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May 31, 2022

Month in Review Newsletter – May 2022

This has been a busy month for our team as we applauded the confirmation of key Federal Reserve nominees, put a spotlight on the egregious actions of Wall Street’s biggest banks, and weighed in on cryptocurrency and its potential impact on investors and ordinary Americans.

To view the emailed version, go here.  

We celebrated the Senate’s confirmation of Dr. Lisa Cook as the first Black woman to serve on the Federal Reserve Board in its 109-year history.  The confirmation of Dr. Cook and that of Dr. Philip Jefferson this month, are important steps towards making the Federal Reserve Board, our government, and our economy more inclusive. We were also pleased to see the Senate confirm Chair Jerome Powell and Vice Chair Lael Brainard.  President Biden’s nominee for the key position of Vice Chair for Supervision at the Fed, Michael Barr, had his confirmation hearing before the Senate Banking Committee on May 19th and, hopefully, he will soon be voted on as well.

These nominations are crucial for lots of reasons, including because there is much more to do to hold Wall Street accountable when they break the law. Our recent Rap Sheet Report shows that Wall Street’s 6 biggest banks racked up another $1 billion in fines in 35 cases over the last 15 months, and a total of 430 legal actions and nearly $200 billion in fines over the last two decades. The shocking breadth, depth, and persistence of repeated lawbreaking by these banks year after year proves that even big fines are meaningless.  Only meaningfully and personally punishing individual lawbreakers, including executives and supervisors, will stop this Wall Street crime spree.

Our team weighed in on key questions involving cryptocurrency, including FTX’s application to the CFTC to offer additional financial products on its exchange. Additionally, we voiced our strong concerns over moves by financial institutions to add cryptocurrency investment options to 401 (k) plans. The crypto carnagevolatility, and wealth destruction over the last few weeks are red flags as to the threats posed to customer protection and systemic stability by cryptocurrency investments. We will continue to monitor these issues closely in the coming months.  
Finally, our CEO and President Dennis Kelleher was chosen by Washingtonian Magazine for the second year in a row as one of the most influential people shaping policy. It is noteworthy that, of the most influential people chosen, Dennis is the only public interest nonprofit leader in Washington, DC selected in the banking and finance policy areas, while there were more than two dozen representatives of the banking and financial industry featured on the list.
Simply put, Better Markets plays a unique and essential role in standing up for ordinary Americans in the public policy process and acting as a counterweight to the mountain of money spent by Wall Street every year.
 
Thank you for your support in allowing Better Markets to serve as that singular voice.
 
Anton Becker
Communications Director, Better Markets

IN THE NEWS

The startup world is due for a reckoning
CNN, May 13, 2022

“’The crypto carnage, volatility and wealth destruction over the last few days and weeks are red flags as to the threats posed to customer protection and systemic stability by cryptocurrency investments,’ Better Markets CEO Dennis Kelleher said in a statement Thursday.”

Lawmakers Wary Of Crypto Exchange FTX’s Trading Plan
Law 360, May 12, 2022

“‘FTX has filed an application with the CFTC that, if approved, will likely vastly increase the participation of retail investors in the cryptocurrency futures markets via cellphone apps without intermediaries but with around-the-clock, second-by-second auto-liquidation of their margin accounts,’ Mr. Kelleher said in a statement.”

FTX’s Bankman-Fried and CME’s Duffy square off on crypto futures in Capitol Hill hearing
Marketwatch, May 12, 2022

“Dennis Kelleher, president and CEO of Better Markets, a nonpartisan market-reform group said in a comment letter submitted to the CFTC that while it supports reforms that would create greater competition in the commodity-derivatives markets, the FTX application raises concerns about investor protection. “

SEC proposes return to 30% awards for corporate whistleblowers
Federal News Network, May 11, 2022

“Since the Dodd-Frank banking legislation, whistleblowers receive up to 30% of penalties the SEC collects when they exceed $1 million. The program was trimmed back during the Trump administration. New proposed rules would return the program to its former state. For one view of what should happen next, the Federal Drive with Tom Temin turned to the co-founder and CEO of the banking and markets non-profit advocacy group Better Markets, Dennis Kelleher.”

