Cuban Insider Trading Case

A federal court dismissed the SEC insider trading case against Mark Cuban, demonstrating once again troubles with the outlines of the doctrine.  SEC v Cuban (N.D. Tex. July 17, 2009).   The CEO of a public company in which Cuban was the largest shareholder called Cuban to discuss the merits of a potential PIPE offering.  At the outset of the discussion the CEO told Cuban the information was confidential and that Cuban should keep the information confidential.   Cuban traded on the information.  The CEO was not a tipper, he was not breaching any fiduciary duty to the firm in disclosing the information, and Cuban was thus not a tippee.  Was Cuban a quasi-insider?  The court held no because he did not agree explicitly not to trade.  The holding does not make sense.  If Cuban has passed on the info and the recipient had traded both would be liable under Dirks.  Can Cuban trade himself and not be liable?  The confidentiality agreement implicitly included a promise not to use the information, a promise which included a promise not to trade.