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People, please stop making these two insider-trading mistakes!

Bruce Carton | July 29, 2016

There are two insider trading-related "mistakes" that I have repeatedly warned against in this blog through the years.

Mistake 1. People whose firms are directly involved in merger transactions (e.g., public company employees, investor relations executives, lawyers, accountants, etc.) foolishly believe that they can engage in insider trading without being caught. Seriously, just don't do it! As I asked here about another insider trading case against a lawyer whose firm was involved in the transaction, 

Would you rob a bank by walking in the front door with no mask on (and wearing a shirt with your name, address and phone number written on it), and then make a "getaway" walk home along a busy road (past the police station) carrying two big burlap sacks with green dollar signs on the side with bills pouring out of the top?

Mistake 2. People caught up in insider trading investigations -- which usually means that worst case you will need to pay back your ill-gotten gains and pay a penalty -- tragically double down on this bad situation and turn a civil case into a criminal prosecution by obstructing justice or making false statements during the investigation. Although insider trading is occasionally prosecuted criminally, that is still a rarity... unless and until the defendant raises the ante by lying to the SEC or FBI investigators

Last month, Herbert K. Sudfeld, Jr., a former partner at law firm Fox Rothschild, was sentenced to six months in prison for, in short, allegedly making both mistakes above. As summarized by the SEC, Sudfeld's law firm advised a company called Harleysville on a merger. Although Sudfeld was not personally involved in the merger negotiations, he allegedly learned about the merger from a co-worker and purchased several thousand shares of Harleysville stock in his own account and his wife's account the day before the public announcement. After the merger was announced, Sudfeld sold all of the shares and made $79,000 in profits. That was Mistake #1.
 
Prosecutors allege that Sudfeld then massively compounded Mistake #1 with Mistake #2, when he 
falsely told FBI agents, who were investigating insider trading, that he was not aware of the Harleysville stock transactions until several days to a week later.  According to the indictment, Sudfeld also falsely told investigators that he had informed his broker that he could not be involved in trades of Harleysville stock due to his position at his law firm.  He further allegedly stated that he did not discuss Harleysville trades with his broker until after they were completed, which was also false.
Bottom line: everyone makes mistakes. Please just stop making Mistakes 1 and 2 above!