Articles Posted in U.S. D.C. Circuit Court of Appeals

by
Plaintiffs brought this action against the Commission seeking a declaratory judgment that recently adopted regulations of the Commission regarding derivatives trading were unlawfully adopted and invalid, and seeking to vacate and set aside those regulations and to enjoin their enforcement. Plaintiffs contended that the Commission violated the Administrative Procedure Act, 5 U.S.C. 500 et seq., in its rulemaking by: (1) failing to address rationales for broadening Commodity Pool Operators (CPOs) exemptions; (2) failing to comply with the Commodity Exchange Act, 7 U.S.C. 2(a), and offering an inadequate evaluation of the rule's costs and benefits; (3) including swaps in the trading threshold, restricting its definition of bona fide hedging, and failing to justify the five percent threshold; and (4) failing to provide an adequate opportunity for notice and comment. The court concluded, however, that the Commission did not act unlawfully in promulgating the regulations at issue. Accordingly, the court affirmed the district court's grant of summary judgment in favor of the Commission. View "Investment Company Inst., et al. v. CFTC" on Justia Law

by
FINRA filed a complaint against petitioner, charging that he violated FINRA rules by submitting false expense reports for reimbursement of nonexistent business travel and for a fraudulently purchased cellular telephone. In his petition for review, petitioner argued that the SEC abused its discretion in upholding a lifetime bar based on his violation of the National Association of Securities Dealers (NASD) Conduct Rule 2110. The court remanded to the SEC for further consideration, agreeing with petitioner that the SEC abused its discretion in failing to adequately address all of the potentially mitigating factors that the agency should have considered when it determined the appropriate sanction. View "Saad v. SEC" on Justia Law

by
Three securities exchanges filed with the SEC proposed changes to their fee-setting rules for the acquisition of certain proprietary market data. Petitioners, two trade associations, requested the Commission to suspend the rules pursuant to its authority under the Securities Exchange Act of 1934, 15 U.S.C. 78s(b)(3)(C), contending that they were unlawful under NetCoalition I. When the SEC failed to do so, petitioners sought review in this court. The court held that the plain text of section 19(b)(3)(C), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376, was clear and convincing evidence to the court of Congress's intent to preclude review of a rule change at the filing stage. Further, petitioners failed to demonstrate extraordinary circumstances for mandamus relief. The court declined to reach any other justiciability or jurisdictional question presented by the petitions. Accordingly, the court dismissed the petitions. View "NetCoalition v. SEC" on Justia Law

by
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376, the SEC promulgated a rule requiring certain companies to disclose payments made to foreign governments relating to the commercial development of oil, natural gas, or minerals. Petitioners challenged the statute and the regulation, raising constitutional and statutory claims. The court dismissed the petition for review for lack of jurisdiction. Because petitioners have simultaneously filed a complaint in the district court, the court need not consider transferring the petition to that court. Additionally, the court's dismissal of the petition was without prejudice to petitioners' suit in the district court. View "American Petroleum Institute, et al v. SEC" on Justia Law

by
MBIA sued as the third party beneficiary of the Pooling and Servicing Agreements (PSAs) of a failed bank. It alleged that the FDIC as conservator of the successor bank had "approved," the PSAs and then breached its "Put Back" obligations under those agreements, resulting in investor claims of MBIA-issued insurance policies. At issue was whether payments made by MBIA to investors in mortgage securitizations of a failed bank constituted "administrative expenses" entitled to priority under the Financial Institutions, Reform, Recovery, and Enforcement Act (FIRREA), 12 U.S.C. 1821(d)(11)(A). The court held that the district court properly rejected MBIA's broad interpretation of "approved" in section 1821(d)(20) and dismissed MBIA's damage claims in counts I-V and VIII as prudentially moot in light of the FDIC's No Value Determination; the district court did not err in dismissing counts VI-VII for failure to state a claim; and the court rejected MBIA's alternative theory of recovery, claiming that FDIC Corporate was obligated under 12 U.S.C. 1821(m)(13) to fund the failed bank's losses. Accordingly, the court affirmed the judgment. View "MBIA Ins. Corp. v. FDIC" on Justia Law

