Insider Trading Case Collapses Over Personal Benefit Proof

September 15, 2015

As I have long opined, I am no fan of insider trading cases -- but, as I have also consistently noted, I accept the fact that insider trading is a pernicious evil that saps the confidence of investors and undermines the credibility of the markets.  How do I reconcile those positions? Frankly, not with ease but with resignation. I simply do not believe that federal prosecutors and Wall Street regulators will ever achieve meaningful success in pre-empting insider trading, and I see no proof that the ongoing criminal prosecutions and enforcement actions serve as deterrents. The limited manpower and financial resources of Wall Street's watchdogs should be better utilized in pursuing antifraud cases in which more vulnerable investors are typically victimized. In the end, it's about triage and allocating what you got towards helping those most in need. Consider the recent dismissal by an SEC ALJ of a high-profile insider trading case.

Case In Point

On September 29, 2014, the Securities and Exchange Commission ("SEC") filed an Order Instituting Administrative and Cease-And-Desist Proceedings (the "OIP") against respondents Gregory T. Bolan, Jr. and Joseph C. Ruggieri. In the Matter of Gregory T. Bolan, Jr. and Joseph C. Ruggieri, Respondents (OIP, '33 Act Rel. 9659; '34 Act Rel. 73244; Admin. Proc. File 3-16178 / September 29, 2014).  The OIP alleged that Bolan, a Wells Fargo Securities, LLC research analyst, had provided advance notice of ratings changes to his "trusted friend and former colleague" Wells Fargo trader Ruggieri, who then traded ahead of the release of those rating changes.  

One Down And One to Go?

On May 28, 2015, Bolan settled the charges against him and was found to have violated Section 17(a)(3) of the Securities Act. As a consequence, Bolan was ordered to cease-and-desist further violations of securities law and to pay a $75,000 civil penalty. In the Matter of Gregory T. Bolan, Jr. and Joseph C. Ruggieri, Respondents (Order Making Findings and Imposing Remedial Sanctions And A Cease-And-Desist Order As To Gregory T. Bolan, Jr., '33 Act Rel. 99795; '34 Act Rel. 75066; Admin. Proc. File 3-16178 / May 28, 2015). 

The One To Go Didn't

On September 14, 2015, SEC Administrative Law Judge Jason Patil (the "ALJ") issued his 50-page Initial Decision dismissing the unsettled charges against Respondent Ruggieri. The ALJ found that although the SEC's Division of Enforcement had established that Ruggieri traded on tips in four of six alleged instances, the Division had failed to meet its burden of proof to establish that Bolan had tipped Ruggieri for a personal benefit within the meaning of Dirks v. SEC, 463 U.S. 646 (1983), and United States v. Newman, 773 F.3d 438 (2d Cir. 2014).  In the Matter of Gregory T. Bolan, Jr. and Joseph C. Ruggieri, Respondents (Initial Decision as to Respondent Bolan, Initial Dec. Rel 877; Admin. Proc. File 3-16178 / 
September 14, 2015).

As set forth in the Initial Decision:

There is no dispute that Bolan's ratings changes were material; ratings changes typically moved stock prices, and Ruggieri knew this. Adm. FOF Nos. 102, 105-07, 114; Tr. 1201, 2046- 47. Bolan's ratings changes had a statistically significant impact on the stock prices of the securities being rated. Adm. FOF No. 115. Ruggieri paid attention to Bolan's ratings changes and observed that Bolan's ratings changes typically, but not always, moved stock prices. Tr. 2040-41.

It is also undisputed that unpublished research reports were confidential, nonpublic information. Adm. FOF No. 136. Wells Fargo prohibited its research analysts from sharing forthcoming research with the firm's traders, clients, or anyone else outside the research department; the reports were to remain nonpublic until they were publicly disseminated; and Bolan and Ruggieri knew this policy. Adm. FOF Nos. 136-40, 166-67. Further, Ruggieri knew that he was prohibited from trading based on nonpublic information from a forthcoming research report. Adm. FOF Nos. 169-70.

