The Uniqueness of Platinum Partners and the Web Prosecutors Could not Eloquently Unwind [Law360]

Law360 (July 10, 2019, 10:25 PM EDT) — Brooklyn federal prosecutors failed to convict top Platinum Partners executives on what they once described as “one of the largest and most brazen investment frauds perpetrated on the investing public,” and the charges they convicted on are now in the hands of a skeptical judge — a far cry from the case’s headline-grabbing origins.

Two and a half years after they were indicted, Platinum Partners co-founder Mark Nordlicht and former co-chief investment officer David Levy were convicted Tuesday of defrauding bondholders in portfolio company Black Elk Offshore Operations LLC. But the jury acquitted entirely on the crux of the case: that Nordlicht, Levy and others had run Platinum’s key fund like a Ponzi scheme.

Former Platinum CFO Joseph SanFilippo was also accused of the scheme to defraud investors, and he was found not guilty. In all, the jury acquitted on 15 counts and convicted on six.

Una Dean of Fried Frank Harris Shriver & Jacobson LLP said that while the case took a number of twists and turns, the acquittal on the investment fraud scheme is not a total surprise given U.S. District Judge Brian Cogan’s skepticism of the evidence.

“It’s not common, and it definitely signals something about the nature or sufficiency of the evidence in the case — as perceived by the court at least,” Dean said of the judge’s rulings.

Nordlicht, Levy, SanFilippo and two others were charged with committing a complex fraud on investors in the Platinum Partners Value Arbitrage Fund between 2012 and 2016, as a number of those investors sought to pull funds out of the PPVA. The fund was stocked with oil and gas assets that were still in the exploration stage, making them difficult to sell.

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Platinum and Black Elk, Jury Finds Platinum’s Partners Innocent of Ponzi Scheme but Guilty in Black Elk

Mark Nordlicht, center, outside federal court in the Brooklyn borough of New York on Jan. 12, 2017.

Platinum’s Co-Founder Nordlicht Is Found Guilty of Conspiracy and Fraud

Platinum Partners co-founder Mark Nordlicht was convicted of defrauding investors in what prosecutors likened to a Ponzi scheme and once called one of the biggest investment frauds ever.

The verdict was returned Tuesday by a federal jury in Brooklyn, New York.

When Platinum’s flagship hedge fund was on the brink of collapse, Nordlicht and other executives concealed the truth from investors to stave off withdrawals and bring in fresh capital, prosecutors said. The government, which initially called it a $1 billion investment fraud, ultimately argued to jurors that Nordlicht and his co-defendants cheated investors out of millions, after the trial judge narrowed the scope of their case.

For more than a decade, Platinum Partners boasted some of the headiest numbers in the hedge fund industry, including 17% average gains through 2015 for the flagship fund, Platinum Partners Value Arbitrage. The U.S. said the fraud also involved two other funds Nordlicht operated.

Nordlicht, former co-chief investment officer David Levy, and Joseph SanFilippo, who was chief financial officer of the Value Arbitrage fund, were accused of using loans and money from new investors to pay off old ones, as Ponzi schemes do, prosecutors claimed.

In a second scheme, the U.S. charged that in 2016, Nordlicht and his alleged co-conspirators inflated the value and liquidity of unprofitable oil projects to exalt a fund that “held no more value than a tarnished piece of cheap metal.” Prosecutors called it “one of the largest and most brazen investment frauds perpetrated on the investing public.” The U.S. alleged that Nordlicht and Levy diverted the proceeds of asset sales tied to Black Elk Energy, one of the largest companies in Platinum’s portfolio.

Nordlicht was convicted of three counts tied to the Black Elk scheme: one of securities fraud, one of conspiracy to commit securities fraud, and one of wire fraud conspiracy. He was cleared of the Platinum fraud charges.

Levy was convicted of the same charges. SanFilippo was acquitted of all charges.

Liquidity Crisis

At the trial, which began April 23, prosecutors called as witnesses several former Platinum employees who had agreed to testify about their role in the alleged fraud. Among them was Andrew Kaplan, the former chief marketing officer, who pleaded guilty and secretly recorded telephone calls and meetings with Nordlicht and others, which were played for the jury.

Even as a liquidity crisis gripped the fund in January 2015, Assistant U.S. Attorney Alicyn Cooley argued, Nordlicht and his team exaggerated its prospects to get a fresh infusion of cash, promising the fund’s value would be up 8% by April of that year.

“They announced this made-up number when the fund was about to go under,” Cooley said. “The concept is, if you tell a lie because you hope things will work out, it doesn’t change the fact that you told a lie.”

Nordlicht’s lawyer, Jose Baez, told the jurors in his closing argument that the case was a “disgrace” and that it was the prosecutors who were lying — to them. Baez said there was no evidence Nordlicht intended to commit fraud and instead had a “good faith” belief that he could resolve the fund’s woes.

