“Fine Distinctions” in the Contemporary Law of Insider Trading

William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding its new-found commitment to federalism—which I call the (fictional) “Cary-Powell compromise”—because it accepted the central premise on which the expressive function of insider trading regulation is based: manifestations of greed and lack of self-restraint among the privileged, especially fiduciaries or those closely related to fiduciaries, threaten to undermine the official identity of the public markets as open and fair. But enough time may have passed that we may have lost sight of the compromise associated with this fiction and started acting as if insider trading really is the worst kind of deceit. The result is pressure on doctrine to expand, using anything plausible in the 10b-5 toolkit. The aim is to tie this concern more clearly to the uneasy deceptiveness of insider trading, first using somewhat familiar examples such as the debate over whether possession or use is required for liability and the supposed overreach of Rule 10b5-2. Each of these settings brings us back to the centrality of intent, reminding us that the Cary-Powell compromise has in mind a form of purposefulness that is closely tied to greed and opportunism, making insider trading a sui generis form of securities fraud. That takes us to the most jarring recent development in insider trading law, the emergence (particularly in SEC v. Obus) of recklessness as an alternative basis for liability

The definition of "Insider" in section 3 of the securities markets Act 1988: A review and comparison with other jurisdictions

Statutory definitions of what constitutes an “insider” for the purposes of insider trading laws may be based on either a “person connection” approach or an “information connection” approach. The “person connection” approach defines “insider” by reference to the relationship of the person to the public issuer of securities, while the “information connection” approach considers anyone who has material price-sensitive information about the issuer to be an insider, regardless of his or her relationship to the issuer. In common with Japan, Hong Kong and China, New Zealand’s insider trading law — the Securities Markets Act 1988 — uses a person connection approach in its definition of “insider”. Other jurisdictions, however, including both the United Kingdom and Australia, have, to varying degrees, recently amended their definitions to reflect the information connection approach. The United States, although the first country to address the issue of insider trading, lacks a statutory definition of “insider” and instead relies on generally applicable laws against securities fraud. It has developed a definition with elements of both approaches. This paper reviews the definitions in use in the United States and in other countries (including New Zealand) which have been influenced by the American experience. It concludes that the narrow, relationship-based approach does not capture some conduct that may be damaging to the integrity of the securities market. A definition based on the information connection approach (perhaps combined with elements of the person connection approach) may therefore be preferable to New Zealand’s current definition

Informational Cronyism

If Maher Kara, the Citigroup analyst at the center of the Salman case now before the Supreme Court, was forbidden under SEC Rule 10b-5 from trading securities for his own account while in possession of the valuable secrets to which his job gave him access, should he instead be able to give that information to family members simply in order to enrich them? I suspect that to anyone unfamiliar with the fine line drawing of federal insider trading law, the answer is clearly no. There is probably no more common form of corruption than generously shoveling the fruits of power and privilege to family and close friends. Cultures lacking a strong rule of law make it an art form

The Essential Role of Securities Regulation

This Article posits that the essential role of securities regulation is to create a competitive market for sophisticated professional investors and analysts (information traders). The Article advances two related theses-one descriptive and the other normative. Descriptively, the Article demonstrates that securities regulation is specifically designed to facilitate and protect the work of information traders. Securities regulation may be divided into three broad categories: (i) disclosure duties; (ii) restrictions on fraud and manipulation; and (iii) restrictions on insider trading-each of which contributes to the creation of a vibrant market for information traders. Disclosure duties reduce information traders\u27 costs of searching and gathering information. Restrictions on fraud and manipulation lower information traders\u27 cost of verifying the credibility of information, and thus enhance information traders\u27 ability to make accurate predictions. Finally, restrictions on insider trading protect information traders from competition from insiders that would undermine information traders\u27 ability to recoup their investment in information. Normatively, the Article shows that information traders can best underwrite efficient and liquid capital markets, and, hence, it is this group that securities regulation should strive to protect. Our account has important implications for several policy debates. First, our account supports the system of mandatory disclosure. We show that, although market forces may provide management with an adequate incentive to disclose at the initial public offering (IPO) stage, they cannot be relied on to effect optimal disclosure thereafter. Second, our analysis categorically rejects calls to limit disclosure duties to hard information and self-dealing by management. Third, our analysis supports the use of the fraud-on-the-market presumption in all fraud cases even when markets are inefficient. Fourth, our analysis suggests that in cases involving corporate misstatements, the appropriate standard of care should, in principle, be negligence, not fraud

