Antoniu v. SEC

877 F.2d 721 (8th Cir. 1989)


D worked from August 1972 until May 1975 in the corporate finance department of Morgan Stanley & Co., Inc. D entered into an insider trading conspiracy with Newman, a securities trader. D would obtain the non-public information about imminent takeover bids by Morgan Stanley's clients. Newman would then buy large blocks of stock of the targeted companies and later sell the stock at a profit. D shared in the profits. Morgan Stanley asked D to resign, and he took a position at Kuhn Loeb & Co. (Kuhn Loeb) in the newly established mergers and acquisitions department. D continued to receive market-sensitive non-public information from Morgan Stanley employee E. Jacques Courtois. While at Kuhn Loeb, D repeated the pattern: he misappropriated the information and passed it to Newman, who bought and sold stocks of target companies. The conspirators split the profits. Kuhn Loeb fired D in 1978 when he was investigated for insider trading violations. D then moved to Italy. On November 13, 1980, D pled guilty to two counts of misappropriating information in securities markets, He was sentenced to three months' imprisonment, thirty-six months' suspended sentence, and a $5000 fine. The sentence was reduced to thirty-nine months' unsupervised probation and a $5000 fine. In 1984, D moved to Minnesota to take a job with M.H. Novick & Co. Due to D's criminal conviction, D and Novick sought approval for the employment from the National Association of Securities Dealers (NASD). NASD approved the employment on June 3, 1985. Antoniu went to work for Novick later that summer. On September 3, 1985, D vetoed NASD's approval of that particular employment. One of the participating commissioners was Charles C. Cox. On September 19, 1985, D started a second set of proceedings. Commissioner Cox also took part in D's decision to institute the second proceeding. The purpose of this second set of proceedings was to determine whether D should be excluded from any employment in the securities business. While this action was pending, on October 18, 1985, Commissioner Cox gave a speech in Denver talking about the details of the case and stated that in the case of D, his bar from association with a broker-dealer was made permanent. D made multiple requests in the administrative proceedings for permission to develop the record on the issue of bias. His requests were denied. D made a motion to disqualify the whole Commission. The motion was denied, and specifically, Commissioner Cox refused to recuse himself. Commissioner Cox did finally recuse himself, on December 3, 1987, the day the opinion of the Commission was handed down. D appealed. D claims that the proceedings were biased or at least that they were impermissibly tainted with the appearance of impropriety.