You took my one sentence out of context and I will admit that it is a very difficult and evolving area. This case will engender much discussion.
It sounds as if, when the full transcripts are read, that it was pretty clear that the information was NOT available elsewhere. Information about ongoing investigations is not available elsewhere. I am speculating here and we won't know for sure, if at all, until we see a full transcript.
The reason it is important to go into detail is because you have to know the difference between deciding a question of fact (usually determined by a jury) and a question of law (determined by the judge). In my opinion, whether someone engaged in manipulative behavior, as proscribed by federal or state statutes or regulations would be a question of fact and subject to be determined by a jury. In other words, every case is different.
Once a jury decides a question of fact, the trial judge or an appellate court will overturn that decision, only if, under no set of circumstances, would it have been reasonable for the jury to find as it did. I don't think that will happen here, at least from the summaries posted here.
It's like the NFL video appeal. When they go to the video, it has to be clear that the ruling on the field is wrong. One is not entitled to a de novo trial by an appellate judge.
As for your comment that many banks and PR departments may be manipulating, I tend to agree that many managements and touts manipulate. I find it amusing that you might disagree with that. Blodgett, the MerrilLynch crew, Leded, etc., all IMO should face the music of 10b-5 and other regs and statutes. If a tout is selling into his recommendations, I personally believe that this is manipulative behavior and hope that the SEC goes after them.
Is the tout saved by weasel words in fine print? Again, question of fact, but I'd decide against the tout.
Keep in mind regulatory hearings don't have juries deciding so I'm mixing some metaphors so to speak to simplify the discussion. Further, the criminalization of manipulative behavior is relatively rare. IMO the US would not have gone after this group criminally if it hadn't been for the violation of an FBI database and the extortion. If it had been just a question of manipulation, the likely tactic would have been an SEC administrative complaint. All IMO. |
