S.E.C. v. Rajaratnam , 918 F.3d 36 ( 2019 )


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  • 11-5124-cv
    SEC v. Rajaratnam
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    August Term, 2018
    Argued: November 2, 2018     Decided: March 5, 2019
    Docket No. 11-5124-cv
    SECURITIES AND EXCHANGE COMMISSION,
    Plaintiff-Appellee,
    — v. —
    RAJ RAJARATNAM,
    Defendant-Appellant,
    GALLEON MANAGEMENT, LP, ALI HARIRI, RAJIV GOEL, ANIL KUMAR, DANIELLE
    CHEISI, MARK KURLAND, ROBERT MOFFAT, NEW CASTLE FUNDS LLC, ROOMY KHAN,
    DEEP SHAH, ALI T. FAR, CHOO-BENG LEE, FAR & LEE LLC, SPHERIX CAPITAL LLC,
    ZVI GOFFER, DAVID PLATE, GAUTHAM SHANKAR, SCHOTTENFIELD GROUP LLC,
    STEVEN FORTUNA, S2 CAPITAL MANAGEMENT, LP,
    Defendants.*
    *
    The Clerk of Court is respectfully directed to amend the caption as listed above.
    B e f o r e:
    RAGGI, LYNCH, and DRONEY, Circuit Judges
    Defendant-Appellant Raj Rajaratnam appeals from a judgment of the
    United States District Court for the Southern District of New York (Rakoff, J.),
    ordering him to pay a civil penalty of almost $93 million in a civil suit brought by
    the Securities and Exchange Commission. Rajaratnam argues that the district
    court committed legal error in interpreting Section 21A of the Securities
    Exchange Act as allowing a civil penalty based on profits from trades Rajaratnam
    illegally executed but from which he did not personally profit. Rajaratnam also
    argues that the district court abused its discretion by failing to consider
    Rajaratnam’s criminal punishment and by improperly considering Rajaratnam’s
    wealth in determining the amount of the civil penalty. The order of the district
    court is AFFIRMED.
    DAVID LISITZA, Senior Litigation Counsel, Securities and
    Exchange Commission, Washington, D.C., (Michael A.
    Conley, Deputy General Counsel, Jacob H. Stillman,
    Solicitor, Randall W. Quinn, Assistant General Counsel,
    Paul G. Alvarez, Senior Counsel, Securities and
    Exchange Commission, Washington, D.C., on the brief)
    for Plaintiff-Appellee.
    SAMIDH GUHA, Jones Day, New York, NY (Meir Feder, Ian
    Samuel, Jones Day, New York, NY, on the brief) for
    Defendant-Appellant.
    2
    GERARD E. LYNCH, Circuit Judge:
    In this civil action, filed in the United States District Court for the Southern
    District of New York (Jed S. Rakoff, Judge), the Securities and Exchange
    Commission (“SEC”) charged defendant-appellant Raj Rajaratnam with insider
    trading conduct for which he was criminally prosecuted by the United States
    Department of Justice. See United States v. Rajaratnam, 09 Cr. 1184 (S.D.N.Y.
    Holwell, J.). After Rajaratnam’s conviction following trial, the SEC moved for
    summary judgment in the civil case. As part of its requested relief, the SEC
    sought a civil penalty pursuant to Securities Exchange Act Section 21A, 15 U.S.C.
    § 78u-1, which permits the district court to assess a penalty upon a person who
    engages in insider trading in an amount “not to exceed three times the profit
    gained or loss avoided as a result of such unlawful purchase, sale, or
    communication.” 
    Id. at (a)(2).
    After extensive argument regarding the
    appropriate amount of the penalty, the district court entered judgment against
    Rajaratnam, imposing a civil penalty of $92,805,705, the maximum permissible
    under the statute. Rajaratnam now challenges that award. For the reasons that
    follow, we AFFIRM the judgment of the district court.
    3
    BACKGROUND
    Rajaratnam was the managing general partner and portfolio manager of
    Galleon Management, LP, a registered investment adviser, and its affiliated
    multi-billion dollar group of hedge funds (collectively, “Galleon”). In 2011,
    Rajaratnam was indicted in the Southern District of New York on nine counts of
    substantive securities fraud under Securities Act Section 17(a), Exchange Act
    Section 10(b), and Exchange Act Rule 10b-5, based on his insider trading in the
    stock of five different companies, and five counts of conspiracy to commit insider
    trading.
