WEBVTT - Senators' Stock Sales Raise Insider Trading Concerns

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<v Speaker 1>This is Bloomberg Law with June Grosso from Bloomberg Radio.

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<v Speaker 1>Senator Richard Burr has called for an ethics investigation into

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<v Speaker 1>himself and three other senators who sold off stock after

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<v Speaker 1>receiving classified briefings on the coronavirus threat. The sales came

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<v Speaker 1>before stocks collapsed as the virus outbreak became a global pandemic.

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<v Speaker 1>Joining me is former federal prosecutor Robert Mints apart in

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<v Speaker 1>McCarter and English. Is this a question of insider trading?

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<v Speaker 1>Is it just ethics violations? What is it if it's

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<v Speaker 1>not from a company, Well, it's really all the above, June. Really,

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<v Speaker 1>what regulators will be looking at here is whether or

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<v Speaker 1>not there's potential insider trading, or whether there's a potential

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<v Speaker 1>violation of something called the Stock Act, of which is

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<v Speaker 1>really just like insider trading, And what it really focuses

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<v Speaker 1>on is whether or not individual soul stock while in

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<v Speaker 1>possession of information that was not yet publicly available, and

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<v Speaker 1>whether or not that information was material to the pricing

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<v Speaker 1>of the stock, the same exact standard that is used

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<v Speaker 1>in all insider trading cases. In a tweet on Friday,

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<v Speaker 1>Senator Burr denied any wrongdoing, saying that he relied solely

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<v Speaker 1>on public news reports to inform his decisions. How will

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<v Speaker 1>investigators decide whether that's true. Well, it's really very much

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<v Speaker 1>the challenge that is faced in all insider trading cases,

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<v Speaker 1>and that is trying to get inside the head of

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<v Speaker 1>the trader to determine what caused the individual to make

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<v Speaker 1>the trading decisions that were made. And of course, again

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<v Speaker 1>it has to be information that is non public and

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<v Speaker 1>it has to be material, which means it would have

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<v Speaker 1>had to have caused a significant change in the stock price.

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<v Speaker 1>So here in the in the situation of Senator Burr,

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<v Speaker 1>we really have a circumstance where he was apparently pretty

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<v Speaker 1>to quite a few briefings. Um many of those briefings

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<v Speaker 1>were information that was publicly available. But then there was

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<v Speaker 1>also a thing that occurred, apparently on February twelve, which

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<v Speaker 1>focused on the United States being ready for this potential epidemic,

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<v Speaker 1>but also touched on the possible economic fallout. And it

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<v Speaker 1>was the very next day, February thirteenth, that apparently Center

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<v Speaker 1>Burst sold off some thirty three different stock holdings worth

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<v Speaker 1>a collective UH six twenty eight thousand to one point

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<v Speaker 1>seven million dollars, which represented a significant share of his portfolio.

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<v Speaker 1>Another Senator under scrutiny is Georgia Republican Kelly Loffler. She's

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<v Speaker 1>sold off millions of dollars worth of stock beginning on

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<v Speaker 1>January That's the day the Health Committee she sits on

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<v Speaker 1>was briefed by US Public health officials. Um she would

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<v Speaker 1>have lost up to one and a half million dollars

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<v Speaker 1>if she held onto those stocks. I heard her say

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<v Speaker 1>that these are trades that she didn't know about, that

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<v Speaker 1>they're done automatically without her knowing about them until afterwards. Yeah. Well,

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<v Speaker 1>as when any insider stock deal, you have to show

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<v Speaker 1>that the person was the one who directed the trading.

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<v Speaker 1>That doesn't mean that they would have had to have

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<v Speaker 1>done it themselves. They certainly could have instructed their broker.