Washington DC’s 500 Most Influential People
Washingtonian, May 3, 2022

Washingtonian said it chose those with “deep subject-matter expertise and significant understanding of how DC works, with the goal of getting action…and shape the laws that govern the country and ultimately affect the course of history.”

First Century Bank scraps First Internet deal
Banking Dive, May 2, 2922

“‘Such end-of-week, late-in-the-day announcements are a disservice to the public and beneath the proper role of the Fed,’ Phillip Basil, Better Markets’ director of bank policy said in a March press release.”

Should Bitcoin Be in Your 401(k)? Fidelity Is Making It Possible—for Better or Worse
Barrons, April 28, 2022

“‘The discussions around cryptos ‘overshadow the facts that make them extremely questionable for retirement accounts,’ said Dennis Kelleher, CEO of Better Markets, an investor-advocacy group that signed the letter.’”


FOCUS ON…

Report Release: Wall Street’s Ongoing Crime Spree

Our Wall Street Rap Sheet report details the egregious lawbreaking of the six of the nation’s largest banks—Bank of America, Citigroup, Goldman Sachs, JPMorgan Chase, Morgan Stanley, and Wells Fargo—who have amassed more than $1 billion in fines in 35 cases in just the last 15 months.


ACTIVITIES AT THE REGULATORY AGENCIES

SEC Proposal Would Establish Comprehensive Cybersecurity Disclosure Requirements

We supported the Commission’s proposed rule to establish comprehensive cybersecurity disclosure requirements for publicly traded companies, which would provide investors with more standardized and timely material information about the cybersecurity risks, governance, and incidents that face publicly traded companies in today’s financial markets.

The Ongoing Crypto Carnage and Wealth Destruction Are Red Flags

In a letter to the CFTC, we urged the agency to exercise extreme caution as it considers FTX’s proposal to offer non-intermediated, margined clearing of Bitcoin futures products.

SEC Must Do More To Reform the Corrupt, Conflict-Ridden Credit Ratings Process

While the SEC’s proposed rule to remove references to credit ratings from Regulation M is a good start, we called on the agency to do more to reform the corrupt credit rating process.

Better Markets Supports SEC Rules to Expand Regulation on High Frequency Trading Firms

High-frequency trading firms have grown tremendously in recent years, now representing roughly 50% of the trading volume in the U.S. equities market. Yet many of these firms do not fall under the SEC’s regulatory framework. We supported the SEC’s proposal to help enhance transparency, market resilience, and investor protection by making sure that these firms register with the SEC and are regulated accordingly.


ACTIONS IN THE FEDERAL COURTS 

The Supreme Court

Every term, the U.S. Supreme Court decides cases addressing not just major social policies such as abortion and gun control but also financial and economic issues that profoundly affect Americans’ lives. We regularly issue reports highlighting these critically important economic and financial cases. Read our preview of the current term here, and our recap of the last term here.  In our Supreme Court reports, we also focus on the Justices picked to serve on the Court, examining how their judicial philosophy is likely to affect the Court’s approach to financial regulation and administrative law, a set of legal principles that can determine the fate of the agency rules that regulate our markets.  We’ve profiled three Justices so far, including Justices Kavanaugh (here), Barrett (here), and Jackson (here).  Those reports showed that the pro-business and anti-regulatory attitudes of Justices Kavanaugh and Barrett would hamper the ability of agencies to effectively regulate the financial markets and deprive many investors and consumers of the chance to seek meaningful relief in court for the damages they’ve sustained at the hands of a too-often predatory financial system.  On the other hand, our profile of Justice Ketanji Brown Jackson showed that she promises to be an exemplary Justice, one who is more likely to uphold strong regulation and give investors and consumers a fair opportunity to seek redress.

