S.E.C. v. RajaratnamS.E.C. v. Rajaratnam
In this civil action, filed in the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge), the Securities and Exchange Commission (“SEC“) charged defendant-appellant Raj Rajaratnam with insider trading conduct for which he was criminally prosecuted by the United States Department of Justice. See United States v. Rajaratnam, 09 Cr. 1184 (S.D.N.Y. Holwell, J.). After Rajaratnam‘s conviction following trial, the SEC moved for summary judgment in the civil case. As part of its requested relief, the SEC sought a civil penalty pursuant to Securities Exchange Act Section 21A,
Rajaratnam was the managing general partner and portfolio manager of Galleon Management, LP, a registered investment adviser, and its affiliated multi-billion dollar group of hedge funds (collectively, “Galleon“). In 2011, Rajaratnam was indicted in the Southern District of New York on nine counts of substantive securities fraud under Securities Act Section 17(a), Exchange Act Section 10(b), and Exchange Act Rule 10b-5, based on his insider trading in the stock of five different companies, and five counts of conspiracy to commit insider trading.
On the day that Rajaratnam was arrested, the SEC filed a parallel civil complaint, also in the Southern District of New York, charging Rajaratnam with the same insider trading conduct alleged in his criminal case. Specifically, the SEC alleged, among other things, that Rajaratnam‘s purchases and sales of stock in certain companies on the basis of material nonpublic information violated Securities Act Section 17(a),
Subsection (a)(1) of Section 21A authorizes the SEC to bring a civil action against a person who violates the insider trading laws. Subsection (a)(2) concomitantly authorizes the district court to impose a civil penalty “on the person who committed such violation” in an amount to be determined by the district court “in light of the facts and circumstances,” but stipulates that such penalty “shall not exceed three times the profit gained or loss avoided as a result of such unlawful purchase, sale, or communication.” The SEC‘s case before Judge Rakoff proceeded on a track parallel to the criminal case, before then-Judge Holwell.
After an eight-week trial in the criminal case, a jury found Rajaratnam guilty on all counts charged.1 Specifically, Rajaratnam was found to have executed trades in Galleon‘s accounts and in the account of Rajiv Goel (“Goel“), an Intel executive who had provided tips to Rajaratnam, in the stock of five companies on the basis of inside information. The district court sentenced Rajaratnam to 132 months’ imprisonment and to a $10 million criminal fine. In a
After Rajaratnam‘s conviction, the SEC moved for partial summary judgment in the civil case on its claims of insider trading in the same five stocks that formed the factual basis for Rajaratnam‘s criminal conviction.2 Rajaratnam conceded that his criminal conviction for insider trading in these five stocks collaterally estopped him from contesting liability. Rajaratnam did not oppose entry of a permanent injunction prohibiting him from further violating the securities laws’ antifraud provisions. The SEC agreed that its demand for $31.6 million in disgorgement was moot in light of the $53.8 million forfeiture order. Thus, the only issues in dispute on summary judgment were the need for, and the amount of, the civil penalty.
In response, Rajaratnam argued that no civil penalty at all was warranted because of the punishment already meted out in his criminal case: 11 years’ imprisonment, the longest prison term ever imposed for insider trading, a criminal fine of $10 million, and a $53.8 million order of forfeiture. In the event that the district court did impose a civil penalty, Rajaratnam argued that the penalty should be calculated by reference only to the profits Rajaratnam personally received as a result of the conduct at issue. Those profits, approximately $4.7 million, came from Rajaratnam‘s share of his management fees and returns on his personal investment in Galleon‘s funds.
