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Univ. of San Diego School of Law

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Thursday, November 20, 2008

Why Is Cuban Facing a Fine When Martha Faced the Slammer?

With Dallas Mavericks owner Mark Cuban facing civil insider-trading charges (PDF) from the SEC, we got to wondering what it takes for securities fraud to become a crime.

The short answer: It depends on the prosecutor.

The SEC does not have authority to bring criminal charges -- it can only refer allegations to law enforcement. Then prosecutors decide whether to pursue a criminal case.

Prosecutors can be swayed by how egregious the allegations are or how much money is involved.

And they are more likely to target people who should have known they were breaking the law. People like Martha Stewart: a former stock broker, director of the New York Stock Exchange and one-time resident of the Alderson Federal Prison Camp for women. (In Stewart's 2004 insider-trading criminal case, a judge dismissed securities-fraud charges against her, but a jury convicted her of obstruction of justice.)

Because of its high-profile status, Stewart's case is precisely the type that the SEC refers for criminal prosecution. "The SEC pushes criminal penalties if they think it'll get attention" and serve as a deterrent to others, Robert Brunig, the former head of the SEC's Forth Worth trial unit told us.

According to this year's SEC Enforcement Manual (PDF), officials also consider whether a criminal case will "provide additional meaningful protection to investors."

Occasionally, the SEC's civil case will be the stepping stone to a criminal one. While testifying at trial a civil defendant might further implicate himself, allowing the SEC to "turn him over on a silver platter to prosecutors," Brunig said. [Mark Godsey]

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