TheCorporateCounsel.net

We have posted the transcript for our recent webcast – “The SEC’s Rule 10b5-1 Amendments: What Issuers & Insiders Need to Know” – in which Brian Breheny of Skadden, Meredith Cross of WilmerHale, Ning Chiu of Davis Polk, Dave Lynn of TheCorporateCounsel.net and Morrison & Foerster, and Ron Mueller of Gibson Dunn addressed the SEC’s recent amendments to Rule 10b5-1 and the related new disclosure requirements. One of the “sleeper issues” that our panelists identified is the whole way the SEC approaches the issue of insider gifts. Here’s an excerpt from Meredith Cross’s comments on this topic:

What the release does, it first it makes clear the Commission’s view that gifts as securities give rise to 10b-5 liability. They talk specifically about breaches of fiduciary duty and making gifts in breach of your duty of trust and confidence when you have MNPI. While many of us had previously advised that you don’t necessarily have to cover gifts in your insider trading policy because they’re not purchases and sales, they seem to say they’re the same as purchases and sales for purposes of 10b5-1.

The other thing that they do in the release, much to people’s disappointment, is they declined to treat gifts to unaffiliated charities differently. Some had hoped that would be the case. They also specifically declined in the release language to take on the view that as long as the donee was restricted in their resale until the MNPI had been released, that would be OK. They said no, that’s not their position because that would not give investors enough confidence and was inconsistent with how they were thinking about this.

The long and short of it is that if you are wanting to be consistent with the Commission’s guidance in this release in your advice to clients, the gifts should be treated the same as sales. There are no protections you can put in place in terms of how the gift is structured that will keep you out of harm’s way. They do say that you can use 10b5-1 for gifts, which is good, except that you can’t have overlapping plans. It’s unclear how you would have a 10b5-1 plan for gifts and not essentially make any other 10b5-1 plans. It’s not very workable.

– John Jenkins