Chevron Deference.  In addition to our reports, we also track a number of individual Supreme Court cases addressing financial regulation, the rights of investors to seek relief in court, and administrative law.  For example, we’re now waiting for the Court’s decision in American Hospital Assoc. v. Becerra, 967 F.3d 818 (2020) (S. Ct. Docket No. 20-1114) (oral argument held November 30, 2021).  It presents an important question of administrative law: How much deference should federal courts afford to an agency’s interpretation of the law? That’s a question that has drawn increasing attention as Justice Gorsuch and other conservative Justices have expressed strong opposition to the deference rule, known as the “Chevron doctrine.”  It matters a great deal, since the doctrine can in many cases determine whether an agency rule, written to protect the public’s health, safety, and financial security, will survive judicial review.

Attack on the Administrative Agencies.  In another significant development, the Supreme Court recently agreed to hear a case involving another attack on the administrative law judges (“ALJs”) that hear most of the SEC’s enforcement actions.   In SEC v. Cochran, No. 21-1239, an accountant, Michelle Cochran, was fined over $20,000 and suspended for five years in an SEC administrative enforcement action for violating federal auditing standards.  After the Supreme Court ruled in Lucia v. SEC that the SEC’s corps of ALJs had been unconstitutionally appointed in violation of the Constitution, the SEC sent Cochran’s case back for rehearing before a properly appointed ALJ.  However, in a defensive maneuver, Cochran challenged the enforcement action on yet another Constitutional ground, asking a federal district court to block the proceeding because the ALJs could only be terminated for cause.  She alleged that those limitations on removal of the SEC’s ALJs hampered the President’s ability to see that the law is faithfully executed, in violation of the separation of powers doctrine in the Constitution.

The real issue presented to the court is actually a procedural or jurisdictional one, namely whether the federal district court can entertain her request for an injunction against the enforcement action, since under the Securities laws, respondents must generally wait until a final agency order has been issued and then proceed to a circuit court, not a federal district court, to challenge the order.

Ultimately, the underlying merits of Cochran’s constitutional challenge will be decided, but before then, the Court’s disposition of the jurisdictional issue will be significant.  If the Court sides with Cochran and allows such challenges, other respondents will be encouraged to file district court cases seeking to derail administrative enforcement actions against them, at least where they launch Constitutionally based challenges to the proceedings.  And the Court’s decision will also shed light on how the Justices align on matters involving the so-called “administrative state.” The more conservative Justices may well seize the opportunity to complain about what they view as the excessive and unaccountable power of regulatory agencies to write and enforce rules. Of course, this ideology starkly conflicts with the unquestionably successful and longstanding role that the regulatory agencies have played in implementing and enforcing federal statutes to protect the public from a wide range of threats to their health, safety, and financial well-being.  The Court will consider and decide the case during the next term, which begins in October.

Adding fuel to the anti-regulatory fire kindled by the Cochran case is a May 18 decision from the Fifth Circuit.  In Jarkesy v. SEC, No. 20-61007, a divided three-judge panel ruled that (1) the SEC’s administrative adjudication of an enforcement action against a hedge fund manager for fraud violated the Seventh Amendment right to a jury trial; (2) Congress unconstitutionally delegated legislative power to the SEC by failing to provide an intelligible principle by which the SEC would determine which cases to try before an ALJ and which to pursue in federal court; and (3) the statutory removal restrictions on SEC ALJs conflicted with the President’s Article II duty to “take care that the laws be faithfully executed.” This case, along with Cochran, indicates that attacks on regulatory agencies are on the rise and may receive increasingly sympathetic attention from the courts.

Other Cases of Interest in the Federal Courts

SEEKING TO HOLD MARKET MANIPULATORS ACCOUNTABLE – A class-action lawsuit on appeal in the 10th Circuit (In re: Overstock Securities, et al.) in which investors seek to recover damages for a brazen market manipulation scheme allegedly perpetrated by Overstock’s CEO, Patrick Byrne, and others.