    On the day that Rajaratnam was arrested, the SEC filed a parallel civil
    complaint, also in the Southern District of New York, charging Rajaratnam with
    the same insider trading conduct alleged in his criminal case. Specifically, the
    SEC alleged, among other things, that Rajaratnam’s purchases and sales of stock
    in certain companies on the basis of material nonpublic information violated
    Securities Act Section 17(a), 15 U.S.C. § 77q(a), Exchange Act Section 10(b), 15
    U.S.C. § 78j(b), and Exchange Act Rule 10b-5, 18 C.F.R. § 240.10b-5. The SEC
    sought an injunction against further securities law violations, disgorgement of ill-
    gotten gains from the violations (plus prejudgment interest), and a civil monetary
    4
    penalty under Exchange Act Section 21A, 15 U.S.C. § 78u-1 (“Section 21A”).
    Subsection (a)(1) of Section 21A authorizes the SEC to bring a civil action
    against a person who violates the insider trading laws. Subsection (a)(2)
    concomitantly authorizes the district court to impose a civil penalty “on the
    person who committed such violation” in an amount to be determined by the
    district court “in light of the facts and circumstances,” but stipulates that such
    penalty “shall not exceed three times the profit gained or loss avoided as a result
    of such unlawful purchase, sale, or communication.” The SEC’s case before Judge
    Rakoff proceeded on a track parallel to the criminal case, before then-Judge
    Holwell.
    After an eight-week trial in the criminal case, a jury found Rajaratnam
    guilty on all counts charged.1 Specifically, Rajaratnam was found to have
    executed trades in Galleon’s accounts and in the account of Rajiv Goel (“Goel”),
    an Intel executive who had provided tips to Rajaratnam, in the stock of five
    companies on the basis of inside information. The district court sentenced
    Rajaratnam to 132 months’ imprisonment and to a $10 million criminal fine. In a
    1
    This Court subsequently affirmed Rajaratnam’s conviction. United States v.
    Rajaratnam, 
    719 F.3d 139
    (2d Cir. 2013), cert. denied, 
    134 S. Ct. 2820
    (2014).
    5
    separate proceeding, before Judge Preska, the district court calculated
    Rajaratnam’s forfeiture under 18 U.S.C. § 981, and determined that the amount of
    the “profits gained (or losses avoided) in Galleon” accounts “as a result of” all of
    Rajaratnam’s offenses—both the substantive and conspiracy violations—was
    $53.8 million. Supp. App. at 303–04.
    After Rajaratnam’s conviction, the SEC moved for partial summary
    judgment in the civil case on its claims of insider trading in the same five stocks
    that formed the factual basis for Rajaratnam’s criminal conviction.2 Rajaratnam
    conceded that his criminal conviction for insider trading in these five stocks
    collaterally estopped him from contesting liability. Rajaratnam did not oppose
    entry of a permanent injunction prohibiting him from further violating the
    securities laws’ antifraud provisions. The SEC agreed that its demand for $31.6
    million in disgorgement was moot in light of the $53.8 million forfeiture order.
    Thus, the only issues in dispute on summary judgment were the need for, and
    the amount of, the civil penalty.
    2
    The SEC advised the district court that it would not proceed to trial to prove
    insider trading in any stocks that were not the subject of Rajaratnam’s
    substantive securities fraud convictions.
    6
    The SEC sought the maximum treble penalty available under the statute. It
    argued that such a penalty was warranted because Rajaratnam orchestrated a
    multi-year campaign of insider trading, corrupted numerous corporate insiders,
    and had taken highly deliberate steps to evade detection. The SEC emphasized
    that the high-profile nature of this case would afford the district court “a truly
    unique opportunity to send as strong a message as possible to the investment
    community, and indeed the world, that insider trading and corruption in
    connection with this nation’s capital markets will not be tolerated.” App. at 163.
