Full opinion text
ORDER RE POST-TRIAL AND REMEDY MOTIONS Re: Dkt. Nos. 170, 175 JACQUELINE SCOTT CORLEY, United States Magistrate Judge Plaintiff Securities and Exchange Commission (“SEC”) charge that Defendants Sasan Sabrdaran and Farhang Afsarpour engaged in insider trading in violation of the antifraud provisions of the Securities Exchange Act of 1934. Following a three-week trial, the jury returned a verdict in the SEC’s favor. Now pending before the Court are Defendants’ joint motion for judgment as a matter of law, or in the alternative, a new trial and the SEC’s post-trial remedies motion. (Dkt. Nos. 170, 175.) Having had the benefit of oral argument on March 23, 2017, and having carefully considered the parties’ written submissions, including their post-oral argument submissions, the Court DENIES Defendants’ motion and GRANTS IN PART the SEC’s remedies motion as set forth below. BACKGROUND The SEC alleged that Defendants engaged in insider trading when Dr. Sa-brdaran, an employee of pharmaceutical company InterMune, Inc., tipped his longtime friend Afsarpour to material, nonpublic information about the progress through the European regulatory approval process of Esbriet, one of InterMune’s products, and Afsarpour then acted on that tip by engaging in transactions in connection with InterMune securities. After receiving the nonpublic information about Esbriet’s EU approval on the eve of the public announcement in December 2010, Afsarpour — who lives in the UK — placed certain online financial bets on the price changes in InterMune stock and options; specifically, he placed spread bets through a London-based company called IG Index and also bought InterMune stock via his stockbroker in New York. Afsarpour urged others to invest in InterMune as well, some of whom did. Dr. Sabrdaran served on the InterMune team seeking marketing approval for Es-briet from the European Medicines Agency. Afsarpour is a close personal friend of Dr. Sabrdaran, and they communicated by phone, email, Faeebook and other means frequently to discuss developments in their lives, philosophy, and other personal issues. They also tried to visit each other when one of them was present in the other’s country. Afsarpour contended that he started placing spread bets on InterMune stock in November 2010 based on his own research about the company. He insisted-that, based on publicly available information, he believed that InterMune would receive approval from the European Medicines Agency during the first quarter of 2011 to market and sell Esbriet in the European Union, and that this approval would be announced during the first quarter of 2011. He maintained that he did not receive any material nonpublic information from Dr. Sabrdaran or anyone else regarding InterMune. ' Early in the case, the Court granted in' part and denied in part Defendants’ motions to. dismiss and denied their motion to strike portions of the initial complaint. (Dkt. No. 36.) Defendants’argued, among other things,- that the transactions at issue involve spread bets, which are not “securities” for the purposes of a Section 10(b) and Rule 10(b)-5 violation. The Court concluded that the SEC, with minimal amendment, could plausibly allege that Afsarp-our’s spread bets were “in connection* with” securities by alleging.that IG Index had hedged his spread bets, which the SEC amended to do. After discovery, the Court denied the SEC’s motion for partial, summary judgment on the same issue, holding that to establish a securities violation under Section 10(b) and Rule 10(b)-5, the SEC need not necessarily.prove that Afsarpour subjectively knew that his fraudulent activity was “in connection with” the purchase or sale of a security, but that a reasonable trier of fact might not find that Afsarpour’s spread bets necessarily, met that test. Trial began on October 17, 2016. The parties agreed that Defendants shared a. very close friendship; beyond that, the SEC and Defendants presented very different accounts. The SEC .elicited testimony and proffered documentary evidence connecting the confidential and public announcements about Esbriet, communications between Defendants, and Afsarpour’s trading activity. For example, there was testimony that Dr.’ Sabrdaran communicated with Afsarpour shortly after receiving a confidential, internal InterMune email stating that the European Medicines Agency had given the green light for Es-brief> — the “As Good As It Gets” email. There was testimony that Afsarpour executed very few trades on InterMuné until mid-December 2010, the eve of Esbriet’s imminent approval announcement; that the days leading up to the announcement he encouraged friends to invest heavily in InterMune; and that the day before the public announcement he invested more heavily than ever before, in more highly leveraged transactions than ever before, using credit'cards to fund , his bets, which he had never done-before,- The SEC entered emails into the record in which, the day before the public announcement, Af-sarpour wrote to friends telling them to get their money in that day before .it was too late. In the SEC’s case-in-chief, the jury heard from Dan Welch, InterMune’s CEO, who described the company’s business and confidentiality policies’ generally. Steven Porter and Marianne Porter, doctors and InterMune executives, repeated .Inter-Mune’s confidentiality policies, explained the process of regulatory review before the European Medicines Agency generally and for Esbriet’ in particular, described Dr. Sabrdaran’s role in the group that worked on Esbriet’s drug safety, and discussed who. knew about its approval before the news became public. Dr. Spencer Hudson, another doctor on the Esbriet team, also testified about what he and the other members of the team knew as they shepherded the drug through the approval process. They testified that InterMune learned on December 10, 2010 that .the European Medicines Agency would announce Esbriet’s approval on December 17; 2010. Apart from InterMune employees, two employees from IG Index testified. Bridget Messer, a financial services attorney who is the company’s chief commercial officer, discussed the “spread bets” that IG Index offers, explaining how the company often hedges its customers’ spread bets, how the contracts each customer — including Af-sarpour — signs in advance of placing any spread bets inform them that IG Index might hedge, and how IG Index’s internal compliance department investigated trades in InterMune in December 2010 and froze Afsarpour’s account. The company’s chief information officer, Jonathan Noble, also testified, further explaining how spread bets work. He also described Afsarpour’s IG Index spread bets and identified instances where IG Index hedged his bets, which he' stated it 'did for a majority of his transactions. He noted that, prior to December 10, 2010, Af-sarpour placed only three InterMune orders that were actually executed, whereas between then and December 17, 2010, he placed many more executed trades; and testified that Afsarpour made much riskier InterMune investments after December 10, 2010. As of the close of business on December 15, 2010, Afsarpour had approximately £145,000 on InterMune in his IG Index account. Of that amount, £20,000 pounds were deposited through credit cards that day. In contrast, Afsarpour made no credit card