In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1226

Securities and Exchange Commission,

Plaintiff-Appellee,

v.

David E. Lipson,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 2661--Ronald A. Guzman, Judge.

Argued November 5, 2001--Decided January 9, 2002

 Before Bauer, Posner, and Ripple, Circuit

Judges.

 Posner, Circuit Judge. David Lipson

appeals from a judgment in favor of the

plaintiff, the Securities and Exchange

Commission, that followed a jury’s

verdict that he had traded stock of a

publicly traded corporation on the basis

of inside information, in violation of

the SEC’s Rule 10b-5, 17 C.F.R. sec.

240.10b-5. 129 F. Supp. 2d 1148 (N.D.

Ill. 2001); see Securities Exchange Act

of 1934, sec. 10(b), 15 U.S.C. sec.

78j(b). The appeal challenges the

instructions that the judge gave the jury

on liability and the relief that he

ordered.

 Early in 1995, Lipson, at the time the

chief executive officer of Supercuts, a

chain of hair-cutting salons, learned

that Supercuts’ revenues were running

lower, and its expenses higher, than

expected. The company did not make this

information public until May, and

apparently it didn’t leak out. In March

and April Lipson sold 365,000 shares of

Supercuts stock owned by partnerships

that he controlled at prices in excess of

$9 per share. When the bad news was

finally announced, Supercuts’ stock price

plummeted from $9 a share, the price the

day before the announcement, to $6 the

next day, though by the end of the day it
had recovered to $75/8. By selling when he

did, Lipson averted a loss of hundreds of

thousand of dollars.

 The evidence presented at trial was

overwhelming that he had inside

information when he sold the shares. The

jury was not required to believe his

implausible testimony that he paid no

attention to the financial reports that

his subordinates gave him. His inside

information gave him an incentive to sell

his shares before the information became

public because it showed that Supercuts

was worth less than its market valuation.

Even skeptics about the prohibition of

insider trading tend to look askance at

an insider who profits from the poor

performance of his company-- poor

performance for which he may be

responsible. See Frank H. Easterbrook &

Daniel R. Fischel, The Economic Structure

of Corporate Law 274-75 (1991); Henry G.

Manne, Insider Trading and the Stock

Market 150-51 (1966); but cf. Dennis W.

Carlton & Daniel R. Fischel, "The

Regulation of Insider Trading," 35 Stan.

L. Rev. 857, 872, 873-75 (1983).

 Lipson claimed, however, that whatever

he may or may not have known about

Supercuts’ finances and whatever the

impropriety of trading on inside

information, his sole motive for selling

when and how many of his shares he did

was to comply with an estate plan that he

had set up two years earlier to transfer

wealth to his son free of gift or estate

tax. The plan required the son to borrow

at a specified interest rate $7.5 million

from a company controlled by his father

and use the borrowed money to buy

interests in partnerships, controlled by

his father, that owned Supercuts shares.

The shares owned by the partnership

interests that the son would be buying

were worth $10 million, but he was

permitted to buy them indirectly, by

buying the partnership interests, for

only $7.5 million because the interests

were not controlling interests and lacked

liquidity. (The analogy is to a closedend mutual fund, whose shares frequently

trade at a discount from the market price

of the securities owned by the fund.) For

him to exploit the difference between the

indirect cost of the shares to him and

their market value when "liberated" from

the partnerships, the partnerships had to

redeem his partnership interests by
giving him shares in exchange for those

interests, shares he could sell to pay

down the loan. Had the value of the

shares remained at $10 million, he would

have ended up paying off the $7.5 million

loan with $7.5 million worth of stock,

thus retaining stock worth $2.5 million;

and that would have been the amount of

the wealth transfer from his father, as

Lipson intended. Lipson and his tax

accountant claimed at trial that Lipson

had caused shares owned by the

partnerships to be sold in 1995 solely in

order to give his son cash that the son

could use to pay down the loan and by

doing so save some interest expense.

 Lipson does not argue that no rational

jury could have disbelieved his claim

that he was motivated by the estate plan

rather than by inside information in

deciding to sell the shares. But he

contends that the jury was improperly in

structed on the issue. Although the jury

was properly instructed that it could

find a violation only if Lipson’s trades

had been motivated by inside information,

another instruction, the one Lipson is

complaining about, said that

if you find that Defendant Lipson

possessed material, non-public

information at the time that he sold . .

