Andrew Feldman

[MANTIS01]

@Newy - thanks for the kind words I appriciate it, unfortunately Ive been too drunk for too long out here to blog properly however I've been up to a couple of adventures recently so I will be updating soon! prolly in the next 12 hours!!

Good post you've made, and really interesting (loved the bit at the end ) the thing is, which you might not appriciate is that the games are all started by the regs, what I didn't say in my previous post is I actually really like the bits when its 3 regs short-handed trying to get a good game, I dont get much HU action and like short-handed play a ton more plus I have played so much with most of the regs we get into all sorts of silly hilarious spots trying to fuck each other - obviously this isn't great as you're not going to make that much money going ballistic 3handed vs good players. The reason I justify it is because I'll get into better games shortly. Along comes Feldman, he sits himself down, snap sits out so now our 4handed game is 5handed with a dead seat, leaving less room for other people to sit and he doesn't take any of the financial hit we do to start the game, it's really unfair that he gets to profit of us making the games better for him. So my concerns are less for the recreational player and more for myself - luckily though I'm not a dick + I #lovethegame myself so I wanna see everyone having fun, win or lose. Good to hear two sides of this argument though, and gl

Feldman isn't the only one, nor is he even prolly the worst fwiw.

@jack2off - It's pretty obvious you've not read any of my posts so debating with you when i'll have to repeat myself is pretty pointless on my behalf. One question though, how much of his £4m he "won" would he have won if EVERY reg online did what he did and acted like he acted?

The multi-accounting collusion point is ofc correct I could prolly name you 50 but it's not really relevant in any way to the discussion, may as well tell me that you know 13 Vets who put animals down that could have been saved.

Jealousy is ofc rife everywhere, I'm certainly bitter about the fact that whereas I and others do the "right thing" at small expense to ensure the longevity of internet poker, others dont give a fuck and just leach of us, but I don't really care anymore plenty of scummy stuff goes on in every industry but it's slightly annoying when people come on and say "well he's just cleverer than you" when what he actually does is steal from me on a daily basis. - This isn't referring to Feldman, just people who are like him in general.

If you actually really like the bits when it's 3-handed then the financial hit you take is the price you're paying for that silly hilarious fun you're having. If another guy doesn't enjoy those spots at all then why would he be as willing to take the same financial hit as you when you would be enjoying yourself and he would not be?

You said you wouldn't bumhunt because it's not how you want to behave, I agree, almost everybody else would feel likewise. So the point you make that if everybody behaved this way there WOULD BE NO GAMES doesn't carry much weight because the vast majority of people just wouldn't behave that way anyway. It's like saying if everybody was Christian there would be no Muslims. That's true enough but it's never likely to happen.

"My concerns are less for the recreational player and more for myself" are prob the same sentiments this kid has.

I can appreciate his behaviour is annoying like a fly buzzing around your head but meh I don't know why is causes emotions like hatred.

[SuuPRlim]

I dont hate Feldman at all, i find his professional behavior quite irritating but there are actually worse people than him (although not many) also I think his off the table antics are really poor as well but I don't really care - I was just explaining to you all WHY his online actions are hated by so many people, and trying to respond to the "well what's wrong with bumhunting surely it's clever" side of the argument.

The bit about me enjoying the 3handed business I know 100% you understand the point I've made and you're just up to your usual antics (or MANTIC's as I call them) that's how it is for me cos I like playing all the time no matter who I'm playing so I dont really care - not the case for everyone though and it's still annoying for me, but I'm too busy flopping wraps and going all in to really be bothered

[smashedagain]

Are these people who are asking for stacking at a mark up in ridic soft tourneys doubly bad in your book Dave.

1. They are choosing to play against these soft players
2. They are charging in excess of their worth

Effectively bum hunting and grimming in one swoop

[SuuPRlim]

Are these people who are asking for stacking at a mark up in ridic soft tourneys doubly bad in your book Dave.

1. They are choosing to play against these soft players
2. They are charging in excess of their worth

Effectively bum hunting and grimming in one swoop

what the hell Jason, that doesn't even make sense! People who sell %'s of themselves in soft comps at mark-up compared to people damaging online games and cramping the action, it's like not even remotely the same! I don't have any hatred or real ill-feeling towards Feldman or bumhunters at all btw, I just dont like the behavior and was explaining why people are annoyed by them...

In fact...I have now idea how you've even got to this comparison lol... very odd!

you are odd though aren't you... <3

[I KNOW IT]

But did he play the WSOP Ladies event?

[smashedagain]

Are these people who are asking for stacking at a mark up in ridic soft tourneys doubly bad in your book Dave.

1. They are choosing to play against these soft players
2. They are charging in excess of their worth

Effectively bum hunting and grimming in one swoop

what the hell Jason, that doesn't even make sense! People who sell %'s of themselves in soft comps at mark-up compared to people damaging online games and cramping the action, it's like not even remotely the same! I don't have any hatred or real ill-feeling towards Feldman or bumhunters at all btw, I just dont like the behavior and was explaining why people are annoyed by them...