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<v Speaker 1>But if you have a circumstance, as some of the

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<v Speaker 1>Senators and some of the House members who did trade

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<v Speaker 1>have now stated publicly that these decisions were made without

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<v Speaker 1>their involved involvement, that they were either held in a

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<v Speaker 1>blind trust, or that they were investment advisors who were

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<v Speaker 1>making these decisions without their input, then that would be

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<v Speaker 1>a defense to any insider trading charges or a potential

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<v Speaker 1>violation of the Stock Act of what about not attending

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<v Speaker 1>that meeting. Senators Diane fine Stein, a Democrat from California,

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<v Speaker 1>and James Inhoff, a Republican from Oklahoma, also sold assets

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<v Speaker 1>after that January briefing, but they both denied even attending

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<v Speaker 1>the meeting, and fine Stein said her assets were held

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<v Speaker 1>in a blind trust. So if they didn't attend the

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<v Speaker 1>meeting but they still sold, does that have bearing. Absolutely,

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<v Speaker 1>It really doesn't so much depend on whether you tended

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<v Speaker 1>the meeting. It depends on whether you had the information. So,

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<v Speaker 1>for example, if you didn't attend the meeting, but one

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<v Speaker 1>of the other senators you did pass along the information

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<v Speaker 1>to you, and then you use that to trade on it,

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<v Speaker 1>it could potentially be a violation of either of those

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<v Speaker 1>two statutes and insider trading laws or the Stock Act

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<v Speaker 1>of twenty twelve. There's also the possibility that the SEC

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<v Speaker 1>could take a look at this from a civil enforcement standard,

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<v Speaker 1>and that would be a case where the genitive proof

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<v Speaker 1>would be lower than there would be in a criminal case. Basically,

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<v Speaker 1>regulators would have to convince a judge or a jury

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<v Speaker 1>that the accused public official recklessly and consciously uh indifferent

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<v Speaker 1>to their produciary duties took these steps, and they would

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<v Speaker 1>only have to prove that by a preponderance of evidence.

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<v Speaker 1>So not only are they potentially looking at criminal charges here,

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<v Speaker 1>that's a possibility, there's also SEC taking civil enforcement actions.

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<v Speaker 1>And then there's also the possibility of ethics investigations by

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<v Speaker 1>the Senate or by the House into some of these trades.

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<v Speaker 1>But again, they would have to look at the timing

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<v Speaker 1>of it, what information was available to the individual directing

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<v Speaker 1>the trade, and then they have to surmount that difficult

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<v Speaker 1>hurdle of proving that the material the information was material

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<v Speaker 1>and that the decision was made based upon non public information.

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<v Speaker 1>And in the case of sender Burn, for example, we

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<v Speaker 1>could see that he was privy to both public and

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<v Speaker 1>non public information, and proving that it was the non

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<v Speaker 1>public information that precipitated the trading decision is a difficult one.

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<v Speaker 1>But that's the same um high hurdle that's faced by

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<v Speaker 1>prosecutors in all insider trading cases. The same high hurdle

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<v Speaker 1>was faced by the SEC and all civil enforcement actions

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<v Speaker 1>in the ethics investigations. Is it a different standard, is

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<v Speaker 1>it a different kind of inquiry? But yeah, that that's

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<v Speaker 1>a completely different kind of investigation. It's done by Senate

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<v Speaker 1>or House members themselves, and uh history tells us that

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<v Speaker 1>rarely are sanctions imposed by those investigations, but that can

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<v Speaker 1>ultimately result in the Senate or the House voting to

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<v Speaker 1>remove a member if they believe there has been a violation.

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<v Speaker 1>So that is another option, And in fact, Senator Burr

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<v Speaker 1>has publicly called for an investigation by the Senate Ethics

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<v Speaker 1>Committee into these trades, an attempt to clear his name. Yeah,

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<v Speaker 1>there's no question that the investigations by House or Senate

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<v Speaker 1>committees is going to be a standard that is less

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<v Speaker 1>than what prosecutors would have to meet in order to

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<v Speaker 1>bring either civil or criminal charges. But you're really a

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<v Speaker 1>good point here, because what we're seeing in many ways

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<v Speaker 1>is a pattern that is similar to the financial crisis

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<v Speaker 1>of two thousand and eight, where we saw individuals in

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<v Speaker 1>corporate America being prosecuted by the SEC. Mainly where he

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<v Speaker 1>had instances of politically connected corporate insiders a top financial

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<v Speaker 1>institutions who had advanced knowledge of bailouts in the wake

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<v Speaker 1>of the two thousand and eight financial crisis, and who

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<v Speaker 1>used that information for stock trades anticipating the market reaction.

