Failing to adequately manage Material Non-Public Information (MNPI) remains a high-risk area for compliance, as evidenced by recent actions in the United States, the United Kingdom and across the globe for issues including insufficient insider trading compliance policies, market abuse and failure to effectively manage insider information.

To avoid hefty fines and actions, firms must have comprehensive and actionable policies and procedures around the management of MNPI and insider lists to minimize risk. Recent enforcement actions clearly demonstrate that insider trading and misuse of MNPI and insider information continue to be trouble spots for compliance teams—and there's no indication that the regulatory scrutiny will let up. It's both a regulatory expectation and a business imperative that firms have the latest compliance technology in place to manage employee personal trading compliance and the potential misuse of insider information. 

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Just take a look back at the last few years. The enforcement keeps coming and the penalties are significant.

The days of writing off regulatory fines as a cost of doing business are long over. Keeping a handle on employee access to MNPI and proactively identifying areas of potential risk and concern is critical to protect the firm’s brand and reputation—and the bottom line. Below are some examples of recent fines for trading violations and misuse of insider information in financial services firms across the globe.

• In September of 2024, the public relations firm of a sports betting company posted company performance information on the CEO's personal social media accounts.  The posts were removed, but the firm did not make the information available to the general public until the firm released financial earnings one week later. Because this information was not immediately made available to the public following the selective disclosure to the CEO's social media followers, the firm was fined $200K in violation of Section 13(a) of the Exchange Act and Regulation FD.  According to John Dugan, SEC Associate Director for Enforcement, “Information about growth in sales as a public company can be extremely important to investors. It is essential that, when companies disseminate material, nonpublic information, they do so fairly to all investors."

• In June of 2024, a former healthcare CEO was found guilty on two counts of insider trading and one count of securities fraud in a federal jury trial in Los Angeles, CA. The US Department of Justice noted that this case represents the first prosecution of insider trading based exclusively on the misuse of trading plans covered under SEC Rule 10b5-1. According to Deputy Assistant Attorney General Nicole M. Argentieri, head of the DOJ's Criminal Division, the prosecution might be the first but will not be the last, stating "We will not let corporate executives who trade on inside information hide behind trading plans they established in bad faith.” Read more about how the risk of misuse of 10b5-1 plans increases regulatory scrutiny.

• In June of 2024, a European stock exchange received a remark and an administrative fine the equivalent of $9.6 million USD from Sweden's Finansinspektionen for deficiencies around monitoring insider trading.  The report cited "four major events" where deficiencies were found in how the "firm conducted trading monitoring, which should prevent, identify and report insider dealing."

• In May of 2024, a large mutual fund in India came under SEBI scrutiny for concerns around potential front-running and suspicion that a dealer or a broker handling fund orders may have leaked and profited from MNPI. This action comes close on the heels of the agency's updated rules on insider trading released in May of 2024. 
  
  
• In March of 2024, the Office of the Comptroller of the Currency and the Federal Reserve fined a large global bank in a coordinated enforcement effort for insufficient trade surveillance. The Fed fined the bank $98.2 million for an inadequate program to monitor firm and client trading activities for market misconduct. The OCC fined the firm $250 million and noted that the firm operated with gaps in trading venue coverage and without adequate data controls. The firm is mandated “to take broad and comprehensive corrective actions to improve its trade surveillance program.” According to the New York Times, the firm is currently in discussions with a third regulator regarding the matter. 

• In December of 2023, the SEC announced a settlement with a registered investment adviser for failure to maintain and enforce written policies and procedures to prevent the misuse of MNPI and failure to implement written policies and procedures to prevent sending misleading communications to current and prospective investors.

• In August of 2023, the SEC charged a broker-dealer with insider trading for the second time, resulting in penalties of $1,173,926 for the individual and $490,353 for the related firms. 

• In July of 2023, a London-based investment banking firm was fined £2,837,600 by the FCA for failure to have effective systems and controls in place to properly assess, monitor and manage the risk of financial crime such as fraudulent trading. The firm was also fined for failing to follow up on red flags that indicated fraudulent trading.

• In February of 2023, the AMF fined a real estate investment trust that was an acquisition target of a leading insurance and financial services provider €350,000 for failure to maintain and update insider lists. The action also fined a holding company €400,000. Penalties for 10 individuals that profited from insider dealing in the case exceeded €2.4 million.

• In late 2022, BaFin fined a financial services firm €190,000 for failure to prevent insider dealing in their German mergers and acquisitions group. The individuals involved had already received suspended jail sentences. 

• In December of 2022, the FCA fined a global brokerage firm £4,775,200 for failure to ensure that appropriate systems and controls were in place to effectively detect market abuse.   

• In November of 2022, the SEC obtained a final judgement against an index fund manager for insider trading, resulting in a penalty of $246,000, In a parallel action, the U.S. Attorney's Office for the Eastern District of New York entered a forfeiture order for $912,082.

• In August of 2022, the FCA fined the international broker-dealer arm of a large global financial institution £12,553,800 for failure to properly identify significant gaps in its arrangements, systems, and procedures for monitoring for the risk of potential insider trading and market manipulation.

2022 was a record year for SEC enforcement, with over 700 actions and obtained judgments and orders totaling $6.4 billion. Read about it here.

What Is Material Non-Public Information?

Material Non-Public Information or MNPI is defined as information that is not generally disseminated to the public or available to investors, which a reasonable investor would likely consider important in making an investment decision such as to buy, sell, or hold securities. It can include strategic plans, significant capital investment plans, negotiations concerning acquisitions or dispositions, new or canceled contracts, financial results and more. This information is considered non-public if it has yet to be distributed to the public via a press release, company announcement, etc.

