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SEC Message for Insider Traders: We’re Watching You, Says Jason Scharfman

Heinz was always more than just a brand of ketchup. Its 57 brands were associated with the number of communists Senator Joe McCarthy found in the U.S. state Dept. in the 1950s. Then a scion of the founder, John Heinz III, became a popular Republican Senator from Pennsylvania and his widow later married Sen. John Kerry , the new Secretary of State.

And now, H.J. Heinz Co. is becoming known for a widening insider trade probe by the FBI and the SEC.

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They’re investigating an option trade made just one day before Warren Buffett’s Berkshire Hathaway and 3G Capital announced a $23 billion buyout of the firm. According to the SEC, two days before the announcement 14 call options on the stock were bought, betting its price would rise. One day before the announcement 2,533 call options were purchased—a “drastic” uptick, according to the SEC. By Thursday the $90,000 initial trade was worth $1.8 million.

Last Friday, the SEC froze a Swiss account at Goldman Sachs it suspects was involved in the trade and it sued unknown traders citing “highly suspicious trading” in Heinz call options before the buyout announcement. This is the second time in six months the SEC has investigation alleged insider trading in a deal involving 3G Capital.

Jason Scharfman, a managing partner at Corgentum Consulting , tells The Daily Ticker that the timing, origin and size of profits make the Heinz trade suspect. “Any reasonable person could say this is too good to be true,” says Scharfman, who focuses on due diligence for private equity and hedge fund operations.

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Still, says Scharfman, the government could have a tough time making its case. At this point the identity of the trader—or traders— is unknown and that could continue unless the Swiss and Goldman Sachs reveal the identity or the trader tries to unfreeze the Swiss assets. Scharfman says the latter is unlikely.

“The SEC is looking to send a message,” says Scharfman. “It wants people to know that insider trading is being watched, they’re prosecuting it, they’re monitoring the data and ultimately the trader is not going to reap those profits.”

The Heinz case is just the latest in a growing number of high-profile insider trading cases prosecuted by the government. In October 2011 hedge fund billionaire Raj Rajaratnam was given a record 11-year prison sentence for insider trading and former Goldman Sachs board member Rajat Gupta was later convicted as well and sentenced to two years in prison. More recently the government began investigating SAC Capital Advisors for insider trading with the cooperation of former employees there.

Scharfman expects continued aggressive action against the insider trader under the SEC’s new chief, former securities lawyer and U.S. Attorney Mary Jo White.

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