Wednesday, November 19, 2008

Mark Cuban Situation


As you might have heard by now, billionaire entrepreneur and owner of the Dallas Mavericks, Mark Cuban, has encountered a problem.  On Monday, Cuban was issued a civil complaint by the Securities and Exchange Commission (SEC) in federal court in Dallas, Texas.  The complaint charged Cuban with insider trading regarding his sale of 600,000 shares of Mamma.com stock in 2004 (Montreal-based Mamma.com changed its name in June 2007 to Copernic Inc).  Apparently, the SEC has been investigating this case for several years and has only now decided to go after Cuban.  According to the Associated Press, the facts of the case are as follows. 

 "Mamma.com decided in the spring of 2004 to raise capital in a so-called private placement in public equity offering, known as a PIPE, according to the SEC suit. In late June, as the PIPE moved toward closing, Mamma.com's investment bank suggested the company invite Cuban to participate.

On June 28, Mamma.com Chief Executive Guy Faure e-mailed Cuban asking him to call him "ASAP," the SEC said. Cuban called four minutes later from the American Airlines Center in Dallas, home of the NBA's Dallas Mavericks, and spoke to Faure for about eight minutes.

Faure, who resigned last year, began the conversation by telling Cuban he was about to give him confidential information. Cuban agreed to keep it to himself, the SEC said.

Cuban became upset and angry during the conversation, and said that he didn't like PIPEs because they dilute the value of company stock for existing shareholders, according to the SEC."

 After Cuban got off the phone he then called his broker and traded all 6.3% of his Mamma.com shares.  Some reports said it was within only 8 minutes of the conversation ending, others claim it was hours later, but before the public announcement of the offering.  The federal regulators claim that by selling his shares when he did, Cuban saved losses of around $750,000.

 Scott Friestad, the SEC's deputy enforcement director claimed that "It is fundamentally unfair for someone to use access to nonpublic information to improperly gain an edge on the market."  In the SEC's statement, they urge that unless he is subject to an injunction, Cuban "is likely to commit such violations again in the future,"    Although the issue at law regards insider trading, the real issue that Cuban and his attorneys will question, asks if Cuban is being singled out by the SEC because of his high profile name?

In response to thee allegations, one of Cuban's attorney's Ralph Ferrara, said on Cubans blog, that the SEC's case "has no merit and is a product of gross abuse of prosecutorial discretion.  Mr. Cuban intends to contest the allegations and to demonstrate that the (SEC's) claims are infected by the misconduct of the staff of its enforcement division."

Cuban, in his own statement, said, "I am disappointed that the (SEC) chose to bring this case based upon its enforcement staff's win-at-any-cost ambitions. The staff's process was result-oriented, facts be damned. The government's claims are false and they will be proven to be so."

In a later post on Cuban's blog,  blogmaverick.com, Cuban's attorney, Stephen A. Best, claims that the conversation between Mr. Cuban and Mr. Faure had no agreed discussion of keeping the information private.  Below is the relevant interview regarding the phone conversation between the two.

Christopher Clark:

1) Q- We spoke earlier about you were telling Mr. Cuban in words or substance : “I have confidential information for you”.

A- Right.

2) Q- Do you recall anything Mr. Cuban said in response or reply to that statement by you ?

A- No, I do not.

Whatever defense Cuban and his attorney's use they had better make sure that he sticks with his story and does not lie in any way.  The charges against Cuban, currently, are only civil charges and not criminal.  Meaning that if he complies with the SEC he could get away with paying only restitution damages and no jail time.  On the other hand, if he lies the government is likely to press criminal charges, including obstruction of justice.  This could place him in the same situation that Martha Stewart was in.  The two cases are eerily similar, except that Martha fabricated a defense and was charged and jailed on that not on insider trading charges alone.

With the Mavericks off to a dismal start this season, Cuban has not had the greatest month of November. If he handles the civil complaint appropriately, he could only be forced to write a check, and will be allowed to go on and conduct business as usual. But will the charges have any further effect on Cuban's business?

David Stern and the NBA have the right to discipline/ fine team managers for their actions. As we have previously seen with Stern, he does not hesitate to issue fines and suspensions for criminal charges off the court.  He has even fined Cuban before for "comments" he made after a game.  So, if the SEC finds Cuban guilty, he can also face sanctions by the NBA.  

Another business area that might be affected by the complaint might be the potential buying of the Chicago Cubs.  Using my own "inside information" from Mr. Cuban himself in October, the potential deal buying the Cub's is off the table.  Mark told me it would have been a wonderful opportunity for him and the Cub's organization, but they both were unable to agree on future terms.  If the deal were still up in the air and assuming he is the highest bidder, before he could officially buy the Cub's he would still have to get approval by all other MLB owners.  And with a charge of insider trading hanging over his head, that task of getting other owners approval may be a little harder.

I was privileged enough to meet Mark this past October at the Entertainment Law Forum in Los Angeles.  Not only was I impressed with his overall knowledge and creative business ideas, but he was extremely personable and social.  With the economic situation in America today, I believe the SEC is looking to show American's that they are still present.  Like Martha's ordeal, charging a big name star, such as Cuban, brings added attention to the agency and gives Americans more belief that the government is trying to fix the economic situation.  The charges against Cuban are certainly shocking. As one of the richest individuals in the world (161st according to Forbes in 2007), Cuban is always looking for other business areas to break into and innovate. If he recognizes a potential loss, like any good businessman, he attempts to reduce the losses.  Hopefully, Cuban will can keep reducing his losses because this time he has a lot to lose.


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