Insider trading is the trading of a corporation’s stock or other securities (e.g. stock options or bonds) by individuals related to the company with potential access to non-public information about the company which is not disclosed to general public generally. In most countries trading by corporate insiders such as directors officers key employees and large shareholders may be legal, if this trading is done in a way that does not take advantage of non-public information which ultimately harm the investor’s confidence. However insider trading to refer to a practice in which an insider or a related party generally member of the company trades based on material non-public information obtained during the performance of the insider’s duties at the corporation, or otherwise in breach of a fiduciary or other relationship of trust and confidence or where the non-public information was misappropriated from the company. The illegal kind of Insider Trading is the trading in a security (selling or buying a stock) based on material information that is not available to the general public. It is prohibited by the US Securities and Exchange Commission (SEC) because it is unfair and would destroy securities markets by destroying investor confidence.
DEFINITION OF “INSIDER”
“Insider” means any person who is or was connected with the company or is deemed to have been connected with the company and is reasonably expected to have access, by virtue of such connection, to unpublished price sensitive information in respect of securities of the company , or who has received or has had access to such unpublished price sensitive information. “Unpublished price sensitive information” means any information which relates to the following matter or is of concern , directly or indirectly , to a company, and is not generally known or published by such company for general information , but which is published or known , is likely to materially affect the price of securities of that company in the market.
The following unpublished information can be considered as price sensitive:
1) Financial results of the company
2) Intended declaration of dividend
3) Issue of hares by way of public rights, bonus, etc
4) Any major expansion plans or execution of new projects
5) Amalgamation , mergers and takeovers
6) Disposal of the whole or substantially the whole of the undertaking
7) Such other information as may affect the earning of the company
8) Any changes in policies , plans or operations of the company
Connected persons include the following
1) Director of the company
2) Person deemed to be director of the company
3) Person occupying the position as an officer or an employees of the company
4) Person holding a position involving a professional or business relationship between himself and the company and who may reasonably be expected to have an access to unpublished price sensitive information relating to that company
Therefore a company insider is someone who has access to the important information about a company that affects its stock price or might influence investors’ decisions. This is called material information. A public company, if it is smart, limits the number of people who have access to material information and, therefore, are considered insiders. This is done for a couple of reasons. First, they want to limit the likelihood that anyone will “leak” the information. Second, being an insider means being subject to severe limits on when you can trade in the company stock, usually only the middle month of each quarter. The company’s senior management are insiders. So are some of the financial analysts. The top sales people usually also are insiders, although a regional sales manager who only sees his or her own region’s results may not be one. The individuals in Investor Relations and/or Public Relations who prepare the public announcements also are insiders. If the company is developing a new product that could be a big seller, the key people in the Research & Development team would also be considered insiders, provided the information they have is material. Other individuals who are not employees, but with whom the company needs to share material information, are also insiders. This list could include brokers, bankers, lawyers, etc.
WHY INSIDER TRADING
Insider trading may be attempted to
1) Benefit the company through unethical purchase and sale of the company’s shares by withholding price sensitive information , and
2) Benefit the individuals indulging in this unethical practice
CATEGORIES OF INSIDERS
These are persons connected with the company having access to price sensitive information. Broadly then can be
a) Primary insider e.g. directors, stock exchange, merchant bankers, registrars, brokers of the company, top executives, auditors, bank etc
b) Secondary insider i.e dealer, agents and other employes etc
c) Others having acess to price sensitive information due to their proximity with the company
WHY CONTROL INSIDER TRADING
Basic objective of controlling insider trading is to protect investors . other related objective are protecting the interest and reputation of the company, maintaining confidence in stock exchange operations, maintaining public confidence in the financial system as a whole.
Sections 10(b) and 14(e) of the Securities Exchange Act of 1934 give the SEC the authority to seek a court order requiring violators to give back their trading profits. The SEC can also ask the court to impose a penalty of up to three times the profit the violators realized from their insider trading. In addition to the financial penalties, there are criminal penalties. Many now feel those penalties are not strong enough and are working to increase them substantially. A bill in the US Senate, for instance, seeks to make defrauding shareholders a felony punishable by up to 10 years in prison.A penalty up to Rs 5 lakh can be imposed on an insider who indulge in dealing, communicating or counseling on matters relating to insider trading.