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<v Speaker 1>So I think where we're gonna see here is a

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<v Speaker 1>delay in enforcement. We're certainly not gonna see regulators moving

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<v Speaker 1>quickly on any of this, given the fact that they're

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<v Speaker 1>all working from home and there's quite a bit of

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<v Speaker 1>other things going on in the market that SEC officials

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<v Speaker 1>are gonna have to be looking at. But there are

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<v Speaker 1>going to be looking down the road at trades by

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<v Speaker 1>various people. This could be months, could be even years later,

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<v Speaker 1>because whenever you see this kind of market volatility, it

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<v Speaker 1>presents a heightened opportunity for insider trading, and we're going

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<v Speaker 1>to see regulators looking at the trading patterns of certain

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<v Speaker 1>individuals to see whether or not there's a possibility that

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<v Speaker 1>we're using inside information order to make those trading decisions.

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<v Speaker 1>So Bob, explain basically what insider trading is. Sure, the

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<v Speaker 1>body of insider trading law points to some key guidance

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<v Speaker 1>when you're looking at what is legal and what is illegal.

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<v Speaker 1>Basically it comes down to don't trade on non public

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<v Speaker 1>information about listed companies, don't tell someone else to trade

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<v Speaker 1>on it, and don't lie if authorities have questions for

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<v Speaker 1>you about your trades or investments. The problem and the

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<v Speaker 1>challenge for prosecutors always for insider trading cases is demonstrating

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<v Speaker 1>the cause and effect, which you can get kind of murky.

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<v Speaker 1>Insider trading cases are not easy to make, which is

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<v Speaker 1>why you don't see them frequently prosecuted, and they're often complicated.

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<v Speaker 1>Insider trading, remember, is only illegal when the information is material,

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<v Speaker 1>meaning that it would have caused a significant change in

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<v Speaker 1>the stock price. And it's also only illegal when the

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<v Speaker 1>information is known by the trader and not the public.

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<v Speaker 1>So it really requires prosecutors to get inside the head

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<v Speaker 1>of the trader, which they have to do circumstantially by

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<v Speaker 1>showing the pattern of trading prior to the incident, which

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<v Speaker 1>they believe is based on insider information, and showing that

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<v Speaker 1>based on the circumstantial evidence, the timing, the amount of trades,

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<v Speaker 1>all of that put together, it shows that the individuals

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<v Speaker 1>making the decision not based on public information and not

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<v Speaker 1>based on their past trading patterns, but arguably based on

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<v Speaker 1>infra nation that was not available to the public and

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<v Speaker 1>was ultimately the trayal on the stock price. So is

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<v Speaker 1>the fear here that corporate insiders could trade based on

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<v Speaker 1>advanced knowledge of let's say, government relief for airlines or

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<v Speaker 1>other companies before the measures are made public. Oh. Absolutely,

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<v Speaker 1>there's going to be unfortunately, lots of opportunities here due

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<v Speaker 1>to the enormous market volativity volatility that we're seeing and

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<v Speaker 1>the possibility of government bailouts and corporate insiders who may

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<v Speaker 1>have information about those bailouts before it's publicly known. Obviously,

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<v Speaker 1>we'll have the opportunity to potentially trade on that information

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<v Speaker 1>before the market reacts. That's the kind of thing that

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<v Speaker 1>regulators will be looking at, but it's probably information that

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<v Speaker 1>they'll be looking at in a delayed way down the road.

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<v Speaker 1>They're just not going to have the ability to look

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<v Speaker 1>at this kind of trading activity in real time. We're

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<v Speaker 1>going to see some delay months, maybe even years before

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<v Speaker 1>regulators can catch up on some of the trading that

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<v Speaker 1>may occur during this period of market volatility connected to

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<v Speaker 1>the coronavirus. Daniel Taylor, who is a professor at the

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<v Speaker 1>University of Pennsylvania's Business School, said that the pattern we

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<v Speaker 1>saw what the financial crisis appears to be repeating itself.

