U.S. v. Vilar, 2013 WL 4608948 (2d Cir. Aug. 30, 2013)は，取引所法10条(b)項について取引所法32条に基づいて刑事罰が追求された事例です。
Although the facts and conviction at issue in Vilar predate Dodd-Frank, the fact that the Second Circuit’s decision is entirely silent on the question of Section 929P(b)’s applicability may be yet another signal that courts are reluctant to interpret the clear language of Section 929P(b) as anything more than a provision addressing the district court’s jurisdiction. It remains to be seen how this issue will develop over the coming months. We expect that the SEC and DOJ will continue to press courts to apply Section 929P(b) in order to expand the government’s ability to reach extraterritorial conduct.
オープンエンドの投資ファンドにおいてインサイダー取引の2つの理論（classical theoryおよび流用理論）がどのように適用されるかを検討した事例です。原審は，正式事実審によらない判決にて，インサイダー取引を認めました。第7巡回区合衆国控訴裁判所は， 原審がclassical theoryに基づく判断であったが，流用理論に基づく責任を判断させるために地裁に差し戻しました。
[*8] To prove a violation of § 10(b) the SEC must establish that Bauer: “(1) made a material misrepresentation or a material omission as to which [s]he had a duty to speak, or used a fraudulent device; (2) with scienter; (3) in connection with the purchase or sale of securities.” S.E.C. v. Monarch Funding Corp., 192 F.3d 295, 308 (2d Cir.1999).
- mutual fundの特質について
[*9 FN3] [M]utual fund shares are traded very differently than other securities, with less opportunity for unfair gain based on nonpublic information.
First, open-end mutual fund shares are not traded on an open market. Instead, they are issued and redeemed by the fund itself. There is no secondary market for mutual fund shares, so in all instances the fund is the only allowable counterparty. Because of this, there is less reason for concern about unfair informational disparity between trading parties. If a mutual fund insider has gained access to material, nonpublic information as a result of his position, presumably the fund itself is also in possession of that information and cannot be “deceived” by nondisclosure.
Second, a mutual fund’s net asset valuation is derived from the value of the underlying securities held in the fund’s portfolio, not information about the fund itself. Thus, nonpublic information about the internal operations of a mutual fund is less likely to be ‘material’ to investors because it does not affect how the NAV is calculated.
Finally, NAV price is set daily in accordance with strict federal pricing and sales rules and is therefore not subject to the same information-sensitive price fluctuations as securities traded on open markets. If these pricing and sales rules are adhered to, it is very difficult for anyone to exploit nonpublic information to his or her advantage by purchasing or redeeming mutual fund shares.
- 原審におけるSECの主張がclassical theoryである点について
The problem with the SEC’s argument is that it never presented the misappropriation theory to the district court. Rather, the Commission argued below that Bauer was a “traditional insider” trading in the shares of her own fund—an obvious invocation of the classical theory.
— 控訴審では，SECは，classical theoryを主張していない
We deem the SEC to have abandoned and forfeited the classical theory as a basis for liability in this case.
The question now is whether we should determine the extent to which Bauer’s alleged conduct constitutes deception under the insider trading theories or remand the question for the district court to consider. … As for the misappropriation theory, Bauer has put forth two arguments in her reply briefing as to why her October 3, 2000 redemption cannot be fairly viewed as a deceptive breach of her duty of loyalty and confidentiality to HGI: (1) the HGI board approved the September 28, 2000, opening of the trade window for HAI employees, which constituted authorization to trade; and (2) Bauer identified herself as an HAI employee when placing the call to redeem her shares, which constituted disclosure to the principal.
We do not comment on the merits of these arguments