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Corporate Governance

: The Harvard Law School Corporate Governance Blog

Erosion of the Fiduciary Duty Requirement in Insider Trading Actions

By Harvard Law School Program on Corporate Governance

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Editor?s Note: Joel Cohen is a partner in the New York office of Gibson, Dunn & Crutcher LLP. This post is based on an article by Mr. Cohen, Mary Kay Dunning and Gregory H. Shill that first appeared in the Securities Litigation Journal.

Every decade or so, a new wave of interest in prosecuting insider trading emerges. We see this now. Just as the tides of interest in insider trading ebb and flow, so too do the contours of the offense itself. Given the present environment, of course, one would expect regulators to step up insider-trading enforcement, and they have. [1] This growing regulatory aggressiveness has coincided with judicial relaxation of the elements of insider-trading violations. Ensuring proper enforcement without inhibiting the free flow of information that regulators and the courts have historically recognized as vital to healthy markets truly has become a high-wire act.

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Full post as published by The Harvard Law School Corporate Governance Blog on July 29, 2010 (boomark / email).