insider trading

Credit Suisse Securities (USA) LLC v. Simmonds

Issues

Should Section 16(b) of the Securities Exchange Act of 1934 be construed as a statute of repose, and, if so, is it permissible to toll a statute of repose until the disclosure requirements of Section 16(a) have been met?

 

Vanessa Simmonds brought suit under Section 16(b) of the Securities Exchange Act of 1934 in order to recoup profits realized by Credit Suisse and other investment banks in the course of engaging in short swing trading. The defendants engaged in such trading as underwriters during a series of lucrative initial public offerings in the early 2000s. Section 16(b) limits lawsuits to a two-year period following the date on which profits from trading were realized. In this case, Credit Suisse argues that the two-year time limit enunciated in Section 16(b) begins at the time the defendant realized profits, and constitutes a period of repose, which should not be extended under any circumstance. Simmonds argues that the Section 16(b) time limit should be interpreted in context with Section 16(a), which mandates disclosure in SEC filings of private transactions. Simmonds contends that, when read together, sections 16(a) and 16(b) suggest the time limit should toll until the plaintiff learns of the transaction. The Supreme Court's decision will affect the disclosure policies of investment banks and the time period during which directors can be held liable for short-swing purchases and sales.

Questions as Framed for the Court by the Parties

Whether the two-year time limit for bringing an action under Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), is subject to tolling, and, if so, whether tolling continues even after the receipt of actual notice of the facts giving rise to the claim.

In this case, respondent Vanessa Simmonds challenges the conduct of fifty-four underwriters in their activities related to a series of Initial Public Offerings (“IPOs”) of equity securities in the stock market boom of 1998 to 2000. See 

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Additional Resources

Wex: Statute of Repose

Wex: Statute of Limitations

Securities and Exchange Commission: Securities Exchange Act of 1934

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Salman v. United States

Issues

Does making a gift of confidential information to a close family member or friend for non-corporate purposes satisfy the “personal-benefit” test to establish insider trading or must the government show that the insider received a “personal benefit” that was monetary in nature? 

The Supreme Court will determine whether a close family relationship between the insider and tippee shows “personal benefit” necessary to establish insider trading. Petitioner Bassam Salman argues that a casual or social friendship does not prove personal benefit but, rather, proof of personal benefit requires a showing of monetary gain by the tipper. The United States contends that a tipper personally benefits by giving a gift of information to a family member or friend, rendering proof of monetary gain by the tipper unnecessary. The United States maintains that a tipper breaches his fiduciary duty to shareholders whenever he discloses non-public corporate information for non-corporate purposes. The Court’s decision in this case may have a substantial impact on the scope of SEC’s authority to enforce securities-fraud laws in case of tipping and consequently influence investors’ interests and their confidence in securities markets. 

Questions as Framed for the Court by the Parties

Does the personal benefit to the insider that is necessary to establish insider trading under Dirks v. SEC require proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in United States v. Newman, or is it enough that the insider and the tippee shared a close family relationship, as the Ninth Circuit held in this case? 

On September 1, 2011, Bassam Yacoub Salman was indicted for his involvement in an insider trading scheme involving members of his extended family. United States v. Salman, 792 F.3d 1, 3–7 (9th Cir. 2015). Specifically, the government charged Salman with conspiracy to commit securities fraud. Id. at 3.

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