Risk & Compliance

Supreme Court to Hear Insider Trading Case

The issue facing the court in a California case is how to apply the "personal benefit" test for determining insider trading liability.
Matthew HellerJanuary 20, 2016

The U.S. Supreme Court has agreed to hear a California case that could clarify the legal standard for proving liability for insider trading.

Attorneys for Bassam Salman are hoping to convince the court he was wrongfully convicted for an insider trading scheme involving members of his extended family. He allegedly traded on confidential information from his future brother-in-law, then a member of Citigroup’s health care investment banking group.

Under a 1983 Supreme Court decision, tippee liability depends on tipper liability – and a tipper is liable only if he or she benefited directly or indirectly from the disclosure of confidential information.

The U.S. Ninth Circuit Court of Appeals upheld Salman’s conviction in July, ruling that the “personal benefit” test is met “when an insider makes a gift of confidential information to a trading relative or a friend,” even if they do not receive a pecuniary gain or other quid pro quo type of benefit in exchange for the disclosure.

“In our case,” it said, “the government presented direct evidence that the disclosure was intended as a gift of market-sensitive information.”

But Salman contends courts should follow the interpretation of the Second Circuit, which ruled in U.S. v. Newman in 2014 that the government must show “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.”

The Supreme Court declined to review the Newman case in October but, with the Ninth Circuit’s decision in the Salman case, it is now faced with a circuit split on the issue.

“If Salman’s theory were accepted and this evidence found to be insufficient,” the Ninth Circuit said, “then a corporate insider or other person in possession of confidential and proprietary information would be free to disclose that information to her relatives, and they would be free to trade on it, provided only that she asked for no tangible compensation in return.”