PROHIBITION ON DEALING, COMMUNICATING OR COUNSELLING ON MATTERS RELATING TO INSIDER TRADING
It has been laid down that no insider shall
1) Either on his own behalf or on behalf of nay other person, deal in securities of a company listed on any stock exchange on the basis of any unpublished price sensitive information; or
2) Communicate any unpublished price sensitive information to any person, with or without his request for such information, expect as required in the ordinary course of business or under any law; or
3) Counsel or procure any other person to deal in securities of any company on the basis of unpublished price sensitive information.
INVESTIGATION INTO THE AFFAIR OF INSIDERS
In case SEBI, on the basis of written information in its possession, is of the opinion that it is necessary to investigate and inspect the books of accounts, other records and documents of an insider, it may appoint an investigating authority
a) To investigate into the complaints received from investors, intermediaries or any other person on any matter having a bearing on the allegations of insider trading; and
b) To investigate knowledge or information in its possession to protect the interest of investors in securities against breach of these regulations
SECURITY ANALYSIS AND INSIDER TRADING
The analysts of security gather and compile information and they talk to corporate officers and other insiders and issue recommendations to traders. Thus their activities might easily cross legal lines if they are not careful about it . The CFA Institute has quoted in its code of ethics that analysts should make every effort to make all reports available to all the broker’s clients on a timely basis. Analysts should never report material nonpublic information, except in an effort to make that information available to the general public. Moreover analysts’ reports may contain a variety of information that is collected without violating insider trading laws.
EFFECTS OF INSIDER TRADING
THE EFFECT OF STOCK MARKET INSIDER TRADING
A distinction has to be made between trading by insiders and trading by insiders on the basis of nonpublic information. As Insiders are legally allowed to buy and sell stocks. The Securities and Exchange Commission (SEC) requires insiders to disclose their trades, and the financial newspapers report such trading. Investors find this information a source of valuable clues about companies. Insider trading puts a bad effect on stock market as people who earlier are willing to invest will now hesitate to invest as they will fear about the market fluctuation as market becomes more risky so as a result they would prefer not to invest.
MARKET AND PRICES
Stock prices too are generated by supply and demand. But supply and demand for stocks are not disembodied concepts. They are generated, obviously enough, by suppliers and demanders people with preferences, objectives, expectations, knowledge, and, therefore, plans. Part of what goes into an intention to buy or sell shares in a company is expectations about its future based on knowledge about its management, organization, and so on. These expectations are incorporated into the share price, and changes in expectations bring about changes in price. The more knowledgeable the participants, the more fully do prices perform their communications work. Nothing would undermine confidence in markets more than the belief that prices are out of date.
CIVIL PENALITIES FOR INSIDER TRADING
A. AUTHORITY TON IMPOSE CIVIL PENALITIES
1. JUDIIAL ACTIONS BY COMMISSION AUTHORIZED
According to judicial actions by commission authority whenever it will come to the notice of commission that any person has violated any provision and regulations there under by purchasing or selling a security or security-based swap agreement while in possession of material, nonpublic information in, or has violated any such provision by communicating such information through the facilities of a national securities exchange through a broker or dealer, and which is not part of a public offering by an issuer of securities.
A. This section bring an action in a United States court to seek and the court shall impose a civil penalty to be paid by a person who directly or indirectly controlled the person who committed such violation.
B. may bring an action in a United States court to seek and the court shall have jurisdiction to impose a civil penalty to be paid by the person who committed such violation
2. AMOUNT OF PENALTY FOR PERSON WHO COMMITS VIOLATION
The amount of the penalty which might be imposed on person who commits such violation shall be evaluated by the court in accordance of the facts and circumstances and will not exceed three times the profit gained or loss incurred as a result of such unlawful sale, purchase or communication.
B. AMOUNT OF PENALTY FOR CONTROLLING PERSON
The amount of penalty which might be imposed on the person who directly or indirectly control the person who commits such violation will be evaluated by the court in accordance of the facts and circumstances and will not exceed three times the amount of the profit gained or loss incurred as a result of such controlled person’s violation.
C. LIMITATION ON LIABILITY
1. LIABILITY OF CONTROLLING PERSONS
No controlling person shall be subject to a penalty under section (a)(1)(B) unless the Commission finds that.
A. the controlling person knew the fact that such controlled person was likely to engage in the act constituting the violation and failed to take required steps to prevent such act before they occurred.
