BREAKING STORY: 2 Circuit Overturns Newman and Chiasson Insider Trading Convictions

December 10, 2014


READ: FULL-TEXT 2nd Circuit Opinion

Stripped to its basics, federal prosecutors had charged that portfolio managers Anthony Chiasson and Todd Newman; and analysts Sam Adondakis, Jesse Tortora, Jon Horvath and Danny Kuo shared inside information about such firms as Dell and Nvidia with each other, and the analysts forwarded their findings on to their portfolio managers.  

At trial, Newman was convicted of one count of conspiracy to commit securities fraud, and four counts of securities fraud. Newman was sentenced on May 2, 2013 to 54 months' imprisonment. Horvath and Kuo pled guilty to one count of conspiracy to commit securities fraud and two counts of securities fraud. Tortora, Adondakis,   and Goyal pled guilty to one count of conspiracy to commit securities fraud and one count of securities fraud and they are awaiting sentencing.  

Following a six-week jury trial, Chiasson was convicted of one count of conspiracy to commit securities fraud and five counts of securities fraud as part of an insider trading scheme that netted over $70 million in illegal profits.   On May 13, 2013, Chiasson was sentenced in Manhattan federal court to 78 months in prison, one year of supervised release, and ordered to pay a $5 million fine.  

Second Circuit Appeal

United States of America, Appellee, v. Todd Newman and Anthony Chiasson, Defendants-Appellants  - AND -Jon Horvath, Danny Kuo, Hyung G. Lim, Michael Steinberg, Defendants (2Cir, 13-CR-1837 and 12-CR-1917, December 10, 2014)

Defendants‐appellants Todd Newman and Anthony Chiasson appeal from judgments of conviction entered on May 9, 2013, and May 14, 2013, respectively, in the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) following a six‐week jury trial on charges of conspiracy to commit insider trading and insider trading in violation of 18 U.S.C. § 371, sections 10(b) and 32 of the Securities Exchange Act of 1934,SEC Rules 10b‐5 and 10b5‐2, and 18 U.S.C. § 2.      Because the Government failed to present sufficient evidence that the defendants willfully engaged in substantive insider trading or a conspiracy to commit insider trading in violation of the federal securities laws, we reverse Newman and Chiasson's convictions and remand with instructions to dismiss the indictment as it pertains to them with prejudice.

Page 2 of Opinion

We agree that the jury instruction was erroneous because we conclude that, in order to sustain a conviction for insider trading, the  Government must prove beyond a reasonable doubt that the tippee  knew that an insider disclosed confidential information and that he  did so in exchange for a personal benefit. Moreover, we hold that the evidence was insufficient to sustain a guilty verdict against  Newman and Chiasson for two reasons. First, the Government's  evidence of any personal benefit received by the alleged insiders  was insufficient to establish the tipper liability from which  defendants' purported tippee liability would derive.Second, even  assuming that the scant evidence offered on the issue of personal  benefit was sufficient, which we conclude it was not, the  Government presented no evidence that Newman and Chiasson  knew that they were trading on information obtained from insiders in violation of those insiders' fiduciary duties Accordingly, we reverse the convictions of Newman and Chiasson on all counts and remand with instructions to dismiss the indictment as it pertains to them with prejudice.

Page 4 of the Opinion

Bill Singer's Comment: The Court admonishes that in future tippee cases of this ilk, the government will have to prove beyond a reasonable doubt  that an insider disclosed confidential information AND did so for personal benefit. I underscore the criminal burden of proof not to suggest that the Court is enunciating a new standard (which it is not) but merely to note the high burden attendant to proving both the wrongful disclosure of inside information by a tipper and that it was done for a personal benefit. Assuming that such a burden can be satisfied, that prosecutor must then prove pursuant to that same daunting standard that the tippee knew he/she was trading on such inside information.

The insider trading case law, however, is not confined to insiders or misappropriators who trade for   their own accounts.   Id. at 285. Courts have expanded insider trading liability to reach situations where the insider or misappropriator in possession of material nonpublic information (the "tipper") does not himself trade but discloses the information to an outsider (a "tippee") who then trades on the basis of the information before it is publicly disclosed.    See Dirks, 463 U.S. at 659.   The elements of tipping liability are the same, regardless of whether the tipper's duty arises under the "classical" or the "misappropriation" theory.   Obus, 693 F.3d at 285‐86.  

