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SEC Hits Mark Cuban With Insider Trading Charges, Potentially $3 Million in Payments

Posted by: Heather Green on November 17

Billionaire Mark Cuban likes the spotlight, but not this kind of attention. The SEC filed insider trading charges against the normally talkative blogger, owner of the Dallas Mavericks and chairman of HDNet, the high definition cable channel.

According to the SEC, Cuban dumped 600,000 shares, or all of his 6.3% stake, in the search engine Mamma.com Inc., in June 2004 after learning about private financing that the company was proposing. By selling, he avoided losing $750,000, the SEC alleges.

The SEC is asking that the 50-year old Cuban, who made his fortune by selling media service Broadcast.com to Yahoo in 1999, be forced to give up the money plus interest and pay a penalty. Depending on how a court decides, those costs could add up to as much as $3 million, according to the SEC.

Cuban’s blog, which was quiet all morning, has a response now. He says that he plans to fight the case, which he says has been pending before the SEC for two years and is “a product of gross abuse of prosecutorial discretion.”

The strength of the case depends on whether the SEC can prove that Cuban knew that the information about the sale was private and confidential and yet traded on it, according to lawyers who have been involved with similar cases.

The SEC must also feel pretty strongly about their case, says Phillip Stern, a lawyer at the firm Neal, Gerber & Eisenberg. “They knew that it would come under scrutiny and a lot of publicity and would have wanted to be satisfied amongst themselves that they had a good case.”

Yet, at the same time, Cuban may believe that he has a chance of showing he didn’t intentionally think he was doing insider trading, says Stern. Most of these cases get settled before they are filed, let alone before they go to trial, he added.

Cuban’s lawyers could argue that because this isn’t a typical insider case (Cuban wasn’t an officer or a director), he didn’t think he had a fiduciary duty to the company or that he could have heard the information outside of the company. Cuban could also argue that it’s a he said/she said case and that company’s CEO was pressured by the SEC or might have mischaracterized what Cuban heard or said. Cuban’s lawyer didn’t return a call for comment.

Most insider trading cases don’t include the types of criminal charges that landed ImClone’s Sam Waksal in jail, say lawyers I spoke with. But it’s also the type of case, where one person alleges one thing and another disputes it, that probably meant that the DOJ didn’t file criminal charges, says John Hueston, a lawyer at Irell & Manella. “Mr. Cuban must be breathing a real sigh of relief,” says Hueston. “He learned it’s just the SEC and not the US Attorney’s office that’s prosecuting this. The important thing for him is it’s a civil about monetary penalties, not about liberty.”

So, it looks like we’re in for a classic showdown. And the first salvo was the complaint that the SEC filed.

According to it, Mamma.com decided in the spring of 2004 to raise money through a PIPE offering, or private investment in public equity. According to the complaint, the CEO of the company reached out on June 28 to Cuban with an email entitled “Call me pls” that asked Cuban to call ASAP.

Mr. Cuban called four minutes later from the American Airlines Center in Dallas where the Mavericks play and the two spoke for eight minutes and thirty-five seconds. The CEO told Cuban that he had something to tell him in confidentiality, which the CEO says Cuban agreed to. The CEO then explained that the company was raising money through a PIPE and wanted to invite Cuban, as the single largest shareholder, to take part. According to the complaint, Cuban got angry and said that he didn’t like PIPEs because they were dilutive to existing shareholders’ stakes. “At the end of the call, Cuban told the CEO ‘Well, now I’m screwed. I can’t sell,’” the complaint alleges.

According to the SEC, the CEO then reported back to the chairman who emailed the board about other issues about the PIPE saying and Cuban, writing:

As anticipated he initially ‘flew off the handle’ and said he would sell his shares (recognizing that he was not able to do anything until we announce the equity) but then asked to see the terms and conditions which we have arranged for him to receive from one of the participating investor groups with which he has dealt in the past

According to the complaint, the CEO sent Cuban an email giving him a contact number for a sales rep. Cuban called the salesperson, who explained that the PIPE was being sold below the market price.

