F:\\Testing Files\\insider_trading_in_turkey.ppt

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INSIDER TRADING INSIDER TRADING REGULATIONS IN U.S. AND REGULATIONS IN U.S. AND A PROPOSAL FOR TURKEYA PROPOSAL FOR TURKEY

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WHAT IS INSIDER TRADING ?WHAT IS INSIDER TRADING ?

There is no statutory definitionThere is no statutory definition Encompasses both legal and illegal Encompasses both legal and illegal

activityactivity Our discussion: illegal oneOur discussion: illegal one When those with confidential information When those with confidential information

use that special advantage to gain profit or use that special advantage to gain profit or avoid losses on the stock marketavoid losses on the stock market

Damages the source of information and Damages the source of information and other typical investorsother typical investors

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WHO ARE INSIDERS?WHO ARE INSIDERS?

Not just corporate directors, officers or major Not just corporate directors, officers or major shareholders shareholders

A broader range of individuals;A broader range of individuals; A partner in a law firmA partner in a law firm representing the acquiring company in a representing the acquiring company in a

hostile takeover bid who traded in target company stock.hostile takeover bid who traded in target company stock. A Wall Street Journal columnistA Wall Street Journal columnist who traded prior to publication of who traded prior to publication of

his column in the stock of companies he wrote about.his column in the stock of companies he wrote about. A psychiatristA psychiatrist who traded on the basis of information learned who traded on the basis of information learned

from a patient.from a patient. A financial printerA financial printer who traded in the stock of companies about who traded in the stock of companies about

which he was preparing disclosure documents.which he was preparing disclosure documents.

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WHY US REGULATIONS?WHY US REGULATIONS?

Insider trading has started to cross Insider trading has started to cross bordersborders

EC Directive provides that members may EC Directive provides that members may enact laws more stringent than set out in enact laws more stringent than set out in the Directive the Directive

U.S. has the most comprehensive and U.S. has the most comprehensive and detailed regulations against insider trading detailed regulations against insider trading

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INSIDER TRADING DEBATEINSIDER TRADING DEBATE

Opposing Views Opposing Views Form of compensation for employees Form of compensation for employees No statutory definition, unfairly penalize No statutory definition, unfairly penalize

traderstraders Enforcing insider trading not cost effectiveEnforcing insider trading not cost effective Smooth prices and more efficient marketSmooth prices and more efficient market Companies may prohibit it in the contractCompanies may prohibit it in the contract

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REASONS FOR REGULATING REASONS FOR REGULATING INSIDER TRADINGINSIDER TRADING

Unfair practice to public investorsUnfair practice to public investors Prohibiting it promotes efficiency of Prohibiting it promotes efficiency of

marketsmarkets Property of material information belongs to Property of material information belongs to

the corporation for business purposes. the corporation for business purposes.

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US REGULATION OF INSIDER US REGULATION OF INSIDER TRADINGTRADING

Section 16 of the 1934 Securities Section 16 of the 1934 Securities Exchange ActExchange Act

SEC Rule 10b-5SEC Rule 10b-5 Classical TheoryClassical Theory Misappropriation TheoryMisappropriation Theory

SEC Rule 14e-3SEC Rule 14e-3

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Section 16 of the 1934 ActSection 16 of the 1934 Act

Designed to watch more closely the trading of Designed to watch more closely the trading of corporate insiders on their corporation’s stock. corporate insiders on their corporation’s stock.

Covers officer, directors, and 10% equity holdersCovers officer, directors, and 10% equity holders §16(a) -> §16(a) -> Disclosure ProvisionDisclosure Provision ->Every corporate ->Every corporate

insider should report holdings and transactions. insider should report holdings and transactions. Facilitates §16(b)Facilitates §16(b)

§16(b) -> §16(b) -> Recovery of Short-swing ProfitsRecovery of Short-swing Profits ->These ->These insiders must disgorge profits from selling stock held insiders must disgorge profits from selling stock held less than six monthsless than six months

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Rule 10b-5Rule 10b-5

Promulgated in 1942 under §10(b) of the Securities Exchange Act of 1934

Covers material corporate misstatements or non

diclosures, insider trading, and corporate mismanagement cases

regarding transactions in shares or other securities

Today a major weapon to curb insider trading, as a catch-all anti-fraud provision

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Rule 10b-5Rule 10b-5

It shall be unlawful for any person, directly or indirectly, by

the use of any means or instrumentality of interstate commerce, or of mails, or of any facility of any national securities exchange,

• to employ any device, scheme, or artifice to defraud,

• to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

• to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,

in connection with the purchase or sale of any security.