transactions from October 11 through December 9, 2010, Noble testified that an IG Index employee had telephone conversations with Afsarpour on December 13 and 14, 2010, and the jury heard recordings of those phone calls. As to hedging, Noble testified that IG Index did not itself purchase InterMune stock to hedge Afsarpour’s bets. Instead, for some of the spread bets IG Index entered into contracts for difference (“CFDs”) with a French brokerage in London called Cheu-vreux and instructed that company to trade in the underlying stock; Noble did not know if Cheuvreux actually purchased the underlying stock on a U.S. market. He testified that IG Index hedged other spread bets through similar transactions with a brokerage called Macquarie. Stockbroker Michael Burkoff testified that Afsarpour purchased' 75 shares of In-terMune stock through him on December 16, 2010, that the purchase was Afsarp-our’s idea, and that Afsarpour had called him months earlier to discuss InterMune for the first time. SEC investigative attorney Drew Panahi testified extensively about the agency’s investigation into Afsarpour’s InterMune trades. Through Panahi, the jury was shown charts of Afsarpour’s trades and his phone calls with Dr. Sabrdaran, which coincided, and his emails with the SEC where he denied knowing anyone at Inter-Mune. Panahi told the jury that Afsarp-our’s profits from spread bets placed between December IQ. and December 17, 2010 totaled $877,510.53. According to Panahi, Afsarpour said he knew IG Index would hedge his spread bets. An SEC economist, Dr. Carmen Taveras, also testified as an expert on the SEC’s behalf. The jury was shown charts she, prepared showing Afsarpour’s daily payments into his IG Index account and how the percentage of his IG Index accounts dedicated to Inter-Mune changed over time, largely after December 10,2010. .The jury also heard from a number of Afsarpour’s friends — either live or via videotaped deposition — who testified to what Afsarpour told them about Inter-Mune and how they responded: by giving Afsarpour money to invest or opening their own brokerage accounts to do so. One invested $60,000 in InterMune on December 16, 2010 — her first and last time betting on stocks. At the close of the SEC’s ease, both parties moved for judgment as a matter of law. The Court denied the SEC’s motion for judgment as a matter of law that Af-sarpour’s spread bets were “in connection with” securities for the purposes of liability based on evidence that IG Index hedged the spread bets. Defendants moved on two separate grounds. First, Defendants argued that there was no evidence that Af-sarpour knew or had reason to know that Dr. Sabrdaran breached a duty of confidentiality or trust as required to show a tip for the purposes of a Section 10(b) and Rule 10b-5 violation. The Court denied the motion, concluding that there was sufficient circumstantial evidence that there was a tip. Second, Defendants moved for judgment as a matter of law on the claims based on Afsarpour’s spread bets, contending that (1) there was no evidence that Afsarpour knew his spread bets would be hedged; and (2) objecting to the chart the SEC used to show IG Index’s hedging activity, without which, they argued, there was no evidence that IG Index ever hedged the spread bets. The Court denied the motion. In Defendants’ cases-in-chief, the jury heard from expert witness Torben Voet-mann, a financial consultant, who opined that Afsarpour’s betting behavior was consistent with publicly available information — ie., that Afsarpour traded on Inter-Mune based on following signals from the market and publicly available information about the European Medicines Agency— and did not change before and after the December 10, 2010 phone call with Dr. Sabrdaran. The jury also heard extensive testimony from Defendants themselves. Both testified that they communicate regularly about all sorts of topics, but not work. Afsarpour testified that he did not know Dr. Sabrdaran worked at InterMune when he made the investments and that he came across InterMune by accident when his daughter’s boyfriend, Tom Rogerson, asked him to look up a stock under the ticker symbol “ITNM,” and he mistakenly entered “ITMN” — InterMune’s symbol. Rogerson testified at trial that he did not remember any such request. In any event, Afsarpour testified that he has long engaged in day trading, making daily investments based on following the markets and engaging in technical analysis to determine the performance of a stock. He further testified that Dr. Sabrdaran never disclosed qny non-public information about Esbriet’s approval process to him, that he instead made InterMune investments based on'his own research, and that it never came up in conversation that Af-sarpour was placing spread bets on Inter-Mune until after it happened. According to Afsarpour, Dr. Sabrdaran became very angry and upset with him once he learned that Afsarpour had invested in InterMune. During its investigation Afsarpour initially told the SEC he did not know anyone who worked at InterMune and removed Dr. Sabrdaran from his list of friends on Face-book before turning that list over to the SEC. Dr. Sabrdaran testified that he always took seriously InterMune’s confidentiality policies and that he never discussed Inter-Mune, let alone Esbriet’s regulatory approval process, with Afsarpour. He offered explanations for the phone calls with Af-sarpour that had nothing to do with Inter-Mune or Esbriet. On cross-examination, Dr. Sabrdaran acknowledged that he erased the hard drive from his laptop and deleted certain Facebook messages from Afsarpour before turning his messages over to the SEC, but contended that he did so to protect his privacy, not to hide anything from the Commission. Dr. Sabrdaran explained that he ■ had since been fired from InterMune and had not found work as a physician or drug safety executive in the pharmaceutical industry. The parties renewed their motions for judgment as a matter of law at the close of evidence; the Court again denied the motions and sent the case to the jury. The jury deliberated for one day then returned a verdict in favor of the SEC, answering all five questions on the verdict form in the affirmative. (Dkt. No. 165; see also Dkt. Nos. 161-1, 163-1.) Specifically, the jury found that (1) Dr. Sabrdaran breached a duty of trust and confidence to InterMune by intentionally disclosing material, non-public information concerning InterMune to Afsarpour; (2) Afsarpour knew, or should have known, that Dr. Sa-brdaran disclosed material, non-public information to him in violation of Dr. Sa-brdaran’s duty to maintain confidentiality; (3) Dr. Sabrdaran personally benefitted from the disclosure to Afsarpour; (4) Af-sarpour knew, or should have known, that Dr. Sabrdaran disclosed the material, nonpublic information to him for Dr. Sabrdar-an’s personal benefit; and (5) Afsarpour used the material, non-public information Dr. Sabrdaran disclosed to him to engage in transactions that were in connection with a purchase or sale of a security. (Id) Defendants’ joint motion for judgment as a matter of law or, in the alternative, a new trial followed. (Dkt. No. 170.) The SEC thereafter filed its motion for remedies and final judgments to be imposed against Defendants. (Dkt. No. 175.) The Court agreed to hear the motions together. After oral argument, the SEC submitted notices of supplemental authority notifying the Court of insider trading cases where a court ordered joint and several disgorgement against a tipper who received no direct portion of the ill-gotten profits. (Dkt. Nos. 183, 187.) In addition, at the Court’s invitation, Defendants submitted a supplemental brief addressing, in part, the revised arguments and calculations that the SEC raised for the first time in its reply brief in support of its remedies motion. (Dkt. No. 188.) DISCUSSION I. Motion for Judgment as a Matter of Law, or in the Alternative, a New Trial Defendants move for a new trial under Rules 50(b) and 59 on the grounds that the jury’s verdict was contrary to the weight of the evidence and that the Court erroneously instructed the jury on the “personal benefit” and “in connection with” requirements. A. Legal Standard A Rule 50(b) motion is appropriate when the evidence permits only one reasonable conclusion, and that conclusion is contrary to that of the jury. Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009). The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor, EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009), and the court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A “jury’s verdict must be upheld if it is supported by substantial evidence, which is evidence adequate to support the jury’s conclusion, even if it is possible to draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). Under Rule 59, a court has the discretion to grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). The grounds for a new trial include: (1) a verdict that is contrary to the weight of the evidence; (2) a verdict that is based on false or perjurious evidence; or (3) to prevent a miscarriage of justice. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quotation marks and citation omitted). Erroneous evidentiary rulings and errors in jury instructions are also grounds for a new trial. See Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995). When a Rule 59 motion for a new trial is based on insufficiency of the evidence, the court may weigh the evidence and assess the credibility of witnesses and need not view the evidence from the perspective most favorable to the prevailing party. See Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987). The decision to grant a new trial motion lies within the court’s discretion. See Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir. 2007). But “the court is not justified in granting a new trial merely because it might have come to a different result from that reached by the jury.” Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176 (9th Cir. 1990) (internal quotation marks and citation omitted). Rather, a new trial should be granted where, after “giv[ing] full respect to the jury’s findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed” by the jury. Landes Contr. Co., 833 F.2d at 1365. B, Analysis 1. The Jury’s Verdict that Dr. Sabrdaran Intentionally or Recklessly Disclosed Material, Non-Public Information to Afsarpour was not Contrary to the Weight of the Evidence Defendants first contend that the Court should order a new trial because the jury’s finding that Dr. Sabrdaran tipped Afsarp-our is contrary to the weight of the evidence. Defendants urge that the SEC presented no direct evidence of a tip and the circumstantial evidence was weak, and thus that the verdict rested only on “strained inferences and speculation” of a tip. Relevant here, Section 10(b) and Rule 10b-5 are violated under the “misappropriation theory” of insider trading when “an individual misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information.” O’Hagan, 521 U.S. 642, 652, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997). Among other elements, to establish that a defendant is liable for insider trading under this theory, the SEC must prove that the tipper defendant — here, Dr. Sabrdaran — breached a duty of confidentiality in sharing information with the tip-pee — Afsarpour. Aaron v. SEC, 446 U.S. 680, 691, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980). Defendants challenge the jury’s finding that the SEC proved this latter element. While Defendants first fault the SEC for failing to present any direct evidence that Dr. Sabrdaran shared a tip, direct evidence is not necessary. See SEC v. Truong, 98 F.Supp.2d 1086, 1097-98 (N.D. Cal. 2000); see also SEC v. Horn, No. 10-cv-955, 2010 WL 5370988, at *4 (N.D. Ill. Dec. 16, 2010) (“Direct evidence of insider trading is, indeed, rare; and the SEC is entitled to prove its case through circumstantial evidence.”) (collecting cases). But it “may not base insider trading actions on strained inferences and speculation.” Id. (citation omitted). In meeting its burden, the SEC must identify the facts that the tippee allegedly possessed. Truong, 98 F.Supp.2d at 1098. The SEC has met its burden. The timing of Defendants’ phone calls, Afsarpour’s trading activity, Afsarpour’s communications with other friends that emphasized the deadline to invest was right before the1 imminent public announcement, as well as evidence that Af-sarpour was so sure that the price of InterMune stock would rise that he convinced a number of friends who had never invested in the stock market before to invest large sums of money, support a reasonable inference that Dr, Sabrdaran told Afsarpour that InterMune was about to obtain regulatory approval for Esbriet. While Dr. Sabrdaran himself told the jury that he never disclosed insider information to Afsarpour, the jury was not required to believe him. The jury heard evidence that Dr. Sabrdaran had lied to his InterMune boss about a ski trip in Switzerland. The jury also may have found it less than credible that Dr. Sabrdaran never discussed his job with his close friend. Similarly, Af-sarpour’s story that he simply happened upon InterMune while entering the ticker symbol for another company on Rog-erson’s request was unlikely and hot corroborated by Rogerson, which gave the jury grounds'. to discount ' Afsarpour’s credibility, as well. It was not against the weight of the evidence for the juiy to conclude that Dr. Sabrdaran tipped Afsarpour about Esbriet’s imminent approval. Defendants also argue that the SEC “made the jury and the defense guess-as to when the alleged tip actually occurred” and “waited until its ... rebuttal closing argument ... to reveal that if an actionable tip occurred in this case, it occurred on December 10, 2010.” (Dkt. No. 170 at 9-10 (record citation omitted).) Not so. The SEC’s theory from the beginning was that Dr. Sabrdaran shared information with Af-sarpour during their phone calls in the week leading up to the public Esbriet approval announcement. Indeed, the SEC’s expert witness, Dr. Taveras, testified that she reached her opinion that Afsarpour must have traded on inside information based on the assumption that the tip occurred on December 10,2010. Defendants ■ identify evidence that supports their position that Afsarpour traded not on the' basis of material, non-public information, but based on his own technical analysis of InterMune stock and publicly available information about the timing of regulatory approval announcements in the European Medicines Agency. A reasonable factfinder could infer that there was no insider trading based on this evidence. But, taken in the context of the entire trial, and in particular given Defendants’ credibility problems and the weight of the circumstantial evidence, it does not leave the Court with the “definite and firm conviction” that the jury made a mistake in finding that there was insider trading. See Landes Constr. Co., 833 F.2d at 1371. 