INSIDER TRADING: LESSONS FROM THE USA.

Submitted to Mrs. V. VISHALKSHI

By Anoop Kumar Roll No. 11 Varun Rathi Roll No. 70

CONTENTS.

INTRODUCTION Insider & Insider Trading Defined INSIDER TRADING AS A CRIME INSIDER TRADING REGULATION IN INDIA. The SEBI Act, 1992. The Companies Act, 1956. The Securities Contracts (Regulation) Act, 1956. INSIDER TRADING LAW IN THE UNITED STATES A COMPARISON OF INSIDER TRADING PROVISIONS IN US AND INDIA. CONCLUSION. BIBLIOGRAPHY.

INTRODUCTION. It was only about three decades back that insider trading was recognized in many developed countries as what it was - an injustice; in fact, a crime against shareholders and markets in general. At one time, not so far in the past, inside information and its use for personal profits was regarded as a perk of office and a benefit of having reached a high stage in life. It was the Sunday Times of UK that coined the classic phrase in 1973 to describe this sentiment - "the crime of being something in the city", meaning that insider trading was believed as legitimate at one time and a law against insider trading was like a law against high achievement. "Insider trading" is a term subject to many definitions and connotations and it encompasses both legal and prohibited activity. Insider trading takes place legally every day, when corporate insiders officers, directors or employees buy or sell stock in their own companies within the confines of company policy and the regulations governing this trading. It is the trading that takes place when those privileged with confidential information about important events use the special advantage of that knowledge to reap profits or avoid losses on the stock market, to the detriment of the source of the information and to the typical investors who buy or sell their stock without the advantage of "inside" information. Almost eight years ago, India's capital markets watchdog the Securities and Exchange Board of India organised an international seminar on capital market regulations. Among others issues, it had invited senior officials of the Securities and Exchange Commission to tell us how it tackled the menace of insider trading. Insider & Insider Trading Defined Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992, does not directly define the term "insider trading". But it defines the terms insider or who is an insider; who is a connected person; What are price sensitive information.

Obviously an insider, who has deep insight into the affairs of the corporate body and holding knowledge about "price sensitive information" relating to the performance of the corporate body that could have a decided impact on the movement of the price of its equity, is at a vantage

position with regards to a prospective trading in the shares of the company to the detriment of the common investors. Taking this fact into account the Regulation prescribes several "do-s" and "don'ts" with reference to these "insiders". The effect of the regulatory measure is to prevent the insider trading in the shares of the company to earn an unjustified benefit for him and to the disadvantage of the bonafide common shareholders. According to the Regulations "insider" means any person who, is or was connected with the company or is deemed to have been connected with the company, and who is reasonably expected to have access, connection, to unpublished price sensitive information in respect of securities of a company, or who has received or has had access to such unpublished price sensitive information; The above definition in turn introduces a new term "connected person". The Regulation defines that a "connected person" means any person who(i) is a director, as defined in clause (13) of section 2 of the Companies Act, 1956 (1 of 1956) of a company, or is deemed to be a director of that company by virtue of sub-clause (10) of section 307 of that Act or (ii) occupies the position as an officer or an employee of the company or holds a position involving a professional or business relationship between himself and the company whether temporary or permanent and who may reasonably be expected to have an access to unpublished price sensitive information in relation to that company; 'Price Sensitive Information' means any information, which relates directly or indirectly to a company and which if published, is likely to materially affect the price of securities of company. INSIDER TRADING AS A CRIME Insider trading is an extraordinarily difficult crime to prove. The underlying act of buying or selling securities is, of course, perfectly legal activity. It is only what is in the mind of the trader that can make this legal activity a prohibited act of insider trading. Direct evidence of insider trading is rare. There is no smoking guns or physical evidence that can be scientifically linked to a perpetrator. Unless the insider trader confesses his knowledge in some admissible form,

