The Rittenhouse Review

A Philadelphia Journal of Politics, Finance, Ethics, and Culture

Tuesday, June 25, 2002  

Today’s “News” Adds Nothing to the “Story”

Although we haven’t pulled out the tape measure, it’s a safe bet the column inches devoted to Martha Stewart’s December trades in the common stock of ImClone Systems Inc. have exceeded by a factor of at least five those given to the actions of company founder and former chief executive officer Sam Waksal.

And Waksal has been arrested on federal insider trading charges involving ImClone!

As we wrote yesterday, we believe the facts so far presented in the media, some of which have come from investigators in the House of Representatives, regarding the Dec. 27 sale of ImClone stock by Stewart, chairman and chief executive officer of Martha Stewart Living Omnimedia Inc., will amount to nothing.

But, having made so a fuss, diving into the “story” with furious overkill, the media last night found itself moving into “maintenance mode,” the period just after a non-story peaks during which reporters, seeking to save face, attempt to keep the issue alive by reporting and exaggerating even the most inconsequential news.

Today’s reports in the New York Times, The Wall Street Journal, and the New York Post, to name just a few offenders, clearly fall into this category. And yesterday’s piece in the Post by histrionics-prone Christopher Byron, author of the monumentally unsuccessful Martha Inc., bordered on hysteria. That Byron stands to gain financially -- despite his book’s failure -- from any controversy surrounding Stewart is a fact the paper’s editors either failed to notice or thought readers need not be made aware.

Appearing today on the CBS television program “The Early Show,” Stewart said she hopes the controversy surrounding her sale of just under 4,000 shares of ImClone Systems will be resolved “very soon,” adding the she fully expects to be “exonerated of any ridiculousness.” Stewart has maintained her innocence since the matter first reached the media earlier this month.

Hays grasps at straws

Constance Hays, writing in today’s Times (“Panel Focuses on Martha Stewart Call”), quotes Ken Johnson, a spokesman for the House Energy and Commerce Committee, which is investigating several trades in ImClone Systems stock, as stating that the committee “is focusing on a call made to Martha Stewart by her stockbroker on Dec. 27…in which the broker left a message saying that the price of ImClone was about to fall.”

An assistant in Stewart’s New York office, according to Hays, noted the call in Stewart’s phone log. It reportedly reads, “Peter Bacanovic thinks ImClone is going to start trading downward.” The time of the call from Bacanovic was not written down, but Stewart’s lawyers said it was between 10:00 a.m. and 11:00 a.m., Hays reports. As has been reported, Bacanovic counts not only Stewart among his clients but also Waksal and his two daughters.

Bacanovic and his sales assistant Douglas Faneuil were placed on paid suspension by Merrill Lynch & Co. following an internal investigation that found discrepancies related to “factual issues regarding a client transaction.”

Citing “a person close to the investigation,” the Times reports that the transaction in question is Stewart’s sale of ImClone shares, not those of the Waksal family members. Moreover, the source maintains, Merrill’s “findings seem to contradict” Stewart’s assertion that she had a standing order with Bacanovic to sell ImClone if it fell below $60, which it did on Dec. 27, the day before ImClone announced that the Food and Drug Administration rejected its application for approval of Erbitux, a treatment for certain forms of cancer.

Hays and the investigators appear to be reaching rather hard with the following:

“The wording of the message could raise further doubt on whether Ms. Stewart and her broker had agreed in advance to sell her ImClone shares when the stock hit $60….The message from Mr. Bacanovic did not refer to the stock hitting Ms. Stewart’s target but rather that the broker felt it was going down, something it had already been doing for weeks. Moreover, if the call from Mr. Bacanovic came between 10 and 11 a.m., it would have been soon after Dr. Waksal’s daughter Aliza had sold all her shares, according to the criminal complaint filed against Dr. Waksal by the United States attorney in New York.”

Hays quotes Johnson as saying, “It’s another strange coincidence in a story filled with strange coincidences.”

Speculation is a one-way street

So again we have speculation headed exclusively in one direction, against Stewart, a conclusion completely un- warranted by the facts at hand. Bacanovic, who has a fiduciary relationship toward Stewart, attempts to reach his client to inform her that one of her stocks may be headed into a decline, and Hays leaps to the assumption that Bacanovic’s intention was to tell Stewart that his call was prompted by material non-public information, i.e., from a member of the Waksal family. This despite no supporting evidence whatsoever, and even less evidence that Stewart would have acted on this kind of advice had Bacanovic provided it to her.

Peter Bacanovic

Now, it’s fair to assume that Bacanovic was fairly busy on Dec. 27, what with the Waksals badgering him to sell their stock and, presumably, fielding calls from any number of other clients and colleagues who -- watching the stock sag on heavier-than-normal volume -- knew that the Waksals were Bacanovic’s clients and that he had worked for ImClone for two years in the 1990s.

Thus, it’s a safe bet that Bacanovic didn’t feel he had a great deal of time to chat with Stewart’s assistant. Moreover, the topic under discussion was obviously a personal financial matter, suggesting an element of discretion was appropriate.

In addition, Bacanovic certainly knew as well as anyone that Stewart is difficult to reach on the phone given the tight schedule she maintains even when not working. There is no reason to believe Bacanovic expected to reach Stewart immediately. By the time the two did talk, several hours later based on the time line provided, the stock had declined precipitously on Dec. 27, sparked in large part by Aliza Waksal having dumped her shares and aided by cautious remarks about ImClone from Merrill Lynch’s own biotechnology industry analyst.

Hays seems to think she is onto something when she points out that ImClone’s stock had been declining “for weeks.” Yes, it had, and Stewart may already have been aware of this, and may already have conveyed her concerns to Bacanovic, who as we know has said he and Stewart spoke in mid-December, the time period upon which Hays puts so much attention.

In her own report Hays says Congressional investigators expect to meet with Bacanovic later this week, but adds, “It is unclear whether he will do so.” Why Hays declined to speculate on this aspect of the story -- the logical direction being fairly obvious in our minds (Hint: It has something to do with the Fifth Amendment.) -- we cannot explain.

The Rittenhouse Review | Copyright 2002-2006 | PERMALINK |