New oversight responsibilities could be in store for directors. Although 10b5-1 trading plans have existed since 2000, a confluence of events—including several Wall Street Journal articles and a letter from the Council of Institutional Investors (CII) to the Securities and Exchange Commission (SEC)—has recently placed these plans in the regulatory spotlight. As noted in NACD Directors Daily this week, the SEC and federal prosecutors have opened investigations into a number of insider transactions, many centered on 10b5-1 trading plans.
Rule 10b5-1 plans were created to deter corporate insiders from trading while in possession of material, non-public information. An executive must enter such a plan when not in possession of insider information, and he or she must specify the amount, price, and date for the securities transaction, and must not be able to alter or influence the terms of the plan. However, significant loopholes still exist; for example, executives maintain the ability to cancel a plan. The SEC said that because such a cancellation does not directly result in insider trading liability because the cancellation did not occur “in connection with the purchase or sale of a security” there was no insider trading. In a November 2012 investigation, the Wall Street Journal found that 46 percent of plan terminations occurred if plans called for a stock sale prior to the company releasing good news, and thus leaving money on the table, while only 11 percent of plan terminations occurred if the plan called for a stock sale prior to the company releasing negative news.
Following the Wall Street Journal investigation, in December CII submitted a comment letter to the SEC expressing concern over potential insider trading. In this letter, CII recommends that boards be responsible for the oversight of preset trading plans, stating “making boards explicitly responsible for the oversight of Rule 10b5-1 plans will make them more responsible to long-term shareholders and more vigilant in their oversight responsibilities.” This is the sole comment letter to the SEC on the topic.
In Mary Jo White’s nomination to head the SEC, President Obama highlighted her prosecutorial experience. Many have speculated on this, including the New York Times, which noted that with her appointment, “the president showed renewed resolve to hold Wall Street accountable for wrongdoing.”
With increased public scrutiny, federal investigations, and pressure on the SEC to implement stricter rules on 10b5-1 plans, directors may wish to increase how they monitor this area.