May 6, 2022

SEC’s Rule 10b5-1 Proposal: Departure From Insider Trading Law?

I blogged earlier this week about a shareholder proposal that urged a company to impose additional restrictions on Rule 10b5-1 plans, which largely mirror the conditions in the SEC’s proposed changes to Rule 10b5-1. The shareholder proposal didn’t pass, but nearly 49% of shareholders voted in favor of it.

A member emailed this note in response:

It occurred to me that not enough attention has been paid to the issue surrounding the legal framework for insider trading violations and the SEC’s proposal to restrict the 10b5-1 affirmative defenses. It is one thing for a company to adopt a policy limiting the use of the 10b5-1 safe harbor, even in response to a shareholder proposal, but it is another for the SEC to seek to limit defenses to insider trading violations that is inconsistent with the legal requirements for insider trading liability.

The member noted that the ABA comment letter to the SEC on the Rule 10b5-1 proposal raises this concern. The ABA comment letters always draw a strong team of participants, and this one includes heavy hitters Stan Keller and John Huber, among other very accomplished members of the securities law community (if you have been practicing in this space for more than a few years, you will probably recognize all of the names on this particular letter). Here’s an excerpt:

Moreover, we are concerned that adding the proposed conditions to the affirmative defenses in Rule 10b5-1 as it is now constructed would be inconsistent with insider trading law. In our letter dated May 8, 2000 commenting on the proposal to adopt Rule 10b5-1, we expressed our concern about whether the enumerated affirmative defenses fully reflected insider trading law and suggested that they be designated as non-exclusive safe harbors or that a catch-all affirmative defense be added. The Commission chose not to take our suggestions in adopting Rule 10b5-1.

However, that was not particularly problematic because the affirmative defenses in the rule as adopted were closely aligned with insider trading law. That would not be the case though if the Commission were to adopt the proposed amendments because of the substantial limitations that would be imposed on the affirmative defenses. Accordingly, we are concerned that the proposal, if adopted, would depart from established insider trading law. To illustrate: under current Rule 10b5-1 a person who does not have material non-public information could grant discretionary authority to sell shares to a third party; that third party can then sell at a time it does not have material nonpublic information even if the person granting the authority, who may not even know about the sale at the time it is made, then has material nonpublic information.

If the Rule 10b5-1 affirmative defenses are unavailable because one or more of the conditions that would be added by the proposal (such as a cooling-off period) have not been met, the person who granted the discretionary authority in the foregoing circumstances still may not be violating Rule 10b-5 even though it is not relying directly on Rule 10b5-1 as amended.

We therefore recommend that the Commission reconsider its approach in light of these concerns and either:

(i) If there are demonstrable abuses in how Rule 10b5-1 is currently being used, the Commission should address them directly. For example, if terminating a plan in order to take advantage of material nonpublic information is considered an abuse, the Commission could make clear that such a termination would violate the good faith requirement of Rule 10b5-1 and the plan would not be a defense to liability as provided in Rule 10b5-1(c)(1)(ii). This targeted approach would address an abuse but not interfere with other terminations for good reason that are not abusive; or

(ii) If additional requirements to the availability of the affirmative defenses along the lines of those proposed are adopted, the rule should expressly recognize that it provides non-exclusive safe harbors so that Rule 10b5-1 as amended is consistent with insider trading law. Recognition of safe harbors would encourage adoption of practices consistent with the safe harbors, but to be effective the safe harbors should reflect prevailing practices, such as those we describe below, adopted by companies designed to ensure compliance and prevent abuses.

Liz Dunshee