Thursday, February 9, 2023
Continuing ongoing coverage of the case challenging FINRA's constitutional status, we have some new developments. The plaintiffs have filed an Amended Complaint. The United States has also intervened in the case to defend the constitutionality of the securities laws.
Lamentably, the Amended Complaint does not cite to Supreme Risk. I can understand why they would not want to cite me. Although the article discusses the possibility of their types of claims at length and characterizes them as a colorable risk with the current Supreme Court, it also points out that they might trigger a financial crisis if they win. That being said, they cite many of the same people I cited in my article.
Although I haven't spent much time sitting with the Amended Complaint, I saw a few things that struck me as just plain wrong immediately.
Let's take one of their jurisdictional allegations. To deal with the earlier motion to dismiss, the amended complaint tries to detail much more of FINRA's connection to Florida. It alleges that "FINRA also funds, operates, and conducts business in Florida through its Investors Rights Clinic that is located in this state." This struck me as completely untrue. The Clinic is run by Miami's Law School. One of the major challenges for securities clinics has been the total absence of any FINRA funding. It's why Senator Cortez Masto introduced legislation last year to create a federal funding mechanism.
It includes questionable allegations about the power of the President to remove SEC Commissioners, stating "the SEC commissioners cannot be removed by the President except for in limited circumstances. . . Thus, because the President cannot remove SEC commissioners without
cause, and because the SEC cannot remove FINRA Board members without cause, the Board and its appointed executives and officers are unconstitutionally insulated from Presidential control and oversight." This remains uncertain and unsupported by the statute, despite the Supreme Court's prior comments to this effect.
Ultimately, I think FINRA and the United States are right to take this challenge seriously and show up. The current Supreme Court has put the ball in play for these sorts of challenges and they have to be addressed.