United States: US Second Circuit Heightens the Standard of Proof Required To Sustain Tipper/Tippee Insider Trading Convictions

On December 10, 2014, in United States v. Newman, et al., the US Court of Appeals for the Second Circuit clarified the elements required to establish insider trading in tipper/tippee cases by holding that "in order to sustain a conviction for insider trading, the government must prove beyond a reasonable doubt that the tippee knew that the insider disclosed confidential information and that he did so in exchange for a personal benefit."1 The Court also rejected the long held government position that the personal benefit to the tipper could be inferred from mere friendship between the tipper and tippee. Instead, the court held that this inference is impermissible absent "proof of 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."2 The Newman decision will likely make it significantly more difficult for the government to win insider trading convictions based a tipper-tippee theory of liability.

Modern insider trading law is rooted in the Securities Exchange Act of 1934. Section 10(b) and 10b-5 of the '34 Act make it "unlawful for any person, directly or indirectly . . . [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate."3 Under this framework, the classic theory of insider trading prohibits corporate insiders, such as directors and officers, from trading in a corporation's securities on the basis of "material, non-public information" about the corporation.4 Insider trading law expanded to include the misappropriation theory of liability, which makes it illegal for certain corporate "outsiders" who have no independent fiduciary duty to a corporation, but have access to material nonpublic information, to trade in that corporation's securities.5

Liability for insider trading is not limited to persons trading for their own benefit. A person may also be subject to liability when an insider or misappropriator in possession of material, non-public information (the "tipper") discloses the information to an outsider (the "tippee") who then trades on the basis of the nonpublic information. However, under these circumstances a tipper is liable for insider trading only if he receives a benefit for disclosing the information. For instance, in Dirks v. SEC, 463 U.S. 646 (1983), the insider divulged the confidential information to a tippee in order to expose corporate fraud. The Supreme Court found that because Dirks did not personally benefit from disclosing the nonpublic information to the tippee, he was not guilty of insider trading. Moreover, the Court held that in order for liability to extend to a tippee, "the test is whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach [by a tippee]."6

In Newman, the Second Circuit clarified the proof required for insider trading in a tipper/tippee case by holding that "in order to sustain a conviction for insider trading, the government must prove beyond a reasonable doubt that the tippee knew that the insider disclosed confidential information and that he did so in exchange for a personal benefit."7 The Second Circuit overturned the convictions of the defendants finding that the government did not present sufficient evidence that the defendants willfully engaged in substantive insider trading or conspiracy to commit insider trading in violation of the federal securities laws.

This case involved the former Level Global Investors LP manager, Anthony Chiasson, and former Diamondback Capital Management LLC manager, Todd Newman, who, following a six-week jury trial, were found guilty of conspiracy to commit insider trading and insider trading in violation of federal securities laws.8

The government alleged that Chiasson and Newman illegally traded stock in Dell, Inc., and NVIDIA Corp. based on tips that originated with technology insiders at each of these companies. The sources of the nonpublic information in this case were several steps removed from both Chiasson and Newman. In the NVIDIA tipping chain, for instance, the evidence indicated that an employee of NVIDIA's finance unit tipped information to a person he knew from church, who was also a former executive at two major corporations. The government claimed that this former executive then passed the information to an analyst at Whittier Trust. The Whittier Trust analyst allegedly circulated this information to several of his analyst friends, who then gave the information to Chiasson and Newman. As such, both Chiasson and Newman were four levels removed from the inside tipper. The Second Circuit noted in its decision that there was no evidence that either of the defendants were aware of the source of the inside information. Nevertheless, Chiasson and Newman were convicted at trial and the district court sentenced them to 6 1/2 and 4 1/2 years imprisonment respectively.

On appeal, the government argued that criminal liability could be imposed by only proving a tippee's knowledge of the breach of the duty of confidentiality without knowledge of any personal benefit.The defendants argued that the Supreme Court's holding in Dirks dictated that trading on material, non-public inside information is illegal only if the insider engaged in self-dealing by disclosing the inside information for a personal benefit. The Second Circuit agreed with defendants, holding that in order to sustain a conviction for insider trading liability, the government must prove each of the following elements beyond a reasonable doubt:

  • the corporate insider was entrusted with a fiduciary duty;
  • the corporate insider breached this fiduciary duty by
  • disclosing confidential
  • information to a tippee
  • in exchange for a personal benefit;
  • the tippee knew of the tipper's breach, in that he knew the information was confidential and divulged for a personal benefit; and
  • the tippee still used the information to trade in a security or tip another individual for personal benefit.

Newton's heightened standard mandates that in order to sustain an insider trading conviction on the tipper/tippee theory of liability, the government must establish beyond a reasonable doubt that a tippee knew of the personal benefit received by the insider in exchange for the disclosure. In other words, a tippee must have actual knowledge, not only of the tipper's breach of the duty of confidentiality, but also of the personal benefit received by the tipper in exchange for disclosure. The Second Circuit flatly rejected the government's contention that the "personal benefit" requirement could be met by showing that a tippee gave career advice, passed along a person's resume, attended the same social gatherings, or attended the same educational institutions as the tipper. The court noted that if these types of associations and small favors constituted "personal benefits" that requirement would essentially be rendered a nullity. Moreover, the court clarified that a personal benefit cannot be inferred from a personal relationship between the tipper and tippee, "in the absence of proof of 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."9

The Second Circuit's decision has important implications for the future of insider trading law. The Second Circuit has now adopted a stricter standard for proving tipper/tippee liability. In overturning the convictions of individuals three or four levels removed from the insider tipper, the court essentially narrowed the group of people that can be effectively prosecuted for insider trading on the tipper/tippee theory of liability. In the wake of this decision, the government will have a much more difficult time prosecuting remote tippees and will be required to obtain more evidence to secure these convictions. This landmark decision signifies a welcome clarification in insider trading law.

Learn more about our Securities Litigation & Enforcement and White Collar Defense & Compliance practices.

1 United States v. Newman, Nos. 13-1387-cr, 13-1917-cr, slip op. at 3 (2d Cir. Dec. 10, 2014).

2 Id. at 22.

3 15 U.S.C. § 78j(b).

4 See generally Chiarella v. United States, 445 U.S. 222 (1980).

5 See generally United States v. O'Hagan, 521 U.S. 642 (1997).

6 Dirks v. SEC, 463 U.S. 646, 662 (1983).

7 United States v. Newman, Nos. 13-1387-cr, 13-1917-cr, slip op. at 3 (2d Cir. Dec. 10, 2014).

8 See 18 U.S.C. § 371, sections 10(b) and 32 of the Securities Exchange Act of 1934, and SEC Rules 10b‐5 and 10b5‐2.

9 Newman, slip op. at 22.

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