With no written confidentiality agreement, the outcome largely boiled down to Cuban's word against Faure's. That presented the SEC with a problem, according to Stuart Slotnick, a defense attorney who has done battle with the agency on several civil and criminal cases. The biggest reason: the SEC's failure to compel Faure to appear for live questioning in the courtroom, settling instead for videotaped testimony.


Meantime, a defense witness, former SEC regulator Erik Sirri, testified that that the information passed to Cuban from Faure was in fact already public. That claim would be based, Slotnick points out, on any chatter that had taken place about a potential stock placement before the decision to actually go ahead with it was made. "If they had approached investors, shopping the idea, it was out there," says Slotnick.

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