In fact...I have now idea how you've even got to this comparison lol... very odd!

you are odd though aren't you... <3

Bit drunk. 4th July my wedding anniversary. Trying to drown my sorrows

[I KNOW IT]

Are these people who are asking for stacking at a mark up in ridic soft tourneys doubly bad in your book Dave.

1. They are choosing to play against these soft players
2. They are charging in excess of their worth

Effectively bum hunting and grimming in one swoop

what the hell Jason, that doesn't even make sense! People who sell %'s of themselves in soft comps at mark-up compared to people damaging online games and cramping the action, it's like not even remotely the same! I don't have any hatred or real ill-feeling towards Feldman or bumhunters at all btw, I just dont like the behavior and was explaining why people are annoyed by them...

In fact...I have now idea how you've even got to this comparison lol... very odd!

you are odd though aren't you... <3

Bit drunk. 4th July my wedding anniversary. Trying to drown my sorrows

A little ironic you got married on Independence Day

[smashedagain]

Are these people who are asking for stacking at a mark up in ridic soft tourneys doubly bad in your book Dave.

1. They are choosing to play against these soft players
2. They are charging in excess of their worth

Effectively bum hunting and grimming in one swoop

what the hell Jason, that doesn't even make sense! People who sell %'s of themselves in soft comps at mark-up compared to people damaging online games and cramping the action, it's like not even remotely the same! I don't have any hatred or real ill-feeling towards Feldman or bumhunters at all btw, I just dont like the behavior and was explaining why people are annoyed by them...

In fact...I have now idea how you've even got to this comparison lol... very odd!

you are odd though aren't you... <3

Bit drunk. 4th July my wedding anniversary. Trying to drown my sorrows

A little ironic you got married on Independence Day

Yeah Americans get theirs, I lose mine. Double lot of fireworks on my wedding night at the palms place

[SuuPRlim]

Jake Cody day as it's also known

[tikay]

THE number one rule in poker is not to upset the fish. theyre the value. if you do upset the fish. come find me. ill be your value.

Its more fun upsetting the regs by not giving them any action and bum hunting the fish from them. 

haha Woodsey on top from as per.

I wanna try quit the word Fish from poker vocab.

It's like good & bad drivers, Dave. WE are all good, & THEY are all bad.

One day soon the first ever "fish" will sign up to blonde. We'll need to mind our manners then. And even, Heaven forbid, show them a touch of respect.

[I KNOW IT]

THE number one rule in poker is not to upset the fish. theyre the value. if you do upset the fish. come find me. ill be your value.

Its more fun upsetting the regs by not giving them any action and bum hunting the fish from them. 

haha Woodsey on top from as per.

I wanna try quit the word Fish from poker vocab.

It's like good & bad drivers, Dave. WE are all good, & THEY are all bad.

One day soon the first ever "fish" will sign up to blonde. We'll need to mind our manners then. And even, Heaven forbid, show them a touch of respect.

Don't talk to me about driving, I have been in India for over 3 years

[david3103]

THE number one rule in poker is not to upset the fish. theyre the value. if you do upset the fish. come find me. ill be your value.

Its more fun upsetting the regs by not giving them any action and bum hunting the fish from them. 

haha Woodsey on top from as per.

I wanna try quit the word Fish from poker vocab.

It's like good & bad drivers, Dave. WE are all good, & THEY are all bad.

One day soon the first ever "fish" will sign up to blonde. We'll need to mind our manners then. And even, Heaven forbid, show them a touch of respect.

[Doobs]

BUMP

This is the transcript of the Feldman/Zimbler case.  I won't add anything other than to say it isn't Feldman that looks bad here.

=====

JUDGE MACKIE: Now that closing submissions have concluded, I am going to give judgment on the spot in the slightly inconvenient circumstances of 30th November with industrial action and the effect that that has had upon the organisation of the court. For that reason I reserve the right to correct any transcript to ensure that it records, as it were, not only what I say but also what I mean to say.



J U D G M E N T



JUDGE MACKIE:



1. In this case the claimant, Mr Feldman (a professional poker player) gave £50,000 to the first defendant, Mr Zimbler, as part of an arrangement, the terms of which are in dispute. With the involvement of the second defendant, the first defendant lost all £50,000 in a few days of spread betting. The claimant wants his money back, or at least part of it, bringing claims principally in contract and under the Financial Services and Markets Act. The first defendant denies that the effect of the arrangement obliged him to pay anything back. The claim against the second defendant, a Mr Glassman, is based on a liability under FSMA. Mr Glassman denies that his role was one which could come within the provisions of the Act.



2. This action was begun in the Willesden County Court and is for what, in terms of this court, is a small amount of money. It was transferred here from the County Court, I understand, because of a concern that it might involve technical matters of spread betting. The claimant has been represented by Mr Oliver and the two defendants by Mr Holmes-Milner. One feature of this case has been the considerable ability with which both counsel have cross-examined the witnesses and have dealt ably, but succinctly, with the relevant legal issues.



