On July 19, 2013, with the statute of limitations for securities fraud charges set to run out at the end of July, the federal government finally decided how it would pursue charges against Steven Cohen, the founder and largest owner of investment advisor S.A.C. Capital Advisors, LLC (SAC).  Facing gaping holes in its insider trading case against Cohen, the Department of Justice (DOJ) has apparently taken a pass on criminal charges and the SEC has opted not to bring civil insider trading charges in federal court.  Instead, the SEC’s Enforcement Division has brought an administrative action (an action that will be tried (or settled) before an SEC Administrative Judge) for failing to reasonably supervise two hedge fund portfolio managers under his control.[1]

The Insider Trading Allegations

The Enforcement Division’s case, which was unanimously approved by the Commissioners, alleges improper trading by SAC and its associated entities (CL Intrinsic and Sigma Capital) in the securities of Elan, Wyeth, and Dell.[2]  Specifically, the SEC alleges that portfolio manager Mathew Martoma improperly obtained inside information from a physician-consultant to Elan and Wyeth in connection with Phase II trials of an Alzheimer drug that he used to direct CL Intrinsic and SAC trading, resulting in profits and avoided losses totaling $275 million.  With respect to Dell, the SEC alleges that Sigma portfolio manager Michael Steinberg obtained information, ultimately sourced from a Dell employee, that Dell’s quarterly numbers were going to fall dramatically and caused Sigma to profit by $1 million and SAC to avoid losses totaling $1.7 million.

The DOJ has already brought criminal insider trading charges against Martoma and Steinberg and both men, to date, have refused to provide testimony against Cohen in return for lesser charges.  If they do proceed to trial the odds are stacked against them – of the 81 people charged with insider trading since 2009, 10 went to trial, all of whom were convicted.  SAC, for its part, already consented to an SEC settlement pursuant to which it will ultimately pay in excess of $616 million.

The Failure to Supervise Allegations Against Cohen

The failure to supervise or “red flag” allegations against Cohen are two-fold.  First, in the months leading up to the Phase II announcement in July 2008, Cohen was getting diametrically opposed information from certain analysts at SAC and Martoma.  In a series of text messages back and forth between Cohen and various SAC analysts, Cohen rebuffed the analysts’ skepticism of Martoma’s sanguine views about the drug trials even though Martoma was opining before the test data was publicly available.  Cohen sent a number of texts expressing confidence in Martoma, saying things like, “seems like mat [Martoma] has a lot of good relationships in that area.”  The SEC also contends that, on July 20, 2008, almost immediately upon receiving negative news from his insider source, Martoma e-mailed Cohen saying “[i]t’s important” they talk, which was followed by a 20-minute call between the men.  The SEC asserts that Cohen should have seen Martoma’s abrupt about face on the drug trials as a red flag and should have heeded SAC’s analysts’ concerns about Martoma and looked into whether Martoma had insider information.

Second, with respect to Dell, in August 2008, Cohen, through SAC, bought over $11 million of Dell stock.  On August 26, 2008, Cohen allegedly received an e-mail from a Sigma analyst stating that “someone at the company [Dell]” had indicated that Dell’s results would be off by “50-80” basis points.  That e-mail was forwarded to Cohen at or around 1:29 p.m. on August 26, 2008, and Cohen began selling his long position at 1:39 p.m. that same day.  By 3:49 p.m., Cohen had sold SAC’s entire position avoiding losses of $1.7 million.  As with Elan and Wyeth, the SEC alleges that the information that Cohen received should have caused him to immediately investigate the source of the information rather than simply trading on it.

Significance

Despite years of investigation, neither the SEC nor the DOJ have been able to put together an insider trading case against Cohen.  This is in large part because they did not have phone taps on Cohen at the relevant times and because his lieutenants have refused to turn on him in exchange for leniency from the government.  By charging Cohen civilly and not criminally, however, the government does get one huge benefit.  In civil matters, if a defendant asserts his Fifth Amendment rights, the Judge is permitted to draw an adverse inference of guilt.  That is not permitted in criminal trials.[3]

Even if successful, however, the SEC is only seeking to bar Cohen from the financial services industry.  That is because SEC has been unable to justify bringing fraud-based charges against Cohen or charges that he personally profited at the expense of his clients, which would permit the SEC to seek disgorgement of any money from him and civil penalties. This is a far cry from the jail time that his loyal subordinates appear to be willing to risk.