Inside Traders or Astute Observers

Case 10.3 Inside Traders or Astute Observers? in 2009, federal authorities broke up the biggest insider- trading ring ever. Originally focused on the Galleon Group hedge fund, the investigation soon unraveled a complicated network of nearly two dozen traders, analysts, and lawyers at several different companies who were engaged in a criminal conspiracy to buy insider information, usually about pending corporate acquisitions. Using throw-away cellphones to avoid detection, they had netted $ 20 million in illegal profits. Allegedly at the center of it all was ringmaster Zvi Goffer of the Schottenfeld Group and later Galleon, nicknamed Octopussy because his arms reached out to so many sources of information. Among those caught up in the federal dragnet was a senior vice- president at IBM, Robert Moffat, who had been induced by his lover into divulg-ing confidential information, which she then passed on to the head of Galleon Group. Since that case, the Securities and Exchange Commission ( SEC) has been pushing hard against securities fraud in gen-eral and insider trading in particular, using informants, wire-taps, and sophisticated software tools to make a number of prominent arrests. Illegal insider trading is rampant and may even be on the rise, says Preet Bharara, the U. S. attorney in Manhattan. A main target of recent investigations has been the so- called expert network firms that arose in response to an SEC rule in 2000 that banned companies from selectively divulging significant information, such as upcoming earnings reports, to favored analysts. These firms purport to offer independent investment research but routinely deliver inside information on revenue numbers and sales forecasts. In Bhararas view, however, its not just about the prosecuting the big fish on Wall Street: The people cheating the system include bad actors not only at Wall Street firms, but also at Main Street companies. However, some think the SEC is now pushing too hard and too far. Take the case of Gary Griffiths and Cliff Steffes, who worked in a rail yard owned by Florida East Coast Railways in Jacksonville, Florida. The SEC has charged them with making more than $ 1 million by trading on inside informa-tion, specifically, on the information that their company was going to be sold. How did they do it? After all, one of them is a mechanical engineer, the other a trainman not your usual corporate insiders. The answer is simply that they were observant. According to the SEC, the two noticed that there were an unusual number of daytime tours of the rail yard with people dressed in business attire. Although they were not told anything, officially or unofficially, Griffiths and Steffes had a hunch that something was up. Along with members of their families, they bet that a deal was in the works by buying tens of thousands of call options on the companys stocks. That gave them the right to buy the stock at its current price at some future date. ( Purchasers of call options make money if the stock increases in value because they can then buy it at its earlier, lower price. If the stock decreases in value, then the buyers simply dont exercise the options; theyre out only whatever they paid for the options.) In this case, when Fortress Investment Group acquired Florida East Coast Railways, the value of the lat-ters stock shot up, and Griffiths, Steffes, and their families were able to cash in big- time. Critics of the SEC say that it is going beyond making sure that insiders are not abusing their positions or violating their fiduciary duties. Joel M. Cohen, a partner at the law firm of Gibson, Dunn & Crutcher, has written that the SEC is moving from deterring and punishing those who abuse special relationships at the expense of shareholders into a murkier area . . . [ of] policing general financial unfairness. Other business observers agree with him that the SEC shouldnt focus on trying to make the markets feel fair to everyone. For its part, the SEC contends that Gary Griffiths and Cliff Steffes were more than just observant. After the tours began, they had heard rail yard employees expressing concerns that [ it] was being sold, and that their jobs could be affected by the sale. It also claims that Griffiths was asked to make a list of all the locomotives, freight cars, trailers, and containers owned by the company, along with their current value, some-thing he had never been asked to do before. Is all of that material information? asks New York Times business col-umnist Andrew Ross Sorkin. Clearly, it is nonpublic. But without being told directly that a deal was in the works, did the men actually have inside information? What would have happened if there had been no deal? Or if the company was later sold for a price below its prevailing stock market value? And as Joel Gibson points out, in most cases, if you overhear something and divine from the conversation that Party A is about to buy Party B, and you buy Party B, thats fine. You can do that. On the other hand, both Griffiths and Steffes had signed the companys code of conduct, which states that employees cannot trade on or disseminate material nonpublic information. So maybe they breached a fiduciary duty after all. Or maybe they were just alert employees, who happened to be good guessers and until the SEC showed up, anyway very lucky. Questions

1. Did Griffiths and Steffes violate any legal or moral duties toward their employer? Did they act unfairly in some way?

2. Were they insiders? If so, explain why. If not, does that imply that they cannot be guilty of insider trading or that what they did was morally permissible?