How company executives and others use Rule 10b5-1 trading plans has created controversy and in fact been the subject of SEC rule making. A recent indication that the SEC Enforcement Division is scrutinizing these plans is this September 21, 2022, Press Release announcing an enforcement action against two executives of Cheetah Mobil related to the use of a 10b5-1 plan.
The case centers on this provision of Rule 10b5-1:
Affirmative defenses.
(1)
(i) Subject to paragraph (c)(1)(ii) of this section, a person’s purchase or sale is not “on the basis of” material nonpublic information if the person making the purchase or sale demonstrates that:
(A) Before becoming aware of the information, the person had:
(1) Entered into a binding contract to purchase or sell the security,
(2) Instructed another person to purchase or sell the security for the instructing person’s account, or
(3) Adopted a written plan for trading securities;
According to the SEC Order:
“At both the time they established the March Trading Plan and when they sold Cheetah Mobile securities pursuant to it, Sheng Fu and Ming Xu knew about the material negative trend in revenues from the Advertising Partner relationship. Sheng Fu and Ming Xu knew or recklessly disregarded that this information was material and nonpublic. Moreover, because both Sheng Fu and Ming Xu were aware of this material nonpublic information when they created the March Trading Plan, the March Trading Plan did not comport with the requirements of Exchange Act Rule 10b5-1.”
Both officers paid civil money penalties and agreed to several conditions to trading in Cheetah Mobile’s securities, including requirements that they provide notice to an independent third party about any trading activity and any new 10b5-1 plans, to observe a 120-day “cooling off” period before trading under any new 10b5-1 plan, and to only have one such plan at any time. These requirements will sound familiar if you have read the SEC’s proposed rule.
As always, your thoughts and comments are welcome!