dissenting.
I respectfully dissent from the judgment of the court reversing the dismissal of this action and directing the district court to enter judgment for plaintiff Benjamin Rothberg. I cannot accept the legal analysis in Judge Rosenn’s opinion announcing the judgment of the court because I believe that this is not a case governed directly by the holding in Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985). Although my approach to this case is not markedly different from that taken in Judge Seitz’ opinion concurring in the judgment, I evaluate the relevant public policy considerations differently.
I.
Whether Bateman Eichler is Controlling
Rothberg’s suit to recover from the Rosenblooms on notes signed by them was brought as a diversity action based on contract law. The Rosenblooms defended, inter alia, on the ground that the promissory notes derived from obligations which were legally unenforceable because they grew out of transactions involving trading on insider information in violation of the federal securities laws. The notes represented an indemnity by the Rosenblooms, who were the insiders, i.e., the tippers, against loss by Rothberg, the tippee, on joint venture transactions that Rothberg funded in stock of companies that would be affected by the inside information. The district court found that the transactions were in fact illegal and this court affirmed those findings. 771 F.2d 818 (3d Cir.1985). The illegality of those insider trading transactions is thus established for purposes of this appeal.
The legal question before us is the effect of the illegality for purposes of Rothberg’s right to recover from his joint venturers on their indemnity. Judge Rosenn’s opinion is predicated on the applicability of the holding in Bateman Eichler to the facts before us despite the significantly different circumstances under which Bateman Eichler arose. In Bateman Eichler, the Supreme Court had before it a Rule 10(b)-5 private action brought by tippees against their tipper; it held that tippers could not defend that action on the basis of the in pari delicto defense. The Court recognized that the defense would nonetheless be available in certain limited circumstances even in Rule 10(b)-5 actions.
Nothing in that decision suggests that its holding applies to suits other than those *261under the securities law. Justice Brennan meticulously described the question presented as whether the common-law in pari delicto defense bars a private action “under the federal securities laws” against corporate insiders. 105 S.Ct. at 2624. The Court rejected the tipper’s argument that the holding of Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), denying the in pari delicto defense in antitrust actions, was inapplicable to securities actions because Congress had not expressly provided for such actions. Instead, the Court concluded “that the views expressed in Perma Life apply with full force to implied causes of actions under the federal securities laws.” 105 S.Ct. at 2629. Judge Rosenn points to no language in the opinion extending the holding to contract actions based on illegal securities transactions.
Judge Rosenn suggests that “this court has held that Bateman Eichler controls,” Rosenn Op. Typescript at 6 n. 2 (emphasis added), and therefore he does not address the question whether the in pari delicto doctrine applies to these facts. Id. at 8 n. 4. Presumably, he is invoking this court’s policy precluding a subsequent panel from overruling a published opinion of a previous panel. See IOP Chapter 8(c), Policy of Avoiding Intra-Circuit Conflict of Precedent. If the prior panel had analyzed the applicability of Bateman Eichler to contract actions, and then remanded for findings, we would indeed be barred. However, although the parties filed letter briefs on the issue, see App. at 314, the previous panel merely stated that because the district court “did not have [a] passage from the Bateman Eichler opinion before it when it made its factual findings and conclusions of law,” it was appropriate to remand the matter for that court to make factual findings as to “1) whether Roth-berg bears at least ‘substantially equal responsibility’ for the violations he seeks to redress, and 2) whether preclusion of suit would ‘significantly interfere’ with the effective enforcement of the securities laws and protections of the investing public.” 771 F.2d 818, 824. The remand suggests that the prior panel believed Bateman Eichler was relevant, but it should not be viewed as a decision that Bateman Eichler was necessarily controlling in contract actions in the absence of any statement to that effect.
We have not infrequently been troubled by the controlling force under IOP 8(c) of a prior panel’s decision remanding for further findings. See Associated Film Distribution Corp. v. Thornburgh, 800 F.2d 369, 377 n. 3 (3d Cir.1986). If we are to expand our policy requiring adherence to prior panel “opinions” to include matters that were not discussed in those opinions and not necessarily decided, then I believe it should be done by the full court through amendment of our Internal Operating Procedures. Until then, I believe we are free to examine a legal issue not previously reached or necessarily decided. Thus, as stated above, I believe we are free to decide that Bateman Eichler does not apply of its own force.
In securities litigation, as in antitrust actions, plaintiffs are acting not only on their own behalf but to supplement enforcement actions by the regulatory bodies. Bateman Eichler, 105 S.Ct. at 2628. It enhances the effect of such actions, and thereby the public interest, to preclude the in pari delicto defense inasmuch as the defense would impede successful maintenance of actions. For this reason, the Court has “eschewed rigid common-law barriers in construing the securities laws.” Id. It simply does not follow as a matter of course from Bateman Eichler that common-law barriers should be likewise eschewed in common-law actions. Thus, whether the in pari delicto defense should be available in a contract action brought by tippees against their tippers involves a different mode of analysis than that used by Judge Rosenn.
