I went into SEC v. Coinbase hearing thinking $COIN would, on this motion, win dismissal of SEC's primary claims (concerning trading) but maybe not staking and broker claims. I left thinking COIN would win full dismissal. Snippet below and full note here:
Greetings from federal court in Lower Manhattan! Today's episode:
@coinbase
motion to toss the
@SECGov
suit. Should be a great (4hr long!) argument, with top lawyering, a fascinating/unsettled legal q, & Judge Failla - sharp as a knife & a sense of humor drier than the Sahara.
Great paragraph highlighted in yellow below in a letter by a 90-year old lawyer hoping the court decides his client's case before his "lifetime warranty" expires. For context, class certification written arguments ended in Nov. *2019* and that motion is still pending. 🤯
ICYMI for those interested in $FNMA $FMCC sweep litigation, the 5th Circuit in Collins v. Yellen has tentatively scheduled en banc oral argument the week of Jan. 17. This is the case remanded from SCOTUS in June. Our note available on
@TheTerminal
here:
Riveting en banc oral arguments in the 5th Circuit today in one of the many $FNMA $FMCC shareholder suits challenging the sweep of profits to
@USTreasury
. Look for my updates on
@TheTerminal
.
Up and at them bright and early at the Court of Federal Claims for oral arguments in $fnma $fmcc shareholder lawsuits challenging the net worth sweep of profits to the
@USTreasury
.
Well, the 5th Circuit's $FNMA $FMCC opinion today was as riveting as oral arguments were. Here's the link: If you've never read a
@JusticeWillett
opinion before, they're always a treat no matter which side you're on.
Riveting en banc oral arguments in the 5th Circuit today in one of the many $FNMA $FMCC shareholder suits challenging the sweep of profits to
@USTreasury
. Look for my updates on
@TheTerminal
.
I don't think I've ever seen a district court judge talk about a SCOTUS ruling in this way. At least not in a written opinion. (This is from the trial court judge in Bhatti v. FHFA, discussing SCOTUS's ruling in Collins). $FNMA $FMCC
Good morning from the Third Circuit Court of Appeals in Philadelphia! Here for one of the many $FNMA $FMCC shareholder suits against
@FHFA
and
@USTreasury
. Excited to see a 2-time
#SCOTUS
almost-nominee (Judge Hardiman) on the panel.
Since he’s in the news tonight, here’s a pic I took of Judge Gleeson in 2015 at a NY Council of Defense Lawyers luncheon honoring Gerald Shargel. If I recall correctly, Gleeson roasted Shargel with a hilarious parody sung to the tune of Leonard Cohen’s “Suzanne.”
View from the courthouse cafeteria as I watch Fannie and Freddie shareholders' profit sweep trial against
@FHFA
,
@FreddieMac
, and
@FannieMae
. If you're a subscriber of
@TheTerminal
, you can read my latest take here:
Greetings from federal court in Lower Manhattan! Today's episode:
@coinbase
motion to toss the
@SECGov
suit. Should be a great (4hr long!) argument, with top lawyering, a fascinating/unsettled legal q, & Judge Failla - sharp as a knife & a sense of humor drier than the Sahara.
As
@JSeyff
and I say in this article, the mandate the DC Cir issues tmrw in the
@Grayscale
v.
@SECGov
GBTC case is just a procedural formality. It effectuates the Aug. 29 opinion but won't change it substantively. The mandate just ends the DC Circuit's jurisdiction over the case.
For those following
@Grayscale
v.
@SECGov
and wondering what the mandate will look like that's expected today, here you go. This was from a case challenging CLO risk retention rules, but the mandate today should look basically the same except for names and dates obviously.
As
@JSeyff
and I say in this article, the mandate the DC Cir issues tmrw in the
@Grayscale
v.
@SECGov
GBTC case is just a procedural formality. It effectuates the Aug. 29 opinion but won't change it substantively. The mandate just ends the DC Circuit's jurisdiction over the case.
@MaxJSteinberg
I'd put it this way: the standard to survive this motion favors the SEC since the court has to accept the pleadings as true and draw inferences in SEC's favor. Coinbase took that standard head-on, and had compelling arguments for why the complaint falls short as a matter of law.
Great opening lines from concurring opinion in today’s 8th Circuit decision affirming dismissal of one of the many percolating shareholder lawsuits challenging
@FHFA
’s “Net Worth Sweep” of $FNMA $FMCC profits to
@USTreasury
.
HUGE shout-out to my colleagues
@JSeyff
&
@EricBalchunas
for absolutely crushing the spot
#Bitcoin
coverage, correctly predicting for months this outcome, down to the friggin day!
And major props to
@CraigSalm
& Don Verrilli for executing the legal strategy that led to approval.
below is likely the correct read of the Ripple dismissal--instead of the bull signal it might appear, it's really the SEC wanting to appeal the "programmatic sales" and 'service grants' holdings immediately
nice job by
@kkirkbos
reading between the lines here
Question for
#AppellateTwitter
(
@RMFifthCircuit
@smmarotta
): The timing of y'day's
@USTreasury
report and today's 5th Cir opinion seems too coincidental. Is there some sort of back-channel conversation between govt agencies and the court to discuss timing in cases of such import?
Everyone wondering if the $GBTC decision will come today (me included obviously), Matt did some great work here. There's still 25 cases that haven't been decided yet. $GBTC case was argued in March. h/t
@NYCStein
That feeling when you're in court for an
@SECGov
v.
@coinbase
hearing, sitting 2 rows behind the phalanx of SEC lawyers, and the
@SECGov
v.