2. The “Personal Benefit” Requirement Defendants next argue that the Court’s instruction about the “personal benefit” requirement was improper and, in any event, the jury’s finding that Dr. Sabrdaran tipped Afsarpour for a personal benefit was contrary to the weight of the evidence, a. The Court’s Instruction was Proper The Court instructed 'the jury that to find that Defendants engaged in insider trading the SEC must prove by a preponderance of the evidence that they used a device, scheme or artifice to defraud in connection with the purchase or sale of a security and that they “acted intentionally.” (Dkt. No. 160 at 88; see also Dkt. No. 154 at 22 (Court’s Second Proposed Jury Instructions).) Explaining tipper and tip-pee liability, the Court instructed that “[a]s to Dr. Sabrdaran, the SEC must establish: .... [t]hat Dr. Sabrdaran breached his duty of trust and confidence to InterMune by disclosing material, nonpublic information to Mr. Afsarpour in exchange for a personal benefit.” (Dkt. No. 160 at 90-91 (emphasis added); see also Dkt. No. 154 at 27.) The Court also instructed the jury that “[a]s to Mr. Afsarp-our, the SEC must establish: ... [t]hat Mr. Afsarpour knew or should have known that Dr. Sabrdaran had breached his duty of trust and confidence for Dr. Sabrdaran’s personal benefit.” (Dkt. No. 160 at 92; see also Dkt. No. 154 at 30.) The Court defined “personal benefit” for the jury as follows: A personal benefit for these purposes includes anything of value, including money or friendship, and may be inferred when an insider makes a gift of nonpublic information to a friend. Personal benefit includes not only monetary gain, such as a cut of the take or a gratuity from the tippee, but also a rep-utational benefit or the benefit one would obtain from simply making a gift of confidential information to a trading relative or friend. The benefit does not need to be financial or tangible in nature; it could include, for example, maintaining a useful networking contact, improving the tipper’s reputation, obtaining future financial benefits, or making a gift of confidential information to a trading relative or friend. (Dkt. No. 160 at 91-92; see also Dkt. No. 154 at 29.) The Court also gave instructions on the level of intentional conduct required to prove insider trading, explaining that: To establish that Dr. Sabrdaran and Mr. Afsarpour acted with intent to deceive, manipulate, or defraud, the SEC must prove that Dr. Sabrdaran and Mr. Af-sarpour acted knowingly or recklessly and did not act inadvertently, carelessly, or by mistake. “Reckless” means highly unreasonable conduct that is an extreme departure from ordinary care, which is either known to the defendant or is so obvious that the defendant must have been aware of it. (Dkt. No. 160 at 93-94; see also Dkt. No. 154 at 33.) While Defendants disputed the personal benefit instruction and offered them own, they conceded in their pre-trial submission that the SEC’s proposed instruction— which the Court adopted in relevant part — “is consistent with the Ninth Circuit’s decision in United States v. Salman, 792 F.3d 1087 (9th Cir. 2015).” (Dkt. No. 94 at 7 n.1.) Defendants instead offered an instruction based on the Second Circuit’s decision in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), in which that court held that to prove receipt of a personal benefit sufficient to establish Section 10(b) and Rule 10b-5 insider trading liability, the SEC must prove that the tipper gained something of actual pecuniary value from the tip, or that the tipper and tippee had a meaningfully close relationship that generated an exchange that was objective, consequential, and represented at least a potential gain of a pecuniary or similar nature. Newman, 773 F.3d at 452-53. Defendants made clear that they offered the Newman-hased instruction with the hope that the Supreme Court would accept that approach and reject the Ninth Circuit’s approach. Shortly after trial, the Supreme Court decided United States v. Salman, — U.S. -, 137 S.Ct. 420, 196 L.Ed.2d 351 (2016). The Court reaffirmed its earlier holding in Dirks v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), that a tipper breaches his fiduciary duty, and thus exposes himself to liability, when he “personally will benefit, directly or indirectly, from his disclosure” of inside information. Salman, 137 S.Ct. at 427 (quoting Dirks, 463 U.S. at 664, 103 S.Ct. 3255). The Supreme Court explained that “[tjhis personal benefit can ‘often’ be inferred ‘from objective facts and circumstances,’ ... such as ‘a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient.’” Salman, 137 S.Ct. at 427 (quoting Dirks, 463 U.S. at 664, 103 S.Ct. 3255). The Court held that in particular, “ ‘[t]he elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend.’ ” Salman, 137 S.Ct. at 427 (emphasis in original) (quoting Dirks, 463 U.S. at 664, 103 S.Ct. 3255). In Salman, as in Dirks, the Supreme Court reasoned that such conduct exposed the tipper to liability the same as if he had traded on the inside information and then provided the proceeds as a gift to the close friend or relative. 137 S.Ct. at 427-28; Dirks, 463 U.S. at 667, 103 S.Ct. 3255. Salman expressly rejected the Second Circuit’s more narrow interpretation of the personal benefit requirement, 137 S.Ct. at 428— the interpretation Defendants advanced in their proposed jury instruction— and affirmed the Ninth Circuit’s decision in Salman, 792 F.3d 1087 (9th Cir. 2015), the case to which Defendants conceded the jury instruction conformed. Now, for the first time, Defendants focus on the absence of an instruction that the tipper intended to benefit the tippee. Defendants insist that Dirks and Salman establish two separate standards: one for a “direct” personal benefit and one for an “indirect” personal benefit. The “gift-giving principle” that Dirks and Salman recognized is an example of “indirect” personal benefit and, according to Defendants, it requires the SEC to establish the tipper’s intent to benefit the tippee. (Dkt. No. 170 at 14-19). Defendants thus argue that the “jury instructions erroneously suggested that an intent to benefit the recipient was not required to satisfy the personal benefit requirement in any way.” (Dkt. No. 170 at 13.) They then combine intent to benefit the tippee with the tipper’s personal benefit, contending that “the jury was improperly instructed that if Dr. Sabrdaran tipped [] Afsarpour without intending to benefit [] Afsarpour and in exchange for nothing but friendship itself, the jury could find that the personal benefit requirement was satisfied” and “[tjhat is not the law.” (Id. at 20.) Defendants’ jury instruction challenge fails for several reasons. First, neither Dirks nor Salman requires an instruction about intent to benefit the recipient. To the contrary, the Supreme Court explained that the required personal benefit for the tipper can be inferred from various “objective facts and circumstances,” “ ‘such as a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient.’ ” 137 S.Ct. at 427 (quoting Dirks, 463 U.S. at 664, 103 S.Ct. 3255) (second emphasis added). The personal benefit requirement is also satisfied “when an insider makes a gift of confidential information to a trading relative or friend.” 137 S.Ct. at 427 (quoting Dirks, 463 U.S. at 664, 103 S.Ct. 3255). Thus, a showing of a tipper’s intent to benefit the recipient may be sufficient to show a personal benefit, but it is not required. Second, Defendants never objected to the personal benefit instruction on this ground before or during the trial; the only objection they raised was that the tipper’s personal benefit had to be financial or tangible, as in Newman. (See Dkt. No. 94 at 6-8 & n.1.) They never offered a proposed instruction that addressed their current position that Dirks requires instructing the jury that the tipper intended to benefit the tippee. Thus, Defendants waived the argument, see Fed. R. Civ. P. 51(c), and may only object to the instruction on the grounds that it constituted plain error. See Fed. R. Civ. P. 51(d)(2). It is not, for the reasons explained above. Defendants’ reliance on SEC v. Yun, 327 F.3d 1263, 1281 (11th Cir. 2003), is unpersuasive. There, the court instructed .the-jury that to find liability the. SEC must establish that the tipper breached a fiduciary duty by disclosing material nonpublic information intentionally or severely recklessly and declined to include the defendants’ proposed instruction about personal benefit. Id. at 1281. The SEC relied heavily on the “severely reckless” instruction in its closing argument and the defendants’ attorneys were foreclosed from arguing lack of personal benefit because of the denied instruction. The Eleventh Circuit held the instructions were clearly erroneous and the defendants were entitled to a new trial. Id. at 1282. Unlike Yun, Defendants -here do not challenge the Court’s instruction about the level of intent— which the Ninth Circuit has defined to include recklessness — and the Court did not fail to instruct the jury about the personal benefit requirement. Moreover, the Yun opinion does not provide a de-. tailed description of the complete set of jury instructions, thus leaving the Court little to work with in comparing the instructions in this case. Thus, while .the SEC’s statements based on erroneous jury instructions in Yun warranted a new trial, the SEC’s statements throughout closing argument that relied on the Court’s proper jury instructions here do not. Moreover; Yun focused on whether the instructions’ adequately recited the requirement that the tipper disclosed information with the intent to personally benefit himself, not whether the court sufficiently instructed the jury that it had to find the tipper did so intending to benefit the tippee, the be-* lated argument Defendants make here. Finally, in then- supplemental brief, Defendants cite the district court’s jury instructions in SEC v. Gowrish, No. C 09-5883 SI, Dkt. No. 143 at 6, 2011 WL 581923 (N.D. Cal. Feb. 14, 2011). Gowrish does not. suggest that the personal benefit instruction- here was plain error as the SEC’s pei-sonal benefit theory there was different: the tipper was hot a close personal friend or relative of the tippee, as here’. See SEC v. Gowrish, No. C 09-05883 SI, 2011 WL 2790482, at *1-2 (N.D. Cal. July 14, 2011), aff'd, 510 Fed.Appx. 588 (9th Cir. 2013). Thus, the Supreme Court’s pronouncement in Dirks, as recently reaffirmed in Salman, that'“the elements of fiduciary duty arid exploitation of nonpublic infoi-mation also exist when an insider makes a gift of confidential information to a trading relative or friend,” Salman, 137 S.Ct. at 427 (emphasis in original; internal quotation marks and citation omitted), did not apply. b. The Jury’s Verdict was not Contrary to the Weight of the Evidence Defendants maintain that even if the jury instruction was proper, the jury’s finding that the SEC satisfied the personal benefit requirement was contrary to the weight of the evidence. Not so. The jury heard myriad evidence about Defendants’ extremely close friendship. Defendants talked to each other regularly about'many subjects, recommended self-help books and seminars to each other; gave each other advice, and made travel plans togethér. This was enough for the jury to conclude that Dr. Sabrdaran likely gave Afsarpour a gift of insider information to nurture their close relationship. Defendants argue that the record “belies the notion [that] Dr. Sabrdaran disclosed. anything with intent to benefit Mr, Afsarpour” during the December 10, 2010 phone • call. .(Dkt. No.. 170 at 22.) Defendants highlight: (1) Dr. Sabrdaran’s testimony that he did not know that Afsarpour was trading in InterMune stocks at that time and Afsarpour’s testimony that he did not tell Dr. Sabrdaran that he was trading until December 17, 2010 (Dkt. No. 170 at 22; Dkt. Nos. 170-1 at 59, 71-72); (2) Defendants’ testimony that when Dr. Sabrdaran learned for the first time on December 17, 2010 that Afsarpour was trading in InterMune stocks he reacted with shock and dismay (Dkt. No. 170 at 22; Dkt. No. 170-1 at 50-54, 71-74); and (3) Afsarpour’s December 19, 2010 Face-book message telling Dr. Sabrdaran to “call me say a couple of bad words[,]” which Afsarpour explained means to air the negative feelings Dr. Sabrdaran harbored against him after learning that he had been trading in InterMune stock. (Dkt. No. 170 at 22-23; Dkt. No. 170-1 af 65-59, 117.) Defendants contend that this testimony reflects that Afsarpour apologized to Dr, Sabrdaran, and “co-conspirators don’t apologize for what they were doing all along.” (Dkt. No. 170-1 at 86.) Again, in the face of the circumstantial evidence, the jury reasonably discredited Defendants’ accounts. And the significant evidence about Defendants’ longstanding friendship is enough to reasonably infer that Dr. Sabrdaran’s motivation to tip was to nurture that relationship, At bottom, all Defendants do is highlight evidence that conflicts with the jury’s verdict. Based on that evidence alone, Defendants insist that “loose talk between friends” is not enough to support the personal benefit required for insider trading liability. A reasonable factfinder might- have concluded that Dr. Sabrdaran was merely negligent in disclosing information about Esbriet’s imminent approval and, thus, that his “loose, talk” with Af-sarpour led to Afsarpour’s trades. But the evidence at trial supported both conclusions and, given the weight of the circumstantial evidence, Defendants’ innocent explanation is not the likelier story. When the jury is presented with competing evidence, it is not the Court’s role to substitute its own view for the conclusions the jury reached after hearing all the competing evidence. See Roy, 896 F.2d at 1176. This is especially true when the fact question is- particularly nuanced as the Sü-preme Court has noted the personal benefit requirement is. See Salman, 137 S.Ct. at 429 (“[Determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for the [factfinder].”) (citing Dirks, 463 U.S. at 664, 103 S.Ct. 3255). Rather, even if it were a close call whether Dr. Sabrdaran tipped for a.personal benefit, “it is not quite clear that the jury has reached a seriously erroneous result” given the evidence presented at trial, Carrethers v. Bay Area Rapid