B. such controlling person knowingly or unknowingly failed to establish or maintain any procedure required under the act of the Investment Advisers Act of 1940 and such failure substantially lead to the occurrence of the act constituting the violation.
2. ADDITIONAL RESTRICTIONS ON LIABILITY
No person shall be subject to penalty under subsection (a) of section solely by reason of employing another person who is subject to penalty under subsection unless such employing person is liable as controlling person (1) of this subsection. shall not apply to actions subsection (a) of this section.
D. AUTHORITY OF COMMISSION
The Commission by such rules regulations as it considers necessary in the public interest and primarily for the protection of investors may exempt in whole or some part unconditionally or for specific terms and conditions, any person from this section.
E. PROCEDURE FOR COLLECTION
1. PAYMENT OF PENALTY TO TREASURY
A penalty imposed under this section shall be payable into the Treasury of the United States except as otherwise provided in section 308
2. Collection of penalties
A person on whom such penalty is imposed shall fail to pay such penalty within the time prescribed in the court’s order then the Commission may refer the matter to the major Attorney General who will recover such penalty by action in the appropriate court.
3. REMEDY NOT EXCLUSIVE
The actions authorized by section might be brought in addition to some other actions that the Commission are entitled to bring.
4. JURISDICTION AND VENUE
For purposes of section 27 under this section shall be actions to enforce a liability or might be a duty created by this title.
5. STATUTE OF LIMITATIONS
No action will be included under this section for more than 5 years after the date of the sale or purchase. This section shall not be construed to bar limit in any manner action by the Commission or under any other provision of this title nor shall it in any manner any action to recover penalties, or to seek any other order regarding penalties, imposed in any action commenced between 5 years of such transaction.
F. Authority to award bounties to informants
Notwithstanding the provisions of this section there shall be paid from amounts imposed as a penalty under this section and recovered by the Commission or the Attorney General and not to exceed 10 percent of such amounts as the Commission deems appropriate to the person who provide information leading to the imposition of such penalty.Any determinations under this section including in what amount to make payments shall be in the solely decided of the Commission except that no such payment shall be made to any member or officer or employee of any appropriate regulatory agency.
by David D. Haddock
Since the depths of the Great Depression the Securities and Exchange Commission has always tried to prevent insider trading to become that common in U.S. securities markets. Insiders that can be a firm’s principal owners or directors, and management as well as its lawyers accountants that routinely possess information that is unavailable to the general public. This is Because some of that information can affect the prices of firm’s securities as soon as it becomes public and because of this insiders can profit by buying or selling in advance.
Even before the thirties insiders were held liable under the common law if they fraudulently or intentionally misled traders who were uninformed into accepting inappropriate prices. But the Securities Exchange Act of 1934 also forbid insiders from even profiting from superior information.
One of the most famous instances of insider trading was of Charles F. Fogarty’s who purchased Texas Gulf Sulphur shares during 1963-1964. Fogarty, who was an executive vice president of Texas Gulf already knew that the company had discovered a rich mineral lode in Ontario and that it will not be publicize before concluding leases for mineral rights. So In the meantime Fogarty decided to purchase 3,100 Texas Gulf shares and earned $125,000 -150,000.
The basic argument that is against insider trading is that the insiders should not be permitted or allowed to earn such profits at the expense of uninformed traders. Yet in all other markets where information is important for insider trading is well established and very widely accepted.
For example to explain it quite well mineral leases are normally and routinely bought by those better able as Texas Gulf Sulphur’s behavior exemplified than the sellers to evaluate a site’s potential and the Cattle buyers rely on superior estimates of what packers will pay when they will negotiate. And so it goes in markets for art or for real estate or for professional athletes who are indeed in practically every market with substantial variations in the prices. In all those markets a few buyers routinely profit from knowledge that most sellers do not possess, and a few sellers profit from knowledge that most buyers do not possess.
One reason frequently cited by policymakers and commentators is that insider trading undermines public confidence in the securities markets.If people fear that insiders will regularly profit at their expense, they will not be as willing to invest and frequent opportunities to trade at observable prices. Efficient securities market it is argued a require a to avoid frightening away speculators who wish to contribute to securities market liquidity and those investors who could invest their savings in markets and with less risk of insider predation.