The SEC alleges that Cuban then called his broker in Dallas and told him to sell all his Mamma.com shares, which happened in after hour trading on June 28 for $13.4990 a share and the next day, June 29, for $13.2937. Mamma.com announced its PIPE offering at 6 pm on June 29. On June 30, Mamma opened at $11.89, down 9.3% from the June 29 closing price.

Cuban talked in March 2005 about the sale on his blog, explaining (as TechCrunch points out:)

I had purchased stock in Mamma.com in hope that it could be an up and coming search engine. I thought I had done some level of due diligence. Talked to the company management. Talked to some employees who worked in sales. Read the SEC Filings. I knew that they had a checkered past and had been linked to stock promoter Irving Kott, and that their law firm still handled some of Kotts business, but the CEO, Chairman, lawyers all said that things were reformed and the company was focused on its business.

Then the company did a PIPE financing. Im not going to discuss the good or bad of PIPE financing other than to say that to me its a huge red flag and I dont want to own stock in companies that use this method of financing . Why? Because I dont like the idea of selling in a private placement, stock for less than the market price, and then to make matters worse, pushing the price lower with the issuance of warrants.So I sold the stock.

In the release on his blog, Cuban also adds:

“I am disappointed that the Commission chose to bring this case based upon its Enforcement staff’s win-at-any-cost ambitions. The staff’s process was result-oriented, facts be damned. The government’s claims are false and they will be proven to be so.”

According to the SEC, about 8% of all the SEC cases are insider trading. Last year, the SEC filed around 660 or 670 cases, of which around 50 or so were insider trading.

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Reader Comments

chrissy

November 17, 2008 02:58 PM

Your going after the wrong person.
Start with Paulson and Bernake. Paulson
worked for Goldman Sachs as we know.
And guess who got the bailout first.
Conflict of Interest SEC? TARP
money was supposed to be used for
Homeowners, they havent seen a dam dime..Mark Who???????????????????????

Scott P

November 17, 2008 03:15 PM

"The SEC is asking that the 50-year old Cuban, who made his fortune by selling media service Broadcast.com to Yahoo in 1999, be forced to give up the money plus interest and pay a penalty."

Is that all the SEC is asking, to give up the money plus interest and pay a penalty? I thought "Insider Trading" was far more serious as Imclone's CEO Sam Waksal was sentenced to seven years and three months in prison for "Insider Trading". The integrity of the public equitable markets would be at stake if that's all anybody faced.

Scott P

November 17, 2008 03:20 PM

Here Chrissy is a great non partisan information source written by MIT Sloan School of Management professor Simon Johnson:

http://baselinescenario.com/

Please educate yourself.

Bob

November 17, 2008 03:58 PM

Scott, try hooked on Phonics for
sentence struture. The bailout hasnt
helped anyone except wall street with
dividends. You must work for GS......

shane

November 17, 2008 04:07 PM

What exactly at that link is educational Scott? I read the "root cause" post that boiled down to this whole thing being a "crisis of confidence" and figured they are a bunch of know nothing academics. Did I miss something useful?

xyz123

November 17, 2008 04:30 PM

If this story reads correctly, convict the man, impose & enforce a financial penalty, then send him to jail.

Urich

November 17, 2008 04:42 PM

Congress just wants headlines and heads to roll, when the real focus should be on the sharks who brought the market to it's knees. Namely high rollers in subprime crime and the so called"enron loophole".

scott c

November 17, 2008 04:45 PM

I thought the SEC was serious about insider trading penalties, just look at Martha Stewart and Sam Waksal they had too pay for there crimes. So why is Mark Cuban any different. Lets set a standard for our country that everyone gets the same no favs!!

MotoTom

November 17, 2008 04:50 PM

From Cuban's own description in this article, the stock no longer met his investment criteria.

OK! So what? He acted on info not available to the public. I believe that fits the definition of Insider Trading.

Sounds a lot like what happened to Martha. She got private information not available to the public and acted on it. Didn't work for her and shouldn't work for him.

