Risk group into using his source of verification (which may well have been accurate) while his trades were profitable and then lost the ability to “bully” the Market Risk group when his trades became unprofitable.

4) Because the Market Risk group had been denied the opportunity to select the validation source themselves, as they were required to do, Cassidy and Optionable looked guilty, if for no other reason than Lee had chosen them against Market Risk’s objections.

Bottom Line:

BMO has successfully been able to present their inability to police their internal requirements as “a conspiracy” between Lee and Cassidy, rather than what it really was: a power struggle between their own competing divisions. I think Lee openly prevented the Market Risk Group from fulfilling their requirement to select the verification source themselves. Lee got away with rubbing the Market Risk group’s face in it while he was up, but he found himself under criminal indictment when he was down.

At his allocution, Cassidy acknowledged that he knew that BMO’s Market Risk group wanted valuations that were independent of Lee, and that they didn’t get it. But Cassidy went on to say that he believed the reports were accurate despite Lee’s involvement. The power struggle between BMO’s Market Risk group and BMO’s CPG team wasn’t Cassidy’s fight, but still Cassidy and Optionable become easy scapegoats when BMO’s star trader slipped.

Disclosure: 1) I am an Optionable shareholder. 2) I have repeatedly underlined the word requirement because to me a requirement carries the same meaning as a “contract” or a mutually agreed upon course of action.

Where is BMO's "Mountain of Data"?

Last December, BMO's lawyer Anne Beaumont told Judge Daniels that she expected BMO to complete their 'document production' by the end of February. Yet Team BMO arrived at the conference today without having completed this task.

“Who cares?”, you might wonder.

Since last December I’ve done some thinking about the relevance of the trading data that BMO fought to prevent the Defense from seeing. I've also thought about why BMO might drag their heels producing it. (NOTE: there is still a battle to be fought over whether or not this data could be used at trial, but BMO lost the fight to withhold it from the defense)

Here’s what I’m thinking:

If BMO is fighting so hard to hide this data, it must be pretty damning, right? It must expose two things: 1) The weakness of BMO's complaint against Optionable and 2) The strength of Optionable’s counter claims against BMO.

“Remind me”, I hear you ask, “What was BMO’s complaint again?”

My understanding of BMO’s position is that they claim to have relied on reports that Cassidy/ Optionable provided to their Back Office on a twice-monthly basis as their only available double check of the valuations that their own trader (David Lee) provided to them on a daily basis. Their complaint is that while it was fine for Lee to send his valuations to the Back Office as the basis for their daily review of his valuations, it was a violation of Federal Law for Lee to send his valuations to Optionable as the basis for their twice monthly review. At his allocution in the Federal Criminal case against him, Cassidy acknowledged that Lee did send him valuations to use as the basis of his twice monthly reports, although Cassidy also stated that he believed the reports he sent to BMO were accurate, despite Lee's involvement. The data that BMO hasn't produced yet will help validate Cassidy's "belief".

This is probably also a good point at which to mention that I have a vested interest in this case as I am an Optionable shareholder. My interpretation of events is most likely not shared by BMO or the Federal Prosecutors. Given my bias, here is my highly opinionated and only slightly educated view of BMO’s “struggle” to produce this data:

1) There must be a lot of data. It seems like BMO is working through a “Mountain of Data”. If I were to see samples of this data I probably wouldn't know how to interpret it. What I do know is that the sheer volume of it suggests to me that BMO had *A LOT* of their own data about the value of the portfolio that Lee traded on their behalf.

2) I believe that the twice monthly reports from Optionable consisted of a single page that someone at Optionable faxed over to someone at BMO’s Back Office. For the sake of argument, lets err on the side of caution and say the reports were a few pages long. They were still at best an overview - a snapshot - an estimation.

3) So…. what we’re looking at is BMO with a “Mountain" of their own proprietary data and they are asking us to believe that instead of climbing this "Mountain of Data" they safeguarded their multi-hundred-million dollar High-Risk investment with a brief twice monthly report from a tiny brokerage firm that they knew received a huge portion of their annual revenue from the very same BMO trader whose valuations were supposed to be under scrutiny here.

4) Now, I can get behind the concept that a brief report is more manageable to digest than a "Mountain of Data". And I can even give a little ground and say that it seems like BMO didn't have a good grasp of their "Mountain of Data". So, perhaps there could be some truth to their claim that they were somewhat dependent on reports from Optionable as a high level overview. But..... ummm…. BMO is a huge multi-national bank, right? They had hundreds of millions of dollars in sketchy high risk investments in play here, right? They had been involved in this specific high risk market for over a decade and they've had problems with previous trader's valuations too, right? So, when they got hit with a huge trading loss in 2007, rather than facing the music with their shareholders, they ran off and blamed some easily scapegoated tiny brokerage rather than admit that their own Controls and Risk Management had failed. To spare themselves some bad publicity, BMO detonated a nuclear bomb on Optionable's business, poisoned their marriage with NYMEX and triggered a Federal Criminal investigation against some poor schmuck with an unrelated prior criminal record. Optionable's business is dead, they're fighting a messy "divorce" and Kevin Cassidy is looking at jail time, all for the "crime" of sending BMO what may well prove to be ACCURATE reports. Well...... I can’t get behind that.