3. The court has two bundles of documents. I heard live evidence from the three parties and from Mr Quereshi, a friend of both defendants, who received a cheque from Mr Zimbler in circumstances to which I will refer.



4. As in so many cases, many of the central facts are either agreed or not much in dispute. Mr Feldman was just 21 in the autumn and winter of 2008 when the events in issue took place. Mr Zimbler is a man in his early thirties. Both are professional poker players, although I think Mr Zimbler would concede that Mr Feldman is, further up the ability pecking order than Mr Zimbler. Mr Glassman, the second defendant, is a close friend of the first defendant, Mr Zimbler, having known him since he was at school. Mr Glassman is about 40 and has a wide experience of business life, having run many businesses, and these are listed in his witness statement. Much of the working and investment life of the defendants, and to some extent the claimant, has been conducted informally and arises out of, and to some extent depends upon, friendships between themselves. This is a world where debts are incurred and paid in and around casinos, without a paper trail being created. Transactions take place which are informal, imprecise and not put into writing. There is nothing wrong with that, but informality creates difficulties when there is resort to law. Inevitably, in business matters that are at all complex, and with events that occurred some three years ago, the documents are very important; not only do they jog memories but they also enable the court to seek to resolve differing recollections.



5. Mr Feldman left school on his eighteenth birthday and since then he has been a very successful poker player in clubs, online and at competitions, often in far away places like Las Vegas. Mr Feldman when giving evidence seemed to me an intelligent and articulate man, but one whose exposure to a wider business world and to a broader community than professional poker playing has been very limited. In 2007, Mr Feldman and Mr Zimbler met in a poker context and became friendly. Mr Feldman saw the friendship as being a closer one than did Mr Zimbler. Mr Feldman was short of opportunities to make friends in his pressured environment, Mr Zimbler, an older person with a much more varied working background, less so. The two kept in touch, often through social messaging media. Mr Feldman's success, as I say, was considerable. It seems that by the middle of 2008 he had accumulated some £4 million. Mr Feldman had become involved in spread betting, despite his youth, as a result of developing a friendship with a much older man (a rabbi) in the context of community activities. Spread betting was engaged in and the man concerned, Mr Nissim, and Mr Feldman fell out. There was a dispute. Mr Nissim served a bankruptcy notice and Mr Feldman failed to have it set aside, both at first instance and on appeal. One might at that point have thought that Mr Feldman had had enough of spread betting, but it was not to be.



6. The case involving Mr Nissim incurred Mr Feldman in losses of the order of £140,000, plus, presumably, legal costs, and in other ways 2008 was not proving to be a good year; it seems that he lost some £700,000/£800,000 playing online poker. By the autumn of 2008 he was in some difficulties and he was consulting Mr Zimbler, when they were in contact about how he was to deal with the problems facing him. However, things had not been going well for Mr Zimbler, either.



7. Mr Zimbler left school when he was 16 and got involved in various forms of selling and, in particular, estate agency, and moved to Spain. He also developed expertise in poker playing and started travelling the world making money doing that. However, as I say, things did not go well in 2008. He puts it as follows:



"In 2008, I took my annual trip to Vegas for the WSAP [that is a world poker tournament]. For me, it ended in disaster; I incurred heavy losses playing roulette and blackjack. I came back to the UK without any money. I worked for my friends, Mark Glassman [the second defendant] and Taj Rata, in their sushi business for a few weeks until I got on my feet. They leant me a car to drive around in."



8. Mr Zimbler also, in and around September 2008, started doing, spread betting himself on a small scale. In the course of his evidence, he appeared to back off to some extent from the suggestion that he was in serious financial difficulties by remembering that he had £15,000 or £20,000 in cash. I was not much convinced by that, coming, as it did, quite late in his cross-examination. It is clear, both from his cross-examination and also from the understandable concern shown by his friends, Mr Glassman and, to some extent, Mr Feldman, that he was, indeed, in serious financial difficulties at that point. It was around about that time that a meeting took place, about which there are somewhat different accounts.



9. Mr Feldman says that the first time he became involved in talking about spread betting with Mr Zimbler was outside the Borehamwood poker club in October 2008. He says that he was then invited to meet Mr Zimbler's friend, Mark Glassman, whom he claimed was experienced in spread betting and who could make big money. Mr Feldman says that:



"Paul stressed that it would be best to meet Mr Glassman quickly as the markets were volatile and a lot of money could be made through the markets because of the impending American Presidential elections."



10. He said that he was taken to meet Mr Glassman at a restaurant in East Finchley in November and that Mr Glassman advised that a good sum to invest would be £50,000 to £100,000. He said that he was then later taken to Mr Glassman's offices which were nearby and there he met a colleague of Mr Glassman's and was given a demonstration how spread betting worked.