evidence is almost entirely circumstantial. The investigation of the case and the proof presented to the fact-finder is a matter of putting together pieces of a puzzle. This is why providing civil, as well as criminal, liability is vital to an effective insider-trading program. The importance of making insider trading both a criminal and civil offense is illustrated by two recent decisions by U.S. federal courts. In September 1998, the Ninth Circuit Court of Appeals held in the case of United States v. Smith1. That in a criminal insider trading case, the government must prove that even a defendant who is a traditional insider (rather than a misappropriator) actually used material nonpublic information in making the decision to trade, rejecting the SEC's position and the position of the Second Circuit expressed in an earlier decision1 that it is enough for the government to show that the defendant was in possession of the information at the time he traded. Several months ago, the Eleventh Circuit Court of Appeals reached the same decision in SEC v. Adler2, a civil case, but to alleviate the difficulties of proof raised by the standard, adopted a rule providing that although "use" is a required element of a Rule 10b-5 insider trading violation, when an insider trades in possession of material nonpublic information, a strong inference arises that such information was used by the insider in trading. The burden then shifts to the trader to rebut the inference by adducing evidence that there was no causal connection between the knowledge and the trade. Such an inference is unavailable in the criminal context, where the burden remains on the government to prove each element of an offense beyond a reasonable doubt. These two cases demonstrate the importance of having both civil and criminal prosecution available to the regulator3. INSIDER TRADING REGULATION IN INDIA. Securities regulation began in India with the Capital Issues (Control) Act of 1947, which had its origin during the war in 1943, with the objective to support the war effort. The Act was retained with some modifications as a means of control over the raising of capital by companies and to serve goals and priorities of the government; however, as part of the liberalisation process, the

http://caselaw.findlaw.com/us-9th-circuit/1396972.html 137 F. 3d 1325 137 F.2d 1325 (1998).

Act was repealed in 1992 paving the way for market determined allocation of resources. The four main legislations governing the securities market in India today are: The SEBI Act, 1992. It establishes SEBI to protect investors and develop and regulate the securities market, with the aims of regulating the business in stock exchanges and any other securities markets; registering and regulating the working of intermediaries and others associated with securities markets in any manner; promoting and regulating self-regulatory organisations; prohibiting fraudulent and unfair trade practices relating to securities markets; promoting investors education andtraining of intermediaries of securities markets; prohibiting insider trading in securities; and regulating substantial acquisition of shares and takeover of companies. The Companies Act, 1956. It sets out the code of conduct for the corporate sector in relation to issue, allotment and transfer of securities, and disclosures to be made in public issues; The Securities Contracts (Regulation) Act, 1956. It provides for regulation of transactions in securities through control over stock exchanges; and The Depositories Act, 1996, which provides for electronic maintenance and transfer of ownership of demat securities, ensuring free transferability of securities with speed, accuracy and security. Also, Disclosure and Investor Protection (DIP) guidelines issued periodically by SEBI contain a substantial body of requirements for issuers and intermediaries, the broad intention being to ensure that all concerned observe high standards of integrity and fair dealing. Among the other steps taken by SEBI for the protection of investors are regulations for collective investment schemes and prudential norms for mutual funds. INSIDER TRADING LAW IN THE UNITED STATES After the United States stock market crash of 1929, Congress enacted the Securities Act of 1933 and the Securities Exchange Act of 1934, aimed at controlling the abuses believed to have contributed to the crash. The 1934 Act addressed insider trading directly through Section 16(b) and indirectly through Section 10(b). Section 16(b) prohibits shortswing profits (profits realized in any period less than six months) by corporate insiders in their own corporation's stock, except

in very limited circumstance. It applies only to directors or officers of the corporation and those holding greater than 10% of the stock and is designed to prevent insider trading by those most likely to be privy to important corporate information. Section 10(b) of the Securities and Exchange Act of 1934 makes it unlawful for any person "to use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe." To implement Section 10(b), the SEC adopted Rule 10b-5, which provides, in relevant part: It shall be unlawful for any person, directly or indirectly, (a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or omit to state a material fact necessary

in order to make the statements made, in light of the circumstances under which they were made, not misleading, or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of a security4. These broad anti-fraud provisions make it unlawful to engage in fraud or misrepresentation in connection with the purchase or sale of a security5. While they do not speak expressly to insider trading, here is where the courts have exercised the authority that has led to the most important developments in insider trading law in the United States. The breadth of the anti-fraud provisions leaves much room for interpretation and the flexibility to meet new schemes and contrivances head on. Moral imperatives have driven the development of insider trading law in the United States. And the development of insider trading law has not progressed with logical precision as the reach of the anti-fraud provisions to cover insider trading has expanded and contracted over time. The anti-fraud provisions were relatively easy to apply to the corporate insider who secretly traded in his own company's stock while in possession of inside information because such behavior fit within traditional notions of fraud. Far less clear was whether Section 10(b) and Rule 10b-5 prohibited insider trading by a corporate
4

17 C.F.R. 240.10b-5. Section 17(a) of the Securities Act of 1933 reaches similar fraud in the initial offering or sale of a security.