Side note:

Despite CMEG/ NYMEX getting a pass on the Oral Arguments scheduled with Judge Daniels today, CMEG/NYMEX will be back for a May 16th appearance. The next conference with Judge Daniels and the Bank of Montreal will be on May 31.

Sentencing Delay Stalls Cassidy Deposition

(photo: Justice takes a breather. Statue outside the Federal Courthouse in NYC.)

December 20 Civil case conference with Judge Daniels

Note: audio recordings are not permitted in the court house, so I am relying on my own handwritten notes. I am not a lawyer and may have misunderstood some statements made during the conference. Corrections to these notes by any persons who attended this conference are welcome. Send comments to traderelvis@gmail.com

Cassidy Status:
Kevin Cassidy was scheduled to be sentenced on December 15th. Cassidy's lawyer Lawrence Gelber told the court that sentencing will now be on January 31st. Gelber said that the new date was set by the government and was not at the request of Cassidy.

The expectation is that there will be a 30 to 60 day window between when Cassidy is sentenced and when he goes to jail. During this time Cassidy will be deposed (asked questions under oath) and allowed to speak, for the first time, about the business rules that existed between Optionable and the Bank of Montreal defining how pricing information was to be shared between Optionable and BMO's back office. Judge Daniels expressed his personal doubt that Cassidy would have anything game-changing to say but supported the process by which Cassidy would be sentenced first and deposed later.

[Personal note: I have always doubted BMO's version of events as presented to BMO's Shareholders and Industry Analysts at their 2007 press conference and have been waiting for four years to hear Cassidy's version of events. Unlike Judge Daniels I'm thinking that Cassidy's deposition will reveal a credible alternate interpretation of the admitted actions taken by Lee, Cassidy and BMO's back office that will poke holes in BMO's publicized interpretation that scapegoated Cassidy to mask their own massive losses on excessive risky investments.]

First Up: CFTC
Eugene Smith of the CFTC reported that the CFTC recently finalized a Consent Order with Optionable and O’Connor and that the CFTC expects to reach a similar outcome with Cassidy. Lawrence Gelber said that he needs to wait until after Cassidy is sentenced, before having further discussions with either the CFTC or the SEC. No one from the SEC attended the conference. Marni Rae Robin stated that O’Connor has not settled with the SEC.

Next Up: CMEG / NYMEX
Daniel Pollack said that CMEG filed a motion for Summary Judgment and anticipates an answer from Nordlicht and Cassidy by January 18th. Pollack's position is that when Nordlicht, Cassidy and O'Connor sold NYMEX a 19% stake in Optionable, a warantee was broken because Optionable did not disclose certain alleged criminal acts in their SEC filings, even though the acts had not yet been alleged when the documents were filed. Several Defense lawyers jumped up simultaneously, outraged, to respond while Pollack was talking.

Judge Daniels told both Gottlieb/Nordlicht and Gelber/Cassidy to submit documents to him as to why CMEG’s request for a Summary Judgment is premature – otherwise he expects them to file an answer by January 18th. The problem here is that CMEG wants their motion answered BEFORE Cassidy is deposed.

And Then: BMO
Anne Beaumont's update covered 1) Pleadings 2) Discovery and 3) Document Production. Beaumont said that document production should be done by the end of February. She suggested that Cassidy’s deposition should happen after document production is completed. [personal note: document production seems to be putting a strain on BMO and it was not clear to me why this is the case, or what its relevance is going forward. I feel like I did not fully grasp parts of Beaumont's update]

Norton (for Optionable) asserted that he wants BMO trader David Lee deposed during this time as well. Beaumont clarified that she is not representing Lee and was not sure when Lee will be sentenced. Judge Daniels said that he would expect Lee’s deposition to happen within 30 to 60 days of Lee’s sentencing.

Regarding Joseph Saab of MF Global
Owen Pell wants Saab’s portion of the case stayed (halted) while MF Global’s bankruptcy is figured out. Pell is waiting to see if MF Global’s insurance will pay Saab’s legal fees, because if it doesn’t Saab may need to find another lawyer. Judge Daniels said that he will not halt this case himself, but he would honor such a request from the Judge handling the MF bankruptcy if such a request were made.

Next conference March 1, 2012

Plaintiffs Present: CFTC, Bank of Montreal, CMEG / NYMEX
Plaintiffs Absent: SEC
Defendants Represented: Optionable, Ed O’Connor, Mark Nordlicht, Kevin Cassidy and Joseph Saab

Plaintiffs:
CFTC: Eugene Smith
BMO: Anne Beaumont
CMEG: Daniel Pollack

Defense:
Nordlicht: Jason Gottlieb
Cassidy: Lawrence Gelber
O’Connor: Marni Rae Robin
Optionable: Michael Norton
Saab: Owen Pell

Hook.Line.Sinker

The following story is fiction. Any resemblance to any persons either living or dead is purely coincidental.