11. Mr Zimbler put it slightly differently. He said that, he and Mr Feldman have kept in touch. In October 2008 Mr Feldman approached him for help. He did so as a friend. "He wanted to recoup his recent losses and asked me to do some spread betting on a joint venture basis. He told me he was looking to double his stake. He knew that I had a friend, Mr Glassman, who was more experienced than me in the field who he wanted to involve." He said that he set up a meeting with the three of them and they met, first, at Mr Glassman's office. He said that Mr Glassman did not invite Mr Feldman back. He said that Mr Glassman made it clear to Mr Feldman at the meeting that he would not place any trades without being in funds.



12. Mr Glassman said that he agreed to join Mr Feldman and Mr Zimbler to discuss a proposed spread betting venture between the other two parties. They met at lunch, and:



"Over lunch and after initial small talk, the others were keen to discuss their spread betting venture. We discussed the types of spread bets I placed and possible profits and losses. I recall he said he wanted to double his money. I explained to him that spread betting was very risky, particularly if the intention was to seek large returns quickly because this would require taking greater risks. I emphasized the risks and told him that I had recently lost a lot of money spread betting and that my IG Index account was over £30,000 overdrawn as a consequence."



13. It is unsurprising that witnesses (even wholly candid and honest witnesses) should have differences of recollection about what happened.



14. Events after that are, in some respects, clearer because they are recorded (to some extent) in contemporaneous emails. The first of those was an email from Mr Zimbler to the claimant on 16th November and, as it is significant, I will read it out:



"Andrew, hope you're having fun in Miami and that your other evening went well. Re investing. We have spoken about the Dow, and now also no interest in the currency. The USD is getting stronger by the day, by some 250 points average over the last two weeks against the GBP and also the Euro. This is an interesting market to make some money in over the next few weeks, even months. The Dow also. It was down to 8200 and went up to 9200 like we predicted and then, as we also thought, would drop back to around 8000 before climbing again. It's around 8350 when I looked on Friday, so now is a perfect time to get into that. Finances. All I can tell you is that if I had money I'd be investing what I could. Saying that, I know you've had a bad experience with investing already, and still not sure how you lost money at that time if your friend, like you said, has been doing this for a while, anyway. I'm going to put in some money myself to share the risk as I want to make money. On your side, I would suggest whatever makes you comfortable."



15. It seems common ground that Mr Zimbler did not, in fact, have money himself to share that risk.



"100K would be an ideal amount. 50K would be OK, too, as, if it was 100, would prob not even use more than 50, unless all was really bad, and at that point you could also choose to stop, as I will give you daily updates. I think you know me well enough that I am not a scam artist or looking to rob you. I want to make some money and, with a bank roll, like, if anything, not only do you have a better chance, you can also make a lot more. I will be starting small, at like a hundred a point. No need to go higher. If it moves in right direction, you can buy more and also to limit the risk element. Saying that, I'm happy to share profits, however you see fit. I do not think it's something I can just tell you; you're input is also needed. I would suggest, like we spoke about before, that once we make X amount, like double our stakes, we take out our original stakes so there is no risk and keep taking money out as we are making it. This could be weekly. Then we can share the profits out and use the profits to trade with ..."



with multiple exclamation marks.



"I'm happy to do the work and, with help from friends who also do this and know things, make some serious money. If you want to split the profit 50/50, that is fine with me. Let me know your thoughts. Remember, this is not just on your investment; I, too, am going to put some money in, 15 to 25K. If you want to just use your money, you could and should have a bigger share, but I'm happy to take risk also."

[Doobs]

16. That appears to be, at best, a hope on the part of Mr Zimbler because, although he said he thought he could borrow money from friends, it seems pretty clear that he did not have the, "15 to 25K" to spare, even if he had wanted to make it available. The email continues:



"Option 2. As I am so sure that there is a lot of money to be made, I would, if you were not interested yourself in investing, ask you if you wanted to lend me some money, for say three to six months, depending on an agreed rate, like what you get in the bank, so you do not lose out on your interest, and then I'm happy to take the risk myself."



17. That was on the 16th. On the 18th, there was an email to Mr Feldman, who at this point was on holiday on the other side of the world Mr Feldman responded:



"Can you forward me your bank details and call me when you have a chance? I've had a real problem with connection here."



18. Mr Feldman said that he was feeling pressured at this point, and that was why he sent that email. There was a further email to Mr Feldman on the 18th, in which Mr Zimbler provided those details and said how he tried to call him the previous night. He added this:



"As you know, because we've discussed it before, I'd also like our business to be kept between us. I'm more than happy for people close to you, like family, to know, but, as far as North London is concerned, I do not want people to know what we do and how much we make. Thank you."



19. There was then a Facebook communication from Mr Feldman, where he asked for the details to be forwarded on to his Hotmail, and, "Hopefully, we can start cracking soon." Mr Zimbler, on the 20th, asked Mr Feldman whether he had got an email, adding this:



"Dow closed low 8000 last night, so it is good news, but we need to act fast to get on the standard rally. It will do of 1000 to 1500 points. Please let me know ASAP what you want to do and when you have sent the dollars. Call me or email me, I do not mind, but we need to act fast."



