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LAWYER Regulation Andinternationallaw August 2013 n Volume 17 n Issue 8 LAWYER A Tale of Two Frauds: Part I The SEC, Insider Trading & an “Ideal Opportunity Squandered” B y G A r y J . A G u i r r e Gary J. Aguirre is a trial attorney whose practice focuses on securities regulation, securities litigation, and the representation of whistleblowers in the financial industry and regulatory agencies. After a successful career in private practice, he joined the SEC in 2004 and soon headed an insider trading investigation of Pequot Capital Management. According to a joint report of two Senate committees, the SEC fired him when his e-mail questioned the decision of his supervisory chain to give “overly deferential” treatment to an influential Wall Street banker, suspected of tipping Pequot’s CEO about a pending merger. Mr. Aguirre holds a LL.B. from UC Berkeley and a LL.M. with Distinction from Georgetown Law Center in securities Securities in the ElectronicAge regulation and international law. Contact: [email protected]. The Securities and Exchange Commis- The government took off its gloves early sion’s (SEC’s) ongoing crackdown on hedge in the crackdown. It used tactics normally funds for insider trading traces back to the reserved for investigations of drug dealers Wall Street Wall U.S. Senate inquiry into the SEC’s bungled and organized crime: the FBI turned wit- investigation of Pequot Capital Manage- nesses with threats of long prison terms; the ment in 2006-2007. As an SEC attorney, I USAO obtained a wiretap order in 2008 led the Pequot investigation until September when the government’s case against Gal- 2005, when SEC leadership pushed it off the leon Group chief Raj Rajaratnam stalled. tracks and fired me for resisting. Later, two And the SEC has become relentless in its Senate committees concluded the SEC’s mis- pursuit of hedge funds suspected of insider handling of the Pequot investigation was an Continued on PAGe 4 “ideal opportunity squandered.” The Manhattan U.S. Attorney’s Of- fice (USAO) and the FBI joined the SEC’s crackdown on hedge funds in March Redacted 2007.1 Since then, the SEC and USAO have established impressive records. The USAO claims 70 convictions without a loss Redacted since 2009. For its part, the SEC has filed approximately 40 cases for insider trading Redac involving hedge funds since the bungled ted Pequot investigation became public. Before Pequot, the SEC had no system to even keep track of suspected insider trading by hedge funds, a key first step in prosecuting a mega hedge fund for the offense. 41330332 August 2013 n Volume 17 n Issue 8 Wall Street Lawyer Table of CONTENTS The opinions and viewpoints expressed in the articles and columns of Wall Street Lawyer are exclusively those of the individual authors and should not be attributed in any way to the members of the Editorial Advisory Board, individually, or as a whole. Editorial Board MANAGING EDITOR: ProF. JoSEPh A. GrunDFEST MiChAEl D. MAnn GREGG WIRTH Professor of Law, Stanford Law School Richards Kibbe & Orbe Washington, DC MiCAlyn S. hArriS CHAIRMAN: ADR Services JoSEPh MClAuGhlin John F. olSon Ridgewood, NJ Sidley Austin, LLP Gibson, Dunn & Crutcher ProF. ThoMAS lEE hAzEn New York, NY Washington, DC University of North Carolina – Chapel Hill williAM MCluCAS ADVISORY BOARD: AllAn horwiCh WilmerHale LLP Washington, DC BrAnDon BECkEr Schiff Hardin LLP Executive Vice President and Chicago, IL BroC roMAnEk Chief Legal Officer at TIAA-CREF TErESA iAnnaconi General Counsel, Executive Press, and Editor New York, NY Partner, Department of Professional Practice TheCorporateCounsel.net KPMG Peat Marwick BlAkE A. BEll John F. SAvArESE Simpson Thacher & Bartlett MiChAEl P. JAMroz Wachtell, Lipton, Rosen & Katz New York, NY Partner, Financial Services New York, NY Deloitte & Touche STEvEn E. BoChnEr JoEl MiChAEl SChwArz Wilson Sonsini Goodrich & Rosati StanlEy kEllEr Attorney, U.S. Government Palo Alto, CA Edwards Wildman Palmer LLP Boston, MA STEvEn w. STonE Jordan ETh Morgan Lewis LLP Morrison & Foerster LLP CAry i. klAFTEr Washington, DC San Francisco, CA Vice President, Legal & Government Affairs, and Corporate Secretary lAurA S. unGEr EDwArD h. FlEiSChMAn Intel Corporation Former SEC Commissioner and Acting Chairman Former SEC Commissioner New York, NY BruCE w. lEPPlA EriC S. wAxMAn Lieff Cabraser Heiman & Berstein LLP Skadden, Arps, Slate, Meagher & Flom LLP AlExAnDEr C. GAviS San Francisco, CA Los Angeles, CA Vice President & Associate General Counsel Fidelity Investments SiMon M. lornE John C. wilCox JAy B. GoulD Chairman, Sodali Ltd. Pillsbury Winthrop Shaw Pittman LLP Vice Chairman and