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Rule 10b5-1 - Trading "on the Basis of" Material Nonpublic Information |
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Monday, August 18 2003 @ 02:51 PM EDT
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If you're like me, you had never heard of Rule 10b5-1 before McBride alluded to it in his remarks about insider trading, reported here: Bench submitted a sale plan in January, months before any legal action against IBM was contemplated, McBride said. His agreement called for the sales to begin on March 8. He planned to sell 5,000 shares a month for the next 12 months, according to the plan. If so, you might like to know what he was referring to and how insiders can trade under a sales plan.
Rule 10b-5 is here and says: Rule 10b-5 -- Employment of Manipulative and Deceptive Devices
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
a. To employ any device, scheme, or artifice to defraud,
b. 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
c. 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." Rule 10b5-1 provides affirmative defenses. You can read about that here: Subject to paragraph (c)(1)(ii) of this section, a person's purchase or sale is not "on the basis of" material nonpublic information if the person making the purchase or sale demonstrates that:
Before becoming aware of the information, the person had:
Entered into a binding contract to purchase or sell the security, Instructed another person to purchase or sell the security for the instructing person's account, or Adopted a written plan for trading securities; . . . The SEC explains: Rule 10b5-1 addresses the issue of when insider trading liability arises in connection with a trader's "use" or
"knowing possession" of material nonpublic information. This rule provides that a person trades "on the basis of" material nonpublic information when the person purchases or sells securities while aware of the information. However, the rule also sets forth several affirmative defenses, which we have modified in response to comments, to permit persons to trade in certain circumstances where it is clear that the information was not a factor in the decision to trade.
Rule 10b5-1 was designed to make it possible for insiders to safely trade, as explained here:
Benefits -- Rule 10b5-1's affirmative defenses are intended to provide relief, as they effectively serve as a safe harbor from Rule 10b5-1 liability. The Rule 10b5-1 Sales Plan sets forth a written contract for the sale of securities, based on a systematic plan/formula set forth by the executive. With a Rule 10b5-1 Sales Plan in place, insiders will now have the ability to sell or buy pursuant to the written plan, even if they have material nonpublic information. The SEC explains it like this: Rule 10b5-1 (entitled "Trading 'on the Basis of' Material Nonpublic Information in Insider Trading Cases") provides that a person trades on the basis of material nonpublic information if a trader is "aware" of the material nonpublic information when making the purchase or sale. The rule also sets forth several affirmative defenses or exceptions to liability. The rule permits persons to trade in certain specified circumstances where it is clear that the information they are aware of is not a factor in the decision to trade, such as pursuant to a pre-existing plan, contract, or instruction that was made in good faith. They have another page to explain that the term "insider trading" may be associated in the public mind with something illegal, but actually it isn't necessarily so: "Insider trading" is a term that most investors have heard and usually associate with illegal conduct. But the term actually includes both legal and illegal conduct. The legal version is when corporate insiders -- officers, directors, and employees -- buy and sell stock in their own companies. . . . Illegal insider trading refers generally to buying or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, nonpublic information about the security. . . . Rule 10b5-1 provides that a person trades on the basis of material nonpublic information if a trader is "aware" of the material nonpublic information when making the purchase or sale. The rule also sets forth several affirmative defenses or exceptions to liability. The rule permits persons to trade in certain specified circumstances where it is clear that the information they are aware of is not a factor in the decision to trade, such as pursuant to a pre-existing plan, contract, or instruction that was made in good faith.
Here is one lawyer's explanation of how it works:The most important requirement is that the trading plan be entered into at a time when the person was not aware of material nonpublic information about the security or issuer in question. Equally important is that the trading plan be "entered into in good faith, and not part of a plan or scheme to evade the prohibitions" against insider trading. . . . .The Rule does not require a company to disclose the existence or contents of its executives' trading plans. At the extreme -- but only at the extreme -- the adoption of a trading plan by a significant shareholder might itself constitute an event for which disclosure is required. Other than at that point, disclosure is discretionary. . . .
