…ORDER Amending Judgment imposed March 9, 2018 (ECF No. ).
Before the court are the parties’ submissions regarding an application for restitution from Richard Kocher, who invested a total of $200,000 in Mr. Shkreli’s MSMB Healthcare hedge fund. (Defendant’s Letter, ECF No. 558; Government’s Letter, ECF No. 564; Defendant’s Reply, ECF No. 572.) In February 2012, Mr. Kocher made a $100,000 investment in MSMB Healthcare pursuant to a subscription agreement that included a 1-month redemption notice period. (see GX 107-4 (email exchange with Kevin Mulleady referencing 1-month redemption period).) For his second investment of $100,000, in May 2012, Mr. Kocher negotiated a side-agreement, which would permit him to redeem the investment with one week’s notice. (GX 107-11 (Subscription for Additional Investment, executed by Mr. Shkreli).) In September 2012, Mr. Shkreli notified limited partners in his MSMB Capital and MSMB Healthcare hedge funds that the funds would be winding down and that investors could redeem their investments in cash or in shares of Retrophin. (GX 107-12.) Based on representations made by Mr. Mulleady in late 2012, Mr. Kocher believed his investment to be worth $280,000. (Kocher Decl., ECF No. 564-2 at 6.) Mr. Mulleady’s representation to Mr. Kocher was consistent with Mr. Shkreli’s false representations regarding the performance of the MSMB Healthcare fund. (See GX 83-4 (email from Mr. Shkreli to Mr. Kocher reporting that Mr. Kocher’s account value was $231,161.09 as of July 31, 2012).)
In December 2012, Mr. Kocher made a $150,000 deposit on a real estate investment opportunity with a closing date of March 15, 2013. (Kocher Decl. at 7.) As set forth in Mr. Kocher’s declaration, and supported by documentary and testimonial evidence at trial, Mr. Kocher expected that he would be able to redeem his MSMB Healthcare investment before the closing date to provide him with funds to close the transaction. (Kocher Decl. at 8-9.) After requesting redemption from Mr. Mulleady and Mr. Shkreli without success, however, Mr. Kocher was forced to take on an investment partner for the real estate transaction. (Kocher Decl. at 20.) The partner contributed $300,000 to the project. (Id.) When the real estate investment project “came to fruition,” Mr. Kocher had to pay his partner $769,477.13 as a share of the profits. (Kocher Decl. at 21.) Had Mr. Shkreli not defrauded Mr. Kocher, Mr. Kocher would have been able to use his own money as funding for the real estate investment, and would not have had to take on a partner. (Kocher Decl. at 22.) Mr. Shkreli knew of Mr. Kocher’s liquidity requirements, both from the side-letter agreement (GX 107-11) and a March 11, 2013 email in which Mr. Kocher specifically noted his “liquidity needs.” (GX 107-15.) Nevertheless, Mr. Shkreli did not return Mr. Kocher’s money, forcing Mr. Kocher to engage counsel. (Kocher Decl. at 19.) Mr. Kocher incurred $9,280.50 in legal costs in seeking to redeem his MSMB Healthcare investment, as well as $217.26 in costs related to his trial testimony. (Kocher Decl. at 25.) He now seeks $778,947.63 in restitution.
Pursuant to the Mandatory Victims Restitution Act (“MVRA”), “the court shall order…restitution to the victim of the offense[.]” 18 U.S.C. § 3663A(a)(1). Based on the parties’ submissions, Mr. Kocher’s declaration, and the evidence at trial, the court awards Mr. Kocher restitution for his lost profits and legal costs incurred in seeking to redeem his MSMB Healthcare investment. The defense cites United States v. Maynard for the proposition that the MVRA does not permit restitution awards for “business expenses,” 743 F.3d 374, 380 (2d Cir. 2014), but Maynard is distinguishable. In Maynard, the Second Circuit rejected business expenses that the victim would have incurred in the ordinary course of business. See id. In contrast, but for Mr. Shkreli’s fraud, Mr. Kocher would have been able to use his own funds to finance his real estate investment, and would not have had to take on a partner and share the profits from the venture. (Kocher Decl. at 22.) Mr. Shkreli falsely represented that MSMB Healthcare was performing well, and also falsely represented that the fund had the ability to redeem investments in cash by December 1, 2012. (GX 83-4; 107-12.) Mr. Kocher relied on Mr. Shkreli’s false statements regarding the performance of his investment and MSMB Healthcare’s liquidity, and his lost profits therefore “naturally and directly flow” from Mr. Shkreli’s fraudulent conduct. See United States v. Boccagna, 450 F.3d 107, 121 (2d Cir. 2006) (distinguishing permissible MVRA damages from impermissible consequential damages). These losses are therefore compensable in a restitution award. See United States v. Qurashi, 634 F.3d 699, 705 (2d Cir. 2011) (prejudgment interest in MVRA restitution award appropriate because full compensation for actual loss “includes the loss of the ability to put [the victim’s] money to productive use”); United States v. Scott, 321 Fed. Appx 71 (2d Cir. 2009) (summary order) (“the actual value of the stolen property…was the nominal value of the stolen funds plus the subsequent investment gains lost as a result of the theft”). Similarly, Mr. Kocher would not have had to engage counsel to seek redemption of his MSMB Healthcare investment had it not been for Mr. Shkreli’s fraudulent conduct.
For the foregoing reasons, the court awards Mr. Kocher restitution in the amount of $388,336.49, due and payable immediately, which represents Mr. Kocher’s lost profits ($769,477.13) and his legal costs associated with the MSMB Healthcare fraud ($9,280.50), less the value of the Retrophin stock and cash Mr. Kocher received as part of a settlement agreement executed by Mr. Shkreli ($390,421.14). (GX 54; see Governments Letter at 3.)
Ordered by Judge Kiyo A. Matsumoto on 4/9/2018….
Now you know — and more broadly, I am smiling a beaming namaste…. on a big day in Trump’s unraveling. His personal lawyer now risks disbarment (likely) or jail (less likely), if he refuses to flip.