Harbinger Capital Management founder Philip Falcone has promised a "vigorous" defense against fraud charges that threaten to destroy him, and at least part of that defense will be to blame others.
The Securities and Exchange Commission last week sued Falcone and Harbinger, accusing him of wrongdoing on three counts: a controversial loan he took from the hedge fund to pay his taxes, allegedly granting preferential redemption treatment to favored investors, including Goldman Sachs, and of market manipulation. A fourth allegation, that Harbinger "shorted into the deal" on three public offerings, was settled.
Falcone, who laid out some of his potential defense to the SEC during settlement talks that failed, plans to point the finger at Peter Jenson, Harbinger's former chief operating officer, and two lawyers for giving him the green light on the $113 million loan.
According to Falcone, Jenson—who was also accused by the SEC of misleading Harbinger investors about the loan—and the two lawyers gave their approval to the loan plan. The lawyers were Harbinger in-house counsel Robin Roger, who received a Wells notice from the SEC last year but has since been told she won't face charges, and a lawyer from Sidley Austin.
Falcone never spoke to the Sidley lawyer directly; Roger's lawyer, Paul Schechtman, told The Wall Street Journal that she "relied on a distinguished outside lawyer for legal advice and on Harbinger's business people for the facts and gave her best independent judgment. The SEC said that Harbinger ignored one law firm that advised against the loan and provided "materially incorrect information" about the fund, which had restricted redemptions, to Sidley, which isn't accused of any wrongdoing.
Jenson's lawyer, Charles Clark, told the Journal that Falcone ignored his client's advice on the loan.
"Any position by Mr. Falcone that he was not aware of all facets of the loan, the underlying legal advice, or his final approval of it, is not supported by the evidence," Clark said. "Mr. Falcone withheld material information from my client pertinent to the loan and failed to act on other elements of my client's advice relevant to the loan."
In any event, Falcone plans to argue that the loan, which has since been repaid with interest, was in the best interest of Harbinger's investors. At the time the loan became public, Falcone noted that most of his assets were invested in Harbinger's funds. He also plans to argue that a threatened tax lien on his Harbinger investments could have hurt the fund's other investors.
Falcone and his lawyers are also honing his defense against charges that he and Harbinger gave Goldman preferential treatment in exchange for their votes in favor of tough new redemption restrictions. According to Falcone, other large or strategic investors received similar favorable treatment, and there was no quid pro quo.