The district court concluded that the Section 21A(a)(2) penalty of “three times the profit gained or loss avoided” was not limited to Rajaratnam‘s personal gains (of around $4.7 million) but, rather, extended to the amount resulting from the “illegal trades [Rajaratnam] executed.” SEC v. Rajaratnam, 822 F. Supp. 2d 432, 435 (S.D.N.Y. 2011). The district court reasoned that “nothing in the text of Section 21A” required that the civil penalty be based only on profits Rajaratnam “personally gained,” that no case law supported limiting the civil penalty amount to personal gain, and that Rajaratnam‘s reading would result in the
The district court then decided that imposing a civil penalty of three times the base amount of profit gained and loss avoided was warranted because “this case meets every factor favoring trebling“: Rajaratnam‘s violations were egregious; he acted with a high degree of scienter; his conduct created substantial losses to investors; his conduct continued for years; and he had the ability to pay a substantial penalty. Id. at 433–34. The district court concluded that “this case cries out for the kind of civil penalty that will deprive [Rajaratnam] of a material part of his fortune” given the “huge and brazen nature of Rajaratnam‘s insider trading scheme, which, even by his own estimates, netted tens of millions of dollars and continued for years.” Id. at 434.
The district court acknowledged that Rajaratnam had already been punished in the criminal case, and noted that penalties imposed on a defendant in a “parallel criminal action may . . . be relevant” to the size of the civil penalty. Id. But the district court found that the maximum civil penalty was warranted despite Rajaratnam‘s criminal sentence because the focus of criminal punishment is on moral blameworthiness, by contrast to SEC civil penalties, which are
Rajaratnam timely appealed from the district court‘s final judgment.
DISCUSSION
Rajaratnam raises two arguments on appeal. First, he argues that the civil penalty for insider trading under Section 21A may not exceed three times his own profit gained or loss avoided. Second, he argues that the district court abused its discretion in imposing the maximum penalty under the statute, because it improperly relied on his wealth to justify the penalty, and failed to consider the criminal penalties already imposed on him.
We review the district court‘s ruling on the former question, a matter of statutory interpretation, de novo. See Ehrenfeld v. Mahfouz, 489 F.3d 542, 547 (2d Cir. 2007). We review its decision on the latter question, the appropriateness of the district court‘s selection of a civil penalty, for abuse of discretion. See SEC v. Pentagon Capital Mgmt. PLC, 725 F.3d 279, 287 (2d Cir. 2013). “[T]he burden of showing that the [district] court abused [its] discretion . . . necessarily is a heavy one.” SEC v. Manor Nursing Ctrs., Inc., 458 F.2d 1082, 1100 (2d Cir. 1972). “Under this standard, we will reverse only if we have a definite and firm conviction that
I. The Section 21A Treble Damages Provision
The district court calculated the base amount of Rajaratnam‘s civil penalty by using Rajaratnam‘s calculation of the “profit gained or loss avoided” as a result of the illegal trades he executed, even though the pecuniary gain from those trades went mostly to Galleon‘s and Goel‘s accounts. Rajaratnam argues that the district court erred because the maximum penalty under Section 21A is “three times the profit gained or loss avoided” by the defendant, and that the penalty should therefore be calculated with reference only to the $4.7 million he personally realized from his management fees, bonuses, and investment returns from Galleon. Rajaratnam claims that the statute‘s text, structure, legislative history, and purpose support his contention.4 We disagree.
The amount of the penalty which may be imposed on the person who committed such violation shall be determined by the court in light of the facts and circumstances, but shall not exceed three times the profit gained or loss avoided as a result of such unlawful purchase, sale, or communication.
Rajaratnam argues that because subsection (a)(2) does not identify who must gain profit or avoid losses, the civil penalty calculation must be limited to the violator‘s personal profit.5 But a plain reading of subsection (a)(2) indicates
Our interpretation of the statute is confirmed by the fact that elsewhere in the federal securities laws Congress expressly limited the “amount of the penalty” for particular violations to the “gross amount of pecuniary gain to such defendant as a result of the violation.” See, e.g., Securities Act Section 20(d)(2),
Nor can Rajaratnam‘s interpretation of Section 21A be reconciled with how the statute treats tippers who do not themselves trade or otherwise receive pecuniary gain for their tips. Subsection (a)(1) makes tippers who unlawfully communicate inside information “violat[ors]” eligible for a civil penalty. Subsection (a)(2) then provides for the imposition of a civil penalty on “the person who committed such violation” (including the tipper who does not himself trade) in an amount up to three times the profit gained or loss avoided “as a result of such unlawful purchase, sale, or communication.”
