“Unfortunately my congressional district has been disproportionately a source of bad actors and alleged bad actors in this area,” Mr. Himes said at a congressional hearing...Under Mr. Himes’s bill, a trader would have to know, or “recklessly” disregard knowing, information he traded on was wrongfully obtained. The bill defines “wrongfully obtained” through a series of specific actions, including a breach of a duty of trust or confidence, or even through computer hacking.
In objective terms, worse things have happened to Steve Cohen than the news he received today. The charges against Mathew Martoma re: allegedly masterminding the largest insider trading scheme ever during his time at SAC. Friday's arrest of high-ranking employee Michael Steinberg. The $614 million he needs to personally pony up to settle with the Securities and Exchange Commission (which he may not even be allowed to do without an admission of guilt). The slanderous claim his house clocks in at a mere 14,000 square feet. The circling of federal investigators who want him bad. And yet presumably none of that compares to today's hit, which must have him in a fury that only the purchase of the Mona Lisa can assuage.
Here's a sort of touching monologue from David Einhorn's call with Punch: If you’ve done the analysis, and come to the conclusion that on it’s own, the company is not going to make it, it makes all of the sense in the world to raise equity at whatever the price is, so that you can know that the company, you know, is – is going to make it. Now, what that brings to my mind though is, you know, obviously we haven’t done your analysis, we haven’t done -- signed an NDA; I don’t know that we’re going to sign an NDA, because we prefer to just remain investors, but from my perspective, and I’ll be just straight up with you, is that gives a lot of signalling value. And the signalling value that comes from figuring out the company has figured out that it’s not going to make it on it’s own is that we’ve just grossly misassessed the -- you know what’s going on here. And -- and that, that will cause us to have to just reconsider what we’re doing, which is not the end of the world to you. You will continue on even if we don’t continue on with you. You could sort of see why the FSA read that to mean that he was insider trading. Like ... (1) You have told me something with signalling value. Sorry - "a lot of signalling value." (2) I will now act on that signal. (3) Don't be mad. "Signalling value" sure sounds like it means "material nonpublic information," doesn't it? Now as we've discussed before, trading on that information would not be enough to make Einhorn guilty of insider trading in the US, though maybe it wouldn't be exactly a great idea here either. Why? Because in our weird but sort of sensible insider trading laws, it's just not illegal to trade on material nonpublic information. It's only illegal to trade based on material nonpublic information that was obtained in violation of some sort of duty of confidence. Since Einhorn didn't sign an NDA, he had no duty of confidence. And since the Punch CEO and bankers weren't tipping him for nefarious purposes, but were instead sounding him out on the company's behalf as a shareholder and potential investor in a new capital raise, they weren't breaching their duty of confidence. You could quibble with the details of that but it's basically the law here. In England not so much. That also seems to be the law for our friends in Congress, who recently passed a law making it illegal for them to insider trade, which is worrying some people who make their living from trading on Congressional inside information:
Earlier today, Bill Hwang, the founder of the Tiger Cub's Asia-based branch, Tiger Asia, pleaded guilty to one count of wire fraud and agreed to fork over $44 million to make allegations by the SEC of insider trading in Chinese bank stocks go away. According to Hwang, his firm "regrets the actions for which is accepts responsibility today and is grateful that this matter is now resolved." According to SEC director of enforcement Robert Khuzami, who we would love to consider a side job writing fables for children* about foxes who trade on unreleased information about clinical trials of Alzheimer's drugs and take advantage of innocent hens, Hwang was a very bad boy and should serve as a cautionary tale for anyone thinking about breaking the law.