Insider Trading, Tipper-Tippee Liability, Rule 10b-5


Many have called for reform to insider trading law, as the current judge-made doctrine is ambiguous, complicated, and ultimately permissive of many instances of trading on nonpublic information. Indeed, Congress has attempted several times to pass a uniform insider trading statute. Most recently, in December 2019, the House of Representatives passed the Insider Trading Prohibition Act (“ITPA”). The legislation codifies many current principles of insider trading jurisprudence while also expanding potential insider trading liability. Moreover, it attempts to fix gaps in the law that various cases, such as United States v. Newman, have declined to address.

Among other flaws, by requiring a tippee to know that the initial tipper received a personal benefit, Newman has made it extremely difficult for the Government to prosecute remote tippees in long tipping chains. This essentially permits insider trading in such situations, which often involve sophisticated investors at large hedge funds. The ITPA would properly eliminate this requirement that the tippee know of the tipper’s personal benefit, instead shifting the focus of the analysis to whether the tippee knew that the information itself was obtained wrongfully.

Legislation is advantageous because it provides notice and due process in a way that judge-made law cannot. Moreover, recent convoluted cases have left significant gaps that would best be filled by clearly drafted legislation. Although the ITPA is a step in the right direction towards a codified insider trading law, it is not a perfect solution. This Note briefly explains the development of insider trading law and the ITPA itself, identifies some of the Act’s current flaws, and proposes various improvements. The ITPA would benefit from enhanced clarity, separate standards for criminal and civil liability, and a more expansive definition of “personal benefit.” A broadened definition provides an opportunity to distinguish between information used for legitimate and illegitimate corporate purposes. In sum, the altered definition seeks a balance between preventing improper motives and preserving incentives for diligent market research.



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