Transit, No. 09-1101, 2012 WL 1004847, at *2 (N.D. Cal. Mar. 26, 2012) (internal quotation marks omitted) (citing EEOC v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir. 1997)). . c. The Court Declines to Grant Judgment as a Matter of Law Regarding Personal Benefit Lastly, Defendants argue that because there is no evidence that Dr, Sabrdaran tipped- for a personal benefit, it follows that there is not substantial evidence that Afsarpour knew or had reason to know that Dr, Sabrdaran had done so. (Dkt. No. 170 at 23.) As discussed above, the jury’s finding that Dr. Sabrdaran tipped Afsarp-our for a personal benefit — ie., to nurture their friendship — was not contrary to the weight of the evidence because the jury heard significant testimony about the closeness of Defendants’ relationship and there is significant circumstantial evidence that a tip occurred. This combination is enough for a reasonable factfinder to conclude that Dr. Sabrdaran tipped for his personal benefit; indeed, the jury reasonably concluded as much. * * * Because the “personal benefit” jury instructions were proper, the verdict was not contrary to the weight of the evidence, and because there was substantial evidence to support the jury’s finding that Dr. Sa-brdaran tipped Afsarpour for a personal benefit, the Court declines to grant a new trial or enter judgment as a matter of law in Defendants’ favor on this ground. 3. The “In Connection With” Requirement Trying a different tack, Defendants next argue that the jury instruction and evidence about whether Afsarpour’s transactions were “in connection with” the sale or purchase of securities warrants a new trial or judgment as a matter of law. The trial record reflects that Afsarpour engaged in three types of transactions: he purchased InterMune stock, made spread bets on InterMune stock, and placed spread bets on InterMune options. Notably, Defendants concede that Afsarpour’s stock purchases meet the “in connection with” requirement, since he purchased InterMune stock on a U.S. stock exchange through his New York-based stockbroker. They nevertheless maintain that the Court’s jury instruction about the “in connection with” requirement was improper and, even if it was correct, the verdict must be set aside because there is insufficient evidence that Afsarpour’s spread bets were “in connection with” U.S. securities, a. The Court’s Instruction Was Proper The Court instructed the jury that “in connection with” the purchase or sale of a security means that there was some nexus or relationship between the allegedly fraudulent conduct and the sale or purchase of securities in the United States securities market. A defendant’s conduct may be in connection with a purchase or sale of a security even if the defendant did not actually participate in any securities transaction. (Dkt. No. 160 at 89; Dkt. No. 54 at 24.) Defendants first argue that the Court should have required the jury to address whether each type of transaction at issue was “in connection with” the sale and purchase of securities. Thus, Defendants are really crying foul about the verdict form rather than the jury instructions. “As a general rule, the court has complete discretion over whether to have the jury return a special verdict or a general verdict.” Floyd v. Laws, 929 F.2d 1390, 1395 (9th Cir. 1991) (citations omitted). “This discretion extends to determining the form of the special verdict, provided the questions asked are adequate to obtain a jury determination of the factual issues essential to judgment.” Id. (internal quotation marks and citation omitted). So it is here. The SEC argued that all of Af-sarpour’s transactions were part of a single scheme, device, or artifice to defraud. When discussing the proposed verdict form with counsel during the trial, the Court noted that whether each transaction was in connection with the sale of a security is a question of remedy, not liability, as long as the device or scheme to defraud is in connection with a security. (Dkt. No. 174-2 at 132.) When the Court mentioned that the jury need not “be unanimous on which particular transaction” is in connection with a security, Defendants did not disagree, and they repeatedly conceded that Afsarpour’s stock purchases were in connection with a security. (Id.) Indeed, in the context of criminal cases, courts have long held that a jury need not unanimously decide what underlying facts make up a particular element. See Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (“[A] federal jury need not always decide unanimously ... which of several possible means the defendant used to commit an element of the crime”) (noting that use of a knife or a gun could satisfy use of force element necessary to establish robbery); Schad v. Arizona, 501 U.S. 624, 632, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality op.) (“[TJhere is no general requirement that the jury reach agreement on the preliminary factual issues which underlie' the verdict.”) (quotation marks and citation omitted); see, e.g., United States v. Bayyouk, 607 Fed.Appx. 735, 736-37 (9th Cir. 2015) (in a criminal prosecution for obstruction of agency proceedings, noting that “[a]ny potential disagreements among the jury members regarding the particular false statement by which [the defendant] obstructed the SEC investigation are merely differences of means, and therefore do not violate his right to a unanimous jury verdict”) (citations omitted). While Defendants urge the Court to reject this line of cases because it assumes that the jury could have found any of the possible transactions “in connection with” securities and no reasonable jury could find the spread bets were, the Court concludes otherwise, as explained in more detail below. Moreover, Defendants never requested a unanimity instruction at trial despite multiple opportunities to do so. The Court’s special verdict form and instruction accurately reflected the law and thus do not constitute plain error or warrant a new trial. Defendants also argue that the instruction was improper because it did not require the jury to find that Afsarpour knew or intended that all of his transactions were in connection with the sale or purchase of a security. (Dkt. No. 170 at 25.) The Court rejected this argument in the context of resolving the SEC’s motion for partial summary judgment when it held that “to establish a securities violation under Section. 10(b) or Rule 10b-5, the SEC need not necessarily prove that Afsarpour subjectively knew that his fraudulent activity was ‘in connection with the purchase or sale of any security.’ ” (Dkt. No. 99 at 2.) The Court clarified that while “the SEC must prove that there was some nexus or relationship between the- spread bets on InterMune stocks and the purchase of the InterMune stocks themselves[,J ... Af-sarpour’s knowledge of that nexus or relationship — -that is, the connection to the purchase or sale of a security — while certainly potentially relevant, is not an element of the ‘in connection with’ requirement.” (Id. at 4) (citing Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, at 427 (2007 ed.) (Instruction 18.0).) Nothing in Defendants’ current motion — which relies on the same case that was the subject of supplemental briefing at the summary judgment stage — changes the Court’s conclusion. Defendants also note, in a footnote, that the Court’s “in connection with” instruction derived from General Instruction 18.0 in the Ninth Circuit’s Manual of Model Civil Jury Instructions, which were written to apply to actions brought under Rule 10b-5(b) for false or misleading representations in connection with the purchase or sale of securities, not actions under Rule 10b-5(a) and (c) for operating a device, scheme, or artifice to defraud. The introductory comment , explains that the model instruction applies to Rule 10b-5 actions as opposed to private damages actions that carry separate statutory requirements; in other words, the important distinction is not the type of Rule 10b-5 action but that it is being brought by the SEC, as is this case. See Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit, at 427 (2007 ed.) (Introductory Comment to Instruction 18.0). And indeed, the instructions say they “focus” on 10b-5 disclosure claims — i.e., Rule 10b-5(b) claims — but do not state that the rules are inapplicable to other Rule 10b-5 cases. Further, each type of Rule 10b-5 action uses the same “in connection with purchase or sale 'of a security” language, which suggests that the same meaning applies; Defendants have not identified any authority that holds otherwise. For each of these reasons, the Court declines to grant a new' trial on the grounds that the jury instruction or special verdict form were wrong on the “in connection with” a security requirement.' b. The Jury’s Verdict was not Contrary to the Weight of the Evidence Lastly, Defendants argue that even if they are wrong on the legal arguments, the Court must set aside the jury’s verdict because there is insufficient evidence that Afsarpour’s spread bets affected the U.S. securities market for InterMune common stock or options because the SEC’s documentary evidence of IG Index’s hedges was inadmissible hearsay and the testimony from the IG Index withesses did not establish that the company’s hedges affected the U.S. securities market. Defendants first challenge the admission of the documentary evidence of IG Index’s hedging. Specifically, Defendants contend that Exhibits 218 and 219, spreadsheets that reflect client trades and IG’s hedges on InterMune stock by date and time, are-inadmissible hearsay rather than business records. Defendants made the same argument in them motion in limine, and the Court overruled the objection, noting that the declarations of IG Index employee Bridget Messer established that the information in the documents met the business records requirement because it (1) was extracted from IG Index’s trading activity database at or near the time of the’ hedging transaction, (2) the records were maintained as part of IG Index’s regularly conducted business activity, (3) making trading activity records was part of IG Index’s regular and routine business practice, (4) Messer was qualified to testify about the records, and (5) Defendants had hot shown that the records indicated a lack of trustworthiness. (Dkt. No. 107 at 1-2,4.) At trial, IG employee Noble gave more color to the spreadsheets. He explained that .the spread bets and hedges are contemporaneously recorded in IG Index’s database. (Dkt. No. 170-1 at 16-18.) But the columns on the chart reflecting phone calls between the customer and IG Index are not; that information required listening to recordings of telephone calls after the fact to match each hedge to a particular client’s spread bet. (Id. at 17-18, 21.) Similarly, Noble explained that IG Index added a unique identification number for each spread bet and color coded the charts for the purposes of making the transaction history easier to understand. (Id. at 13-15.) In short, the underlying transaction data stems from IG Index’s contemporaneously recorded transactions database, but IG Index added some annotations after the fact that made the information easier for the jury to read and digest. To the extent that the additional infprmation, like color boding and assignment of unique identifiers for each transaction, is not itself a business record, it was still appropriately before the jury as summary evidence pursuant to Federal Rule of Evidence 1006. Summary evidence is admissible if “the underlying materials upon which the summary is based. (1) are admissible and (2) 'were made available to the opposing party for inspection.” United States v. Aubrey, 800 F.3d 1115, 1130 (9th Cir. 2015). “The purpose of the . rule is to allow the use of summaries when the documents are unmanageable or when the summaries would be useful to the judge or jury.” United States v. Rizk, 660 F.3d 1125, 1130 (9th Cir. 2011) (quotation marks and citation omitted). Here, the underlying IG data about each spread bet and hedge transaction was admissible as business records. The limited additional information that IG Index added that was not part of the business record merely clarifies the information. The cases Defendants cite are inappo-site. See Paddack v. Dave Christensen, Inc., 745 F.2d 1254 (9th Cir. 1984); United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993). In Paddack, an ERISA case, the court held that compliance audit reports compiled by a third-party auditor were not business records of the Trust Fund or Employer, since they Were prepared only when a deficiency was suspected and for the purposes of litigation. Paddack, 745 F.2d at 1258. Likewise, in Blackburn, the court held that the district court erred in admitting as a business record a pair of computer printouts with lens readings for eyeglasses and a handwritten prescription for eyeglasses because the document was prepared after Blackburn’s arrest at the behest of the FBI for use in an ongoing criminal investigation. Blackburn, 992 F.2d at 670. Here, in contrast, IG Index — not á third party — prepared the charts and the information set forth therein was almost exclusively part of its contemporaneous transaction records; only minimal annotations were done in preparation of litigation. Once again, the Court overrules Defendants’ objection. The spreadsheets of In-terMune spread bet and hedging transactions at IG Index were properly before the jury. . With that matter settled, there is no question that there was substantial evidence before the jury to find that Afsarp-our’s spread bets were “in connection with” the sale and purchase of a security. The jury heard testimony that InterMune stock traded only on exchángés in the United States. (Dkt. No. 174-2 at 2.) IG Index employee Noble testified that IG Index hedged 237 of Afsarpour’s spread bets on options and 50 of the spread bets on options placed by downstream tippee Balvinder Nijjar by purchasing the equivalent number of lots of InterMune contract options by purchasing 14,600 shares of InterMune stock from' a U.S. exchange. (Id. at 51, 56-57, 59, 97-99, 101; Dkt. No. 170-1 at 104-08, 102.) Noble clarified that IG Index used Cheuvreux, a French brokerage located in -London, to place' the hedging transactions on- the spread bets on InterMune common stock, -because IG Index itself is not a member of a U.S. exchange and thus cannot buy the underlying stock. (Dkt. No. 170-1 at 23-24.) Specifically, IG Index entered- a contract for difference with Cheuvreux, and IG Index instructed Cheuvreux to purchase, the underlying stock; Noble' did not know if Cheuvreux actually purchased InterMune stock. (Id. at 