Wednesday, July 24, 2013

Suspension For Insider Trading

An attorney who engaged in insider trading was suspended for three years by the New York Appellate Division for the Second Judicial Department.

The court applied collateral estoppel based on related civil proceedings in finding that

In or about 2000 and 2001, the respondent was associate general counsel to NBTY, Inc. (hereinafter NBTY), a nutritional supplement company that was publicly traded on NASDAQ. On or about March 2, 2006, the respondent was named as a defendant in Securities and Exchange Commission v Drucker, in the United States District Court for the Southern District of New York, under Docket No. 06 Civ. 1644.

The complaint in the foregoing matter alleged, in sum and substance, that, in or about October 2001, the respondent and his father, Ronald Drucker, engaged in unlawful insider trading by selling their shares of NBTY stock one day before NBTY made public a negative earnings announcement. It was alleged that, in his capacity as associate general counsel to NBTY, the respondent "routinely received sensitive and confidential information about NBTY. [The respondent] owed a duty to keep confidential, and not use for personal gain, any material, non-public information concerning NBTY." At the time of these sales, the respondent was alleged to have been "aware of material, non-public information" concerning NBTY's fourth-quarter earnings.

At the close of the stock market on October 19, 2001, NBTY publicly announced that its fourth-quarter earnings would be lower than expected. On the next trading day, the value of NBTY's shares fell approximately 27%. On October 18, 2001, one day prior to NBTY's public announcement, the respondent placed orders to sell his entire holdings of NBTY stock, consisting of 25,700 shares. At the same time, the respondent contacted his father, Ronald Drucker, and "tipped him." "Within minutes," Ronald Drucker sold his entire holdings of NBTY stock. Also at the same time, the respondent "directed the sale" of the entire NBTY holdings of his friend William V. Minerva. By trading in advance of the negative earnings announcement, the respondent, Ronald Drucker, and William V. Minerva avoided losses of approximately $200,000.

As to sanction:

 ...we note the absence of cooperation by the respondent with the SEC, as well as the absence of any admission by the respondent that he engaged in insider trading. As the District Court noted, the respondent "failed to cooperate . . . until . . . he could no longer conceal his transgression, thereby misleading his employer," and he failed to take responsibility for what he did. We find the absence of remorse to be an aggravating factor, consistent with the District Court's finding that the respondent was entitled to "no mercy" as a result of the "brazenness" of his conduct and his "cocky refusal to own up to it." Moreover, we note the District Court's description of the respondent as having "demonstrated utter indifference to the law and to his client," and of his conduct as "egregious."

(Mike Frisch)

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