Second Circuit Holds That Computer Hacking For Purposes of Trading On Inside Information May Be A "Deceptive Device" Under Section 10(b) Even In The Absence Of A Breach Of Any Fiduciary Duty

In SEC v. Dorozhko, 2009 WL 2169201 (2d Cir. July 22, 2009), the United States Court of Appeals for the Second Circuit held that computer hacking for purposes of obtaining and trading on inside information may be a “deceptive device” under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, even where the hacker owed no fiduciary duty to the issuer. This holding appears in conflict with a 2007 decision from the Fifth Circuit, and can be viewed as expanding the scope of liability for insider trading to those who owe no fiduciary duties to the issuers of the stock being traded.

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