(Parts of post redacted due to learning new information)

A friend asked me my take on the Mark Cuban Insider Trading allegations yesterday.  I realized I didn’t have an opinion yet, and agreed it would make for interesting blog discussion.

If you don’t know the story, go read the report at the Silicon Valley Insider and come on back.

So assuming you have a little background on the situation, I’ll dive right into the initial thoughts that came to mind.

1) $750,000 sure seems like a small amount of money for Cuban to care about.

2) It sounds like the CEO of Momma.com convinced Cuban to buy 6% of the company in March 2004, and then about a month later the same CEO was bringing in a private equity firm which would dilute the shareholders, including Cuban.  If that timeline is accurate, it’s a pretty shady move to pull on your investors, including one who is a billionaire.

3) It also sounds like the CEO kept Cuban in the dark about the dilution until June 28.  So he had about 3 months of telling Cuban, “Oh yeah, everything is fine,” while working with the private equity firm on how to dilute everyone.  Then he calls Cuban on June 28 and said, “By the way, I’m diluting you in a week tomorrow.”

4) Cuban sounds like he was pretty annoyed by this.  And you would be too.  After all, had the CEO not brought Cuban on board as a 6% investor, the equity group may not have been interested in financing the company.  So Cuban may have gotten used by the CEO, and then since the CEO told him about the PIPE, now Cuban was stuck holding shares that he couldn’t get out of.  In his mind, they screwed him going in and now were screwing him from getting out.

5) So, Cuban’s decision at this point seems irrational and not well thought out.  He calls his financial guy and tells him to sell.  At this point, a good financial guy should look at his clock, see it’s late at night and ask why his boss suddenly wants him to stop doing what he was doing and try to unload 600,000 shares of stock in a company no one knows.  Some alarm bell should go off here.  There needed to be a, “Boss.  If the dilution isn’t for a week, lets take 12 hours and look at our options.” (Edit: The PIPE was announced the next day, June 29.)  But the financial guy should still advise him of the issues.

So my analysis:

• I think anyone who tries to compare this to Wall St fat cats screwing the American consumer in sub-prime lending, is pretty off base.  Just from reading a few articles, I think Cuban was actually the guy screwed by the Wall St guys (the private equity group) and tried to get out of it.  
• Unfortunately the rules are a little different for people who have conversations with CEO’s than folks like you and me, and he should have just waited for the announcement and sold everything then, taking the $750k hit.  Then he could have used his conections and power to make sure that CEO never got another dime of funding the rest of his life, and the private equity firm was on a giant blackball list.  I mean, he’s probably made 50x that amount on tips and insights from cocktail party conversations with people you and I don’t get to meet. 
• It does seem like a pretty trivial matter for the SEC to make a big deal of 4 years after the fact.  Anytime a federal or regional judicial branch of government in a hardcore Republican state, sits on something for this long, and then launches it on a guy who helped fund an anti-George Bush movie, I agree that it kind of feels vindictive.
• In the end, I think Cuban should pay a fine, we should all avoid ever investing in or using Momma.com and someone should ask why it takes the government 4 years to prosecute something like this.

However, this is only my first take, and if new evidence comes out, I’m willing to adjust.   Looking forward to some thoughts from you guys.