EinPunch: The Distinction Between Wall-Crossing and Material Non-public Information

Here’s KD’s very useful Cliffs Notes version for you to get up to speed. Yes, and then go read Matt Levine’s post on it (I wish he were as funny as Bess, but no one is as funny as Bess). For balance, have a gander at a representative negative view from Cassandra.

Right. I don’t have an independent take on this and being an Einhorn fan I’m far from an objective observer, but I think one thing we are learning from this debate is the standard required in insider trading. (in this post I discuss what I think the laws and regulations SHOULD be, not what they ARE. Because of this I don’t discuss whether Einhorn should have checked with compliance, or whether he did a cost-benefit.)

First off we all agree that it looks bad and Einhorn should have tried to stay away. What I think KD gets and Cassandra doesn’t is that Einhorn doesn’t have the freedom of a banker here to just turn away business or not invest his personal account. His fund is his personal account, he has money on the line, and leaving his investment in Punch as is while holding this valuable information and not trading on it if it was in fact legal to trade on it would violate not look very well on his fiduciary duty.

Next. There are really sort of kind of two standards here – trading on information received after wall-crossing and trading on material non-public information – and we switch back and forth a smidge too easily without thinking about the distinction. Let’s lay down the ground rules:

  1. Trading on information received after wall-crossing is universally agreed to be wrong and should be illegal.
  2. Trading on material non-public information is also usually wrong but should not be illegal in and of itself because of situations factually similar to the hypothetical that Matt outlined:

Under UK law, as it appears from this decision, Punch can call Greenlight, shout “hey we’re raising capital and now you know about it suckers!” into the phone, and hang up. Now Greenlight, through no fault of their own, have inside information and can’t legally trade. That would be kind of diabolical, no?

Yes, of course the example is ludicrous. For one thing, the whole reason why companies have to offer information under wall-crossing conditionality in the first place is because of reg FD (and whatever is the UK equivalent) laws that bar companies from selectively offering MNPI to folks.

But the point is that people come into contact with MNPI all the time. Like, without even wanting to. Like, even after explicitly stating they did not want to.

This is our grey area (again, here I am concerned with what the law should be, not what it is).

Here is the key difference – in a wall-crossing, there is consent. In a straight MNPI case, there doesn’t have to be. If our standard for insider trading rests solely on MNPI, then we take away the right of consent to being informed from everyone. This is obviously not something anyone wants. But if our standard for insider trading rests solely on wall-crossing, that’s not good either because that doesn’t cover Raj-Raj like cases where there was obviously intent instead of consent.

So in my world insider trading laws would run on two standards – insider trading based on info from wall-crossing, and insider trading based on actively obtained MNPI. The third standard – banning trading based on passively obtained MNPI – is much, much too loose to be a law and should be left in the realm of social and reputational judgement (i.e. the “if you have to ask, don’t do it” kind of self-regulation, not formal regulation and legislation with fines and jail terms). Remember that here we can safely ignore passively obtained MNPI that was selectively disclosed by the company, as that is covered under Reg FD.

Newton Utilities – my toolkit for data-intensive VBA work

I have shared some code I was working on in the past previously.

I have since modified it a bit further as I learned more about excel (both 2007 and 2003) and also about my financial data reporting needs. I’ve taken to calling it Newton Utilities as, like Newtonian physics, the functions included are not the most advanced or accurate known to man, but they will get the job done quickly and without much fuss.

Newton Utilities

Portrait

A good friend and colleague drew this. Wish I had such talent. Thanks J

The Myth of Universal Competence

“Men give me credit for some genius. All the genius I have lies in this; when I have a subject in hand, I study it profoundly. Day and night it is before me. My mind becomes pervaded with it. Then the effort that I have made is what people are pleased to call the fruit of genius. It is the fruit of labor and thought.” – Alexander Hamilton

One of the most dangerous fictions in Ayn Rand’s Atlas Shrugged is the notion that competence exists (or is transferable) independently of a person’s main/preferred field of expertise. We see Dagny Taggart revitalizing her temporary abode with greenery and feats of engineering. We see Francisco D’Anconia claiming that it was not difficult to figure out which industries would outperform, explaining his success in the stockmarket. And of course many of the people in Valhalla Galt’s Gulch wear more than one hat in his otherwise nonfunctional pseudoeconomy.

While Atlas is allowed this due to artistic license, we do not have the luxury of this naivete in the real world. Yet, instances appear everywhere. In Singapore, as in many British-style executive governments, Cabinet ministers (and their permanent secretaries)  are regarded as general managerial talent and can be switched in and out of whatever portfolios (with some exceptions) as convenient without regard to the minister’s prior knowledge or experience with the subject. The private sector is not exempt from this fantasy: management consultancies live or die by their image of universal competence, and even in finance, my own field, portfolio managers and traders like myself have a psychological and institutional tendency to stretch our confidence beyond the boundaries of our own experience and knowledge.

The reality is that the full array of human abilities defies comprehensive mastery, and indeed in some cases trade-offs between them are involved, although I will not go so far as to assert mutual exclusivity. Newton famously said, of the stock market, that he would never comprehend the madness of men – and this is perhaps an outgrowth of his tendency to look at things as deterministic (or even probabilistic) physical systems, as opposed to reflexive social systems. Polymaths exist, but the polymath is often mistaken for an omnimath, a compliment by which s/he is almost certainly undeserving. While we in the Gifted programme were selected essentially for our score in IQ and English language tests, there exist a whole range of intelligences by which my classmates ran the gamut from prodigious to hopeless (I place myself firmly in the latter category in the kinesthetic intelligence department). The more we choose to ignore this reality of limited competence, the greater the eventual consequences for ourselves and for those impacted by our decisions and creations.

