November 24, 2020

Volume X, Number 329

Advertisement

November 24, 2020

Subscribe to Latest Legal News and Analysis

November 23, 2020

Subscribe to Latest Legal News and Analysis

Third Congressional Proposal to Define Insider Trading

On March 25, 2015, U.S. Representative Jim Himes introduced the Insider Trading Prohibition Act.  The bill is the latest in a series of efforts to define insider trading following the Second Circuit’s decision last year in United States v. Newman.  We have blogged previously about similar legislation introduced by U.S. Senators Jack Reed and Bob Menendez and U.S. Representative Stephen F. Lynch.

The Himes bill would create a new Section 16A of the Securities Exchange Act.  The new section would make it illegal for a person to trade securities on the basis of material, non-public information that the person knows (or recklessly disregards) was wrongfully obtained.  The bill would also make it illegal for a person whose own trading would be illegal to wrongfully communicate material, non-public information to another person when it is reasonably foreseeable that the other person is likely to trade on it or pass it on to others.

The Himes bill defines several categories of “wrongfully obtained” information, including, (i) information obtained by theft, bribery, misrepresentation or espionage, (ii) information acquired in violation of federal laws protecting computer data, intellectual property, and the privacy of computer users, and (iii) information obtained via conversion, misappropriation, or other unauthorized and deceptive means, including information obtained in “breach of any fiduciary duty or any other personal or other relationship of trust and confidence.”

Like the Reed-Menendez and Lynch bills, the Himes bill has been positioned as a response to Newman.  Thus, the bill would eliminate Newman’s requirement that a tippee who trades on the basis of material, non-public information (or who tips others) know that the tipper received a personal benefit for disclosing the information.  The bill states that the tipper or trader need not “know the specific means by which the information was obtained or communicated, or whether any personal benefit was paid or promised by or to any person in the chain of communication, so long as the person trading while in possession of such information or making the communication, as the case may be, was aware, or recklessly disregarded that such information was wrongfully obtained or communicated.”

Going forward, practitioners should pay particular attention to the Himes insider-trading bill, as it is the first such proposal to garner bipartisan support.

© 2020 Proskauer Rose LLP. National Law Review, Volume V, Number 86
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

Jonathan E Richman, Proskauer Rose law firm, litigation attorney
Partner

Jonathan Richman is a Partner in the Litigation Department and a co-head of the Securities Litigation Group. Jonathan has broad experience in a range of civil litigation matters, including securities litigation and investigations, shareholder derivative litigation, insurance sales-practices suits, antitrust litigation, bankruptcy proceedings, product-liability litigation, and employment and ERISA suits.

212-969-3448
Tanya J Dmitronow, Proskauer Rose Law Firm, Litigation Attorney
Partner

Tanya Dmitronow is a Partner in the Litigation Department and a member of the Firm’s White Collar Defense & Investigations and Securities Litigation Groups. Tanya focuses her practice on criminal and civil enforcement proceedings and securities and corporate governance litigation. She has a depth of experience in complex litigation matters, including securities class actions and related individual, ERISA and shareholder derivative suits.

212-969-3449
Edward Canter, Law Clerk, Proskauer, Law Firm
Law Clerk

Edward Canter is a law clerk in the Litigation Department.

Education

  • Emory University School of Law, J.D., 2014

  • Emory University Goizueta Business School, M.B.A., 2014

  • Vanderbilt University, B.A., 2008

212-969-3106
Advertisement
Advertisement