SEC and FBI Try to Ketchup to Heinz Insider Traders

Gavel and Hundred-Dollar Bill

In the latest development in an SEC lawsuit filed Friday, February 15, U.S. District Judge Rakoff extended a freeze on a Swiss Goldman Sachs account linked to possible insider trading in H.J. Heinz Company call options. The complaint alleges that these options were bought for $90,000 the day before the ketchup maker agreed to be bought by Warren Buffett’s Berkshire Hathaway, Inc. and Brazilian investment firm 3G Capital, giving the mystery investors $1.7 million in profits. The SEC said that the timing and size of the trades were suspicious because the account had had no history of trading Heinz stock over the last six months.

On Friday, February 15, Rakoff approved an emergency court order to freeze the assets in a Swiss trading account, which would prevent the investors from taking the profits out of the account until they showed up in court to “unfreeze” them. At a hearing the following week, none of the investors showed up. Rakoff relished: “They can hide, but their assets can’t run.”

The SEC’s filing was remarkable because it was submitted just one day after the acquisition occurred on February 14, 2013. The FBI jumped into the mix and started a criminal investigation on Tuesday, February 19, according to J. Peter Donald, a spokesman for the bureau. Goldman Sachs offered information that the account holder was a “private wealth client” of the bank, but stated that it did not have any other information. Goldman has not been accused of any wrongdoing.

The Heinz and Berkshire/3G deal has mustard up at least two federal and three state shareholder derivative lawsuits in Pennsylvania, which accuse the Heinz board of self-dealing. The complaints allege breaches of fiduciary duty and aiding and abetting. Ironically, the shareholder lawsuits accuse the Board of selling the company at a fire sale, while the SEC accuses certain shareholders of robbing the bank, so to speak. So: was the deal civilly bad, or criminally good? Only in the world of Securities Litigation can these two charges coexist comfortably together side by side.