  • The issue. The plaintiffs have alleged, among other frauds, that Byrne artificially inflated the stock price of Overstock by orchestrating what’s known as a “short squeeze,” a series of actions that forced short sellers to buy stock to cover their positions, thus driving up the price of the stock. They allege that Byrne succeeded; cashed in his own shares at inflated prices, reaping tens of millions of dollars; and essentially admitted the manipulation. The district court in Utah rejected the claims as a matter of law, relying in part on the argument that an essential element of market manipulation is deception, something the court deemed was absent in this case given the overt nature of the defendants’ conduct.
  • What we did. On February 2, 2022, Better Markets, joined by the Consumer Federal of America, filed an amicus brief explaining not only the legal errors in the district court’s decision but also the more far-reaching harm that the decision threatens unless it is reversed.  In our brief, we showed that the securities laws and rules were written broadly to cover fraud and manipulation as two separate forms of illegal conduct, driving home the point that manipulation schemes distort share prices and inflict harm on investors regardless of whether they were carried out using lies or traditional forms of deceit. We also highlight the damaging impact that the district court’s decision will have unless it is reversed. The plaintiffs will almost certainly be left without any remedy for their losses, and over the long-term, market manipulators will be able to fashion schemes that skirt the law but nevertheless wreak havoc in the markets and inflict untold harm among investors.
  • Why it matters. Our securities markets are already viewed as unfair and rigged in many ways, and a ruling that immunizes a broad swath of market manipulation schemes is the last thing that investors or the markets really need. That’s why we urged the Tenth Circuit to reverse the district court and allow the claims to be heard.
  • Status. Briefing on the merits has wrapped up and we expect the Court will soon schedule oral argument, with a decision to follow typically several months thereafter.

ATTEMPTING TO FORCE ARBITRATION ON SHAREHOLDERS – A lawsuit filed in New Jersey federal district court (The Doris Behr Irrevocable Trust v. Johnson & Johnson) attempting to force public company shareholders into mandatory arbitration, a biased, secretive, and anti-consumer forum.

  • The issue.  In this case, a federal court is being asked to decide if a public company can be forced to impose mandatory arbitration not just on its customers but also on any shareholders with claims against the company for fraud, mismanagement, or other breaches of duty. The stakes are high. If the court gets this wrong and allows this dramatic—and dramatically bad—legal development, then the toxic effects of mandatory arbitration will be further broadened, incentivizing corporate lawbreaking by limiting the legal rights of shareholders to enjoin it and hold those responsible accountable. Given that shareholders are the owners of public companies, who rely on legal actions as one important way to protect their investments and police management, such a decision could have a significant and adverse impact on capital formation and allocation.
  • Why it matters? Mandatory or forced arbitration takes away the rights of consumers and investors to seek relief in open court before unbiased judges when they are ripped off by banks and corporations. These often fine-print clauses force defrauded investors and other victims into secret, unfair, and biased arbitrations. Those proceedings are generally run by an industry self-regulatory organization that, no surprise, consistently favors the industry. Investors and consumers rarely obtain meaningful recovery.
  • Status: In a positive recent development, the district court once again granted defendant Johnson & Johnson’s (J&J’s) motion to dismiss. The court ruled that there’s no real “case or controversy” between the parties because the Trust’s claims are either moot (already resolved) or unripe (not yet ready for resolution).  Obviously disappointed by the court’s ruling, the plaintiffs filed their “notice of appeal” to the U.S. Court of Appeals for the Third Circuit on April 8.  That means more briefing, oral argument, and then a decision from the appellate court months down the road. Depending on which specific legal issues the parties pursue on appeal, this may be a case in which Better Markets decides to file an amicus brief to help defeat attempts to impose mandatory arbitration on shareholders.

TRYING TO MAKE THE MARKETS LESS RIGGED – An industry challenge in the D.C. Circuit (Citadel Securities LLC v. SEC) to the SEC’s approval of a new type of trading order that helps protect investors from predatory trading activity by sophisticated high frequency trading firms.

