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It is a familiar refrain. The government alleges insider trading on a securities fraud theory, charging violations of §10(b) and Rule 10b-5 under the Securities and Exchange Act of 1934 (the Exchange Act). The elements of securities fraud are notoriously complex, and have been made even more complex by recent appellate decisions. The government must prove, among other things, that the information disclosed by the tipper was material and non-public, that the tipper had a duty to maintain the confidentiality of the information and breached that duty, that the tipper received some personal benefit from the tippee, and that the tippee knew there was a breach. These are challenging requirements, especially in criminal cases where the government must prove each element beyond a reasonable doubt.

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