Page 10 - 11 of the Opinion

The Government concedes that tippee liability requires proof of a personal benefit to the insider. Gov't Br. 56.   However, the Government argues that it was not required to prove that Newman and Chiasson knew that the insiders at Dell and NVIDIA received a personal benefit in order to be found guilty of insider trading.   Instead, the Government contends, consistent with the district court's instruction, that it merely needed to prove that the "defendants traded on material, nonpublic information they knew insiders had disclosed in breach of a duty of confidentiality . . . ." Gov't Br. 58.  

Pages 12-13 of the Opinion

While we have not yet been presented with the question of whether the tippee's knowledge of a tipper's breach requires knowledge of the tipper's personal benefit, the answer follows naturally from Dirks. Dirks counsels us that the exchange of confidential information for personal benefit is not separate from an insider's fiduciary breach; it is the fiduciary breach that triggers liability for securities fraud under Rule 10b‐5. For purposes of insider trading liability, the insider's disclosure of confidential information, standing alone, is not a breach.      Thus, without establishing that the tippee knows of the personal benefit received by the insider in exchange for the disclosure, the Government cannot meet its burden of showing that the tippee knew of a breach.

Page 14 of the Opinion

In light of Dirks, we find no support for the Government's contention that knowledge of a breach of the duty of confidentiality without knowledge of the personal benefit is sufficient to impose criminal liability.   Although the Government might like the law to be different, nothing in the law requires a symmetry of information in the nation's securities markets.    The Supreme Court explicitly repudiated this premise not only in Dirks, but in a predecessor case, Chiarella v. United States.   In Chiarella, the Supreme Court rejected this Circuit's conclusion that "the federal securities laws have created a system providing equal access to information necessary for reasoned and intelligent investment decisions . . . . because [material non‐public] information gives certain buyers or sellers an unfair advantage over less informed buyers and sellers."   445 U.S. at 232.    The Supreme Court emphasized that "[t]his reasoning suffers from [a] defect. . . . [because] not every instance of financial unfairness constitutes fraudulent activity under § 10(b)."      Id.      See also United States v. Chestman, 947 F.2d 551, 578 (2d Cir. 1991) (Winter, J., concurring) ("[The policy rationale [for prohibiting insider trading] stops well short of prohibiting all trading on material nonpublic information. Efficient capital markets depend on the protection of property rights in information.      However, they also require that persons who acquire and act on information about companies be able to profit from the information they generate . . . .").    Thus, in both Chiarella and Dirks, the Supreme Court affirmatively established that insider trading liability is based on breaches of fiduciary duty, not on informational asymmetries.   This is a critical limitation on insider trading liability that protects a corporation's interests in confidentiality while promoting efficiency in the nation's securities markets.  

Pages 15-16 of the Opinion

In sum, we hold that to sustain an insider trading conviction against a tippee, the Government must prove each of the following elements beyond a reasonable doubt: that (1) the corporate insider was entrusted with a fiduciary duty; (2) the corporate insider breached his fiduciary duty by (a) disclosing confidential information to a tippee (b) in exchange for a personal benefit; (3) the tippee knew of the tipper's breach, that is, he knew the information was confidential and divulged for personal benefit; and (4) the tippee still used that information to trade in a security or tip another individual for personal benefit.      See Jiau, 734 F.3d at 152‐53; Dirks, 463 U.S. at 659‐64.     

Page 18 of the Opinion

In short, the bare facts in support of the Government's theory of the case are as consistent with an inference of innocence as one of guilt.   Where the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of innocence as a theory of guilt, that evidence necessarily fails to establish guilt beyond a reasonable doubt.   See United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002).      Because the Government failed to demonstrate that Newman and Chiasson had the intent to commit insider trading, it cannot sustain the convictions on either the substantive insider trading counts or the conspiracy count.    United States v. Gaviria, 740 F.2d 174, 183 (2d Cir. 1984) ("[W]here the crime charged is conspiracy, a conviction cannot be sustained unless the Government establishes beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute.") (internal quotation marks omitted). Consequently, we reverse Newman and Chiasson's convictions and remand with instructions to dismiss the indictment as it pertains to them.  

Pages 27-28 of the Opinion

In response to the 2Cir's Opinion, U.S. Attorney Preet Bharara published the following comment:

Today's decision by the Court of Appeals interprets the securities laws in a way that will limit the ability to prosecute people who trade on leaked inside information. The decision affects only a subset of our recent cases, and in those cases - as in all our criminal cases - we investigated and prosecuted misconduct based on our good faith assessment and understanding of the facts and the law that existed at the time. We are still assessing the Court's decision, which appears in our view to narrow what has constituted illegal insider trading, and are considering our options for further appellate review.

Also READ:  Did Preet Bharara Blink In The Fight Against Insider Trading? ( Blog,  May 13, 2013)