Example of Material Non-Public Information

Here’s an example of how MNPI could be used for insider dealing and undue gain. A CEO resigned from their position in March, and the company made an announcement on the same day, thereby making the information public. However, a month prior, during a company meeting with key stakeholders, the management discussed the CEO’s impending resignation. These key stakeholders knew that the CEO would resign a month before the public did. If any of these stakeholders traded, sold, or bought shares using this information as a market advantage, such an act would constitute illegal trading.

Regulation Fair Disclosure (Regulation FD)

Regulation Fair Disclosure (Regulation FD) was implemented by the SEC in October 2000 to prevent selective disclosure of material non-public information. Selective disclosure occurs when material nonpublic information is sent to selected contacts, for example, analysts or institutional investors, before being made available to the general public. The SEC notes that if MNPI is selectively disclosed accidentally, the organization must promptly make the disclosed information available to the general public.

Read the white paper Compliance in the Digital Age: Addressing the Risk of Market Abuse

What is Insider Trading?

As defined by the SEC, "insider trading" generally refers to buying or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material non-public information about the security.

The Insider Trading Act of 1988 (ITSFEA)

Signed into law on November 19, 1988, the Insider Trading and Securities Fraud Enforcement Act of 1988 (ITSFEA) was enacted to curb the misuse of non-public information for personal gain in the securities market and strengthen insider trading laws in the US.
ITSFEA updated the Securities Exchange Act of 1934,  increasing the SEC's authority to penalize individuals and firms involved in insider trading. The Act allowed the SEC to impose fines up to three times the profit gained or loss avoided through insider trading, significantly increasing the financial consequences for violations. ITSFEA also introduced measures to hold firm management accountable if they knowingly or recklessly failed to prevent insider trading within their organizations. Finally, ITSFEA reinforced the importance of establishing and enforcing solid policies and procedures to prevent insider trading.

An Example of Insider Trading

Here’s an example of activity that would be considered insider trading. A high-level employee receives information that their company will either merge with another firm or be sold. Understanding the market impact of this information, which has not yet been shared with the public, he consequently buys or sells the company’s shares in his father’s account in order to gain a profit.

Implications for Firms

The SEC has served notice that firms must continue to make monitoring for insider trading a priority. With many employees working remotely, “a greater number of people may have access to material nonpublic information than in less challenging times.”

In the Risk Alert Observations from Examinations of Investment Advisers Managing Private Funds the Office of Compliance Inspections and Examinations (OCIE) of the SEC noted policies and procedures relating to MNPI as a general deficiency commonly seen during examinations of registered investment advisers that manage private equity funds or hedge funds.

OCIE staff found deficiencies under Section 204A of the Advisers Act in the establishment and enforcement of MNPI policies and procedures including failing to address the risk of the exchange of MNPI when employees interact with outside entities, the risk of employees obtaining MNPI though access to office space and systems, or employees who periodically had access to MNPI about issuers of public security.

FCA activity including this Decision Notice also reflect regulator focus on market abuse and the management of MNPI. To be in compliance with Market Abuse Regulation (MAR), firms must have controls in place to manage conduct risk and reduce the risk of market abuse.

“To achieve effective compliance, firms need to understand the Personal Account Dealing risks posed by their business models, design clear policies and processes around those risks and develop a culture where adherence to their rules is the norm. When breaches of PAD policies do occur, firms need to investigate them and, where appropriate, take disciplinary action.

Failing to adequately assess the conduct risks that PAD may pose, or to have adequate systems and controls in place or to train staff to observe appropriate standards of market conduct may leave a firm or its staff exposed to raised risks of regulatory action.”

FCA Market Watch No. 62

Is your firm protected?

Insider dealing is a perennial concern for regulators worldwide. Agencies like the SEC, the FCA, BaFin and the AMF are using the latest technology to detect insider trading, misuse of insider information and market abuse. Regulators increasingly expect as well that firms will have the latest technology in place in order to demonstrate that they are taking a comprehensive and proactive approach to managing access to MNPI and employee personal account dealing compliance.

MyComplianceOffice can help your firm manage regulatory guidelines around the sharing of MNPI among corporate insiders in advance of trading and investment deals. Our software can help you identify and mitigate potential conflicts of interest from the activities of employees, third parties and the company and automate your MNPI and Insider Trading policies & procedures and embed them within your business.

Our Insider List Management solution enables users to create insider lists, complete with individuals and roles/rights assignments, timeframes when individuals can access inside information as well as a cross-referenceable hierarchical database of securities listings and company information on tens of thousands of entities. The automated solution supports standardized data management formats for sharing insider lists in accordance with regulatory guidelines.  

We can help! MCO's Personal Trade Manager and Insider and MNPI solutions enable firms to reduce the risk of employee personal account dealing and manage insider information across the organization. Contact us today to chat with our global team of experts and see the solutions in action!

Let us know if you’d like to learn more.

Additional Resources

Check out our selection of content below that explains what an insider list is, what are your obligations to protect and manage MNPI and when to provide information to the public under current regulations, such as market abuse regulation.

• SEC Enforcement and Priorities Set Compliance Expectations for 2024
• Market Abuse Regulations - A Look Back and Ahead - On-Demand Webinar
• Insider List and MNPI Management under MAR
• Insider Trading and Safeguarding MNPI - On-Demand Webinar
• SEC Finds Deficiencies in Disclosing Conflicts of Interest and MNPI