Insider Trading (Federal Law)

1. Insider Trading (Federal Law) Classic insider trading Tipping liability Outsider trading (misappropriation) Last updated 27 Feb 12

2. Section 10(b) Fraud (tort of deceit) • Material misrepresentation • Intentional (defendant aware of truth) • Reliance (plaintiff relies reasonably) • Misrepresentation is cause of loss • Damages Fraud (tort of deceit) • Material misrepresentation • Intentional (defendant aware of truth) • Reliance (plaintiff relies reasonably) • Misrepresentation is cause of loss • Damages Securities Exchange Act of 1934 Act § 10 It shall be unlawful for any person ... (b) To use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe

3. Misappropriation(Outsider Trading) Classic Insider Trading Company shareholders Outside shareholders Silence = fraud (duty of trust/confidence) Violates duty to source INSIDER • 10b5-2 • Confidentiality agreement • Confidentiality practice • Family member – functional • Tip violates duty * • Knows / reason to know • * improper benefit Tippee Tippee • Rule 10b5-1: state of mind when trading “on the basis” of material, nonpublic information • “aware” (“conscious knowledge”) • Pre-existing trading plans

4. Outsider Trading …(Misappropriation)

5. “Misappropriation” Buy, buy, buy US v. O’Hagan (US 1997) Shareholders Option sellers Dorsey & Whitney O’Hagan Insider Grand Met Non-public, material info (plan to make tender offer To Pillsbury shareholders) Shareholders Pillsbury

6. US v. O’Hagan (US 1997) The "misappropriation theory" holds that a person commits fraud "in connection with" a securities transaction, and thereby violates § 10(b) and Rule 10b-5, when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information. … Under this theory, a fiduciary's undisclosed, self- serving use of a principal's information to purchase or sell securities, in breach of a duty of loyalty and confidentiality, defrauds the principal of the exclusive use of that information. Justice Ruth Bader Ginsberg

7. US v. O’Hagan (US 1997) [The "in connection with the purchase or sale of [a] security"] element is satisfied because the fiduciary's fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the information to purchase or sell securities. … This is so even though the person or entity defrauded is not the other party to the trade, but is, instead, the source of the nonpublic information. Justice Ruth Bader Ginsberg

8. US “insider trading” primer • Classic insider trading: • Fraudulent silence under Section 10(b) • duty of trust or confidence to “abstain or disclose” • Tipping liability: • know or should know that • tipper has breached duty for improper personal benefit • Misappropriation liability: • Fraud on source “in connection with” securities trading • Maintain integrity of securities markets

9. Effect of SEC rules • Rule 10b5-1: state of mind when trading “on the basis” of material, nonpublic information • “aware” (“conscious knowledge”) • Pre-existing trading plans • Rule 10b5-2: duty to source in business/personal relations • Agree to maintain confidentiality • Practice of sharing known confidences • Spouse, parent, child, sibling – unless no confidentiality • Regulation FD: no special access for analysts

10. Insider trading quiz The Wall Street Journal Friday, October 4, 2002 Q&A: The In's and Out's of Insider Trading “So you get a hot stock tip on the golf course this weekend. Will you get in trouble with the feds if you trade on it?”

12. 1. You work as CFO in Up-N-Rising, a bakery franchiser, that is opening high-end bakery shops throughout the country. The numbers have been good, until this month when you notice an internal report showing a 25% fall in royalties from pastry sales. Question: You sell some of your stock. Insider trading? Yes. This is classic insider trading. Only question is whether drop in pastry sales is “material” State of mind – use versus knowledge – resolved by Rule 10b5-1 (“aware”) Insider trading quiz

13. 2. You are outside counsel to Up-N-Rising. The CFO at Up-N-Rising calls you and tells you about this quarter’s 25% fall in pastry sales - resulting in a 15% drop in earnings . She asks whether the company should disclose this in a press release.  Question: You sell Up-N-Rising short. Insider trading? Yes. You’re a temporary insider (fn 14 - Dirks). Drop in royalties is “material” Duty to source in business/ personal relation (Rule 10b5-2) Agree to maintain confidentiality Practice of sharing known confidences Insider trading quiz

