Co-authored by Margaret J. McQuade.
Last week, the Securities and Exchange Commission reminded the public that the agency can track insider trading committed in the United States by foreign account owners. Following its commencement of an action in February against multiple unnamed investors under Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, on October 10, the SEC filed an amended complaint identifying brothers Michael and Rodrigo Terpins for illegally trading securities of H.J. Heinz Company (Heinz) shortly before Heinz announced its acquisition by Berkshire Hathaway Inc. and 3G Capital Management. In February, the SEC became suspicious when a Swiss account, which had never previously traded Heinz securities, reaped a $1.8 million profit by investing in risky option positions the day before Heinz’s acquisition announcement. The purchase of 2,533 call options was especially unusual because, in the two months preceding the trade, not more than 61 call options had been purchased on a given day. The SEC obtained an emergency court order in February to freeze the account’s assets but could not ascertain the identity of the owners because the trade was made anonymously through an omnibus account. Even though US District Judge Jed Rakoff ordered the anonymous account owner to appear to challenge the account freeze, the men still did not come forward. The amended complaint revealed that Michael Terpins learned of the acquisition from a source with access to material nonpublic information who had a duty not to disclose the information (the identity of the tipster remains a mystery). Michael shared the tip with his brother, Rodrigo, who then called a broker from his cell phone while on vacation in Disney World. The Terpins brothers have agreed to pay $4.8 million to settle the SEC suit.
Securities and Exchange Commission v. Terpins et al., No. 1:13-cv-01080 (S.D.N.Y. October 10, 2013).