Related to this argument is very important thing that is the harm that insider trading can cause to the specialists. A specialist is the one who the stock exchange appoints to ensure that a any buyer of a particular security that is listed by the exchange can find a seller. These specialists must sell or buy to any trader whose order cannot be discharged against any other orders arriving side by side.
For example if a buyer wants a hundred shares of IBM but no one wants to sell at that point of moment then the IBM specialist will sells from his inventory of IBM stock. The specialist charges a bid-ask spread to cover that cost. A bid-ask spread implies that a bit higher price is asked from someone who wishes to purchase a security than will be offered to someone who wishes to sell.
An inside trader can however can sell securities to the that specialist who is the one when only he knows that the securities will soon be worth less and will be of no use. After the price had fallen the insider is very well free to repurchase the securities again from that specialist for the lower price than the intrinsic value. If it happens the specialist bears loss. If insider trading reoccurs then the security’s specialist cannot continue without recouping the funds that have been lost to informed traders.
If in insider trading increased the spread and it would decrease a security’s attractiveness relative to certificates of deposit and government bonds and other assets. Raising new capital would definitely will be more costly for a firm whose securities are subjected to repeated insider trading. Therefore everything being equal insider trading makes it harder for a firm to raise money when opportunities to undertake new projects arise.
Of course insiders can also profit by borrowing and selling securities when the price is apt to fall. Some argue that insider trading more likely to harm companies because damage is easier to inflict. That argument turn has been countered major actions by a company require teams not individuals.
A number of financial economists and law professors take the position that insider trading ought to be legal. They put their case on the basic proposition that insider trading makes the stock market more efficient. the insider will have no incentive to trade on the information .If insider trading was legal insiders will bid the prices of stocks up or down in advance of the information being released. The result is that the price would more reflect all information both public and confidential about a company at any given time.
Besides specialists the other group systematically injured by insider trading are price-function traders those who trade securities because they believe the present price is inappropriate. If an insider secretly buys securities the result is increase in price. some price function traders believe that security is now overpriced they sell but soon regret their action. Few people have the expertise to realize trading profits repeatedly.
SIX PEOPLE CHARGES IN INDISER TRADING CASE
BILLIONAIRE RAJ RAJARATNAM, FIVE OTHERS CHARGED IN CASE
updated 7:40 p.m. ET Oct. 16, 2009
One of America’s wealthiest men was among six hedge fund managers and corporate executives arrested Friday in a hedge fund insider trading case that authorities say generated more than $25 million in illegal profits and was a wake-up call for Wall Street.
Raj Rajaratnam, a portfolio manager for Galleon Group, a hedge fund with up to $7 billion in assets under management, was accused of conspiring with others to use insider information to trade securities in several publicly traded companies, including Google Inc.
U.S. Attorney Preet Bharara told a news conference it was the largest hedge fund case ever prosecuted and marked the first use of court-authorized wiretaps to capture conversations by suspects in an insider trading case.
He said the case should cause financial professionals considering insider trades in the future to wonder whether law enforcement is listening.
Joseph Demarest Jr the head of the New York FBI office, said it was clear that “the 20 million dollars in illicit profits come at the expense of the average public investor.
The Securities and Exchange Commission, which brought separate civil charges, said the scheme generated more than $25 million in illegal profits.
Robert Khuzami, director of enforcement at the SEC said the charges show Rajaratnam’s secret of success was not genius trading strategies.
Galleon Group LLP said in a statement it was shocked to learn of Rajaratnam’s arrest at his apartment. We had no knowledge of the investigation before it was made public and we intend to cooperate fully with the relevant authorities.
Rajaratnam, 52, was ranked No. 559 by Forbes magazine this year among the world’s wealthiest billionaires, with a $1.3 billion net worth.
According to the Federal Election Commission. he is a generous contributor to Democratic candidates and causes. The FEC said he made over $87,000 in contributions to President Barack Obama’s campaign, the Democratic National Committee and various campaigns on behalf of Hillary Rodham Clinton, U.S. Sen. Charles Schumer and New Jersey U.S. Sen. Robert Menendez in the past five years. The Center for Responsive Politics, a watchdog group, said he has given a total of $118,000 since 2004 all but one contribution, for $5,000, to Democrats.
The Associated Press has learned that even before his arrest, Rajaratnam was under scrutiny for helping bankroll Sri Lankan militants notorious for suicide bombings.
