October 26, 2011
Rajat Gupta, Part Trois
Posted by David Zaring

The real question about the Gupta charge is: what took the SEC so long?

  • The incidents raised in the complaint - calling Rajnaratam after a P&G board meeting, and calling him after hearing about Warren Buffett's investment in Goldman Sachs, inter alia - aren't new.
  • The SEC dismissed its prior, administrative case against Gupta after Judge Jed Rakoff suggested that it violated Gupta's equal protection rights, given that everyone else was getting a criminal indictment, and therefore the broad discovery obligations that such an indictment imposes on the United States (I find this pretty ludicrous, by the way, the idea that being threatened with a fine and a trading ban has constitutional implications for Gupta, given that everyone else is facing bigger fines and jail time ... but it did get the SEC off the schneid, I guess).
  • Andrew Ross Sorkin speculated that the SEC didn't have smoking gun phone tap evidence then.
  • But the complaint certainly suggests it is willing to go with simple phone record inference now.  When Gupta was a board member at Goldman Sachs, he called Rajnaratnam 16 seconds after hanging up on a board teleconference about Buffett's investment, the complaint alleges.  And Rajnaratnam traded into Goldman Sachs later that day.  Which looks really bad - it would look even worse if they could quote the content of those calls, though, and the complaint doesn't do that.
  • Still no quotes from the phone calls that I could see in the complaint, though, and once again, the incidents being charged are the same as they were in the administrative case.
  • I'm not seeing the reason for the change of heart, unless there was an issue with getting DOJ to indict back then, but now that they've won against Rajnaratnam, maybe they're feeling braver.  It's quite mysterious.

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