The Second Circuit Makes Sophisticated Insider Trading the Perfect Crime
By William K. Black
Bloomington, MN: December 10, 2014
We know that insider trading is an activity in which cheaters prosper. We know that Wall Street and the City of London are dominated by a fraudulent culture and we know that firm culture is set by the officers that control the firm. We know that the Department of Justice (DOJ) has allowed that to occur by refusing to prosecute any of the thousands of senior bank officers who became wealthy by leading the three most destructive financial fraud epidemics (appraisals, “liar’s” loans, and fraudulent sales of these fraudulently originated mortgages to the secondary market) in history. No one is surprised that Wall Street’s elites have also engaged in widespread efforts to rig the stock markets so that they can shoot fish in the barrel through insider trading. Unlike the three fraud epidemics, one DOJ office, the Southern District of New York, has brought a series of criminal prosecutions against these officers.
Wall Street’s court of appeals (the Second Circuit) has just issued an opinion not simply overturning guilty verdicts but making it impossible to retry the elite Wall Street defendants that grew wealthy through trading on insider information. Indeed, the opinion reads like a roadmap (or a script) that every corrupt Wall Street elite can follow to create a cynical system of cutouts (ala SAC) that will allow the most senior elites to profit by trading on insider information as a matter of routine with total impunity. The Second Circuit decision makes any moderately sophisticated insider trading scheme that uses cutouts to protect the elite traders a perfect crime. It is a perfect crime because (1) it is guaranteed to make the elite traders who trades on the basis of what he knows is secret, insider information wealthy absent successful prosecutions and (2) using the Second Circuit’s decision as a fraud roadmap, an elite trader can arrange the scheme with total impunity from the criminal laws. The Second Circuit ruling appears to make the financial version of “don’t ask; don’t tell” a complete defense to insider trading prosecutions. The Second Circuit does not simply make it harder to prosecute – they make it impossible to prosecute sophisticated insider fraud schemes in which the elites use junior cutouts to create (totally implausible) deniability.
The New York Times article on the decision was entitled “Two Insider Trading Convictions Are Overturned in Blow to Prosecutors.” The title is partially correct. The real blows, however, were to investors, the already crippled integrity of Wall Street, and every honest trader on Wall Street who cannot possibly compete with his rivals who cheat through the “sure thing” of insider trading now that the Second Circuit has written an opinion explaining how to corrupt the entire system with impunity from the criminal laws.
Wall Street’s most recent effort to rig the markets through insider trading is far larger and more audacious than any prior effort, including those by Michael Milken and Boesky. Wall Street elites sought to institutionalize the corruption of officers of a wide range of publicly traded corporations. The goal was to gain a corrupt advantage over honest investors in trillions of dollars in securities trades.
The Second Circuit decision admits that the prosecutors presented evidence established a massive conspiracy designed to allow Wall Street elites to profit by engaging in insider trading, a conspiracy that greatly enriched the defendants that were convicted in the case under appeal.
“At trial, the Government presented evidence that a group of financial analysts exchanged information they obtained from company insiders, both directly and more often indirectly. Specifically, the Government alleged that these analysts received information from insiders at Dell and NVIDIA disclosing those companies’ earnings numbers before they were publicly released in Dell’s May 2008 and August 2008 earnings announcements and NVIDIA’s May 2008 earnings announcement. These analysts then passed the inside information to their portfolio managers, including Newman and Chiasson, who, in turn, executed trades in Dell and NVIDIA stock, earning approximately $4 million and $68 million, respectively, in profits for their respective funds.”
The Second Circuit was not distressed that senior Wall Street officials received information that was clearly insider information that they knew they should not have access to. The insider information they were provided was the crown jewels – two major corporations’ soon to be announced “numbers” – at least one of which was sure to be a major surprise to the markets. A senior trader that knows “the number” in advance, particularly when he knows that the number will be a surprise, can shoot fish in a small barrel with a large shotgun. The insider information allows the senior trader to reduce the risk of loss to trivial levels while increasing the probability of gain to near certainty. The trader makes a fortune by cheating, not through any unusual skill. The senior trader knows that no employee of any publicly traded corporation is permitted to release such secret and proprietary insider information to investors.
CONTINUED...
http://neweconomicperspectives.org/2014/12/second-circuit-makes-sophisticated-insider-trading-perfect-crime.html
Do you know a lot of people this affects, really?
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On 3 April 2009, Politico bannered innocuously (and deceptively, given the shocking core that was buried here - Obama's statement), "Inside Obama's Bank CEOs Meeting." Eamon Javers reported Obama telling Wall Street's CEOs, inside the White House, "My administration ... is the only thing between you and the pitchforks." (This essentially secret meeting, and the comment itself, had occurred on 27 March 2009, but Javers failed to cite the date, which was indicated only under the accompanying AP wire photo of the CEOs coming out of this publicly unannounced event.) Obama's remark was implicitly analogizing here: he implied that he was protecting these people not from prosecutions for crimes (which he actually was), but instead from angry irrational mobs outside, who were driven by blind hatred (like the lynch mobs were in the Old South). Obama was metaphorically siding here with the plantation owners, not with the slaves; with the KKK, not with their victims. This elite Black was telling them that he would protect them from prosecution. He wasn't going to protect the public - which he here analogized to simply a hate-obsessed mob of bigots.
SOURCE: http://www.huffingtonpost.com/eric-zuesse/obama-finally-lays-his-ca_b_3025743.html
Politico article referenced above: http://www.politico.com/news/stories/0409/20871.html
"We're all in this together." -- Robert Gibbs, White House Press Secretary
The thirteen bankers, as reported by The Wall Street Journal, were:
Ken Chenault, American Express
Ken Lewis, Bank of America
Robert Kelly, Bank of New York Mellon
Vikram Pandit, Citigroup
John Koskinen, Freddie Mac
Lloyd Blankfein, Goldman Sachs
Jamie Dimon, JPMorgan Chase
John Mack, Morgan Stanley
Rick Waddell, Northern Trust
James Rohr, PNC
Ronald Logue, State Street
Richard Davis, US Bank
John Stumpf, Wells Fargo
SOURCE: http://13bankers.com/title/
Why do I have a problem with that?
As a Democrat -- in every election since my first, 1976 -- I believe all people are created equal and no one is above the law, including the rich and powerful. For some reason, since Jimmy Carter left office in 1981, they get bailouts and We the People get called to pick up their tab.
