The New Insider Trading

Karen E. Woody.

Pursuant to the SEC’s Rule 10b-5, in order to obtain a conviction for insider trading based upon a tipper-tippee theory, the government must prove that the tipper received a personal benefit for the tip, and that the tippee knew about that benefit. The last five years of blockbuster insider trading cases have focused on this seemingly nebulous personal benefit test, and the Supreme Court has been unable to clear the muddy waters. As a result, the parameters of insider trading remain hard to pin down and often shift depending on the facts of the most recent case. Two terms ago, the Supreme Court, in an unsurprising unanimous decision in Salman v. United States, reaffirmed the holding of Dirks, from which the personal benefit test arose. The Court in Salman, however, failed to elucidate the more problematic areas of insider trading, including the application of the personal benefit test if the tippee is not a trading relative or friend. Legal practitioners, legislators, and academics have offered up various solutions for the problem of having an amorphous law against insider trading, yet none have succeeded.

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