20. On 21st November, Mr Zimbler wrote again, giving details of another account, and adding:



"If you can email me when you've done it, I'll call the bank to let me know when arrives. As we spoke about on the phone, I'm happy to give you the 70/30 split in your favour. I know you've not had a good run, but this is a good way to make some money back. Thanks."



21. In another email, on 1st December, a Monday, amongst other things, Mr Zimbler said this:



"I'm happy to pay the fee [that is a reference to a CHAPS transfer] so that we can start work immediately and not lose out on another good week. You have my account details from my last emails ..."



22. On 2nd December, following a meeting between Mr Zimbler and Mr Feldman, Mr Zimbler sent an email in which he said this: "I'm happy to pay the fee [that is a reference to a CHAPS transfer] so that we can start work immediately and not lose out on another good week. You have my account details from my last emails ..."



22. On 2nd December, following a meeting between Mr Zimbler and Mr Feldman, Mr Zimbler sent an email in which he said this:



"We should both sign it, and I'm looking forward to this and will show you many good things ..."



23. That is a reference to a document: a document which Mr Zimbler prepared to capture the meeting which he and Mr Feldman had had. This email, also, was important and so I must read it out:



"Andrew, this letter is to confirm that we met today and you transferred to me £50,000 from your Nationwide account to my Nat West account for me to use on IG Index for investing in the stock market. As you know from when we had a meeting over one month ago to the time I sent you the email you asked for, the market has moved pretty much the way I told you I thought it would. This is for me approximately a three month investment, to build up the investment to a few hundred thousand, if not more. We agreed today that I'd give you 70% on all profits made up to the initial 50K invested and I would get a 30% share of the profits for making the investments for you. Once we reach a figure where you can take your original investment out, plus profits, you'll be risk free and your initial stake will be paid back to you. From there, we can then see how you would like to proceed, as you did not want to commit to anything today. By this, I mean how we will divide profits made thereafter. As I said to you in the email on the 16 November 2008, I will mainly be trading the Dow and the US dollar as I think this is the best place to make money. This is also, in the last three weeks, since we've been talking about doing this, the place where the markets have moved the most. As you know, we would have been able to make at least 3000 points in the last few weeks, but that is the past and these volatile days will be here for a while, so we should make the most of them. Also, as we spoke about, the two ways to proceed. One, we sit and make a steady income day in and out, like sitting at the poker table grinding it out. Two, we go for the kill and the big money fast (like the way you enjoy playing PLO). I know you said it was up to me, so I will see how the markets are at the time and make a valuation each day, but my goal is to make some serious money. Thank you for this opportunity and I will show you how successful I will be.”



24. And it took only a few days to demonstrate the opposite, as we shall see. The email of 2nd December was not, of itself, a contract. That I accept. But it was the best contemporaneous evidence available of the terms of the contract between these two parties. Mr Zimbler contends that there was a later discussion at which different terms were agreed. Mr Feldman disputes that, although he suggested that there were one or two other terms - none of which seem material to the central issues here. Arriving at the meaning of a contract is, of course, a question of construction: what, looking at the words of the contract, would a reasonable person take its meaning to be? The substance of the deal between these two is, as one would have expected it to be, summarised in this document. A feature of this document is some emphasis given by Mr Zimbler on what he will do with this investment to earn money for them both. There is a pattern in the emails of Mr Zimbler seeking to sell this project to Mr Feldman which would seem to indicate that it was a project which Mr Zimbler was keen to promote and which Mr Feldman was, in the end, willing to go along with.



25. On 2nd December, Mr Feldman paid £50,000 which Mr Zimbler, and to some extent Mr Glassman, said was required as a security before any trading could be done on behalf of Mr Feldman. The £50,000 went into Mr Zimbler's account and the first thing it did was remove his £20,000 overdraft. The next day, Mr Zimbler paid just over £20,000 to Mr Glassman. Mr Zimbler and Mr Glassman say that this was pursuant to an agreement between them whereby Mr Glassman would, in effect, manage and look after £25,000 and Mr Zimbler the balance. Mr Feldman's case is that he had no idea that Mr Glassman would be involved in this, or holding Mr Feldman's money. The bank account of Mr Zimbler also shows payments to IG Index, with whom the spread betting activities were to be carried out - Mr Glassman having a credit account, Mr Zimbler having an account without credit facilities. There are also three payments of a thousand pounds, which appear to be sums of money obtained in The Sportsman's Club by Mr Zimbler, he says for the purpose of giving cash to Mr Glassman.



26. On 10th December, there was a further email sent by Mr Zimbler to Mr Feldman, which made no reference to spread betting at all, or to the losses which Mr Zimbler must then have known to have arisen. That email deals with the overhang of problems arising from Mr Feldman's dispute with Mr Nissim. There was also, during the process of trading, some telephone contact between the claimant and the first defendant. This was not substantial but they were in telephone contact during that period.



