March 11, 2016
The Newman Insider Traders Are Going After Their Prosecutors
Posted by David Zaring

And they are doing well.  They - implausibly, by my reading - got a judge not to dismiss claims that Anthony Chiasson's business partner had suffered due process violations, based on the taking of his property, on the fact that their hedge fund was searched based on a misstatement in an affidavit that the business partner knew about the alleged insider trading, and that the supervisors of the lawyers and investigators who brought the claim failed to rein in the unconstitutional conduct of their subordinates.  The judge wants discovery.

To me, this order looks bound for a quick reversal, and, as it is a qualified immunity claim that is being rejected, it should be immediately appealable.  I'm no expert on searches and seizures.  But it would be reasonable to assume that the government, with reason to believe that one of the co-founders of a hedge fund was engaging in insider trading, would search the papers of the hedge fund, including those of the hedge fund's other co-founder, and if the government made a mistake in one of the affidavits supporting the search, that mistake would be immaterial.  The defendants in the case are all but absolutely immune prosecutors and law enforcement officials, and the court doesn't even address that issue.

I don't think the interesting thing about the decision is the legal analysis.  Instead, it's interesting:

  • because Manhattan judges and its US Attorney are in a repeat-player relationship.  In this order, one of those judges basically instructed the US Attorney to prepare to be deposed, which is apocalyptically out of the ordinary.  It suggests that the judges are really angry about prosecutorial overreaching, or at least that one of them is.
  • because this is the sort of relief that judges can uniquely order in business law enforcement.  I doubt that the government will ever have to pay Level Global's owners a penny for essentially shutting it down because it thought one of its principals was an insider trader.  But courts can force the government to worry about that prospect with intrusive injunctive relief like this, and angered scolding.  That's a real remedy, even if the usual remedy - money damages - won't work!

 

Administrative Law, Finance, Financial Crisis, Financial Institutions, Securities | Bookmark

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