In the summer of 2011 a group of traders including Phil Mickelson and Las Vegas gambler Billy Waters reportedly made several million dollars trading call options in shares of Clorox (CLX) just days before billionaire Carl Icahn announced an unsolicited bid for the company. Nearly three years later the FBI confronted Mickelson at a tournament in Ohio last week, seeking more information.
Officially none of the three men has actually been accused of anything. In fact, both Mickelson and Icahn deny knowing one another. Additionally, at least according to the Wall Street Journal, the case has been hamstrung by the fact that Icahn owns a meaningful stake in one of the companies that would have been used to tap the hedge fund legend's phone calls.
Icahn is vociferously defending his "unblemished" 50 year record. He's ruffled some feathers but never been caught or officially accused of breaking laws. Mickelson says he's cooperating fully, denies doing anything wrong and has no further comment. Walters, the lynchpin between Icahn and Mickelson, has little headline value to newspapers or Federal Officials but he also denies wrong-doing.
The interesting thing is there may not have even been any crimes broken if Icahn had stated his intentions to Waters or anyone else. It's well documented that in January of 2013 Icahn went on CNBC and told a national television audience shares of Herbalife (HLF) could be ripe for "the mother of all short squeezes" just days prior to buying buying about 13% of the company, effectively creating the short squeeze he had predicted. Months prior to that Icahn sent shares of Apple (AAPL) soaring by tweeting nice things about sharing dinner with company CEO Tim Cook.
The line between criminal trading of inside information and informed investing is murky. In this case, if Icahn himself was CEO of Clorox and revealed that an outside bid for the company would be announced and Walters and Mickelson then profited from that information, it would be a clear violation of the law. At least so far there is nothing resembling that type of evidence chain in this investigation.
If no charges have been made or laws broken why is this news? Primarily because there are no legal standards set in stone regarding material information and how it can and can't be used in the information age. The Feds are making it up as they go. Should famous golfers or the well-connected have access to information other investors don't? Of course not. But obviously those moving in the same circles hear things the public doesn't. Under current laws the government doesn't have any way to police these exchanges. They just have a system of embarrassing high-profile investors and, in this case, themselves. As we said last week it's time to rip up the current rules and take a mulligan on how the FBI and SEC go about deciding which insider cases to pursue.