On the recordApril 4, 2022
Mr. President, today, I am joined by Senator Menendez in introducing the Insider Trading Prohibition Act, a bill that will finally define the offense of insider trading. This legislation is desperately needed because, in the absence of a statutory definition, the courts have cobbled together a dizzying array of interpretations of anti-fraud statutes, creating what is an inconsistent and complicated body of common law for deciding insider trading cases. What should be simple has become unnecessarily complex. Indeed, Judge Jed Rakoff, who has presided over many insider trading cases before the Southern District of New York, wrote in a recent opinion that ``the crime of insider trading is a straightforward concept that some courts have somehow managed to complicate.'' Consider the following hypothetical example. A financial analyst receives information about XYZ Corporation's earnings from a company insider, like an executive or board member, before this information is publicly released. The analyst then shares this inside information with her portfolio manager who subsequently trades in XYZ stock. I suspect most Americans would agree that the portfolio manager was given an unfair advantage. But the courts are not so sure. They have left an open question whether this very trade would constitute illegal insider trading. Experts agree that this kind of judicial uncertainty is one reason among many of why Congress must clarify the law of insider trading.…