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A Platinum Verdict – Black Elk Guilty, PPVA Scheme Not Guilty

MarkNordlicht

Jury finds Platinum Partners founder guilty in fraud trial

The verdict was handed up by a jury in federal court in Brooklyn following a nine-week trial. Platinum’s former co-chief investment officer, David Levy, was convicted of the same conspiracy and securities fraud charges.

A third defendant, former Chief Financial Officer Joseph SanFilippo, was cleared of all charges against him.

Prosecutors charged Nordlicht, Levy and SanFilippo with fraud in December 2016, saying they and others at Platinum bilked investors out of “millions and millions of dollars” in two different schemes.

In one scheme, the three men were accused of lying to investors about the health and liquidity of its flagship fund, Platinum Partners Value Arbitrage. Prosecutors said Platinum operated “like a Ponzi scheme” by using new money to fund redemptions by earlier investors, a practice referred to internally as “Hail Mary time.”

The jury, however, rejected those charges, finding all three men not guilty.

In the second scheme, according to prosecutors, Nordlicht and Levy defrauded bondholders in Black Elk, an oil exploration company Platinum owned, by diverting money from asset sales to Platinum ahead of Black Elk’s 2015 bankruptcy. The jury found them guilty of two counts of conspiracy and one count of securities fraud related to that scheme.

SanFilippo was not charged with taking part in the Black Elk scheme.

Lawyers for Nordlicht and Levy were not immediately available for comment.

Kevin O’Brien, one of SanFilippo’s lawyers, said in an email: “Joe is thrilled by the jury’s verdict of acquittal, which affirms what we have consistently maintained, that this case never should have been brought.”

Platinum’s assets are being liquidated under the oversight of court-appointed receivers.

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Black Elk’s “Rigged” Bond Vote – Orchestrated by Mark Nordlicht and David Levy, the Details

Ex-Black Elk Atty Gives ‘Painful’ Detail On Bond Vote

Law360 (May 31, 2019, 9:44 PM EDT) — A former attorney for defunct energy firm Black Elk walked jurors through a bond vote that the government alleges former executives at Platinum Partners rigged in their favor, with the prosecutor on the case getting into a level of detail that a judge called “painful” on Friday.

Former Black Elk outside counsel W. Robert Shearer gave a second day of direct testimony at the trial where Platinum co-founder Mark Nordlicht and former Platinum co-chief investment officer David Levy are accused of working with others to secretly control the bulk of $150 million in Black Elk bonds ahead of a vote in order to direct millions back to Platinum itself.

Now a partner at Akin Gump Strauss Hauer & Feld LLP, Shearer was at the time at BakerHostetler. While jurors had heard of Nordlicht’s involvement the day before, Friday’s direct testimony was centered mostly on email interactions between Shearer, former Platinum managing director Daniel Small and former Black Elk CEO Jeffrey Shulse. Shulse and Small are scheduled to be tried separately on related charges. The government has not accused Shearer of wrongdoing.

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Black Elk and the “Secret Sway” of Mark Nordlicht and David Levy to Wield Control – a Power Grab

Law360, New York (May 30, 2019, 9:59 PM EDT) — Jurors in the securities fraud trial of former top Platinum Partners executives on Thursday heard of how co-founder Mark Nordlicht floated plans to wield control over bonds of the hedge fund’s portfolio company Black Elk Offshore Operations LLC using Platinum affiliates, which prosecutors say was part of a scheme to defraud the oil and gas driller’s bondholders.

Prosecutors say Nordlicht, former Platinum co-chief investment officer David Levy and others used their secret sway over the majority of $150 million in Black Elk bonds to funnel the bulk of proceeds from a sale of the company’s assets back to Platinum, ahead of bondholders who had priority to the funds.

During the testimony of Black Elk’s former outside counsel at BakerHostetler, W. Robert Shearer, the jury heard of how a group of independent bondholders in late 2013 were threatening to push the bonds into default after Black Elk violated the indenture’s terms by exceeding its limits on capital expenditures.

Jurors were shown a February 2014 email from Nordlicht to a Black Elk executive, in which Nordlicht describes a plan to potentially deal with aggrieved bondholders by exerting majority control over the debt.

“FYI — I am close to buying 20 million bonds from [an independent bondholder]. It will at that point be [an] easy task to buy additional 25 if bondholders don’t behave and we can change covenants at any time by flipping our bonds to friendlies who will do right by the company,” Nordlicht said in the email.

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Nordlicht v. Federal Bureau of Prisons – FOIA Request for FBI Records

Are FBI Records Not Private? Mark Nordlicht Trying to Ascertain Whether Records Were Leaked to the Press?

