In the few days since the Supreme Court handed down its decision in Salman v. United States, many commentators have said, in effect, that criminal prosecutions for insider trading are alive and well. Alive, yes; well, maybe not.
At the risk of quoting myself, almost exactly two years ago I posted an item on this blog entitled “There ought to be a law”. My belief at the time was that insider trading law is so byzantine that it’s impossible to know where legally permissible behavior becomes legally impermissible behavior. For better or worse (worse, IMHO), nothing has changed all that much. In the Salman decision, SCOTUS says that a prosecutor need not prove that a tipper received something of a “pecuniary or similarly valuable nature” to convict the tipper of illegal insider trading. So far, so good. However, as many commentators have pointed out, Salman leaves any number of other issues wide open.
Last December, I wrote an UpTick (“There ought to be a law”) about a decision in the Second Circuit Court of Appeals that appears to be wreaking havoc with insider trading prosecutions past and present. The Second Circuit has now rejected a Justice Department request to reconsider the decision, and so we now face a period of uncertainty regarding whether and to what extent insider trading can be prosecuted.
Since the terms “inside information” and “insider trading” have never been defined, one suggestion is that Congress should enact legislation that would define one or both terms. That’s a good idea in principle, but the proposals that have been bandied about thus far provide little confidence that legislation would clarify the situation. For example, one bill would prohibit trading on information that “is not publicly available” but not “information that the person has independently developed from publicly available sources”. I’m not sure this helps; after all, Ray Dirks (the subject of an SEC vendetta that, in my opinion, led to the current confusion on what is and is not insider trading) independently developed the information in question, but the SEC prosecuted him anyway.
Another bill would (1) define inside information as nonpublic information obtained illegally from the issuer “with an expectation of confidentiality” or “in violation of a fiduciary duty” and (2) remove the requirement that a tipper receive a personal benefit for leaking the information. I like the second part, but I’m not sure that the first part works; for example, if I hear the information from someone who heard it from someone who heard it from the issuer, does that remove the taint?
There are also suggestions that Congress may consider a broader approach – i.e., making it illegal to trade when in possession of confidential information regardless of how it’s obtained. This reminds me of a hypothetical posed years ago by Stanley Sporkin, then the very feisty Director of the SEC’s Enforcement Division: you’re flying in a plane and look out of your window to see XYZ Corporation’s biggest plant going up in flames. As interpreted by Mr. Sporkin, if you got off the plane and called your broker with a sell order, you would be engaging in illegal insider trading. Of course, these days you could place the order online well before the plane lands. Is that really how we’d like it to turn out?
It seems to me that before Congress even thinks about acting (not that Congress can act on very much if anything these days), we need to think about what goal we’re trying to achieve. If the objective is to create a level playing field for all investors, that’s one thing, and would probably require a much broader approach. If the goal is less ambitious -- i.e., to curtail trading based on knowing leaks and thefts of inside information -- that’s another. In any case, wishing for legislation on this topic reminds me of the old saw about being careful what you wish for.