Senem Demirkan

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Published on November 21, 2007

Author: Dennison


INSIDER TRADING REGULATIONS IN U.S. AND A PROPOSAL FOR TURKEY:  INSIDER TRADING REGULATIONS IN U.S. AND A PROPOSAL FOR TURKEY WHAT IS INSIDER TRADING ?:  WHAT IS INSIDER TRADING ? There is no statutory definition Encompasses both legal and illegal activity Our discussion: illegal one When those with confidential information use that special advantage to gain profit or avoid losses on the stock market Damages the source of information and other typical investors WHO ARE INSIDERS?:  WHO ARE INSIDERS? Not just corporate directors, officers or major shareholders A broader range of individuals; A partner in a law firm representing the acquiring company in a hostile takeover bid who traded in target company stock. A Wall Street Journal columnist who traded prior to publication of his column in the stock of companies he wrote about. A psychiatrist who traded on the basis of information learned from a patient. A financial printer who traded in the stock of companies about which he was preparing disclosure documents. WHY US REGULATIONS?:  WHY US REGULATIONS? Insider trading has started to cross borders EC Directive provides that members may enact laws more stringent than set out in the Directive U.S. has the most comprehensive and detailed regulations against insider trading INSIDER TRADING DEBATE:  INSIDER TRADING DEBATE Opposing Views Form of compensation for employees No statutory definition, unfairly penalize traders Enforcing insider trading not cost effective Smooth prices and more efficient market Companies may prohibit it in the contract REASONS FOR REGULATING INSIDER TRADING:  REASONS FOR REGULATING INSIDER TRADING Unfair practice to public investors Prohibiting it promotes efficiency of markets Property of material information belongs to the corporation for business purposes. US REGULATION OF INSIDER TRADING:  US REGULATION OF INSIDER TRADING Section 16 of the 1934 Securities Exchange Act SEC Rule 10b-5 Classical Theory Misappropriation Theory SEC Rule 14e-3 Section 16 of the 1934 Act:  Section 16 of the 1934 Act Designed to watch more closely the trading of corporate insiders on their corporation’s stock. Covers officer, directors, and 10% equity holders §16(a) -> Disclosure Provision ->Every corporate insider should report holdings and transactions. Facilitates §16(b) §16(b) -> Recovery of Short-swing Profits ->These insiders must disgorge profits from selling stock held less than six months Rule 10b-5:  Rule 10b-5 Promulgated in 1942 under §10(b) of the Securities Exchange Act of 1934 Covers material corporate misstatements or non diclosures, insider trading, and corporate mismanagement cases regarding transactions in shares or other securities Today a major weapon to curb insider trading, as a catch-all anti-fraud provision Rule 10b-5:  Rule 10b-5 It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of mails, or of any facility of any national securities exchange, to employ any device, scheme, or artifice to defraud, to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or 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 any security. Rule 10b-5:  Rule 10b-5 Legal Theories of Rule 10b-5 Traditional Theory Misappropriation Theory Traditional Theory of Insider Trading:  Traditional Theory of Insider Trading Also known as “disclose or abstain rule” Insiders, acting on behalf of their company or on their own behalf, have a fiduciary duty to the company’s shareholders either to disclose material, nonpublic information before trading or to abstain from trading. Developed through major cases of In re Cady, Roberts & Co (1961) SEC v. Texas Gulf Sulphur Co. (1968) Chiarella v. United States (1980) -> Rule 14e-3 Dirks v. SEC (1984)-> Regulation FD Traditional Theory of Insider Trading:  Traditional Theory of Insider Trading A person violates Rule 10b-5 by buying or selling securities on the basis of material nonpublic information if she owes a fiduciary or similar duty to the other party to the transaction she is an insider of the corporation in whose shares she trades, and thus owes a fiduciary duty to the corporation’s shareholders she is a tippee who received her information from an insider of the corporation and knows or should know, that the insider breached a fiduciary duty in disclosing the information to her Misappropriation Theory of Insider Trading:  Misappropriation Theory of Insider Trading First mentioned in Chiarella case In Carpenter v. United States (1986) case Supreme Court split 4 to 4 Clearly accepted by the Supreme Court in 1997, United States v. O’Hagan case Misappropriation Theory of Insider Trading:  Misappropriation Theory of Insider Trading A person violates Rule 10b-5 if Misappropriates material nonpublic information by breaching a duty arising out of a relationship of trust or confidence to the source of information and uses that information in a securities transaction regardless of whether he owed any duty to the shareholders of the traded stock Misappropriation Theory of Insider Trading:  Misappropriation Theory of Insider Trading Misappropriating information is : obtaining by improper means or converting it to his/her own benefit even if properly obtained According to Rule 10b5-2 a duty of trust or confidence exists when: a person expressly agrees to maintain information in confidence; the facts and circumstances of the relationship as a whole show a history, pattern or practice of mutual sharing of confidences; or a person receives information from a spouse, parent, child or sibling, unless the person receiving the information can show that, under the facts and circumstances of the family relationship, no reasonable expectation of confidence existed. Scope of Rule 10b-5:  Scope of Rule 10b-5 Applies to any purchase or sale by any person of any security Fall within the jurisdictional reach “In connection with the purchase or sale of a security” To recover damages reliance (transaction causation) must be established (not for SEC) The plaintiff must also be able to prove “loss causation” Rule 10b5-1 presumes that someone who trades while in possession of material non public information has in fact used the information in making the trade. Statute of limitations is one year after discovery and three years after violation. Tipper &Tippee liability