California And Rule 10b5-1

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In October of 2000, the Securities and Exchange Commission adopted Rule 10b5-1, which among other things, created an “affirmative defense” for pre-planned trading provided that specified conditions were met. At the time, I pointed out that California has its own insider trading prohibition, Corporations Code Section 25402 and urged the adoption of a conforming state rule. In July 2001, Commissioner Demetrios A. Boutris adopted Rule 260.402 which provides:

For purposes of Section 25402 of the Code, an issuer or person described in Section 25402shall not be deemed to have purchased or sold an issuer’s security at a time when that person knows material information about the issuer if the issuer or such person demonstrates that the purchase or sale of the issuer’s security was in accordance will Rule 10b5-1(c) promulgated under the Securities Exchange Act of 1934, as amended, 17 CFR Section 240.10b5-1(c).

See my article,California Adopts Emergency Regulation in Response to SEC’s Affirmative Defense Rule for Insider Trading,” 15 Insights 21 (April, 2001). In “California’s Unique Approach to Insider Trading,” 17 Insights 21 (July 2003), I discuss some of the significant differences in scope, elements and penalties between the California statute and federal law.