. Supercuts stock, you may infer that

Defendant Lipson used such information in

selling . . . [it]. However, this

inference may be rebutted by evidence

that there was no connection between the

information that the defendant possessed

and the trading, in other words, that the

information was not used in trading . . .

. If you conclude that the trades . . .

would have occurred on the same dates and

involving the same amounts of stock

regardless of whether Mr. Lipson

possessed the inside information . . . ,

then you should find that Mr. Lipson did

not use the inside information in selling

. . . Supercuts stock.

Lipson contends that the instruction

improperly shifted the burden of

persuasion from the SEC to himself.

 That would indeed have been improper.

The weight of authority, scanty thought

it is, supports the position that the

Commission had the burden of persuading

the jury that Lipson’s trades had been

influenced by the inside information that
he possessed--the burden, in other words,

of proving that inside information had

played a causal role in Lipson’s decision

to sell the shares in the amount, and

when, he did. SEC v. Adler, 137 F.3d

1325, 1340 (11th Cir. 1998); United

States v. Smith, 155 F.3d 1051, 1066-69

(9th Cir. 1998). A considered dictum in

United States v. Teicher, 987 F.2d 112,

120-21 (2d Cir. 1993), argues to the

contrary that the knowing possession of

such information should be enough to base

guilt on: "one who trades while knowingly

possessing material inside information

has an informational advantage over other

traders. Because the advantage is in the

form of information, it exists in the

mind of the trader. Unlike a loaded

weapon which may stand ready but unused,

material information can not lay [sic]

idle in the human brain." Id. at 120.

However sensible the Second Circuit’s

position may seem, the Commission is not

pushing it in this case, and so we need

not wrestle the issue to the ground. We

note, however, that several months after

Lipson’s trial, the Commission

promulgated a regulation that is in the

spirit of the Teicher dictum and also

follows a suggestion in SEC v. Adler,

supra, 137 F.3d at 1337 n. 33. See 17 CFR

sec. 240.10b5-1(b); 65 Fed. Reg. 51716.

The regulation, however, as we’re about

to see, preserves a diminished

requirement of causality.

 The last sentence of the instruction we

quoted gave Lipson a safe harbor, and is

unobjectionable. The new SEC regulation

creates a similar safe harbor. See 17 CFR

sec. 240.10b5-1(c)(1). All the last

sentence of the instruction says is that

if Lipson would have sold the shares in

the same amounts and on the same dates

that he did sell them even if he had not

possessed any inside information, then he

would be home free, because then the

existence of a causal connection between

his inside information and the challenged

sales would be negated. Cf. Conn v. GATX

Terminals Corp., 18 F.3d 417, 420 (7th

Cir. 1994).

 Lipson can’t reasonably object to the

first sentence, either. It allows the

jury to infer that if he had inside

information, the trades were influenced

by it. To infer Y from X just means that,

if X happened, Y probably happened. If

Lipson possessed nonpublic information
which showed that Supercuts stock was

overpriced, and having this information

he sold a large quantity of that stock

shortly before the information became

public and the stock dropped sharply in

value, common sense tells us that it is

probable that his decision to sell when

he did and how much he did (rather than

sell later or sell less) was influenced

by the information. SEC v. Adler, supra,

137 F.3d at 1340; 2 Alan R. Bromberg &

Lewis D. Lowenfels, Securities Fraud &

Commodities Fraud, sec. 7.4(625), pp.

7:160.42-45 (2d ed. Supp. 1999). The

Ninth Circuit refused to allow such an

instruction in a criminal case, United

States v. Smith, supra, 155 F.3d at 1069,

mindful of the Supreme Court’s concern

with the use of prosecution-favoring

presumptions, see, e.g., Sandstrom v.

Montana, 442 U.S. 510, 524 (1979), but

did not challenge the presumption adopted

in Adler for civil insider-trading cases.

United States v. Smith, supra, 155 F.3d

at 1069 n. 27.

 The inference is sufficiently compelling

to shift to a defendant in Lipson’s

situation the burden of production, that

is, the burden of presenting some

rebuttal evidence, on pain of suffering

an adverse judgment as a matter of law if

he does not. Allan Horwich, "Possession

Versus Use: Is There a Causation Element

in the Prohibition on Insider Trading?"

