[In]Securities Guest Blog: Rolled Up and Smoked by Aegis Frumento Esq (BrokeAndBroker.com Blog)Court Grants CBOE Motion to Dismiss. In Re: Chicago Board Options Exchange Volatility Index Manipulation Antitrust Litigation (Opinion/Order)
Plaintiff commenced this action on April 22, 2015, asserting three causes of action for defamation, defamation per se, and intentional infliction of emotional distress (Mot. Wipper Aff., Exh. A). Plaintiff, is a professor of law at Georgetown University Law Center and the sole African-American on the National Adjudicatory Council (NAC). He was part of a panel that upheld a decision by the Financial Industry Regulatory Authority. Inc. ("FINRA"), issuing a lifetime ban from the security industry against two African-American stockbrokers: non-parties William Scholander and Talman Harris. NYG Capital LLC d/b/a New York Global Group (hereinafter referred to individually as "NYGG") is a U.S. and Asia based strategic market entry advisory, venture capital, and private equity investment group that services clients worldwide. FNL Media, LLC. is described in the Complaint as a division or subsidiary of NYGG, and the owner of TheBlot, a website and online digital magazine that claims to combine investigative journalism with reader-submitted opinions. According to the Complaint Benjamin Wey is the CEO of NYGG. a publisher and contributor to TheBlot (Mot. Wipper Aff., Exh. A).The Complaint alleges that almost a month after the NAC panel wrote the decision upholding the FINRA lifetime ban on non-parties William Scholander and Talman Harris. TheBlot. an on-line magazine. began publishing a series of articles defaming the plaintiff. The articles are described by plaintiff as falsely characterizing him as a "racist," an "Uncle Tom," as having an affair with a married woman, as being under investigation and implicated in fraud. Plaintiff also alleges that the defendants posted comments under a false identity and altered photographs of the plaintiff. Plaintiff claims that he is a private individual that had an excellent professional and personal reputation which has been damaged by the defendants' defamatory statements that resulted in the loss of work together with other damages (Mot. Wipper Aff .. Exh. A).
SIDE BAR: New York State Civil Practice Law and Rules ("CPLR") Rule 3101: Scope of Disclosure:. . .(c) Attorney's work product. The work product of an attorney shall not be obtainable.(d) Trial preparation.. . .2. Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.
An in camera review of the documents reveals that they are first and foremost proposed strategies by a public relations firm APCO Worldwide and comments by plaintiff and FINRA on those strategies, for plaintiff and FINRA to counteract and thus mitigate damages from the defamatory statements concerning plaintiff on the internet, about which he sues. That defamation, not this litigation or its anticipated commencement, prompted this public relations campaign. Depending on defendants' future conduct, APCO Worldwide proposed as part of the campaign the creation of a new, readily searchable online text and images positively portraying plaintiff, unrelated to the litigation.
[D]efendants are entitled to this relevant information regarding plaintiff's efforts to mitigate the past and future effects of the claimed defamation and any communications that might reveal the impact of the defamation on plaintiff's reputation and his mental and emotional condition, whether minimal or severe . . ."
Plaintiffs traded in options and futures contracts tied to the Chicago Board Options Exchange Volatility Index (VIX). VIX options and futures are cash-settled on designated dates. The price at which such an instrument settles is determined by a formula that Cboe designed. Plaintiffs allege that a group of anonymous traders used certain trading strategies to manipulate the process behind that formula, and, as a result, plaintiffs paid more or accepted less for their positions than they otherwise would have. They allege that Cboe knew that this manipulation was occurring, but allowed it to continue to increase profitability. Plaintiffs bring claims against Cboe and the unknown alleged manipulators (as Doe Defendants) under the Securities Exchange Act and Commodity Exchange Act. They also bring a negligence claim. Cboe moved to dismiss the complaint for failure to state a claim. I granted that motion and dismissed the complaint without prejudice as to all counts but the negligence count, which I dismissed with prejudice. Plaintiffs amended their complaint, and Cboe again moves to dismiss all counts against it. For the reasons discussed below, Cboe's motion is granted.
established his own firm called OpportunIP, which he allegedly told victims was a company specializing in assisting other entities in taking intellectual property to the market. HENNING induced victims to invest in OpportunIP by providing them with fraudulent documents showing OpportunIP's involvement in multimillion-dollar transactions that would reap millions of dollars in future profits. Ultimately, the victims learned that the deals did not exist, the documents were false and forged, and they were victims of an alleged scheme to defraud them out of millions of dollars.As further alleged in the information, after leaving the Manhattan accounting firm, HENNING sought employment with a firm in Chicago, Illinois (the "Chicago Firm"). He induced the Chicago Firm to hire him and provide him with $240,000 in draw payments based on false and fraudulent statements about business he would bring to the Chicago Firm, including by sending the Chicago Firm fraudulent contracts.
[V]ouloukos, 47, of Ville St. Laurent, Quebec, Canada, admitted that he conspired with others in a telemarketing scheme to defraud small businesses in the United States. Vouloukos and others deceived thousands of small businesses into paying for a phony service to improve and enhance their online profile and presence. The phony service was variously described as, for example, "business listing optimization," "business profile optimization," or "online business listing optimization," when in fact no such services were ever performed. Business were charged approximately $500 for the phony service.As stated in the plea agreement, Vouloukos operated a calling center in Canada with his co-conspirator Nicholaos Menis. U.S. victims were cold-called from Canada and sent bogus invoices. According to the plea agreement, the telemarketing scheme involved calling businesses regarding the fraudulent invoices and falsely stating that the businesses had ordered "business listing optimization" or similar services and owed the amount on the invoice. Victims were directed to mail checks to addresses in the United States, which were actually United Parcel Service (UPS) mailboxes or virtual offices, including one mailbox at a UPS store in San Francisco. In pleading guilty, Vouloukos admitted that he and a co-conspirator used a firm called GreenGate to launder the proceeds of the fraudulent scheme.According to the indictment, from about May 2009 to about June 2014, Vouloukos and others collected approximately $3.2 million from thousands of victims.Menis, 47, of Dollard-des-Ormeaux, Quebec, Canada, was charged in a separate indictment and arrested on August 11, 2014. He pleaded guilty on December 5, 2014, and is awaiting sentencing.