Former Advanced Medical Optics CEO James Mazzo must face a third trial on insider trading charges related to AMO’s $2.8 billion acquisition by Abbott (NYSE:ABT) in 2009, after two previous trials ended in hung juries.
Federal prosecutors in 2014 accused Mazzo of tipping a close friend and neighbor, former Orioles player Doug DeCinces, about the then-pending merger (Abbott subsequently sold the business to Johnson & Johnson (NYSE:JNJ) for $4.33 billion last year). DeCinces allegedly passed that information on to former teammate Eddie Murray, who later agreed to settle his case for $358,000 but admitted no wrongdoing; DeCinces agreed in 2011 to pony up $2.5 million (but admitted no guilt) to settle similar charges leveled by the SEC.
Judge Andrew Guilford of the Central California court in May 2017 declared a mistrial in Mazzo’s first trial after a jury deadlocked over the charges against him. That jury also convicted DeCinces and a business associate on charges of tender offer fraud, despite deadlocking on other charges against DeCinces and all of the charges against Mazzo.
Mazzo, now global ophthalmology president at Carl Zeiss Meditec (ETR:AFX) after a 3-year run as president and CEO at AcuFocus, had argued that there is “no evidence” of him “lying, cheating, or hiding anything.”
In February a new jury once again hit deadlock, prompting Guilford to declare a mistrial. This week the judge set the date for a third trial despite his own misgivings about the prosecution, denying Mazzo’s bid to stop the trial, according to court documents.
“Citing a lack of evidence, the incredible resources already spent on this matter, and principles of liberty and fairness, Mr. Mazzo asks the court to prevent this second ‘do over,’” Guilford wrote. “Despite the appealing nature of Mr. Mazzo’s arguments, the oath taken by this judge requires that he apply the law as it exists. And unfortunately, the only time the Ninth Circuit addressed this issue directly, it concluded ‘that the fact that a jury was hung by a six to six vote, or by one even more favorable to the defendant, is not an adequate basis for dismissal under the court’s supervisory powers.’ This holding hasn’t been clearly overruled by the Ninth Circuit, and the other arguments presented by Mr. Mazzo do not otherwise support dismissing this case at this time.”
Guildford set a trial date for June 5, according to the documents.
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