by
Petitioner, a Russian citizen, petitioned the court to review the default order the SEC entered against him for failing to respond to administrative proceedings initiated by the SEC on allegations that he violated securities laws. The court agreed with petitioner that the SEC's application of Rule 155(b), 17 C.F.R. 201.155(b), was inconsistent with its precedent and therefore arbitrary. Accordingly, the court granted the petition for review, vacated the SEC's order denying petitioner's motion to set aside the default entered against him, and remanded for further proceedings. View "Rapoport v. SEC" on Justia Law

by
This case was before the court on a petition to review the opinion and order of the Commission permanently denying petitioner, an attorney admitted to practice in New York state, the privilege of appearing or practicing before the Commission, pursuant to rule 102(3)(1)(ii) of the Commission's Rules of Practice, and Section 4C of the Securities and Exchange Act of 1934 (Act), 15 U.S.C. 78a et seq. On appeal, petitioner contended that the procedure employed by the Commission was unconstitutional. The court held that the Commission acted within its authority in sanctioning him; petitioner was on notice of his duty to comply with the New York Bar disciplinary rules and the standard of conduct proscribed by Rule 102(3)(1)(ii) and Section 4C of the Act; there was substantial evidence for the Commission's finding that petitioner engaged in intentional improper professional conduct; and the Commission did not abuse its discretion in its choice of sanctioning petitioner. Accordingly, the petition for review was denied. View "Altman v. SEC" on Justia Law

by
This case stemmed from the United States' prosecution of Walter A. Forbes for securities fraud. Appellant, Forbes' defense counsel, sent out Freedom of Information Act (FOIA), 5 U.S.C. 552, requests to the SEC, seeking, among other things, the notes of SEC staff members taken during their conversations with certain government witnesses and their attorneys. On appeal, appellant argued that the Department of Justice's disclosure of 11 of the requested set of notes waived work product protection, not only for the documents that were released, but also for the remaining 103 sets of SEC notes. The court held that the controversy was moot with respect to the 11 documents because they had been disclosed by the Justice Department. As to the remaining 103 sets of notes, the court did not believe the SEC waived work product protection or that the Justice Department's action in the criminal trial had that effect. Accordingly, the judgment of the district court was affirmed. View "Williams & Connolly v. SEC" on Justia Law

by
As part of a civil enforcement action brought by the SEC, the district court entered a disgorgement order against Peter S. Cahill, imposing joint and several liability for the full proceeds of his sales of stock in a small, thinly traded corporation not listed on a major stock exchange. Cahill challenged the order. The court held that because Cahill presented no evidence in rebuttal, the district court did not clearly err in finding that the SEC had met its burden to show that his ill-gotten gains were the full proceeds of his stock sales at inflated prices resulting from a fraudulent "pump and dump" scheme. Neither did the district court abuse its discretion in crafting the disgorgement remedy. Inclusion of the transferred funds was consistent with the court's precedent. Absent any rationale for a different approach, the court joined other circuits in holding that the imposition of joint and several liability for the amount ordered to be disgorged did not require proof of a close relationship among the defendants beyond their collaboration in the fraudulent scheme in violation of the securities laws. Accordingly, because Cahill's evidentiary objections were also unavailing, the court affirmed the order of disgorgement. View "Securities and Exchange Comm'n v. Whittemore, et al." on Justia Law

by
In this civil enforcement action, a jury found that appellant aided and abetted a securities fraud by his former employer, in violation of 15 U.S.C. 78t(e). The district court fined appellant and barred him from serving as an officer or director of a publicly held company for five years. On appeal, appellant argued that the district court erred in allowing his trial to proceed in the District of Columbia pursuant to the "co-conspirator theory of venue." The court held that the SEC failed to lay venue in the District of Columbia under the straightforward language of 15 U.S.C. 78aa. Accordingly, the judgment was reversed and the district court was instructed to dismiss the case without prejudice. View "Securities and Exchange Comm'n v. Johnson, Jr., et al." on Justia Law