Category: Insider Trading

Insider Trading by Congress

Apparently members of Congress and their staff can make trades using non-public information obtained through their official positions.

House Rules Committee Chairwoman Louise M. Slaughter, D-N.Y., and Brian Baird , D-Wash., are sponsoring what they call the Stop Trading on Congressional Knowledge Act (HR 682) that would prohibit Members of Congress and their staffers from using nonpublic information obtained through their official positions to benefit themselves financially.

In a statement, the two said the legislation  is more important now, given the amount of money Congress has authorized to help right the economy under the financial services bailout program.

See also:

What Is Insider Trading?

sec-sealThe SEC.gov website has a blurb on Insider Trading.  They start off with legal insider trading, when officers, directors and employees buy and sell stock in their own companies. Corporate insiders are required to report their trades.

Illegal insider trading “refers generally to buying or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, nonpublic information about the security. Insider trading violations may also include “tipping” such information, securities trading by the person “tipped,” and securities trading by those who misappropriate such information.”

The SEC adopted new Rules 10b5-1 and 10b5-2 to resolve two insider trading issues where the courts have disagreed.

Under Rule 10b5-1, a person is trading on the basis of material nonpublic information if a trader is “aware” of the material nonpublic information when making the purchase or sale. The rule also sets forth several affirmative defenses or exceptions to liability. The rule permits persons to trade in certain specified circumstances where it is clear that the information they are aware of is not a factor in the decision to trade, such as pursuant to a pre-existing plan, contract, or instruction that was made in good faith.

Rule 10b5-2 focuses on the misappropriation theory of insider trading and how it applies to certain non-business relationships. This rule provides that a person receiving confidential information under circumstances specified in the rule would owe a duty of trust or confidence and thus could be liable under the misappropriation theory.

Chakrapani Insider Trading

"Blue horseshoe loves Anacot Steel"
"Blue horseshoe loves Anacot Steel"

The Securities and Exchange Commission charged Ramesh Chakrapani with insider trading. Chakrapani was an employee of the Blackstone Group.

The SEC alleges that Chakrapani tipped off a friend about the pending acquisition of the supermarket company Albertson’s Inc. before the public announcement of the deal in January 2006.

See coverage of the story:

The SEC v. Mark Cuban Insider Trading Case

McDermott Will & Emery put together an excellent peice on insider trading: The SEC v. Mark Cuban Insider Trading Case (.pdf) by Stephen E. Older and Seth T. Goldsamt.

Insider trading under U.S. law has developed through a case-by-case interpretation of Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 in the federal courts. There are three basic elements to an insider trading claim. The elements include purchasing or selling a security after receiving information that is material, nonpublic, and obtained or used in breach of a fiduciary or similar duty.

There are two major theories of insider trading under federal law flowing from two different types of duties: the “classical” theory and the “misappropriation” theory. Under the classical theory of insider trading, the agents of an issuer of securities may be corporate insiders (e.g., directors, officers, employees or controlling shareholders) or they may be “temporary” insiders by virtue of a professional relationship giving the agent access to nonpublic information about the issuer. A temporary insider is typically a lawyer, banker, accountant or consultant. If someone falls into either category and receives material, nonpublic information, then that person must either disclose such information to his counterparty before trading or abstain from trading. Under the misappropriation theory, a person will be held liable if he or she traded on material, nonpublic information and owed a duty to maintain trust and confidence to the source of that information.

The authors take you through the elements of insider trading and how it relates to the public information about the Mark Cuban case.

They also take us through the industry practice for PIPE transactions.

In a typical PIPE transaction, the placement agent will contact an investment fund’s compliance officer or in-house counsel and disclose limited information about the PIPE issuer. The compliance officer then runs this information against the fund’s restricted list, which is a list of investments in which the fund currently has a position. This is done to ensure that the fund will be able to freely trade investments it has already made. If the compliance officer finds the issuer’s name on the fund’s restricted list, he generally will decline to learn anything further about the offering. If the issuer’s name is not on a restricted list and the potential investor is interested in participating in the PIPE transaction, currently, best practices call for the placement agent either to have such investor sign a confidentiality agreement or a securities purchase agreement that includes a confidentiality provision, or to read a detailed script regarding confidentiality and have the investor consent in the presence of witnesses. This procedure is meant to prevent the circumstances now being litigated between the SEC and Mr. Cuban.