"outsider." In 1961, in the case of In re Cady Roberts & Co6. the Securities and Exchange Commission, applying a broad construction of the provisions, held that they do. The Commission held that the duty or obligations of the corporate insider could attach to those outside the insiders' realm in certain circumstances. The Commission reasoned in language worth quoting: Analytically, the obligation [not to engage in insider trading] rests on two principal elements: first, the existence of a relationship giving access, directly or indirectly, to information intended to be available only for a corporate purpose and not for the personal benefit of anyone, and second, the inherent unfairness involved where a party takes advantage of such information knowing it is unavailable to those with whom he is dealing. In considering these elements under the broad language of the anti-fraud provisions we are not to be circumscribed by fine distinctions and rigid classifications. Thus, it is our task here to identify those persons who are in a special relationship with a company and privy to its internal affairs, and thereby suffer correlative duties in trading in its securities. Intimacy demands restraint lest the uninformed be exploited7. Based on this reasoning, the Commission held that a broker who traded while in possession of nonpublic information he received from a company director violated Rule 10b-5. The Commission adopted the "disclose or abstain rule": insiders, and those who would come to be known as "temporary" or "constructive" insiders, who possess material nonpublic information, must disclose it before trading or abstain from trading until the information is publicly disseminated. Several years later in the case of SEC v. Texas Gulf Sulphur Co. a federal circuit court supported the Commission's ruling in Cady, stating that anyone in possession of inside information is required either to disclose the information publicly or refrain from trading 8. The court expressed the view that no one should be allowed to trade with the benefit of inside information because it operates as a fraud all other buyers and sellers in the market9. This was the broadest formulation of prohibited insider trading. The 1980s were an extraordinary time in
6

40 SEC 907 (1961). Id. 401 F.2d 833 (2d Cir. 1968), cert. denied, 394 U.S. 976 (1969). Id. at 851-52.

this country's economic history, marked by a frenzy of corporate takeovers and mergers involving what then were dazzling amounts of money. In the 1980 case of Chiarella v. United States, the United States Supreme Court reversed the criminal conviction of a financial printer who gleaned nonpublic information regarding tender offers and a merger from documents he was hired to print and bought stock in the target of the companies that hired him10. The case was tried on the theory that the printer defrauded the persons who sold stock in the target to him. In reversing the conviction, the Supreme Court held that trading on material nonpublic information in itself was not enough to trigger liability under the anti-fraud provisions and because the printer owed target shareholders no duty, he did not defraud them. In what would prove to be a prophetic dissent, Chief Justice Burger opined that he would have upheld the conviction on the grounds that the defendant had "misappropriated" confidential information obtained from his employer and wrongfully used it for personal gain. In response to the Chiarella decision, the Securities and Exchange Commission promulgated Rule 14e-3 under Section 14(e) of the Exchange Act, and made it illegal for anyone to trade on the basis of material nonpublic information regarding tender offers if they knew the information emanated from an insider. The purpose of the rule was to remove the Chiarella duty requirement in the tender offer context where insider trading was most attractive and especially disruptive. A COMPARISON OF INSIDER TRADING PROVISIONS IN US AND INDIA. Securities Exchange Act of 1934 The 1934 Act addresses fraudulent practices including insider trading by corporate insiders in their own corporations stock as well as temporary or constructive insiders, who possess material non-public information. Section 16 relating to Directors, Officers, and Principal Stockholders stipulates that for the purpose of preventing the unfair use of information which may have been obtained by a beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized from any transaction of equity security of the issuer within six months, unless
10

The Securities and Exchange Board of India Act, 1992 Insider trading was addressed through the SEBI Act and SEBI (Insider Trading) Regulations, 1992 and later through Prohibition of Insider Trading) (Amendment) Regulations 2002. All directors or officers and designated employees of the company are subject to trading restrictions; a trading period called Trading Window, to be specified by the company, has to be closed when the Board takes price sensitive decisions. Further, while the Trading Window is open, insiders of the company will require prior approval the

445 U.S. 222 (1980).

such security was acquired in good faith in connection with a debt previously contracted, shall be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer.