Papers filed in U.S.District Court in Brooklyn allege that Rajaratnam worked closely with a phony charity that channeled funds to the Tamil Tiger terrorist organization. Those papers refer to him only as Individual B. But U.S. law enforcement and government officials familiar with the case have confirmed that the individual is Rajaratnam.
At an initial court appearance in U.S. District Court in Manhattan, Assistant U.S. Attorney Josh Klein sought detention for Rajaratnam, saying there was “a grave concern about flight risk” given Rajaratnam’s wealth and his frequent travels around the world.
His lawyer, Jim Walden, called his client a “citizen of the world,” who has made more than $20 million in charitable donations in the last five years and had risen from humble beginnings in the finance profession to oversee hedge funds responsible for nearly $8 billion.
Walden promised “there’s a lot more to this case” and his client was ready to prepare for it from home. Rajaratnam lives in a $10 million condominium with his wife of 20 years, their three children and two elderly parents. Walden noted that many of his employees were in court ready to sign a bail package on his behalf.
NOMURA CAUGHT IN INSIDER TRADING SCANDAL
By Emi Emoto and Aiko Hayashi
TOKYO Nomura Holdings, Japan’s largest brokerage house, said on Tuesday that it had fired an employee at the centre of an insider trading ring and warned the fallout could harm its business.
The insider trading scandal, the broker’s second in five years, comes on top of falling profits and $1.4 billion in subprime losses, after which the firm replaced its CEO.
Recently appointed CEO Kenichi Watanabe bowed in apology for the scandal, which drew harsh comments from government officials and sent the firm’s share price down 3.9 percent.
It also led to a drop-off in business at the firm on Tuesday as some institutional investors stopped placing orders due to compliance concerns, a source on the Nomura trading floor said.
Watanabe said the employee at the centre of the probe had been dismissed for violating company rules and warned the case would have an unspecified impact on earnings.
It was significant that we were involved in something that hurt the brokerage industry he said, adding he saw the case as an individual matter, rather than a sign of wider problems at his firm.
The employee at the centre of the scandal worked in the M&A advisory department where he repeatedly used insider information about merger and acquisition deals, a source with direct knowledge of the matter said.
The 30-year old, from Nomura’s Hong Kong unit, was suspected of giving information on merger deals to two acquaintances who then profited on stock trades, Kyodo News agency said.
N.J MAN ADMITS INSIDER TRADING
By Carrie Johnson
Washington Post Staff Writer
Thursday, June 17, 2004; Page E03
In this case a new jersey insurance broker committed that he is guilty to insider trading using that information that he had received from the husband of a secretary who took care of mergers and acquisition at a new York law firm.
Ronald A. Manzo, 60, also lied to regulators at the Securities and Exchange Commission who were investigating purchases of seven stocks in 1998 and 1999, federal prosecutors in New York said.He earned more than $980,000 through the scheme, they said.
Manzo could be sentenced to 40 years in prison and be fined millions of dollars.
Prosecutors unsealed a related guilty plea by Fiore J. Gallucci, who allegedly passed information about pending deals from his wife, an assistant at Skadden, Arps, Slate, Meagher & Flom LLP, to Manzo to curry favor with him.
Gallucci, 62, received some money from Manzo but did not trade in the stocks himself. His wife, who no longer works at Skadden. did not know he was improperly sharing the information and was not charged with breaking the law.
Separately, the SEC sued Gallucci, Manzo and Gary B. Taffet, a former chief of staff to New Jersey Gov. James E. McGreevey (D), for insider trades that resulted in $3 million in profit. The SEC said that Manzo tipped off Taffet using the information he had acquired from Gallucci. Gallucci and Manzo are in negotiations to settle the civil charges but Taffet, who was not charged with a crime, is fighting the allegations.
“We are disturbed at the SEC’s decision to bring charges against Mr. Taffet, whose stock trading was not based on illegally obtained information.The reality is that Mr. Taffet did not know or deal with any insider at the companies he traded, nor did he knowingly disclose nonpublic information to any third party.
Managers at Skadden, one of the most prominent dealmaking law firms in the world, said they cooperated with the investigation. Regulators said the practice of insider traders using information gathered from law firm employees is not uncommon.
The crux of this case is that people who are in possession of material nonpublic information for legitimate reasons need to carefully consider to whom they can entrust this information.