A Critical Look at SEC Insider Trading Policies

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1 A Critical Look at SEC Insider Trading Policies By Roberta S. Karmel February 19, 2015 Trading on inside information is neither defined nor specifically outlawed in federal securities laws. Rather, insider trading violations are solely based on an interpretation of Rule 10-5 under Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), which makes it illegal for any person in connection with the purchase or sale of a security "(a) To employ any device, scheme, or artifice to defraud or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit on any person." The SEC and courts have interpreted this provision to prohibit trading on material undisclosed corporate information by corporate insiders, their agents and tippees. Violations of Section 10(b) are both civil and criminal. Accordingly, the contours of the crime of insider trading have been shaped by the courts. Such a common law methodology seems contrary to the rule of law, yet in only one insider trading case has a judge (Justice Antonin Scalia) protested that this methodology contravenes the principle of lenity. 1 The SEC has long resisted efforts to define insider trading. As a result, when Congress added Section 21(d)(2) to the Exchange Act in 1984, providing for treble damages in a suit by the SEC against any person who has violated the Exchange Act by purchasing or selling a security while in the possession of material nonpublic information, insider trading was not defined due to the SEC's insistence that such a definition would be a blueprint for fraud. Similarly, legislative efforts to define insider trading in 1987 were also unsuccessful because of SEC opposition to definitions the SEC believed were too narrow. The definitions merely outlawed the use of insider information, and failed to include its possession. To prove the agency's point, the SEC instead promulgated Rule 10b5-1 to establish that knowing possession of insider information was sufficient for a prosecution. After the 2008 financial meltdown and the failure of the SEC to discover or halt the

2 Madoff Ponzi scheme, the SEC was subjected to extensive criticism in the press and by academics for its lack of regulatory and prosecutorial backbone. One of the SEC's responses to this criticism was to get tough on insider trading, and to bring a barrage of insider trading cases. Additionally the SEC also encouraged the prosecution of such cases as criminal actions by the Department of Justice, with a special emphasis on the Southern District of New York U.S. Attorney. In so doing, the SEC and U.S. Attorneys have pushed the envelope in their interpretations of insider trading, especially with regard to the culpability of remote tippees and hedge fund employees. While hedge funds may have played some role in the 2008 financial meltdown because of their investments in structured securities and futures products, and possible client recommendations to Madoff Securities, there is no evidence that insider trading played any role in these problems. Mixed Results While many insider trading prosecutions of recent years have succeeded, many have failed. In United States v. Newman, 2 the U.S. Court of Appeals for the Second Circuit dismissed with prejudice a conviction against two portfolio managers who were remote tippees and issued an opinion narrowing the parameters of the crime of trading on inside information. At the trial, the Government introduced evidence to show that a group of financial analysts received information from insiders at Dell and NVIDIA that disclosed earnings numbers before they were publicly announced. The analysts then passed on this information to defendants Newman and Chiasson, who executed trades in Dell and NVIDIA stock, earning $4 million and $68 million, respectively, in profits for their respective hedge funds. The defendants were three or four steps away from the tippers and there was no evidence that they were aware of the source of the inside information. Further, there was no proof that the corporate insiders provided the information in exchange for a personal benefit. The instructions given to the jury stated that the Government needed to prove beyond a reasonable doubt that "the material, nonpublic information had been disclosed by the insider in breach of a duty of trust and confidence he must have known that it was originally disclosed by the insider in violation of a duty of confidentiality." 3 The Second Circuit found these jury instructions wanting, because it was necessary for the Government to also prove that the tippees knew the breach of duty was for a personal benefit. The court relied primarily on the Supreme Court case of Dirks v. Securities and Exchange Commission. 4 Dirks was an insurance company analyst. After receiving information from a former officer of Equity Funding, Dirks pursued an independent investigation and discovered that Equity Funding was engaging in massive fraud. Dirks kept both his clients and potential clients apprised of his investigation and urged some newspapers to write an article about the fraud. Before the facts became public, the price of Equity Funding stock fell from $26 to less than $15 a share. The record was unclear as to whether the customers of Dirks who sold based on the information he gave them promised him brokerage business. The SEC brought an administrative case against Dirks arguing that when tippees come into possession of material information they know is