27. The trading was disastrous. The entire £50,000 was lost within a few days, £30,000 of it on the very last day. A meeting then took place between the claimant and the first defendant, at which the first defendant gave some explanation of what had happened and produced, at the least, a copy of Mr Glassman's trading balance with IG Index. However, there was no indication of how those related to the specific activities engaged in, apparently, on behalf of Mr Feldman. The trades carried out by Mr Zimbler were comparatively modest, those by Mr Glassman, particularly on the last day, much larger.



28. There was then some sporadic contact between the parties. By August 2009, Mr Feldman was becoming increasingly concerned to get full details of how he had come to lose this large sum of money in such a short period of time, and there then started a correspondence involving a solicitor, a Mr Pound, acting for Mr Feldman, seeking information from Mr Zimbler. Mr Zimbler responded to some extent by saying that the client already had information. There is reference in the correspondence to dealings also with a third party, which Mr Zimbler says is a reference to Mr Glassman. Regrettably, Mr Zimbler failed to supply information which he was obliged to supply. He should have supplied this, even if some of it had been sent before. Mr Feldman had lost a large sum of money in a small period of time and, leaving aside what might be seen as ties of friendship, as a business matter Mr Zimbler should have provided the maximum possible cooperation, instead of which he prevaricated and provided almost none. Mr Feldman's solicitor adopted a strategy for obtaining information that involved telling an untruth. While that is regrettable, it has nothing to do with the issues I have to decide in this case.



29. These matters were filled out and developed by the evidence given by the parties, and I need to return to what the different principal witnesses had to say. Mr Feldman's account of how he came to pay £50,000 is that he was, in a sense, doing this out of friendship towards Mr Zimbler, who had suffered in the ways that I have mentioned, and, indeed, it is difficult to think that Mr Feldman would have come forward to invest only £50,000 in this particular way if what he was seeking to do was to redress the enormous losses which he had sustained over the course of the summer and early autumn. However, Mr Feldman says that, on his return from holiday on 2nd December, following the emails which I have read out:



"I met Paul in Stanmore. I stressed I didn't want anyone else involved and didn't want anyone else knowing about the spread betting activities. We agreed that Paul wouldn't adopt a high risk strategy, and keep any trades at a reasonable level. I didn't discuss the exact amounts. I didn't really understand how it all worked and I completely relied upon Paul's judgment. I also agreed with Paul that I'd be able to withdraw my funds at any time. My relationship with Paul, in terms of investment opportunities, started to take a back seat to our personal friendship. I considered Paul one of my closest friends and confided in him. My relationship with my girlfriend at the time (of whom Paul was a friend) was a factor. I was very upset and I was in regular contact with Paul for this reason. Whenever I asked for an update on the spread betting, he was very vague."



He said that he became increasingly concerned over the first few days of December and that that was how the meeting on the 11th came about.



30. Mr Zimbler says that he was really only following up on an approach from Mr Feldman for help and only doing so as a friend. He says that Mr Feldman initiated the discussion. He said he had never held himself out as being in the business of financial services, and:



"Mr Feldman knew perfectly well that I was a poker player. I've never suggested I could or would manage investment funds or provide investment services. I've never carried out investment type activities for other people."

[Doobs]

31. While that last observation may be true, it is abundantly clear from the email correspondence that Mr Zimbler was holding himself out as offering a business opportunity to Mr Feldman, from which he, Mr Zimbler, in need of money stood to benefit. He refers to the meeting on 2nd December and, as I say, sets out a series of no less than six terms which he says were incorporated into the agreement during the discussion. That seems to me improbable, and for other reasons I believe it is unlikely to have been true. At most, it was a misunderstanding on the part of Mr Zimbler.



32. At this point I need to refer to the role of Mr Glassman, the second defendant. I have already referred to his account of what happened at the lunch, but picking up the story in December, he said that:



"A few weeks later I was told by Mr Zimbler that he and Mr Feldman had decided to proceed with their spread betting venture and they wanted me to assist and place spread bets for them. Mr Zimbler explained that Mr Feldman would put him in funds and, in turn, I would be put in funds so that I was able to place bets on their behalf. There was never any discussion about my becoming part of an agreement between Mr Feldman and Mr Zimbler or sharing in the profits or losses. I was happy to assist Mr Zimbler and I enjoyed spread betting and presumed that PZ would look after me if it all went well."



