by Bill Singer
Commodities CEO Gets 30 Months In Prison In Mark To Market Scheme
April 26, 2012
This is an update of a Street Sweeper column that originally ran on August 19, 2011.
According to federal prosecutors, beginning in May 2003, prosecutors alleged that the Bank of Montreal's ("BMO's) former lead natural gas derivatives trader, David Lee, deliberately overstated the fair market value of some of his positions, thus presenting his book as more profitable than it actually was. Since Lee's bonus was computed, in part, upon his profitability,his mismarking of positions earned him more compensation than was warranted.
Mark to Market
Bill SingerContributor
The Bank of Montreal (BMO) required its commodities traders to daily "mark their books" by assigning the fair market value to each open position in their portfolios - thus allowing BMO to determine its daily commodities-related profits and/or losses, and to analyze its risk exposure. As part of its oversight of the valuation process, BMO verified the accuracy of the marks by comparing those marks to independent market quotes for similar positions ("independent price verification").
As part of BMO's independent price verification of Lee's positions, quotes were obtained from third-party brokerage firms for similar positions. Among the third parties referenced was the brokerage firm Optionable.
You Scratch My Back And . . .
According to the allegations in a federal criminalInformation, beginning in December 2004, Kevin Cassidy, 52, the CEO of Optionable, and Lee conspired to subvert BMO's independent price verification process by having Lee supply Cassidy with price quotes for positions in BMO's natural gas book, which Cassidy would then report to BMO without revealing that the quotes had originated with Lee. Allegedly, Cassidy was aware that BMO relied upon the integrity of Optionable's submitted quotes as part of its independent price verification of Lee's book; however, those quotes were not bona fide because they were not derived independently of Lee.
Allegedly, Cassidy accommodated Lee in order to motivate the BMO trader to use Optionable to execute commission-generating trades. In fact, from 2004 to 2007, Optionable received an increasing amount of commission-generating trading business from BOM, which constituted in excess of 40% of the brokerage firm's revenues by 2007.
Indictment
On November 28, 2010, Cassidy was indicted on:
- one count of conspiracy to commit wire fraud and to make false bank entries;
- two counts of wire fraud;
- one count of aiding and abetting the making of false bank entries; and
- two counts of securities fraud.
The conspiracy charge carries a maximum sentence of 5 years' imprisonment and a maximum fine of the greater of $250,000, or twice the gross gain or gross loss from the offense.
The wire fraud counts each carry a maximum sentence of 20 years' imprisonment and a maximum fine of the greater of $250,000, or twice the gross gain or gross loss from the offense.
The false bank entries count carries a maximum sentence of 30 years' imprisonment and a maximum fine of the greater of $1,000,000, or twice the gross gain or gross loss from the offense.
The securities fraud counts each carry a maximum sentence of 20 years' imprisonment and a maximum fine of $5 million, or twice the gross gain or gross loss from the offense.
Guilty Pleas
On August 15, 2011, Cassidy pled guilty in federal court in Manhattan to one count of conspiring to commit wire fraud, for which he faces a statutory maximum of five years in prison, a maximum fine of $250,000, or twice the gross gain or loss from the offense, and a maximum period of three years of supervised release. As part of his plea agreement, Cassidy has agreed to forfeit the proceeds of his crime. He is scheduled to be sentenced in December 2011.
Lee previously pled guilty in November 2008 to four counts: conspiracy, wire fraud, making false bank entries, and obstructing a federal regulatory investigation. In addition to the penalties noted above:
the obstruction count carries a maximum sentence of 5 years' imprisonment and a maximum fine of the greater of $250,000, or twice the gross gain or gross loss from the offense.
UPDATE
On April 25, 2012, Cassidy was sentenced to 30 months in federal prison, three years of supervised release, and order to forfeit $200,000. Lee is awaiting sentencing.
Bill Singer's Comment
To those of us veteran Wall Street participants, there is little shocking or surprising about this case - to the contrary, it's merely a glimpse behind the curtains into the backstage. There's lots of you-scratch-my-back-and-I'll-scratch-yours going on in the biz. Whether we're talking about the possibilities of what happened at MF Global or we're talking about the reliability of daily marks at Goldman Sachs, Merrill Lynch, JP Morgan, or Wells Fargo, it's all pretty much the same issue with the same questions:How independent are the marks and how much integrity is truly in this verification system?
Here, it appears that BMO was victimized by its own trader acting in cahoots with a contra-side market participant; however, if the system for verifying the accuracy of the manner in which portfolios are priced is so easily subverted by a wink between traders, why utilize that protocol? Yeah, I know, I'm being unfair when I ask such a simplistic question. Imagine that. Bill Singer taking on the role of the cynic.
For a variation on the theme of trading positions, see this recent "Street Sweeper" article: Former Morgan Stanley Smith Barney Trader's $1 Billion Position Causes $15 Million Loss (March 6, 2011).