Ethics and Laws governing insider trading Essay

Insider trading remains a controversial issue in the American public domain. Most individuals perceive the practice as being illegal. However, insider trading can both be legal and illegal practice. The provisions of the American law dictate that any form of insider trading should be reported to the U. S. Securities and Exchange Commission (SEC) to make it legal (Miller & Jentz, 2009). This has the implication that the transaction is not kept a secret for access by the general public. On the other hand, insider trading is termed illegal if the transaction is based on information that is not accessible to public. Indeed, it is not only illegal to trade one’s company in the stock market based on non-public information but even to give another person the information enabling them to trade their stock (Miller & Jentz, 2009). This paper seeks to identify the ethical and legal aspects of insider trading practices in the business world. In particular, the author gives an argument is support of the claim that imposing measures to control insider trading is crucial in protecting the economic interest of public investors. Definition of insider trading Insider trading is defined as the act of trading the securities (stock or bonds) of a corporation by members with reliable access to non-public information on the given organization (Miller & Jentz, 2009). Such individual might include but not limited to employees, directors, and major shareholders in the company as well as other officers. The practice of insider trading is termed as non-illegal if the transactions are not executed based on the individual’s knowledge to non-public information about the company (Miller & Jentz, 2009). Nevertheless, the term commonly refers to actions in which the parties involve engage in breach of trust and confidentiality of non-public information. As an example, insider trading can involve trading of stock based on information such as profit results or takeover of an organization before such information is made public (Miller & Jentz, 2009). Another example is were an individual, having prior information of a large order in the stock, trades on such before the order is executed leading to a potential price impact. Ethics governing insider trading There are numerous ethical implications associated with insider trading. First, insider trading practices are perceived as a potential distortion of stock markets. Investor confidence and trust is one of the most crucial elements in determining the long-term sustainability of any economy (Brenkert & Beauchamp, 2009). This is because to ensures the continuous flow of investment capital by members of the community. On the contrary, insider trading serves the ultimate purpose of compromising the confidence of the investors by risking risk price impacts on their stock. Based on this reasoning, insider is a contradiction to the policies protecting small scale investments through securities in our nation. It is worth noting that insiders and any other third parties involved are usually influential members to the company or in the community, leaving small scale investors vulnerable. Another ethical issue of concern in insider trading is the question of unfair competition (Brenkert & Beauchamp, 2009). Insider trading involves individuals taking advantage of non-public information of a company to execute stock trading practices. According to its definition, the practice does not only involve corporation officials, employees, and large stakeholders but even third party members with access of such information. This has the implication that other investors with stocks on the corporation suffer the disadvantage of transacting their stocks and bonds long after insiders have made them. Such is ethically wrong as it deprives investors of their right to equal opportunity in the stock exchange market. Insider trading has the ultimate potential of leading to the collapsing of an investment. Insider trading has witnessed the downfall of many strong public corporations in the United States. Good examples of this are the 2002 collapsing of Enron and WorldCom corporations due to irregular trading of their stocks in the securities exchange. According available evidence linked with the collapsing of Enron and WorldCom corporations, it is quite evident that the companies engaged in financial scandals involving misrepresentation of their financial statements to influence their stand at the stock market. This misappropriation of information as is the case with insiders thus risks falling of organizations. In addition, insider trading is a source of liability to the parties involved. The principles of ethical business practices dictate for mitigation of liabilities by members of an organization. On the other hand, the underlying laws of our nation seek to prosecute perpetuators of unethical practices in the investment world (Brenkert & Beauchamp, 2009). This is in purpose aimed at safeguarding capital investments and protecting investor confidence. In line with this, insider trading risk tarnishing the reputation of an organization as well as its employees. This ethical issue can be emphasized by the legal case costs and other liabilities that have been incurred by former top officials of the WorldCom and Enron Corporations. Laws governing insider trading Insider trading practices can both be legal and illegal depending on the provisions of the existing laws in the American nation. According to the available laws, legal insider trading should be qualified through SEC fillings which serve to make the proceedings public. There are three legal provisions governing insider trading in America namely: 1) common law; 2) SEC regulations; and 3) US Supreme Court decisions. †¢ Common law Insider trading conducted without disclosure in inside information to the SEC is legally regarded as fraud under the American common law. The 1933 Securities Act prohibits fraud in the sale of securities under its provision in section 17 (Miller & Jentz, 2009). These provisions are further strengthened by the Securities Exchange Act of 1934. Under section 16(b) of this act, it is a crime for company officials, directors, employees, and stockholders owning more than 10% of the company shares to enjoy short-swing profits through transactions in the SEC within a period of six months (Miller & Jentz, 2009). In addition, fraud activities during securities trading are prohibited under section 10(b) of the Securities Exchange Act of 1934. Other common law governing insider trading are the Insider Trading Sanctions Act of 1984 and the Insider Trading and Securities Fraud Enforcement Act of 1988 (Miller & Jentz, 2009). These two acts are instrumental in mitigating illegal insider trading activities in the stock exchange market. The laws impose penalties of up to three times any profits gained through illegal insider trading. Just to be appreciated is the fact that such amount of fine is equally applicable for any losses that were avoided through illegal trading (Miller & Jentz, 2009). Moreover, the laws also provides for potential banning of companies involved in illegal trading depending on the level of such activities. The collapsing of major American public corporations such as Enron, WorldCom, and squeaky clean Martha Stewart prompted the enactment of the Sarbanes-Oxley