Wednesday, July 02, 2008

SEC v. Talbot (9th Cir. - June 30, 2008)

As a stylistic matter, I'd have written this opinion a little bit differently. And would have added a bit more on the doctrinal side as well.

Nonetheless, I think that Judge Wardlaw is exactly right that a defendant can be found liable for insider trading even if s/he is a relative outsider to the transaction; for example, as here, was on the Board of a company who was informed of a potential acquisition because the company was a significant investor whose approval would have been needed for the transaction. Sure, some of the doctrinal reasoning behind insider trading prohibitions apply less directly in such a setting. But they still apply. Including several that, quite frankly, are more direct than the generic "fair game" rationale upon which Judge Wardlaw centrally focuses.

Regardless, I think that Judge Wardlaw clearly reaches the correct result. And was right to reverse the contrary (and, quite frankly, somewhat surprising) holding of Judge Morrow below.

Oh, yeah. One more thing. The Ninth Circuit holds that the defendant, J. Thomas Talbot, has successfully avoided summary judgment through his own deposition testimony, which raises a genuine issue of material fact as to materiality. But hear me now, Tom. That's a hollow victory. I read the facts. You're going to get the living crap beat out of you at trial. Trust me.

Time to settle.