  • The issue.  The SEC approved an innovative new order type developed by a pro-investor exchange known as IEX, which helps neutralize the trading advantages that firms like Citadel have because of their high-speed trading technology and preferential data access.  Citadel wants to nullify the SEC’s decision and preserve its profits, so it went to court.
  • What we did. We filed an amicus brief, explaining the advantages that HFTs enjoy and the harm they inflict on investors. We also showed how the D-Limit Order, which automatically resets its price when HFTs are about to strike, helps neutralize the HFTs’ unfair advantage. Fortunately for investors, the SEC’s mission is to protect investors and the integrity of the markets, not Citadel’s coveted business model, so it approved the IEX order type in accordance with the securities laws and all the requirements surrounding rulemaking. We urged the Court to affirm the SEC’s decision.
  • Why it matters. This case will determine whether the SEC can level the playing field for all investors or whether Citadel will succeed in protecting the status quo so it can continue raking in huge and unfair profits. The case will have an enormous impact on the ability of everyday investors to protect their money from being siphoned away by high frequency trading (HFT) firms like Citadel, which is fighting to protect its ability to generate near-certain profits through privileged data access and sophisticated trading technology.
  • Status: The case was argued before the D.C. Circuit on October 25, 2021, and we’re watching for the Court’s decision on the merits.

SEEKING TRANSPARENCY ABOUT DIVERSITY ON CORPORATE BOARDS – A challenge in the 5th Circuit (Alliance for Fair Board Recruitment v. SEC) to the SEC’s approval of a new rule issued by the NASDAQ that would help advance the cause of racial justice.

  • The issue. The NASDAQ, a major national stock exchange that lists over 3,000 company stocks, recently took a major step forward on the racial injustice front by issuing a new rule that would require each company listed on the exchange to publicly disclose the self-identified gender, racial, and LGBTQ+ status of each member of the company’s board of directors. The rule also requires each listed company to have, or explain why it does not have, at least two members of its board who are diverse, including at least one director who self-identifies as female and at least one director who self-identifies as an underrepresented minority or LGBTQ+.  The SEC approved the rule in August 2021, and the petitioner, the “Alliance for Fair Board Recruitment,” promptly challenged it in the U.S. Court of Appeals for the Fifth Circuit. The Alliance is based in Texas, and its website simply declares that its mission is to “promote the recruitment of corporate board members without regard to race, ethnicity, sex and sexual identity” and further that “The identities of our members are confidential.” The Alliance is arguing that the rule violates the petitioners’ right to equal protection under the Fifth Amendment to the U.S. Constitution, that it also violates the First Amendment by requiring disclosure of controversial information, and that the SEC lacked authority under the securities laws to approve the rule. Briefing is underway.
  • Why it matters.  A victory in the case by the Alliance will invalidate an important measure that provides key insights into the composition of thousands of boards of directors, information that would undoubtedly and ultimately lead to greater diversity in America’s board rooms and progress toward bringing minorities into the economic mainstream.
  • Status: Briefing in the case is wrapping up and the Court has tentatively set oral argument for the week of August 1st.

ATTEMPTING TO TEAR DOWN EVEN MODEST PROTECTIONS FOR RETIREMENT SAVERS – Two new challenges to the Department of Labor’s December 2020 best interest rule (Federation of Americans for Consumer Choice v. DOL (N.D. Tex. filed February 2, 2022) and American Securities Ass’n v. DOL (M.D. Fla. filed February 9, 2022)).

