July 9, 2013
Third Circuit affirms record-long insider-trading sentenceAs reported in this Forbes piece, headlined "Inside Trader Matthew Kluger's 12-Year Prison Term Affirmed," a panel of the Third Circuit today rejected a range of arguments against a lengthy federal sentence for insider trading. Here are the basics:
The prison term given to Matthew Kluger by U.S. District Judge Katharine Hayden (New Jersey) represented the longest ever given to a person pleading guilty to charges of insider trading. Upon his arrest in April 2011, Kluger quickly decided to enter negotiations to plead guilty and throw himself on the mercy of the court. That strategy landed him in prison for 12 years.
Kluger was a lawyer (NYU Law) who worked on mergers and acquisitions of publicly traded companies at prestigious law firms, including Wilson Sonsini Goodrich & Rosati PC. He then passed that confidential information on to a middle man (Kenneth Robinson), who then passed it on to a trader, Garrett Bauer. The scheme worked for 17 years because there was no direct communication between Kluger, the source, and Bauer, the trader. In fact, the two had only met once at the beginning of their illegal trading. The Securities and Exchange Commission had suspicions of Bauer’s trading activities but could never tie him to a source for the information. However, when Bauer backed out of the trading scheme in 2010, Robinson and Kluger continued … that was when the SEC and the FBI pulled everything together. As David Voreacos (Bloomberg) noted in his excellent profile of Kluger, the scheme succeeded for so long because of its simplicity, the discipline of its limited number of people and its essential amoral nature.
The basis of Kluger’s appeal was that Bauer was supposed to buy only small number of shares, to avoid detection from authorities, and then the three would equally share in the profits. However, Bauer, unknown to Kluger, was trading large blocks of shares for his own benefit, resulting in millions in profits. Whereas Kluger believed that the profits were just around $2 million (a little of $600k each), the total profits from the information he provided to the conspiracy approached $37 million with Bauer receiving the majority of the money. Kluger was sentenced by Judge Haydan according to the Federal Sentencing Guideline based on the amount of the total gain and not the amount he personally realized from the trades. His guideline range at sentencing was 11-14 years … so 12 seemed fair to the judge.
The 3rd Circuit agreed with Judge Hayden, stating that Kluger, “… truly was a career criminal.” Upon being notified of the decision, U.S. Attorney Paul J. Fishman (District of New Jersey) released a statement, “We argued at sentencing that a severe penalty was appropriate for one of the longest running insider trading schemes ever prosecuted, and are gratified the Court of Appeals saw it the same way.”
Kenneth Robinson, who recruited Bauer and hatched the initial plan with Kluger, did not appeal his prison term of 27 months. Robinson was the first to cooperate with authorities and recorded conversations with both Bauer and Kluger, which sealed their fate. Note to file; It pays to cooperate early.
The full panel opinion in US v. Kluger, No. 12-2701 (3d Cir. July 9, 2013) (available here) runs 48 pages, and this paragraph from the start of the opinion provides an effective accounting of the sentencing issues raised (and ultimately rejected) on appeal:
On June 13, 2012, Kluger filed a timely appeal, raising the following arguments. First, he challenges the District Court's calculation of his sentencing guidelines range. Second, he contends that the Court procedurally erred in imposing the sentence on him by (1) improperly denying him an evidentiary hearing prior to his sentencing; (2) failing to resolve his objections to the presentence investigation report; and (3) not ordering discovery of materials that the govern ment turned over to the probation department for use in preparing the presentence report. Finally, he contends that the District Court imposed a procedurally and substantively unreasonable sentence
July 9, 2013 at 04:19 PM | Permalink
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Posted by: Just Plain Jim | Jul 9, 2013 5:04:08 PM