Further, we are unpersuaded by Rajaratnam‘s argument that the deterrence purpose of Section 21A is served only if the base amount of the penalty is the amount of profit earned by the defendant. As we explained in SEC v. Contorinis, 743 F.3d 296, 303 (2d Cir. 2014), cert. denied, 136 S. Ct. 531 (2015), in affirming a disgorgement award of profits channeled to friends, family, and clients, “[w]hether the defendant‘s motive is direct economic profit, self-aggrandizement, psychic satisfaction from benefitting a loved one, or future profits by enhancing one‘s reputation as a successful fund manager, the insider trader who trades for another‘s account has engaged in a fraud, secured a benefit
Rajaratnam next argues that, whatever the statutory maximum, the district court abused its discretion in setting the amount of the penalty because the district court impermissibly relied on the defendant‘s wealth and refused to consider the deterrent effect of the criminal penalties already imposed on him. We reject those arguments, which distort the district court‘s actual reasoning.
Section 21A(a)(2) authorizes federal courts to impose civil penalties for insider trading violations in amounts “determined by the court in light of the facts and circumstances.” The district court noted that this was a broad mandate, and cited the factors from SEC v. Haligiannis, 470 F. Supp. 2d 373, 386 (S.D.N.Y. 2007), which courts frequently consider in setting such penalties, including “(1) the egregiousness of the defendant‘s conduct; (2) the degree of the defendant‘s scienter; (3) whether the defendant‘s conduct created substantial losses or the risk of substantial losses to other persons; (4) whether the defendant‘s conduct was isolated or recurrent; and (5) whether the penalty should be reduced due to the defendant‘s demonstrated current and future financial condition.” Rajaratnam, 822 F. Supp. 2d at 433. The district court then held that every factor favoring trebling is present here. Id. at 434. Rajaratnam does not contend that these factors
A. The District Court‘s Consideration of Rajaratnam‘s Wealth
Rajaratnam claims that the district court impermissibly justified its imposition of a massive penalty on the basis of Rajaratnam‘s wealth. He maintains that only one of the Haligiannis factors touches on the defendant‘s wealth, and that factor provides only for mitigation, not aggravation. He argues that these factors allow no room for the use of a defendant‘s financial status to increase the penalty imposed on him.
While the Haligiannis factors have been considered in several cases, see SEC v. Gupta, 569 F. App‘x 45, 48 (2d Cir. 2014); SEC v. Milligan, 436 F. App‘x 1, 2 (2d Cir. 2011); SEC v. Rosenthal, 426 F. App‘x 1, 2 (2d Cir. 2011), they have not been deemed an exhaustive list by this Court and are not to be taken as talismanic. We have never held that it is impermissible for a district court to consider a defendant‘s wealth in imposing a civil penalty. In fact, other circuits have explicitly approved the consideration of a defendant‘s wealth in imposing a civil penalty under Section 21A. See, e.g., SEC v. Lipson, 278 F.3d 656, 665 (7th Cir. 2002) (upholding the district court‘s discretion to impose a treble civil penalty given the defendant‘s wealth); cf. SEC v. Warren, 534 F.3d 1368, 1370 (11th Cir. 2008) (holding it permissible for the district court to consider the defendant‘s wealth in setting a civil penalty); SEC v. Sargent, 329 F.3d 34, 42 (1st Cir. 2003) (considering defendant‘s financial worth in determining whether to assess civil penalties). And we have held it is permissible to do the same in imposing a criminal fine under the Sentencing Guidelines. See United States v. Zukerman, 897 F.3d 423, 431 (2d Cir. 2018) (“[A] defendant‘s wealth is relevant in determining whether a particular fine will deter illegal conduct . . . [because a] fine can only be an effective deterrent if it is painful to pay, and whether a given dollar amount hurts to cough up depends upon the wealth of the person paying it.“).
