The SEC claims that insider trading defendant Thomas Condradt committed perjury at the trial of his co-defendant Daryl Payton in breach of his cooperation agreement and, instead of the agreed-upon penalty of $2,533, the SEC is now seeking a penalty of almost $3 million.  The jury ultimately convicted Payton, even though the SEC was clearly displeased with Conradt.  (We have covered this case in several posts, see here, including Mr. Payton’s own troubles with perjury allegations, see here.  More color is provided by an article in the WSJ (h/t) today).

The SEC argued that Conradt had to be repeatedly impeached with his prior deposition testimony at trial, at should be punished in a way that deters others from doing the same:
Continue Reading SEC Claims Cooperator Lied At Trial; Seeks To Up Penalty from $2,500 to $3 Million

In an opinion today, Judge Rakoff explained why he would decline to refer Darlyl Payton, a defendant who was recently found liable an SEC insider trading case, to the U.S. Attorney’s Office for a perjury prosecution related to Mr. Payton’s testimony in the SEC case.  Mr. Payton had pleaded guilty to criminal insider trading charges but later was allowed to withdraw the appeal in light of the Second Circuit’s decision in United States v. Newman, which held that insider trading required the recipient of a stock tip to have “knowledge that the insider disclosed confidential information in exchange for personal benefit.”  Judge Rakoff concluded that Mr. Payton testified at the SEC trial in a manner that was materially different than his earlier plea allocution, but nonetheless found that a criminal referral was not warranted for four reasons:
Continue Reading Judge Rakoff Reluctantly Declines to Refer Defendant in SEC Civil Case for Criminal Perjury Prosecution

In an opinion today, Judge Pauley largely denied a motion to dismiss a civil case brought by David Ganek, the former head of hedge fund Level Global.  Mr. Ganek accuses U.S. Attorney Preet Bharara and various other government officials of using a fabricated affidavit – which was later contradicted by trial testimony – as the basis for a search warrant and office raid that ultimately caused the collapse of Level Global.   According to Mr. Ganek, the government tipped off the Wall Street Journal about the raid, so as to inflict the maximum harm, and without any legitimate law enforcement purpose.  Judge Pauley described the allegations as “grave” and allowed most of the claims, based on the Fourth and Fifth Amendments, to proceed.

He ruled that the claims could even proceed against supervisors in the U.S. attorney’s office because the detailed facts alleged made it at least plausible that they were involved:
Continue Reading Judge Pauley Denies Motion to Dismiss Civil Suit Accusing Federal Prosecutors of Fabricating Evidence that Led to Collapse of Hedge Fund

In an opinion yesterday, Judge Rakoff denied a summary judgment motion brought by two SEC defendants who traded on a tip that IBM was about to acquire a company called SPSS.  The tip passed from a lawyer working on the deal (Dallas) to his friend (Martin), then to Martin’s roommate (Conradt) and, ultimately, to the two defendants.

The SEC ‘s theory was that Martin and Dallas had an understanding that the information would not be used for trading, and that Martin breached that duty by telling his roommate Conradt in exchange for various miscellaneous benefits from Conradt, such as his taking the lead on dealing with issues at their apartment.  The defendants acted with the required knowledge, according to the SEC, because they consciously avoided learning anything about the source of the tip.Continue Reading Judge Rakoff : “Conscious Avoidance” of Source of Stock Tip Can Result in Liability, Even After Newman Decision

The SDNY Blog is relaunching as a publication of Steptoe & Johnson LLP.  We expect to post several times a week on decisions and other developments in the Southern District of New York.  You can find us right here at, or follow us on Twitter or Facebook.

Here’s a quick summary of what’s been happening in the Southern District while we were away:

  • Judge Berman vacated the NFL’s four-game suspension of New England Patriots quarterback Tom Brady for his alleged role in deflating footballs used during the 2015 AFC Championship Game.  Judge Berman concluded that “Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation with the ensuing Investigation.”

Continue Reading SDNY Blog Returns as Steptoe Blog

In an opinion yesterday, Judge Rakoff denied a motion to dismiss an SEC complaint against two individuals who traded stocks after learning about an impending acquisition from a co-worker, Thomas Conradt, who, in turn, learned the information from his roommate Trent Martin.  The opinion begins by acknowledging the “difficulties” with having insider trading defined by case law instead of by statute:
Continue Reading Judge Rakoff, Acknowledging “Difficulties” In Defining Insider Trading, Upholds SEC Complaint Notwithstanding Newman Decision

In an opinion Friday, Judge Rakoff denied class certification in an class action accusing various defendants connected to a hedge fund of trading on insider information to the detriment of investors who traded around the same time. Judge Rakoff disqualified one of two proposed class representatives because he had an undisclosed arrangement for an attorney

A complaint filed yesterday is the second SDNY suit (see our post on the first one, here) to argue that SEC ALJ’s are too insulated from accountability to the executive branch, in violation of Article II of the Constitution. The underlying case involves administrative charges against Jordan Peixoto, who allegedly shorted Herbalife stock in advance of a presentation by the hedge fund Pershing Square accusing Herbalife of being a pyramid scheme. Peixoto allegedly received the information from a friend (Filip Szymik) who was roommates with an analyst at Pershing Square. Peixoto argues that the case was brought administratively to avoid having a jury rule on weak evidence and on a novel application of the insider trading laws:
Continue Reading Herbalife Case Raises Second Challenge to Constitutionality of SEC ALJs

As expected, the Second Circuit’s decision in a pending appeal involving Citibank paved the way for Judge Marrero to approve, in an opinion today, the SEC’s proposed $614 million settlement with SAC Capital. Judge Marrero initially expressed concern about the settlement being on a “neither-admit-nor-deny” basis, but, since then, a jury found former SAC Capital manager Matthew Martoma criminally liable for insider trading, and SAC Capital’s affiliate, CR Intrinsic, pled guilty to criminal insider trading. These facts appeared to assuage Judge Marrero’s earlier concerns:
Continue Reading Judge Marrero Approves $614 Million SAC Capital Settlement With SEC in Light of Second Circuit Ruling in Citi Case

In an opinion dated yesterday, Judge Oetken dismissed an SEC complaint against two individuals who made what it contended were highly suspicious trades in the stock of Onyx Pharmaceuticals, Inc. shortly before Amgen, Inc. made an unsolicited bid for Onyx that made Onyx’s stock price rise. Judge Oetken ruled that the complaint did not have enough facts to suggest that there was an unlawful tip:
Continue Reading Judge Oetken Dismisses SEC Insider Trading Complaint Containing “All Belief and No Information”