Andrew Mason of Chilivis Grubman Dalbey & Warner. (Courtesy photo) How the Insider Trading Prohibition Act Would Change Enforcement
This language opens up a whole new frontier for insider trading enforcement.
May 26, 2021 at 10:19 AM
5 minute read
Commentary
On May 18, the U.S. House of Representatives passed H.R. 2655, the Insider Trading Prohibition Act. If passed by the Senate and signed by the president, the legislation would be the first dedicated laws to combat insider trading. For decades, the Department of Justice and Securities and Exchange Commission have enforced insider trading prohibitions under § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. However, this was never a perfect marriage because § 10(b) is, at its core, an anti-fraud statute, and not all insider trading cases present the elements of fraud necessary to bring enforcement actions under § 10(b) and Rule 10b-5. As the government stretched the language of the statute and rule to curtail problematic conduct, the conduct being investigated drifted further and further from the purpose and language of § 10(b). Enforcement attorneys and academics have long argued that Congress needed to act to codify the prohibition on insider trading, and it looks like they may finally get their wish.
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