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So let’s say there is this company in Japan called the Bank of Marine Organisms (BMO for short). They are the 4th largest fish processing company in Japan. They buy fish, they sell fish, they warehouse fish and they mortgage fish inventories.

The Bank of Marine Organisms also trades Fugu. Fugu is a tasty fish that if cooked incorrectly will kill you. The Japanese government strongly regulates Fugu and only allows carefully trained chefs to prepare it. The livers of the Fugu fish are the most lethal part of the fish, but are also reported to be the tastiest. Like any natural product, Fugu has an expiration date past which it can not be sold.

The Bank of Marine Organisms is a publically traded company. They don’t hide the fact that they deal in Fugu, but they downplay it. Instead, they present themselves to their shareholders as a cut and dried fish operation. Even though Fugu represents less than 1% of the fish BMO sells by volume, it generates a much larger percent of their total profits.

Fugu traders get special treatment at BMO, but nothing compared to the elite traders who trade Fugu livers near their expiration date. These traders ‘swim’ in highly profitable, yet highly toxic waters where a highly regulated precious commodity is on the brink of becoming worthless.

David Eel was one such trader and he was good at his job. The market for near expiration Fugu livers is so small, and Eel’s influence in it was so large, that Eel was able to set the market prices. Things went on this way for a number of years, David Eel made a lot of money for BMO and in turn BMO rewarded David Eel with a huge salary and bonuses.

But nothing so risky runs smoothly forever. A large Fugu hedge fund, aMerInch, collapsed and the market still hadn't fully recovered from the stench caused by EnRoe. The Securities and Exchange Commission was sniffing around fish trader's financial reports, and it was just a bad time to be trading Fugu.... let alone near expiration Fugu liver. David Eel's influence weakened and he was no longer able to make his prices stick in the marketplace.

BMO was worried because they were looking at Eel's huge inventory of near expiration Fugu liver – and over a million dollars worth of the stuff was expiring daily.

Without David Eel’s ability to set and enforce prices, BMO had to dump a lot of their near expiration Fugu livers at a loss. They had some explaining to do. They knew that with the amount of blood they were spilling into the waters Government sharks were gonna be circling.

In an attempt to distract the Government and their own shareholders, BMO fired David Eel and repackaged his diminished influence in the market instead as a fraud. BMO's spin was that Eel had been lying to them when he reported the value of his near expiration Fugu livers inventory rather than saying that Eel had previously been able to set market market prices and now he wasn't. After all, this strategy had worked for them several years earlier when they fired Eel's predecessor under similar circumstances.

Luckily it turned out that David Eel traded a lot of his near expiration Fugu livers through a small brokerage firm called Oceanable. Oceanable was also a publically traded company and its CEO had a public, but not commonly known criminal record. This made Oceanable an easy scapegoat. BMO held a press conference and spun their conspiracy theory which blamed reports from Oceanable based on Eel's valuations as a cause of their losses on near expiration Fugu livers.

When the criminal record of Oceanable’s CEO, Kevin Bassidy was reported, the press, shareholders and even Government agencies swallowed BMO’s story: Hook, Line and Sinker. "Oh, I get it now", came the collective sigh of relief, "there was a Criminal involved - that explains everything". Oceanable’s CEO was arrested and eventually, years later, took a plea deal.

The irony is that Oceanable's reports actually brought more transparency to the near expiration Fugu liver trading market than was previously possible. The toxicity levels were accurately reported and expiration dates were accurately tracked. The only ‘crime’ that happened was that Oceanable accurately reported the valuation of David Eel’s near expiration Fugu livers during the period of time that Eel controlled the market.

What Would Mark Nordlicht Do?

The underlying premise of this blog is that I stink at picking stocks. See those birds flying away in the upper right hand corner of this page? You can think of those birds as your investment dollars flying away if you invest the way I do.

But recently, someone with a better track record than me proclaimed to the world (as well as to the SEC) that he thought Optionable shares were undervalued. That someone is Mark Nordlicht.

Who is Mark Nordlicht?

* One of the founders of Optionable

* Operates a hedge fund known for seizing opportunities others miss.

* Is represented by lawyers who have studied the BMO and NYMEX lawsuits

* In June put $1.5 million on the table in a Tender Offer to buy Optionable outright

* As a result of the Tender Offer Nordlicht is once again an Optionable Insider (owns more than 10% of the company)

* Unlike fellow Optionable founder Kevin Cassidy, Nordlicht does not have to “bite his lip” out of concern for a criminal indictment

* Has the money needed to defend Optionable at trial

Here is a link to a more complete bio of Mark Nordlicht

Here is a link Mark Nordlicht's portfolio performance with Platinum Management

On August 15th Kevin Cassidy took a plea on one count in the criminal case against him. So far, everyone is keeping very quiet about what happens now. What WILL Mark Nordlicht do?