Disclosure in an SEC filing also may increase the probability that in a private securities lawsuit, a court would take judicial notice of a trading plan. Under Delaware corporate law -- which should apply to all Delaware corporations, even in lawsuits based in other States -- there should not be any difficulty with trades made pursuant to a trading plan. This is because the few reported Delaware decisions rely on the theory that an insider should not use information garnered in her position as a corporate insider for her own private profit by making a sale on the basis of that information. As one Delaware court explained, an insider trading plaintiff
"must allege a 'causal link' between specific inside information and each stock sale by each defendant by presenting specific facts showing each sale was entered into and completed on the basis of and because of non-public information." By definition, under a good faith trading plan, an insider's sales are not made on the basis of information garnered in her position as a corporate insider. Rather, trades are made pursuant to a trading plan adopted before the insider was aware of any material nonpublic information. So the issue is, I gather, was a plan adopted in good faith before the insider was aware of any material nonpublic information? Here is a 1998 speech by Thomas C. Newkirk, Associate Director of the SEC's Division of Enforcement, that goes in depth into the rule. More info here and
here. Groklaw collected news reports on SCO from January here, the second story down. As to what all this means in any particular fact pattern, I couldn't say. You'd need to ask a lawyer. This information is so you can follow news events with greater comprehension by knowing what Rule 10-5b-1 is.
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Authored by: Anonymous on Monday, August 18 2003 @ 01:09 PM EDT |
One thought about these trading plans - if they had been prepared before those
preparing them were aware of the meteoric rise in SCOs share price and were to
cover a tax bill then surely there would have been a fixed bill to cover so the
plan would be to sell so many $ worth of shares, not so many shares. The number
of shares sold would constitute most of if not more than the sellers entire
holding if that value of shares had been sold at anything like the January
price. If the rise in value was for genuine reasons that would not be a problem
as the information was public by the time the sale happened but if they were
trading because they were aware that the price hike was based on smoke and
mirrors then they are trading on inside information and this plan won't
necessarily protect them.
Other points:
Several people have asked if anyone is going to SCOForum - over on http://messages.yahoo.com/
?action=q&board=SCOX korbomite who has made some sensible postings is
attending - expect a posting from him when the programme finishes tonight.
I've had an idea for why Mark Heise might have made his comments about the GPL.
Short of having proof that SCO are acting illegally I don't think he can now get
himself off the case - could this be his way of saying he thinks SCOs case is a
pack of lies to boost the share price but he hasn't got enough evidence to prove
it? He could then point to this as evidence that he wasn't colluding with
them. Adam Baker[ Reply to This | # ]
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Authored by: Anonymous on Monday, August 18 2003 @ 03:16 PM EDT |
"And I would have gotten away with it too, if it wasn't for you darn kids!"
style="height: 2px; width: 20%; margin-left: 0px; margin-right: auto;">SCOobyDoo[ Reply to This | # ]
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Authored by: Anonymous on Monday, August 18 2003 @ 04:12 PM EDT |
Adam,
Boies apparently didn't turn up today
Heise did
You say: Heise may be unable to excuse himself from the case, even if he wanted
to
Even so, why would he appear at SCO's marketing forum - I think that goes beyond
representing your client's case. quatermass[ Reply to This | # ]
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Authored by: Anonymous on Monday, August 18 2003 @ 05:17 PM EDT |
Think "Human Shield". Darl needs all the extra bodies around him he can find
with the kind of attention he has been drawing on himself lately. And now Darl
has made his intentions towards Linux clear, that prank call from Linus suing
him may soon be real. Supa[ Reply to This | # ]
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Authored by: Anonymous on Monday, August 18 2003 @ 05:49 PM EDT |
Adam Baker: "I've had an idea for why Mark Heise might have made his comments
about the GPL."
I think his remarks probably have a much more limited scope of applicability
than we are willing to admit. I
assume he was speaking to the issue of SCO's authority for relicensing the
copyrighted code that SCO owns and
claims to have inadvertently released under the GPL. Copyright owners don't
derive their rights from the GPL,
they derive them from Copyright Law, which of course does pre-empt the GPL. Can
SCO get a court to agree that
it can change the licensing terms of their copyrighted code once it has been
released under the GPL? I think
that's what he is talking about. I don't see how the other circumstances in this
case would allow them to use
even a minor victory like that to any advantage. For example, copyright law
applies the first sale doctrine.
