Given the government’s apparent view that “a tipper personally benefits whenever the tipper discloses confidential trading information for a non-corporate purpose,” we expect that courts will continue to wrestle with factual questions about the personal benefit requirement, and whether particular disclosures constitute a breach of a fiduciary duty. The evolving and uncertain case law in this area leave insider-trading defendants plenty of room to challenge the sufficiency of the government’s evidence that the insider’s disclosure was fraudulent and that the tippee knew it, especially in cases involving “remote tippees” (persons who are removed from the initial communication of confidential information).
‘Enforcement 40’ for 2020
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