The Second Circuit Court of Appeals, in an order issued on Monday, said “we have considered all of Gupta’s arguments on this appeal and have found them to be without merit. The judgment of the district court is affirmed.”
Gupta, 70, is a free man now after completing a prison term in 2016 on insider trading charges but has been fighting to overturn his conviction, arguing that he served two years in jail for conduct that is not criminal even though the government lacked evidence to show he “received even a penny” for passing confidential boardroom information to now jailed hedge-fund manager Raj Rajaratnam.
Gupta’s team of lawyers had argued in papers before the Second Circuit Court of Appeals that the judgement of the Manhattan district court finding Gupta guilty of insider trading “should be reversed” and his “conviction should be vacated”.
In its ruling, the appeals court said that “Gupta’s convictions of engaging in and conspiring to engage in an insider trading scheme were based on evidence that on several occasions Gupta, while serving on boards of directors of various companies, disclosed material nonpublic information about those companies to his friend and business associate Raj Rajaratnam, founder of the Galleon Group, a family of hedge funds that invested billions of dollars for its principals and clients.”
Gupta filed the appeal based on a landmark ruling by the Manhattan appeals court that for an insider trading conviction prosecutors must show that a defendant received a personal benefit for passing illegal tips. Gupta’s lawyers have cited the ruling that led to the reversal of insider convictions of hedge-fund managers Todd Newman and Anthony Chiasson in December 2014.
The appeals court noted that there is ample evidence that Gupta and Rajaratnam were business associates. Gupta had invested several million dollars in Galleon funds.
In 2005, Gupta and Rajaratnam invested in another investment fund capitalised with USD 50 million; Gupta originally contributed USD 5 million; he later doubled his investment with USD 5 million loaned to him by Rajaratnam.
In early 2008, Gupta was made chairman of Galleon International, which, as of April 2008, managed assets totaling some USD 1.1 billion and could earn performance fees; Gupta was given a 15 per cent ownership stake in that fund.
The appeals court ruled that the jury was instructed that in order to convict Gupta on any given count, it must find that Gupta anticipated that Rajaratnam or others at Galleon would trade on the basis of the non-public information provided by Gupta and that Gupta, in return for providing this information, anticipated receiving some personal benefit.
“There was ample evidence to permit the jury to find that Gupta intended Rajaratnam to trade on the basis of the confidential information Gupta passed to him and that Gupta personally benefited,” the appeals court said.
It cited the September 23, 2008 phone call Gupta made to Rajaratnam just minutes after getting off a Goldman board meeting during which he had learned that billionaire Warren Buffett was about to invest USD 5 billion in Goldman.
It also cited the call Gupta made to Rajaratnam on October 23, 2008, again just minutes after learning in a Goldman Sachs board-of-directors conference call that Goldman would report a quarterly financial loss, a first in its history as a public company.
Rajaratnam traded on the basis of this confidential information, avoiding losses and making profits in the millions.
“On this evidence and the record as a whole, the jury could rationally have found that Gupta anticipated that Rajaratnam would engage in trading of Goldman shares that would benefit Gupta financially,” the appeals court said.