Sunday, December 13, 2009
Not Dead Yet: How New York's Finnerty Decision Salvaged the Stock Exchange Specialist, by Scott Colesanti, Hofstra University School of Law, was recently posted on SSRN. Here is the abstract:
In recent years, regulators of financial centers have attempted to criminalize practices traditionally and begrudgingly accepted by the market.
In 2007, a federal judge in the Southern District of New York effectively halted the government's attempts at prohibiting "interpositioning," a questionable strategy that challenges the ability of the stock exchange Specialist to concurrently serve both his own accounts and those of the public.
To wit, the publicized judgment notwithstanding the verdict of Judge Denny Chin in the Finnerty case raised many questions about prosecutors' application of S.E.C. Rule 10b-5 to trading behavior that had been noted for decades; in turn, the Judge's written decision revitalized the debate over the utility of market players (like Specialists) who have enjoyed the best seats on American exchange trading floors for almost 150 years.
Within the framework of a famed Broadway show, this article examines the case of U.S. v. Finnerty (while providing a history of the stock exchange Specialist) and a comparison to other cases faulting self-dealing by such professionals. In addition to highlighting the judicial questioning of the criminalization of practices normally incurring reprimands and fines, the article presents a framework for discussion of the primary roles of stock exchanges themselves - specifically, when do market centers owe a duty to their public customers, and when are its intermediaries free to fend for themselves?