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Expert Analysis - Opinion

2nd Circ. Ruling Makes Messy Insider Trading Law Worse

Law360 (January 27, 2020, 4:10 PM EST) -- One looks in vain in the United States Code for a prohibition against insider trading. In the absence of a statute prohibiting insider trading, the courts have developed what amounts to a common law of insider trading based on the securities laws catchall anti-fraud provision, Rule 10b-5.

But Rule 10b-5's proscription of insider trading has been narrowly circumscribed by the U.S. Supreme Court, wary of enforcing a criminal prohibition without an explicit command from Congress. The lack of an explicit statutory prohibition on insider trading is a problem for the rule of law: The rule of lenity holds traders should have...

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