Galleon case portrays a world of corporate leaks

NEW YORK Mon Nov 2, 2009 3:38am EST

Galleon hedge fund partner Raj Rajaratnam (C) is escorted by FBI agents after being taken into custody in New York October 16, 2009. REUTERS/Brendan McDermid

Galleon hedge fund partner Raj Rajaratnam (C) is escorted by FBI agents after being taken into custody in New York October 16, 2009.

Credit: Reuters/Brendan McDermid

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NEW YORK (Reuters) - The Galleon insider trading case reveals a world where corporate secrets are thrown around with cavalier disregard for regulations on how public company information should be disclosed.

For much of the past decade, U.S. regulators have sought to fight selective disclosure of sensitive company information, believing that such data should be disclosed to all investors in a fair and equal manner.

But the Galleon scandal suggests there may be many in American business prepared to make a mockery of these efforts.

Prosecutors have charged six people, including billionaire Galleon Group founder Raj Rajaratnam, in the biggest hedge fund-related insider trading case in history. Rajaratnam was at the center of crisscrossing illegal information networks that brought more than $20 million (12 million pounds) in profit, according to the complaints.

Among those entangled in the case are executives at several major companies, including IBM (IBM.N) and Intel Corp (INTC.O); an executive at management consulting firm McKinsey & Co; an investor relations specialist; and a former Moody's analyst.

Some of these executives are alleged to have passed on information relating to their companies' earnings or deals, potentially violating the disclosure rule known as "Reg FD."

Regulation Fair Disclosure was put in place in 2000 to prevent corporate executives from selectively disclosing information to analysts and investors.

The rules have led to an increase in regulatory filings when executives speak at conferences, ensuring that information disclosed by the executives is available publicly. But the Galleon case is raising questions about whether rules to control such behavior have any teeth.

UNFAIR DISCLOSURE

"Selective release of information is a violation of Reg FD. Unfortunately, it happens every day of the week," said Mark Molumphy, a plaintiffs attorney at Cotchett Pitre & McCarthy in Burlingame, California.

"The competition that now exists among hedge funds to top each other in earnings has led to this culture of skirting the law or getting as close as you can to get inside information and to convince a corporation to leak information."

Reg FD has been enforced by regulators only a handful of times, and normally results in quiet settlements rather than protracted lawsuits.

Most cases have involved selective disclosures to Wall Street analysts or small groups of investors attending conferences, rather than to specific hedge funds.

The Securities and Exchange Commission's first enforcement action on Reg FD came in a November 2002 settlement with Siebel Systems Inc, Raytheon Co (RTN.N) and Secure Computing Corp for telling select analysts about deals and other significant financial details without disclosing them to the public. Siebel settled the case for $250,000. Raytheon and Secure Computing were not fined but agreed to cease-and-desist orders. The companies did not admit or deny the allegations.

Few other cases have been brought since then, but there may be signs that the SEC, under Chairman Mary Schapiro, is taking a harder look at Reg FD violations.

Last month, the agency settled its first Reg FD violation since 2007, against the former chief financial officer of American Commercial Lines Inc ACLI.O, who was accused of providing "additional color" to analysts on the company's 2007 second-quarter earnings forecast in a private email.

Resulting analyst reports triggered a sharp drop in American Commercial Lines' stock price on unusually high volume. The SEC said the executive, Christopher Black, had not informed anyone at the company about the email, which he sent from home. Black agreed to pay a $25,000 penalty, without admitting or denying the allegations.

"This is the kind of thing where you say common sense ain't so common," said Mary Beth Kissane, a principal in the Investor Relations and Corporate Transactions practice at public relations firm Walek & Associates.

WILL REG FD BE USED IN GALLEON?

Whether Reg FD will be used as a prosecution tool in the Galleon case is up for debate, experts said.

Rajaratnam formed Galleon in 1997, before Reg FD took effect. Court documents allege Galleon was receiving material non-public information about Intel as early as 1998 from then Intel employee Roomy Khan, who is now acting as a cooperating witness in the case.

Michael Perlis, a former SEC assistant director of enforcement, said insider-trading laws are more likely to be used than Reg FD in the Galleon case, though Reg FD could be used.

But Lou Thompson, managing director at Kalorama Partners and former CEO of the National Investor Relations Institute, said Reg FD may not apply, depending on what role the accused corporate informants had in their companies.

"One of the interesting things about Reg FD is that Reg FD is explicit about who is covered by Reg FD, and that is officers, directors, IR and PR people," Thompson said.

Someone who is not in one of those roles -- such as the head of an operating unit -- may be able to disclose material, non-public information without technically violating Reg FD.

But that person may be violating a host of other corporate policies and insider-trading rules, Thompson added.

Published reports on the Galleon case allege that in one instance, Hector Ruiz, the high-flying former chief executive of chip maker Advanced Micro Devices Inc (AMD.N), passed on tips about an impending deal involving his company to Danielle Chiesi, a Rajaratnam associate and portfolio manager at hedge fund firm New Castle Partners.

Chiesi is among those charged in the case, along with Rajaratnam; IBM's senior vice president, Robert Moffat; Intel Capital's Rajiv Goel; McKinsey & Co's Anil Kumar; and Mark Kurland, a co-founder of New Castle Partners.

But many of those alleged to be sources of insider information have not been charged, including Ruiz, the former Moody's analyst, a former employee at investor relations firm Market Street Partners, and executives from Polycom Inc (PLCM.O) and Akamai Technologies Inc (AKAM.O).

(Reporting by Emily Chasan and Anupreeta Das; Additional reporting by Gina Keating in Los Angeles; Editing by Gary Hill and John Wallace)

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