The denial of cert here (United States v. Newman) is, in my view, entirely unsurprising. The government conceded that the defendants could not be convicted because there was no proof that they were aware that any information was obtained in return for a personal benefit, however one might decide to define the “personal benefit” test. Defendants’ convictions could therefore not stand regardless of how the Supreme Court might define “personal benefit.” From that perspective, the government was asking the Supreme Court to undo Second Circuit dicta regarding the scope of the personal benefit test that the government finds objectionable. In a world in which the number of cases heard by the Court is already quite low, it is easy to understand why the Court would not want to allocate valuable docket time to a case in which the defendants are going to walk no matter what the Court decides.

Now, when a case comes along in which the definition of the personal benefit test is outcome determinative, the odds that cert will be granted are much higher. That prediction is easy to make, in part, because we already have a circuit split between the Second and Ninth Circuits as to the proper definition of the personal benefit test.

So, my bet is that it’s only a question of time before this issue—the proper definition of the personal benefit test—comes before the court. But it will take a case in which the court’s decision makes a real difference to the resolution of an actual case or controversy.

Joseph A. Grundfest, the W. A. Franke Professor of Law and Business at Stanford Law School,  is an expert on capital markets, corporate governance, and securities litigation. Before joining the Stanford Law School faculty in 1990, Professor Grundfest was a commissioner of the Securities and Exchange Commission, served on the staff of the President’s Council of Economic Advisors as counsel and senior economist for legal and regulatory matters, and was an associate at Wilmer, Cutler & Pickering.