Securities and Exchange Commission
Litigation Release No. 18632 / March 23, 2004
Securities and Exchange Commission v. Scott K. Ginsburg, No. 03-10848 (11th Cir. March 19, 2004)
Court of Appeals Reinstates Jury Verdict Against Scott K. Ginsburg, Former CEO of Evergreen Media Corporation, for Insider Trading, Reinstates $1 Million Civil Penalty and Orders Permanent Injunction
On March 19, 2004, the United States Court of Appeals for the Eleventh Circuit reinstated a jury verdict against Dallas businessman Scott K. Ginsburg for insider trading in violation of the federal securities laws. The Court of Appeals also reinstated a $1 million civil penalty and ordered the district court to impose a permanent injunction from future violations.
Ginsburg was originally found liable on April 16, 2002, when a federal jury in West Palm Beach, Florida found that he had engaged in illegal insider trading based on his tips to, and resulting trading by, his brother, Mark J. Ginsburg, and father, Jordan E. Ginsburg, in the common stock of EZ Communications, Inc., and Katz Media Group, Inc. The jury found that, in July 1996, Scott Ginsburg, then the chairman and chief executive officer of Evergreen Media Corporation, a publicly-held radio company, tipped Mark Ginsburg and Jordan Ginsburg with information that EZ was for sale and that Mark Ginsburg and Jordan Ginsburg purchased EZ stock prior to the announcement that EZ would be sold to another radio company. The jury also found that, less than a year later, in June 1997, Scott Ginsburg tipped Mark Ginsburg with information about the sale of Katz Media at a time when substantial steps had been taken by Evergreen and another entity towards a joint tender offer for the shares of Katz Media. The day after the tip, Mark Ginsburg purchased Katz Media stock. The SEC alleged that Mark and Jordan Ginsburg realized illegal profits of $1.8 million from their trading based on tips from Scott Ginsburg.
After a seven-day trial, a jury found that Scott Ginsburg violated Sections 10(b) and 14(e) of the Securities Exchange Act of 1934 and Exchange Act Rules 10b-5 and 14e-3, which are antifraud provisions of the federal securities laws. The district court imposed a $1 million civil penalty, but declined to impose an injunction. In December 2002, on Ginsburg's motion, the district court threw out the jury verdict and the penalty, stating that the SEC had not presented sufficient evidence to support the verdict. The SEC appealed that decision as well as the district court's denial of injunctive relief.
In reversing the district court, the Eleventh Circuit Court of Appeals held that the SEC had presented sufficient evidence at trial to support the jury's verdict against Scott Ginsburg and that the district court had abused its discretion in denying the permanent injunction sought by the SEC. The court of appeals also reinstated the $1 million civil penalty that the district court initially had ordered against Ginsburg.
Prior to the trial of Scott Ginsburg in this case, on March 30, 2002, Mark Ginsburg and Jordan Ginsburg had settled the SEC's insider trading charges against them, without admitting or denying the SEC's allegations, by consenting to the entry of final judgments that included permanent injunctions, disgorgement, prejudgment interest and civil money penalties totaling over $4.7 million.
The SEC acknowledges the assistance provided by The American Stock Exchange in certain parts of the investigation of this matter.