Philip Falcone and Harbinger Capital Partners yesterday asked a federal judge to throw out the Securities and Exchange Commission's lawsuit against them, arguing that the regulator has failed to show they did anything wrong.
Lawyers for Falcone and his hedge fund said the SEC had failed to present evidence of illegal actions in its lawsuit, which accuses Harbinger and Falcone of market-manipulation and misleading investors over a $113.2 million loan Falcone took from a Harbinger hedge fund.
The SEC claims that Harbinger manipulated the prices of MAAX Corp. bonds by buying up more than the available issuance of bonds, forcing short-sellers, including naked short-sellers, to cover their shorts and artificially driving up the prices. Falcone's lawyer called it "a perfectly lawful transaction," the SEC countered that it was "the combination of events together with their nondisclosure that led to the manipulation."
On the 2009 loan, which Falcone took to pay a legal bill while Harbinger investors were subject to redemption restrictions, Harbinger's lawyers said that the "loan was absolutely lawful" and that it was repaid early with interest. The SEC said that Harbinger should have disclosed the loan, and that his failure to do so was "a breach of fiduciary duty to the fund and to the investors."
The SEC asked U.S. District Judge Paul Crotty to allow its lawsuit, which seeks to bar Falcone from the industry, to proceed. Crotty did not indicate a timetable for his decision.