Earlier this week, we discussed the Second Circuit’s summary order in the insider trading appeal by Rajat Gupta. Gupta was convicted in S.D.N.Y. as part of the string of successful prosecutions brought during the tenure of U.S. Attorney Preet Bharara. The summary order affirmed the denial of Gupta’s 2255 petition, thereby leaving in place his conviction. The Second Circuit, without explanation, has withdrawn the summary order and published the same decision as a per curiam opinion. Other than the correction of minor typos, there appear to be no changes in the Court’s ruling. A link to the published opinion is here.
The import of this event is that the Gupta decision is now precedential and can be relied upon by future panels. The Court did not explain why it decided to publish Gupta as an opinion; there is no reference to one of the litigants seeking its publication. It is sensible for the Court to have taken this step, given the possibility of future habeas petitions from other defendants in insider trading cases. The decision’s discussion of the personal benefit issue also can be relied upon as precedent in the future, which may help shed some light on this tricky and controversial legal question