Insider Trading – The Long View

Meyer “Mike” Eisenberg has experienced the evolution of insider trading doctrine and enforcement over decades, and from diverse vantage points.  He worked at the SEC during an era when some of the seminal cases were litigated.  Then he experienced the impact of those cases on industry participants in private practice.  And he has taught about the intersection of the cases and their practical import in various academic appointments.  Eisenberg is expected to participate at the Regulatory Compliance Association’s Fall 2011 Asset Management Thought Leadership Symposium, to be held on November 10, 2011 at the Pierre Hotel in New York.  (Subscribers to the Hedge Fund Law Report are eligible for a registration discount.)  In particular, while each of the expected participants at the upcoming RCA Symposium – including private side and public side thought leaders – will have a firm grasp of current regulatory developments and their impact on hedge fund managers, Eisenberg is unique in his ability to provide what might be called the “long view.”  He has lived insider trading law for decades, from different angles.  He knows how the current crop of cases is similar to and different from what has come before – and how hedge fund managers can put that context into practice; he can credibly discern regulatory trends; and he knows what motivates and matters to regulators.  In anticipation of the RCA Symposium, the Hedge Fund Law Report had the opportunity to interview Eisenberg on insider trading and related topics.  Our interview specifically covered, among other things: Eisenberg’s background; some hoary but still relevant case law; why the SEC may bring an enforcement action where only a small dollar amount is at issue; interaction between OCIE and Enforcement; whether the SEC or private parties may bring aiding and abetting insider trading claims; whether the SEC must prove scienter when it brings a fraud claim against a hedge fund manager under Advisers Act Section 206; what hedge fund managers should do in response to the new use of wiretaps in insider trading investigations; whether the DOJ is likely to use wire fraud charges to “criminalize” activity that does not satisfy the elements of criminal securities fraud; how hedge fund portfolio managers can safely talk to corporate insiders; and compliance policies and procedures hedge fund managers should implement regarding use of consultants, channel checking firms and similar persons.  The full text of our interview with Eisenberg is included in this issue of the Hedge Fund Law Report.

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