By Dan Christensen, BrowardBulldog.org
In a stinging rebuke to the government, a federal judge Monday cleared Fort Lauderdale heart doctor and top Republican fundraiser Dr. Zachariah P. Zachariah of civil insider stock trading charges.
In her 60-page ruling, U.S. Magistrate Linnea R. Johnson said the U.S. Securities and Exchange Commission “failed entirely” to prove its assertion that Zachariah used inside information to collect nearly $1 million in illegal profits trading a pair of Florida stocks in 2005.
“The evidence simply is not sufficient to show that Dr. Zachariah, a prominent cardiologist who has given millions of dollars to charity, who has been appointed to and considered for prominent public service positions, and who has been a devoted father to his sons, would be willing to jeopardize his reputation and his career and put his family in harm’s way all for the opportunity to make what was an insignificant profit to him in light of his means at that time,” Johnson said.
“I’ve always had great faith in our justice system and I knew I’d be fully vindicated in the end,” said Zachariah, the director of the Fort Lauderdale Heart Institute at Holy Cross Hospital and a past chairman of the Florida Board of Medicine. “The government has put me through a long ordeal and I’m happy to be able to devote 100 percent of my attention to my medical practice and my public service.”
SEC Assistant Regional Director Glenn Gordon said it was too soon to say whether his office would appeal. “We got the decision late yesterday and we are reviewing it,” he said.
Zachariah, a past member of the state university’s Board of Governors and a current trustee at Nova Southeastern University, has been a top Republican money man for more than two decades. He is close to the Bush family, and was an elite fundraiser for both Presidents Bush and former Gov. Jeb Bush.
According to court records and trial testimony, President George W. Bush planned to nominate Zachariah – or “Zee-Zee,” as the former president called him – as U.S. Surgeon General in 2006. The SEC investigation changed those plans.
The SEC accused Zachariah in 2008 of using nonpublic information to profit three years earlier trading the stock of generic drug maker IVAX and jail operator Correctional Services Corp., whose shares rose sharply during takeovers.
The non-jury trial ran 12 non-consecutive days over a seven week period that ended Oct. 8. It included testimony from a pair of corporate chieftains involved in those takeovers – Teva Pharmaceuticals Chairman Phil Frost and George Zoley, CEO of Boca Raton prison contractor, The Geo Group.
Throughout the trial, defense counsel Curtis Miner sought to portray Zachariah as “a model public citizen” who served selflessly on public boards and gave generously to charity.
“He has the trappings of wealth, a nice house, a boat. Does that make him a greedy person? No. It just means he’s successful,” Miner said. Zachariah was also represented by former federal judge and U.S. Attorney Tom Scott.
Zachariah, who lives in a home on the Intracoastal Waterway in Sea Ranch Lakes, took the witness stand to deny wrongdoing. In his testimony, however, he portrayed himself as a physician consumed with playing the stock market between patient visits – likening his strategy of placing “hundreds and hundreds” of trades a year to “gambling.”
Huge stock losses
He said he lost upwards of $20 million over the years.
“I made millions of dollars in the market, and I lost millions of dollars in the market,” he told SEC trial attorney Christopher Martin. “One time I took a portfolio from $40 million up to $60 million in two months. You’d think I was a mini-Warren Buffet. Now, you think I’m a fool.”
The government relied heavily on written records to document Zachariah’s trades, phone calls and inside corporate connections. But the few witnesses the SEC called to testify ended up helping Zachariah, according to the judge.
In her order, Johnson accused the SEC of employing flawed logic and low blows to try and make its case stick.
“The lengths to which the SEC went to attempt to attack the credibility of non-party witnesses, including its own witnesses, highlights the weakness of its claims,” Johnson wrote. “For example, the SEC referred to (Zachariah’s son) Reggie Zachariah as a ‘drinker’ in its closing argument and slides – a bizarre allegation that was entirely unsupported by the record evidence.”
The SEC argued that Reggie, who worked on the Correctional Services acquisition while employed in GEO’s merger department, was one of several possible sources of inside information that his father could have traded on when he bought about 80,000 Correctional Services shares for less than $3a share between May and July 13, 2005. Dr. Zachariah sold those shares for a large profit shortly after GEO announced on July 14 that it would pay $6 per share.
Alternatively, the SEC suggested Zachariah could have learned of the merger from his friendship with Zoley or his political work as a paid GEO consultant.
SEC’s ‘multiple choice theory’
Judge Johnson derided the SEC’s assertions as a “multiple choice theory.” Instead, she said she believed the “credible” testimony of Zachariah, his son and Zoley who denied discussing the merger in advance.
Likewise, the judge discounted the SEC’s allegations about Zachariah’s IVAX trades.
Zachariah was on IVAX’s board in July 2005 when he allegedly got a call from Frost informing him that IVAX had agreed to be acquired by Teva for $26 a share. The SEC said that phone records showed that within minutes Zachariah bought 35,000 IVAX shares for less than $21 a share.
IVAX’s directors were at the time forbidden by law from trading the company’s stock.
Johnson, however, ruled that the phone records were contradictory and unreliable. She also held that Zachariah’s violation of IVAX’s insider trading policy was not intentional. The company had sent the policy to Zachariah after he joined the board that spring, but he testified that he never received or reviewed it.
The judge’s findings were also a vindication of sorts for two other Holy Cross physicians charged along with Zachariah – his brother and fellow cardiologist Dr. Mammen Zachariah and endocrinologist Dr. Sheldon Nassberg.
The SEC had alleged that Zach Zachariah used the inside he information he’d obtained to tip both men. Mammen Zachariah, also a former chairman of the Florida Board of Medicine, and Nassberg paid large sums one year ago to settle their cases.
But the judge’s order suggests they should not have done so. Johnson wrote that she believed the testimony of both men who denied getting any inside information.