Cases & Investigations

UltraShort Financials ProShares Fund Lawsuit

COURT: United States District Court for the Southern District of New York

Berger Montague filed a class action lawsuit on September 25, 2009 in the United States District Court for the Southern District of New York, on behalf of all persons who purchased or otherwise acquired shares in the UltraShort Financials ProShares Fund (the “SKF Fund”), an exchange-traded fund (“ETF”) offered by ProShares Trust (“ProShares”), pursuant or traceable to ProShares’ false and misleading Registration Statement, Prospectus, and Statements of Additional Information (collectively, the “Registration Statement”) issued in connection with the SKF Fund’s shares (the “Class”). The Class is seeking to pursue remedies under Sections 11 and 15 of the Securities Act of 1933 (the “Securities Act”).

The complaint names ProShares, ProShares Advisors LLC, SEI Investments Distribution Co., Michael L. Sapir, Louis M. Mayberg, Russell S. Reynolds, III, Michael Wachs, and Simon D. Collier, as defendants (collectively, “Defendants”). ProShares sell its UltraShort ETFs like the SKF Fund, as “simple” directional pays. As marketed by ProShares, UltraShort ETFs are designed to go up when markets go down. The SKF Fund seeks investment results that correspond to twice the inverse (-200%) daily performance of the Dow Jones U.S. Financials Index (“DJFI”), which measures the performance of the financial services industry of the U.S. equity market.

The complaint alleges that, although ProShares represents that the SKF Fund delivers double the inverse return of the DJFI, the Fund is defective as a directional play or a hedge. For example, from September 15, 2008 through October 31, 2008, which was a period of extreme financial tumult in the U.S. financials markets, the DJFI fell 17.37%. The SKF Fund should have appreciated by 34.74%, according to Defendants’ representations, but it actually fell 5.98% during this period. Therefore, SKF performed nearly the opposite of how it was represented and marketed.

The complaint alleges the Defendants violated the Securities Act by failing to disclose that the SKF Fund is altogether defective as a directional investment play and fails to perform anywhere near investors’ reasonable expectations. Defendants failed to disclose the following risks in the Registration Statement: (i) the mathematical probability that SKF’s performance will fail to track the performance of the DJFI over any period longer than a single trading day; (ii) that greater volatility experienced by the DJFI will result in SKF underperforming the DJFI by a material amount; (iii) that SKF is not a directional play on the performance of financial stocks, but instead is dependent on the volatility and path the DJFI takes over any time period greater than a single day;  (iv) that SKF was not a simple investment that could be used over time to hedge against a downturn in financial stocks;  and (v) that based upon the mathematics of compounding and the volatility of the DJFI, SKF was highly unlikely to achieve its stated investment objectives over time periods longer than a single trading day.

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