We thus have no hesitation in concluding that, in calculating the size of a penalty necessary to deter misconduct, the extent of a defendant‘s wealth is a relevant consideration. A fine that would be significantly painful to a person of modest means might be a mere slap on the wrist or “cost of doing business” to a wealthier offender. Rajaratnam contends, however, that the district court‘s use of this factor was motivated by a bare desire to strip Rajaratnam of his wealth, much of which, it is undisputed, was earned legitimately. We do not question that a
Rajaratnam points to the district court‘s statement that “this case cries out for the kind of civil penalty that will deprive this defendant of a material part of his fortune.” Rajaratnam, 822 F. Supp. 2d at 434. But read in context, it is clear that the district court had already concluded that the brazenness, scope, and duration of Rajaratnam‘s insider trading warranted a significant penalty. A review of the record as a whole, including the transcript from the hearing before the district court on the amount of the penalty, reveals that the district court was concerned with whether “it [was] realistically likely that [Rajaratnam would] be able to pay.” App. at 324. The district court made clear that it did not want to enter a “symbolic” judgment that lacked a “reasonable possibility it gets paid.” App. at 324–25. The district court accepted Rajaratnam‘s invitation to review the portion of the Pre-Sentence Report from his criminal case that set forth his net worth, and then concluded (in what, after reviewing that Report, we regard as an
B. The District Court‘s Consideration of Rajaratnam‘s Criminal Penalties
Rajaratnam also asserts that the district court improperly refused to take any account of the other penalties to which he had already been subjected. But again the record reflects otherwise. The district court explicitly noted that
That the district court did not ultimately offset the amount of the civil penalty against the extent of Rajaratnam‘s criminal punishment does not mean that the district court did not consider those punishments, still less that it abused its discretion. Section 21A provides that a civil action brought by the SEC for a civil penalty “may be brought in addition to any other actions that the Commission or the Attorney General are entitled to bring.”
CONCLUSION
For the reasons stated above, we AFFIRM the order of the district court.
Notes
In Contorinis, we interpreted the forfeiture statute in light of the meaning of the word “forfeiture.” 692 F.3d at 146. We held that someone could not be ordered to forfeit profits that he never received or possessed because “forfeiture” generally connotes a person‘s losing an entitlement as a penalty for proscribed conduct. Id. Contorinis, therefore, could not be ordered to forfeit the profits that the Government sought because such profits were in the possession of the beneficiary fund over which Contorinis entirely lacked control. Id. But even in that context, we noted that the general rule that forfeiture relates to the defendant‘s own gains is “somewhat modified by the principle that a court may order a defendant to forfeit proceeds received by others who participated jointly in the crime, provided the actions generating those proceeds were reasonably foreseeable to the defendant.” Id. at 147. Nothing in the idea of a civil penalty, which is designed to deter future violations, implies a comparable limitation to funds in the immediate possession of the violator.
In any event, Rajaratnam‘s case has already been distinguished from Contorinis on its facts. See Rajaratnam v. United States, 736 F. App‘x 279 (2d Cir. 2018). After this Court decided Contorinis, Rajaratnam sought coram nobis relief on the grounds that his criminal forfeiture order under
Rajaratnam was the founder and managing general partner of Galleon and, as such, exercised control over both that firm and the proceeds it acquired, including the proceeds acquired as a result of his insider trading. Even if those proceeds subsequently were distributed to investors, with Rajaratnam personally retaining only a percentage as management fees, he nonetheless had authorityoverdisbursements, and, thus, exercised control over the proceeds at some point.
Id. at 283–84 (quoting Contorinis, 692 F.3d at 147).
Thus, even in the context of forfeiture itself, Contorinis did not control this case. Still less does it have any application to the civil penalty at issue here.