Did Mary Schapiro Engage in a Fraud?

Will we learn in 2012 if Mary Schapiro, current chair of the SEC, and other then senior executives at the Wall Street self-regulatory organization, FINRA, engaged in a fraud?

The case addressing this question, Standard Chartered v FINRA, has been appealed to the highest court in our land. As such, one might think that most Americans would care to learn if our nation’s top financial regulator did, in fact, engage in a fraud which had a monetary value of between $175-$350 MILLION plus. Not exactly chicken feed.

Why hasn’t this case received more attention? 

For the very simple reason that our major financial media have spent little to no time focused on it. If you don’t think our media is controlled in this country, then you may want to ask why this case has not received more meaningful coverage.

I first addressed this case in the fall of 2009. I personally believe it belongs on the front page of every business section in our country. Why? This case addresses the core of what I have long defined as the Wall Street-Washington incest. The $175-350 million which FINRA retained — rather than having appropriately distributed to its member firms — allowed the major firms on Wall Street and selected FINRA executives to benefit at the expense of smaller broker-dealers. Sound a little incestuous perhaps? You think?

More importantly, this case addresses the fact that Ms. Schapiro and her fellow FINRA colleagues signed a proxy statement used for the merger of the NASD with the regulatory arm of the NYSE to form FINRA that included misinformation. If utilizing a proxy statement which includes misinformation is not an abuse of capitalism and a fraud, I do not know what is.

My link above references several angles in this case and other FINRA and assorted partners’ ‘incestuous’ follies. I strongly recommend you review this wealth of material. You will be busy, but you certainly will not be bored.

Are you sufficiently intrigued to learn a little more about this situation? Let’s navigate and review a recent commentary written by Dan Jamieson of Investment News. Dan writes, B-D Wants Supreme Court to Rule on FINRA Suit:

The high court this month is expected to decide whether to take up a lawsuit brought against NASD by Standard Investment Chartered Inc. over the self-regulator’s 2007 merger with the regulatory unit of the New York Stock Exchange.

Standard, an investment banking boutique, insists that the proxy used by the NASD in soliciting member approval for the merger was fraudulent.

NASD since has been renamed the Financial Industry Regulatory Authority Inc.

Government entities, including private organizations with government-delegated authority, generally enjoy absolute legal immunity in performing official duties. Court cases have granted protection specifically to securities self-regulatory organizations.

Absolute immunity covering a financial transaction? Sniff, sniff. Do you smell something? Me, too.

Standard argues that the merger was not a legally protected regulatory function of Finra.

The brokerage firm wants the Supreme Court justices to hear that case because it claims that lower courts have issued conflicting opinions on immunity for SROs and other state actors.

The Standard suit has already been thrown out twice by courts — in 2010 by a New York U.S. District Court judge and then again last year by the 2nd U.S. Circuit Court of Appeals.

But the Supreme Court could take a different view. In June 2010, it ruled that the Public Company Accounting Oversight Board, a private oversight body set up under the Sarbanes-Oxley law, was unconstitutional because its members were not sufficiently overseen by the executive branch.

The Standard appeal has attracted an unlikely assortment of allies among business and consumer groups.

“The case presents a situation where a quasi-governmental entity is abusing its power,” said Ilya Shapiro, a constitutional lawyer at the libertarian Cato Institute, which joined with the Competitive Enterprise Institute in filing an amicus brief on behalf of Standard.

“Our legal interest is really to make government accountable,” he said.

There’s a larger principle at stake: to what extent state actors can be held accountable, said William Anderson, one of Standard’s lawyers at Cuneo Gilbert & LaDuca LLP. “That’s why the various groups have weighed in” with amicus briefs, he said.

“We’re concerned about the court’s overextension of immunity” to private organizations, said Scott Michelman, a staff attorney at the Public Citizen Litigation Group, which, together with Consumer Action, The Project On Government Oversight and the U.S. Public Interest Research Group, also is urging the Supreme Court to take the case.

“In this case, immunity has been extended to private corporate actors … in a way that could prevent corporate accountability,” he said.

Standard and its supporters dispute the earlier court findings that NASD’s proxy and merger were “incident to” its regulatory activities and thus protected.

The Cato Institute argues that such a standard “would be the equivalent of shielding a judge who ran down a pedestrian on his way to the courthouse simply because his travel there eventually will lead to his exercising judicial power.”

Courts first gave SROs legal protection in 1985, and the breadth of that immunity has expanded ever since, according to Standard’s supporters.

“It seems to me that what [Finra was] doing was acting as a business entity rather than as a regulator,” Mr. Shapiro said.

Jack Norberg, chairman of Standard, did not return a call seeking comment.

For its part, Finra insists that there is no issue with immunity for SROs.

“Every court of appeals to consider the issue has agreed that SROs are absolutely immune from private lawsuits for money damages attacking conduct that falls within the scope of their regulatory functions,” Finra said in a filing with the Supreme Court.

While FINRA’s lawyers have continually embraced their position on immunity, NOT ONCE have I ever heard or seen these lawyers or Ms. Schapiro address and categorically deny the premise of a fraudulent proxy. What say you, Mary? Did you and your colleagues willingly and intentionally misrepresent, that is LIE, in regard to the facts presented in that proxy?

Finra spokeswoman Michelle Ong declined to comment.

No surprise there. No transparency there, either.

The 2007 merger required NASD members to approve bylaw changes that significantly reduced their voting power in the new organization.

NASD was able to get the changes approved with the help of a one-time $35,000 payment. Standard claims that NASD lied in its proxy and other communications when it claimed that $35,000 was the most it could pay under IRS rules.

An IRS opinion letter laying out permissible amounts that could be paid to broker-dealers to approve the merger has been subject to a court-ordered seal, but in a 2009 hearing, one of Standard’s attorneys said the letter indicated that member firms could have received an additional $35,000 to $76,000.

An additional $35-76k multiplied by 5100 member firms equates to a cool additional $175-350 MILLION plus!!

If the Supreme Court takes the case and rules for Standard, the dispute could go back to lower courts for rehearing, and member firms could possibly get a larger payout, Mr. Anderson said.

One would think a ruling for Standard would also expose Ms. Schapiro and the other defendants in this case for having perpetrated a fraud. What are the ramifications of that? Or is that potential too explosive and unseemly for our nation in its current state? Are we that weak and pathetic?

Where are America’s collective balls? Come on. How about we create some public pressure? Share this commentary as wide and far as possible. Our founding fathers would thank you.

But some doubt that the Supreme Court will let that happen.

“SROs are immune — that’s the law,” said Jonathan Kord Lagemann, a veteran industry defense attorney and founder of the Lagemann Law Offices.

“Whether it should be that way is another story.”

Of course it SHOULD NOT be that way. Providing the cover of absolute immunity for misrepresentations within proxy statements by senior financial regulators is no way to run a country.

Remember, absolute immunity without total transparency is a license to steal . . . perhaps even as much as $175 million.

Larry Doyle