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Second Circuit: Criminal Fraud Statutes Do Not Require Prosecutors to Show that Tippers in Insider-Trading Cases Received a “Personal Benefit”

By David E. Brodsky, Lev L. Dassin, Victor L. Hou, Jonathan S. Kolodner, Robin M. Bergen & Matthew C. Solomon on January 13, 2020
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The Second Circuit has made it easier for federal prosecutors to bring insider-trading cases.  In United States v. Blaszczak, decided on December 30, 2019, the Court held that the personal-benefit test—a judge-made rule that the government must prove a tipper expected to receive some benefit in exchange for disclosing confidential information—does not apply to insider‑trading prosecutions brought under certain federal criminal fraud statutes.  The Blaszczak decision thus opens the door to insider-trading prosecutions where a “personal benefit” would be difficult or impossible to prove.  The decision contained another notable holding:  a government agency’s confidential regulatory information can constitute “property,” such that its misappropriation can be the basis for an insider-trading prosecution under the criminal fraud statutes.  This holding—which triggered a dissent by one of the panel members—could facilitate insider‑trading prosecutions involving so-called “political intelligence” consultants, like Blaszczak, who collect and analyze information concerning government agency activity that can be used in making securities trading decisions.

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Photo of David E. Brodsky David E. Brodsky

David E. Brodsky’s practice focuses on securities enforcement, white-collar criminal defense and internal investigations.

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Photo of Lev L. Dassin Lev L. Dassin

Lev L. Dassin’s practice focuses on complex commercial litigation, white-collar criminal defense, regulatory enforcement matters and internal investigations.

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Photo of Victor L. Hou Victor L. Hou

Victor L. Hou’s practice focuses on high-stakes litigation, government investigations, securities litigation, corporate governance, and general commercial litigation.

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Photo of Jonathan S. Kolodner Jonathan S. Kolodner

Jonathan S. Kolodner’s practice focuses on white-collar criminal enforcement and regulatory matters as well as complex commercial litigation.

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Photo of Robin M. Bergen Robin M. Bergen

Robin M. Bergen’s practice focuses on government and internal investigations, and regulatory enforcement and examination of broker-dealers and investment advisers.

Read more about Robin M. BergenEmail
Photo of Matthew C. Solomon Matthew C. Solomon

Matthew C. Solomon’s practice focuses on securities enforcement and litigation, white-collar criminal defense, and complex commercial litigation.

Read more about Matthew C. SolomonEmail
  • Posted in:
    Banking, Finance and Securities
  • Blog:
    Cleary Enforcement Watch
  • Organization:
    Cleary Gottlieb Steen & Hamilton LLP
  • Article: View Original Source

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