Act of 2002. The act seeks to establish a streamlined framework for mitigating financial scandals both by auditing firms as well as in the proceedings of the SEC (Miller & Jentz, 2009). By dictating for the formation of Public Company Accounting Oversight Board (PCAOB) which dictates qualification of auditors; such are no doubt crucial in ensuring sanity in the accounting profession. In addition, this act makes it mandatory for the SEC to qualify financial statements from corporations enlisted in the stock market. †¢ SEC regulations Insider trading is governed by a number of provisions of the SEC rules and regulation. In its fair disclosure requirements, the SEC dictates that a company is bound by the law to disclosure non-public information to the public in the event it happens to do so intentionally to an individual (Macey, 1991). If such disclosures were not intentional, the organization should communicate the same to the general public. Another important rule on insider trading is defined in SEC Rule 10b5-1. According to this rule, prohibition against insider trading should not only be based on whether non-public information was used during the trade, but even mere possession of such information amounts to a violation of the rule. The provisions of Williams Act of 1968 on takeovers and tender offers also give the SEC powers to regulate insider trading. By definition, the Williams Act is an amendment to the 1934 Securities and Exchange Act. The Act dictates for mandatory full and fair disclosure of information involving tender offers (Macey, 1991). According to its provisions, if a company seeks to acquire or control another through securities, such intentions should be communicated to SEC through fillings and in written to the company to be acquired. The aim of this law is to ensure fair benefiting of the stakeholders as well as allowing the management equal opportunity to make any defense case in a fair manner. In addition, the Williams Act requires that an individual wishing to offer cash tender of 15 to 20 percent of the current market price to acquire a corporation must registered under federal law to disclose to the federal Securities and Exchange Commission (SEC). Such disclosures include; source of the money to be used in the offer, existing contractual agreements with the corporation to be purchased, intention of the purchase, and the plans to be implemented upon the successful completion of the tender offer (Miller & Jentz, 2009). Moreover, disclosures with SEC by an individual wishing to purchase 5 percent of a given corporation should be copied to all national securities exchanges were such stocks are traded to make sure that the information is accessible to investors. Under this law, SEC enjoys legal authority to take legal action against persons acting in violation of the provisions. This includes the use of falsified and misleading statements to gain unfair competition in tender offers. †¢ Court decisions The US Supreme Court has made numerous landmark case decisions regarding insider trading. During the 1909 case of Strong v. Repide, the court ruled that directors are not bound by the law to provide their knowledge to stakeholders about their actions in buying shares from the company (Macey, 1991). However, in the 1984 case of Dirks v. SEC, the Supreme Court found that third party insiders should be held liable for engaging in illegal insider trading provided it is established that they had reasonable belief that the provider of the information had breached a fiduciary duty in the process (Macey, 1991). Such are also applicable if the tipper is found to have gained personal benefits from the receiver upon disclosure the confidential company information. Further, the ruling in the Dirks v. SEC case led to the establishment of the concept of constructive insiders. According to the court, constructive insiders include members who gain access to non-public information from a corporation while providing it with services. Such include; lawyers and bankers among other. The court held that constructive insiders are liable of violations of insider trading since their duties dictate against disclosure of their client’s confidential information. Another landmark case regarding insider trading is the United States v. Carpenter case of 1986 in which the Supreme Court upheld the concept of misappropriation of information as an insider trading violation (Miller & Jentz, 2009). From the facts of the case, the defendant was conviction for insider trading violations after acquiring non-public information from a journalist. This court argued that acquisition of information through a confidential relationship with another individual amount to a breach of fiduciary and the individual must account for any benefits gained from the information. The theory of misappropriation was further applied by the Supreme Court in the 1997 United States v. O’Hagan case. During this case, O’Hagan was convicted with violation of insider trading provisions. Working at in a law firm representing Grand Metropolitan O’Hagan gained confidential information about the company’s plan offer a tender to Pillsbury Co. he used this information to buy call options on Pillsbury stock, an act that brought him a profit of $4 million. O’Hagan was convicted with fraud. The court argued that O’Hagan had committed fraud for using confidential information to benefit him in the securities trade, a move that breached the duty owed to the information source (Miller & Jentz, 2009). Conclusion It is established that insider trading has numerous ethical implications. The practice is a major source of unfair competition in the securities trading business. This is because it gives competitive advantage to influential members of the corporation in terms of profitable stock trading through access of non-public information about the company. On the other hand, insider trading can be a source of liability for the perpetuators. Such can be evident from the provisions of the Insider Trading Sanctions Act of 1984 and the Insider Trading and Securities Fraud Enforcement Act of 1988 which dictates for penalties of up to three times any benefits gained from illegal insider trading. Still established during the research is that insider trading in the American nation is governed by common laws, SEC rules, and numerous court statutes. Under the common law is the provision of the Securities Exchange Act of 1934, it is a crime for company officials, directors, employees, and stockholders owning more than 10% of the company shares to enjoy short-swing profits through transactions in the SEC within a period of six months. This law also prohibits fraud. The Williams act on the other side gives the SEC authority to prosecute individuals and companies for insider trading violations. All in all, given that insider trading potentially distorts the stock market, imposing measures to control insider trading is crucial in protecting the economic interest of public investors. References Miller, R. L. & Jentz, G. A. (2009). Fundamentals of Business Law: Summarized Cases. 8th Ed. Chicago: Cengage Learning. Macey, R. J. (1991). Insider trading: economics, politics, and policy. Washington, D. C. : American Enterprise Institute. Brenkert, G. G. & Beauchamp, T. L. (2009). The Oxford Handbook of Business Ethics. New York: Oxford University Press US.