Back in May 2009, the SEC generated significant publicity when it brought a case against Renato Negrin, a former portfolio manager at hedge fund investment adviser Millennium Partners L.P., and Jon-Paul Rorech, a salesman at Deutsche Bank Securities Inc., with insider trading in credit default swaps of VNU N.V. The SEC noted at the time that the case represented its first insider trading enforcement action involving credit default swaps.

The SEC alleged in its complaint that Rorech learned information from Deutsche Bank investment bankers about a change to the proposed VNU bond offering that was expected to increase the price of the CDS on VNU bonds. Deutsche Bank was the lead underwriter for a proposed bond offering by VNU. Rorech then allegedly tipped Negrin about the contemplated change to the bond structure, and Negrin purchased CDS on VNU for a Millennium hedge fund. When news of the restructured bond offering became public in late July 2006, the price of VNU CDS substantially increased, and Negrin closed Millennium’s VNU CDS position at a profit of approximately $1.2 million.

In November 2009, SEC Director of Enforcement Robert Khuzami said that the agency would be focusing on derivatives as part of its crackdown on insider trading by hedge funds. Khuzami stated that “the days of insider-trading scrutiny being focused almost solely on the equity markets are now gone” and the SEC will “roll back the curtain on those markets and look at patterns across all markets.”

The Negrin/Rorech case is back in the news this week as it is set to go to trial next week in federal court in New York. The WSJ reports that beyond the specifics of that case, a broader debate is brewing as to whether the SEC has jurisdiction to pursue insider trading charges in the unregulated market for credit default swaps" (CDS). Negrin and Rorech argue that CDS swaps aren't securities, but are rather "private contracts between financial players outside the SEC's jurisdiction." The SEC, however, counters that it does have jurisdiction over swaps because they're based on the value of VNU securities.