Yet, as with many myths, there exists a kernel of truth at the core of this fallacious notion. While there may not be Universal Competence, I am quite fond of the idea that there may be a common causal factor underlying competence in various disparate fields. Such a common causal factor may or may not be innate, and may or may not be learned/developed, but it is necessary that 1) it exists in high quantities in competent individuals in disparate fields and 2) it allows individuals to quickly develop competence in essentially unrelated fields. I have two favorite candidates for these common factors: tenacity (as discussed last week) and an extremely sound, generalized philosophical approach (including, among other things, an epistemology and an understanding of human nature).

This brief essay was prompted by the occasion of my first annual performance review, at which I was expected to be competent in an area I was not competent in.

Twitter – Week of 2012-01-22

  • look at the extent of Japanese deleveraging and how long more they have http://t.co/9volvZ9Q #
  • Good two hours with John Mauldin this morning. He thinks there's a good chance that natural death may be optional for our generation #
  • The Fear Index http://t.co/Dfl5hwc9 #
  • Ban CNBC alums from BTV http://t.co/t5PNYK0X #
  • wtf?!"(Merkel) would consider legislation to bar institutional investors from selling bonds when downgraded" http://t.co/UsjepnbR #
  • Overnight Long/Intraday Short Gold Fund Doubles In Just Over A Year: Generates 43% Annualized Return http://t.co/DHPmCY6A #
  • anonymous-businessman-suffering-serious-ptsd-following-iphone-incident hilarious http://t.co/jxxOs12c #
  • I defy you to tell the difference between a naked prostitute and any other naked woman http://t.co/zSxFkm1d #
  • If the business world were a book it'd be in extremely small font cos of all these people trying to be on the same page #
  • So I just realized the monthly run rate of my seat on this desk is appreciably HIGHER than my own salary. Thats what i call fiscal imbalance #
  • Wow. Wikipedia is about to stage a 24 hour blackout. Good luck to last minute homework writers… #
  • Marina Bay station – now offering two ways to reach Dhoby Gaut http://t.co/g7SG5nSM #
  • Employing dudes to explain the new orange Marina Bay to low-IQ passengers http://t.co/rv5cusHg #
  • #Page 17 of 366. The rest is still unwritten. #
  • Oh hai Casin-imean-Bayfront station http://t.co/kvCT1f1A #
  • Funny how bbg writes so. Much. Fluff. http://t.co/F0mZ4g8z #
  • A selection of comments from Federal Open Market Committee meetings which resulted in laughter
    http://t.co/2aq2S0vB #
  • the baltic dry index is down 42% YEAR TO DATE. not a typo. global trade is the worst it's been since end 2008. #
  • http://t.co/KJ1Pql2x http://t.co/KJ1Pql2x #
  • in an impressive display of the lunacy that was Wall Street in the mid-2000s, CDOs started buying each others’ pieces http://t.co/cvzAiw92 #
  • In the last two years, half of all CDOs by Merrill bought significant portions of other Merrill CDOs. http://t.co/cvzAiw92 #
  • I wonder how Asian people in Hollywood answer phones. "Go for Wang" isn't quite business formal #
  • 2nd day with John mauldin http://t.co/oVuIYyJY #
  • jerry yang should just retire and enjoy life. well past his heyday. #
  • Einhorn's idiot chart http://t.co/6IyoheBO #
  • this is probably the most important economics I have learned since high school, very recommended. http://t.co/XB1k6zUF #
  • holy crap this is actually pretty good! http://t.co/MOlaA6xM great job @AlephBlog #
  • "Since inception in May 1996, Greenlight Capital, L.P. has returned 1,685% cumulatively or 20% annualized, both net of fees and expenses." #
  • "HORNETS! TONIGHT WE DINE IN HIVE!" http://t.co/1XGoK85S #
  • http://t.co/oriiQQMk #
  • 10k.126: Dell vs. Apple http://t.co/CEhUmhTQ #
  • Just realized my boss used to be a PM at Pimco. Wonder if fixed income trading ability is transferable independent of pimco's superior infra #
  • ok even my barber is asking me to get a girlfriend. this is getting ridiculous. Something wrong either with me or with society. #
  • Well done Citadel! http://t.co/upJxGmJc #
  • Oh god. Valentines freaking day ads are starting to get airtime. The day invented to make singles drown in self pity. #
  • @Namitamita you forgot the chestnuts roasting on an open fire #
  • Markets Monitor for 21 Jan 2012 http://t.co/3bqoVlFI #
  • @nduan those two things sorta contradict! #
  • Singapore: "}?>{\£*€{{>+#{^"

    Thailand: "You call THAT a flood?!" #

  • how Oprah got her start: http://t.co/SoAMWkJL #
  • "the confidence interval surrounding [the capital of “large complex financial institutions”] is greater than 100%" http://t.co/ZEZ1zQM6 #
  • i have trouble believing John Hempton's CV is what it is. http://t.co/Dex6aV9z #
  • Chuck Norris Endorses Newt Gingrich for President http://t.co/BgOgCvt9 #
  • my mum is an AMAZING chef. #

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