    In response, Rajaratnam argued that no civil penalty at all was warranted
    because of the punishment already meted out in his criminal case: 11 years’
    imprisonment, the longest prison term ever imposed for insider trading, a
    criminal fine of $10 million, and a $53.8 million order of forfeiture. In the event
    that the district court did impose a civil penalty, Rajaratnam argued that the
    penalty should be calculated by reference only to the profits Rajaratnam
    personally received as a result of the conduct at issue. Those profits,
    approximately $4.7 million, came from Rajaratnam’s share of his management
    fees and returns on his personal investment in Galleon’s funds.
    7
    After hearing oral argument, the district court issued a written decision on
    the issue of Rajaratnam’s civil penalty. First, the district court accepted
    Rajaratnam’s calculation that the total profit gained and loss avoided by the
    illegal trades he executed in Galleon’s and Goel’s accounts on the basis of inside
    information was $30,935,235.3 The district court then trebled this number to
    impose a civil penalty of $92,805,705.
    The district court concluded that the Section 21A(a)(2) penalty of “three
    times the profit gained or loss avoided” was not limited to Rajaratnam’s personal
    gains (of around $4.7 million) but, rather, extended to the amount resulting from
    the “illegal trades [Rajaratnam] executed.” SEC v. Rajaratnam, 
    822 F. Supp. 2d 432
    , 435 (S.D.N.Y. 2011). The district court reasoned that “nothing in the text of
    Section 21A” required that the civil penalty be based only on profits Rajaratnam
    “personally gained,” that no case law supported limiting the civil penalty
    amount to personal gain, and that Rajaratnam’s reading would result in the
    3
    Rajaratnam’s $53.8 million criminal forfeiture was based on the “profits (or
    losses avoided) in Galleon” accounts “as a result of” all of the offenses
    Rajaratnam was charged with in the criminal case—both the substantive and
    conspiracy violations. Supp. App. at 303–04. The calculation differed for
    Rajaratnam’s civil case because the SEC moved for partial summary judgment on
    only the substantive counts of insider trading.
    8
    “evasion, in effect, of defendant’s responsibility for the wrongdoing he
    committed.” 
    Id. The district
    court then decided that imposing a civil penalty of three times
    the base amount of profit gained and loss avoided was warranted because “this
    case meets every factor favoring trebling”: Rajaratnam’s violations were
    egregious; he acted with a high degree of scienter; his conduct created substantial
    losses to investors; his conduct continued for years; and he had the ability to pay
    a substantial penalty. 
    Id. at 433–34.
    The district court concluded that “this case
    cries out for the kind of civil penalty that will deprive [Rajaratnam] of a material
    part of his fortune” given the “huge and brazen nature of Rajaratnam’s insider
    trading scheme, which, even by his own estimates, netted tens of millions of
    dollars and continued for years.” 
    Id. at 434.
    The district court acknowledged that Rajaratnam had already been
    punished in the criminal case, and noted that penalties imposed on a defendant
    in a “parallel criminal action may . . . be relevant” to the size of the civil penalty.
    
    Id. But the
    district court found that the maximum civil penalty was warranted
    despite Rajaratnam’s criminal sentence because the focus of criminal punishment
    is on moral blameworthiness, by contrast to SEC civil penalties, which are
    9
    designed to effect general deterrence and to make insider trading a money-losing
    proposition.
    Rajaratnam timely appealed from the district court’s final judgment.
    DISCUSSION
    Rajaratnam raises two arguments on appeal. First, he argues that the civil
    penalty for insider trading under Section 21A may not exceed three times his own
    profit gained or loss avoided. Second, he argues that the district court abused its
    discretion in imposing the maximum penalty under the statute, because it
    improperly relied on his wealth to justify the penalty, and failed to consider the
    criminal penalties already imposed on him.
    We review the district court’s ruling on the former question, a matter of
    statutory interpretation, de novo. See Ehrenfeld v. Mahfouz, 
    489 F.3d 542
    , 547 (2d
    Cir. 2007). We review its decision on the latter question, the appropriateness of
    the district court’s selection of a civil penalty, for abuse of discretion. See SEC v.