Steve

November 17, 2008 05:43 PM

Interesting that will all that is going on the SEC decides to file against one of the most open and honest in my opinion business people out there. Mark Cuban wears his emotion on his sleeve. He is great for the fans of the team he owns and is not affraid to express his opinion. He has clearly stated why he sold his stock. The SEC should be looking into the principles of the company rather than look to hang out to dry Mark Cuban. Give me a break. Who the hell got hurt in this deal? Most likely the principles. Howmany stock holders could there have been in a start up operation.

PRINCE RAY

November 17, 2008 05:43 PM

It seems a farce to say the least that the SEC is letting people like Paulson, and thieves like Countrywide get away with millions of investor funds and the Bushs cornering the oil market but oh, lets go after the little guy who made his money the American Way.

What an abuse of governmental power. Mr. Obama won in a landslide becaused Americans do still have a say, and are disgusted with our current President and his cronies.

Carl Phipps

November 17, 2008 07:07 PM

Certainly unethical, let alone criminal. He acted on insider info and that is wrong. No wonder our country is going down the economic drain as fast as it is. He should be held accountable for his actions and unethical behavior.

robert

November 17, 2008 07:17 PM

i wonder why martha stewart got a criminal complaint and had to go to jail. this crook should go to jail.

Scott P

November 17, 2008 08:02 PM

To Shane
According to the WSJ, "MIT Sloan School of Management professor Simon Johnson helped launch the Baseline Scenario, a month-old blog with the tagline "what happened to the global economy and what we can do about it. Until August, Mr. Johnson was the director of research at the International Monetary Fund. He says that after spending 20 years working on crisis prevention and economic growth issues he felt strongly that he should start a dialogue for everyone from policy makers to nonbusiness types".

http://online.wsj.com/article/SB122659597830624827.html

Scott P

November 17, 2008 08:10 PM

To Bob

Thanks for correcting my grammar but I think it's "Hooked on Phonics". No I don't work for GS I develop software and web pages dedicated to helping health care professionals.
http://www.pace-med-apps.com/
http://www.pace-med-apps.com/a1ccalc.htm

Oh yes, I'm also a physician medical director specializing in urea kinetic modeling.
http://www.pace-med-apps.com/ureakin.aspx
But I'll give your "hooked on Phonics" a try.

Tim

November 17, 2008 08:58 PM

In October 2008, Cuban started Bailoutsleuth.com as a grassroots, online portal for oversight over the US government 700 billion dollar bailout of financial institutions. In November, Cuban's sleeping dog of an insider trading case springs to life. Get the picture?

BigMac

November 18, 2008 12:14 AM

Yah, Obama will clean this up.
Ummm, let me see, who was one of the biggest contributors to his campaign.
Oh yes, Wall Street!!!!
This should be fun.
If you thought Bush was bad.....

Anthony

November 18, 2008 02:28 AM

Wait a minute! the guy can’t have second thoughts about a search engine named Mama.com and “bailout out on it” but the federal government can “bailout” the banker buddies and the investments they have.

It’s FuckingBullshit!

I hope Mark Cuban exposes the fraud that is the stock market.

Todd

November 18, 2008 09:27 AM

This is a civil matter. If Mr. Cuban was a board member they would have pursued a criminal case. However, he was only and investor who was asked for an additional investment and sold his stock. How can someone go to jail for that!

K

November 18, 2008 09:36 AM

OKAY - if he doesn't go to jail, something is seriously wrong here. I like Cuban alot, but didn't Martha Stewart go to prison for this!!!! If she was made a mark, why shouldn't he?

bsblfn

November 18, 2008 09:50 AM

this is all about trying to discredit Cuban so that he will be forced out of the competition to buy the Cubs..Somehow Bud Selig has his hands in this SEC filing somehow.If there is any insider dealings it is with Selig and his friends within the SEC to take Cuban out of the bidding process.

Karl

November 18, 2008 10:02 AM

I wonder if the SEC is taking a look at the fact that the President & CEO of BlackRock Inc., (blk) is their symbol, both cashed-in over 52,000 & 36,000 shares of their stock in that company shortly AFTER Ben Bernanke handed over $29 BILLION in TAXPAYER'S money to them?!!!!!! That's right!! 'Google' this for proof- BERNANKE BEAR AND THE $30 BILLION QUESTION, and read it! By the way, those two BlackRock execs cahed-in when BlackRock's stock was trading at $205 a share! Look where that stock is NOW!!!!!!!!!!!!!!!!!