14. 3. You are a friend of Ralph, who you know is sales manager for Up-N-Rising. Ralph tells you that “something” is happening at the company and you should sell your Up-N-Rising holdings, if you have any. Ralph says no more. Question: You sell your Up-N-Rising stock? Insider trading? Yes. You received a tip (duty to inquire). If “something” is material, nonpublic Elements of illegal tipping Breach of duty by tipper (personal benefit) Tippee knows or reason to know of violation Insider trading quiz

15. 4. You are a member of a golf foursome. One of the foursome says, “I think something’s happening at Up-N-Rising. You’d probably do well to short it.” He says no more. Question: You may no further inquiries and buy Up-N-Rising put options. Insider trading? No. Probably no duty to inquire. What does “something happening” mean? What are you aware of? What was the source of information? Insider trading quiz

16. Insider trading quiz Duty to inquire • WSJ: “If not from a company insider, you’re probably stupid to just listen" and trade on it, says Jeffrey Haas, a professor of securities law at New York Law School. “You don't have a duty to find out where it came from.“ • WSJ: Nancy Grunberg, former assistant director of SEC enforcement, says, "The SEC would want to know -- unless it was on a piece of paper that fell out of the sky -- whether you asked about the source of the information before you acted on it."

17. 5. New scenario. You are the CFO of KK Donuts and have been cogitating on what to do with all the company’s extra cash. You talk with the company’s CEO and investment banker, who agree buying Up-N-Rising would be a good move. You begin to form a takeover team. Question: You buy Up-N-Rising stock. Insider trading? Yes – actually “outsider trading.” You cannot misappropriate your own company’s info. “Material” Duty to source “Awareness” Insider trading quiz

18. 6. You are the spouse of the CFO of KK Donuts, who tells you that she will be out of town for the next few days. “We’re looking at buying Up-N-Rising.” You know that this is only going to complicate your life. You wish there were a silver lining. Question: You buy Up-N-Rising stock. Insider trading? Yes. Either duty, or tip. Tipper violated duty – personal benefit WSJ: “Prosecutors have found it fairly easy to satisfy the requirement. Courts have held sufficient to show that the person's reputation among colleagues would be enhanced by having it known that he was a good tipper.” Recipient had duty to source Rule 10b5-2: “duty” presumed in close family relations, unless no expectation of confidentiality Insider trading quiz

19. 7. You are the head of strategic planning at KK Donuts. You are no fool. You figure that when KK Donuts announces it is acquiring Up-N-Rising, the stock prices of competitors of Up-N-Rising will likely fall. The Up-N-Rising acquisition is moving apace. Question: You sell short the stock of Up-N-Rising’s competitors. Insider trading? No (maybe) No duty to outside company No duty to source? Current academic “state of art” issue Reach of insider trading prohibition? Insider trading quiz

20. 8. You are an outside “public relations” consultant to KK Donuts. The company's CEO calls and tells you KK Donuts may be buying Up-N-Rising to expand into the high-end French bakery business. You are asked if this would be good for public relations. You have no confidentiality agreement. Question: You buy Up-N-Rising stock. Insider trading? Yes (probably) Rule 10b5-2 Defines duty to source “Persons … have history, pattern or practice of sharing confidential information … so recipient had reason to know communicator expected confidentiality.” Insider trading quiz

21. 9. You are the founder KK Donuts. You hold about 40% of the company’s stock and want to diversify. Problem is if you sell, during this volatile expansion period, you will be accused of insider trading. You tell your broker to sell 1% every month over the next two years – reducing your KK position to 16%. Question: You sell (under the plan) when you are aware of the Up-N-Rising deal. Insider trading? No (if done right) Rule 10b5-1 (Martha Stewart defense) Pre-existing trading plan negates “awareness” Must show Binding contract, instruct another, written plan – when “unaware” Strategy gives specifics, formula, or disables Insider trading quiz

