News broke last week that the Federal Bureau of Investigation (FBI) and Securities and Exchange Commission (SEC) are investigating three high profile names — Carl Icahn, Phil Mickelson, and sports gambler Billy Walters — over possible acts of insider trading.
To date, no allegations of wrongdoing have been brought forth and most securities lawyers agree that it’s a weak case.
It’s still unclear what evidence the FBI and SEC have on the three gentlemen that could amount to an actual insider trading charge, but regulators have hurt their chance at building a stronger case through wiretapping and covert cooperation with the investigation becoming public.
INSIDER TRADING DIFFICULT TO PROVE
Insider trading cases have historically carried a high burden of proof.
Did an “insider” provide material, non-public information to another party? Did this individual know it was material, non-public information at the time? Who qualifies as an “insider”? Did anyone personally benefit from the trade, and was a fiduciary duty of trust or confidence broken in the process?
Icahn — a prominent activist investor known for taking large stakes in companies — was not an insider of bleach maker Clorox, the company upon which trades are being questioned. Nor would Icahn’s desire to acquire a large stake in a company qualify as material, non-public information by definition.
It’s an extremely weak case to begin with and now, with the cat out of the bag on the investigation, regulators have no firm tee to swing on.
SPONSORS STANDING BEHIND MICKELSON
Mickelson appears to be fully backed by major endorsers Callaway and KPMG LLP who publicly stood behind their golfer when the investigation made news. Sponsors should continue their support given no evidence of wrongdoing or malfeasance by Mickelson.
Now, with the investigation nearly undone by the possible leak, Mickelson and his public relations team must repair the good image he’s built over his career.
Should the insider trading probe end with a whimper and not a bang, Mickelson may take legal action against the SEC for tarnishing his public image which, no matter how successful he is at clearing his name, will inextricably become associated with this investigation.