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SEC charges hedge fund firm CR Intrinsic over USD276m insider trading scheme

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The Securities and Exchange Commission today charged Stamford, Connecticut-based hedge fund advisory firm CR Intrinsic Investors LLC and its former portfolio manager along with a medical consultant for an expert network firm for their roles in a USD276 million insider trading scheme involving a clinical trial for an Alzheimer’s drug being jointly developed by two pharmaceutical companies.

The illicit gains generated in this scheme make it the largest insider trading case ever charged by the SEC.

The SEC alleges that Mathew Martoma illegally obtained confidential details about the clinical trial from Dr Sidney Gilman, who served as chairman of the safety monitoring committee overseeing the trial. Dr Gilman was selected by Elan Corporation and Wyeth to present the final drug trial results to the public. In phone calls that were arranged by a New York-based expert network firm for which he moonlighted as a medical consultant, Dr Gilman tipped Martoma with safety data and eventually details about negative results in the trial about two weeks before they were made public in July 2008. Martoma then caused several hedge funds to sell more than USD960 million in Elan and Wyeth securities in just over a week.

Dr Gilman, who lives in Ann Arbor, Michigan, where he works as a medical school professor, has agreed to settle the SEC’s charges and cooperate in this action and related SEC investigations. In a parallel action, the U.S. Attorney’s Office for the Southern District of New York today announced criminal charges against Martoma and a non-prosecution agreement with Dr Gilman. Martoma lives in Boca Raton, Florida.

“Today’s record-setting insider trading case reinforces the cold, hard lesson of so many other recent cases that when you trade on inside information, you’re not just betting your money but also your career, your reputation, your financial security, and your liberty,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “Now, yet another corrupt hedge fund manager has learned the high cost of ignoring that lesson.”

Sanjay Wadhwa, Associate Director of the SEC’s New York Regional Office and Deputy Chief of the Enforcement Division’s Market Abuse Unit, added, “Today’s action against CR Intrinsic underscores our commitment to hold hedge fund advisory firms accountable when their employees break the law for the firms’ benefit. The clear message is that firms should adopt appropriate procedural safeguards and a culture of zero tolerance toward employee misconduct that could subject the firm to such serious consequences.”

According to the SEC’s complaint filed in federal court in Manhattan, Martoma first met Dr Gilman through paid consultations arranged by the expert network firm. Dr Gilman provided Martoma with material nonpublic information concerning the Phase II trial of the potential Alzheimer’s drug called bapineuzumab (bapi). They coordinated their expert network consultations around scheduled safety monitoring committee meetings, and during their phone calls they discussed PowerPoint presentations made during the meetings and Dr Gilman provided Martoma with his perspective on the results. Dr Gilman developed a personal relationship with Martoma, eventually coming to view Martoma as a friend and pupil.

The SEC alleges that Martoma caused hedge funds managed by CR Intrinsic as well as hedge funds managed by an affiliated investment adviser to trade on the negative inside information he received from Dr Gilman. Although Elan and Wyeth’s shares rose on 17 June, 2008, on the public release of top-line results of the Phase II trial, market participants were disappointed by the detailed final results issued on 29 July, 2008. Double-digit declines in Elan and Wyeth shares ensued. After Martoma was tipped, the hedge funds not only liquidated their combined long position in Elan and Wyeth of more than USD700 million, but went on to hold substantial short positions in both securities. This massive repositioning allowed CR Intrinsic and the affiliated advisory firm to reap approximately USD82 million in profits and USD194 million in avoided losses for a total of more than USD276 million in illicit gains.

According to the SEC’s complaint, Martoma received a USD9.3 million bonus at the end of 2008 – a significant portion of which was attributable to the illegal profits that the hedge funds managed by CR Intrinsic and the other investment advisory firm had generated in this scheme. Dr Gilman, who was generally paid USD1,000 per hour as a consultant for the expert network firm, received more than USD100,000 for his consultations with Martoma and others at the hedge fund advisory firms. Dr Gilman also received approximately USD79,000 from Elan for his consultations concerning bapi in 2007 and 2008.

The SEC’s complaint charges each of the defendants with violating Section 17(a) of the Securities Act of 1933, and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, and seeks a final judgment ordering them to disgorge their ill-gotten gains plus prejudgment interest, ordering them to pay financial penalties, and permanently enjoining them from future violations of these provisions of the federal securities laws.

Dr Gilman has agreed to pay more than USD234,000 in disgorgement and prejudgment interest. He also agreed to a permanent injunction against further violations of the federal securities laws. The proposed settlement is subject to approval by the court, which also will determine at a later date whether any additional financial penalty is appropriate.

The SEC’s investigation, which is continuing, has been conducted by Charles D. Riely and Amelia A. Cottrell of the SEC’s Market Abuse Unit in New York and Matthew J. Watkins and Neil Hendelman of the SEC’s New York Regional Office. It has been supervised by Sanjay Wadhwa. The SEC thanks the US Attorney’s Office for the Southern District of New York, the Federal Bureau of Investigation, and the Financial Industry Regulatory Authority (FINRA) for their assistance in this matter.

Since October 2009, the SEC has filed more than 170 insider trading actions charging more than 410 individuals and entities. The defendants in these actions are alleged to have made more than USD875 million in illicit gains comprised of profits and the avoidance of losses.

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