Kyle

November 18, 2008 10:31 AM

The problem I have with this is that Mark didn't ask for the information. Mamma.com's CEO said "call me" and then as soon as Mark did, he dumped that info on him. What was he supposed to do? That CEO entraped him. He knew Mark wouldn't like that info, told him anyway and then basically said you better not drop your shares now or we'll get the SEC all over your @$$. Thats entrapment and blackmail to me.

Collins

November 18, 2008 11:30 AM

Martha went to prison for perjury--not for the insider trading. I'm not sure but I think that she may have actually beat the insider trading charge. Mark got caught in a squeeze play - pony up more money or risk losing everything. Not really ethical on its face. We will have to wait and see what the jury says or what the plea agreement says.

Joan Van Tassel

November 18, 2008 12:02 PM

I've followed Mark Cuban's career since he was an Internet pioneer, long before he owned the Mavericks. He is one of the smartest, most honest and outspoken people I've ever met. I believe him and I believe in him. He has always been generous with advice and experience with students and budding entrepreneurs. I support Mark Cuban in this matter and believe he will be vindicated.

karmadrome

November 18, 2008 05:07 PM

Wow, lots of idiots talking about things they know nothing about. If you think Cuban should go to jail just because Martha did, you're an idiot. Two different cases, two different sets of facts and circumstances, two different conclusions. Until you know all the details, you cannot draw a blind conclusion like that. As far as the bailout, let's not forget who came up with the plan to begin with. That's right, the Dems. Paulson didn't write it, and if you're unhappy with how he's administering it, look at those who gave him the power. That's right, the Dems. And read up before you comment. Over half that money is going to sit there. Why? Probably because Paulson doesn't want to take the blame when this all goes wrong, so he's leaving most of it for the next administration. And the next administration would love to see much of it go to the automakers who have run themselves into the ground. So you complain that Paulson is giving all this money to businesses and banks who don't deserve, but support the guys who want to give even more money to banks and businesses that don't deserve it who are the much of the same guys who gave Paulson that power to begin with. Oh yeah, and they do have oversight, as Paulson is constantly reporting back to them and the oversight committees. Try going to the actual Department of Treasury's website instead of getting all your information from the media and the internet blogs.

Rodney

November 19, 2008 09:11 AM

Insider Training is a joke anyway. It's the only area where you are penalized for doing your research and homework. Even if Mark Cuban found out this information then why should he be forced to lose more money? I've never liked the reasoning behind insider trading. Sure, go ahead and invest, but remember you can't do research and find out secrets about the company you invest in or we will fine you and send you to jail. I thought we had a free enterprise system in America.

Jim in Missouri

November 19, 2008 11:12 AM

Maybe we should ask ourselves if this accusation is in any way connected to the fact that Cuban helped finance the critical film, Loose Change, about the many implausible "facts" concerning 911. Or maybe because Cuban's new TV network, HDNet has given Dan Rather his own investigative news program.

Think it's a possibility? I certainly do.

John

November 19, 2008 02:00 PM

Here's the issue. If Cuban wasn't privately informed of the PIPE, he doesn't sell the shares that day. Yes he's a great guy and all, but he acted on material/significant non-public information.

Now if it was publically known that the company was considering private placement - so he sold, or if he waits until the moment it becomes public information that the company plans on private placement - and then sells, there's no problem. But he didn't. He acted on non-public info, so he acted illegally.

See: http://www.sec.gov/answers/insider.htm for details

bw

November 19, 2008 08:22 PM

It is because Mark Cuban funded the website BailoutSleuth.com which exposes Corruption and the lack of transparency in the 700 billion dollar bailout. It is also been a pain in the rear to the Dep of Treasury. This is why the SEC is messing with Mark Cuban!!!

tony

November 21, 2008 01:42 AM

government always goes after the guy that speaks the truth about the bailout bullshit . mark cuban develops jobs what does all evil wallstreet guys take all are money leave us crap. go mark cuban

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