What is the current state of the law on the interpretation of the Exchange Act in relation to allegations of misappropriation of confidential or confidential information?

Both theories advance the "animating purpose of the Exchange Act: to insure honest securities markets and thereby promote investor confidence." Id. at 658, 117 S.Ct. 2199. They are based on the assumption that "investors likely would hesitate to venture their capital in a market where trading based on misappropriated nonpublic information is unchecked by law." Id . Both theories seek to avoid the unfairness that "[a]n investor's informational disadvantage vis--vis the misappropriator with material, nonpublic information stems from contrivance, not luck; it is a disadvantage that cannot be overcome with research or skill." Id. at 65859, 117 S.Ct. 2199. These theories are consistent with the common law principle that "a person who acquires special knowledge or information by virtue of a confidential or fiduciary relationship with another is not free to exploit that knowledge or information for his own personal benefit[.]" Diamond v. Oreamuno , 24 N.Y.2d 494, 497, 301 N.Y.S.2d 78, 248 N.E.2d 910 (1969).