52 Business Lawyer 1235, 1276-77 (1997).

And that is all the middle sentence in

the instruction did. Lipson did present

some evidence in rebuttal (the estate

plan), enough to satisfy his burden of

production and thus require the jury to

decide whether to infer from the inside

information and the timing of the trades

whether his decision on when and how much

to sell was indeed influenced by the

information. Cf. St. Mary’s Honor Center

v. Hicks, 509 U.S. 502, 506-07 (1993);

Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 254-56 (1981);

American Grain Trimmers, Inc. v. Office

of Workers’ Compensation Programs, 181

F.3d 810, 816 (7th Cir. 1999) (en banc).

And so the instruction did not harm him.

 Moreover, the instruction he offered to

take the place of the one to which he

objects was woefully inadequate and not

merely, as his lawyer said at argument,

"inelegant" or "inartful." It said that

if the jury found that Lipson "had a
legitimate, alternative purpose for

selling Supercuts securities" it would

have to find in his favor. That is

absurd. He might well have had two

purposes, one to transfer wealth to his

son and the other to avoid a loss that

his inside information told him was

coming. The existence of the legitimate

purpose would not sanitize the

illegitimate one. Sussman v. American

Broadcasting Companies, Inc., 186 F.3d

1200, 1202 (9th Cir. 1999). Only if the

illegitimate purpose had no causal

efficacy because the legitimate one would

have caused him to sell the shares when

he did and in the amount he did would the

existence of the legitimate purpose be a

defense--as the jury was told in the last

sentence of the instruction to which

Lipson objects.

 If the existence of an alternative

legitimate purpose were a defense to a

charge of insider trading, any insider

who wanted to be able to engage in such

trading with impunity would establish an

estate plan that required him to trade in

his company’s stock from time to time but

gave him discretion as to when and how

much to trade. He could then trade on the

basis of inside information yet defend on

the ground that he was also trading in

implementation of his estate plan. He

would be doing both. Yet even to regard

the good and the bad purpose as

alternatives is to sugarcoat the pill. In

the case just put, the insider would be

using inside information to implement his

estate plan more effectively. He would be

like someone who robbed a bank with the

intention of giving the money to charity.

The noble end would not immunize the

ignoble means of achieving that end from

legal punishment.

 We turn to remedy. Because the SEC was

seeking both legal and equitable relief

(the former under the Insider Trading

Sanctions Act, 15 U.S.C. sec. 78u-1,

which (in subsection (a)(1)) authorizes

the imposition of civil penalties for

insider trading at the suit of the SEC,

the latter under section 21(d) of the

Securities Exchange Act of 1934, 15

U.S.C. sec. 78u(d)), Lipson was entitled

to and received a jury trial. Tull v.

United States, 481 U.S. 412, 425 (1987);

Senn v. United Dominion Industries, Inc.,

951 F.2d 806, 813-14 (7th Cir. 1992);

Hohmann v. Packard Instrument Co., 471
F.2d 815, 819 (7th Cir. 1973). SEC v.

Clark, 915 F.2d 439, 442 (9th Cir. 1990),

assumed, but without discussion, and we

think erroneously, that civil penalties

in SEC cases are not a form of legal

relief.

 But it was for the judge to decide,

consistent with the jury’s finding of

liability, not only what equitable relief

to impose, but also the amount of the

civil penalty. The first point is

obvious, the second not. The statute does

not say that the judge is to decide the

amount of the penalty, but the parties

have so assumed, as did the court in

Clark, though it did so for the wrong

reason--that civil penalties are

equitable, which they are not. The

Seventh Amendment does not forbid

Congress to assign the determination of

liability and damages to jury and judge,

respectively, in a single case, Tull v.

United States, supra, 481 U.S. at 425-27,

at least where the suit is brought by,

and an award will be paid to, the

government, Feltner v. Columbia Pictures

Television, Inc., 523 U.S. 340, 354-55

(1998); and in view of the parties’

agreement that the Insider Trading

Sanctions Act does assign the

determination of the civil penalty under

the Act to the judge, see also Ralph C.

Ferrara et al., "Hardball! The SEC’s New

Arsenal of Enforcement Weapons," 47

Business Lawyer 33, 47 (1991); cf. Tull

v. United States, supra, 481 U.S. at 425-

27, we need not pursue the issue.

 The judge permanently enjoined Lipson

from violating the relevant provisions of

the securities laws, ordered him to

disgorge $621,875 (the court’s estimate

of the loss his insider trading had

avoided) plus prejudgment interest of

$348,097, and imposed punitive damages of

$1,865,625, which was equal to three

times the amount ordered disgorged and

was the maximum civil penalty permitted

by the Insider Trading Sanctions Act. 15

U.S.C. sec. 78u-1(a)(2).

