Thursday, November 9, 2023

Big Briefs Filed in Alpine's Challenge to FINRA in the DC Circuit

If you've been following along, you know all about the pending challenge to FINRA in the D.C. Circuit.  Many amicus briefs have come in, including my own.  To make it easier for people to see what's happening, I've pulled the briefs and put them in a Google Drive folder for easier access.  The briefs in the folder include:

  • Alpine Opening
  • DTC & Clearing Groups
  • National Futures Association
  • North American Securities Administrators Association
  • Public Investor Advocate Bar Association
  • Securities Exchanges
  • Horseracing
  • Free Enterprise Chamber of Commerce
  • New Civil Liberties Alliance
  • The United States of America
  • Benjamin P. Edwards

We also have additional litigation raising similar issues now pending in North Carolina.

I predicted that we'd see these challenges and that they could pose big risks to the financial system in my Supreme Risk article.  So far, I've been cited by Alpine and the DTC and other clearing corporation's amicus.  The DTC  brief agreed with my assessment and block quoted the article.

Any perceived weakness in Amici's authority to enforce their rules could undermine their ability to deliver critical functions to the markets, such as individual participant risk monitoring, the setting of collateral requirements to cover credit, market, and liquidity risk present in financial markets, and the orderly management of participant defaults. These functions not only enable Amici to manage risk for their participants throughout the exchange of trillions of dollars' worth of assets every trading day; they also create a firewall that prevents single instances of firm failure from spreading to other markets and throughout the economy--a responsibility that falls uniquely on Amici's shoulders as SIFMUs. A ruling that undermines Amici's abilities to execute these functions invites economic chaos by paving the way to frontal attacks on the SRO clearing-agency rules that undergird those singular abilities in the first instance. As one commentator describes, citing Amici as examples:
If a market participant successfully challenged a clearing firm decision on the ground that the clearing firm rules were unconstitutional, markets may cease to function. If clearing firms were not able to clear trades, enormous downstream consequences would ensue. People would not be able to buy or sell securities or derivatives. Consequentially, all of the wealth stored within these financial products would become suddenly inaccessible.
The DTC and other clearing corporations cited me and Tom Lin's Infinite Financial Intermediation article.  Obviously, I think the DTC is correct about the risk here and that courts need to be careful in how they proceed lest they wreck the financial system.
Hopefully this post will make it easier for those covering the case to see what the briefs are saying and understand the issues facing the D.C. Circuit.

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