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Rule 10b-5Rule 10b-5

Legal Theories of Rule 10b-5 Traditional Theory Misappropriation Theory

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Traditional Theory of Insider Traditional Theory of Insider TradingTrading

Also known as “disclose or abstain rule” Insiders, acting on behalf of their company or on their

own behalf, have a fiduciary duty to the company’s shareholders either to

disclose material, nonpublic information before trading or

to abstain from trading. Developed through major cases of

In re Cady, Roberts & Co (1961) SEC v. Texas Gulf Sulphur Co. (1968) Chiarella v. United States (1980) -> Rule 14e-3 Dirks v. SEC (1984)-> Regulation FD

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Traditional Theory of Insider Traditional Theory of Insider TradingTrading

A person violates Rule 10b-5 by buying or selling securities on the basis of material nonpublic information if

she owes a fiduciary or similar duty to the other party to the transaction

she is an insider of the corporation in whose shares she trades, and thus owes a fiduciary duty to the corporation’s shareholders

she is a tippee who received her information from an insider of the corporation and knows or should know, that the insider breached a fiduciary duty in disclosing the information to her

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Misappropriation Theory of Insider Misappropriation Theory of Insider TradingTrading

First mentioned in Chiarella case In Carpenter v. United States (1986) case

Supreme Court split 4 to 4 Clearly accepted by the Supreme Court in 1997,

United States v. O’Hagan case

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Misappropriation Theory of Insider Misappropriation Theory of Insider TradingTrading

A person violates Rule 10b-5 if Misappropriates material nonpublic

information by breaching a duty arising out of a

relationship of trust or confidence to the source of information

and uses that information in a securities transaction

regardless of whether he owed any duty to the shareholders of the traded stock

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Misappropriation Theory of Insider Misappropriation Theory of Insider TradingTrading

Misappropriating information is : obtaining by improper means or converting it to his/her own benefit even if properly

obtained According to Rule 10b5-2 a duty of trust or confidence

exists when: a person expressly agrees to maintain information in confidence; the facts and circumstances of the relationship as a whole show

a history, pattern or practice of mutual sharing of confidences; or a person receives information from a spouse, parent, child or

sibling, unless the person receiving the information can show that, under the facts and circumstances of the family relationship, no reasonable expectation of confidence existed.

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Scope of Rule 10b-5Scope of Rule 10b-5

Applies to any purchase or sale by any person of any

security Fall within the jurisdictional reach “In connection with the purchase or sale of a security” To recover damages reliance (transaction causation)

must be established (not for SEC) The plaintiff must also be able to prove “loss causation” Rule 10b5-1 presumes that someone who trades while in

possession of material non public information has in fact used the information in making the trade.

Statute of limitations is one year after discovery and three years after violation.

Tipper &Tippee liability applies to both theories. Contact between them should be established.

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Rule 14e-3Rule 14e-3

Prohibits insider trading during a tender offer and thus

supplements Rule 10b-5. Rule 14e-3(a) prohibits anyone, except the bidder, who

possesses material, nonpublic information of a tender offer, from trading the target’s securities

Rule 14e-3(d) is a preventive provision complementing

Rule 14e-3(a). Prohibits anyone with any form or connection to a tender offer from tipping material,

nonpublic information. Is not premised on breach of a fiduciary duty

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SEC Enforcement of the Rule SEC Enforcement of the Rule 10b-5 and Rule 14e-310b-5 and Rule 14e-3

Permanent or a temporary injunction Disgorgement of profits (most commonly used) Correction of misleading statements

Disclosure of material information Cease and desist orders Disciplinary sanctions and civil penalties for securities

market professionals Bounty provisions by the §20A of ITSFEA §21A -> civil monetary penalty of up to three times the

profit gained or loss avoided by a person who violates Rules 10b-5 and 14e-3

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Private Enforcement of the Rule Private Enforcement of the Rule 10b-5 and Rule 14e-310b-5 and Rule 14e-3

Under §20A’s express remedy, contemporaneous

traders are permitted to sue for a disgorgement of the

improper profits (or loss avoided). SEC’s power increased with private actions. A plaintiff in a private damage action must have been

purchaser or seller of the security forming the basis of the complaint and transaction causation usually

presumed but loss causation is required.

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FRONT RUNNINGFRONT RUNNING

A broker trades on a security while in possession of

material non-public information concerning the imminent block transaction of one of his customers

The SEC has suggested that the exchanges designate front-running as a practice “inconsistent with just and equitable principles of trade”

SEC’s current regulation is through its oversight authority over the self-regulatory organizations (SROs); NYSE, AMEX, NASDAQ.