Chief Legal Officer San Francisco, CA at Millennium Partners, L.P. JoEl roThSTEin wolFSon Bank of America Merrill Lynch w all Street lawyer For authorization to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax (978) West LegalEdcenter 646-8600 or West’s Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific material involved, the 610 Opperman Drive number of copies you wish to distribute and the purpose or format of the use. Eagan, MN 55123 This publication was created to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdication. The publisher is not engaged in rendering legal or other profes- © 2013 Thomson Reuters sional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. One Year Subscription n 12 Issues n $734.54 (ISSN#: 1095-2985) Copyright is not claimed as to any part of the original work prepared by a United States Government officer or employee as part of the person’s official duties. 2 © 2013 Thomson ReuTeRs August 2013 n Volume 17 n Issue 8 Wall Street Lawyer Continued FroM PAGe 1 trading. When neither the USAO nor SEC could ers. Buying both Treasuries and agency debt holds make an insider trading case against Steven Co- down interest rates. Should those rates revert back hen, the SEC sued Cohen’s mega hedge fund SAC to the historical norm, around 5%,4 the value of Capital and extracted $600 million through a set- these bonds will plunge and so will the asset side tlement. Before the ink was dry on SAC’s check, of the Fed’s balance sheet. This scenario recently the SEC filed a “rocket docket” case—an expedit- prompted Forbes to propose a stress test for the ed administrative proceeding with sharply limited Fed.5 discovery—against Cohen for failure to supervise And then there is the risk Wall Street banks SAC. The USAO topped the SEC last month by will engineer yet another crisis which combines filing a criminal case against SAC. high leverage with some new species of fraud, But this huge commitment of resources over as the banks did in 2008 and 1929. The banks the past six years comes with a cost, perhaps too have become more emboldened by their ability to high. Resources are finite. Allocating those re- elude prosecution for their successive frauds. No sources to insider trading cases obviously means banker went to jail for the Enron fraud, though those resources are unavailable to investigate and the banks were willing participants in it.6 They prosecute those responsible for the 2008 financial then went back to the drafting table and designed crisis. That crisis brought the U.S. and the world a more ambitious scam, the conveyor-belt fraud to their knees. Insider trading was not a cause of that delivered the financial crisis. Giving them that crisis.2 another free pass invites them to design an even A different kind of fraud caused the financial more ambitious fraud. crisis. It was fraud on a conveyor belt. It began To sum up, the government’s crackdown mes- with the origination of mortgages: loans exceeded sage is clear: engage in insider trading, go to jail. the value of the mortgaged properties and borrow- No comparable message has been given to those ers misstated their incomes. As mortgages moved responsible for the financial crisis. The risk posed through the securitization process, the underlying by the financial crisis to the integrity of the capi- fraud got baked into the collateralized debt ob- tal markets dwarfs any risk ever posed by insider ligations (CDOs) that were created. Investment trading. The government’s failure to prosecute banks like Goldman Sachs peddled these securi- the culprits who created the conveyor-belt fraud ties with their inflated values around the world. serves as a seductive invitation for them to per- And when the supply of mortgages ran short, the form an encore. The Fed is still infusing a trillion banks continued the conveyor-belt fraud, substi- dollars a year into the economy to keep it afloat. tuting synthetic CDOs. When home prices stalled, It is open for debate whether the country could the house of cards began to collapse. As the big tolerate a second Wall Street financial crisis. banks began to fail, traders accelerated their col- The government’s priorities are puzzling: un- lapse with credit default swaps and naked short limited resources dedicated to prosecute a non- sales.3 Only the infusion of trillions of dollars in cause of the crisis; yet, it watches idly as the Wall Federal Reserve loans and guarantees staved off a Street executives who delivered the crisis walk replay of the 1929 Crash. away with their millions of dollars in salaries The costs of the financial crisis will be passed and bonuses.
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