Supreme Court to Rule on Legality of Insider Tips

2016-10-05 17:03:04


Supreme Court to Rule on Legality of Insider Tips

WASHINGTON — The Supreme Court on Wednesday took up one of the most hotly debated issues on Wall Street, hearing oral arguments in a case that could clarify what prosecutors must prove to secure insider trading convictions based on confidential tips.

And in their questioning, the justices offered up a bit of hope to both prosecutors and traders.

The case, Salman v. United States, comes from California and centers on the insider trading conviction of Bassam Salman in 2013. According to prosecutors, Mr. Salman placed profitable stock trades based on confidential information leaked by his future brother-in-law, Maher Kara, who had advance knowledge of corporate mergers because of his job in Citigroup’s health care investment banking group.

For decades, courts have held that it is not inherently illegal to trade stocks based on material, nonpublic information like a merger or acquisition. For an insider to be guilty of sharing inside information, the leak must breach a duty to keep the information confidential and the tipper must receive a personal benefit in exchange for the leak. By extension, the person who receives the information must generally know of that breach and benefit.

The Salman case — the Supreme Court’s first insider trading case in 20 years — presents a question that has vexed federal appeals courts and left prosecutors and traders alike seeking clarity: What exactly amounts to a “personal benefit”?

Prosecutors hope the court will afford them leeway in defining the benefit, arguing that if an insider provides a gift of information, that should count as a benefit. In the Salman case, Maher Kara did not receive any financial benefit but arguably leaked the information as a gift.

Mr. Salman’s lawyer, Alexandra Shapiro, argued on Wednesday that the benefit must be something more “tangible.”

Several of the justices, citing one of the court’s seminal insider trading cases from three decades ago, seemed skeptical of Mr. Salman’s argument. After all, as Justice Stephen Breyer noted, “to help a family member is to help yourself.”

Yet the court, often skeptical of prosecutors in white-collar crime cases, questioned the government’s lawyer, Michael Dreeben, about where to draw the line. The justices seemed hesitant to afford prosecutors broad authority to apply the so-called gift test to situations in which the insider and recipient were not family or close friends, or set an even looser standard that would allow charges whenever information was shared for a noncorporate purpose.

The issue gained prominence in the wake of a 2014 decision from the United States Court of Appeals for the Second Circuit in Manhattan, United States v. Newman, that upended the Justice Department’s sweeping crackdown on insider trading. Mr. Salman’s argument for overturning his conviction hinges on the Newman decision, which tightened the standard for what constitutes a personal benefit by requiring prosecutors to show a tangible benefit rather than mere friendship between the tipper and recipient.

The Second Circuit, in that 2014 decision, overturned the insider trading convictions of the hedge fund managers Todd Newman and Anthony Chiasson. In the aftermath, federal prosecutors in New York tossed out the convictions of nearly a dozen other traders and industry consultants.

Preet Bharara, the United States attorney in Manhattan, whose office secured insider trading convictions against dozens of people in the nearly $3 trillion hedge fund industry, has been an outspoken critic of the Second Circuit ruling. Mr. Bharara, who attended Wednesday’s oral argument, claimed that the Second Circuit’s decision could create “a potential bonanza for friends and family of rich people with material nonpublic information.”

The Supreme Court denied the Justice Department’s request that it review that ruling, though it may well indirectly rebuke it in deciding Mr. Salman’s case.

In Mr. Salman’s case, the United States Court of Appeals for the Ninth Circuit in San Francisco took a different approach. The Ninth Circuit upheld Mr. Salman’s conviction and adopted the view that giving inside information to a family member qualified as a benefit, creating what some legal observers viewed as a split that only the Supreme Court could reconcile.

“Circuit conflict always presents it as something that becomes harder for the Supreme Court to overlook,” said Daniel Richman, a former federal prosecutor, who is now a professor at Columbia Law School.

Adding to the intrigue, the author of the Ninth Circuit decision was Jed S. Rakoff, a federal district court judge in Manhattan who oversees some of Wall Street’s biggest trials. Judge Rakoff, who sometimes is designated to serve as an appellate judge in other jurisdictions, had expressed concern about the Newman decision in other cases as well.

