Thursday, June 19, 2008

Bears Stearns Hedge Fund Managers Indicted

Investor Losses Total More Than $1 Billion

An indictment was unsealed in a Brooklyn, New York, federal court charging . Ralph Cioffi, 52, the founder and senior portfolio manager of two Bear Stearns hedge funds, and Matthew Tannin, 46, a portfolio manager of the funds, with conspiracy, securities fraud, and wire fraud. Cioffi was also charged with insider trading.

According to the indictment, Cioffi created the Bear Stearns High Grade Structured Credit Strategies Fund in 2003 and the Bear Stearns High Grade Structured Credit Strategies Enhanced Fund in 2006 (collectively referred to hereafter as the Funds). The indictment alleges that the defendants marketed the Funds as a low risk strategy that invested primarily in high grade debt securities, such as AAA and AA rated tranches, or pieces, of collateralized debt obligations (CDOs). CDOs are securities backed by a pool of debt securities, such as mortgages. Both funds utilized leverage, by borrowing capital from Wall Street lenders with the hope of earning a higher rate of return on their investments than the costs of the loans. By the late summer of 2006, the Funds held approximately $1.4 billion of investor funds under management.

The indictment alleges that by March 2007, the defendants believed that the Funds were in grave condition and at risk of collapse. However, rather than alerting the Funds’ investors and creditors to the bleak prospects of the Funds and facilitating an orderly wind-down, the defendants made misrepresentations to stave off withdrawal of investor funds and increased margin calls from creditors in the ultimately futile hope that the Funds’ prospects would improve and that the defendants’ incomes and reputations would remain intact. The subsequent collapse of the Funds during the summer of 2007 resulted in losses to investors totaling more than $1 billion.

The Funds’ Declining Financial Prospects

Throughout the spring of 2007, the defendants and other Fund employees privately acknowledged the Funds’ declining financial prospects. According to the indictment, Cioffi told another Fund employee that he feared the current state of the CDO markets and saw a long term meltdown on the horizon.

Similarly, in an April communication to Cioffi, Tannin stated,

“[T]he subprime market looks pretty damn ugly . . .. If we believe [our internal modeling] is ANYWHERE CLOSE to accurate I think we should close the funds now. The reason for this is that if [our internal modeling] is correct then the entire subprime market is toast . . .. If AAA bonds are systematically downgraded then there is simply no way for us to make money - ever.” (Emphasis in original)

Notwithstanding their views to the contrary, the defendants led investors and creditors to believe that, despite the challenges presented in the market, the Funds would continue to generate an increasing net asset value.

The Defendants’ Own Investments in the Funds

As alleged in the indictment, in the hedge fund industry, the fact that fund managers had their personal money in the funds they managed was critically important to investors. Personal investment, or “skin in the game,” established a manager’s faith in his fund and aligned the interests of managers with investors. However, the indictment charges that the defendants misled investors about the true nature of their investments in the Funds. Specifically:

◝ Throughout March 2007, Tannin repeatedly told investors and Bear Stearns brokers responsible for selling the Funds that he believed that the market presented a buying opportunity and that he was adding to his investment in the Funds. In one instance, Tannin told an investor, “[w]e are seeing opportunities now . . . I am adding capital to the Fund. If you guys are in a position to do the same I think . . . this is a good opportunity.” In fact, Tannin never invested more of his own money in the Funds.

◝ At the same time, while he was touting the prospects of the Funds, Cioffi transferred $2 million of his approximately $6 million investment in the Enhanced Fund to another Bear Stearns hedge fund for which he had supervisory responsibilities. This latter fund had recently experienced returns far superior to either the High Grade or Enhanced Funds. Cioffi never told investors he made this transfer and continued falsely to represent to investors that he held approximately $6 million in the Enhanced Fund.

The indictment charges Cioffi with one count of insider trading based on this $2 million redemption.

Misrepresentations Regarding Investor Redemptions

The amount of investor redemptions, or requests to withdraw funds, is significant to other investors in a hedge fund. A relatively large amount of pending redemptions may indicate a loss of investor confidence in the fund. A fund facing large redemption requests runs the risk of reducing liquidity and of being forced to sell assets at unfavorable prices to raise cash, thus diminishing the value of the remaining investors’ stake in the fund.

During an April 2007 conference call with investors – following his acknowledgment of the importance of investors knowing the status of redemptions – Cioffi falsely represented that the Funds “only have a couple million of redemptions for the June 30 date,” when he knew of approximately $47 million in total redemption requests for that date. Cioffi also omitted any reference to $67 million in redemption requests scheduled for April 30, 2007 and May 31, 2007. According to the indictment, Tannin also made misrepresentations concerning redemptions to a creditor of the Funds.

The Missing Notes

The indictment alleges that Tannin’s tablet computer, on which he took notes during 2007, and Cioffi’s notebook, in which he had made handwritten notes during the spring of 2007, both went missing after the United States Securities & Exchange Commission requested the production of documents and materials as part of its investigation of the collapse of the funds in the summer of 2007.

“Hedge fund investors, like all investors in our national markets, are entitled to rely on those to whom they entrust their investment dollars,” stated Benton J. Campbell, United States Attorney for the Eastern District of New York. “Honesty and fair dealing are at the foundation of this relationship of trust and confidence. These defendants chose to breach that trust, and they will now be held to account.” Mr. Campbell expressed his grateful appreciation to the Federal Bureau of Investigation and the United States Securities & Exchange for their assistance. Mr. Campbell added that the investigation is continuing.

Mark J. Mershon, Assistant Director-in-Charge of the Federal Bureau of Investigation, New York Field Division stated, “Investing in hedge funds entails certain market risks, but investors don’t assume the risk that fund managers will misrepresent facts. A fund can perform poorly and lose investor capital as a result of bad management, but losing investors’ money isn’t the crime. The crime is in misrepresenting the vitality of the fund, as these defendants surely did.”

If convicted of securities fraud, Cioffi and Tannin face maximum sentences of 20 years of imprisonment. If convicted of conspiracy, they each face a maximum sentence of five years.

The United States Attorney for the Eastern District of New York is a member of the Corporate Fraud Task Force, a multi-agency group formed by President Bush in July 2002 to restore public and investor confidence in America’s corporations following a number of major corporate scandals. In the past five years, the task force has yielded more than 1,200 corporate fraud convictions.

The United States Securities & Exchange Commission announced today that it has filed civil charges against both Cioffi and Tannin.

The government’s criminal case is being prosecuted by Assistant United States Attorneys Sean Patrick Casey, John A. Nathanson, James Gatta, and Patrick Sean Sinclair.

The charges in the indictment are merely allegations, and the defendants are presumed innocent unless and until proven guilty.

mortgage fraud