22. 10. You are best friends with Karl Konners, founder and CEO of KK Donuts. You both use the same broker. This morning the broker called you and blurted, “Karl is selling. Karl is really selling.” You knew that KK Donuts was being investigated by the FDA over its products’ fat content. Question: You sell your KK Donuts holdings. Insider trading? 10. Yes (perhaps) Similar to facts of Martha Stewart – Imclone Insiders selling - “material” information? Breach of duty by KK to “inform” broker Sub-tippee knows or should know Insider trading quiz

23. Martha Stewart David M. Brodsky, co-head of securities litigation group at Latham & Watkins in New York: The mere fact that insiders are selling, even heavily, isn't necessarily "material," or market-moving information (though nonpublic). But if it turns out that the sales truly are unique -- that the founders had never sold shares before, for example -- you may be courting trouble.

24. 11. You are in a taxi on a rainy night in New York City. The driver stops to pick up two wet customers. “My gosh,” you think, “It’s Karl Konners, the head of KK Donuts.” Karl talks to his associate in animated whispers about the FDA dropping its fat-content investigation. “Great news for KK Donuts,” you tell yourself. Question: You buy KK Donuts stock. Insider trading? 11. No. No breach of duty when KK talked to associate No duty of eavesdropper to source No misappropriation No tipping Insider trading quiz

25. 12. You are the head of investor relations of KK Donuts. You have been besieged by inquiries about rumors of an Up-N-Rising takeover. You talk to senior management and decide on a script: “KK Donuts is in preliminary talks with Up-N-Rising management.” And so on. You answer no questions. Question: You call three leading analysts of KK stock and read the script. Insider trading? 12. Perhaps No Regulation FD (fair disclosure) Addresses systematic tipping to analysts and preferred analyst back-scratching Treated as form of insider trading Insider trading quiz

26. Regulation FD (fair disclosure) • “Advice” to market professionals of material nonpublic information • Intentional: simultaneous public disclosure • Unintentional: public disclosure within 24 hours • Applies to senior management, investor relations • Exceptions: • Normal course of business (but not credit rating agencies) • Government officials • Road shows when going public • Disclosure by foreign private issuers • Enforcement only by SEC (no private action)

27. 1. Yes 2. Yes 3. Yes (inquire) 4. No (not inquire) 5. Yes 6. Yes 7. No (maybe) 8. Yes (probably) 9. No (if done right) 10. Yes (perhaps) 11. No 12. No Insider trading quiz(answers)

28. Classic insider trading …

29. “Classic” Cady Roberts (SEC 1961) Investors / shareholders Sell to new investors(sell short) Gintel (director) Curtiss-Wright Non-public, material information (board votes to cut dividends)

30. Duty to abstain or disclose …

31. “Outsider” Chiarella v. US (US 1980) shareholders Pandick Press Chiarella Shareholders Insider Acquiror Inc Non-public, material info (takeover plans) Target Company

32. Justice Lewis Powell Chiarella v. US (US 1980) "... silence in connection with the purchase or sale of securities may operate as fraud actionable under § 10(b) ... But such liability is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction.”

33. Tipping liability …

34. “Tipping” Dirks v. SEC (US 1983) Investors / shareholders Clients dump stock Secrist Equity Funding Non-public, material information (massive accounting fraud) Dirks (analyst)

35. Dirks v. SEC (US 1983) ... a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach. Whether the "tip" was a breach of the insider's fiduciary duty [depends on] whether ... the insider receives a direct or indirect personal benefit that will translate into future earnings. Justice Lewis Powell

36. “Tipping” Hypothetical Investors / shareholders Sell Stock Spouse Secrest Equity Funding Non-public, material information Massive accounting fraud)

37. Martha Stewart …

38. “Tipping” Sells stock SEC v. Stewart (settled 2006) Stock market Martha Stewart (at airport) Sam Wachtal (CEO) Imclone Non-public, material information (FDA likely to disapprove drug) Faneuil (ass’t)

39. The end