Supreme Court Puts Price On A Brother's Love

Siblings who freely share insider information receive a “personal benefit” tantamount to cash, apparently.
Author:
Publish date:

A closely watched legal battle over the finer points of insider trading law concluded in the Supreme Court Tuesday with the unanimous opinion that a brother's ineffable, undying love can indeed constitute the quid in a quid pro quo.

SCOTUS

The case, Salman v. U.S., asked whether the government could pin insider trading on someone when the source of the insider info received no cash or tangible benefit in return. In the case of Bassam Salman, who profited just shy of $1 million on trading ahead of a merger announcement, the hot tip came courtesy of Mounir Kara, who got the info from his brother Maher Kara, a Citigroup banker.

Salman's lawyers argued that since the Citi banker got nothing in return for his generosity, the tip didn't qualify under the recently tightened standards for determining what really counts as insider trading. In a previous 2014 decision, SCOTUS found that just being friends with someone wasn't enough to establish insider trading, “in the absence of proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.”

But a brother's love? That makes the cut. “Salman’s jury was properly instructed that a personal benefit includes ‘the benefit one would obtain from simply making a gift of confidential information to a trading relative,’” Justice Samuel Alito wrote in the unanimous decision. The warm fuzzy feeling of fraternal geniality is tantamount to cash in hand.

But what difference, other than the sentimentality of blood ties, is there between brothers sharing material nonpublic information and friends doing the same? Does a favor for a sibling involve “at least a potential gain of a pecuniary or similarly valuable nature,” while one for a friend does not? Aren't we genetically predisposed to be altruistic with kin – which, one would think, makes favors between siblings less liable to personally benefit one or the other?

Who knows. There's at least one person, though, who surely personally benefits from the decision: Preet Bharara. Eat your heart out, Preet.

Related

Supremes Set To Smack SEC on Statutes of Limitations

Things aren't going well for you when you find yourself at the receiving end of sharp words from both Supreme Court Justices Antonin Scalia and Ruth Bader Ginsberg. Well, that's where the SEC finds itself in its effort to read a five-year statute of limitations creatively.

Members Of Insider Trading "Club" Were Good At Obtaining Material Non-Public Information, Not So Good At Playing It Cool On Conversations Recorded By The Feds

Later this week, Anthony Chiasson, a Level Global co-founder, and Todd Newman, a former Diamondback portfolio manager, will go to trial in Federal Court for allegedly making $67 million in ill-gotten gains, based on inside information they obtained about Nvidia Corp and Dell Inc. According to U.S. Attorney Preet Bharara, Chiasson and Newman, who've both pleaded not guilty, were able to rack up all their profits by teaming up with a bunch of friends and forming an insider trading club, which is a lot like a book club or fight club in that they took roll, traded canapé duties, and drank Pinot Grigio, but different in that instead of discussing The Art Of Fielding or punching each other in the face, they spent every Monday night from 7 to 9 sharing material non-public information with each other. “This case describes a tight-knit circle of greed on the part of professionals willing to traffic in confidential information,” Bharara said when the charges were announced in January. “It was a circle of friends who essentially formed a criminal club, whose purpose was profit and whose members regularly bartered inside information.” In the beginning, when the club was first formed, there was a spirit of camaraderie, as the club members happily traded tips for everyone's mutual benefit. Unfortunately, things started to break down when some people agreed to cooperate with the government by recording their friends admitting wrongdoing, in exchange for leniency. Former Diamondback analyst Jesse Tortora, for instance, gave fellow club member Danny Kuo a call at the direction of the FBI on December 1, 2010, a conversation that Chiasson and Newman's lawyers are trying to use as evidence that Tortora, who will be testifying against them, lacks credibility, based on the fact that when asked by Kuo if his phone was being tapped, Tortora didn't say "Yup! Helping the Feds build a case against you, actually." “What’s happening, man?” Tortora asked during the call, according to a transcript prosecutors submitted to the court. “Dude, is your phone tapped?” Kuo replied. “Wait, is the phone tapped?” Tortora asked, adding, “Why do you ask that?” Despite losing major points for repeating the question-- you never repeat the question!-- and the extremely unconvincing "Oh, why do you ask" attempt to act natural and not like he was working for the government, Tortora ultimately recovered. After Kuo and Tortora discussed defense strategy to explain their trades were made after legitimate research, Kuo concluded the call with a final warning to Tortora about making future calls from a personal telephone, according to the transcript. “I would seriously invest in some quarters, and start calling from 7-Elevens,” Kuo said. Hedge Fund Founder Faces Jury as FBI Raids Yield Trial [Bloomberg]

