by Jean-Louis Gassée

Insider trading isn’t new but it’s still exciting, especially if you don’t play the stock market. For spectators, the cops and robbers game mixes ingenuity, mischief, furtiveness and confederacies. And the unavoidable dunces who talk or do too much and get the miscreants in serious trouble with the Law.

The latest episode of the insider trading, as revealed here by the Wall Street Journal, appears to be of epic proportions: ‘[It] could eclipse the impact on the financial industry of any previous such investigation…’

Among the specifics described in the WSJ article and in other pieces such as this one, I note a new and intriguing reference to Channel Checks. In layperson’s terms, the practice sounds more than reasonable. To get an idea of a company’s business, you can listen to their officials, or you can go around and check their distribution channels. Walk into a store, feel the pulse, ask employees how business is doing. Or if you have the time and inclination, stay around a little bit and count customers walking in, and those walking out with a purchase. Rinse and repeat. Do this on a representative sample and you do get very useable data. That’s what I did 31 years ago in Paris: I was interested in buying a franchise of a US business and wanted to have my own set of data before meeting company execs and their glowing projections. I stood in and out of their Champs Elysées store and counted the take. It helped: I stayed in the computer business.

No less an authority than Peter Lynch, the famed Magellan Fund investor, recommended doing precisely that type of legwork and homework. His investing motto was ‘Buy What You Know’. By which he meant studying the business you considered investing in, the product, the books, management, suppliers, distributors, everything. (See his very good books, One Up On Wall Street and Beating the Street for more. Regrettably not available in electronic form.)

What Peter Lynch recommended a couple of decades ago is alive and well, still recommended by pros. But the originally healthy practice appears to have undergone a malignant mutation. Critics and cops allege the pros went deeper and deeper into “channels”, mostly upstream into suppliers. If you manage to know how many processors or screens of a particular spec Motorola ordered, you gain a very precise estimate of their projections. Especially in an age of Just-in-time inventory management. Add information gained from shippers, ship or air, containers or palettes, and you’re on top of things.

Or, as the FBI and SEC allege: inside. You’re now trading on information not available to the investing public, you’re guilty of insider trading.

Quoting from a related WSJ piece:

“Insider trading basically comes down to where you know or ought to know that the person from whom you’re getting this information has a duty to someone else to keep it confidential,” said former Securities and Exchange Commissioner Paul Atkins in a video interview with The Wall Street Journal. “If you go in and pay the mail clerk to give you special information, that’s not proper.”

Channel Checks now becomes an underhanded, criminal activity. For amateurs of sweet ironies, above, this note’s third link takes you to a site titled… Wall Street Cheat Sheet.

We’ll have to see what skilled attorneys on both sides do with the accusations. Insider trading isn’t always easy to prove and provokes an abundance of academic discussions: see this Wharton overview. Some libertarians even contend insider trading ought to be legal… Others allege insider trading by members of Congress, their staffs and government officials is facilitated by loopholes.

This doesn’t help the mood on the street — not the Street.

The Channel Checks evolution must be viewed through four filters. Common sense, legal logic, policy and politics.

Common sense, visceral, emotional, clamors insider trading is unfair. It tilts the playing field against You and Me investors. Trading ought to take place on the proverbial Level Playing Field, meaning everyone having the same information for their trading decisions. Nice sentiment but delusional: What about intellect and homework, the legal kind? Now, everyone has access to satellite pictures of parking lots on heavy shopping days.

Legal logic is a complicated, tortuous, ever changing matter. Case law evolves, Supreme Court interpretations zig and zag. In theory, above the rabble’s emotions but, in practice, tainted by politics.

Speaking of which, politics, our government’s latest bout of against insider trading seems driven by the need to deal with the post-bailout outcry against Wall Street. I’m not saying the outcry isn’t justified, au contraire. From here, it looks like We The People have been stiffed: Wall Street, the cause of the 2008 catastrophe, has been saved at our expense. Yes, it was for our own good. But the obscenity of today’s bonuses and CEO compensation hurts. Good politicians — attorneys general are elected in our country — can’t let the opportunity to run to our defense go unexploited. This isn’t to say some good won’t come out of it. But we have the Sarbox example to the contrary: there, the outcry following scandals such as the Enron affair led to regulations hurting businesses, especially smaller ones, only benefiting accountants and attorneys, not investors as the 2008 crash proved.

Lastly, policy: how we run ourselves. Insider trading lowers confidence in markets, it makes people distrust Wall Street, it limits amount of money available to finance businesses and thus hurts the economy, that is all of us. Based on past examples, one has to worry about politics overrunning policy, about posturing leading to bad law. Still, let’s hope pragma wins over drama…

For myself, I don’t play the stock market. Across the table, I see PhDs, the famous quants, with brains bigger than mine, computers bigger and faster than mine, and wallets fatter than mine. Even if they don’t cheat, how can I win?

JLG@mondaynote.com

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