Inside out

Rajat Gupta has gone down, but insider trading may not. The guilty verdicts against the former McKinsey boss and Goldman Sachs and Procter & Gamble director should scare the bejeezus out of corporate America and Wall Street. But until the rules against passing privileged information are clearly defined and miscreants truly fear getting caught, the case’s deterrence value will be limited.

A jury convicted Gupta of leaking boardroom information to Galleon Group founder Raj Rajaratnam, who himself is due to spend over a decade in prison for securities fraud. The speed of the verdict — less than two days of deliberations — suggests the case wasn’t so tough, after all. Unlike Rajaratnam and other insider traders, Gupta wasn’t caught on tape discussing wrongdoing. And though he bought into a Galleon fund, the evidence that he gained financially from his tips was thin. Yet prosecutors made the most of their circumstantial case, including phone records of Gupta calling Rajaratnam seconds before the hedgie traded Goldman shares.

It shows prosecutors can win without a smoking gun. Although that should give every would-be tip giver or user pause, it doesn’t mean it’ll stop them from taking the risk. For one, it’s still not obvious when an insider crosses the line. Divulging information is only illegal if the divulger means to profit. Gupta didn’t clearly benefit. That the jury convicted him anyway suggests a mere desire to help his friend may have been enough. Such a fuzzy legal standard, however, makes compliance complex.

And while the case against Gupta may look easy in hindsight, it took years of costly preparation. The government doesn’t have the resources to bring more than a few prosecutions like it. High-profile wins send stern warnings, but occur too rarely to dissuade wrongdoers. A more effective approach might be to file a greater number of easier-to-prove cases alleging, say, financial negligence rather than criminal fraud. Penalties would be smaller, but punishment — and perhaps deterrence — more powerful.

Gupta will probably appeal and a reversal isn’t far-fetched. US District Judge Jed Rakoff was arguably on shaky terrain when he excluded certain evidence favouring Gupta. Whatever ultimately happens, there will undoubtedly be some sort of chilling effect in US boardrooms. It will take far more work, however, to reduce the menace of insider trading.