- Home-court advantage: SEC wins against defendants 90 percent of the time when it litigates before its own judges [Jean Eaglesham/W$J, Thaya Knight/Cato, earlier]
- Oops! “Corporate Inversions Increase U.S. Tax Revenues” [Rita Nevada Gunn and Thomas Lys/SSRN via Paul Caron/TaxProf, related, earlier]
- “How U.S. rules on conflict minerals are making life worse for desperately poor people in war-torn Congo” [Politico, earlier]
- “Lock up the banksters.” “Lock up the drug dealers.” Dara Lind spots some populist parallels [Vox]
- Should bank boards owe fiduciary duty to regulatory as well as investor interests? [Marc Hodak]
- “Nobody’s Worried About ‘Too Big to Jail’ Any More” [Matt Levine/Bloomberg View] “Hunting Whales: The Problem With Prosecuting SIFIS” [Thaya Knight/Cato]
- Luigi Zingales: market economists need to address question of when and how finance sector goes wrong, or others will do it for them [“Does Finance Benefit Society?“, presidential address to American Finance Association, Buttonwood/Economist, Arnold Kling]
- Critics say by naming payment processors in massive enforcement action over debt collection practices, CFPB is implementing its own version of Operation Choke Point [Kent Hoover/Business Journals; Barbara Mishkin, Ballard Spahr; Iain Murray, CEI]
- Green sprout in Amish country: “Bank of Bird-in-Hand is the only new bank to open in the U.S. since 2010, when the Dodd-Frank law was passed” [WSJ via Tyler Cowen; Kevin Funnell on smothering of new (de novo) bank formation; Ira Stoll (auto-plays ad) on growth of non-bank lenders]
- “Quicken Loans Sues DOJ; Claims ‘Political Agenda’ Driving Pressure to Settle” [W$J; J.C. Reindl, Detroit Free Press]
- Shocker: after years of Sen. Warren’s tongue-lashings, some banks consider not giving to Democrats. Is that even legal? [Reuters] “Elizabeth Warren’s Extraordinarily Bad Idea For A Financial Transactions Tax” [Tim Worstall]
- Still raging on: Delaware debate about fee-shifting corporate bylaws as deterrent to low-value shareholder litigation [Prof. Bainbridge first, second, third posts]
- “How a Business Owner Becomes Criminally Liable for How Customers Spend ATM Withdrawals” [Elizabeth Nolan Brown, Reason]
- New York financial regulator pushes to install government monitors at firms where no misconduct has been legally established [Robert Anello, Forbes]
I’ve got a new post up at Cato at Liberty about the Second Circuit’s sharply worded dismissal of two insider trading convictions, which alas came too late to avoid massive damage to the enterprises and people concerned. Quoting NYT “DealBook”:
The dismissal of the case also raises questions about the November 2010 raids of Level Global and Diamondback Capital Management by the Federal Bureau of Investigation. Soon after the raid on Level Global, the hedge fund, which was started by Mr. Chiasson and David Ganek, shut down, in part because of requests by investors to redeem their money after the raid. Mr. Ganek was never charged with any wrongdoing by federal authorities.
Diamondback, where Mr. Newman was a portfolio manager, continued to operate for another two years, but it decided to close its doors in December 2012 after receiving a wave of investor redemptions.
Mr. Ganek chided the government in a statement on Wednesday. “For the dozens of my high-integrity colleagues at Level Global who lost their jobs and their reputations because the F.B.I. improperly raided our firm in this now-discredited fishing expedition, today’s legal vindication is a reminder how prosecutorial recklessness has real impact on real people,” he said.
Raids, as opposed to subpoenas and other dull ways of obtaining information sought in an investigation, are irresistible to the press — and they greatly reinforce the public impression that there must have been serious wrongdoing at a target enterprise. That in turn can spell doom especially for financial undertakings, whose business will often be built on client and public trust. And if the case subsequently fails to stick by the evidence or the law, well, it’s on to the next prosecution, right?
House Republicans want answers on how federal agencies’ mega-settlements with issuers of mortgage-backed securities came to include tens of millions of dollars in payments to “housing counseling” groups allied with the Obama Administration [DS News] Earlier on banks’ payments to activists here, here, etc.
