Two Individuals, Including A Former Pharmaceutical Executive, Plead Guilty To Participating In Insider Trading Scheme Surrounding Alexion Pharmaceuticals’ Acquisition Of Portola Pharmaceuticals
Damian Williams, the United States Attorney for the Southern District of New York, announced that JOSHUA BURRELL was sentenced today to 48 months in prison for committing securities fraud in connection with the operation of a New York-based investment firm, Activated Capital, LLC (“Activated Capital”). BURRELL previously pled guilty for raising millions of dollars for Activated Capital’s “Opportunity Zone Funds” using fraudulent misrepresentations. U.S. District Judge Lewis A. Kaplan imposed the sentence in Manhattan federal court.
According to statements in the Indictment, and other public filings and statements in court:
From in or about 2019 through in or about 2021, BURRELL obtained millions of dollars of investments for the Activated Tax Advantaged Opportunity Fund, LLC and Activated Capital Opportunity Zone Fund II, LLC (collectively, the “Activated OZ Funds” or the “Funds”) based on fraudulent representations. BURRELL represented, in substance, that the money invested in the Activated OZ Funds would be used to purchase real estate properties in Opportunity Zones and that investors would receive distribution payments out of the Funds’ net real estate investment income. Contrary to those representations, BURRELL caused the Activated OZ Funds to pay putative distributions in amounts greater than the Funds’ net income. From the inception of the Funds in 2019 through approximately February 2021, BURRELL used investor money to help pay distributions totaling approximately $470,000 in a manner akin to a Ponzi scheme. BURRELL also falsely inflated Activate Capital’s assets under management in communications with prospective investors.
To attract additional investment capital for the Activated OZ Funds, BURRELL sought to establish a partnership with an investment bank headquartered in Manhattan (“Company-1”). As part of Company-1’s diligence process, Company-1 asked BURRELL for “[b]acking to show current fund proceeds/acquisitions made.” In response to these requests, BURRELL fabricated documents to make it appear that the Activated OZ Funds were more successful, owned more properties, and were in better financial condition than was actually the case. For example, BURRELL sent Company-1 fake bank statements making it appear that, for the period July 2019 through October 2019, one of the Activated OZ Funds had ending monthly account balances of between approximately $2,094,450 and $2,463,100 when the real account statements for that period showed ending monthly balances of between only $116,369 and $154,399. BURRELL fabricated additional documents to make it falsely appear to Company-1 that an Activated Capital affiliate owned nine properties in Detroit, Michigan, that it had not, in fact, acquired.
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BURRELL, 39, of New York, New York, was also sentenced to a one-year term of supervised release. He was further ordered to pay restitution to his victims in the amount of $5,763,420 and to pay forfeiture in the amount of $107,688.
Mr. Williams praised the investigative work of the United States Postal Inspection Service and thanked the U.S. Securities and Exchange Commission for its assistance.
This case is being handled by the Office’s Securities and Commodities Fraud Task Force. Assistant United States Attorneys Daniel Loss and Alex Rossmiller are in charge of the prosecution.