Forced to shutter its U.S. unit last November, once popular online trading exchange company Intrade ceased all of its operations this week amid an investigation into its business practices.
The latest development comes a little more than a year after Winston & Strawn, which had been representing Intrade in the U.S., cut ties with the company, which allowed users to place bets on such non-sporting events as the rise and fall of financial markets, the weather, Academy Award winners, U.S. Supreme Court decisions, presidential elections, and even the selection of a new pope.
Despite Intrade’s popularity in this country, U.S. regulators had long had the self-styled "prediction market" in their sights. The Commodity Futures Trading Commission fined the company $150,000 in 2005 in order to settle charges that it had solicited bets from U.S. users on banned option contracts for gold, oil, and currencies like the euro and yen.
The CFTC, which regulates futures and options markets, renewed its pursuit of Intrade last year, filing a civil complaint against the company and its Dublin-based parent Trade Exchange Network Limited. In the complaint the agency accuses both entities of essentially running an unregulated futures market by allowing bets on off-exchange options trading in commodities like gold and oil, as well as data on the U.S. unemployment rate and gross domestic product, which the regulator claims violated provisions of the 2005 settlement.
Intrade responded by asking its U.S. customers to close their accounts and also took steps to close its website to U.S. users.
Filed in federal court in Washington, D.C., on November 26, the 22-page CFTC complaint notes that Winston partner Michael Philipp had been acting as Intrade’s outside legal counsel in the U.S. since representing the company in connection with the 2005 settlement.
The complaint states that it began making inquiries with the company about its compliance with the 2005 order beginning in December 2011. The CFTC states that as part of that process it contacted Philipp—a former in-house lawyer with the Chicago Mercantile Exchange—to request "documents and information relevant" to its inquiry.
The CFTC claims that the materials it received in response to that request proved that Intrade had violated the 2005 accord. The agency’s complaint also notes that on "February 2, 2012, Mr. Philipp left the law firm with which he had been affiliated during his representation of [Intrade], Winston & Strawn, LLP, and at the same time withdrew as counsel" for the company.
Winston itself informed the CFTC on February 16, 2012, that it would no longer be representing Intrade, which never provided the regulator with contact information for its new counsel as called for under the the 2005 settlement, according to the CFTC’s civil complaint. (A Winston spokeswoman did not respond to a request for comment about the firm’s work on behalf of Intrade.)
Philipp, meanwhile, soon found a new professional home at Morgan, Lewis & Bockius, which announced in a press release issued on February 6, 2012, that the former Winston lawyer had joined the firm as a partner in its financial services, investment management, and securities industry practice in Chicago.
Philipp declined a request for comment about his role representing Intrade Wednesday when contacted by The Am Law Daily via email at Morgan Lewis. While at the firm last year, Philipp was part of a team that advised Penson Financial Services on the $5 million sale of its futures unit to Knight Capital Group, according to sibling publication the New Jersey Law Journal.
Before joining Winston in July 2005, Philipp spent the previous decade as a partner with Katten Muchin Rosenman in Chicago, according to his profile on LinkedIn, a social networking site for professionals.
While no defense lawyers are listed in the court docket as currently representing Intrade in connection with the CFTC complaint, the Financial Times reported in a February story about the steep drop in the company’s business following the closure of its U.S. operations that Morgan Lewis litigation associate Mark Sherer in Washington, D.C., had appeared on the company’s behalf in federal court.
Sherer did not respond to a request for comment on whether Morgan Lewis is currently representing Intrade, nor did two media representatives for the firm.
An email sent to Intrade’s Dublin offices also failed to yield an immediate response. A similar request sent to Hugh Garvey, a litigator and managing partner of leading Irish firm LK Shields, which has previously handled work for Intrade in Ireland, also went unreturned.
Intrade itself announced in a brief statement on its website Monday that it would freeze all customer accounts and stop exchange and banking operations pending a probe into potential financial irregularities at the company. Intrade suffered a big blow in May 2011 when its founder—Irish accountant and entrepreneur John Delaney—died while trying to climb Mount Everest. (Delaney succumbed after falling ill just 50 yards from the summit. An expeditionary team was unable to retrieve his body, leaving his remains atop the world’s highest peak.)
Delaney, who founded Intrade in 1999, reportedly received payments of $1.2 million in 2010 and $1.4 million in 2011 that could have hastened the company’s demise, according to the FT, which obtained a copy of an audited company financial statement for 2011 that shows Intrade losing $1.6 million that year.
"The directors have also noted that they are aware of issues identified during the course of the audit with regard to significant irregularities in the internal accounts pertaining to previous years that had a material effect on the opening balances of the company at January 1, 2011," reported the FT, citing the report by an auditor at Dublin-based Caulfield Dunne.
A spokesman for the CFTC, which in a press release last year said it was seeking a permanent injunction against Intrade along with the disgorgement of ill-gotten gains from illicit bets, did not respond to a request for comment on the matter. Nor did CFTC chief trial attorney Kathleen Banar and senior trial attorney David Slovick in Washington, D.C., both of whom are assigned to the agency’s case against Intrade.
The CFTC’s legal department is in the midst of a change at the top, with general counsel Dan Berkovitz announcing his retirement last week, according to sibling publication The National Law Journal, which also reported last year on the regulator’s efforts to revamp its approach to enforcement with an eye toward becoming more aggressive.