33. That appears to be a reference to the informal arrangements, by which the defendants were suggesting that the business activities were conducted between themselves and also amongst their friends and acquaintances. Mr Glassman says, in a statement produced on 14th November, that he received £20,000 into his bank account on 4th December from Mr Zimbler, which is clearly right He also says that he asked Mr Zimbler to pay £5,000 to Mr Shiraz Quereshi on his behalf to settle sums that were owed to him, and it is clear that Mr Zimbler did write that cheque, as I have already mentioned. He says he then credited his IG Index account with £40,000 on the same day, and that appears to be correct. He claims, as does Mr Zimbler, that the balance of money due to him was paid in cash by Mr Zimbler. He explains how he conducted the trades and, by 10th December, had made a loss of £45,740. There were, it seems, constant telephone exchanges between Mr Glassman and Mr Zimbler as the disaster unfolded. Mr Glassman presented his role, it seemed to me, accurately as spread betting being just a hobby or at least a small aspect of a whole series of wider occupations. He suggested that he did spread betting, losing £100,000 a year or so, as an expensive hobby, just as others would buy race horses and did this, at a time when his businesses were doing very well.



34. I also heard evidence from Mr Quereshi confirming that he had received the cheque and saying that it had been the payment of a debt owed to him, not by Mr Zimbler but by Mr Glassman.



35. Against that background, the claimant puts forward a claim on three different bases. First, there is a claim that the activities of Mr Zimbler and/or Mr Glassman were regulated activities within the meaning of s.2 of the Financial Services and Markets Act, in circumstances where they were neither authorised or exempt. Accordingly, it is claimed that Mr Feldman is entitled to recover his £50,000. Secondly, it is contended that Mr Glassman was not a party to the agreement between Mr Feldman and Mr Zimbler and was not authorised to trade with or gamble with Mr Feldman's funds. Any payment made by Mr Zimbler to Mr Glassman was made without Mr Feldman's authority and was an extra contractual payment. Further, any sums transferred by Mr Zimbler to Mr Glassman were paid while Mr Zimbler was acting as Mr Feldman's agent and were paid under a mistake of fact. Thirdly the Claimant submits further or alternatively that neither Mr Zimbler nor Mr Glassman have been able adequately to demonstrate that the trading losses which they claim to have made on their respective accounts are all attributable to trading for Mr Feldman. The Claimant alleges that Mr Zimbler is able to demonstrate trading losses of only £10,786.92 and could only demonstrate transferring £20,000 to Mr Glassman.



36. The defendants respond that they are not liable under the Act - I will look at that in more detail in a moment as I will first decide the contractual authority of Mr Zimbler. Counsel for the first defendant contends that, upon the proper construction and interpretation of the agreement between the parties, there was no restriction upon Mr Zimbler in involving Mr Glassman and no restriction upon the security payment of £50,000 being, as it were, split so that Mr Glassman received a chunk of Mr Feldman's money. So far as this contractual aspect of the case is concerned, the relevant facts, it seems to me, are as follows:



37. Mr Feldman is, as I say, intelligent, but had limited friendships and lived in a comparatively narrow world - in a way similar to other people who become very successful in a very specific area at a young age. This experience with Mr Nissim had not taught Mr Feldman anything about the technicalities of spread betting or made the activity in itself unattractive. He had suffered heavy, but not disastrous losses, and certainly not losses that would otherwise have impelled him to take £50,000 from his substantial cash savings. I believed his evidence that in many ways he did this as a result of pressure from an older man who was a close friend he wished to help. To a significant extent, Mr Feldman's account of events is consistent with the documents. So far as Mr Zimbler was concerned, he was in the financial hole described in his witness statement. I doubt that his position was much better than that, despite what he said in cross-examination. It is clear from the documents that he was pursuing Mr Feldman to make this investment. Mr Zimbler questions why Mr Feldman would think it worthwhile investing in someone such as himself. Yet in the correspondence Mr Zimbler repeatedly gives Mr Feldman reasons why Mr Feldman should do just that. As I say, the documents contradict in certain respects the account given by Mr Zimbler. My doubts about his veracity in some areas necessarily causes me to have reservations before accepting other aspects of his testimony.



38. I do not doubt the general truth of Mr Glassman’s evidence, although I have some reservations about his qualities of recollection. He is here as an added defendant, together with Mr Zimbler, someone with whom he has had ties of friendship since Mr Zimbler's school days. That has coloured the accuracy of his evidence.



39. I had no reason to doubt what Mr Quereshi said, although I have some reservations about the circumstances in which the details were only disclosed to the claimant so shortly before the trial.



40. It does not seem to me that I need make detailed findings about which payments by Mr Glassman were referable to his dealings with Mr Zimbler in respect of Mr Feldman, or conduct an analysis of the trading activity to see which transactions were in a sense Mr Feldman's and which were not.



41. It is clear that the contract between the parties did not permit Mr Zimbler to derogate or subcontract his responsibility to Mr Glassman or anybody else. It is of interest that in the early emails before the contract, there was reference to other "friends in the business" being involved, but there is never a word about that or Mr Glassman in the subsequent correspondence. The picture that Mr Feldman had was of a contract with Mr Zimbler and Mr Zimbler alone. Mr Feldman had no idea that his money was to be split with Mr Glassman. If he had known he would not have permitted it. The matter is clear, without needing to move into discussions about what are and what are not contracts for professional services. On that basis, Mr Zimbler had no authority to transfer any money to Mr Glassman or to delegate his role under the contract between the parties to Mr Glassman.