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<v Speaker 1>Can you explain a little bit about what happened then

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<v Speaker 1>compared to what's happening now, Sure, what we're talking about

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<v Speaker 1>here is the same potential government bailout system where we

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<v Speaker 1>saw in the financial crisis of two thousand and eight.

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<v Speaker 1>There are instances in which politically connected corporated ciders at

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<v Speaker 1>financial institutions who may have had advanced knowledge about these

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<v Speaker 1>bailouts and the wake of that two thousand and eight

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<v Speaker 1>financial crisis, use that information for stock trades anticipating the

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<v Speaker 1>market reaction. So, in other words, if they were prevy

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<v Speaker 1>new information that a bailout was coming, and they knew

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<v Speaker 1>that was going to cause a jump in the stock price,

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<v Speaker 1>which is at that point had been enormously depressed, they

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<v Speaker 1>could trade on that information. And given the fact that

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<v Speaker 1>we can expect to see a similar amount of government

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<v Speaker 1>allowed to different industries, which as the airline industry and others,

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<v Speaker 1>that information presents opportunities for those to trade on the information.

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<v Speaker 1>This heightened opportunity for insider trading is something that regulators

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<v Speaker 1>will no doubt be looking at, and those trading records

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<v Speaker 1>will be available to them after the fact to try

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<v Speaker 1>to figure out the timing of when those trades were

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<v Speaker 1>made versus the information that they have been available to

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<v Speaker 1>these corporate insiders, to try to piece together a case

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<v Speaker 1>for insider trading. But these cases, again are always difficult

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<v Speaker 1>to prove, so it remains to be seen whether we're

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<v Speaker 1>going to see a real spike in insider trading prosecutions

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<v Speaker 1>in the wake of some of these anticipated government bailouts. Bob,

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<v Speaker 1>if you remember, were any executives given jail time for

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<v Speaker 1>insider trading during the financial crisis or was it mainly

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<v Speaker 1>penalties that they had to pay. No, that's a great

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<v Speaker 1>example because even during the bailouts of two thousand eight,

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<v Speaker 1>we saw very few insider trading cases actually being brought

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<v Speaker 1>where people were criminally responsible. For example, Angelo Mozilo, who

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<v Speaker 1>was the co founder and CEO of Countrywide Financial. There

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<v Speaker 1>is a very high profile case in which this Morgage

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<v Speaker 1>company faced financial clap collapsed in two thousand and eight

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<v Speaker 1>before being purchased by Bank of America, and in that case,

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<v Speaker 1>Mr Brazilla paid a multimillion dollar penalty to the sec

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<v Speaker 1>but never admitted or denied any wrongdoing and there were

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<v Speaker 1>no criminal charges brought. As an example of how difficult

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<v Speaker 1>it is to bring these types of cases. Do you

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<v Speaker 1>think years before we'll see any of these cases. Yeah,

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<v Speaker 1>I think we're gonna have to wait to see how

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<v Speaker 1>this whole crisis plays out on the economy. There's going

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<v Speaker 1>to be instances where uh, there are drug approvals, there's

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<v Speaker 1>going to be Medicare coverage issues, there's going to be

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<v Speaker 1>government bailout issues. There's all kinds of information that is

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<v Speaker 1>going to have an impact on the market, uh and

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<v Speaker 1>will result in markets either moving up or down, and

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<v Speaker 1>that information present opportunities always for people to trade on

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<v Speaker 1>the information, but it will take the government years probably

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<v Speaker 1>rather than months, to unravel whether or not there was

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<v Speaker 1>anything done illegally in any of these trades. That's former

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<v Speaker 1>federal prosecutor Robert Ment's a partner mcarter and English. Thanks

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<v Speaker 1>for listening to the Bloomberg Law Podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

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<v Speaker 1>on Bloomberg dot com slash podcast. I'm June Rosso. This

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<v Speaker 1>is Bloomberg. Yeah.