    Pentagon Capital Mgmt. PLC, 
    725 F.3d 279
    , 287 (2d Cir. 2013). “[T]he burden of
    showing that the [district] court abused [its] discretion . . . necessarily is a heavy
    one.” SEC v. Manor Nursing Ctrs., Inc., 
    458 F.2d 1082
    , 1100 (2d Cir. 1972). “Under
    this standard, we will reverse only if we have a definite and firm conviction that
    10
    the court below committed a clear error of judgment in the conclusion that it
    reached upon a weighing of the relevant factors.” SEC v. Bankosky, 
    716 F.3d 45
    , 47
    (2d Cir. 2013) (internal quotations omitted).
    I.    The Section 21A Treble Damages Provision
    The district court calculated the base amount of Rajaratnam’s civil penalty
    by using Rajaratnam’s calculation of the “profit gained or loss avoided” as a
    result of the illegal trades he executed, even though the pecuniary gain from
    those trades went mostly to Galleon’s and Goel’s accounts. Rajaratnam argues
    that the district court erred because the maximum penalty under Section 21A is
    “three times the profit gained or loss avoided” by the defendant, and that the
    penalty should therefore be calculated with reference only to the $4.7 million he
    personally realized from his management fees, bonuses, and investment returns
    from Galleon. Rajaratnam claims that the statute’s text, structure, legislative
    history, and purpose support his contention.4 We disagree.
    4
    The SEC argues that Rajaratnam waived this argument by failing to raise it
    before the district court. Whether or not Rajaratnam adequately raised the issue
    before the district court, it is properly before us because the district court
    expressly decided the question of whether “the SEC’s figure should be reduced
    to the amount [Rajaratnam] personally gained.” 
    Rajaratnam, 822 F. Supp. 2d at 435
    ; see United States v. Harrell, 
    268 F.3d 141
    , 146 (2d Cir. 2001) (considering issue
    because court below resolved it); Stevens v. Dep’t of Treasury, 
    500 U.S. 1
    , 8 (1991)
    11
    Section 21A permits the SEC to bring an action against Rajaratnam, as “the
    person who committed” a violation by “purchasing or selling” securities on the
    basis of inside information. 
    Id. at (a)(1).
    Subsection (a)(2) provides that:
    The amount of the penalty which may be imposed on the
    person who committed such violation shall be determined
    by the court in light of the facts and circumstances, but
    shall not exceed three times the profit gained or loss
    avoided as a result of such unlawful purchase, sale, or
    communication.
    
    Id. at (a)(2).
    Rajaratnam argues that because subsection (a)(2) does not identify who
    must gain profit or avoid losses, the civil penalty calculation must be limited to
    the violator’s personal profit.5 But a plain reading of subsection (a)(2) indicates
    (concluding that “issue [was] properly before” the reviewing court because the
    court below “decided the substantive issue”).
    5
    Rajaratnam points us to United States v. Contorinis, 
    692 F.3d 136
    (2d Cir. 2012),
    where we held that the defendant could not be ordered to forfeit, pursuant to 18
    U.S.C. § 981(a)(2)(b), profits that he never received or possessed. 
    Id. at 145.
    We
    noted that the forfeiture statute did not expressly identify who must do the
    acquiring that results in forfeiture. 
    Id. at 146.
    Rajaratnam argues that because
    Section 21A(a)(2), like § 981(a)(2)(b), does not identify who must profit, the Court
    should hold that the relevant amount here is Rajaratnam’s own “profit gained or
    loss avoided.” But the reasoning of Contorinis does not apply here.
    In Contorinis, we interpreted the forfeiture statute in light of the meaning of
    the word 
    “forfeiture.” 692 F.3d at 146
    . We held that someone could not be
    ordered to forfeit profits that he never received or possessed because “forfeiture”
    generally connotes a person’s losing an entitlement as a penalty for proscribed
    12
    that it permits a civil penalty to be based on the total profit resulting from the
    conduct. 
    Id. Contorinis, therefore,
    could not be ordered to forfeit the profits that
    the Government sought because such profits were in the possession of the
    beneficiary fund over which Contorinis entirely lacked control. 
    Id. But even
    in
    that context, we noted that the general rule that forfeiture relates to the
    defendant’s own gains is “somewhat modified by the principle that a court may
    order a defendant to forfeit proceeds received by others who participated jointly
    in the crime, provided the actions generating those proceeds were reasonably
    foreseeable to the defendant.” 
