Monday, May 28, 2007
The Seventh Circuit recently decided, in U.S. v. Evans, that a tippee can be found guilty of insider trading even though the tipper was acquitted in an earlier trial. The tipper was a financial analyst at Credit Suisse who apparently missed the orientation program about confidentiality and talked a lot about his work to his friends. The tippee, a college buddy, traded profitably in stocks of four companies involved in deals that Credit Suisse was working on. At the first trial, the jury acquitted the tipper on both substantive and conspiracy charges and acquitted the tippee on the conspiracy charge, but deadlocked on the substantive charges against the tippee. The government retried the tippee and won a conviction. On appeal the Seventh Circuit recognized the applicability of the Dirks two-part test for tippee liability, which requires, first and foremost, a breach of duty on the part of the insider and, secondly, the tippee's knowledge of the breach (or, at least, he should have known). Since the jury had acquitted the tipper, that would seem to foreclose tippee liability. The court, however, theorized that the tipper could have leaked the information negligently to his friend and thus would have lacked the requisite scienter in leaking the information to his friend. According to the Seventh Circuit, it was not essential to the tippee's conviction that the tipper know that his leaking of confidential information was improper. Indeed, the tippee could have induced the tippee's disclosure and then taken advantage of it, so he can be guilty of insider trading when the tipper is not. Frankly, the court's logic sounds wrong to me. While it is an attractive theory if, for example, the tippee plies the tipper with liquor so that he blurts out the company secrets and the tippee then trades on the information, I don't see how the first requirement of Dirks -- the breach of the duty -- is met. How is this case different from Dirks itself -- where the tippee is off the hook because the tipper is found to have done nothing wrong?