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How to really stop (some) insider trading

November 29, 2012: 1:32 PM ET

Forcing executives to schedule their trades well in advance won't stop them from taking advantage of bad news.

insider-trading

Correction: 11/30, 3:00 PM.

FORTUNE -- When it comes to insider trading and executives, the market has always responded with a wink and a nod. By definition, every time an executive buys or sells a stock it's insider trading. Do CEOs have information that no one else has about their company? You betcha. Do they trade on that information? Too many of them seem to.

And this is no secret. There is a whole school of investing devoted to watching the trades of executives -- it's viewed by some investors as legitimate insider trading.

So it's no surprise that the Wall Street Journal was able to round up a number of questionable examples of insider trading by executives. The WSJ's study itself, as others have pointed out, was flawed. It was set up in a way that was the data equivalent of entrapment.

But those who are harping on that are missing the point. The WSJ didn't need to do its own study. In the past two years, the Securities and Exchange Commission has nabbed an alarming number of hedge funders for insider trading, some with the help of top executives. The SEC seems to be building a case against top hedge fund manager Steven Cohen of SAC Capital -- it recently charged one of Cohen's former traders with one of the biggest insider trading schemes in history. What's more, there are plenty of studies out there already that show insiders routinely beat the market, something very few full-time professional investors are able to replicate.

MORE: A who's who of Steven Cohen's web

A decade ago, the SEC came up with a system it thought would limit or eliminate executives from profiting from insider information. The agency encouraged executives, but didn't require them, to lock in dates well in advance for when they would buy or, more often, sell their companies' shares. If stock sales were planned for months, and were routine, then there would be no ability to cheat. Right?

Not exactly. The plans proved to be more flexible than the SEC envisioned. But that's not their biggest weakness. In most instances of apparent insider trading by an executive, a CEO miraculously appears to be able to dump a big chunk of their stock holdings right before the company reports bad news, like the quarter was worse than expected, saving them hundreds of thousands, maybe millions of dollars. Other shareholders, not in the know, take the hit.

But a pre-set stock plan won't stop that. That's because a CEO has the ability within some reason to decide when to let the market know that his business has taken a turn for the worse. Seems natural to release news that will be bad for shares on a day when you are holding less of those said shares.

MORE: Blackrock's new bond plan

Alan Jagolinzer, a business professor at the University of Colorado Boulder who has studied these plans, says there is a lot of variation in the way the plans are set up, but there isn't any evidence to suggest that executives are kept in the dark as to when their pre-set sales will occur. Indeed, a recent study of executive stock option plans found that companies were more likely to announce bad news in the days after a stock grant expired than before.

So given that preventing insiders from acting on private information is very, very hard, what can we do about it? First off, executives who lock in stock sales in advance shouldn't be able to know when the actual sales will occur. Blind trusts aren't perfect, but they are better than the alternative.

MORE: Who needs a blind trust?

Second, executives should only be allowed to sell after earnings releases, not before. The point of stock options is to align executives with shareholders. They should be forced to share the pain when their company fumbles, not be able to sidestep it by selling in advance.

There actually is one silver bullet that would end 90% of all illicit insider trading by executives: Ban stock options, or otherwise paying top executives in stock. Unfortunately, that's probably not going to happen. Not just because of a widely held, but not really proven, belief that executives who are paid in shares are better for shareholders. The reason options and stock grants aren't going away is because of accounting.

By current rules, paying executives is cheaper that paying executives in cash. Shareholders, too, share in the benefit of the accounting illusion. But it's not costless. Until the market is willing to give that up, there will always be executives who are able to cash in by knowing before others that they have screwed up, leaving regular shareholders to take the hit.

Correction: An earlier version of this story said that companies don't have to expense compensation when they pay executives in cash. That's wrong. Companies have to amortize those payments overtime.

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About This Author
Stephen Gandel
Stephen Gandel

Stephen Gandel has covered Wall Street and investing for over 15 years. He joins Fortune from sister publication TIME, where he was a senior business writer and lead blogger for The Curious Capitalist. He has also held positions at Money and Crain's New York Business. Stephen is a four-time winner of the Henry R. Luce Award. His work has also been recognized by the National Association of Real Estate Editors, the New York State Society of CPA and the Association of Area Business Publications. He is a graduate of Washington University, and lives in Brooklyn with his wife and two children.

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