Several recent high-profile insider trading cases have ignited a debate over what is necessary to satisfy the “personal benefit” requirement for purposes of tipper-tippee liability. With the recent announcement that the Second Circuit will not grant an en banc
rehearing of the appeal of former SAC Capital employee Mathew Martoma’s conviction, that story appears to be coming to a close; however, the debate over the personal benefit test and the scope of tipper-tippee liability is sure to persist. Instead of providing much-needed guidance in a murky area of the law, U.S. v. Martoma
is merely one of a group of recent decisions that have generated confusion over the line that delineates illegal insider trading from legal trading on proprietary information. This uncertainty and the continued debate over the contours of insider trading liability underscore the need for funds to be vigilant in this area. In a guest article, MoloLamken partner Justin V. Shur and associate Emily Damrau analyze the personal benefit test and offer guidance on what fund managers can do to avoid liability. For recent insider trading enforcement actions against hedge funds, see “Hedge Fund Manager Deerfield Fined $4.7 Million for Failing to Adopt Insider Trading Compliance Policies Tailored to the Firm’s Specific Risks
” (Sep. 21, 2017); and “SEC Insider Trading Action Highlights Red Flags Hedge Fund Managers Must Heed When Employing Political Intelligence Consultants
” (Jun. 8, 2017). For further commentary from Shur, see “The SEC’s Pay to Play Rule Is Here to Stay: Tips for Hedge Fund Managers to Avoid Liability
” (Oct. 8, 2015).