Whistle blowing

For law enforcement purposes corruption and fraud are hard battles. Because of the highly secretive and premeditated nature of these crimes, prime witnesses are themselves often implicated in the fraudulent transaction. Promises of immunity and whistle blowing rewards are often required to resolve these information asymmetries. These insights have set a trend, both in scholarship and law enforcement practice, towards reward-based approaches (carrots), as an alternative or complement to punishment based deterrence (sticks). Applying the U.S. False Claims Act (FCA) as an analytical framework, we provide a critical review of the efficiency limitations of whistle blowing. More specifically, the formal model developed in this contribution, reveals a gap between social and private incentives in whistle blowing, both with regard to the decision to pursue litigation and the timing of whistle blowing. First, while an insider will blow the whistle whenever his expected recovery exceeds the expected costs of litigation, enforcement agencies seek to optimise enforcement in the long run. The autonomy of whistle blowers to pursue claims without government involvement, weakens the government’s bargaining position and obstructs the government’s ability to weigh in wider factors of enforcement (the effect of an individual case on a multiple claim suit, etc.). Second, whenever rewards are tied to recovery, bounty awards create a perverse incentive whereby fraudulent practices are not terminated at a socially optimal point in time. The potential race among whistle blowers cannot mitigate this effect fully because the stigma and loss of opportunities on the job market act as internal constraints on whistle blowing

“It’s Just Not Right”: The Ethics of Insider Trading

The Supreme Court doctrine defining insider trading and a competing theory called the misappropriation theory are criticized, focusing on the case of United States vs Chestman. A counter-argument is presented

The Essential Role of Securities Regulation

This Article posits that the essential role of securities regulation is to create a competitive market for sophisticated professional investors and analysts (information traders). The Article advances two related theses-one descriptive and the other normative. Descriptively, the Article demonstrates that securities regulation is specifically designed to facilitate and protect the work of information traders. Securities regulation may be divided into three broad categories: (i) disclosure duties; (ii) restrictions on fraud and manipulation; and (iii) restrictions on insider trading-each of which contributes to the creation of a vibrant market for information traders. Disclosure duties reduce information traders\u27 costs of searching and gathering information. Restrictions on fraud and manipulation lower information traders\u27 cost of verifying the credibility of information, and thus enhance information traders\u27 ability to make accurate predictions. Finally, restrictions on insider trading protect information traders from competition from insiders that would undermine information traders\u27 ability to recoup their investment in information. Normatively, the Article shows that information traders can best underwrite efficient and liquid capital markets, and, hence, it is this group that securities regulation should strive to protect. Our account has important implications for several policy debates. First, our account supports the system of mandatory disclosure. We show that, although market forces may provide management with an adequate incentive to disclose at the initial public offering (IPO) stage, they cannot be relied on to effect optimal disclosure thereafter. Second, our analysis categorically rejects calls to limit disclosure duties to hard information and self-dealing by management. Third, our analysis supports the use of the fraud-on-the-market presumption in all fraud cases even when markets are inefficient. Fourth, our analysis suggests that in cases involving corporate misstatements, the appropriate standard of care should, in principle, be negligence, not fraud

Examining the Merits of Dual Regulation for Single-Stock Futures: How the Divergent Insider Trading Regimes for Federal Futures and Securities Markets Demonstrate the Necessity for (and Virtual Inevitability of) Dual CFTCSEC Regulation for Single-Stock Futures

[Excerpt] Single-stock futures are a recent addition to the financial landscape in the United States and provide retail and institutional investors with a new tool for investment or speculation. So far, the market response to these instruments has been cool. Some observers have argued that the regulatory framework for single-stock futures is a cause of the lack of investor interest. Single-stock futures are regulated by both the Commodities Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”), and this system of dual regulation has been criticized as overly burdensome and unnecessary

A framework for the forensic investigation of unstructured email relationship data

Our continued reliance on email communications ensures that it remains a major source of evidence during a digital investigation. Emails comprise both structured and unstructured data. Structured data provides qualitative information to the forensics examiner and is typically viewed through existing tools. Unstructured data is more complex as it comprises information associated with social networks, such as relationships within the network, identification of key actors and power relations, and there are currently no standardised tools for its forensic analysis. Moreover, email investigations may involve many hundreds of actors and thousands of messages. This paper posits a framework for the forensic investigation of email data. In particular, it focuses on the triage and analysis of unstructured data to identify key actors and relationships within an email network. This paper demonstrates the applicability of the approach by applying relevant stages of the framework to the Enron email corpus. The paper illustrates the advantage of triaging this data to identify (and discount) actors and potential sources of further evidence. It then applies social network analysis techniques to key actors within the data set. This paper posits that visualisation of unstructured data can greatly aid the examiner in their analysis of evidence discovered during an investigation