No Laughing Matter; National Lampoon Subject to SEC Complaint

See a copy of the complaint at JD supra: SEC v. National Lampoon.

The Commission’s complaint alleges that, from at least March 2008 through June 2008, Laikin, Barsky, Rodriguez and Dougherty engaged in a fraudulent scheme to manipulate the market for the common stock of National Lampoon. Specifically, Laikin, along with Barsky, paid kickbacks in exchange for generating or causing purchases of National Lampoon stock to Rodriguez, a corrupt stock promoter, and the CW, whom Laikin, Barsky and Rodriguez believed had connections to corrupt registered representatives. As part of this scheme, Dougherty generated purchases of National Lampoon stock in exchange for a portion of the kickbacks. Dougherty made his purchases over the course of a number of days and used various accounts to give the false impression of a steady demand for the stock.

The complaint alleges that Laikin and Barsky paid at least $68,000 that went to Rodriguez, Dougherty, and the CW to cause the purchase of at least 87,500 shares of National Lampoon stock. Through these efforts, Laikin and Barsky sought to artificially push National Lampoon’s stock price from under $2 per share to at least $5 per share, in part, to keep the company’s stock price above the minimum listing requirements of the AMEX, and to increase National Lampoon’s ability to enter into possible “strategic partnerships” and acquisitions. In addition to paying others to purchase the stock, Laikin shared confidential financial information regarding National Lampoon, non-public news releases, and confidential shareholder lists, and coordinated the release of news with the illegal purchases in the stock. Barsky helped direct the purchases and facilitated the kickback payments. National Lampoon and Laikin also made materially misleading statements in a tender offer.

The complaint alleges violations of Section 17(a) of the Securities Act of 1933, Sections 9(a)(2), 10(b) and 13(e) of the Securities Exchange Act of 1934 and Rules 10b-5 and 13e-4 thereunder. The complaint seeks permanent injunctions against all defendants, disgorgement of ill-gotten gains, together with prejudgment interest, and civil penalties, from the individual defendants, and an officer and director bar against Laikin.

Mark Cuban and Insider Trading

The Wall Street Journal reported that the SEC filed insider trading charges against Mark Cuban (owner of the Dallas Mavericks basketball team): SEC Charges Mark Cuban With Insider Trading. You can read the full text of the complaint against Mark Cuban.

According to the complaint, Cuban owned 600,000 shares in Mamma.com Inc.  (now called Copernic Inc.), whose shares are trded on NASDAQ. Cuban was told of an upcoming PIPE transaction. News of the transaction would likely have a substantial negative impact on the stock of the company. On the day prior to the announcement, Cuban sold all of his shares in the company and avoided losses in excess of $750,000.

Deloitte sues vice chairman for client stock trades

Accounting firm Deloitte & Touche LLP has sued its former vice chairman for trading in securities of the firm’s audit clients. In a lawsuit filed Oct. 29 in Delaware Chancery Court, Deloitte said Thomas Flanagan “repeatedly lied to Deloitte about his clandestine trading activities in annual written certifications, going so far as to conceal the existence of a number of his brokerage accounts to avoid detection.” Complaint of Deloitte LLP v. Thomas P. Flanagan. (.pdf)

The complaint states:

  • In 2007 Flanagan purchased stock a client’s acquisition target one week before the client publicly announce the acquisition.
  • Between January 2005 and June 2008, Flanagan engaged in put and call trades for at least 12 audit clients.

These actions were violations of Deloitte’s insider trading policies. See the story in  Crain’s Chicago Business: Deloitte partner accused of improper trading in client stocks.