Cuban wins

Those of you still pining for Mark Cuban to become a Major League owner will be happy to hear that the insider trading charges have been dismissed.

The dismissal is based on a pleading deficiency. In very basic terms, the government alleged that Cuban did X wrong, but the law requires that he have done X + Y to be held liable. The government can theoretically cure with an amended complaint that alleges X + Y, but I question whether they will do that. Why? Because it doesn’t strike me that alleging X +Y would have been that hard to do back when the first complaint was filed, and the fact that they didn’t allege it suggests that they can’t prove that Cuban did X +Y as opposed to them simply making a drafting error. I mean, sure, it’s government lawyering we’re talking about here so anything is possible, but lots of people review high profile complaints like that, and I suspect that in this case they simply didn’t have the goods on Cuban.

So I guess that clears the way for him to fly in and rescue Tom Hicks from himself now.

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  1. David said...

    So, the SEC had no case against Cuban.  No surprise, there.  Cuban is very smart and, based on what I’ve heard, has kept his finances and his financial prognostications as open and public as Jenna Jameson’s nether-regions. 

    So, their prosecution was bogus.  Why, then, did they charge him in the first place?

    There was an interesting motive suggested by several people in the media that goes like this:

    At the time the SEC started their failed investigation, Cuban was looking for hip, popular programming to generate buzz for his HD TV network.  One of the most popular documentaries on college campuses and for everybody under the age of 30 was a documentary called Loose Change.  Without going into detail, the documentary shares some very unflattering information about the government.  So, the theory went, the SEC jumped in and announced their investigation just as a contract with the filmmakers was being finalized. 

    Suffice to say, Cuban – and Charlie Sheen – both suspiciously withdrew from the project after months of negotiations and just as contracts were to be finalized.

    Sound like a wacko conspiracy theory on top of a wacko conspiracy theory? 

    I dunno.  But the ‘New York Times’ was slipped e-mail exchanges in which the people within the SEC do seem bizarrely fixated and angry with Cuban for exploring the possibility of broadcasting the documentary, calling it – and him – “irresponsible and immoral”.  (Whaddaya know, the government doesn’t like the public saying that the government is bad.  What a shocker!)

    So, this is what the government does to businessmen who broadcast information incriminating them for mass murder.  Could’ve been a LOT worse.  Just ask William Cooper.  Or Barry Jennings.  Or Debra Jean Pelfrey.  Or Pat Tillman.  Or Michael Connell.  Or….ah, hell, you get the picture. 

    Cuban should consider himself fortunate to not have suffered the same fate as those did.

  2. David said...

    Sure.  All those e-mails amongst the SEC prosecutors fixated on ‘Loose Change’ were just, well, losers at work with nothing better to do than talk about Cuban’s TV offerings.

    Okay, okay, you win: the government is great, the government is God, murder the Arabs, etc., etc., etc.

  3. Craig Calcaterra said...

    Not saying it is, David. I’m just always skeptical of theories that depend on the government acting in concert to accomplish anything. Mostly because, my experience in the government, shows it to be outrageously inefficient and damn nigh incompetent when it comes to most things. 

    If there was a desire on behalf of some people to put the screws to Cuban, it would have gone through ten meetings, two executive sessions, and then everyone would have forgotten about it over a long weekend, because they’ll be damned if they’re taking any work home.

  4. David said...

    (This is, obviously, a really long post.  Sorry to be so long-winded.  I wish I had the confidence to be brief!)

    First off, the government is so damn huge that even if only a tiny fraction of them are working in concert, it’s still a massive number of people.  How big is the government?  Well, at the last census, the three richest counties in America are all in suburban Washington D.C. (led by, of course, the Kingdom of Defense Contractors, Fairfax County, Virginia).

    So we have the sheer volume of people all subsisting in an environment where, as one retired CIA operative put it, “money is no object”. 

    So they have the means to do, well, anything.  Now, do they have the motive and opportunity?

    The motives obviously depend on the specific accusation.  But a general rule of thumb about bureaucrats (by which I mean people who work for or with the government and who never build or create things, but rather lord over the lives of those who do) is that they view their institutions as the greatest good in the world, and anybody who disagrees with their government-centric worldview is an enemy. 

    For instance, Pat Tillman was not just murdered, he was, in all extreme probability, assassinated. 

    Here are the words of SI writer Gary Smith about how so many in the government – all of whom knew full well that he was murdered – lied about it to his family and everybody else (and, of course, they continue to do so):

    “How were men who made their living in a bureaucracy….people accustomed to giving truth a little pull here, another tug there for the sake of their institutions, to foresee the tension that would be created when they began stretching the story of the death of a man who put so little stock in institutions….and so much in living an honest life?”

    So, we have the means (endless resources) and we have – in a very broad, generalized sense, the opportunity (love of their institution, the government).  Do they have the opportunity?

    “Conspiracy theory”.  They know that anytime evidence incriminates the government, all they need to do is say “conspiracy theory” and everybody will immediately tense up and squeeze out nervous laughter and say, “Of course that’s not true, that’s just a wacko conspiracy theory!” 

    So they know that they can get away with anything by calling it a conspiracy theory.  We could have video tape of Jon Q. Bureaucrat walking up to somebody and putting a bullet in their forehead (or three, a’la Pat Tillman!).  Then, we could find out that Jon Q. Bureaucrat had been stalking the victim for weeks.  Finally, we could have a thousand eyewitnesses describing the crime scene and giving his license plate number. 

