Trace Schmeltz

Securities

• Assisted an outside director client in obtaining the complete dismissal of a securities fraud class action involving a company formed through a so-called Chinese reverse merger. The court granted the client’s motion to dismiss and, although the plaintiffs were given leave to amend, they dropped the case altogether.
• Advised and represented boards of directors in pursuing and defending against hostile efforts by activist shareholders and companies to take over corporate ownership and/or control. Trace applied his knowledge of state and federal and securities and corporate governance laws to protect his clients’ interests.
• Represented hedge fund and private equity investors with their successful attempts to obtain recovery for misstatements or omissions in offering documents. Trace also has advised hedge funds seeking to bring affirmative claims under the securities laws for false statement and omissions made to the funds themselves.
• Involved in securities fraud cases arising from the collapse of the telecommunications industry, auction rate securities, missed earnings projections, restatements, allegations of fraudulent business models and the failure to meet Wall Street’s expectations. Such cases are rarely tried; however, Trace has handled class certification, discovery and summary judgment briefing in some of the largest class actions brought to date.
• Performed internal investigations into potential liability under the securities laws, including investigations into potential insider trading, accounting errors and violations of anti-corruption laws, including of the Foreign Corrupt Practices Act.

Commodities

• Represented commodity customers, commodity pool operators involving brokers, commodity trading advisors and futures commission merchants in addressing the market disruption caused by the collapse of MF Global and PFG Best. In these matters, Trace obtained one hundred percent recovery for individuals with extensive metals holdings.
• Litigated a host of issues related to commodity trading involving non-compete agreements, the alleged theft of trade secrets, and a variety of issues surrounding incomplete or failed delivery on physical commodity contracts. Trace has also arbitrated under the rules of the National Futures Association and the ICE Futures Exchange.
• Regularly represents commodity trading advisors, commodity pool operators, futures commission merchants and swap dealers in enforcement actions brought by, and compliance advisory work related to the rules of, the National Futures Association, the CME Group, and the Commodity Futures Trading Commission.
• Represented a commodity trading advisor in an arbitration under ICE Futures US Inc. Cocoa Rules regarding a trade involving allegedly non-compliant physical settlement. 
• Served as a director on the advisory board for a hedge fund and related entities specializing in futures.

Investigations and Enforcement Actions

• Day-to-day responsibility for managing over 50 government investigations at Enron Corp. after its collapse. His work included responding to subpoenas, factual development, witness interviews, providing advice to business units as to how to respond to government inquiries, and coordinating the company’s efforts to cooperate with the Department of Justice and the Federal Bureau of Investigations.
• Involved in several investigations brought by the SEC pertaining to alleged trading by a corporate insider or tipee on purportedly material, non-public information. Trace has worked with economists and other experts to demonstrate the lack of materiality of such information or to develop facts demonstrating that the information was publicly available.
• Worked with the Securities and Exchange Commission and the United States Attorney’s Office for the Southern District of New York to investigate and identify individuals who should be targeted for prosecution or enforcement actions. Trace performed this work on behalf of a court-appointed receiver in a case involving a private equity real estate firm that was operated as a Ponzi-like scheme. Trace’s efforts included factual development and analysis, deposing individuals with the SEC, and pursuing affirmative claims for the receiver.
• Regularly retained by individuals who may have been involved with companies deemed by the SEC or CFTC to be operating in a fraudulent or improper manner. Trace has assisted such clients in ascertaining defenses to both liability and, where applicable, disgorgement of funds obtained in connection with the allegedly fraudulent enterprise.
• Helped companies ensure compliance with the Foreign Corrupt Practices Act, including assisting them in investigating possible violations and successfully formulating strategy for avoiding liability with either the Department of Justice or the Securities and Exchange Commission.

Merger and Acquisition Litigation 

• IBP, Inc. v. Tyson Foods, Inc., one of the seminal cases considering the impact of an alleged material adverse change on a company’s obligation to close a merger.
• UBS Securities LLC and UBS Loan Finance LLC v. The Finish Line, Inc. and Genesco Inc. In that case, The Finish Line was able to successfully terminate its merger agreement with Genesco, Inc. on favorable terms. The Finish Line’s stock price rose 52 percent on the announcement of the deal’s termination. The news media widely covered the case, including in The New York Times' popular DealBook blog, which called The Finish Line's legal theories in the case “a clever piece of work.”
• Advised and represented boards of directors in pursuing and defending against hostile efforts by activist shareholders and companies to take over corporate ownership and/or control. Trace applied his knowledge of state and federal and securities and corporate governance laws to protect his clients’ interests.
• Regularly handles post-closing litigation. Trace advises companies with purchase price adjustment claims, disputes over earnouts, and claims for indemnification based on breaches of representations and warranties. He often consults on drafting dispute resolution clauses in acquisition agreements as well.

White Collar and Fiduciary Defense

• Represented the owner of an investment management firm in fraud and breach of fiduciary claims arising from the collapse of hedge funds it was managing that invested funds in Tom Petters’ Ponzi scheme. These actions included an investigation and enforcement action brought by the Securities and Exchange Commission and a criminal complaint filed by the United States Attorney’s Office. Trace’s client received a 72-month sentence, although he faced potentially 20 years under the applicable sentencing guidelines.
• Tried cases before the SEC and in state and federal court involving civil and criminal fraud allegations. Notably, Trace assisted the owners and directors of a private company, who were alleged to have breached fiduciary duties to minority shareholders of the company to obtain a complete victory at trial. Trace has also represented bank officers in parallel civil and criminal fraud proceedings.
• Represented corporate officers facing potential liability for alleged fraud in actions brought by the government and private plaintiffs. Trace represented the corporate officers in claims of alleged waste, insider trading and securities fraud.

Bankruptcies and Receiverships

Trace has handled complex litigation, investigations, claims management and debtor and creditor representation arising from bankruptcies and receiverships. He managed the investigation into the collapse of Wextrust Capital and its affiliates, including Wextrust Commodity Managers, LLC, and handled litigation related to the claims process in the resulting receivership. He assisted the receiver in developing an understanding of the risks, outflows, trading and real estate for AlphaMetrix, LLC, after a receivership was imposed on that entity, as well.  Finally, he prosecuted and defended fraudulent transfer claims arising out of the bankruptcies of such companies as Global Crossing and Washington Group.