Revised on 07.06.13 3:38 am
Gaming the Pseudo-Efficient Information Economy (correction)
In the information economy, some profited through their speculating of certain events. They either buy, sell or hold. Most of the time, they hope. Even without having a details-driven long-term plan or a grand view of the Big Tangible Picture, they grounded and pounded their way to their goal.
Whether they are able to meet the criteria of their goal on time, on budget and on target with the minimum resistance is a different story. Having the right team and the right strategic process model are two component behind the first stage toward establishing the right direction. Being able to execute it properly is the next stage.
Gaming the System
Then there are the few, who have profited from inside information, are occasionally apprehended. ...
From April 22, 2013 of the NY Times
A recent case involving a Canadian investment banker raises an interesting question about whether a person’s own intuition about a merger constitutes illegal insider trading charge. The answer becomes even more difficult when two securities regulators reach different conclusions about whether there was any confidential information involved.
The Securities and Exchange Commission in the United States and Canada’s Ontario Securities Commission filed separate cases against
Bruce Moore, who had worked at Canadian Imperial Bank of Commerce. He agreed to settlements with each, paying about $850,000 and accepting restrictions on any future work in the securities industry.
At the time, one of Mr. Moore’s clients was the Canadian Pension Plan Investment Board, which was planning an offer for Tomkins along with a private equity firm. Mr. Moore regularly dealt with one of the pension plan’s senior representatives about providing investment banking services. He learned there was a significant transaction involving the pension board, but that C.I.B.C. would not be involved in it.The trading involved Tomkins, a British maker of car parts,before it received a takeover offer in July 2010 that led its stock price to rise nearly 30 percent. The circumstances by which Mr. Moore gathered the information about the offer make it hard to find any clear line that separates good deductive reasoning from illegal trading.
Over the course of the next few months, Mr. Moore gleaned additional tidbits about the transaction from his interactions with the pension board representative. In this case, no one tipped him off about the deal, at least not in the traditional sense. In essence, he put two and two together after he saw the pension board representative speaking with someone at a charity event, and the representative refused to introduce them or even identify who he was speaking with.
# That was the subtle cue that lead to the more in-depth strategic intellectual collection by Mr. Moore. .. At this level of the game, there is no coincidence. ...
A short time later, another person identified the unknown person as the chief executive of Tomkins.
# To gain an insight in a clouded situation, one performs extensive field intelligence work. ... Read Chapter 13 of the Art of War for the basics on competitive intelligence gathering. ...
However, there is an Compass situational rule of exception where the "level of depthness" of a specific intelligence gathering activity determines the choice of the strategic decision approach and the quality of the conclusion. ...
There is something else that is missing from the story. ... One could only presumed that Mr Moore performed some covert backdoor checking of data that could be identified as unethical. ...
Having figured out the likely target of the deal, the next day Mr. Moore started buying Tomkins stock through an offshore account, ultimately putting approximately one-third of his net worth into its shares. His trades included buying American depositary receipts in the company that were traded on the New York Stock Exchange, which gave the S.E.C. jurisdiction over the case.
Under United States law, the so-called misappropriation theory of insider trading requires proof that a defendant took information from a party to whom he owed a fiduciary duty and then converted it to his own use by trading. In its complaint, the S.E.C. claimed that by pulling together different strands of information about the impending deal from a client, Mr. Moore “misappropriated that information from his employer by purchasing Tomkins securities.”
The Ontario Securities Commission, however, took a different path in concluding that Mr. Moore traded improperly in Tomkins shares. In its settlement with Mr. Moore, it stated that at no time did the pension board representative “ever provide Moore with any material, generally undisclosed information.”
Instead, the regulator said he “ought not to have made use of information obtained in part by virtue of his position as an employee of a registrant prior to its general disclosure to the public.” In doing so, the commission said, Mr. Moore acted “contrary to the public interest.”
Unlike the S.E.C., the Ontario commission did not find that he engaged in insider trading, but only that he acted inappropriately given his position in the securities industry. This is in part a result of a limitation in Section 76 of the Ontario Securities Act, which requires that a defendant be “in a special relationship with a reporting issuer” when trading in its securities to violate the law.
Was the information on which Mr. Moore traded really a breach of a fiduciary duty to C.I.B.C. under the misappropriation theory?
The transactions have many hallmarks of insider trading: a quick purchase of shares shortly after gaining information, resulting in a quick profit. Moreover, this is the type of “all in” bet involving a significant amount of a defendant’s net worth that shows a belief that the information was quite valuable. Add to that Mr. Moore’s position in the securities industry, and this seems to add up to an insider trading case.
Yet, Mr. Moore did not obtain any confidential information from a source at the pension board about the Tomkins offer, as the Canadian authorities make clear. Seeing someone at an event and making deductions based on circumspect conduct about the identity of a corporate executive is hardly the type of confidential information normally identified as the basis for an insider trading charge.
Nor did Mr. Moore use information provided to C.I.B.C. for his trading because the bank was not a participant in the transaction. The only basis on which one could say that Mr. Moore misused his employer’s confidential information would be to use the legal fiction that everything he knew was attributable to his employer and therefore his use of it somehow resulted in a breach of fiduciary duty. In other words, he misappropriated the information from himself.
While that is a pretty convoluted theory of insider trading, it looks as if the S.E.C. is saying that using your job to deduce something going on at another company that is your client can be enough to violate the insider trading prohibition. In a sense, the S.E.C. seems to be applying the theory of “if it quacks like a duck” then it must be insider trading.
# Those who followed that theory, can be deceived especially if the risk consequences of a failed decision do not affect them. ... There are a myriad of "unorthodox" tactics to create a perception of a "non-quacked duck. ..." It is depended on the scope of the situation and the strategic assessing skill of the chief decision maker. ... The scope of a situation determines what is the "quacked duck."
To add another layer to the intrigue, Mr. Moore’s settlement with the Ontario commission included a description of real insider trading when he bought shares in a different company that was being advised by an investment bank where he was working after leaving C.I.B.C. His apparent willingness to abuse his position would have made it difficult to defend charges related to his trading in Tomkins.
The S.E.C.’s case shows that it continues to take an aggressive approach to insider trading, pushing the limits of when transactions based on a person’s special access to important information can be enough to pursue charges. The deduction should be fairly simple: be very careful when you figure out something about a company and then try to take advantage of it by going all in to generate a quick profit.
Peter J. Henning, a professor at Wayne State University Law School, is the author of “The Prosecution and Defense of Public Corruption: The Law & Legal Strategies.”
The Compass View
Q: What is the pseudo efficiency of this economic sector?
A: Not everyone who commits insider trading get caught. It sometimes present a perspective to the amateur strategist that they would not be caught and indicated. We presumed that there are tactical approaches to do it. However, those who know, don't say.
If one wants the "Big Dime" and commits "the crime", then the expectation of doing "the time" becomes obvious.
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