U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 19456 / November 3, 2005
SEC V. ZVI FUKS, A.K.A. ZVI FUCHS, AND SABINA BEN-YEHUDA, A.K.A. SONIA BEN YEHUDA, 05 Civ. 2668 (JES) (S.D.N.Y.)
ZVI FUKS AND SABINA BEN-YEHUDA SETTLE SEC INSIDER TRADING CHARGES
Zvi Fuks and Sabina Ben-Yehuda have consented to a full resolution of the Commission's insider trading case against them. Pursuant to this settlement, which is subject to the Court's approval, Fuks and Ben-Yehuda will pay full disgorgement of the losses they avoided as a result of their insider trading in ImClone stock in December 2001, plus prejudgment interest on those amounts and a civil penalty equal to the amount of their losses avoided. In total, Fuks and Ben-Yehuda will pay $2,770,687 to settle the Commission's case against them.
The Commission originally filed insider trading charges against Fuks and Ben-Yehuda on March 9, 2005 in the United States District Court for the Southern District of New York and filed an amended complaint today. In its amended complaint, the Commission charges that on the evening of December 26, 2001, ImClone's then CEO Samuel D. Waksal privately learned in advance of any official notice or public announcement that the United States Food and Drug Administration ("FDA") would reject consideration of ImClone's application to approve its primary product, a cancer treatment called Erbitux. On December 27, Waksal tipped Ben-Yehuda, who then passed the news onto Fuks. That same day, before this news became public and while in possession of this material, non-public information, Ben-Yehuda sold over $73,000 and Fuks sold over $5 million of ImClone stock. ImClone received written notification of the FDA's decision in the afternoon on December 28, and publicly announced the FDA's decision in a press release at about 6:00 p.m. that day. This news prompted ImClone's stock price to drop 16%, from $55.25 to $46.46, by the close of the next trading day, December 31. The Commission's amended complaint alleges that both Fuks and Ben-Yehuda violated section 17(a) of the Securities Exchange Act of 1933 ("Securities Act"), Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 thereunder.
Fuks and Ben-Yehuda have agreed to a full resolution, subject to the Court's approval, of all of the charges in the amended complaint. Without admitting or denying the allegations, Fuks has consented to the entry of a final judgment against him, ordering him to (a) disgorge $1,214,239 representing the losses he avoided by the sales of ImClone stock, plus prejudgment interest of $230,615; (b) pay a civil penalty of $1,214,239; and (c) be permanently enjoined from future violations of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. Ben-Yehuda has consented to the entry of a final judgment against her, ordering her to (a) disgorge $50,958, representing the losses she avoided by her sales of ImClone stock, plus prejudgment interest of $9,678; (b) pay a civil penalty of $50,958; and (c) be permanently enjoined from future violations of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder.
The Commission acknowledges the assistance of the United States Attorney's Office for the Southern District of New York and the Federal Bureau of Investigation in the investigation of this matter.