3 confidential they must publicly disclose it or refrain from trading. The Supreme Court took a different view, repudiating the SEC's equal access to information theory, as it had done previously in Chiarella v. United States. 5 From the outset of the SEC's development of the disclose or abstain doctrine underlying insider trading cases, the SEC argued that investors should have equal access to material corporate information as a matter of fairness. Chiarella, a printer, learned about upcoming tender offers from drafts of tender offer documents and invested in the stock of target companies. He was prosecuted criminally, but the Supreme Court overturned his conviction. The court held that silence in connection with the purchase or sale of a security may operate as a fraud only if liability is premised on a duty to disclose arising from a relationship of trust and confidence. The court reasoned that not every instance of financial unfairness violates Section 10(b)(5) of the Exchange Act. The SEC refused to accept this idea, but it was reaffirmed in Dirks, where the court held that a tippee's liability is derivative, and thus a tippee cannot be held liable unless use of the information breaches a fiduciary duty which the tipper owed to its clients or organization and, in addition, the insider must have realized a personal benefit. In Newman, the Second Circuit interpreted this language as requiring that the tippee must have known about the personal benefit in order to be liable. According to the court, "insider trading liability is based on breaches of fiduciary duty, not on informational asymmetries. This is a critical limitation on insider trading liability that protects a corporation's interests in confidentiality while promoting efficiency in the nation's securities markets." 6 The court therefore held that in order to sustain an insider trading conviction against a tippee, the Government must prove beyond a reasonable doubt the following four elements: "(1) the corporate insider was entrusted with a fiduciary duty; (2) the corporate insider breached his fiduciary duty by (a) disclosing confidential information to a tippee (b) in exchange for a personal benefit; (3) the tippee knew of the tipper's breach, that is, he knew the information was confidential and divulged for personal benefit; and (4) the tippee still used that information to trade in a security or tip another individual for personal benefit." 7 Moreover, the court took a narrow view of what might constitute a personal benefit, rejecting the idea that mere friendship was sufficient. Rather, the benefit must be objective and consequential and represent a potential gain of a pecuniary or similarly valuable nature. The court did not believe the Government's evidence with regard to a pecuniary benefit was sufficient under this standard and therefore reversed the convictions and remanded with instructions that the indictment be dismissed with prejudice. In the past, the SEC has been frustrated by the refusal of the courts to find that family relationships or friendships were sufficient to constitute a relationship of trust and confidence required by Chiarella and passed Rule 10b-2 in an effort to capture remote tippees. The holding of the Newman court that the benefit of leaking information by a tipper cannot rest on friendship alone is a variation of this stumbling block from earlier cases, 8 and raises a question as to the validity of Rule 10b-2.