applies to both theories. Contact between them should be established. Rule 14e-3:  Rule 14e-3 Prohibits insider trading during a tender offer and thus supplements Rule 10b-5. Rule 14e-3(a) prohibits anyone, except the bidder, who possesses material, nonpublic information of a tender offer, from trading the target’s securities Rule 14e-3(d) is a preventive provision complementing Rule 14e-3(a). Prohibits anyone with any form or connection to a tender offer from tipping material, nonpublic information. Is not premised on breach of a fiduciary duty SEC Enforcement of the Rule 10b-5 and Rule 14e-3:  SEC Enforcement of the Rule 10b-5 and Rule 14e-3 Permanent or a temporary injunction Disgorgement of profits (most commonly used) Correction of misleading statements Disclosure of material information Cease and desist orders Disciplinary sanctions and civil penalties for securities market professionals Bounty provisions by the §20A of ITSFEA §21A -> civil monetary penalty of up to three times the profit gained or loss avoided by a person who violates Rules 10b-5 and 14e-3 Private Enforcement of the Rule 10b-5 and Rule 14e-3:  Private Enforcement of the Rule 10b-5 and Rule 14e-3 Under §20A’s express remedy, contemporaneous traders are permitted to sue for a disgorgement of the improper profits (or loss avoided). SEC’s power increased with private actions. A plaintiff in a private damage action must have been purchaser or seller of the security forming the basis of the complaint and transaction causation usually presumed but loss causation is required. FRONT RUNNING:  FRONT RUNNING A broker trades on a security while in possession of material non-public information concerning the imminent block transaction of one of his customers The SEC has suggested that the exchanges designate front-running as a practice “inconsistent with just and equitable principles of trade” SEC’s current regulation is through its oversight authority over the self-regulatory organizations (SROs); NYSE, AMEX, NASDAQ. INVESTIGATION, REGULATION, ENFORCEMENT COMPARED:  INVESTIGATION, REGULATION, ENFORCEMENT COMPARED Comprise at least about 10% of the enforcement actions of SEC. As of 24.02.2003 only 10 out 820 suits of Capital Markets Board of Turkey were related to insider trading. Development of capital markets is usually matched with new insider trading schemes Transnational insider trading cases United States has the most extensive insider trading regulations INVESTIGATIONS COMPARED:  INVESTIGATIONS COMPARED The same for both companies Sources of cases Informants Anonymous Calls Market professionals Disgruntled employees Competitors Market Surveillance Investigative Steps Analyze market trading records Obtain chronologies Conduct Interviews Analyze Monthly Account Statements Analyze Telephone Records Chart Out Connection b/w Insiders & Traders Take Testimony Follow the Money Create and Update “Names” and Phones” Databases REGULATION AND ENFORCEMENT IN TURKEY:  REGULATION AND ENFORCEMENT IN TURKEY Only specific regulation against insider trading is Article 47/A-1 of CML: “To benefit to his/her self-owned property or to eliminate a loss so as to damage equal opportunity among the participants in capital markets with the aim of gaining benefit for himself/herself or for third parties by making use of non-public information which will be able to affect the values of capital market instruments in insider trading. The chairman and members of the Board of Directors, directors, internal auditors and other staff of the issuers within the scope of Article 11, capital market institutions or of the subsidiary or dominant establishment, and apart from these the persons who are in a position to be have information while carrying out their professions or duties, and the persons who are in a position to have information because of their direct and indirect relations with these.” REGULATION AND ENFORCEMENT IN TURKEY:  REGULATION AND ENFORCEMENT IN TURKEY In summary according to the CML; Scienter is required, The scope of possible defendants is very broad, A gain of profit or avoidance of loss is required, Materiality depends on the ability of the non-public information to affect the value of the capital market instruments, CMB may request a legal prosecution and/or may prohibit the violators temporarily or permanently from transactions on exchanges and other organized markets (According to Article 46/i of the CML). The criminal penalty for the violation of this Article is a prison sentence from two to five years and a heavy pecuniary fine from 10 billion TL up to 25 billion; If 2 or more cases are combined then min 3 max 6 years of prison. No upper limit for pecuniary punishment, but not less than threefold of the benefits REGULATION AND ENFORCEMENT COMPARED:  REGULATION AND ENFORCEMENT COMPARED Differences Philosophy different; in U.S. definition deduced from court interpretations; an emphasis on breach of fiduciary duty Bounty system In U.S. insider trading seen as a private fraud <-> In Turkey public fraud harming markets; no civil actions only criminal Subpoena Power In Turkey; no regulations like 14e-3, Regulation FD and no specific front-running rules. REGULATION AND ENFORCEMENT COMPARED:  REGULATION AND ENFORCEMENT COMPARED Similarities In Turkey; there is a public disclosure requirement similar to §16(a) Securities do not have to be traded or listed on an exchange in order to attach a liability to an insider trader, in contrast to the case in many European countries CMB’s power to temporarily (for 2 years) or permanently prohibit the violator from transacting on exchanges and other organized markets WHAT IF FAMOUS CASES HAPPENED IN TURKEY?:  WHAT IF FAMOUS CASES HAPPENED IN TURKEY? A PROPOSAL FOR TURKEY:  A PROPOSAL FOR TURKEY The word “value” in Article 47/A-1 can be changed as “value and/or price” The requirement for a profit gain or avoidance of a loss can be eliminated An addition may be made to Article 47/A of the CML, in order to provide CMB with pecuniary punishments for violations of insider trading Adding bounty provisions Under CMB’s oversight, Association of the Capital Market Intermediary Institutions of Turkey may prohibit front-running by enacting a uniform rule to be applied in all exchanges and organized markets. CMB may promulgate a regulation similar to Regulation FD

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