The Elkind court\u27s adoption of a disgorgement measure of damages for insider trading on undisclosed misrepresented material information in the open market is basically sound. In allowing compensation to the extent practicable, the Second Circuit chose the best solution among the available alternatives. The decision\u27s paramount problems arise in its shifted emphasis to deterrence; the court has neither provided plaintiffs with a sufficient incentive to sue nor created the level of deterrence that some cases might require. Future courts, however, can remedy this situation if they follow Elkind and also award punitive damages in cases in which plaintiffs\u27 losses exceed defendant\u27s profits