II.
Availability of the In Pari Delicto Defense in Contract Actions
Judge Seitz states that federal law and federal policy should apply to determine *262whether the in pari delicto defense is available in contract actions. I do not disagree because any right of Rothberg to recover under the state contracts law must yield to a federal policy expressed in or underlying federal law that would preclude such recovery.
Judge Seitz suggests that the same policy considerations that led the Bateman Eichler Court to bar a tipper’s use of the in pari delicto defense in a Rule 10(b)-5 action would be similarly applicable in contract actions. I cannot agree.
I see two bases for the Court’s decision that tippees, albeit not blameless, should be able to sue their tippers under the securities laws unencumbered by the in pari delicto defense. One was the Court’s conclusion that a tipper who breaches his or her fiduciary duties is more culpable than a tippee who does nothing more than trade on the information. 105 S.Ct. at 2630-31. The Court said, “In the context of insider trading, we do not believe that a person whose liability is solely derivative can be said to be as culpable as one whose breach of duty gave rise to that liability in the first place.” Id. at 2630. The culpability of the tipper defendant for Rule 10(b)—5 actions is evidenced by the rule requiring the tippee to prove the tipper acted with scienter. 105 S.Ct. at 2633 (citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)). The Bateman Eichler Court continually stressed that the in pari delicto defense would be available if the parties were shown to have substantially equal culpability.
The second basis for the decision barring the tipper’s use of the in pari delicto defense in Rule 10(b)-5 actions was the Court’s view that the public interest would thereby be served since tippers would be deterred through encouragement of tip-pees’ Rule 10(b)-5 actions and the consequential exposure of the underlying illegal trading.
The Court believed that measures designed to deter insider trading are more effectively addressed to tippers than tip-pees, particularly since prospective tippers constitute a smaller class than prospective tippees. 105 S.Ct. at 2632 and 2632 n. 29 (quoting Comment, Availability of an In Pari Delicto Defense in Rule 10b-5 Tippee Suits, 77 Colum.L.Rev. 1084, 1096-97 (1977)). The Court also suggested that tippers as a class are more likely than tippees to be aware of the existence of legal sanctions for trading misconduct, and hence “more responsive to the deterrent pressure of potential sanctions.” 105 S.Ct. at 2632. The Court recognized that there may be some disincentive to tippees to bring such actions because they will thereby also expose themselves to possible civil and criminal penalties. 105 S.Ct. at 2633. I assume that the Court believed that the incentive of monetary recovery would overcome the tippee’s concern about exposure.
I suggest that any prediction of the deterrent value of the in pari delicto defense in contract actions involving insider trading is, at best, speculative. The Supreme Court in Bateman Eichler could make a hypothesis about deterrence in the context of Rule 10(b)-5 actions because such suits are typically brought by a disappointed tip-pee who has incurred a loss in trading based on inside information that was intentionally false or misleading. In contrast, there is no readily discernible pattern in contract actions by tippees. We do not have sufficient data through reported cases. Such actions would probably be fact-specific, depending on the nature of the contract and the conduct. If we hypothesize any pattern at all to contract actions, it is likely to be one, as in this case, where the tipper and tippee have agreed on a joint venture to trade on insider information. A breach of contract suit by a tippee may be brought on a variety of claims, such as failure to adhere to the contract terms, supplying false information or misappropriating the proceeds.
I am considerably less comfortable than my brethren in predicting whether disallowance of the in pari delicto defense to the tipper will deter such arrangements in the future. I recognize that such a defense may deter some contract actions, but I *263believe that the exposure of insider trading through suits between the parties is more likely to occur in federal securities actions, which have been implied for such a purpose. Public exposure of the illegal securities scheme will only occur in contract actions if the defendant tipper is permitted to raise the in pari delicto defense. Even if the time has passed for any sanctions under the securities laws, there is a public benefit to be gained by bringing the facts to light.
Thus, I would hold that the public policy considerations that underlay the Bateman Eichler holding precluding the tipper’s use of the in pari delicto defense in securities litigation are inapplicable to the tipper’s defense in a contract action arising out of a conspiracy between the tipper and tippee to misuse inside information for their mutual benefit. Since the joint venture for illegal purposes is the paradigmatic situation for application of the common law in pari delicto defense, I see no reason not to apply it to common law contract actions between tippees and tippers.
I turn next to the other prong of the Bateman Eichler analysis, the relative responsibility of the tipper and tippee. Even if we assume that the tipper is ordinarily more culpable, as the Supreme Court stated, the Court nonetheless recognized that there may be particular instances in which this is not the fact: “[Situations might well arise in which the relative culpabilities of the tippee and his insider source merit a different mix of deterrent incentives.” 105 S.Ct. at 2632. The joint venture to trade on inside information is likely to be one such situation. In any event, whether the tippee bore substantially equal responsibility depends on the district court’s factual findings, and I cannot agree that in this case they are clearly erroneous.
