Using market privileged information to your benefit has a name: insider trading, and now it is being prosecuted by the US in the digital assets field too. Don’t miss Marc Powers’ column about one of the latest cases involving OpenSea.
Third, while a bit esoteric, what happened here is not traditionally referred to as “insider trading,” as the U.S. characterizes it. To most securities lawyers, it is more like a “trading ahead” scheme. Insider trading generally involves the improper advance purchase or sale of a security. Here, the NFTs at issue do not appear to be “securities.”
More interesting is the insider trading case against Ishan Wahi; his brother, Nikhil Wahi; and his close friend, Sameer Ramani, in. On July 21, the SEC filed its complaint in the SDNY alleging that the three realized about $1.1 million in ill-gotten gains from their scheme, which ran from June 2021 through April 2022.
In other words, the SEC parrots the elements of insider trading in the complaint: purchasing or selling securities based upon material, nonpublic information, in breach of a duty. If the duty by the trader or tipper is owed to the issuer of the securities, like a public company, then what has occurred is known as “classic” insider trading. If the duty is owed not to an issuer but rather to someone else, like an employer, then the “misappropriation” theory of insider trading applies.
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