U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 19538 / January 23, 2006
Securities and Exchange Commission v. Mark Kishel, Civil Action File No. 1:06-CV-0123 (N.D. Ga.).
The Securities and Exchange Commission today announced the filing of an action against Mark Kishel, a former Immucor, Inc. director for engaging in insider trading in the securities of Immucor. The Commission's complaint, filed in the United States District Court for the Northern District of Georgia, alleges that while a director of Immucor, the defendant purchased securities of Immucor while in possession of material nonpublic information.
The Commission's complaint alleges that on January 30, 2004, Immucor submitted an application to the United States Food and Drug Administration ("FDA") to market and sell its blood analysis system ("Galileo") which was then being sold in Europe, in the United States. On March 25, 2004, when Immucor announced its fiscal third quarter results, the Company refined this projection, telling investors that it believes it would receive clearance to market the Galileo in the United States in the fall of 2004. Over approximately the next month, as Immucor's staff responded to the FDA's questions and requests for additional information, it became clear to Immucor's senior management that the FDA would likely grant approval to Immucor's Galileo application within a matter of weeks instead of months-far earlier than the company had previously projected. On April 16, 2004, a presentation was made to Immucor's board of directors, with defendant Kishel in attendance, informing the board that the company expected early FDA approval of Galileo. The information constituted material nonpublic information. After leaving the meeting on April 16, 2004, defendant Kishel purchased Immucor securities while in possession of this information.
After the close of the markets on April 26, 2004, Immucor announced that the FDA had approved its Galileo blood analysis system for sale in the United States. On April 27, 2004 Immucor's stock traded up $4.18 (19.19%) to close at $25.96 on heavy trading volume. The Complaint alleges that Kishel received $13,650 in unrealized gain as the result of his conduct. The complaint alleges that by his conduct, Kishel violated Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 thereunder.
In a consent filed with the complaint, Kishel agreed, without admitting or denying the allegations in the complaint, to the entry of a final judgment permanently enjoining him from future violations of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. In addition, the defendant consented to pay disgorgement plus prejudgment interest totaling $14,767.48 and consented to pay a one-time civil penalty on his profits of $13,650.