Will SAC Deal Undercut Defense in Steinberg, Martoma Cases?

, The Litigation Daily

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Now that SAC Capital Advisors has admitted to insider trading, attention shifts to the upcoming trials of SAC employees of Michael Steinberg and Mathew Martoma. While the duo and their lawyers clearly have their work cut out for them, experts say their defense efforts won't be fatally undermined by SAC's historic retreat.

The U.S. attorney's office in Manhattan announced Monday that SAC and related companies will plead guilty to securities fraud and wire fraud in connection with an insider trading scheme. The hedge fund agreed to terminate its investment advisory business, meaning that it will no longer invest money on behalf of others. SAC will also pay $1.2 billion in penalties, which comes on top of $616 million the hedge fund has already paid to resolve a civil case brought by the U.S. Securities and Exchange Commission. The aggregate $1.8 billion penalty is believed to be the largest ever in a insider trading case.

SAC's defense lineup includes Theodore Wells Jr., Daniel Kramer and Michael Gertzman of Paul, Weiss, Rifkind, Wharton & Garrison and Martin Klotz and Michael Schachter of Willkie Farr & Gallagher.

The plea deal comes two weeks before a scheduled criminal trial against Steinberg, a portfolio manager at SAC. Prosecutors charged Steinberg in March, alleging that he generated about $1 million for the firm by trading shares of Dell Inc. in 2008 with inside information. Steinberg is alleged to have gotten the inside information from a SAC analyst named Jon Horvath, who has already pleaded guilty to insider trading and who is expected to be a key government witness in its case against Steinberg. Barry Berke of Kramer Levin Naftalis & Frankel represents Steinberg.

A separate trial against Martoma, another SAC higher-up, is scheduled to begin in January. Richard Strassberg of Goodwin Procter represents Martoma.

If the Steinberg and Martoma cases go to trial, the judges overseeing the cases are likely block the prosecution from mentioning SAC's guilty plea. "I don't believe [the plea] would be admissible against the two employees … it's highly prejudicial," said Richard Holwell of Holwell Shuster & Goldberg, who isn't involved in the case. Prior to entering private practice, Holwell served as a U.S. district court judge in Manhattan and oversaw the criminal insider trading case against Galleon Group CEO Raj Rajaratnam.

Another observer of the case, Scott Kimpel of Hunton & Williams, agreed with Holwell's view. "The fact that an entity has pleaded guilty for one reason or another doesn't bear on the individual guilt or innocence of individual employees," he told us. "It's not often the type of evidence that you see admitted at trial."

There's still some possibility that the plea could rear its head at trial, however. If Steinberg or Martoma's lawyers argue that SAC adopted strong compliance measures to combat insider trading, the prosecution might get permission to counter that argument with evidence of SAC's plea. Holwell told us that such a scenario is theoretically possible but unlikely. He said he expects the judges overseeing the cases to consider all possible scenarios before trial and to lay down carefully crafted ground rules.

Even if the SAC plea doesn't offer substantive evidence of Steinberg and Martoma's guilt, it's also possible that the publicity surrounding it could taint the jury pool. That concern is particularly acute for Steinberg, since his trial kicks off in just 14 days. Back in July, Steinberg's attorneys at Kramer Levin complained about what they called "inflammatory" media coverage of the case. They asked U.S. District Judge Richard Sullivan to quiz potential jurors about whether they've read about SAC's troubles. After Monday's headline-grabbing settlement, that will be a tougher quiz for jurors to pass.

Still, Holwell said he doesn't expect the latest wave of publicity to taint Steinberg's jury pool. When overseeing the Rajaratnam trial, Holwell said, he encountered some potential jurors with strong views about the financial crisis, but very few who recognized Rajaratnam's name, despite the media frenzy surrounding his arrest. "I'd be surprised if there were one person out of 300 who knew the name Raj Rajaratnam," Holwell said.

Steinberg and Martoma's respective lawyers, Kramer Levin's Berke and Richard Strassberg of Goodwin Procter, declined to comment.

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