Martha Stewart Insider Trading

Illegal insider trading is when non public corporate information has influenced a trade when someone buys or sells. When someone uses this information it allows them to gain an unfair advantage over other investors causing the market to gain or lose money. If insider trading were allowed then people that invested would no longer feel confident to invest. The legal way to gain an advantage over other investors would be for them to obtain skills in analyzing and understanding accessible information. According to the Securities and Exchange Commission, “Under Rule 10b5-1, the SEC defines insider trading as any securities transaction made when the person behind the trade is aware of nonpublic material information, and is hence violating his or her duty to maintain confidentiality of such knowledge”(Reem Heakal).

An insider consists of someone who is accessible to information that has not yet been released to the public. These include CEO’s, executives, and directors that are exposed to the information. Insiders that also may have to keep quit consist of Accountants and Investment Bankers. According to the article by Reem Heakal, “In the second part of Rule 10b5-2, the SEC has outlined three nonexclusive instances that call for a duty of trust or confidentiality: (1) when a person expresses his or her agreement to maintain confidentiality, (2) when history, pattern and/or practice show that a relationship has mutual confidentiality and (3) when a person hears information from a spouse, parent, child or sibling (unless it can be proven that such a relationship has not and does not give rise to confidentiality)”(Reem Heakal).

It all began about a year after Martha Stewart sold 3,928 ImClone shares in late 2001 a day before a rigid slow down sent the stock tumbling. The stock market world was waiting for the FDA to make a decision on Erbitux. The pharmaceutical company ImClone was denied for a new drug Erbitux, which the company promised to be a cancer drug. Marta Stewart received information from her broker Peter Bacanovic to sell her stock. Bacanovic unlawful inside tip was that other clients of his which included CEO of ImClone Samuel Waksal and his daughter, where selling all of their stock in ImClone that was held by Merrill Lynch. Waksal knew at the time of his order to sell that the FDA was not going to approve the Erbituz application. Under Merrill Lynches policies the information of Waksal sale was confidential and “under Merrill Lynch policies, which prohibited employees from disclosing client transactions or effecting client trades on the basis of other client transactions”(SEC.gov). Bacanovic broke sec guild lines and his own company policy by telling Marta to sell her shares in ImClone. Bacanovic had his secretary tell Marta Stewart that Waksal and his daughter had sold all of their shares in ImClone that were being held at Merrill Lynch and then Marta instructed Bacanovic to sell all of her shares in the company. The following morning news broke that the FDA did not approve Erbitux and the share price of ImClone dropped 16% to 46 dollars per share. By selling the stock when she did it allowed her to avoid losses of $45,673. The question that needs to be asked in this case is whether or not Martha used insider information in order for her to gain an advantage over everyone else which she claimed she did not hear any information about the Waksals selling any of their shares in ImClone. The SEC states that Marta not only received this information about the Waksals sale of their shares but she and Bacanovic also went on to lie about the sale of Marta's stock and make up an alibi about their reason for selling the stock. Bacanovic told the commission that he and Marta had earlier had come to the conclusion to place a sell order on her stock if the price of the stock fell below 60 dollars per share.

Martha and her broker Peter Bacanovic were indicted on nine criminal counts from the SEC. Jurors found Stewart guilty on four counts of conspiracy, obstruction and making false statements. They also convicted former Merrill Lynch broker Peter Bacanovic on counts of conspiracy, making false statements and obstruction of agency proceedings. He was sentenced to five months in prison and was banned from working in securities for ever. Stewart pleaded not guilty to the charges because she said she had a standing order to sell her shares of ImClone if they fell below 60 dollars. Sam Waksal was sentenced to seven years and three months in prison for securities fraud, conspiracy, obstruction of justice, perjury, bank fraud, and wire fraud. “WAKSAL pled guilty to two counts of securities fraud, and one count each of conspiracy,

obstruction of justice, perjury, and bank fraud that had been charged in a 13-count Indictment that was filed on August 7, 2002”(US Attorney). Waksal was also fined 4.5 million dollars, 3 million as