SEC Said to Authorize Lawsuit Against Philip Falcone

By Joshua Gallu and Katherine Burton - Jun 27, 2012 7:25 AM GMT+0700

Philip Falcone, the billionaire founder of Harbinger Capital Partners LLC, faces a lawsuit from U.S. regulators as soon as this week over claims he improperly borrowed client money from his hedge fund to pay his taxes, according to two people familiar with the matter.

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Philip Falcone, chairman and chief executive officer of Harbinger Group Inc. in Las Vegas. Photographer: Jacob Kepler/Bloomberg

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Philip Falcone, chairman and chief executive officer of Harbinger Group Inc. Photographer: Jacob Kepler/Bloomberg

Falcone, 49, may also face claims that he gave preferential treatment to Goldman Sachs Group Inc. (GS), an investor in his fund, and manipulated markets when trading bonds of MAAX Holdings Inc., said the people, who asked not to be identified because the matter isn’t public. The Securities and Exchange Commission voted to authorize enforcement staff to file the case, the people said. Florence Harmon, a spokeswoman for the SEC, declined to comment.

“Any allegations by the SEC of improprieties by Mr. Falcone or Harbinger are neither supported by the facts or the law,” said Matthew Dontzin, an attorney for Falcone. “Should a lawsuit be brought, it will be contested vigorously.”

The SEC action is the second blow in less than two months for Falcone, a former Harvard hockey center who built a $26 billion hedge fund by 2008 with a successful bet against subprime mortgages. Having suffered $23 billion in losses and withdrawals from the peak, Falcone is now fighting to keep control of his empire. LightSquared Inc., Harbinger Capital’s biggest investment, filed for bankruptcy in May.

Goldman Treatment

The SEC is set to sue after Falcone in 2009 took out a $113 million loan from his Special Situations fund to pay personal taxes. The loan was disclosed in the fund’s annual financial statement the following March. At the time he borrowed the money, clients were barred from pulling money from the fund. Falcone subsequently repaid the loan with interest.

That same year, with client capital locked up, Harbinger allowed Goldman Sachs, which at the end of 2008 had $1 billion invested in two Harbinger funds, to redeem some money from the firm, said one of the people with knowledge of the SEC’s plan.

In April 2011, Harbinger told clients that the government was looking into whether it had engaged in market manipulation in its trading of the debt securities of an undisclosed company from 2006 to 2008. The company whose debt Harbinger traded was MAAX Holdings, a Canadian maker of bathroom fixtures, said the person.

Tough Spot

“He’s in a very tough spot,” said Ronen Schwartzman, founder of Ten Capital Advisors LLC, a New York-based firm that advises clients on investing in hedge funds. “Its going to be difficult for him to raise money from investors ever again.”

Falcone grew up in Chisholm, Minnesota, the youngest of nine children. His mother worked in a shirt factory, and his father never made more than $14,000 a year as a superintendent at a local utility. He headed east to Harvard University in 1980, and after graduation joined a professional hockey team in Malmo, Sweden, where he played until he was sidelined by a leg injury. He ended up on Wall Street in the mid 1980s, trading high-yield debt at Kidder, Peabody & Co. in New York.

In 2001, Harbert Management Corp., a Birmingham, Alabama- based money management company, was looking for someone to start a fund to trade distressed debt and came across a PowerPoint presentation from Falcone. Harbert hired him to start what became Harbinger, giving him $25 million to get the fund going.

27-Room Mansion

In 2006, he put on the trade that would make his name. Falcone bought credit-default swaps, contracts that rose in value as the price of interest-paying securities constructed from individual home mortgages lost value. When the housing market collapsed in 2007 and defaults soared, Falcone got rich.

With the proceeds of that wager he spent $49 million on a 27-room mansion near Central Park once owned by Penthouse publisher Bob Guccione. He and his wife Lisa became benefactors of New York’s High Line elevated park and the New York City Ballet. Lisa, who was raised in Spanish Harlem by a single mother on welfare, became a film producer and was often photographed in society pages in designer outfits.

After the successful housing wager, Falcone tied his fortune as hedge fund manager, and about $3 billion of investor assets, to LightSquared, which accounted for about 40 percent of the firm’s main fund as of April. Most hedge fund managers have shunned illiquid holdings since the 2008 financial crisis, when they were forced to block client redemptions to avoid a fire sale, and investors have complained about the level of concentration in Falcone’s funds.

Buffett’s Example

LightSquared filed for bankruptcy after the Federal Communications Commission said it would withdraw preliminary approval to build out a nationwide high-speed wireless network because it interfered with GPS devices. Last week, an affiliate of the company filed court papers seeking to borrow as much as $30 million to keep operating while under court protection from bankruptcy.

In an interview in April, Falcone made it clear he wasn’t giving up. He said he was considering a legal fight against the government, which had previously granted him permission to start building out the network.

He also said he was seeking to move away from hedge funds and building a public holding company, much like Warren Buffett’s Berkshire Hathaway, that would be better suited for long-term investments.

To help secure more permanent capital for investments, Falcone’s funds in 2009 bought Zapata Corp., a onetime oil driller, and turned it into Harbinger Group, a holding company that can raise capital for long-term investments. Falcone plans to use Harbinger Group to finance investments in six industries, including consumer products, financial products and natural resources, according to a 2010 regulatory filing.

‘Highly Uncommon’

Harbinger Group last year agreed to buy Old Mutual U.S. Life Holdings Inc., a provider of fixed-annuity and life insurance, for $350 million. Harbinger Group also owns a majority stake in Spectrum Brands Holdings Inc. (SPB), a Madison, Wisconsin-based maker of pet food and batteries.

The company said in May 2011 that it was raising $280 million from a group led by Fortress Investment Group LLC. (FIG) Harbinger Group has a market capitalization of $971 million.

Falcone stopped investor withdrawals from his hedge fund for a second time in December, after the fund told investors it had received a Wells Notice from the SEC, an indication that the regulator was contemplating a lawsuit.

Falcone previously said he received an opinion letter from outside counsel over the $113 million loan.

“It’s highly uncommon for a manager or sponsor of the fund to borrow money from the fund,” said Ron Geffner, a partner at Sadis & Goldberg LLP in New York that represents hedge funds. It “is wrought with conflicts of interest.”

Falcone has said in the past that allegations of preferential treatment of some clients were “completely and utterly untrue.” Harbinger’s offering documents allow it to give certain investors different terms than other clients, according to a person who has seen the documents.

To contact the reporters on this story: Katherine Burton in New York at kburton@bloomberg.net; Joshua Gallu in Washington at jgallu@bloomberg.net

To contact the editors responsible for this story: Christian Baumgaertel at cbaumgaertel@bloomberg.net; Maura Reynolds at mreynolds34@bloomberg.net