The NASD has withdrawn charges against former Credit Suisse First Boston (now Credit Suisse (USA)) investment banker Frank Quattrone. In March 2003, the NASD charged Mr. Quattrone with “spinning,” claiming that he used the lure of popular initial public offerings to draw financing business to his firm. Ironically, Credit Suisse decided not to fight similar charges brought against the firm and settled by agreeing to a consent decree and the payment of a $150 million in penalties and disgorgement. decision by the NASD is latest legal victory for Mr. Quattrone, who has maintained steadfastly his innocence in the face of an array of charges by the government and regulators. Previously, the government charged Mr. Quattrone with obstruction of justice based on a case that centered on a single e-mail. The initial criminal trial ended in a hung jury. While Mr. Quattrone was convicted in a retrial, the Second Circuit court of appeals reversed his conviction earlier this year (see related discussion below). The government has not decided whether to appeal or retry Mr. Quattrone.Shortly after the Second Circuit decision, the SEC overturned an NASD order banning Mr. Quattrone from the brokerage business for life (see related article below). The decision yesterday by the NASD to withdraw charges against Mr. Quattrone, thus, marks his fourth victory against the government and regulators. For further discussion of the NASD decision see:; Andrew Ross Sorkin, NASD Ends Case Against Quattrone, N.Y. Times, June 2, 2006; Randall Smith, Regulators Drop Civil Case Against Frank Quattrone, Wall St. J., June 2, 2006, at C1.

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Judge Roger Benitez, Southern District of California, granted former Gateway executive Jeffrey Weitzen’s motion for summary judgment, ending the SEC’s enforcement action ageist him which had alleged violations of the antifraud and reporting provisions of the securities laws and accrued him of making a false statement to company auditors. In its complaint against Weitzen, and two other former Gateway executives, the SEC claimed that “[t]his case involves a fraudulent earnings manipulation scheme to meet Wall Street analysts’ expectations. .. During the second and third quarters of 2000.”

The court rejected each of the SEC’s claims as to Weitzen. First, the court concluded that the SEC failed to present evidence demonstrating that Weitzen acted with scienter. While the court found that Weitzen had knowledge of the accounting issues the SEC claimed were fraudulent, the court concluded that “knowledge of the existence of the transactions does not allow a reasonable fact-finder to draw an inference that Weitzen had knowledge of their impropriety, or was reckless in not knowing. Weitzen was not an accountant, nor has evidence been proffered that he had any reason to have accounting expertise sufficient to challenge the treatment given to any particular transaction.” The parties agreed that Weitzen was “aware of management’s desire to close the anticipated gap between revenue and analyst consensus expectation. But the SEC fails to provide any evidence or authority that this is anything but common and sound business practice. . . ” the court concluded.

Second, the court rejected the SEC’s claim that Weitzen was liable under SEA Section 20(a), for control person liability. Gateway, the court noted, was not a defendant, and the SEC was not entitled to rely on the consent decree executed by the company to establish a primary violation as required by Section 20(a). In any event, the court found that “Weitzen’s status as CEO is not conclusive on the issue of whether he was a controlling person . . . It is Weitzen’s lack of specific control of the transactions at issue here that serves to separate him from any potential control person liability.” In addition, the evidence demonstrated that Weitzen acted in good faith, the court concluded, by making reasonable inquiry of the persons in-charge of the transactions at issue and relying on their advise.

Finally, the court rejected the SEC’s claim that Weitzen violated Rule 13b2-02 by signing a false management representation to the auditors. While the SEC claimed that the letter was false because the financial statements were not properly prepared, it failed to demonstrate that Weitzen had knowledge of any potential misrepresentations. SEC v. Todd, et al., Case No. 03CV2230 BEN (WMc) (S.D.CA May 30, 2006).

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