Second Circuit Reverses Conviction in Bond Market Misrepresentation Case, but Endorses Government Theory of Materiality

December 8, 2015

Today, the United States Court of Appeals for the Second Circuit reversed the conviction of Jesse C. Litvak, a securities broker and trader at Jefferies & Company. Litvak had been convicted of various counts of fraud as a result of misstatements he allegedly made to counterparties in connection with the sale of securities. This case has been the subject of significant attention in the securities industry and amongst practitioners in the white-collar bar, given the government’s aggressive prosecution of misrepresentations that many believed were similar to those commonly made in the bond market, a principal-to-principal market in which purchasers are typically sophisticated market participants who would be unlikely to take a bond trader’s sales pitch at face value. Though the reversal may suggest a repudiation of the government’s aggressive stance in the Litvak case, the Court’s decision actually strikes a compromise, holding that a rational jury could conclude that Litvak’s misstatements were material to his counterparties and thereby constitute fraud, but further holding that the District Court improperly excluded evidence supporting Litvak’s defense. The Court ruled that Litvak can be retried on the securities-fraud counts (but not the other counts), but the retrial will be one in which he will not be handcuffed by the now-reversed evidentiary rulings made by the District Court.

To continue reading our alert on this topic, please click here.