 Disgorgement in SEC cases has been

assumed to be an equitable remedy. Dasho

v. Susquehanna Corp., 461 F.2d 11, 24

(7th Cir. 1972); SEC v. Rind, 991 F.2d

1486, 1493 (9th Cir. 1993); SEC v.

Commonwealth Chemical Securities, Inc.,

574 F.2d 90, 94-96 (2d Cir. 1978)

(Friendly, J.); SEC v. Manor Nursing
Centers, Inc., 458 F.2d 1082, 1104 (2d

Cir. 1972). Otherwise the SEC could not

seek it under section 21(d) of the ’34

Act, a provision limited to equitable

relief. Disgorgement is another name for

restitution, as Judge Friendly noted in

SEC v. Commonwealth Chemical Securities,

Inc., supra, 574 F.2d at 95, and

restitution, as we have noted in several

non-SEC cases, is both a legal and an

equitable remedy. Clair v. Harris Trust &

Savings Bank, 190 F.3d 495, 498 (7th Cir.

1999); Health Cost Controls of Illinois,

Inc. v. Washington, 187 F.3d 703, 710

(7th Cir. 1999); Reich v. Continental

Casualty Co., 33 F.3d 754, 756 (7th Cir.

1994). It is "a legal remedy when ordered

in a case at law and an equitable remedy

(rather than a legal remedy pressed into

service to provide complete relief in an

equity case--the rationale of the ’clean

up’ doctrine) when ordered in an equity

case." Id. Trading on insider knowledge

by a major shareholder who is also the

corporation’s chief executive officer is

a breach of fiduciary obligation,

Chiarella v. United States, 445 U.S. 222,

227-28, 232-33 (1980); Fry v. UAL Corp.,

84 F.3d 936, 938 (7th Cir. 1996); SEC v.

Maio, 51 F.3d 623, 631 (7th Cir. 1995);

SEC v. Clark, supra, 915 F.2d at 443; 3

Bromberg & Lowenfels, supra, sec.

7.5(300), pp. 7:205-06, and so the

disgorgement of the insider’s ill-gotten

gain (or averted loss, which is the

economic equivalent of profit) is indeed

equitable in character. Cf. Clair v.

Harris Trust & Savings Bank, supra, 190

F.3d at 498. The same is true,

incidentally, with regard to prejudgment

interest: it’s a legal remedy when the

award to which it is attached is legal,

and an equitable remedy when, as in this

case, the award to which it is attached

is equitable. Kerr v. Charles F.

Vatterott & Co., 184 F.3d 938, 946 (8th

Cir. 1999). For the interest was on the

amount disgorged--though, since the judge

determines the amount of the civil

penalty, we suppose that he also

determines the amount of any prejudgment

interest on that penalty.

 It may be worth noting that the district

court’s judgment required Lipson to pay

four times rather than three times the

amount of the loss that he avoided. The

Insider Trading Sanctions Act does not

create a conventional treble-damages

remedy; compare Clayton Act, sec. 4, 15
U.S.C. sec. 15. While measuring the

amount of the civil penalty by the loss

avoided (or profit gained, as the case

may be), the Act preserves the right of

the SEC to seek other remedies. 15 U.S.C.

sec. 78u-1(d)(3). The other remedies

include equitable remedies obtainable

under section 21(d) of the ’34 Act, such

as disgorgement. Because the other

remedies thus are additive to the civil

penalty, there was no double counting in

awarding the Commission the maximum civil

penalty of three times the loss avoided.

See H.R. Rep. No. 910, 100th Cong., 2d

Sess. 40 n. 16 (1988).

 The judge estimated the amount of that

avoided loss by subtracting from the

price at which Lipson had sold shares

during the period in which he had inside

information (March and April 1995) the

closing price of Supercuts’ stock on

Friday, May 12, the day the information

became public. Lipson argues that the

judge should have used the closing price

on the next trading day, May 15, in order

to allow the shock value of the

announcement to dissipate. The Insider

Trading Sanctions Act defines "loss

avoided" as the difference between the

sale price of a security and its value as

measured by its price "a reasonable

period after public dissemination of the

nonpublic information." 15 U.S.C. sec.