I agree with my colleagues that the written record does not support the district court’s findings that Rothberg instigated the inside trading scheme and that Roth-berg dominated David Rosenbloom’s will or exercised undue influence over him. I recoignize that the district court may have relied on impressions from the demeanor of the witnesses to which we must defer, but the findings are inconsistent with Rosenbloom’s testimony that, in fact, he and Selzer, under pressure from Rothberg to make Rothberg some money, proposed the scheme to Rothberg. App. at 187. In addition, there is simply nothing in the record to indicate that Rothberg’s demand for profits amounted to coercion on Rosenbloom.
However, Bateman Eichler does not require either instigation or coercion before the in pari delicto defense can be used. It merely requires “substantially equal responsibility.” The record adduced in the district court supports a finding that Roth-berg bore at least that much responsibility, even if he was not more culpable.
As the district court found, and as the record supports, Rothberg is unlike the ordinary tippee predicated in the Bateman Eichler opinion. He was a sophisticated investor who had served as director of public corporations and had participated in mergers and stock syndications. App. at 120, 186. Nothing suggests that Rothberg was the passive recipient of the inside information.
On the contrary, Rothberg played an active role in structuring and financing the scheme.1 He had at least enough leverage to extract from the Rosenblooms the highly unusual indemnity against loss, thereby guaranteeing himself the very “enforceable warranty” that the Bateman Eichler Court found tippees would not be able to *264get through Rule 10(b)-5 actions. Moreover by 1979, when Rothberg obtained the promissory notes on which this suit is based, he was well aware of the illegality of insider information trading, since he had been obliged, following an SEC investigation, to disgorge the proceeds of a similar transaction. See SEC v. Shapiro, 349 F.Supp. 46, 48 (S.D.N.Y.1972), aff'd, 494 F.2d 1301 (2d Cir.1974). He was able to bring the present contract action without fear of criminal or civil proceedings only because he withheld filing this suit until the statute of limitations had run on any possible suit against him for securities law violations.
Although I am not persuaded by the Rosenblooms’ portrayal of themselves as naive and innocent participants, neither do I see any basis for this court to view Roth-berg as any less culpable.
I believe that my colleagues, in stressing the lack of evidence as to Rothberg’s instigation or coercion, have failed to focus on the relevant factual issue, which is whether Rosenberg was at least as culpable as the Rosenblooms. Since he was a sophisticated investor who invested in excess of $1,300,-000 in the series of six insider transactions to which these notes are related, and since he was able to extract a warranty against any losses from that trading, I believe that we cannot denominate the district court’s finding that he bore substantially equal responsibility as clearly erroneous.
The Bateman Eichler Court derived the “substantially equal responsibility” inquiry from the earlier opinions in Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). There, the Court disallowed a franchisor from asserting the in pari delicto defense against an antitrust suit brought by several of its franchisees. The plurality concluded that the dealers were not equally culpable because their agreement to the illegal contract clauses was not voluntary but “solely because their acquiescence was necessary to obtain an otherwise attractive business opportunity.” 392 U.S. at 139, 88 S.Ct. at 1984. Justice Marshall, while agreeing that mere participation in the agreement should not bar the dealers from recovering damages, asserted:
However, if [the franchisor] could show ... that petitioners actually participated in the formulation of the entire agreement, trading off anticompetitive restraints on their own freedom of action ... for anticompetitive restraints intended for their benefit ... petitioners should be barred from seeking damages as to the agreement.
392 U.S. at 150, 88 S.Ct. at 1990 (Marshall, J., concurring) (emphasis added).
As shown, Rothberg “actually participated in the formulation of the entire agreement.” Where, as here, the tippee provided the financing, pressured the insiders to produce money-making schemes, participated in the structuring of the scheme and intended to profit from that scheme, he should be found to bear “substantially equal responsibility” for that scheme. When his suit is not brought for fraud under the securities laws but instead relies on a contractual warranty included in that scheme, his recovery should be barred based on the still widespread principle “that a wrongdoer shall not be permitted to profit through his own wrongdoing.” Id. at 151, 88 S.Ct. at 1990.
. Rothberg’s active role in determining the terms of the agreements is evidenced by a memo from Sanford Rosenbloom concerning alterations in the agreements:
Today I spoke to Ben Rothberg about the matter of Joint Ventures. He told me that because it was the understanding that he would pay all interest for obtaining funds for the use of the Joint Venture and because he is to be entitled to all dividend or interest income from the Joint Venture, hereafter Joint Venture Agreements should be simplified to take out the present wording about expenses and insert wording per the understanding.
App. at 331.