Rule 10b5-1 on Trading on the Basis of Material Non-public Information in Insider Trading Cases prohibits the purchase or sale of a security of any issuer, on the basis of material non-public information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information. It states that a purchase or sale of a security of an issuer is on the basis of material non-public information about that security or issuer if the person making the purchase or sale was aware of the material nonpublic information when the person made the purchase or sale.

existing Compliance officer (the Company Secretary) for trading in shares or securities of the company, where the number of shares or securities to be traded will be above the minimum threshold limit, which is proposed to be 50,000 shares and 10,000 warrants, per person/per company during the period between two closures of Trading Window. As per Section 12A of the SEBI (Amendment) Act, 2002, dated 18th December 2002: No person should engage in insider trading; deal in securities while in possession of material or non-public information or communicate such material or non-public information to any other person, in a manner which is in contravention of the provisions of this Act or the rules or the regulations made thereunder. According to the (Prohibition of Insider Trading) (Amendment) Regulations 2002: No insider shall either on his own behalf or on behalf of any other person, deal in securities of a company listed on any stock exchange when he is in possession of any unpublished price sensitive information; or communicate, counsel or procure, directly or indirectly, any unpublished price sensitive information to any person who while in possession of such unpublished price sensitive information shall not deal in securities; no company shall deal in the securities of another company or associate of that other company while in possession of any unpublished price sensitive information. Insider was redefined to mean any person who, is or was connected with the company or is deemed to have been connected with the company, and who is reasonably expected to have access to unpublished price sensitive information in respect of securities of a company, or who has received or has had access to such unpublished price sensitive information. Connected persons include directors, officers and employees, and those having a professional or business relationship with the company. Deemed to be a connected person includes among others company under the same

management or group; a merchant banker, share transfer agent, registrar to an issue, debenture trustee, broker, portfolio manager, investment advisor; bankers; official or an employee of an SRO; relatives of the connected persons or deemed to be connected persons. Price sensitive information is defined as periodical financial results of the company; intended declaration of dividends (both interim and final); issue of securities or buy-back of securities; any major expansion plans or execution of new projects; amalgamation, mergers or takeovers; disposal of the whole or substantial part of the undertaking; any significant changes in policies, plans or operations of the company.

CONCLUSION.

The securities laws in India have been formulated and reformulated several times mostly in line with those of the US SEC; but despite significant advancement in the coverage of laws as well as improvement in supportive infrastructure, the regulator often finds itself helpless in preventing securities crimes and in protecting small investors when a scam brews. SEBI was indeed illequipped to take care of the scams in the mid-1990s, as it was balancing its role as a developer as well as regulator of the nascent capital market and did not have sufficient statutory powers to convict and punish the guilty. The problem with formulation of Indian laws seems to be that they are often sets of amendments made after finding some lacunae in the system, and as a result are always not clear/unambiguous. However, as they stand now the scope of the Indian laws seems to be quite pervasive and the problem appears to lie more in enforcing compliance. From an examination of various reports and analyses of market misconduct,40 one finds a number of pointers to SEBIs inability in this respect, despite there being numerous laws in this regard. The course of arguments in these cases distinctly points to the failure of the stock exchanges as SROs; SEBIs incapability to conduct consistent, proactive and thorough investigations with concrete evidences, possibly due to lack of clear audit trails; lack of transparency in investigations, as the detailed investigation reports are not made public; and the SATs lack of aggression in upholding the cause of small investors. The problem is multiplied by the fact that there are different sets of regulations under different regulatory bodies who are not as much in coordination as they are in a mature system like that in the US, where the SEC has full cooperation from the SROs, the Department of Justice (DoJ), and other criminal investigation services. Thus, while in the US, we find the SEC as well as the DoJ determined in their efforts to protect retail investors by aggressively redefining and reinterpreting laws as and when necessary; in India we find only revamping of regulations in response to market turmoil but no tenacious efforts to go against collusive nexus groups to bring justice to small investors. In this scenario, the regulator should at least take more aggressive preventive measures and effectively discourage frauds in the market through severe economic disincentives. Further, till now the regulator is mostly found to take action when securities prices are on a downward spiral; SEBI, however, should play a more proactive role in tracking and consistently investigating cases based on patterns in stock price movements and evidence of pressures building up in select stocks. BIBLIOGRAPHY.

URLs

SUCHISMITA BOSE, Securities Market Regulations Lessons from US and Indian Experience, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1140107 Rojina Thapa, INSIDER TRADING: A BRIEF OVERVIEW OF LEGAL REGIME IN USA, UK, INDIA AND NEPAL, http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1599212 Pankaj Singh, Insider Trading in India, http://works.bepress.com/pankaj_singh/2 http://investing.businessweek.com/research/stocks/ownership/ownership.asp? ticker=RIMM:US http://www.scu.edu/ethics/practicing/focusareas/business/insider-trading.html