David Slaine, Government's Undercover "Tip-Mining Machine," Apparently Under The Impression Insider Trading Works On A 3-Strike Basis

Remember David Slaine? For those who need a refresher, he is the former Morgan Stanley managing director and ex-Galleon trader who began working as an FBI informant in 2007 and who was outed for doing so by the Wall Street Journal in January 2010. At the time, we learned a few notable things about Slaine, some of them germane to his role in helping the government go after people trading on material non-public information, others special in their own way, like: 1. He takes french fries, and perhaps all snacks, very seriously. In 1993, Slaine triggered a fist-fight with a colleague on the trading floor after needling him because he wouldn’t share his french fries. Others broke up the fight. 2. He doesn't wait for people to towel off and get dressed before knocking their teeth out. One morning early in 2001, before trading began, Gary Rosenbach, then was the No. 2 executive under Mr. Rajaratnam, and Slaine were in a steam room together after exercising at an Equinox Fitness Club. Mr. Rosenbach was pressuring Mr. Slaine to improve his performance. As Mr. Rosenbach lay on his back on a bench, Mr. Slaine punched him, giving him a black eye and ending their friendship. 3. Humans aren't the only ones often asked "you want a piece of me?" He once smashed a computer keyboard in a fit of rage, says a person familiar with the incident. 4. While working on Wall Street, he eschewed the traditional channels of employee recruitment (Wharton, etc), preferring instead to pick up fresh analysts at the club. While at Morgan Stanley, he met [Craig] Drimal, then a nightclub bouncer at the Vertical Club in Manhattan. The two quickly formed a friendship based on a shared passion for weight lifting and their mutual ability to bench-press 400 pounds...Shortly after arriving at Galleon, Mr. Slaine persuaded Galleon officials to give a position to Mr. Drimal, who then was working as a bouncer at the Roxy nightclub in Manhattan. 5. Being a person with whom he "formed a friendship based on a shared passion for weight lifting and [a] mutual ability to bench-press 400 pounds," possibly the greatest line written about anyone who's ever worked on Wall Street and which which cannot be said enough, means little in the long run if he knows you've been playing it fast and loose with securites laws. In July 2007, the FBI showed up at Mr. Slaine's door on W. 57th Street in Manhattan and confronted him. Mr. Slaine agreed to help the government. At the time, federal prosecutors in Manhattan were trying to make headway on another investigation that eventually led to the charges involving Galleon. They asked Mr. Slaine who he knew that might be participating in insider trading. Mr. Slaine's answer: his friend Mr. Drimal, according to people familiar with the matter. In September 2007, Mr. Slaine—identified in the complaint as CS-1—tried out his body wire for the first time, meeting Mr. Drimal in New York. During the meeting, Mr. Drimal gave Mr. Slaine a piece of paper with four stock symbols, according to the complaint. He told Mr. Slaine the four companies were all acquisition targets. At the meeting's end, Mr. Drimal told Mr. Slaine to destroy the list. He warned him to "be careful" in trading the securities because no news of the takeovers had surfaced publicly...After the meeting, Mr. Slaine went to a nearby hotel where an FBI agent was waiting, says a person familiar with the matter. The pair went to a room where Mr. Slaine removed the wire. Anyway, Bloomberg recently checked in to see what Slaine's been up to these last couple years and other than his "multi-year experience" with the FBI being "tremendously traumatic," he seems to be doing pretty well.