Competing Briefs in Rajaratnam Appeal Outline the Application of Wiretap Law to Hedge Fund Managers
Hedge Fund Law Report
The use of wiretap evidence is the most important innovation in insider trading enforcement in the last five years, and nothing illustrates the evidentiary power of wiretap evidence as starkly as the Rajaratnam trial and conviction. As the hedge fund industry well knows, on May 11, 2011, after a two-month trial, including 12 days of jury deliberations, Raj Rajaratnam, founder of hedge fund manager Galleon Group, was found guilty of nine counts of securities fraud and five conspiracy counts. In October 2011, he was sentenced to 132 months in prison and ordered to pay a $10 million fine and to forfeit $53.8 million. Prior to the Rajaratnam trial, most insider trading cases were based on circumstantial evidence. But the case against Rajaratnam was based in large part on direct evidence – recordings of over 2,200 of Rajaratnam’s telephone conversations with more than 130 individuals. As Rajaratnam’s defense team found, it is often difficult or impossible to rebut the validity of wiretap evidence. Given the comprehensiveness of many wiretaps, it is even difficult in most cases to offer competing interpretations of the same wiretap. There is no substitute from the prosecutor’s perspective – and little as damning – as a defendant explaining his bad acts in his own words. Accordingly, the legal fight in connection with wiretaps often relates not to the content of the wiretap but to the validity of the wiretap in the first instance – and this is precisely the fight that Rajaratnam is waging in appealing his conviction to the Second Circuit. Specifically, on appeal, Rajaratnam alleges that the government engaged in a flawed process in obtaining the warrant to wiretap his phones, and those flaws violated his Fourth Amendment rights as well as the federal wiretap statute. Rajaratnam also challenges a jury instruction relating to the insider trading charges. This article provides a feature-length analysis of Rajaratnam’s appeal brief and the government’s reply brief. In doing so, this article provides a comprehensive view of the law governing wiretaps. For hedge fund managers, general counsels, outside counsel, compliance officers, portfolio managers and others, it is now important to understand this area of law – an area previously applicable primarily in organized crime and conspiracy cases. Understanding the law of wiretaps is important for many reasons. Most notably, if the government wiretaps you or one of your portfolio managers, and if the wiretap bears fruit, there is a good chance that the government will approach you about settling before initiating a formal criminal matter. If you understand the law of wiretaps – particularly if you can identify any infirmities in the process by which the government obtained its warrant – you will have a significant bargaining advantage vis-à-vis an investment management lawyer that is not conversant with this niche of criminal procedure. You can hire a good white collar lawyer, of course, but if you understand this area, you will know what to ask and better appreciate the answers. Our review of the appellate papers in the Rajaratnam matter is intended to highlight the primary legal considerations for the growing number of hedge fund industry participants that are concerned with wiretaps but that are not experts in criminal law and procedure.