Insider Trading Cases: Likely to Be Litigated in 2013 and Beyond

April 11, 2013

BY DOUGLAS KOFF & JOSHUA BENNETT

Combatting insider trading has been a high priority for the government since the 2008 financial crisis. From 2009 to 2012, the Securities and Exchange Commission (SEC) filed 168 civil insider trading actions, more than in any other three-year period in the agency's history.1 In that same period, Manhattan U.S. Attorney Preet Bharara charged 72 people with counts of criminal insider trading, including some of the highest profile insider trading defendants in decades.2 Last year alone, the Financial Industry Regulatory Authority (FINRA) referred 347 insider trading cases to various enforcement agencies—a record year for the self-regulatory organization.3 This unprecedented wave of cases occasions a review of several key insider trading issues likely to be litigated in 2013 and beyond—some new and some longstanding. To that end, this article addresses: (i) the current scope of insider trading liability as to "non-insiders"; (ii) the government's recent use of wiretap evidence in insider trading trials; and (iii) the status of the long-standing "use" vs. "possession" debate concerning the necessary standard to establish intent in insider trading cases.

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