Gene Levoff, Apple's former Director of Corporate Law and Corporate Secretary, has attacked the foundation of criminal insider trading cases, arguing that criminal prosecutions of insider trading are "judge-made" constructs that erroneously apply SEC regulations in a criminal context and usurp the sole authority of Congress to make laws.

This argument stems, in part, from the 2014 insider trading case of Whitman v. U.S., wherein Justices Antonin Scalia and Clarence Thomas asked “Does a court owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement?” The two Justices doubted such “pretensions to deference,” and said “the rule of lenity requires interpreters to resolve ambiguity in criminal laws in favor of defendants.” 

The U.S. Attorney's Office has labeled Levoff's arguments a "Hail Mary pass."  But is this really a "Hail Mary" or an issue the Court will have to eventually take up? And how will the current composition of the Court affect the outcome? We know one thing is certain, the courts are going to see this argument more.