Insider Dealing

We have extensive experience of representing individuals who have become embroiled in insider dealing investigations, whether they are professional traders or have become caught up in an investigation through personal trading on their own account.
 

Insider dealing covers allegations of trading whilst in possession of inside information, encouraging others to deal in such circumstances and disclosure of inside information other than in the proper performance of one’s employment. The person who discloses the confidential information may do so to a friend, family member or colleague without any expectation that intention that person would trade on the basis of the information disclosed.

The Financial Conduct Authority (FCA), the main agency responsible for investigating these offences, is devoting increased resources to their detection and enforcement.

Suspected insider dealing may be dealt with a regulatory basis as a potential breach of Article 14 of the Market Abuse Regulation, which could result in a fine and / or ban from working in financial services. It can also be dealt with as a potential criminal offence under s.52 Criminal Justice Act 1993, which carries a maximum penalty of seven years' imprisonment and / or a fine.

The FCA is taking on increasingly complex investigations and prosecutions, such as Operation Tabernula, one of the UK’s largest ever insider trading investigations, and often cooperates with overseas authorities including the Department of Justice (DOJ) Commodity Future Trading Commission (CFTC) and Securities Exchange Commission (SEC), as in the recent Forex investigation.

Whatever the circumstances, we understand how stressful and serious it is to be under investigation for insider dealing offences and have a strong track record in achieving the best results for clients facing criminal and / or regulatory scrutiny. 

How we can help

• At the start of an investigation, it is not always clear whether the FCA will pursue civil or criminal proceedings. Our lawyers are experienced in both and, if appropriate, will try to steer your defence strategy down a regulatory route to avoid criminal sanction.
• We have substantial experience of negotiating settlements and contesting findings before the FCA’s Regulatory Decisions Committee (RDC) and the Upper Tribunal.
• We can assist in relation to dawn raids, arrests, interviews under caution, information requirements (see our FAQs below), account restraining orders and extradition requests - all powers that the FCA and its partner agencies have at their disposal and which they may deploy during an insider dealing investigation.
• We offer expert advice in the range of statutory defences (see our FAQs below) that can be raised by those under investigation and whether these may be available in a particular situation.
• We can support clients from the early stages of an investigation through to full court proceedings and settlement negotiations, as appropriate.  
• We understand the particular difficulties facing those who work in regulated sectors (financial or otherwise) and will seek to protect clients’ current and future careers during and beyond the investigation.

 

Our approach

Our wealth of experience in criminal, regulatory and employment issues arising in the context of insider dealing cases sets us apart from other advisers. We can also call upon reputation management colleagues if required.

We frequently advise in complex, multi-jurisdictional matters and work with established networks of forensic, markets and accounting experts as well as overseas lawyers.

Whatever the situation in question, we offer strategic and practical advice to achieve the best possible outcome for our clients.

For more information please contact our specialist FCA investigations team or take a look at our FAQs about insider dealing below.

Frequently asked questions relating to insider dealing

What is insider dealing?

Insider dealing is where a person who has inside information about certain securities (e.g. shares in a listed company) does one of the following whilst in possession of that information:

1. deals in those securities on a regulated market (this includes spreadbetting and contracts for difference (CFDs)); 
2. encourages another person to deal in those securities; or
3. discloses the information to another person, other than in the proper performance of one’s employment, office or profession.

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What is inside information?

Inside information is information which:

1. relates to particular securities or a particular issuer of securities;
2. is specific or precise;
3. has not been made public; and
4. if it were made public would be likely to have a significant effect on the price of any securities.                   

Note: The definitions of inside information and insider dealing vary slightly between the criminal and civil offences.

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Can you give me an example of inside information?

Information is inside information if each of the criteria in the definition of inside information is met. It is not possible to prescribe all types of information. However, non-public information relating to a listed company which affects the following matters may well constitute inside information:

1. the assets and liabilities of the company;
2. the performance, or the expectation of the performance, of the company’s business;
3. the financial condition of the company;
4. the course of the company’s business;
5. major new developments in the business of the company; or
6. information previously disclosed to the market.

This might include, for example, a listed company’s financial results, takeover bids, or major contract wins or losses, before they are announced to the market.

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Does it matter how I received the inside information in question?

Yes, a person can only be guilty of insider dealing if he has the inside information “as an insider”. This means that the person must both know that the information is inside information and also know that he has the information from an inside source.

A person has information from an inside source in three scenarios:

1. if he has it through being a director, employee or shareholder of an issuer of securities; or
2. if he has it through having access to the information by virtue of his employment, office or profession; or
3. if the direct or indirect source of the information is a person within one of the preceding two categories.

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Can you give me an example of insider dealing?

Mr White is the Head of Corporate at a listed company. During an important meeting at work, he is informed by the CEO that a rival company has tabled a takeover bid, at a significant premium to the current share price. After returning home that evening, Mr White purchases £100,000 of shares in the company, hoping that once the takeover bid is announced, the share price will rise and he will realise a profit upon selling his shares.

If Mr White also tells his friend, Mr Black, about the takeover announcement, this will constitute unlawful disclosure of inside information by Mr White, which is also a criminal offence. If Mr Black goes on to trade in the company’s shares, knowing that the information he received from Mr White was inside information, Mr Black will also have committed insider dealing.

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Are there any defences?

There are a number of statutory defences to the offence of insider dealing, including:

• that the person did not expect, at the time of dealing, that a profit (or avoidance of loss) would occur due to the fact that the information in question was price sensitive;
• that the person reasonably believed that the information had been disclosed widely enough such that no-one would be prejudiced;
• that he would have done what he did even if he had not had the information;
• in respect of unlawful disclosure of inside information, that he did not expect any other person, because of the disclosure, to deal in securities.

These defences are technical and complex in their nature and it is highly recommended that anyone considering such a defence obtains specialist legal advice.

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