The contested issues are whether Bolan tipped Ruggieri and, if so, whether Bolan did so for a personal benefit

Page 9 of the OIP

The "Yes, But"

In considering the six trades at issue, which the ALJ does in exhaustive and impressive fashion, he ultimately came to the following conclusion that:

Given Ruggieri's credible explanations as to why he traded in CVD and PRXL, I find that he did not trade based on any tips in those two instances. His thesis as to those two trades outweighs the Division's contrary evidence.

On the other hand, I find that Ruggieri's trades in AMRI, EM, ATHN, and BRKR were based on Bolan's tips. Ruggieri has no convincing explanation that would explain why he took positions in those stocks, at exacting times, ahead of Bolan's reports and turned a profit. As to these trades, the Division's claim of a tipping scheme is corroborated by Moskowitz's parallel trading, as well as Ruggieri's trading in MDAS.

Page 28 of the OIP

As such, the ALJ is left with the conclusion that in at least four of the six cited instances, Ruggieri's trades were based upon Bolan's tips. The question from that point on is whether those trades involved the so-called "personal benefit," as recently enunciated in the federal courts. In finding that no such personal benefit was proven by the Division, the ALJ explains that:

The Division argues that "Ruggieri provided several benefits to Bolan in exchange for the tips: career mentorship and positive feedback that would potentially increase Bolan's annual bonus and improve Bolan's chances of promotion." Div. Reply Br. at 18 (citing Div. Br. at 33- 36). The Division also argues that that Bolan tipped Ruggieri to maintain and further their friendship. Div. Br. at 30-32; Div. Reply Br. at 17-18

Bolan had an amicable working relationship with Ruggieri. Also, Ruggieri provided positive feedback about Bolan. However, Ruggieri did so both before and after the tips. Bolan sought and received feedback from various constituencies, both within and outside Wells Fargo, not just from Ruggieri. Bolan's supervisor, Wickwire, rejected the notion that Ruggieri provided feedback in exchange for tips. These facts undermine the notion that Bolan sought or received feedback from Ruggieri in exchange for tips. Although the tips and some of Ruggieri's feedback occurred within the same year's timeframe, nothing otherwise suggests that Ruggieri's feedback was in exchange for tips. It is more plausible that Ruggieri's feedback was genuine, and that Bolan sought feedback as standard practice rather than for an illicit benefit.

Furthermore, the "friendship" and working relationship between Bolan and Ruggieri was not a meaningful, close, or personal one. Nor do the facts establish that Bolan had a quid pro quo relationship with Ruggieri.

The Division elected not to call Bolan to testify and objected to the admission of Bolan's investigative testimony, which I overruled. Tr. 1616-24. Although I had issued a subpoena ordering Bolan's appearance as a witness, the Division revealed-to the surprise of Ruggieri's counsel-that Bolan had returned to Nashville and objected to testifying.21 Tr. 1616-19. Bolan would have been uniquely situated to offer testimony on the issues, as I had expressed to the parties. Tr. 1341-42. Given the lack of sufficient evidence on personal benefit, the Division's failure to elicit Bolan's testimony further hindered its ability to meet its burden of proof.

Page 35 - 36 of the OIP

Bill Singer's Comment

Compliments to ALJ Patil for an exhaustive presentation of both facts and rationale in the Initial Decision. I commend the full-text document to all serious industry participants and investors.

As I noted after US v. Newman, if insider trading cases are not dead-on-arrival they are certainly on life support given the tests enunciated by the federal courts. Pointedly, the "personal benefit" standard is so nebulous and so susceptible to attack by defendants that criminal prosecutions and enforcement actions are no longer the fearsome prospects that they once were. Which is not to say that insider trading cannot be successfully prosecuted -- it can; but it is to say that the undertaking is far more difficult and far less likely to prevail.

For a detailed analysis of the "personal benefit" standard as recently enunciated in US v. Newman, READ: