Score One for Mark Cuban
By Schuyler Dixon, Associated Press
A federal judge on July 17 dismissed a civil insider trading lawsuit against billionaire Dallas Mavericks owner Mark Cuban.
While granting Cuban's motion, U.S. District Judge Sidney A. Fitzwater gave the Securities & Exchange Commission 30 days to file an amended complaint.
The SEC alleged Cuban was involved in insider trading when he sold shares in an Internet search engine company, Mamma.com, after receiving confidential information about a private offering in 2004.
The SEC said Cuban avoided a loss of $750,000 by selling his 600,000 shares, which represented a 6.3% stake in the company.
In his 35-page ruling, Fitzwater wrote that the SEC didn't accuse Cuban of promising not to trade based on the confidential information he received. Thus, the commission could not hold him liable for illegal insider trading, the judge wrote.
Fitzwater said the SEC could file a new complaint if it can allege that Cuban promised not to trade on the information.
The judge rejected some of Cuban's claims about his fiduciary relationship with the company, however.
Time Will Tell
Scott Friestad, associate director of the SEC's Enforcement Div., said in an e-mail statement that the commission was reviewing the ruling and weighing its options.
Ralph Ferrara, one of Cuban's attorneys, said he needed time to digest the ruling but was initially impressed with what he called Fitzwater's "appellate court level" analysis.
Five years ago, Mamma.com Chief Executive Guy Faure told Cuban by phone that the company was planning to raise capital in a private placement in a public equity offering, known as a PIPE, the SEC lawsuit said.
Faure began the conversation by saying he was about to give confidential information, and Cuban agreed to keep it to himself, the SEC said. According to the lawsuit, Cuban became angry because he said PIPEs dilute stock value for existing shareholders, and he ended the call by saying, "Well now I'm screwed. I can't sell."
The SEC alleges Cuban sold his shares hours after the phone call from Faure.
Not Enough Information?
Fitzwater ruled that Cuban's statement can't "reasonably be understood" as an agreement to sell based on the information.
"Thus while the SEC adequately pleads that Cuban entered into a confidentiality agreement, it does not allege that he agreed, expressly or implicitly, to refrain from trading on or otherwise using for his own benefit the information the CEO was about to share," Fitzwater wrote.
Cuban, 50, is a tech entrepreneur who sold his Broadcast.com to Yahoo! (YHOO) in 1999 at the height of the dot-com boom. He bought the Mavericks in 2000.
Cuban runs a Web site called Sharesleuth.com, which bills itself as providing "independent Web-based reporting aimed at exposing securities fraud and corporate chicanery." A companion site, BailoutSleuth.com, tracks the government's $700 billion financial rescue plan.