4 Prior to Newman, at least one judge in the Southern District similarly ruled that in a case against a tippee, the tippee's knowledge of some benefit to the tipper must be shown. 9 However, a prior Second Circuit decision, United States v. Obus, 10 was silent on this issue. As a result, the case against Obus went to trial, but the jury refused to convict. The facts of this case were 13 years old. 11 The Newman court apologized for its "delphic" decision in Obus, stating that the Supreme Court in Dirks was quite clear. 12 Looking Ahead The Department of Justice is understandably unhappy with the Newman decision as it implicates numerous pending cases in the Southern District and elsewhere. 13 On Jan. 23, 2015, the Southern District U.S. Attorney petitioned the Second Circuit three-judge panel which decided Newman to revisit the decision, or alternatively for a rehearing en banc. 14 It is not surprising that the U.S. Attorney is complaining that this decision threatens the effective enforcement of insider trading cases because a number of defendants in such cases which either pleaded guilty or were found guilty after a trial have requested that their convictions be vacated. Southern District Judge Andrew Carter threw out the guilty pleas of four men who admitted insider trading prior to Newman and has asked for a proffer with regard to another case scheduled for trial. 15 The Second Circuit also granted a stay of the conviction of Michael Steinberg, manager of SAC Capital Advisors, LP, one of the Southern District's high-profile insider trading cases. 16 Nevertheless, the chances that the Second Circuit will grant a change in the Newman decision or a rehearing en banc are slim. 17 Furthermore, I do not believe an effort by the U.S. Attorney to overturn the decision by the Supreme Court would be successful. Newman carefully follows a close reading of the Chiarella and Dirks cases. Although the SEC has argued for many years in favor of an equal access to information theory, the Supreme Court has rejected this theory. United States v. O'Hagan, which endorsed the misappropriation theory in a case involving misuse of confidential information belonging to a client by an attorney, may have given the Government some hope that the court might look a little more favorably on insider trading cases, than it did in Chiarella and Dirks. However, the remote tippee fact patterns in the recent prosecutions by the SEC and the U.S. Attorneys are not as egregious as the facts in the O'Hagan case, in which three justices dissented. Furthermore, although the Supreme Court does not appear inclined to reject all Section 10(b) doctrine, it has exhibited hostility to expansive interpretations of this provision. While the Southern District U.S. Attorney may be correct that Newman could make many fact patterns in remote tippee and other insider trading cases not worth pursuing, one might question why the SEC and the Department of Justice are utilizing so much of their resources in prosecuting these marginal cases. Newman is not the only serious rebuff to this campaign against insider trading. Among the cases lost by the SEC were two high-profile prosecutions SEC v. Cuban and SEC v. Obus. 18 In both cases, the juries declined to convict the defendants who fought hard for victories in cases that lasted many years. In SEC prosecutions, most defendants do not have the psychological and financial resources to engage in such a battle with the Government so they plead guilty.

5 After these cases and other similar losses, the head of the SEC's Enforcement Division announced that the SEC would prosecute more insider trading cases before administrative law judges instead of in the courts. This is the wrong response, and has subjected the SEC to serious criticism. This has resulted in some respondents challenging the SEC for instituting cases outside of the courts. Instead of ignoring the lessons from cases the Government loses, the SEC should reconsider its insider trading program and concentrate on cases that are more central to its investor protection mission. Endnotes: 1. United States v. O'Hagan, 521 U.S. 642, 679 (1997)(Scalia, J., dissenting). 2. United States v. Newman, No. 12 CR 121(RJS), 2014 U.S. App. LEXIS (2d Cir. Dec. 10, 2014). 3. Id. at Dirks v. SEC, 463 U.S. 646 (1983). 5. Chiarella v. United States, 445 U.S. 222 (1980). 6. United States v. Newman, 2014 U.S. App. LEXIS 23190, at * Id. at See, e.g., United States v. Chestman, 947 F.2d 551 (2d Cir. 1991) (en banc). 11. Joel M. Cohen et al, "SEC v. Obus: A Case Study on Taking the Government To Trial And Winning," 47 Rev. of Sec. & Comm. Reg. 247 (2014). 12. United States v. Newman, 2014 U.S. App. LEXIS 23190, at * See Nate Raymond, "NY Insider Trading Ruling Tests Prosecutors Beyond Wall Street," Reuters (Jan. 25, 2015), AKBNOKZ17W Matthew Goldstein and Ben Protess, "Federal Prosecutors Challenge Insider Trading Ruling," N.Y. Times, Jan. 24, 2015, at B Mark Hamblett, "Hearing Highlights 'Newman' Effect on Insider Trading Cases," N.Y.L.J. (Jan. 26, 2015), /Hearing-Highlights-Newman- Effect-on-Insider-Trading- Cases?slreturn= Bob Van Voris, "SAC's Steinberg Appeal Delayed as Gov't Considers Legal Challenge," 47 Rev. of Sec. & Comm. Reg. 12 (2015). 17. Id. 18. SEC v. Cuban, 634 F.Supp.2d 713 (N.D. Tex. 2009); SEC v. Obus, 693 F.3d 276 (2d Cir. 2012). 9. United States v. Whitman, 904 F.Supp.2d 363 (S.D.N.Y. 2012). 10. SEC v. Obus, 693 F.3d 276 (2d Cir. 2012).

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