This is why these types of cases are hard to prosecute...
Moffat may be correct, yet still be guilty of passing along insider information.
To give you an example... If Moffat had drinks with someone and talked about the Sun IBM merger, he could have said ... "Its not going to happen because my division would be on the hook for X and I don't like it. ..."
If Moffat was in a position to kill the deal, and what he said was a deal breaker... He's toast.
If Moffat said ... " We looked at their server sales numbers and I don't think their hardware would be a good fit ..." Then he would have a stronger argument that he didn't provide material information and violated rule FD ... etc ...
The point is that the burden of proof is on the prosecution to show that material information was passed. (Moffat will ask for a jury trial if he's smart...)
The simple truth that conversations took place, based on the conversations, the traders placed trades and made money. Traders were then recorded boasting about their 'insider' information.
While its easy to connect the dots, and draw a conclusion, proving it in a court of law is a bit more difficult.
Think of BIll Clinton saying "I didn't lie, its how you define the meaning of the word 'is' ..."
;-) [Bad paraphrasing but you get the idea.]
The problem is that IBM is a huge company. Did Moffat provide 'material' information or just information.
Suppose I told you that IBM's Software Group's Information Management will do xxx in the next quarter. (And I mean I gave you the specific numbers and percentages) Does that mean that I gave you 'material' information? Most likely not. IBM Software group has 5 pillars (Tivoli, Websphere, Rational, Information Mangement, and Lotus) Then there's the hardware division and Global Services (IGS/BCS whatever they're calling themselves these days.)
Information Management could have had a 'killer' quarter, yet if IGS's revenues fell off the cliff, then knowing what Information Management did doesn't have an impact on IBM's overall numbers and report to the street.
So you would have confidential access to information, yet it was not enough to meet the standard of 'material information'.
Having said that. Moffat ran 1 division and had access to the other division's numbers. He knows material information. He has a defense, but only a jury could tell you if its good enough.
We don't know what was said or what evidence will be presented.
Only time will tell.
Evil Balmer because frankly anyone who reaches Moffat or Mills' level within IBM had to have screwed some people over and sold their soul. (Gee does it sound like I worked for IBM? ;-)
But hey! What do I know?