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Second Circuit Ruling on Personal Benefit Test Widens Scope of Criminal Insider Trading
A Second Circuit panel's decision in 2019 in United States v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), held that a government agency's confidential information can constitute "property" for purposes of federal criminal fraud statutes. That holding, which was the subject of a dissent by Judge Amalya Kearse, was undermined by the Supreme Court's subsequent unanimous decision reversing the convictions in the George Washington Bridge case, Kelly v. United States, 140 S.Ct. 1565 (2020), which held that "a scheme to alter … a regulatory choice is not one to appropriate the government's property." Days before Thanksgiving, the United States Solicitor General's office responded to defendants' petitions for certiorari in Blaszczak. The government agreed that the Supreme Court should vacate the panel's decision, and suggested a remand for further consideration in light of the intervening decision in Kelly. [Editor's Note: For more on the "Bridgegate" case, see Gary Stein's article in this issue.]
But Blaszczak also included another holding that perhaps has attracted even more attention: that the "personal benefit" test announced by the Supreme Court for insider trading cases under Section 10(b) of the Securities Exchange Act does not apply to insider trading cases charged under the separate criminal fraud statutes in Title 18. That holding significantly widens the scope of criminal insider trading. It also creates the anomaly of extending the criminal law beyond the SEC's civil enforcement authority.
If, as expected, the Supreme Court accepts the Solicitor General's suggestion, both of Blaszczak's controversial holdings would no longer be binding, subject to subsequent proceedings in the Circuit. Even as the Blaszczak litigation continues, the significant issues the certiorari petitions present in two critical areas of white-collar criminal doctrine are worthy of practitioners' attention.
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