A hedge fund founder’s suit pressing Fourth and Fifth Amendment claims against former U.S. attorney Preet Bharara, federal prosecutors, and FBI agents was scuttled by the U.S. Court of Appeals for the Second Circuit Tuesday.
The panel, composed of U.S. Circuit Judges Reena Raggi, Denny Chin, and Susan Carney, reversed and remanded the case in favor of the defendants, finding the federal law enforcement officials are entitled to qualified immunity against the suit by David Ganek, co-founder of Level Global Investors, which is defunct.
The suit’s origins run through some of the most high-profile cases brought under Bharara as part of the office’s pursuit of insider trading targets. At the core of Ganek’s allegations against Bharara, his former top aide Richard Zabel, and more than 13 additional prosecutors from the U.S. Attorney’s Office for the Southern District of New York and local agents of the Federal Bureau of Investigation was the Nov. 22, 2010, raid on LG’s offices.
The raid, which authorities tipped media off to ahead of time, was executed against Ganek and investors at his firm, including the firm’s other co-founder, Anthony Chiasson. Chiasson would eventually be convicted with a co-defendant, Todd Newman, on insider trading charges related to the raid. The seminal suit would lead to a reversal on appeal, and the beginning of the undoing of numerous insider trading convictions secured by the Manhattan U.S. attorney’s office.
While Ganek himself was never charged, he sued on constitutional grounds after it came to light during discovery that federal agents secured a warrant that relied, in part, on a false claim that Ganek had been told of the nature of the insider trading information at the firm.
Notoriety around the raid and arrests ultimately forced Ganek to shutter the $4 billion fund. In his suit, he sought loss of business damages valued at $400 million, as well as for lost income and lost business reputation.
U.S. District Judge William Pauley III dismissed large portions of Ganek’s constitutional claims, but denied defendants’ motion for qualified immunity, allowing some of Ganek’s claim to potentially proceed.
The panel Tuesday reversed and remanded in favor of defendants, after reconstructing the government’s warrant application, but with the false information about his knowledge about the insider trading information removed. Given the amount of information that remained, the panel found the government would have still been justified in its actions.
“While evidence that Ganek knowingly traded on inside information would enhance probable cause to search his office, the absence of such mens rea evidence would not preclude probable cause for such a search,” the panel found.
Given the scope of information provided by an informant alleging knowledge of the nature of the insider information, and the use of that knowledge by Chiasson and others, the panel said Fourth Amendment concerns over unreasonable search and seizure were unwarranted.
Ganek’s Fifth Amendment claim of property deprivation therefore also failed, as the warrant would have still be issued and so any seized property was taken soundly.
The panel also dismissed a number of other claims, including failure to intercede by Bharara and others.
In a statement provided to Reuters, Ganek called the panel’s order a “dangerous day for private citizens” and a “great day for ambitious, attention-seeking prosecutors” now “rewarded with total immunity even when they lie and leak.”
Neufeld Scheck & Brustin partner Nancy Gertner, a retired federal judge from Massachusetts, represented Ganek. She could not be reached for comment.
Assistant U.S. Attorney Sarah Normand argued the appeal on behalf of the government defendants. A spokesman for the U.S. attorney’s office declined to comment, saying only that the panel’s decision speaks for itself.
An FBI spokeswoman declined to comment.