Judge in SAC Capital case wants answers to questions before sentencing

Judge Swain has asked attorneys from both sides in the SAC Capital case to answer some lingering questions before she approves a $1.8 billion settlement plan

Today marks a final chapter for SAC Capital – if all goes as planned during a hearing in connection with the carefully watched insider trading case against the once-thriving hedge fund.

U.S. District Court Judge Laura Taylor Swain was to sentence SAC Capital in New York City today after reviewing a record $1.8 billion settlement plan.

The terms of the settlement – which includes a $900 million fine – were announced in November. That month, too, SAC pleaded guilty plea to five counts of fraud. So far, eight former SAC employees were convicted of insider trading. The fund’s founder, Steven Cohen, was never charged, “though he is the subject of an SEC administrative proceeding for allegedly failing to properly supervise his firm,” according to The Wall Street Journal. That proceeding seeks to prevent him from working in the securities industry. He maintains his innocence, many news reports have said.

But Swain appears to have some questions in her mind that raise the possibility of last-minute revisions or show that the Harvard-trained judge, who used to rule in bankruptcy cases, is being extra careful in the high-profile case. She recently listed six questions in a one-page document given to attorneys on both sides.

Among the topics are “illegal profits made and losses avoided by the firm and its subsidiaries,” according to USA Today. Perhaps more interesting is that Swain wants to know if the total amounts are reflective of activities "of all culpable persons" – and not just the eight who were convicted – and those who used the information "provided by the culpable persons," the newspaper added. And she is likely to question if the payments took into account “criminal forfeiture obligations." In addition, she asked about future responsibilities of Bart Schwartz, a former prosecutor, who will follow compliance with the agreement.

Prosecutors have called the settlement "an appropriate punishment for the criminal conduct at SAC Capital," and an attorney for SAC Capital attorney said the penalties "send a strong public message about the costs of the conduct.”

There could be a wrinkle in the sentencing. “While the civil portion has already been approved, SAC Capital has the right to withdraw both its guilty plea and its agreement to pay in the forfeiture action if Swain does not sign off on the $900 million in penalties,” according to a report from Reuters.

Meanwhile, SAC Capital has taken a new name: Point72 Asset Management, and it will manage the personal funds belonging to Cohen, news reports said. Those personal assets total $11.1 billion, according to Forbes.

There are lingering questions what issues Cohen could face in the future. The proposed settlement “appears to set a limit on what SAC itself might have to pay, it still doesn’t put … Cohen … in the clear,” The New York Post reported.

Meanwhile, Cohen and SAC were named in a lawsuit filed by shareholders of Elan and Wyeth, the drug companies from which former SAC employee, Mathew Martoma, got illegal tips, The Post said.

“Those shareholders oppose Thursday’s proposed deal because SAC has not admitted to engaging in insider trading in the two drug stocks,” The Post added.

SAC has apologized for the actions of the eight convicted employees. “We take responsibility for the handful of men who pleaded guilty,” SAC said in a statement quoted by The Journal. “These wrongdoers do not represent the 3,000 honest men and women who have worked at the firm during the past 21 years. Even one person crossing the line into illegal behavior is too many and we greatly regret this conduct occurred.”

The government’s case looked extensively at the actions of employees at the hedge fund. The federal indictment charged SAC “with insider trading offenses committed by numerous employees, occurring over the span of more than a decade, and involving the securities of more than 20 publicly-traded companies across multiple sectors of the economy,” according to a statement released last year by Manhattan U.S. Attorney Preet Bharara.

As for now, eyes will be on Swain, who formerly worked at Debevoise & Plimpton, where she specialized in employee benefits, ERISA, and employment law. In addition, in her spare time she has been active in charity work. She also received the Servant of Justice award from the Guild of St. Ives of the Episcopal Diocese of New York.

Update: Bloomberg News reports that the judge has approved the settlement. InsideCounsel will have more on the decision tomorrow.

 

Further reading: 

Ex-SAC portfolio manager to face trial after refusal to testify against founder

SAC to shut down following $1.2B settlement with U.S. government

Ex-SAC fund manager found guilty of insider trading

 
 

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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