78u-1(f). But the price on May 15 was a

spike--$8. The closing price on the

twelfth, the price the court used, had

been $75/8. On May 16, the closing price

was $7, and on each of the following two

days it was $7. Lipson gives us no

reason to think that the closing price on

May 15 is a more accurate snapshot of the

market value of the stock than the price

on May 12, 16, 17, or 18. He does not

point to any circumstances unrelated to

the public disclosure of the (formerly)

inside information that might have

depressed the price on the twelfth or the

sixteenth.

 He next objects that in imposing the

maximum penalty, the district court was

influenced by the fact that he

steadfastly maintained his innocence and

claimed to be the victim of a government

vendetta. He says that to allow such

factors to influence punishment violates

due process of law and the First

Amendment to boot. He seems unaware that

acceptance of responsibility for illegal
conduct is a routine and unexceptionable

feature even of criminal, let alone of

civil, punishment. U.S.S.G. sec. 3E1.1;

United States v. Lopinski, 240 F.3d 574,

575-76 (7th Cir. 2001); United States v.

Wells, 154 F.3d 412, 413-14 (7th Cir.

1998). The criminal who in the teeth of

the evidence insists that he is innocent,

that indeed not the victims of his crime

but he himself is the injured party,

demonstrates by his obduracy the

likelihood that he will repeat his crime,

and this justifies the imposition of a

harsher penalty on him. E.g., United

States v. Lopinski, supra, 240 F.3d at

575; United States v. Stewart, 198 F.3d

984, 987 (7th Cir. 1999). It makes no

difference whether, as in this case, the

government is seeking only a civil

remedy. See SEC v. Holschuh, 694 F.2d

130, 144-45 (7th Cir. 1982); SEC v.

McNulty, 137 F.3d 732, 741 (2d Cir.

1998); SEC v. Lorin, 76 F.3d 458, 461 (2d

Cir. 1996) (per curiam). The evidence

against Lipson was overwhelming, and his

insistence in the face of it that he is

a shorn sheep argues for heavy punishment

to bring him to his senses.

 He complains that the judge failed to

consider the penalties meted out by other

district judges in other cases.

Comparison shopping of that sort is

doubtless a good practice in cases in

which there is no statutory limit on

punitive damages, see, e.g., Cooper

Industries, Inc. v. Leatherman Tool

Group, Inc., 121 S.Ct. 1678, 1684-85

(2001); BMW of North America, Inc. v.

Gore, 517 U.S. 559, 583-85 (1996); Cooper

v. Casey, 97 F.3d 914, 920 (7th Cir.

1996); DeRance, Inc. v. PaineWebber Inc.,

872 F.2d 1312, 1329 (7th Cir. 1989), just

as it is a good practice in cases

involving damages for pain and suffering,

when as is usually the case there is no

statutory ceiling. See, e.g., JutziJohnson v. United States, 263 F.3d 753,

760-61 (7th Cir. 2001); Seidman v.

American Airlines, Inc., 923 F.2d 1134,

1141 (5th Cir. 1991); Wulf v. City of

Wichita, 883 F.2d 842, 874-75 (10th Cir.

1989). For neither calculating punitive

damages nor calculating damages for pain

and suffering is formulaic, and so

comparison is a valuable and sometimes

(as we suggested in Jutzi-Johnson v.

United States, supra, 263 F.3d at 759) an

essential check on extravagance,

subjectivity, and abuse. It is much less
needful in a case such as this in which

the damages are capped. Caudle v. Bristow

Optical Co., 224 F.3d 1014, 1028 n. 10

(9th Cir. 2000); EEOC v. W&O, Inc., 213

F.3d 600, 617 (11th Cir. 2000). Even in

such a case, the obviously trivial

character of a violation might argue

compellingly for less than the maximum.

Hennessy v. Penril Datacomm Networks,

Inc., 69 F.3d 1344, 1355-56 (7th Cir.

1995) (as interpreted in EEOC v. Indiana

Bell Telephone Co., 214 F.3d 813, 822 n.

4 (7th Cir. 2000), vacated on other

grounds upon the grant of rehearing en

banc); Luciano v. Olsten Corp., 110 F.3d

210, 220-21 (2d Cir. 1997). But that

would not be an apt characterization of

Lipson’s violation. Given his wealth (we

were told without contradiction that he

has a net worth of some $100 million),

the flagrancy of his violation, and the

obduracy that we’ve mentioned, the judge

did not need any boost from other judges

to decide that the maximum penalty was

deserved.

Affirmed.