“The Justice Department has a suggestion for banks hoping to avoid criminal charges: Rat out your employees.” By agreeing to throw individuals under the bus, the company as a whole will qualify for valuable cooperation credits. [Ben Protess, New York Times “DealBook”] On a similar culture-of-informants theme, Eric Holder is proposing to further boost bounties for Wall Street informants into more massive contingency-fee territory: “Mr. Holder will urge Congress to allow bigger whistleblower rewards under the 1989 Financial Institutions Reform, Recovery and Enforcement Act…. Current law caps any Firrea whistleblower payment at $1.6 million.” [Wall Street Journal, earlier coverage and specifically]
On July 24 Cato held a book forum on Sidney Powell’s new book, “Licensed to Lie: Exposing Corruption in the Department of Justice” (earlier). Participants included the author Sidney Powell, with comments by Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit; and Ronald Weich, Dean, University of Baltimore Law School. My colleague Tim Lynch, who directs Cato’s work on criminal justice issues, moderated. From the description:
In Licensed to Lie, attorney Sidney Powell takes readers through a series of disturbing events, missteps, and cover-ups in our federal criminal justice system. According to Powell, the malfeasance stretches across all three branches of our government — from the White House to the U.S. Senate, to members of the judiciary. Even worse, the law itself is becoming pernicious. Americans can now be prosecuted, convicted, and imprisoned for actions that are not crimes. And if acquitted, there is no recourse against prosecutors who hid evidence vital to the defense.
Powell gives a detailed account of the prosecution and imprisonment of individual executives of well-known firms such as Merrill Lynch based on creative new theories of criminal liability, following dubious prosecutorial conduct including the withholding of evidence favorable to the defense, so-called Brady violations.
- “The tie that binds public employee unions and Wall Street” [Daniel DiSalvo] “Unions Manipulate New York City’s Public Pension Funds To Punish Their Enemies” [NYT via Jim Epstein, Reason]
- Illinois latest state to pass “ban the box” law restricting employers’ inquiries on criminal records [Workplace Prof]
- Two ex-football pros file suit claiming union conspired with owners on concussions [Bloomberg]
- Average Illinois public retiree’s pension rapidly narrowing gap with average salary of worker still on job [Jake Griffin Daily Herald via Reboot Illinois] By 2006, 1,600 California prison guards were making $110K+, plus more on tendency of state/local government pay to outrun private [Lee Ohanian via Tyler Cowen]
- Great moments in employment law: Seventh Circuit says other employees’ having sex on complainant’s desk not hostile work environment when not targeted at gender [Eric B. Meyer]
- Next step signaled in SEIU fast food protest campaign: unlawful property occupations [AP, Chicago Tribune, arrests in May]
- Trial lawyer win: Obama federal-contractor fiat will forbid pre-dispute agreements to submit bias claims to binding arbitration [AP, AAJ jubilates]
CALPERS, the giant California public-sector pension fund, is among the nation’s leading scolds of corporate governance. So as Ira Stoll points out, it’s kind of newsworthy that its CEO over most of the 2000s just pled guilty to taking $200,000 in bribes from a contractor, the money handed over in paper bags and a shoebox. [New York Sun]
- Furor grows over Obama administration’s Operation Chokepoint program chilling bank access for legal but disfavored groups [Iain Murray, Elizabeth Nolan Brown, FDIC list (not just payday lenders but also lawful purveyors of pills, guns, ammunition, and much more), Hans Bader] Parallel, though not happening under same program: JP Morgan abruptly closes accounts of former Colombia finance minister who is a renowned international economist, apparently because he made it onto a list of diplomats and other “politically exposed persons” statistically associated with legal risks and high compliance costs [Business Insider] Update via Nolan followup: Dana Liebelson at Mother Jones quotes anonymous bank officials as claiming that some account closures are wrongly being attributed to the program, but even in defending it concedes that should banks opt for continuing to service clients in disfavored lines of business they will shoulder distinctive (maybe decisive) compliance costs from “manag[ing] these relationships and risks,” engaging in due diligence, etc. Also, lawmakers like Sens. Jeff Merkley (D-Ore.) and Elizabeth Warren (D-Mass.) and Rep. Elijah Cummings (D-Md.) back the program; besides, this isn’t “the first time that feds have asked banks to keep an eye on their customers” since the Know Your Customer program goes back some years. So that’s comforting!
- “Court: Standard & Poor’s is entitled to discovery supporting its ‘selective prosecution’ claim” [Volokh, earlier here and here]
- “Plaintiff? Is That Really Necessary In A Class Action?” [Daniel Fisher on ZymoGenetics case]
- Backed by hedge fund, lawyers exploit anti-terror law to squeeze global banks [Norman Lamont, New York Post]
- “CEO facial masculinity predicts firm’s likelihood of being subject to SEC enforcement action” [Jia, Van Lent, and Zeng, SSRN via @brucecarton]
- “Reflections on High Frequency Trading” [Robert Levy, Cato]
- Banks finally lay to rest long-running litigation under Missouri second-mortgage law (MSMLA), though only after one Kansas City law firm ran up more than $600 million in settlements [Litigation Daily]