42. There is a claim based on mistake of fact. I do not see how such a claim could avail Mr Feldman in seeking to recover the losses of £45,000 sustained by Mr Glassman, who dealt with the money as he was expected to do.



43. Next, I turn to the claim based on the Financial Services and Markets Act. In essence, what is said on behalf of Mr Feldman is that the defendants trading was in breach of the general prohibition under s.19 of FSMA and, as a result, Mr Feldman is entitled to the return of his money under sections 26(1) or 26(2) of the Act. But for the matter that I am about to turn to, I would have had no difficulty in finding that the Act was applicable to transactions of this kind entered into in similar circumstances, but under s.22 of the Act, for an activity to be a regulated activity it must be carried on by way of business.



44. Whether or not an activity is carried on by way of business is ultimately a

question of judgment [I say this taking the words from PREG2.3] that takes account

of several factors, none of which is likely to be conclusive. These include the degree of

continuity, the existence of a commercial element, the scale of the activity and the

proportion which the activity bears to other activities carried on by the same person but

which are not regulated. The nature of the particular regulated activity that is carried on

will also be relevant to a factual analysis.



45. There is a variety of judicial guidance, from which I suspect that particular extract from the Handbook is derived. Of considerable importance is the discussion by Hobhouse J, as he then was, in Morgan Grenfell v. Wellin Hatfield. The discussion at pages 13 and 14 which is relevant to this case includes:



"I see no reason, whether on a consideration of the policy of the Act or the wording used, to place a narrow meaning on the word 'business'. It clearly should not be given a technical construction but, rather, one which conforms to what in ordinary parlance would be described as a business transaction was opposed to something personal or casual."

46. The claimant, through Mr Oliver, puts forward a considerable number of reasons for claiming that Mr Zimbler and/or Mr Glassman were carrying on, a business. It is said that Mr Zimbler was a professional gambler, his gambling included playing poker, blackjack, roulette and spread betting. He describes spread betting in his witness statement as another form of gambling. I prefer the description of spread betting by Rix LJ in SpreadEx v. Battou at 855 to that given by Mr Zimbler:



"Spread betting is not merely a bet, although it can be described as such as a form of contract for differences; it enables a customer to take a position on a market (or an event) for a very small stake. Thus, if the Dow Jones Index is at, say, 10,000, one can buy or sell the market at a spread around the index of, for the sake of example, 10 points either way ..."



and he goes on to develop the example which has given valuable guidance to judges dealing with cases in that area. Mr Zimbler may have been a professional gambler, for a period but it is unrealistic to portray the spread betting as part of that work. Reliance is also placed on the fact that Mr Zimbler had previously accepted investment by way of third party funding to allow him to play poker professionally. In return, Mr Zimbler entered into agreements in which the investor would receive an agreed return on his investment if Mr Zimbler was successful.



47. Next, it is said that Mr Zimbler had himself invested in third parties in return for a share of any winnings, which is true, but in a poker context. Mr Zimbler did not distinguish between the potential income that he could have made from the spread bets that he placed for Mr Feldman from the other income that he derived from his alternative forms of gambling.



48. Next, it is said that the agreement that Mr Zimbler had with Mr Feldman was, therefore, not a one-off transaction but part of a course of dealing within the context of Mr Zimbler's professional gambling. Next, it is said that Mr Zimbler expected to be paid for exercising his discretion and placing the trades on Mr Feldman's benefit. There are other similarly ingenious submissions. Much as those factors might make one think that it is appropriate for this sort of activity to attract the attention of the FSA, it seems to me that the submission by counsel for the defendants is right about the extent of s.22. The gambling activities relied upon by counsel for the claimant do not really form part of the picture. One needs to look at the investment aspect. While, as I observed in closing argument, one would not find it difficult to see other sections of the Act biting upon these transactions, they do not meet the business test. These were transactions which Mr Feldman to some extent went into, as it is put, "As a favour to Paul", as part of a friendship. Mr Glassman's involvement was to a degree to enrich himself but also sprang from his sympathy for Mr Zimbler's personal circumstances. This was a one-off and Mr Zimbler had not previously been involved in any financial advisory work. Despite the fact of being reduced to some degree in writing, it is more of a "personal or casual" matter (to use the characterisation of the then Hobhouse J) than a business transaction. It follows, therefore, that the claim based on the Act fails.



49. I would say straightaway, in order to save some time when considering questions of costs, while this means that there is no liability as against Mr Glassman, it seems to me that his role in these events and in this litigation is such that he brought this litigation on himself. If he and Mr Zimbler had been candid and straightforward from the outset, it would not have been necessary for the FSMA claim to have been brought and this action would never have got as far as it has.



50. It follows from my conclusions that the claimant is entitled to recover from Mr Zimbler the investment of £50,000, less the £10,786.92 from Mr Zimbler, but he is entitled to no recovery as against Mr Glassman. That is the decision of the court and I will now hear from counsel.