Can SEC turn Martoma against Cohen? Substantial evidence against Martoma, former portfolio manager of SAC.
By Joshua Gallu & Katherine Burton To Bloomberg
Prosecutors say Martoma received illegal inside information on the trial of an Alzheimer’s drug being conducted by Elan (ELN) and Wyeth from Sidney Gilman, 80, a doctor involved in the tests. Gilman has reached a non-prosecution agreement with the government and will testify against Martoma, prosecutors said. Gilman earlier this week quit his neurology research position at the University of Michigan, Pete Barkey, a spokesman for the school in Ann Arbor, said in an e-mail.
‘‘It appears they’ve got substantial evidence against Martoma, so he would be looking to cut as good a deal as he can, and that’s through cooperation,” said William Mateja, a former federal prosecutor who is now a principal at law firm Fish & Richardson P.C. in Dallas. “There’s always been smoke around Cohen,” he said, referring to the involvement of former SAC Capital employees in other cases. “But there’s never been the direct link. Criminal prosecutors need that direct link.”
Cohen was deposed by the SEC earlier this year about trades in Elan and Wyeth that he and the firm made, Tom Conheeney, SAC president, told investors on Wednesday’s call. Cohen answered all the SEC’s questions, he said.
“Mathew Martoma was an exceptional portfolio manager who succeeded through hard work and the dogged pursuit of information in the public domain,” his lawyer, Charles Stillman, said last week in an e-mailed statement, adding that he expected Martoma to be fully exonerated.
The current case with Cohen and SAC Capital may end up mirroring the cooperation that took place between the two agencies in the case involving Rajat Gupta, the former Goldman Sachs Group Inc. board member who was convicted this year for passing confidential information to Galleon Group founder Raj Rajaratnam.
The SEC moved first, filing an administration proceeding against Gupta. Gupta then sued the SEC, claiming that an administrative proceeding, which doesn’t allow the same amount of discovery as a lawsuit in U.S. court, would deprive him of multiple rights, including a jury trial. The SEC dropped the administrative case and waited for prosecutors to charge Gupta before filing its suit in federal court.
Donald Longueuil, a former junior portfolio manager at SAC Capital, was arrested in Feb. 8, 2011, for insider trading and was sued by the SEC on the same day. While he pleaded guilty a month later, it wasn’t until September of that year that Longueuil settled the SEC’s civil suit.
If the U.S. attorney doesn’t make a criminal case against Cohen, the SEC can continue with a civil action.
In insider-trading cases, the SEC can seek disgorgement of illegal profits, as well as three times that amount in penalties. It alleges that SAC Capital reaped $276 million in profit and losses averted as a result of trading on material, nonpublic information. The agency can also file administrative actions to bar offenders from the securities industry.
James Cox, a professor at Duke University School of Law in Durham, North Carolina, said Congress in 1988 expanded a provision regarding oversight, called control-person liability, to insider trading. It exposes managers who fail to maintain a system to discourage and detect insider trading to action by the SEC. The provision wouldn’t require the SEC to prove Cohen knew about the trades, just that the compliance system broke down, Cox said.
CR Intrinsic employed Martoma from 2006 to 2010, was named last week as a defendant in a civil complaint by the SEC, along with Martoma and Gilman.
SAC Capital first was linked to the government’s investigation of insider trading on Wall Street shortly after the October 2009 arrest of Rajaratnam, when former SAC Capital employee Richard Choo-Beng Lee was among those charged with insider trading at another firm. Six former or current SAC Capital employees have been tied to insider trading while working at the firm, including three who have pleaded guilty.
Previous insider cases involving former SAC employees haven’t deterred investors. Cohen’s main fund saw net deposits last year before he closed it to new money, people with knowledge of the matter said at the time.
One investor, who asked not to be named because the fund is private, said he wouldn’t feel compelled to pull out his money unless there was a criminal indictment against Cohen.
Clients can only pull 25 percent of their investment every quarter after giving 45 days notice, meaning it would take them a year to redeem in full. The next deadline for putting in a redemption notice is mid-February.
If enough people wanted to pull their money, Cohen could turn SAC into a family office, said Brad Balter, head of Boston- based Balter Capital Management LLC, which invests client money in hedge funds. About $8.4 billion, or 60 percent, of SAC’s assets belong to Cohen and his employees.
“If the owner gets sued by the SEC, what’s the rationale to stay?” said Balter, who has never invested in SAC or in any of its spinoffs. “You know your investors will ask you why you have that in your portfolio.”