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Mum's the word

by Kenneth Klee  |  Published October 30, 2009 at 11:51 AM

The insider trading case centered on tech investor Raj Rajaratnam of Galleon Management LLC has sent tremors through the hedge fund world. Has it also set off alarms among corporate M&A specialists?

It's a fair question, given some of the people involved in the Galleon case. Among those named in a complaint unsealed on Oct. 16 by the Manhattan U.S. Attorney are Rajiv Goel, an executive at Intel Corp.'s Intel Capital investment arm, and Robert Moffat, a senior vice president and head of the mainframe and server division at IBM Corp. Both men are accused of illegally sharing information on several subjects, some of it gleaned in connection with M&A activity by their companies. Both deny the charges.

The companies caught up in the case have taken steps in response, of course. IBM placed Moffat on leave and says he is no longer an officer of the company, though it declines to say much else. But the ripple effects at other companies seem to be slight, judging from conversations with several corporate dealmakers and securities lawyers.


It's not that they don't take these matters seriously. Rather, these dealmakers and lawyers say that most companies already use robust controls. They also say that, at least among deal professionals and senior executives, the gray areas that some see as inherent to insider trading rules are actually pretty black and white. "People know what their duties are in this respect," says Brad Bennett, co-chair of the white-collar and corporate investigations group at Baker Botts LLP in Washington.

"Deal people have been sensitized to this since the 1980s," adds one dealmaker at an S&P 500 company, who asked to speak on background.

But if Galleon isn't prompting a re-examination of corporate compliance policies, it still offers an occasion to review how and when companies usually become vulnerable to insider trading problems. Ironically, if there's any shoring up to be done, it's not likely to be among the kind of experienced executives charged in the Galleon case.

The first line of defense in keeping a transaction confidential, says the S&P 500 dealmaker, is limiting the number of people who know about it. The challenge here, says a division-level corp dev chief at a big multinational, is that consummating a large strategic transaction can involve more than 100 people at the buyer alone.

Many members of this extended group won't have much, if any, deal experience. They are the ones most likely to pass on information, often inadvertently. The divisional dealmaker, who also asked not to be named because of the sensitivity of the subject, says the one adjustment he is likely to make in the wake of the Galleon case will be to underline the importance of confidentiality even more forcefully to the broader deal team.

And if the points he'll make sound familiar, that doesn't make them any less important. At the top of the list: Once you tell somebody something, you never know what they'll do with the information. As the Galleon case shows, this is especially true when you're talking to investment professionals. "You're also talking to everyone who's a thought partner," warns Bennett.

The divisional dealmaker says it is in social or semisocial situations that corporate employees are most likely to share information they should be keeping to themselves. "Buying a company is cool," he says. "People like to be in the know." Seeking to trade on or otherwise make money on the information, this dealmaker argues, is extremely unusual for corporate employees, who tend to be more risk averse than investors or advisers.

It's not unheard of, though. In the Galleon case, Intel's Goel is accused of benefiting from trades Rajaratnam arranged for him. And in a separate case, an executive at Perot Systems Corp. has been charged with buying shares ahead of the September announcement that Dell Inc. will acquire his company.

IBM's Moffat, however, is not accused of trying to profit from the information he allegedly shared with Danielle Chiesi, who is a consultant with New Castle Funds LLC and an associate of Rajaratnam. It's a puzzling picture, to say the least. The U.S. Attorney's office says it recorded Moffat telling Chiesi about a planned spinoff by Advanced Micro Devices Inc., an IBM partner. He would surely have known this was illegal. If he's guilty, consider what he was risking: a successful and lucrative 31-year career at IBM and, reportedly, a chance at becoming CEO.

The charges against Moffat may or may not be proven in court. But they are already a reminder that rules and procedures can accomplish only so much. Ultimately, it's up to individuals.

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Tags: Advanced Micro Devices Inc. | Dell Inc. | FBI | Galleon Management LLC | IBM Corp. | insider trading | Intel Corp. | NASDAQ:DELL | NASDAQ:INTC | NYSE:AMD | NYSE:IBM | NYSE:PER | Perot Systems Corp. | Raj Rajaratnam | SEC
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