    Id. at 147.
    Nothing in the idea of a civil penalty,
    which is designed to deter future violations, implies a comparable limitation to
    funds in the immediate possession of the violator.
    In any event, Rajaratnam’s case has already been distinguished from
    Contorinis on its facts. See Rajaratnam v. United States, 736 F. App’x 279 (2d Cir.
    2018). After this Court decided Contorinis, Rajaratnam sought coram nobis relief
    on the grounds that his criminal forfeiture order under 18 U.S.C. § 981 was not
    limited to his own profits. 
    Id. at 283.
    This Court, by summary order, denied relief
    on the grounds that in Contorinis, the defendant portfolio manager did not
    control disbursement of the profits of the beneficiary fund of his inside trading,
    and he did not personally receive or possess the profits realized by the
    beneficiary fund from his inside trading. See 
    id. By contrast,
    we noted that in this
    case:
    Rajaratnam was the founder and managing general
    partner of Galleon and, as such, exercised control over
    both that firm and the proceeds it acquired, including the
    proceeds acquired as a result of his insider trading. Even
    if those proceeds subsequently were distributed to
    investors, with Rajaratnam personally retaining only a
    percentage as management fees, he nonetheless had
    authority over disbursements, and, thus, exercised control
    over the proceeds at some point.
    
    Id. at 283–84
    (quoting 
    Contorinis, 692 F.3d at 147
    ).
    Thus, even in the context of forfeiture itself, Contorinis did not control this
    case. Still less does it have any application to the civil penalty at issue here.
    13
    violation. See SEC v. Rosenthal, 
    650 F.3d 156
    , 160 (2d Cir. 2011) (holding that the
    maximum penalty under Section 21A is based on the “profitability of the
    violation”) (emphasis added); SEC v. Anticevic, No. 05-cv-6991, 
    2010 WL 2077196
    ,
    at *8 (S.D.N.Y. May 14, 2010) (imposing a civil penalty of three times the total
    profits earned through the inside trader’s scheme, not just the profits he earned
    himself). Because Rajaratnam “executed” Galleon’s and Goel’s “illegal trades,”
    
    Rajaratnam, 822 F. Supp. 2d at 435
    , his civil penalty can be calculated under
    subsection (a)(2) based on Galleon’s and Goel’s “profit gained or loss avoided as
    a result of [Rajaratnam’s] unlawful purchase[s] [and] sale[s],” Section 21A(a)(2).
    Our interpretation of the statute is confirmed by the fact that elsewhere in
    the federal securities laws Congress expressly limited the “amount of the
    penalty” for particular violations to the “gross amount of pecuniary gain to such
    defendant as a result of the violation.” See, e.g., Securities Act Section 20(d)(2), 15
    U.S.C. §§ 77t(d)(2)(A), (B), (C); Exchange Act Section 21(d), 15 U.S.C.
    §§ 78u(d)(3)(B)(I), (ii), (iii); Investment Company Act of 1940 Section 42(e), 15
    U.S.C. §§ 80a-41(e)(2)(A), (B), (C); Investment Advisers Act of 1940 Section 209(e),
    15 U.S.C. §§ 80b-9(e)(2)(A), (B), (C) (emphasis added). Rajaratnam’s reading of
    Section 21A(a)(2) thus contravenes the rule that “[w]here Congress includes
    14
    particular language in one section of a statute but omits it in another section of
    the same Act, it is generally presumed that Congress acted intentionally and
    purposely in the disparate inclusion and exclusion.” Russello v. United States, 
    464 U.S. 16
    , 23 (1983).
    Nor can Rajaratnam’s interpretation of Section 21A be reconciled with how
    the statute treats tippers who do not themselves trade or otherwise receive
    pecuniary gain for their tips. Subsection (a)(1) makes tippers who unlawfully
    communicate inside information “violat[ors]” eligible for a civil penalty.
