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UBS Lehman Brothers Securities Fraud

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New York, NYRecently, a $2.2 Million arbitration award was issued against UBS in a case involving Lehman "Principal Protected" Notes - the latest in a series of pro-investor rulings against UBS in cases involving Lehman Brothers "Principal Protected" Notes.

The award in the case, Motamed v. UBS Financial Services, Inc., FINRA Case No. 09-02087, was issued in December by a three-person FINRA arbitration panel in Philadelphia. The case represents reportedly the seventh consecutive win by claimant investors in cases against UBS arising out of the so-called "Principal Protected" securities.

"Principal Protected" Notes, created by the now-defunct brokerage firm Lehman Brothers, are essentially financial instruments that combine derivatives with fixed income and/or equities, resulting in a product that was supposed to provide the safety of fixed income with the upside of the stock market. At least that is how these products were reportedly pitched to some investors by UBS. Not included in the sales pitch was that fact that Lehman Brothers itself was the sole guarantor of the so-called principal protection.

These structured notes were reportedly marketed to conservative investors seeking preservation of capital, a reasonable yield and the potential for a modest gain in principal. In reality, these types of investments were being used by Lehman Brothers, and other brokerage firms, to help finance their near-term operational shortfalls. In fact, many clients were reportedly never even informed that these were Lehman Brothers products in the first place.

In some instances, it was not even apparent from customers' monthly statements that they owned a Lehman Brothers product, as the products were often listed simply as "LB 100% PPN." Now that Lehman Brothers is in bankruptcy, it appears that these supposedly "Principal Protected" Notes have little or no remaining value.

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What UBS did in the US, Credit Suisse practiced in Switzerland. It is estimated that Credit Suisse sold principal-protected Lehman notes worth about 700 million Swiss Francs in Switzerland alone. The clients were mostly small investors with little or no experience in capital markets. Just as UBS, Credit Suisse failed to inform the customers about the true nature of these products.

Just look at the factsheet of a Lehman note sold be Credit Suisse. In the section entitled “risks” you will find neither “Lehman” nor “creditworthiness of the issuer” nor anything similar. Instead – throughout the whole document – you will encounter five times the promise “principal protected” – but not a single time in conjunction with Lehman, at least not explicitly.

What in my view proves the accusation of deception is the fact that in a sales brochure issued by Credit Suisse, these opportunity notes carry the risk label “low” (page 15 of the brochure entitled “Anlegen und Vorsorgen”), whereas in the disclaimer of such a note, there is talk of “high” risks. It is obvious that one text was written by marketing people and the other by legal staff and that Credit Suisse failed to reconcile the two.

The version the relationship managers stuck to is of course the first one, as you could see from the e-mail sent by my relationship manager. He recommends the Lehman note as an alternative to a fixed deposit and claims that it is FULLY principal-protected (capital letters by Credit Suisse). No mention of Lehman, issuer or issuer risk.

In the mean-time, Credit Suisse was forced to buy back about 150 Mio. Swiss Francs worth of these notes – not by our financial market supervisory authority, which is totally useless, but by public pressure. This is of course barely more than 20% of what Credit Suisse had sold.

At the end of February 2010, Credit Suisse was still advertising structured products on its website with the slogan “Protect your portfolio against unexpected risks with structured derivatives.” The Opportunity Note that was then presented featured repeated emphasis on one-hundred-percent capital protection without a single mention of issuer risk. The Opportunity Note was then awarded a lovely “low” risk value. However, one look at the fine-print disclaimer of such an Opportunity Note would immediately reveal the phrase “These investment products are complex structured derivatives and involve a high degree of risk.” Depending on whether the print is large or small, the risk ranges from low to high; sometimes the Opportunity Note protects against unexpected risks, sometimes it involves a high degree of risk in itself.

Even the brochure “Special Risks in Securities Trading” by the Swiss Bankers Association – a brochure which is sent to the customers when they open up a depot, i.e. years before they may actually buy a principal-protected product or, depending on the circumstances, also afterwards – even this brochure fails to explain the relationship between issuer risk and principal protection. As a matter of fact, this brochure even cements what principal protection means to the layman anyway:

“What is the maximum possible loss?

The maximum possible loss for the buyer of a structured product with capital protection is the difference between the purchase price and the amount of the capital protection.”

Special Risks in Securities Trading, Swiss Bankers Association, Edition 2001 (in use until 2008), p. 14

Let’s hope that justice will one day prevail in both the US and Switzerland.

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