| Headline (HD) |
Q&A: The In's and Out's of Insider Trading |
| Byline (BY) |
By Jerry Markon and Richard B. Schmitt |
| Word Count (WC) |
1,193 |
| Publication Date(PD) | 10/04/2002 |
| Publication Name (SN) |
The Wall Street Journal |
| Source Code (SC) | J |
| Page (PG) |
C1 |
| Copyright (CY) |
(Copyright (c) 2002, Dow Jones & Company, Inc.) |
| Lead Paragraph (LP) |
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?
Under federal securities law, that
depends on what you are told, who tells you and whether you know -- or
should have known -- that your fellow duffer shouldn't be passing along
the information. |
| Text (TD) |
The law bars trading on "material
nonpublic information." But prosecutors have some wiggle room to define
precisely what type of tip fits that category. The most clear-cut examples
involve market-moving news -- of an impending merger or a bad earnings
report, for example -- before it is made public. But there are gray areas.
Insider trading is in
the news again because of federal investigations of trading by Martha
Stewart and others in ImClone Systems Inc. stock last December, just
before the biotechnology firm announced bad news about its key cancer drug
that sent its shares plunging. Ms. Stewart, chairman and chief executive
of Martha Stewart Living Omnimedia Inc., has denied wrongdoing.
What follows is a primer on when
acting on a stock tip can get you in trouble:
Answer: This is a classic market
rumor, and you wouldn't get in trouble if you trade on it. The tipster
hasn't given you enough information -- such as how he knows the stock is
about to rise -- for it to cause a problem for you. If you know he is the
chief executive of XYZ, however, you could be in trouble.
A: It depends on precisely what was
said. If your golf partner made it clear that the information isn't yet
public and that it came from someone who works at the company, you could
face legal problems. The employee has breached his legal duty to the
company to not disclose the information, and you know -- or should know --
that. But there are gray areas. This is what is known as a "second-hand"
tip, and federal regulators and prosecutors don't always pursue people who
are further down the chain of information.
A: It depends to a large extent on
what you know about the company. If that is all you hear, you are probably
fine because you have no idea why the family is selling. The sales could
be part of a regular selling program or family members could be selling to
raise cash to buy a house.
"This is a much weaker case," says
David M. Brodsky, co-head of the 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 it may be 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.
In the Martha Stewart case, legal
experts say the domestic-products entrepreneur could face charges based on
the allegation federal prosecutors made in court papers in New York this
week that her Merrill Lynch & Co. broker told her members of ImClone's
founding Waksal family were selling. A close friend of former ImClone CEO
Samuel Waksal's, Ms. Stewart, also was a longtime ImClone shareholder who
experts say would have known that the company was expecting a major
decision by federal regulators about an important cancer drug. Still,
experts say this would be an aggressive reading of federal securities laws
and any such case could be difficult to win.
A: No. "The test is whether the
person who gets the information has reason to believe that the information
ultimately came from a tainted source," Mr. Brodsky says.
These sources could include employees
of law firms, printing companies or even newspapers who have come into
possession of market-moving confidential information. They often are
charged with "misappropriating" that information from their employers. In
court papers this week, prosecutors signaled that Ms. Stewart's broker
could face such a charge for misappropriating information about the Waksal
family's stock sales from Merrill.
A: This is certainly "material
nonpublic information" that someone from the company shouldn't be
disclosing -- and you are likely to be prosecuted if you trade on it.
Still, there is a wrinkle. Federal courts have ruled that the tipper is
only breaching a duty if he gets some monetary or other benefit.
Prosecutors have found it fairly easy to satisfy the requirement, however.
Courts have held that it was sufficient to show that the person's
reputation among his colleagues would be enhanced by having it known that
he was a good tipper.
A: Legally, probably not. "If someone
just says you should buy X and they don't work at the company and you
never ask why, you're probably stupid to just listen to that" and trade on
it, says Jeffrey Haas, a professor of securities law at New York Law
School. "But you don't have a duty to find out where it came from."
On the other hand, regulators may be
toughening up in this area. Nancy Grunberg, formerly an assistant director
of enforcement at the Securities and Exchange Commission and now a partner
in the Washington, D.C., office of law firm Venable LLP, 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."
--- Are You a Tippee? |
| Market Sector Code (MS) |
NND |
| News Category Code (NS) |
FRT ISD CINSDL RGU C13 STK WSJ ENGL GPERSF C12 C18 CCAT GCAT |
| Region Code (RE) |
NME US USA NAMZ |
| Layout Code (LC) |
TFR |
| Source Region Code (SRG) |
NME US |
| Market Sector Descriptor (DMS) |
Newswire End Code |
| News Category Descriptor (DNS) |
Newspapers' Section Fronts; Insider Trading; Insider Dealing; Securities Regulations; Regulation/Government Policy; Stock News; Wall Street Journal; English language content; Personal Finance; Legal/Judicial; Ownership Changes; Corporate/Industrial News; Political/General News |
| Geographic Region Descriptor (DRE) |
North America; United States; United States; North American Countries |
| Layout Descriptor (DLC) |
Third Front |
| Document No. (AN) |
J0227600341 |
| Copyright © 2000 Dow Jones & Company, Inc. All Rights Reserved. |