It is hard to disagree with Frankel's conclusion that "...the line that defines fraudulent and perfectly legal interactions between CDO sponsors and investors is blurrier than it should be."
Goldman Sachs and the sophisticated investor: Who's duping whom?
By Alison Frankel - On the Case (Thomas Reuters News & Insight)
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But in an interview Sunday night with Anderson Cooper on "60 Minutes," Smith caught my attention when he echoed an accusation that's become a meme of financial crisis litigation: Goldman abused the trust of unsuspecting clients when it offloaded its exposure to mortgage-backed securities via complex financial instruments. "These are very complicated derivative securities which (it) takes a PhD in physics or in engineering to understand," Smith told Cooper, according to a transcript. "There are pension funds and mutual funds that represent people's 401(k)s and retirement savings that are trading the most complex instruments out there without fully understanding them," he said. "Getting an unsophisticated client was the golden prize. The quickest way to make money on Wall Street is to take the most sophisticated product and try to sell it to the least sophisticated client."
In the law, as you know, an investor's sophistication is not an incidental question. Courts expect that so-called sophisticated investors engage in their own due diligence and don't rely entirely on what sellers tell them. Sophisticated investors have a higher bar for claims of fraud and negligent misrepresentation than ordinary people who buy and sell securities. So, as a matter of law, were the Goldman clients that bought the toxic CDOs Smith mentioned really unsophisticated? Or just less sophisticated than Goldman Sachs?
Read the piece here