 

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Case Title NORDLICHT v. FEDERAL BUREAU OF PRISONS
District District of Columbia
City Washington, DC
Case Number 1:2018cv02626
Date Filed 2018-11-14
Date Closed 2019-04-03
Judge Judge James E. Boasberg
Plaintiff MARK NORDLICHT
Case Description Mark Nordlicht, who was one of the subjects of an investigation in the Eastern District of New York, submitted a FOIA request to the FBI for records concerning communications between five named individuals and the New York Post, the Wall Street Journal, Bloomberg News, or Reuters during 2016. The agency acknowledged receipt of the request and denied the request on the basis of Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). Nordlicht then filed suit.
Complaint issues: Litigation – Attorney’s fees
Defendant FEDERAL BUREAU OF INVESTIGATION
Defendant FEDERAL BUREAU OF PRISONS
Documents Docket
Complaint
Complaint attachment 1
User-contributed Documents
 Docket Events (Hide)
Date Filed Doc # Docket Text

2018-11-14 1 COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 400, receipt number 4616095482) filed by MARK NORDLICHT. (Attachments: # 1 Civil Cover Sheet)(ztd); Modified on 12/4/2018 to correct Defendant’s name (ztth). (Entered: 11/16/2018)
2018-11-14 2 NOTICE OF RELATED CASE by MARK NORDLICHT. Case related to Case No. 18-403. (ztd) (Entered: 11/16/2018)
2018-11-15 SUMMONS (3) Issued as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (ztd) Modified on 12/4/2018 to correct Defendant’s name (ztth). (Entered: 11/16/2018)
2018-11-19 3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/16/2018. ( Answer due for ALL FEDERAL DEFENDANTS by 12/16/2018.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/16/18. (ztd) (Entered: 11/30/2018)
2018-11-26 4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 11/20/2018. (tth) (Entered: 12/04/2018)
2018-12-17 5 ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION.(Simon, Jeremy) (Entered: 12/17/2018)
2018-12-17 MINUTE ORDER: The Court ORDERS that the parties shall meet, confer, and submit a joint proposed briefing schedule by January 7, 2019. So ORDERED by Judge James E. Boasberg on 12/17/2018. (lcjeb2) (Entered: 12/17/2018)
2018-12-17 Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 1/7/2019. (znbn) (Entered: 12/18/2018)
2019-01-04 6 MOTION to Stay in Light of Lapse in Appropriations by FEDERAL BUREAU OF INVESTIGATION (Simon, Jeremy) (Entered: 01/04/2019)
2019-01-07 MINUTE ORDER GRANTING 6 Motion to Stay. So ORDERED by Judge James E. Boasberg on 1/7/2019. (lcjeb1) (Entered: 01/07/2019)
2019-01-29 7 NOTICE of Restored Government Funding by FEDERAL BUREAU OF INVESTIGATION (Simon, Jeremy) (Entered: 01/29/2019)
2019-02-06 MINUTE ORDER: The Court lift the stay entered on 1/7/2019 and ORDERS that the parties shall submit a joint proposed briefing schedule by February 20, 2019. So ORDERED by Judge James E. Boasberg on 2/6/2019. (lcjeb1) Modified on 2/6/2019 (zlsj). (Entered: 02/06/2019)
2019-02-06 Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 2/20/2019 (lsj) (Entered: 02/06/2019)
2019-02-19 8 Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATION. (Simon, Jeremy) (Entered: 02/19/2019)
2019-02-19 MINUTE ORDER ADOPTING the parties’ 8 Joint Status Report. The Court ORDERS that: 1) Defendant’s Motion for Summary Judgment shall be due May 2, 2019; 2) Plaintiff’s Opposition shall be due May 23, 2019; and 3) Defendant’s Reply shall be due June 6, 2019. So ORDERED by Judge James E. Boasberg on 2/19/2019. (lcjeb1) (Entered: 02/19/2019)
2019-02-19 Set/Reset Deadlines: Summary Judgment motions due by 5/2/2019. Response to Motion for Summary Judgment due by 5/23/2019. Reply to Motion for Summary Judgment due by 6/6/2019. (znbn) (Entered: 02/21/2019)
2019-04-03 9 STIPULATION of Dismissal by FEDERAL BUREAU OF INVESTIGATION. (Simon, Jeremy) (Entered: 04/03/2019)
2019-04-03 MINUTE ORDER: Per the parties’ 9 Stipulation, the Court ORDERS that the case is DISMISSED WITH PREJUDICE. So ORDERED by Judge James E. Boasberg on 4/3/2019. (lcjeb1) (Entered: 04/03/2019)
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Black Elk, David Levy and “So What if it’s Fraud?” – The Black Elk Story Continued

David Levy, Black Elk and a Fraud Perpetrated Upon Shareholders in Brazen Fashion…

 

Dear Readers:

We told this story long ago and uncovering the fraud perpetrated upon the Black Elk shareholders has been one of the many things we have focused since our inception. We did not envision that the day would come when it would be laid out in black and white before the court. The below is a copy of the transcript, stating in pertinent part, everything we already knew. Read on.

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