Insider trading has long been restricted by federal law. Corporate executives owe fiduciary duties of loyalty and care to their companies and shareholders, duties that are breached when those insiders trade in company stock or with company information. Because these fiduciary duties are a mandatory feature of corporate law, quintessential insider trading cases fall squarely within the prohibition.
Now, long after the fiduciary theory of insider trading liability was developed, “uncorporate” LLC and LP substitutes to corporations have emerged as alternative ways to organize businesses. Unlike corporations, these entities can, and often do, completely waive all management fiduciary duties owed to the entities or shareholders. In my article Uncorporate Insider Trading, I analyze the implication that, through these fiduciary duty waivers, these entities can effectively waive core insider trading liability.