Another Insider Trading Action From the Burger King Deal

The SEC brought its second insider trading case centered on the acquisition of Burger King Holdings, Inc. by affiliates of private equity fund 3G Capital Partners Ltd, announced on September 2, 2010. The most action settled. The earlier one did not.

The first action, SEC v. Prado, Civil Action No. 12 CIV 7094 (S.D.N.Y. Filed Sept. 20, 2012), was brought against Waldyr Da Silva Prado Neto, a Brazilian citizen residing in Miami who was employed by Wells Fargo Advisers, LLC as a registered representative. Prior to the acquisition a long time customer of the registered representative who had a history of sharing confidential information with him, transferred $50 million through his brokerage account to the fund. Mr. Prado told his firm that the transfer was to purchase a share of a company. After the transfer, and prior to the deal announcement, Mr. Prado had repeated contact with the customer. During that time he purchased shares in Burger King and tipped others who traded, according to the SEC’s complaint. E-mail sent to friends suggest, but do not specifically state, that he knew about the deal. Mr. Prado fled. Mr. Prado and his tippees had profits of over $2 million. The Commission’s complaint alleges violations of Exchange Act Sections 10(b) and 14(e). The case is in litigation. In this case Mr. Prado’s assets have been frozen.

The second action was brought against Brazilian citizen and banker Igor Cornelsen and Bainbridge Group Inc., a controlled entity through which he traded securities. Mr. Cornelsen became a customer of broker Prado in 2008. SEC v. Cornelsen, 12 CIV 8712 (S.D.N.Y. Filed Nov. 30, 2012). Two years later, on May 17 2010, the complaint alleges that Mr. Prado sent an e-mail to Mr. Cornelsen in Portuguese which requested that he call to obtain some information. A ten minute phone conversation that day was followed by the purchase of 2,850 Burger King call options the next day.

Over the summer Mr. Cornelsen continued to have contact with the broker and purchase Burger King call options. Some purchases resulted in losses. Then, on August 18, 2010 he e-mailed Mr. Prado in Portuguese asking if the “sandwich deal” would happen. The answer was “yes.” In response to an inquiry about the timing, Mr. Prado assured his client that everything was under control. The next day Mr. Cornelsen purchased additional Burger King options.

When the deal became public the two men exchanged e-mails. Mr. Cornelsen sold his options, reaping profits of over $1.68 million. As in the first action, the Commission’s complaint alleges violations of Exchange Act Sections 10(b) and 14(e).

To resolve the case the defendants consented to the entry of permanent injunctions prohibiting future violations of the Sections cited in the complaint. The also agreed to disgorge the trading profits and pay prejudgment interest. In addition, Mr. Cornelsen agreed to pay a civil penalty of $3,362,180.

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