In charging hedge fund billionaire Steven Cohen last week with failure to supervise his employees, the Securities and Exchange Commission took a relatively easy path with a low threshold of proof as it closes in on a longtime target.
But many in the legal community are divided as to whether the strategy is a show of smarts or desperation on the part of federal regulators, and Cohen’s attorneys are already starting to hint at the arguments they are preparing to lodge in defense of their client.
The drama could take nearly a year to play out, under a time frame described in an order issued Tuesday. The order announced that Chief Judge Brenda P. Murray will take up the case in an administrative proceeding in Washington, with a hearing scheduled for Aug. 26.
Cohen represents one of the most prominent targets the SEC has ever pursued. The SEC and the U.S. attorney’s office in Manhattan have accused at least half a dozen current and former traders at his Connecticut hedge fund — SAC Capital Advisors — of profiting from illegal tips. Expectations were high that Cohen would be next.
But when the SEC accused Cohen of wrongdoing for the first time Friday, it did not charge him with fraud or insider trading. It charged him with the lesser offense of negligence for allegedly failing to look over the shoulders of two employees — Mathew Martoma and Michael Steinberg.
“In terms of the misconduct they’re alleging, it is a step below,” said Adam Pritchard, a professor at the University of Michigan Law School. “The reputational sanction if you’ve accused someone of failing to supervise is de minimis.”
The monetary penalties for the charge leveled against Cohen are usually not as high as they would be for a fraud charge. The SEC can seek to ban Cohen from managing other people’s money if it can prove its case, but legal experts said that imposing a lifetime ban is a rarity in cases involving the failure to supervise employees.
“On a negligence-based charge, to take away someone’s livelihood forever seems relatively unlikely,” said Thomas Gorman, a lawyer at Dorsey & Whitney who has worked for the SEC’s enforcement division and its general counsel’s office. “If they sued him for insider trading, it’s much more likely they can get a lifetime bar.”
Federal prosecutors have been considering criminal insider trading charges against Cohen’s hedge fund, but the status of that investigation is unclear.
Some legal experts describe the SEC’s approach as pragmatic — if the SEC cannot prove insider trading, then going after Cohen for a lesser charge makes sense because it gives the agency its best shot of getting a ban of some length.
The SEC negotiated a record $616 million settlement to resolve two civil insider-trading lawsuits with Cohen’s hedge fund in March, and barring Cohen from managing other people’s money would be a high-profile victory for the SEC.
“This is the continuation of a an ancient and well-established prosecutorial tradition in the U.S., which dates back to the feds realizing that they could not prosecute Al Capone for murder or bootlegging, and so they instead prosecuted him for tax evasion,” said John Coffee, a professor at Columbia Law School. “I’m very ready to criticize the SEC, but I think this is very technically smart.”
To win the case, the SEC will have to show that when suspicious trading took place, Cohen did not respond reasonably to “red flags” that should have tipped him off. In a lengthy memo to employees this week, Cohen’s defense team said he acted appropriately given what he knew at the time of the trades.
The SEC alleges that Martoma, an SAC portfolio manager, got secret tips about the unfavorable results of a clinical drug trial jointly sponsored by Elan and Wyeth. He then had a 20-minute conversation with Cohen on July 20, 2008, according to the SEC, and the next morning SAC began selling its Elan and Wyeth shares and betting against the stock — ultimately raking in more than $275 million in profits.
In the memo, Cohen’s attorneys said there were many reasons to let go of the companies’ stock at the time, including the fact that Elan’s stock had risen 40 percent over the previous six weeks. Any “knowledgeable observer would have concluded that a further price share increase would be difficult to achieve,” they said, especially since the overall market was in decline.
Cohen also worked closely with Steinberg, who was accused, in part, of illegal trading of Dell stock. The SEC said Cohen was forwarded an e-mail on Aug. 26, 2008, that suggested Steinberg had non-public information about Dell’s upcoming financial results. Cohen sold his Dell shares immediately afterward, earning his hedge fund $1.7million in profits or avoided losses.
The memo said that Cohen typically receives 1,000 e-mails and “innumerable” texts daily and that he does not read most of them. “While Cohen did trade Dell that day, as he did on many days, the evidence shows that it would have been almost impossible for him to have read the email in the brief interval — a matter of seconds — before the trade,” the memo said.
Martoma and Steinberg, who have both been indicted by a grand jury, have pleaded not guilty. They await separate trials in November. Cohen has denied the allegations, describing them as meritless.