It’s the 1980s all over again – shoulder pads, synthesizers, bomber jackets and insider trading. But in 2016, the defendant in the biggest insider trading case of the year isn’t a high-profile Wall Street denizen like Ivan Boesky or “junk bond king” Michael Milken: The main character in this story is a Chicago grocery wholesaler named Bassam Salman. Even if Salman’s case lacks the glitz of other insider trading cases, though, both sides agree that the legal stakes in his case are high. Salman and his attorneys contend that, if his conviction for trading on third-hand information passed to him by an insider’s relative is allowed to stand, the federal government will essentially have free rein to prosecute whenever an insider passes on information to a friend or relative. The federal government counters that a ruling for Salman could exacerbate existing inequities in the stock market by making corporate insiders even more likely to pass on confidential information to friends and family. And lurking in the background is the broader issue, about which the justices have previously expressed concern, of overcriminalization – whether the federal criminal laws are being used to target conduct that Congress did not intend to make a crime.
In 2005, Salman’s sister married Maher Kara, an investment banker at Citigroup. Maher worked primarily in New York, while his older brother, Michael, ran a hazardous waste business in Chicago. Over a period of several years, Maher gave Michael confidential information that he obtained through his job at Citigroup; Michael then both traded on the information and passed on tips to Salman, who used the information to buy stock in several companies. The information proved lucrative, netting Salman hundreds of thousands of dollars. But the trades also caught the attention of the federal government, which charged Salman with insider trading. He was convicted and sentenced to three years in prison.
In 1983, the Supreme Court ruled in an insider trading case involving a “tippee” – someone who receives confidential information from an insider and then uses the information to trade. The court explained that tippees are not always liable for violating insider trading laws. Rather, tippee trading is banned when the insider violates his duty to shareholders by disclosing the information. And that in turn, the court reasoned, depends on whether the insider receives “a direct or indirect personal benefit from the disclosure.”
The issue before the court in Salman’s case is what constitutes the kind of “personal benefit” for Maher, the insider who passed on the information, that would subject Salman, as the “tippee,” to liability under the insider trading laws. Salman argues for a bright-line rule: A “personal benefit” is limited to a financial gain for the insider. Under this rule, Salman continues, he could not be convicted of insider trading, because he got his inside information from Michael, who didn’t pay Maher or give him anything else in exchange. Moreover, Maher gave the information to Michael only after Michael promised that he wouldn’t use it to trade on the stock market and wouldn’t provide it to anyone else; Maher’s only motive, Salman suggests, “was to get a bullying brother off his back.”
In the federal government’s view, although a “personal benefit” does include a pecuniary gain, it can also extend to “a gift of confidential information to a trading relative or friend.” The relevant question, for the government, is whether the disclosure of information serves a corporate or personal purpose: If it serves a personal purpose, then that is all that matters, and the government does not have to show that the insider benefited financially from the disclosure. Such a rule makes sense, the government maintains, because there is no real difference between an insider trading on information and giving the proceeds to someone else and giving inside information to someone else so that the recipient can trade on it. The government goes on to point out that its rule also recognizes that an insider can gain significant non-financial benefits from passing on confidential information – for example, the information could be used to help an aging parent, reward a household employee, or simply impress the tippee. By contrast, the government argues, Salman’s proposed rule would make insiders more likely to pass on inside information – “especially if they could secure in return a non-pecuniary benefit, such as romantic favors from a mistress or a college-admissions preference for their children.”
Salman also argues that a rule requiring a financial gain for the insider would address two constitutional concerns. The first of these involves the proper division of responsibility between Congress and the courts. Salman maintains that because it is the legislature’s job, rather than that of the courts, to define a crime and prescribe a punishment, courts should interpret criminal laws narrowly. That is particularly true here, he points out, when Section 10(b) of the Securities Exchange Act, the statute used to combat insider trading, does not say anything at all about insider trading: It bars “only ‘manipulative’ and ‘deceptive’ conduct in connection with the purchase or sale of securities,” and, Salman adds, “there is nothing inherently manipulative or deceptive about insider trading.”
The federal government counters that the bar on insider trading rests squarely within the text of Section 10(b). Insider trading, the government explains, “most certainly does involve deception—it involves the failure to tell a party to whom the tipper or trader owes a fiduciary or similar duty that confidential information … is being taken for personal use.” And Congress has implicitly endorsed the use of Section 10(b) to fight insider trading: Since the Court’s 1983 ruling on insider trading, the government observes, “Congress has twice amended Section 10(b) without modifying the Court’s standard.”
Raising a second constitutional concern, Salman suggests that the government’s rule is so vague that it could easily violate the Constitution’s guarantee of due process, because it doesn’t provide enough notice about what kind of conduct will subject insiders and tippees to liability. Even “the satisfaction derived from giving a gift” could qualify as a “personal benefit” under the government’s theory, he argues. And in this case, he notes, Maher hardly gained satisfaction from his disclosures; instead, they caused him “anxiety.”
The federal government concedes that Section 10(b) is “unquestionably broad,” but it insists that it is “intentionally so – to capture all kinds of fraud.” And there is no ambiguity, it maintains, about what the insider trading law does or does not permit: Courts and individuals can easily figure out whether inside information was disclosed for a corporate purpose or a personal one – which is exactly why the court drew that line in 1983. Indeed, the government adds, in this case Maher – the insider – “harbored no doubt that his” disclosure of inside information to his brother violated the law and also knew that Michael was using the inside information to trade. The government downplays Salman’s concern that a government win in this case will give prosecutors “boundless discretion to prosecute the exchange of inside information,” extending liability to the insider’s “mere casual acquaintances” and even to tippees who don’t actually know the insider and may not be aware of the insider’s motives. It emphasizes that in insider trading cases the government must also prove that the defendant acted “willfully.” In this case, for example, the prosecution would have had to prove that Salman knew – which, the government contends, he did – that Maher violated his duty to shareholders “by disclosing material, nonpublic information for a personal benefit—a significant limitation on tippee liability.”
The federal government has a somewhat unlikely ally in the case: the activist group Occupy the SEC. In a “friend of the court” brief, the group emphasizes that, in recent decades, “a quarter of mergers and acquisitions have suffered from insider trading.” This matters, the group adds, because almost half of the increase in a stock’s value as a result of a planned merger or takeover happens before the merger or acquisition becomes public knowledge – further evidence that “the securities markets are rigged in favor of the well-connected and the influential.” A ruling against the government in this case, the group concludes, “could handcuff the government in its ability to root out such market inequities.”
Salman also has an unusual source of support in Mark Cuban, the billionaire owner of the Dallas Mavericks. Cuban explains that he was indicted on insider trading charges and spent millions defending himself, only to be found not guilty “after only four hours of deliberations” by jurors. He cautions that most people will lack the resources to fight insider trading charges on such a large scale and will instead have to decide “whether to succumb to a settlement despite not believing that the conduct violated the law.” And he pushes back against the suggestion that insider trading exacerbates inequities in the stock market, observing that some scholars “have gone so far as to assert that a ban on insider trading actually has a detrimental effect on the market.”
Salman’s case is one of the five cases on the Supreme Court’s docket for the October Term 2016 that were granted in January, before the death of Justice Antonin Scalia. As I explained in an earlier post, three of those cases have not yet been scheduled for oral argument, possibly because the justices are hoping that a ninth justice will join the court and prevent a 4-4 tie, which would leave the decision below intact. The fact that Salman’s case has been scheduled for oral argument at least suggests that the justices do not necessarily view this case as a close one, but we will know more after the court hears oral arguments on October 3. A decision in the case is likely next year.