The DFPI And Insider Trading

Allen Matkins
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Allen Matkins

All securities transactions by members and employees of the Securities and Exchange Commission must comply with 5 CFR § 200.735-5 which in turn requires compliance with 5 CFR § 4401.102.  In general, § 4401.102 adopts a "possession" standard for insider trading - prohibiting members and employees from purchasing or selling any security while in possession of material nonpublic information regarding that security.  The rule also prohibits "tipping" but without any explicit requirement of either a personal relationship or benefit.  Under the rule, a member or employee may not recommend or suggest to any person the purchase or sale of security: (i) based on material nonpublic information regarding that security; or (ii) that the member or employee could not purchase or sell because of the restrictions contained in the rule.  "Material nonpublic information" is defined in Rule 5 CFR § 2635.703.

The California Corporate Securities Law of 1968 in contrast appears to adopt a "use" standard Thus, Corporations Code Section 25605 declares it to be unlawful for the Commissioner of the Department of Financial Protection and Innovation and any of his or her assistants, clerks, or deputies to use for personal benefit any information that is either filed with or obtained by the Commissioner and which is not then generally available to the public.  

About a decade ago, there were reports that the Office of Inspector General was investigating whether two enforcement attorneys at the SEC had engaged in insider trading.  I don't recall the final denouement but the OIG did find that "the SEC had essentially no compliance system in place to ensure that employees, with the tremendous amount of non-public information they had at their disposal, did not engage in insider trading themselves".  The OIG made a series of recommendations and reportedly they were all eventually implemented. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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