Law Prof Doug Berman at Sentencing Law and Policy provides his thoughts on the policy implications of the decision. I, of course, wanted to get to the bottom line and learn what new sentence Nacchio will get. Not so easy.

It's a very technical opinion that focuses on the method for calculating the amount of loss in insider trading cases. Essentially, it rejects the use of a "net profit" approach because it does not take into account extrinsic market factors that may have contributed to an increase in the stock's value. It adopts a "disgorgement" approach instead.

Under the government’s prosecution theory, the market would have viewed the inside information in a negative light, and disclosure of that information would have detrimentally impacted the value of Qwest stock. Therefore, the nondisclosure of the information allowed the stock to maintain an artificially high value and allowed Mr. Nacchio to benefit from that value when he traded in the stock. It is that illicit, artificially high value that should be reflected in the gain calculation, not the underlying value of the stock.

The facts:

Mr. Nacchio ultimately was convicted on nineteen counts of insider trading covering the trades that he had made from April 26, 2001, to May 29, 2001; he was acquitted of twenty-three counts covering earlier trades. The district court sentenced Mr. Nacchio to seventy-two months’ imprisonment on each count, to run concurrently, and two years of supervised release on each count, also to run concurrently. The district court additionally assessed a $19 million fine and ordered him to forfeit approximately $52 million.

...The parties do not dispute that: Mr. Nacchio’s gross proceeds from the relevant stock sales were $52,007,545.47; the cost of exercising the options was $7,315,000.00; the brokerage commissions and fees paid were $60,081.09; and the taxes paid were $16,078,147.81.

The Government's theory:

The government argued to the district court that Mr. Nacchio’s “gain resulting from the offense” pursuant to § 2F1.2(b)(1) was at least $44.6 million, i.e., the net profit Mr. Nacchio received from his stock sales during the April-May 2001 time period. That figure would equate to a 17-level increase to Mr. Nacchio’s base offense level and a Guidelines range sentence of 70-87 months. U.S.S.G. § 2F1.1(b)(1)®.

Nacchio argued (through calculations made by his excluded expert Dr. Fischel) that the maximum amount of loss was $1.8 million (i.e., 3.52 percent of $52,007,549), which would translate to a 12-level increase under § 2F1.1(b)(1)(M) and a Guidelines range of 41-51 months. The court arrived at its own figure of $28 million net profit, representing the gross proceeds minus the cost to purchase the shares. This resulted in a 16 point increase to the base offense level.

Together with a 2-level increase due to Mr. Nacchio’s abuse of a position of trust under U.S.S.G. § 3B1.3, the district court determined that the total offense level was 26, resulting in an applicable Guidelines range of 63 to 78 months. The district court imposed a sentence of 72 months’ imprisonment for each count, to be served concurrently.

The Tenth Circuit reversed the trial court's method of calculation of loss.

On the other hand, it is axiomatic that a critical objective of federal sentencing is the imposition of punishment on the defendant that reflects his or her culpability for the criminal offense (rather than for the unrelated gyrations of the market).

Contrary to the district court’s net-profit approach, a disgorgement approach is entirely consonant with central principles of federal sentencing policy in that it endeavors to hold the defendant accountable for the portion of the increased value of the stock that is related to his or her criminally culpable conduct. Consequently, it militates against the creation of unwarranted sentencing disparities among similarly situated defendants.

Federal sentencing is individualized sentencing: the sentencing court seeks to craft a sentence that fully reflects a particular defendant’s criminally culpable conduct, including the harm caused by it, and the defendant’s personal circumstances.

However, if the impact of unrelated twists and turns of the market is ignored in the sentencing calculus then an insider trading defendant is likely to suffer a sentence that is detached from his or her individual criminal conduct and circumstances.16 And this detachment can have a profound, detrimental impact on another objective of federal sentencing—the elimination of unwarranted disparities between similarly situated defendants.

In a footnote, the court explains:

Crimes like bank robbery and drug trafficking are thoroughly permeated with illegality. In contrast, the act of trading in securities—in itself—is entirely lawful. As relevant here, what makes the act illegal is trading while in possession of material, nonpublic information. Consequently, a whole host of factors can contribute to the gains or losses that a defendant incurs from trading in stock that have nothing to do with the criminal dimensions of his or her activity—factors that relate simply to the ordinary economics and psychology of the marketplace.

A sentencing approach that ignores this distinguishing aspect of the insider trading context would be at odds with the individualized sentencing objective of federal sentencing and the related concern pertaining to unwarranted sentencing disparities. In effectuating these aspects of federal sentencing policy in the insider trader context, sentencing courts must proceed with great care to ensure that the gain attributed to a defendant actually stems from the criminal dimensions of his or her stock trading.

On the disgorgement approach:

Therefore, from a policy perspective, it makes sense to adopt a sentencing approach that is focused on a defendant’s criminally culpable conduct and has the effect of excising—even if not completely —unrelated market forces from the sentencing calculus, thereby narrowing the zone of unpredictability in sentencing.

Such is the disgorgement approach we adopt here: it takes into consideration the fact that stocks have inherent value (quite apart from criminally fraudulent conduct) and seeks to exclude that unrelated value from the computation of a defendant’s punishment, and it sets a logical, temporal cutoff point for assessing the gain of the illegal conduct, i.e., the point when the information is disclosed and absorbed by the market.

So, how will the district court proceed?

Once the focus is properly centered upon the gain resulting from Mr. Nacchio’s insider trading offense (i.e., upon the increase in value realized due to the criminal dimensions of his stock trading), then the district court will have considerable discretion to consider a number of variables in arriving at an appropriate gain figure. We do not establish an exact formula here for arriving at that figure.

On the forfeiture issue, the Court said:

Therefore, we hold that under the specific facts of this case, Mr. Nacchio’s acts of insider trading involved lawful goods sold in an illegal manner. Thus, § 981(a)(2)(B) should be applied to calculate Mr. Nacchio’s forfeiture amount; the proceeds subject to forfeiture are subject to deduction of direct costs.27 Because the district court applied the wrong legal framework, we will reverse.

How much lower will Nacchio's sentence be?

Mr. Nacchio’s gain should be calculated in a manner that is more narrowly focused on producing a figure that reflects, in at least approximate terms, the proceeds related to his criminally culpable conduct (i.e., trading on material, nonpublic information).

...We further determine that it was incumbent upon the district court to adopt a realistic, economic approach (1) that would take into account that Mr. Nacchio’s offense did not inhere in his sale of the shares itself, but in the deception intertwined with the sales due to his possession of insider knowledge, and (2) that consequently would endeavor to compute his gain for sentencing purposes based upon the gain resulting from that deception.

How is the court supposed to figure that out? By using a civil disgorgement remedy. Anyone want to take a guess as to what it will be? And will the court agree to consider Dr. Fischel's calculations? That would be ironic, considering the trial court refused to allow him to present his opinion at trial that Nacchio didn't commit insider trading at all.