    Subsection (a)(2) then provides for the imposition of a civil penalty on “the
    person who committed such violation” (including the tipper who does not
    himself trade) in an amount up to three times the profit gained or loss avoided
    “as a result of such unlawful purchase, sale, or communication.”Id. (emphasis
    added). The only possible “profit gained or loss avoided” by a “communication”
    of inside information by a non-trading tipper would result from the trading of
    the tipper’s tippee(s). Accordingly, subsection (a)(2) necessarily permits a
    violator’s civil penalty to be calculated based on the third parties’ profit gained or
    loss avoided, i.e., the profits gained or loss avoided from the defendant’s
    15
    violation.6 See, e.g., SEC v. Warde, 
    151 F.3d 42
    , 49 (2d Cir. 1998); SEC v. Gupta, No.
    11 Civ. 7566(JSR), 
    2013 WL 3784138
    , at *2 & n.4 (S.D.N.Y. July 17, 2013) (imposing
    treble civil penalty on tipper for “total” trading gains), aff’d 569 F. App’x 45 (2d
    Cir. 2014).
    Further, we are unpersuaded by Rajaratnam’s argument that the
    deterrence purpose of Section 21A is served only if the base amount of the
    penalty is the amount of profit earned by the defendant. As we explained in SEC
    v. Contorinis, 
    743 F.3d 296
    , 303 (2d Cir. 2014), cert. denied, 
    136 S. Ct. 531
    (2015), in
    affirming a disgorgement award of profits channeled to friends, family, and
    clients, “[w]hether the defendant’s motive is direct economic profit, self-
    aggrandizement, psychic satisfaction from benefitting a loved one, or future
    profits by enhancing one’s reputation as a successful fund manager, the insider
    trader who trades for another’s account has engaged in a fraud, secured a benefit
    6
    The legislative history confirms that Section 21A was “intended to permit
    penalties to be imposed upon both insider traders and tippers.” H.R. Rep. 100-
    910, at *18-*20. Congress noted that, like the “purchase or sale of securities” on
    the basis of inside information, the “communication of [] advance inside
    knowledge to others who trade while in possession of that information similarly
    poses serious problems for the fair and honest operation of our securities
    markets.” 
    Id. at *8.
    16
    thereby, and directed the profits of the fraud where he has chosen them to go.”7
    The purpose of Section 21A is to deter the whole of the conduct Rajaratnam
    engaged in by exacting a penalty for it. That Rajaratnam’s insider trading
    produced a direct traceable increase of only $4.7 million in his own bank account
    is not a convincing reason to limit the amount of his penalty, because it is
    “difficult to quantify the advantages of an enhanced reputation,” psychic
    satisfaction, and self-aggrandizement for an insider trader. 
    Contorinis, 743 F.3d at 306
    . Rajaratnam was motivated to orchestrate not merely a scheme to gain a few
    million dollars by trading in his own account, but a massive project that gained
    tens of millions for his clients and associates. As Congress recognized, in order to
    remove that motivation, an appropriate penalty must be keyed to the total scope
    of the scheme.
    7
    Whereas United States v. Contorinis, see infra note 5, held that a criminal
    defendant could not be ordered to forfeit profits he never had, SEC v. Contorinis,
    regarding the same defendant, distinguished between the purposes of criminal
    forfeiture and civil disgorgement, and held that “an insider trader who trades on
    behalf of another person or entity using funds he does not own, and thus
    produces illegal profits that he does not personally realize, can nevertheless be
    required to disgorge the full amount of the illicit profit he generates from his
    illegal and fraudulent 
    actions,” 743 F.3d at 299
    . Civil disgorgement was not
    appropriate here in light of Rajaratnam’s $53.8 million in criminal forfeiture, but
    we conclude that, like civil disgorgement, civil penalties may be awarded on the
    basis of the full amount of illegal profits generated.
    17
    II.   The District Court’s Discretion in Setting the Penalty
    Rajaratnam next argues that, whatever the statutory maximum, the district
    court abused its discretion in setting the amount of the penalty because the
    district court impermissibly relied on the defendant’s wealth and refused to
    consider the deterrent effect of the criminal penalties already imposed on him.
    We reject those arguments, which distort the district court’s actual reasoning.
    Section 21A(a)(2) authorizes federal courts to impose civil penalties for
    insider trading violations in amounts “determined by the court in light of the
    facts and circumstances.” The district court noted that this was a broad mandate,
    and cited the factors from SEC v. Haligiannis, 
    470 F. Supp. 2d 373
    , 386 (S.D.N.Y.
