Scalping As Fraud But On Who?

• Published date: 04 November 2021
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Criminal Law, Financial Services, Securities, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Foley & Lardner
• Author: Mr Stuart Fross

The past has a way of repeating itself. In 1909, the New York Supreme Court declined to enforce a contract to manipulate stock prices (which was successful), with payments due to a publisher of an investment newsletter (Ridgely) and its co-conspirator (Keene) held to be unenforceable immoral profits. Ridgely v. Keene, 134 App. Div. 647, 119 N. Y. Supp. 451 (1909), cited in SEC vs. Capital Gains Research Bureau, 375 U.S. 180 (1963). The Court in Capital Gains, supposing that Congress was well aware of this kind of common law fraud went on to find investment advisers to be fiduciaries, and scalping to violate the duty of an adviser to its clients: "The high standards of business morality exacted by our laws regulating the securities industry do not permit an investment adviser to trade on the market effect of his own recommendations without fully and fairly revealing his personal interests in these recommendations to his clients."

The SEC announced on October 4^th its settlement of a complaint in the Northern District of Georgia against Mark J. Melnick (a self-described "Director of Trading Psychology" and host of a webcast) alleging Melnick traded on over...