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A matter of interpretation
Why Nacchio dumped Qwest stock may decide his fate
Published March 21, 2007 at midnight
Insider trading or internal dissension? The trial of former Qwest CEO Joe Nacchio on insider trading charges began in earnest Tuesday with opening statements.
It will be followed with great interest here in Denver, because the company's prominent role in the state meant that Qwest's spectacular fall into near-bankruptcy affected so many people in Colorado - not only the hundreds of employees who lost their jobs when the company collapsed but also the thousands of investors and retirees who saw billions evaporate when share prices tanked.
For the prosecution, James Hearty claimed that Nacchio knew, when he sold $100 million in Qwest stock in the early months of 2001, that the company would have difficulty meeting its growth targets, but continued to maintain publicly that all was well.
"And he sold stock faster than he ever sold it before," Hearty said.
On the defense side, Herbert Stern argued that Nacchio held stock options that would expire, and since the Qwest board refused his request to extend the options, he had to sell.
It is possible to observe that these two different views are not necessarily in conflict; they could both be true. However, only the former is illegal if true.
How jurors will resolve this can never be known in advance, of course. But it is heartening that the 18 jurors (12 regular and six alternates) have a variety of above-average financial and business education and experience. Among them are a mortgage broker, a mortgage analyst, someone with a bachelor's degree in finance, a retired retail store owner, someone who manages a financial service company, and three who have studied accounting.
It appears that both the prosecution and the defense tried to shape a jury that would be likely to understand the questions, whatever answers they arrived at. That's an encouraging contrast with the O.J. Simpson case, where both sides apparently tried to pick jurors who would understand as little as possible about the forensic evidence.
Another question of interpretation concerns a December 2000 memo to Nacchio from former chief operating officer Afshin Mohebbi. The memo said that the company's financial targets were a "huge stretch."
According to the prosecution, it's proof that Nacchio knew about likely trouble ahead; according to the defense, the memo was about meeting internal goals that were higher than those that had been made public, and that Mohebbi was dissatisfied because his compensation depended on meeting the higher targets.
Stern promised that Qwest founder and former Chairman Phil Anschutz will testify that he sought out Nacchio for the Qwest job, but a more significant question is the nature of the relationship between the two, which may or may not emerge.
And round and round they'll go, for the next seven weeks or so.
No matter the outcome, the selection of jurors with more than a passing knowledge of the intricacies of finance may make them less likely to be swayed by courtroom fireworks, and stick to the evidence and the law.
That selection marks the sort of trend we can wholeheartedly endorse in other court proceedings.
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