To one of the customers, the defendant wrote the following:
"Hi Dudu. What happened last Friday is a phenomenon called short squeezes. This happens rarely. And this happens an hour before the close of trading. All traders in the market close their positions before the weekend and then there is a very large pressure of sales in a short time and this causes a sharp downward fluctuation in the price. All small accounts under $1000 don't have enough margin and have therefore been deleted. Your account is large so it has enough margin and therefore it has not been affected by the sharp fluctuation. In order to prevent such a situation in the future, I have added another component of risk management. The component will be ready today by the end of the day. Then I ask the client whatthe risk profile he wants. Solid aggressive or moderate. Depending on the customer's choice, I make a deal size. and spacing between trades. Which risk profile do you choose?" (P/133, notice of March 3, 2019; See also a notice dated March 4, 2019; On the other hand, notices dated March 6, 2019, June 20, 2019, in which the defendant assumes the role of "advisor").
We will reiterate that the defendant does not dispute that he carried out the robot's definitions, which included, determining the "lots", the spreads and the profit target (P/4, p. 175, s. 12 to p . 176, s. 2; P/4, pp. 176, 177 S. 4).
- A more detailed look at the relationship that existed between the defendant and each of the customers also supports the conclusion that the defendant managed the account and in this framework he was given discretion to carry out the transactions. We will detail below with reference to the clients who testified in court, but before we do so, we will note that naturally not all customers are made of one piece. While most clients had no knowledge of trading in the capital market or trading arenas, some had some understanding. However, the fact that some of the investors had an understanding on one level or another does not omit the claim that the defendant was engaged in managing investment portfolios, especially in light of the fact that he offered a unique product - algorithmic trading through a robot that he purported to be proficient in his activity within the framework of the account. And now for the details:
Kehat. The witness, whose testimony is highly reliable and even tried to defend the defendant, noted that the defendant "completely managed" the account while he had "no contact" and that the defendant carried out all the actions related to the investment and did as he wished. Moreover, the testimony of the witness, who is a computer technician by training, indicates that from time to time he made certain offers to the defendant, but these were not accepted by him (F. 26.2.2023, p. 195, para. 35; p. 196, paras. 1-24; p. 202, paras. 1-7, paras. 13-22; see also P/95, p. 35; P/96). Admittedly, there are indications that the witness closed a number of transactions (P/96, p. 80; p. 206, s. 7), but this was at the end of the engagement, on June 6, 2019. Even after the aforementioned date, it was evident that the defendant continued to operate the robot. On June 12, 2019, the witness wrote to the defendant, "You can stop the robot of gold... The situation is quite pathetic" (P/96, p. 82). A tangible expression of the relationship between the parties can be found in the fact that the password for performing transactions in the account was in the hands of the defendant, while Kehat was equipped with a read-only password (P/97, February 26, 2023, p. 189, paras. 20-35; see also P/97).