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By: Allan Horwich
The mosaic theory of materiality provides that a corporate insider who discloses inconsequential information to an outsider who in turn uses that information to complete a material mosaic about the corporation does not violate Rule 10b-5 when trading based on that mosaic. The SEC and commentators support variants of the theory; the concept has never been directly applied in a reported case. Developing insider trading law tends to support the SEC’s qualification that Rule 10b-5 is implicated if the insider knows that the information that is inconsequential standing alone will complete the outsider-tippee’s material mosaic.
In practice, any insider tempted to provide an outsider with what the insider thinks is immaterial nonpublic information runs a substantial risk that he will be charged with tipping and may have an uphill battle defending the charge. Similarly, the resourceful analyst or investor who seeks to obtain trifling scraps of information from an insider must take into account what the insider knows about what the interlocutor already knows about the company and thus whether any disclosure will be an unlawful tip. What in theory appears to afford a viable means to fend off a charge of unlawful insider trading may be illusory in application.
This publication has been prepared for the general information of clients and friends of the firm. It is not intended to provide legal advice with respect to any specific matter. Under rules applicable to the professional conduct of attorneys in various jurisdictions, it may be considered attorney advertising material. Prior results do not guarantee a similar outcome.