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INVESTIGATION, REGULATION, INVESTIGATION, REGULATION, ENFORCEMENT COMPAREDENFORCEMENT COMPARED

Comprise at least about 10% of the enforcement actions

of SEC. As of 24.02.2003 only 10 out 820 suits of Capital

Markets Board of Turkey were related to insider trading. Development of capital markets is usually matched with

new insider trading schemes

Transnational insider trading cases United States has the most extensive insider trading

regulations

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INVESTIGATIONS INVESTIGATIONS COMPAREDCOMPARED

The same for both companies Sources of cases

Informants• Anonymous Calls• Market professionals• Disgruntled employees• Competitors

Market Surveillance Investigative Steps

Analyze market trading records Obtain chronologies Conduct Interviews Analyze Monthly Account Statements Analyze Telephone Records Chart Out Connection b/w Insiders & Traders Take Testimony Follow the Money Create and Update “Names” and Phones” Databases

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REGULATION AND REGULATION AND ENFORCEMENT IN TURKEYENFORCEMENT IN TURKEY

Only specific regulation against insider trading is Article

47/A-1 of CML: “To benefit to his/her self-owned property or to eliminate a loss so as to damage equal opportunity among the participants in capital markets with the aim of gaining benefit for himself/herself or for third parties by making use of non-public information which will be able to affect the values of capital market instruments in insider trading. The chairman and members of the Board of Directors, directors, internal auditors and other staff of the issuers within the scope of Article 11, capital market institutions or of the subsidiary or dominant establishment, and apart from these the persons who are in a position to be have information while carrying out their professions or duties, and the persons who are in a position to have information because of their direct and indirect relations with these.”

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REGULATION AND REGULATION AND ENFORCEMENT IN TURKEYENFORCEMENT IN TURKEY

In summary according to the CML;

Scienter is required, The scope of possible defendants is very broad, A gain of profit or avoidance of loss is required, Materiality depends on the ability of the non-public information to affect

the value of the capital market instruments, CMB may request a legal prosecution and/or may prohibit the violators

temporarily or permanently from transactions on exchanges and other organized markets (According to Article 46/i of the CML).

The criminal penalty for the violation of this Article is a prison sentence from two to five years and a heavy pecuniary fine from 10 billion TL up to 25 billion; If 2 or more cases are combined then min 3 max 6 years of prison.

No upper limit for pecuniary punishment, but not less than threefold of the benefits

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REGULATION AND REGULATION AND ENFORCEMENT COMPAREDENFORCEMENT COMPARED

Differences

Philosophy different; in U.S. definition deduced from court interpretations; an emphasis on breach of fiduciary duty

Bounty system In U.S. insider trading seen as a private fraud <-> In Turkey

public fraud harming markets; no civil actions only criminal Subpoena Power In Turkey; no regulations like 14e-3, Regulation FD and no

specific front-running rules.

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REGULATION AND REGULATION AND ENFORCEMENT COMPAREDENFORCEMENT COMPARED

Similarities

In Turkey; there is a public disclosure requirement similar to §16(a)

Securities do not have to be traded or listed on an exchange in order to attach a liability to an insider trader, in contrast to the case in many European countries

CMB’s power to temporarily (for 2 years) or permanently prohibit the violator from transacting on exchanges and other organized markets

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WHAT IF FAMOUS CASES WHAT IF FAMOUS CASES HAPPENED IN TURKEY?HAPPENED IN TURKEY?

?√?The attorney, after having learned of the law firm’s client’s planned tender offer, purchased call options in the target company prior to the announcement of the tender offer.

O'Hagan

√In Turkey this case would be interpreted as manipulation.

A columnist of the Wall Street Journal traded the securities he wrote about and in turn gained a profit.

Carpenter

√√√A company’s former official’s selective disclosure of insider information to an analyst giving an unfair advantage to the analyst and the analyst’s clients over the public generally

Dirks

?√?

A financial printer deduced the names of the target companies in takeover bids from the documents he printed. He purchased the target company’s securities before the announcement of bids and sold them after the bids, thus making a profit.

Chiarella

√√√

Insiders of a mine company purchased company stock on the open market with knowledge of a valuable mineral find that had not been publicly announced and made a considerable profit after the announcement.

Texas Gulf Sulphur

√√√A registered broker-dealer directed his customers to liquidate their holdings in Curtis-Wright stock because he had advance knowledge of a dividend cut.

Cady Roberts Co.

Turkey?Gain/LossMaterialitySubject Case

Conviction inTurkey   

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A PROPOSAL FOR TURKEYA PROPOSAL FOR TURKEY

The word “value” in Article 47/A-1 can be changed as

“value and/or price” The requirement for a profit gain or avoidance of a loss

can be eliminated An addition may be made to Article 47/A of the CML, in

order to provide CMB with pecuniary punishments for violations of insider trading

Adding bounty provisions Under CMB’s oversight, Association of the Capital

Market Intermediary Institutions of Turkey may prohibit front-running by enacting a uniform rule to be applied in all exchanges and organized markets.

CMB may promulgate a regulation similar to Regulation FD

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