That might in some cases pre-empt or waive their rights to enforce any pregnant
cow "licensing" schemes on
mere users. Oddly enough, I have a few old copies of Caldera's products that I
purchased at a Hastings
Bookstore before I got a broadband connection. I assumed it was GPL'd, and would
suggest that SCO go get their money from Hastings. Hastings has a sign that
claims all SOFTWARE SALES ARE FINAL, and that defective items can only be
returned for replacement with an identical item:)
SCO executives are threatening Linux end users, not the distributors. SCO
executives compare their actions to
the RIAA. But the RIAA are attempting to identify folk who are "distributing"
MP3's.
Copyrights are for controlling the making of copies and their distribution. If
the Linux kernel sources were
a collection of Greatest Hits MP3s you might understand that SCO cannot
volunteer to serve as a commercial
distributor without the consent of the original publishers or copyright owners.
SCO Linux is a derivative
work and SCO Group has no rights in it except those granted to them by the GPL
or other copyright licenses.
It's true as SCO claims that a copyright owner can't accidentally release their
proprietary code under a GPL
license. No third party can release someone else's code under the GPL either.
Neither of those situations is
the case with SCO Group.
SCO Group assembles their own collection of licensed works and publishes them
under it's own trademarks and
licenses. They also are the exclusive distributor and seller of that collective
work or "distribution". Those
things distinguish them from normal hackers, and impose some unavoidable legal
liabilities on them.
After they filed a complaint against IBM for illegally incorporating their
proprietary code into Linux, their
own corporate officers caused the code in question to be published and
distributed commercially under a
Caldera License Agreement that said in part:
"GPL Software" consists of the following computer programs:
1. Linux packages as selected, arranged and coordinated by Caldera Systems for
inclusion in this OpenLinux
distribution."
Hint: If you find a piece of paper signed by a Novell corporate officer saying
that you own the copyrights to
UNIX, you can probably break out the beer - even if it was a mistake. If Caldera
distributes OpenLinux
accompanied by the "Caldera License Agreement" and the kernel source code hasn't
had the GPL license or
so-called proprietary SCO code stripped off - it's obviously GPL'd. Caldera had
an independent duty to insure
it had secured the necessary rights to copy and distribute all of the software,
not me. If they want to
relicense their code, they need to identify it for exclusion from the code I can
freely copy and distribute
somehow.
Does SCO know that being a distributor somehow makes them special - of course!
SCO v IBM:
"49. Prior to the events complained of in this action, SCO was the undisputed
global leader in the design and
DISTRIBUTION of UNIX-based operating systems on Intel-based processing
platforms." (emphasis added).
Does SCO know that DISTRIBUTION carries legal liabilities- sure they do!
SCO v IBM
"101. On information and belief, IBM has knowingly induced, encouraged, and
enabled others to DISTRIBUTE
proprietary information in an attempt to conceal its own LEGAL LIABILITY FOR
SUCH DISTRIBUTIONS:
“What is wrong about this [Linux] distribution, is basically the millions of
lines of code that we never have
seen. We don’t know if there are any patent infringements [in this code] with
somebody we don’t know. We
don’t want to take the risk of being sued for a patent infringement. That is why
we don’t do distributions,
and that’s why we have distributors. Because distributors are not so much
exposed as we are. So that’s the
basic deal as I understand it.”
"Karl-Heinz Strassemeyer, IBM The Register, 11/19/2002,
www.theregister.co.uk/content/4/28183.html"
(emphasis added)
Note that IBM simply said that they DIDN"T KNOW if Linux contained any patent
infringements, and therefore
wouldn't do any distributions of their own. That risk and the warning from IBM
apparently went unheeded by
SCO. They continued to make and sell their own commercial Linux distribution. Harlan[ Reply to This | # ]
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