Both the Newman and Salman appeals court decisions hinged on a 33-year-old Supreme Court case, Dirks v. Securities and Exchange Commission, that has long been the cornerstone of insider trading law. At its core, the Dirks decision required evidence that the insider “personally will benefit, directly or indirectly,” from leaking.

That decision directed courts to focus on “whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings.”

In overturning Mr. Newman’s conviction, the Second Circuit seized on that financial element. The decision held that when a violation is based on friendship, prosecutors must establish “a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.”

But when the Ninth Circuit upheld Mr. Salman’s conviction, it focused on another passage in the Dirks decision that allowed liability “when an insider makes a gift of confidential information to a trading relative or friend.”

That excerpt strikes at the heart of Mr. Salman’s case. Maher Kara passed the inside information, arguably as a gift, to his brother, Michael Kara, who in turn shared it with Mr. Salman. The two families were close; Maher Kara was engaged to Mr. Salman’s sister.

Those facts provide a potential, if narrow, path for the Supreme Court to uphold Mr. Salman’s conviction without contradicting the Second Circuit’s ruling in the Newman case. Under that scenario, the court could require prosecutors to prove that insiders leaked information in exchange for a potential financial gain, except when the defendants are family or close friends.

Such an outcome would disappoint some prosecutors. The Justice Department’s ideal ruling would uphold the conviction of Mr. Salman and then take the Ninth Circuit’s ruling further so that the “gift” rule would not be limited to just family and close friends.

Prosecutors argue that the current unsettled nature of the law has had a chilling effect on cases. They nonetheless have resumed filing insider trading cases in which they have additional evidence of a personal benefit.

And Mr. Richman, the former federal prosecutor, predicted that because insider trading law is almost entirely judge-made, rather than set by Congress, the Supreme Court might be reluctant to radically revisit its seminal Dirks ruling from three decades ago. It would be simpler to draw distinctions between cases involving family members and business associates.

“If you were going to be a minimalist, this little bit of family relationship could be elaborated on without wholesale redevelopment,” he said.

One of the most prominent critics of judges determining what constitutes insider trading was Justice Antonin Scalia, whose death this year created the vacancy on the bench. Justice Scalia argued that only Congress — rather than agencies, prosecutors or judges — may define what conduct amounts to insider trading.

Mark Cuban, the billionaire entrepreneur who defeated the S.E.C. in a civil insider trading case, raised a similar point in a so-called friend of the court brief filed in the Salman case. Mr. Cuban said in the absence of congressional action, the Supreme Court “must continue to reject the government’s attempts to expand insider trading proscriptions.”

In briefs submitted ahead of the oral argument, lawyers for Mr. Salman wrote that if prosecutors need only prove that an insider leaks the information as a “gift” to a family member or friend, this “weak, ephemeral standard invites prosecutors to abuse their power.”

In this case, Mr. Salman’s lawyers noted, there was no pecuniary gain. Michael Kara did not pay his brother, Maher Kara, the Citigroup banker.

In its own briefs, however, the Justice Department argued that the Dirks decision “expressly states that a gift of confidential information for trading satisfies the requirement that the tipper personally benefit.” The Justice Department also appealed to the justices’ common sense, stating that “any suggestion that giving gifts does not confer something of value on the tipper thus would be blind to social and cultural realities.”

In Mr. Salman’s case, for example, the Justice Department cited Michael Kara’s earlier help in paying for Maher Kara’s business school and that he stood in for their deceased father at Maher’s wedding. Prosecutors claim that Mr. Salman, who worked as a grocery wholesaler during the period in which he traded, knew of this close bond because their two families “were intertwined.”

In turn, the lawyers for Mr. Salman suggested a compromise should the Supreme Court establish that a family relationship was sufficient to proving a personal benefit. In that case, they argued that the court should not “adopt a broader definition of personal benefit” to a so-called remote tip recipient like Mr. Salman who “had no involvement in the insider’s alleged fraudulent fiduciary breach.”

Prosecutors struck plea deals with Maher and Michael Kara, leading to leniency in sentencing. While Maher Kara was sentenced to three months of home confinement, Mr. Salman was sentenced to three years in prison.

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