Combatting insider trading has been a high priority for the government since the 2008 financial crisis. From 2009 to 2012, the Securities and Exchange Commission (SEC) filed 168 civil insider trading actions, more than in any other three-year period in the agency’s history.1 In that same period, Manhattan U.S. Attorney Preet Bharara charged 72 people with counts of criminal insider trading, including some of the highest profile insider trading defendants in decades.2 Last year alone, the Financial Industry Regulatory Authority (FINRA) referred 347 insider trading cases to various enforcement agencies—a record year for the self-regulatory organization.3 This unprecedented wave of cases occasions a review of several key insider trading issues likely to be litigated in 2013 and beyond—some new and some longstanding. To that end, this article addresses: (i) the current scope of insider trading liability as to "non-insiders"; (ii) the government’s recent use of wiretap evidence in insider trading trials; and (iii) the status of the long-standing "use" vs. "possession" debate concerning the necessary standard to establish intent in insider trading cases.

Insider Trading Liability for ‘Non-Insiders’

Despite its moniker, liability for insider trading extends beyond corporate insiders in various situations, and the government continuously seeks to expand its scope. By way of background, the "classical theory" of insider trading prohibits a corporate insider from trading in the securities of his or her corporation on the basis of material, nonpublic information without disclosing that information to shareholders. Even under the classical theory, however, the government has successfully imposed liability on non-insiders. For example, courts have held that non-insiders may become "temporary insiders" by entering into certain confidential relationships with a company. "Temporary insider" status has been imposed on lawyers, consultants, accountants and various other agents who received confidential corporate information as part of their engagement with a company. Additionally, any individual who receives information from a corporate insider regardless of his or her relationship with the company may be subject to insider trading liability as a "tippee," if the individual knows or should have known the tip received was an improper disclosure.