    2007), which courts frequently consider in setting such penalties, including “(1)
    the egregiousness of the defendant’s conduct; (2) the degree of the defendant’s
    scienter; (3) whether the defendant’s conduct created substantial losses or the risk
    of substantial losses to other persons; (4) whether the defendant’s conduct was
    isolated or recurrent; and (5) whether the penalty should be reduced due to the
    defendant’s demonstrated current and future financial condition.” 
    Rajaratnam, 822 F. Supp. 2d at 433
    . The district court then held that every factor favoring
    trebling is present here. 
    Id. at 434.
    Rajaratnam does not contend that these factors
    18
    were not appropriately considered, and (with only one exception, discussed
    below) does not seriously dispute the district court’s conclusion – with which we
    agree – that each of these favors the use of a treble penalty.
    A.     The District Court’s Consideration of Rajaratnam’s Wealth
    Rajaratnam claims that the district court impermissibly justified its
    imposition of a massive penalty on the basis of Rajaratnam’s wealth. He
    maintains that only one of the Haligiannis factors touches on the defendant’s
    wealth, and that factor provides only for mitigation, not aggravation. He argues
    that these factors allow no room for the use of a defendant’s financial status to
    increase the penalty imposed on him.
    While the Haligiannis factors have been considered in several cases, see SEC
    v. Gupta, 569 F. App’x 45, 48 (2d Cir. 2014); SEC v. Milligan, 436 F. App’x 1, 2 (2d
    Cir. 2011); SEC v. Rosenthal, 426 F. App’x 1, 2 (2d Cir. 2011), they have not been
    deemed an exhaustive list by this Court and are not to be taken as talismanic. We
    have never held that it is impermissible for a district court to consider a
    defendant’s wealth in imposing a civil penalty. In fact, other circuits have
    explicitly approved the consideration of a defendant’s wealth in imposing a civil
    penalty under Section 21A. See, e.g., SEC v. Lipson, 
    278 F.3d 656
    , 665 (7th Cir.
    19
    2002) (upholding the district court’s discretion to impose a treble civil penalty
    given the defendant’s wealth); cf. SEC v. Warren, 
    534 F.3d 1368
    , 1370 (11th Cir.
    2008) (holding it permissible for the district court to consider the defendant’s
    wealth in setting a civil penalty); SEC v. Sargent, 
    329 F.3d 34
    , 42 (1st Cir. 2003)
    (considering defendant’s financial worth in determining whether to assess civil
    penalties). And we have held it is permissible to do the same in imposing a
    criminal fine under the Sentencing Guidelines. See United States v. Zukerman, 
    897 F.3d 423
    , 431 (2d Cir. 2018) (“[A] defendant’s wealth is relevant in determining
    whether a particular fine will deter illegal conduct . . . [because a] fine can only be
    an effective deterrent if it is painful to pay, and whether a given dollar amount
    hurts to cough up depends upon the wealth of the person paying it.”).
    We thus have no hesitation in concluding that, in calculating the size of a
    penalty necessary to deter misconduct, the extent of a defendant’s wealth is a
    relevant consideration. A fine that would be significantly painful to a person of
    modest means might be a mere slap on the wrist or “cost of doing business” to a
    wealthier offender. Rajaratnam contends, however, that the district court’s use of
    this factor was motivated by a bare desire to strip Rajaratnam of his wealth, much
    of which, it is undisputed, was earned legitimately. We do not question that a
    20
    vindictive bias against or hostility towards persons of means would be an
    inappropriate consideration in setting a penalty for securities fraud. But the
    suggestion that the district court here was so motivated distorts the record, and
    ignores the court’s careful and thoughtful analysis of the factors bearing on the
    appropriate penalty.
    Rajaratnam points to the district court’s statement that “this case cries out
    for the kind of civil penalty that will deprive this defendant of a material part of
    his fortune.” 
