India-born former Goldman Sachs director Rajat Gupta, seeking to set aside his conviction on insider trading charges, has said his friendship with jailed hedge fund founder Raj Rajaratnam does not prove he received personal gain by passing on classified information.
The Indian Institute of Technology (IIT) and Harvard-educated 66-year-old former McKinsey head — currently serving a two-year jail term on insider trading charges — filed a reply in a federal court here last week in support of his motion to vacate his sentence, set aside the judgment against him and discharge him from prison.
Citing the recent ruling by an appeals court, Gupta said his conviction on insider trading charges “cannot stand” as the government prosecuted him on the basis of his friendship with billionaire Rajaratnam that does not prove he received personal gain in return for passing confidential information. In the landmark ruling in which it reversed convictions of hedge-fund managers Todd Newman and Anthony Chiasson, the Second Circuit Court of Appeals said that for an insider trading conviction, prosecutors must show that a defendant received a personal benefit for passing illegal tips. “As this Court has noted, not every disclosure of corporate information violates the criminal insider trading laws,” Gupta’s lawyers said in court papers.
The lawyers argued that the proof presented at the trial of a relationship between Gupta and Rajaratnam does not amount to “proof beyond a reasonable doubt of a quid pro quo agreement” as required by the Newman ruling, and “therefore, Gupta is actually innocent”. The “prior, loser standard, including such ephemera as maintaining a friendship or ‘good relationship’, is gone. The government tried this case on that prior basis. Gupta was convicted on that prior basis. His conviction cannot stand,” they said.
They argued there is no basis to conclude that a “properly instructed, rational jury would have found” that Gupta received personal benefits in exchange for the tips of which he was convicted.
The lawyers said that the government falsely equated Gupta’s supposed incentive to recoup his losses on the Voyager investment with Rajaratnam with the “required quid pro quo (for which there was no evidence, and no argument at trial) only serves to illustrate that the instructional error at Gupta’s trial ‘had a substantial and injurious effect or influence in determining the jury’s verdict’.”
Gupta was fined $5 million (Rs 31.2 crore) besides the two-year prison term.
“A corporate insider might be acting in what he believes to be the interest of the company (even if in violation of corporate policy), or heedless of the use the recipient might make of the information, or foolishly trusting the recipient, or for a host of other reasons,” Gupta's lawyers said.
“Given the stakes in a criminal case, and the apparently boundless use being made of the securities laws by prosecutors, the Second Circuit in Newman imposed a clear rule: The tip must be shown to have been part of a quid pro quo agreement, that is, 'an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature',” they said.
US Attorney for the Southern District of New York Preet Bharara had earlier this month submitted a memorandum on behalf of the government opposing Gupta's plea to throw out his conviction based on the Newman ruling.
Bharara had said Gupta is “not an innocent man” as he abused his position as a corporate insider by repeatedly divulging inside information to Rajaratnam, who reaped millions of dollars in illegal profits and avoided millions of dollars in losses based on Gupta's tips.
Stressing that the personal aspect of Gupta-Rajaratnam relationship was “undeniable”, Bharara said Gupta had a “powerful”, ongoing financial incentive to tip Rajaratnam with material, non-public information.
“As part of their business relationship, each had shared expectations. Rajaratnam expected, and Gupta consistently delivered, inside information that Gupta possessed as a corporate insider. For those tips, Gupta clearly expected potential pecuniary gain in return,” Bharara had said.