24-26.) To hedge the spread bets on options, Noble testified that IG Index traded with Macquarie. (See Dkt. No. 170-1 at 31.) The SEC did not introduce any records from Macquarie or other records evidencing IG’s hedging of spread bets on options. Instead, the SEC introduced a spreadsheet that IG Index- had prepared showing the transactions IG Index entered into with Cheuvreux and Mac-quarie. (Dkt. No. 170-1 at 112.) • While this evidence is not sufficient to conclude that, on their own, every single one of Afsarpour’s spread bets was “in connection with” a security, that is not the test. The general scheme or artifice to defraud must “somehow touch[ ] upon” or have “some nexus with” “any securities transaction,” rather than every transaction at issue having a direct connection. (Dkt. No. 36 at 16 (citations omitted).) See also SEC v. Zandford, 535 U.S. 813, 819, 122 S.Ct. 1899, 153 L.Ed.2d 1 (2002); SEC v. Rana Res., Inc., 8 F.3d 1358, 1362 (9th Cir. 1993). Noble’s testimony that IG Index hedged many of the spread bets that Afsarpour and downstream tippee Nijjar placed by purchasing contracts for difference with Cheuvreux, along with IG Index’s business records reflecting those transactions, constitute substantial evidence that at least some of Afsarpour’s spread bets were “in connection with” the sale or purchase of securities in the U.S. market, so the verdict is not contrary to the weight of the evidence. Defendants emphasize that IG Index never received title to InterMune securities, and that Noble did not know if Cheu-vreux actually purchased the underlying InterMune stock as IG Index instructed it to do, and that the jury “could not have found that the contract for difference, itself, was a purchase or sale of a U.S. security, or that it affected the U.S. securities market for InterMune.” (Dkt. No. 170 at 26-27.) Not so. Even absent Cheu-vreux’s underlying purchase, IG Index’s purchases of contracts for difference— CFDs — were “in connection with” a U.S. security. In a similar insider trading case, one district court explained that “CFDs provide foreign investors with a way to access American exchange-traded securities without opening U.S. brokerage accounts.” SEC v. Compania Internacional Financiera S.A., No. 11 CIV 4904, 2011 WL 3251813, at *2 (S.D.N.Y. July 29, 2011). As a result, courts have held that contracts for difference are securities within the meaning of Section 10(b) and Rule 10b-5. See, e.g., SEC v. Maillard, No. 13 CIV 5299, 2014 WL 1660024, at *3 (S.D.N.Y. Apr. 23, 2014) (denying motion to dismiss insider trading case, noting that CFDs purchased in Luxembourg as a result of insider trading harm the U.S. market); Compania Internacional Financiera S.A., 2011 WL 3251813, at *3 (S.D.N.Y. July 29, 2011) (“CFDs [entered into in the UK] ... constitute securities as defined by the federal securities laws.”); Freudenberg v. E*Trade Fin. Corp., No 07 CIV 10400, 2008 WL 2876373, at *6-7 (S.D.N.Y. July 16, 2008) (“[A] CFD is a ‘security’ as that term is broadly defined in the Securities Exchange Act of 1934.”). Thus, there is substantial evidence on which a reasonable jury could find that the spread bets IG hedged by purchasing CFDs with Cheu-vreux are “in connection with” securities. And perhaps most importantly, even if IG did not hedge any of the spread bets, the jury’s verdict would not be contrary to the weight of the evidence, as Afsarpour’s purchase of InterMune stock and options are, in and of themselves, a sufficient basis for the jury’s conclusion that Defendants’ scheme to defraud was “in connection with” U.S. securities. Defendants have not cited any authority that requires every transaction to be “in connection with” a security, and the Court has found none. Instead, it is the general scheme to defraud that must meet that test. There was substantial evidence for the jury to conclude that the SEC proved as much. Defendants are not entitled to a new trial on this ground. c. The Court Declines to Enter Judgment as a Matter of Law That Afsarp-our’s Spread Bets Were not “In Connection With” Securities On the same grounds, Defendants ask the Court to enter judgment as a matter of law that Afsarpour’s spread bets were not “in connection with” securities. The Court declines to do so for the reasons explained above. * * * Because the Court’s jury instruction was appropriate and there was substantial evidence to support the jury’s finding that at least some of Afsarpour’s transactions, and thus Defendants’ overall scheme, was “in connection with” the purchase or sale of securities, the Court declines to order a new trial or enter judgment as a matter of law in Defendants’ favor. The Court thus DENIES Defendants’ motion for a new trial or, in the alternative, judgment as a matter of law. The jury’s verdict stands. II. Remedies Motion Having determined that the jury’s verdict should stand, the Court turns to the SEC’s motion for an order on remedies and a final judgment against each Defendant. The SEC requests that the Court permanently bar Dr. Sabrdaran from serving as an officer or director of a publicly traded company, order both Defendants to pay disgorgement and prejudgment interest, impose the maximum civil penalties available under the law against Dr. Sa-brdaran, and enjoin both Defendants from any further securities law violations. As a preliminary matter, the Court must resolve an evidentiary dispute. In connection with its reply in support of its remedies motion, the SEC submitted new evidence. (Dkt. Nos. 180-1, 180-2.) Based on this evidence, the SEC substantially revised — and in particular, decreased — its disgorgement, prejudgment interest, and penalties calculations. (See id.) Defendants object to these reply materials. (Dkt. No. 181.) In general a court will not consider evidence submitted for the first time in a reply without giving the opposing party an opportunity to respond. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). The Court overrules Defendants’ objections because the Court gave Defendants an opportunity to file a supplemental submission responding to the SEC’s reply arguments and evidence. See Provenz, 102 F.3d at 1483. A. Officer and Director Bar Against Dr. Sabrdaran A district court “may prohibit, conditionally or unconditionally, and permanently or for such period of time as it shall determine,” any person “from acting as an officer or director [of a public company] if the person’s conduct demonstrates unfitness to serve as an officer or director.” 15 U.S.C. § 78u(d)(2). The decision whether to impose an officer and director bar is within the court’s discretion. See SEC v. First Pac. Bancorp., 142 F.3d 1186, 1193 (9th Cir. 1998) (citations omitted). In exercising that discretion, a district court may consider: (1) the “egregiousness” of the underlying securities law violation; (2) the defendant’s “repeat offender” status; (3) the defendant’s “role” or position when he engaged in the fraud; (4) the defendant’s degree of scienter; (5) the defendant’s economic stake in the violation; and (6) the likelihood that misconduct will recur. Id, (quoting 15 U.S.C. § 78u(d)(2)). Courts have also considered “whether a conditional bar (e.g., a bar limited to a particular industry) and/or a bar limited in time (e.g., a bar of five years) might [have been] sufficient, especially where there [was] no prior hi