  • The issue.  Outdated Department of Labor rules have long provided that the law protecting investors from conflicted advice doesn’t apply when an adviser tells a client they should roll their entire nest egg out of a 401(k) account and into other investments, such as annuities that reward advisers with huge commissions. For over a decade, the DOL has been trying to develop new rules to close those gaps and provide better protections for retirement savers. In 2016, it issued a set of effective new rules, but they were struck down by the U.S. Court of Appeals for the Fifth Circuit—the only court, among half a dozen federal courts to hear challenges to the rules, that accepted industry’s arguments.  Under the Trump Administration, in December 2020, the DOL came up with a watered-down set of protections that left major gaps intact. However, those rules at least made clear that “rollovers” could be covered under the law, potentially requiring an adviser to make such recommendations only if they were in the client’s best interest.  The insurance industry is especially upset at the restrictions because they eat into huge profits from the sale of annuities.  They have challenged the rule in federal courts in Texas and Florida, arguing that the DOL lacks the authority to subject rollover recommendations to the “best interest” standard.
  • Why it matters.  For decades, many financial advisers subject to powerful conflicts of interest have been enriching themselves at the expense of their clients by recommending overpriced, poor-performing, and overly risky investment products. The damage has amounted to tens of billions of dollars a year, a cost that is especially harmful to everyday Americans struggling to save and invest for a decent and dignified retirement.  If even the modest protections in the DOL’s 2020 rule governing rollovers fail to survive this legal challenge, then retirement savers will be that much more exposed to the predatory advisers who recommend rollovers to line their pockets, not serve the best interests of their clients.
  • Status:  The cases are just getting underway with a briefing schedule yet to be set.

HILL UPDATE

CFPB Director testifies about important consumer protection measures

In late April, Consumer Financial Protection Bureau Director Rohit Chopra appeared before the House Financial Services Committee and the Senate Banking Committee to answer questions from lawmakers about bank fees, medical debt, and other industry activities that hit consumers in their pocketbooks.  Director Chopra said that banks took in more than $15 billion in overdraft fees and other fees in recent years; he described these as “junk fees” and said “there is a fee-creep that is occurring throughout the economy.”  He said the CFPB has launched an investigation into these fees, and is prepared to issue new rules to protect consumers.

Treasury Secretary Yellen testifies days after stablecoin meltdown

Treasury Secretary Janet Yellen testified before the Senate Banking Committee and the House Financial Services Committee to give an update on the Financial Stability Oversight Council’s annual report about systemic risks to the financial sector.  At the hearings, which came just days after the sudden meltdown of the TerraUSD stablecoin, Secretary Yellen urged lawmakers to come up with a legislative approach to govern stablecoins.  She emphasized that this is something that the President’s Working Group on Financial Markets called for in a report last year which described the risk to the financial system posed by stablecoins.  “Our strong recommendation to Congress is that you work on a bipartisan basis to put in place a comprehensive national regulatory framework,” Secretary Yellen said.

Senate Confirms Fed Chairman, Governors

The Senate also voted on a number of important appointees to the Board of Governors of the Federal Reserve System.  Jerome Powell was reconfirmed as Fed Chairman by a vote of 80-19; Phillp Jefferson was confirmed as a Fed Governor by a vote of 91-7, and Lisa Cook was confirmed as a Fed Governor by a vote of 50-49.    The Senate Banking Committee also held a hearing to consider the nomination of Michael Barr to be the Vice Chairman for Supervision at the Fed, a crucial role among financial regulators.


WHAT WE’RE READING

U.S. SEC chair says much to be done to protect crypto investors

Reuters, May 16, 2022

Cryptocurrency assets are highly speculative and investors in them need more protections or they could lose trust in the markets, Gary Gensler, chair of the U.S. Securities and Exchange Commission, said on Monday.

First ESG Taskforce Lawsuit Shows SEC Serious on Disclosures
Bloomberg Law, May 12, 2022

The SEC’s recent lawsuit against Vale S.A., a publicly traded mining company based in Rio de Janeiro, demonstrates that the SEC is considering all reporting and public statements, not just required filings, when determining if a company has misled its investors on environmental and social matters, Vinson & Elkins attorneys warn.

Lorie Logan, a Fed veteran, will lead the Dallas Fed.
New York Times, May 11, 2022

Lorie K. Logan, a longtime Federal Reserve Bank of New York veteran, will be the next leader of the Federal Reserve Bank of Dallas.

 

 

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