NASDAQ

A New York federal judge on Friday awarded $78 million to Nasdaq Inc. in a civil breach-of-contract lawsuit that accused the manager of several exchange-traded funds of misappropriating profits.

U.S. District Judge Paul Engelmayer of the Southern District of New York ruled in a 166-page opinion that Nasdaq had "established, in multiple respects," that Exchange Traded Fund Managers Group had kept millions of dollars in management fees generated by ETFs, including a $1.5 billion cybersecurity fund known by its ticker HACK.

The ETF manager, identified as ETFMG in Engelmayer's opinion, denied any wrongdoing, and hit Nasdaq with counterclaims, alleging that the owner of the world's second-largest stock exchange had breached an agreement and improperly favored a competing ETF.

The ruling Friday rejected all of ETFMG's claims against Nasdaq and ordered the firm to compensate Nasdaq for both retrospective and forward-looking damages.

While Engelmayer found in favor of Nasdaq on its breach-of-contract claims, the judge said it had not supported allegations of conversion, unfair competition, unjust enrichment, conversion and breaching its duty of good faith and fair dealing. He declined to award punitive damages.

"Nasdaq is pleased with the court's ruling that acknowledged the significant damages we suffered from ETFMG's breach of its contractual obligations," Nasdaq said in a statement. "This is a victory for the ETF industry."

An attorney for ETFMG was not immediately available to comment on the decision. Nasdaq was represented by attorneys from Ballard Spahr in Philadelphia.

Friday's ruling followed a 10-day bench trial in May, which included live testimony from 15 witnesses, including Nasdaq's CEO, Adena Friedman, and other high-ranking officials in its global information services department.

Nasdaq claimed that ETFMG was irked by its tepid commitment to ETFs after acquiring International Securities Exchange in June 2016, and unlawfully seized profits from ETFs that it had developed with its business partner, PureShares LLC, in exchange for a share of their profits.

ETFMG at the time had served as a fund adviser for PureShare's ETFs, and following Nasdaq's purchase of the company found itself in business with Nasdaq. The working relationship quickly soured by early 2017, with allegations of breaches and mutual threats to terminate contracts.

Nasdaq sued later that year for compensatory and punitive damages, as well as an order barring ETFMG from any further involvement in the funds.

ETFMG countered that it was entitled to keep profits from HACK, which was by far the most successful of the PureShare ETFs. Nasdaq, the manager said, had failed to live up to its contractual obligations, and ETFMG was justified in retaining the profits.

Engelmayer, however, rejected as "contrived and unpersuasive" ETF's claim that an oral agreement between the two firms allowed it to hold onto the disputed profits. Instead, he said, ETFMG had "breached its contractual duty to furnish those profits to Nasdaq and PureShares by appropriating these profits for itself, as it continues to do to this day."

Engelmayer found no breach no material breaches on Nasdaq's part.

Of the $78.4 in compensatory damages he awarded to Nasdaq, $10.9 million were retrospective, with 9% prejudgment interest attached; $67 million were for future damages, and about $500,000 was awarded under a wholesaling agreement that ETFMG was found to have breached.

Engelmayer declined to award punitive damages or to grant the equitable relief that Nasdaq sought.

ETFMG was represented in the case by a team of attorneys from Kramer Levin Naftalis & Frankel.

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