    Rajaratnam, 822 F. Supp. 2d at 434
    . But read in context, it is clear that
    the district court had already concluded that the brazenness, scope, and duration
    of Rajaratnam’s insider trading warranted a significant penalty. A review of the
    record as a whole, including the transcript from the hearing before the district
    court on the amount of the penalty, reveals that the district court was concerned
    with whether “it [was] realistically likely that [Rajaratnam would] be able to
    pay.” App. at 324. The district court made clear that it did not want to enter a
    “symbolic” judgment that lacked a “reasonable possibility it gets paid.” App. at
    324–25. The district court accepted Rajaratnam’s invitation to review the portion
    of the Pre-Sentence Report from his criminal case that set forth his net worth, and
    then concluded (in what, after reviewing that Report, we regard as an
    21
    understatement) that his net worth “considerably exceed[ed] the financial
    penalties imposed in the criminal case,” 
    Rajaratnam, 822 F. Supp. 2d at 434
    ,
    leaving him in a position to be able to pay the civil penalty.8 In short, we find no
    legal error or abuse of discretion in the district court’s consideration of
    Rajaratnam’s wealth in connection with determining the size of the civil penalty.
    B.     The District Court’s Consideration of Rajaratnam’s Criminal
    Penalties
    Rajaratnam also asserts that the district court improperly refused to take
    any account of the other penalties to which he had already been subjected. But
    again the record reflects otherwise. The district court explicitly noted that
    8
    Rajaratnam also emphasizes a reference by the district judge, at oral argument,
    to a statement of former SEC Chairman Richard Breeden “who, on the subject of
    insider trading, said he wanted to leave the insider traders something like
    worthless, homeless, and maybe clothesless.” App. at 327. But this reference too
    is taken out of context. Judges at oral argument frequently put forward ideas or
    comment to elicit the views of counsel for the parties. The Breeden quotation
    does not figure in the district court’s written explanation of its reasoning for
    selecting a penalty. Thus, we understand the court’s reference to Breeden’s
    comment as the expression of a strong view that, in the end, the court did not
    adopt. That the judge expressed concern with whether Rajaratnam would
    actually be able to pay, or the SEC to collect, whatever penalty would be imposed
    makes clear that he was not looking to impose a fine that would meet or exceed
    Rajaratnam’s resources and leave him penniless. Finally, the court’s review of the
    Pre-Sentence Report made clear that the penalty imposed would have no such
    effect, and that even after paying the fine, Rajaratnam and his family would still
    possess significant wealth.
    22
    Rajaratnam was sentenced to 11 years in prison, was ordered to forfeit $53.8
    million, and was fined an additional $10 million in criminal penalties. It went on
    to recognize that the penalties in a “parallel criminal action may . . . be relevant”
    in determining whether to impose a civil penalty. 
    Rajaratnam, 822 F. Supp. 2d at 434
    . But the district court found that in light of the facts and circumstances of this
    case, the civil penalty here had to be set at a level that would show, not just to
    Rajaratnam, but to all those who consider it, that such lucrative insider trading is
    a “money-losing proposition.” 
    Id. That the
    district court did not ultimately offset the amount of the civil
    penalty against the extent of Rajaratnam’s criminal punishment does not mean
    that the district court did not consider those punishments, still less that it abused
    its discretion. Section 21A provides that a civil action brought by the SEC for a
    civil penalty “may be brought in addition to any other actions that the
    Commission or the Attorney General are entitled to bring.” Section 21A(d)(3)
    (titled “Remedy not exclusive”) (emphasis added). Thus, Congress expressly
    anticipated that at least some insider traders would face both criminal and civil
    penalties. See Gupta, 569 F. App’x at 48 (rejecting Gupta’s argument that a treble
    penalty was inappropriate in light of criminal penalties already imposed).
    23
    Rajaratnam points to cases in which district courts refrained from ordering
    the maximum civil penalty based, in part, on the fact that separate criminal
    penalties had been imposed as a result of the defendant’s conduct. But Section
    21A tasks district courts with imposing a penalty “in light of the facts and
    circumstances” of each defendant’s particular case. In some circumstances it may
    be appropriate to offset the penalty by a defendant’s criminal punishment; in
    others, not. Given the district court’s latitude under the statute, and its
    conclusions about Rajaratnam’s conduct, we cannot say that the district court
    abused its discretion in imposing the maximum civil penalty on Rajaratnam even
    though he had already received a significant criminal sentence.
    CONCLUSION
    For the reasons stated above, we AFFIRM the order of the district court.
    24