U.S. Attorney Preet Bharara in Manhattan took a step closer to the billionaire on Nov. 20, when former SAC Capital portfolio manager Mathew Martoma was arrested on charges of using inside information to trade the stocks of drugmakers Elan Corp. and Wyeth LLC. Cohen sold the stocks after speaking with Martoma, according to prosecutors and an SEC complaint, the first time they had linked him to trades at the center of an insider case.
The same day the SEC notified Stamford, Connecticut-based SAC Capital that it’s considering pursuing civil fraud claims against the $14 billion firm related to Martoma’s trading, three people with knowledge of the matter said two days ago. It was another example of how the SEC and U.S. Attorney Preet Bharara have cooperated in their probe of insider trading that has led to more than 80 people, with prosecutors often going to court first.
“The U.S. attorney brought a case against Martoma to try to force him to cooperate against Cohen to the extent that there is a case against him,” said Marc Powers, the leader of Baker & Hostetler LLP’s national litigation and regulatory enforcement practice in New York. “The SEC is likely waiting to see if the U.S. attorney’s office is able to flip Martoma against Cohen before they provide Cohen with a Wells notice.
In addition to fraud, the SEC’s so-called Wells notice to SAC Capital also outlined claims related to the firm’s responsibility for overseeing CR Intrinsic Investors LLC, the unit that employed the Martoma, said one of the people, who like the others asked not to be named because the information is private. The regulator may extend the fraud and oversight claims to Cohen himself, the person said.
John Nester, a spokesman for the SEC in Washington, declined to comment on whether or how the agency would proceed against SAC Capital. Ellen Davis, a spokeswoman for Bharara, declined to comment.
Cohen, 56, told investors yesterday/two days ago on a conference call that he acted appropriately when he sold shares of Wyeth and Elan on the advice of Martoma. Neither Cohen nor SAC Capital was accused of wrongdoing in last week’s criminal complaints.
‘‘Mr. Cohen and SAC are confident that they have acted appropriately and will continue to cooperate with the government’s inquiry,” a spokesman for SAC Capital said last week in an e-mailed statement.
The complaint against Martoma said that the 38-year-old portfolio manager had a 20-minute phone call with Cohen, who in court papers is described as the “hedge fund owner” and not identified. The next day, the billionaire ordered his head trader to start selling the firm’s $700 million position in the two companies. The sale was done through dark pools, which conceal the identity of the buyers and sellers, to hide it from other investors both inside and outside of SAC Capital, according to the complaint.