Relationships with and Responsibilities to the Investing Public

Ethical and Professional Standards

Standard V: Relationships with and Responsibilities to the Investing Public

1. V(A) Do not use material nonpublic information

Members shall not make any investment action (trade the security, or make a recommendation regarding the security), or communicate the information, when in the possession of material nonpublic information related to the value of a security if such action would breach a duty, the information was misappropriated, or if it relates to a tender offer. If such material nonpublic information is received, an effort should be made to get the company about whom the information relates to make a public disclosure of the information, except if the information was received because of a special or confidential relationship with the company (as in the case of “constructive” insider), and the information is to be kept in confidence.

a. Definitions of Material Nonpublic Information
(1) Traditional theory
(a) Information must be material. Information is material if:
(1) It pertains to a tender offer.
(2) It would significantly change the total mix of information about a company, its affairs, or its securities; i.e., a reasonable investor would want to know it before making an investment decision, or, if known it would probably have an impact on the price of a security.
(3) It is a specific fact, rather than an opinion.
(b) The information must be Nonpublic. Information becomes public as soon as the company discloses it in a way calculated to make it available to the general investing public. Corporate disclosure made to a “room full of analysts” does not constitute disclosure under the law.
(c) The source Must be an insider: Someone who knows the information because he or she is in a position to receive confidential information about a company’s affairs and who has a fiduciary duty not to disclose it.

Tippees, such as analysts who receive material nonpublic information, may legally use it, unless they are brought into the fold of confidentiality or then know that the information was mis-appropriated or obtained illegally. They are brought into the fold of confidentiality when they are given the information for a legitimate business purpose.

Note that a fiduciary duty exists as a matter of law; it cannot be imposed simply by telling someone to “keep this information confidential.”

(2) Misappropriation Theory

Under the misappropriation theory, individuals commit securities fraud if they obtain material nonpublic information from another to whom they owe a duty of trust and confidence, and then communicate that information or use it as the basis of a trade or recommendation, even if they owe no fiduciary duty to the issuer of the involved issuer. They also commit fraud if they obtain material nonpublic information illegally.

The concept is that material nonpublic information is “property.” If anyone who has access to this information uses it for their own personal benefit, or give it to others, they misappropriate company property. This is a form of theft, which is punishable by criminal and civil actions.

b. The Mosaic theory

Taking several immaterial and/or publicly available stand-alone facts from various sources and putting them together to form a complete and significant picture of a corporate situation is called the mosaic theory. This is the analyst’s job and is completely legal.

c. Required conduct

(1) Members shall not take any investment action or communicate information about a security or company, when in the possession of material nonpublic information related to the value of the security if such action would breach a duty owed to the company, the information was misappropriated, or if it relates to a tender offer.
(2) When acting as a consultant or any other role in which the member becomes a “temporary insider” keep information received confidential and do not use it for investment purposes or communicate it to others.
d. Legal Ramifications of Using or Communicating Inside or Misappropriated Information

Penalties include:
(1) Fines up to $1,000,000 for individuals ($2,500,000 for firms)
(2) Disgorgement of up to three times any illicit profits (or losses avoided) from trading (or recommending) securities based on inside or misappropriated information.
(3) Jail terms of up to 10 years.
(4) Civil suit for damages suffered by the counterparties to any illegal trades.
(5) Sanction by regulating bodies, primarily the SEC.


e. Compliance Procedures

(1) Do not seek out material nonpublic information.


2. V(B) Performance Presentation

Members may not misrepresent their investment performance record, either in terms of the presentation or the measurement of those results. When communicating data about the performance history of accounts or composites (group of accounts), either of the individual investment manager or of a firm, the member must give a fair and complete presentation. It is unethical to misrepresent past investment performance or the investment performance that a client can reasonably expect to obtain in the future.


a. Reasons Why Performance Presentation Standards are Necessary
Historically, investors have faced many difficulties in obtaining fair performance results that were comparable among various investment management firms.

Therefore, AIMR developed the AIMR Performance presentation Standards and Global Investment Performance Standards in the hope that a set of globally accepted common standards will enable performance results among various investment firms to become truly comparable.

b. Required conduct
(1) Members may not misrepresent
(2) When communicating data about the performance history of individual accounts, composites (groups of accounts), an individual investment manager, or an entire firm, the member must give a fair and complete presentation.
c. Compliance Procedures
(1) Compliance with the AIMR Performance Presentation Standards and/or the Global Investment Performance Standards is the best way to comply with this standard.