    But then, Jon Q. Bureaucrat says, “Will Carpenter is the murderer!  He hated the victim for his freedom!  We must never tolerate outrageous conspiracy theories.” 

    And what would happen?  Everybody would nod their heads, “Of course Will Carpenter is the murderer.  He hates us for our freedom.  Only wacko conspiracy theorists say otherwise.” 

    You say that the government is too bureaucratic to be malicious.  I’m sorry, but, although this is a very comforting sentiment, 100,000 events throughout history prove otherwise.  Yes, they’re bureaucratic.  That just means that they have the means, the motive, and the opportunity to do many evil things.  This includes murder, and it certainly includes maliciously prosecuting a budding media mogul who distributes information they deem “immoral”.

  5. Craig Calcaterra said...

    “You say that the government is too bureaucratic to be malicious.”

    No, I’m not saying that. I’m saying that I am skeptical when such charges are leveled. It happens. It’s wrong in my mind, however, to assume that it happens as much as people say it does, and I think that it’s not enough to point to history and say “they do it all the time” when you’re making a case against the government.

    Also, you added the “wacko” part. My term “conspiracy theroy” was meant in the most literal of terms: you’re advancing a theory that a conspiracy is afoot.  Which is fine: Woodward and Bernstein had a conspiracy theory that was borne out.  I don’t consider that term an epithet.

    But at the same time, I don’t consider an allegation of a government conspiracy to be a self-authenticating thing.

  6. David said...

    Of course not every allegation leveled at the government is true.  That’s self-evident.

    “The U.S. government plotted to kill Julius Casear.”

    That’s not true, and therefore not every accusation made can be true.  I mean, that’s not what I was saying at all. 

    I was making kind of the inverted point: that the government commits many crimes (actually, what I mean to say is persons within the government commit crimes) but they’re exempt from investigation – and certainly from prosecution.  And one major reason for this is because people say that anybody accusing the government of a crime is spouting a “conspiracy theory”.  (These people apparently don’t want to recognize that every single crime involving more than one person is a conspiracy.)

    I simply try to be honest, in every instance.  If the evidence points to something being true, I agree with it to the degree that the evidence is strong.  I don’t at all believe that the moon landing was faked.  I’m ambivalent about claims that JFK was murdered by people beyond Oswald.  And I am absolutely 100% positive about the government’s guilt on the date that came after September 10. 

    It’s just like anything in life.  Just be honest, ya know?

  7. Aaron Moreno said...

    I’m gonna ignore all that and say that the Feds probably pushed weak charges on Cuban to push him to deal. Like in the Bonds case, the defense saw through that, and got a good win.

  8. David said...


    I think that that sounds every bit as probable as the idea that it was a political prosecution. 

    However, that would not make it similar to the Bonds case because, if the feds were just hoping for a quick plea from Bonds (like they got from Chris Webber, for instance) then they would’ve dropped the charges as soon as they saw that he was calling their bluff….and they certainly would’ve dropped them when the judge dismissed them, rather than filed an appeal that, by all accounts, has no chance of being won.

    It would be nice to think that some prosecutors did indeed believe that Bonds perjured himself, and they just wanted to make sure that justice was meted out fairly.  Alas, every single bit of evidence points to the opposite notion: the failed prosecution of Bonds was malicious, selective, legally bankrupt, and flagrantly immoral. 

    But the Bonds talk is supposed to be in another thread, right?

  9. Aaron Moreno said...

    I think it’s likely that this was a political prosecution against Cuban. However, David, I don’t think that the Fed is in an insane conspiracy to get back at him for supporting an insane conspiracy.

    Think about it!

  10. Jason said...

    “And I am absolutely 100% positive about the government’s guilt on the date that came after September 10.”

    Isn’t there a Godwin’s Law for this one yet?

  11. David said...


    I did “think about it”.  I wrote about it above, and linked to a ‘New York Times’ article with transcribed e-mails in which the SEC was angrily discussing Cuban’s involvement with the political documentary (which you called “insane”, that’s a compelling argument you made!) and he was then, coincidentally, prosecuted.

    So, you think the government is great, and that they never conspire.  You think that dirt poor Arabs who weigh 155 lbs. can, say, overtake a pilot trained in counterterrorism who’s 6’2” with a body that Lebron James would envy, and that they could do it before he or his co-pilot or the stewardess could tap a big red distress button.  And you think that these evil conspiring Arabs did all of this – murdered themselves and thousands of strangers – because “they hate us for our freedom”.  Good for you.  Now leave me alone.  I will never lie about murder.

    For everybody who doesn’t believe Aaron’s wacko conspiracy theories about evil Arabs running across the Atlantic ocean because “they hate us for our freedom”, I suggest you look into Building 7 and this organization.

  12. Craig Calcaterra said...

    David—I’m sorry, and I know that it doesn’t fit under my typical guidelines about offensiveness, etc., but I’m not going to allow 9/11 stuff on the basis of time and place.  As in this isn’t the right one of either of those things for that.

    The Cuban stuff at least deals with the subject of the post and a figure relevant for sports.  If anyone wants to have a 9/11 theory conversation offline, I’ll gladly facilitate an exchange of email addresess.  But this is my forum, and I simply prefer not to have it here.

    Thanks in advance.

  13. David said...

    I totally understand that this is not the place for such an incendiary topic.  I’ll gladly take Craig up on his offer to further the discussion via e-mail (or via the Star Wars message boards, where anything goes!) if anybody is so interested.

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