@Ripple
decision drops...
Riveting en banc oral arguments in the 5th Circuit today in one of the many $FNMA $FMCC shareholder suits challenging the sweep of profits to
@USTreasury
. Look for my updates on
@TheTerminal
.
Lots of ways to slice DC Circuit opinion data, but this from
@mattschett
is a good one. cc everyone waiting for the
@Grayscale
v.
@SECGov
decision on $GBTC.
With the D.C. Circuit finishing its term, I count 25 cases that are still undecided (plus 2 cases from the term before). The court has decided 87% (168/193) of this term's cases, and usually gets over 92% by Sept. The numbers by month of argument:
Why reject
#bitcoin
spot ETFs when $BTC futures ETFs get the 🟢 light?
That’s the question at the heart of Grayscale v. SEC.
@Bloomberg
Sr. Litigation Analyst
@NYCStein
watched a court hearing this week and shared who he thinks will
Oral arguments are often illuminating. After March oral arguments, it seemed to me a 5th Circuit panel would uphold the GSE net worth sweep but find the
@FHFA
unconstitutionally structured, as the court held y'day. What I wrote in May below. Opinion here:
This happens to be my favorite Dylan line in his entire catalogue. The imagery in the first line is just so striking. And the last line is a great way to live in general.
"Yes, to dance beneath the diamond sky With one hand waving free Silhouetted by the sea Circled by the circus sands With all memory and fate Driven deep beneath the waves Let me forget about today until tomorrow."
Fascinating. Unlike the
@CFPB
, which last week changed its position to argue that the 1-director for-cause removal restriction is unconstitutional, the
@FHFA
is sticking with its (most recent) view that it's fine, despite losing that fight in the 5th Circuit.
Good morning from the U.S. Supreme Court!
Today's episode: Is the
@CFPB
’s structure (one director who can only be fired for-cause) unconstitutional?
@TheTerminal
subscribers can access our
#BloombergIntelligence
pre-argument analysis of the case here:
@reporterev
Interesting - no mention of 5th Circuit ruling in Collins re the FHFA, which so far is the only circuit court decision supporting what is now the CFPB's position. Also, I remain somewhat perplexed that J. Kavanaugh probably doesn't have to recuse, despite his role in PHH v. CFPB.
I assume it's a typo but the lawsuit against Ripple alleging the sale of unregistered securities is seeking "the remedy of recession." A recession would be a pretty drastic remedy.
Pro Tip for those waiting for the court ruling in
@Grayscale
v.
@SECGov
over bid to convert $GBTC to an ETF: The DC Circuit issues opinions on Tuesdays and Fridays at 11am. So in a few weeks, we can all plan to refresh this page feverishly at those times.
I seem to be in the minority, perhaps even alone, in thinking that SCOTUS will still rule against the CFPB on the funding issue. Check out my headline in red versus other headlines in green (sorry for the sloppy highlighting).
On the constitutionality of the for-cause provision, we flagged what a ruling like today's would mean for similar cases involving
@CFPBDirector
and the possibility of
@realDonaldTrump
firing Jerome Powell.
I've seen a lot of commentary about Kavanaugh's comments that Congress could change the funding tomorrow and that Seila fixed the "independence" issue, but he also agreed with Francisco's point that Dodd-Frank "flipped the baseline" for appropriations determinations.
Life is funny. My dad is almost 84. I’ve known him my whole life and more than half of his. But it was only this weekend during a getaway to the Poconos that I learned he’s a friggin POOL SHARK! Here he is shooting left-handed just to show off.
Got our dog 4 years ago today and not gonna lie I’m pretty impressed with her passion for watching baseball, learning to tell time, playing trivial pursuit, and reading.
@SGJohnsson
Thanks Scott. Appreciate that. I truly don't care who wins or loses. Simply love watching really good lawyers and judges wrestle with really interesting legal issues.
The potential hung jury in the
@FannieMae
@FreddieMac
shareholder trial is consistent with our view that the shareholders were unlikely to win, and GSEs were unlikely to pay the billions sought. Below is what we wrote on 10/31. (Many thx
@bykatiebuehler
for excellent coverage!).
The DC jury in
@FannieMae
&
@FreddieMac
shareholders’ suit against the
@FHFA
has submitted a note to the court saying it might not be able to agree on a verdict. The note states the 8-person jury is split 50/50 with very strong feelings on both sides.
Breaking: Robinhood Markets Inc. failed in its attempt to block a Massachusetts fiduciary rule that thrust duties of care and loyalty on broker-dealers, the Supreme Judicial Court said Friday.
The Bloomberg open floor plan has prepared me well for my current WFH + remote school cacophony: One daughter playing trumpet in 4th grade band class + one daughter playing clarinet in 6th grade band class + me listening on speaker phone to JPML hearing. 🤪
By far the best thing I've read on the Credit Suisse AT1 situation - - and I'm not just saying that because it appears my mom paid the author to say this 👇
Definitely a close call and I suppose reasonable minds can differ on which way the Court goes on this. I'm just not convinced that Kavanaugh, Barrett or Thomas will rule for the CFPB based on the questions they asked.
More of what I wrote here:
Pro Tip for those waiting for the court ruling in
@Grayscale
v.
@SECGov
over bid to convert $GBTC to an ETF: The DC Circuit issues opinions on Tuesdays and Fridays at 11am. So in a few weeks, we can all plan to refresh this page feverishly at those times.
The
@CFPB
is wasting no time asking SCOTUS for review of the 5th Circuit panel ruling that held its funding structure unconstitutional. Skipped en banc petition, which makes sense. Filed cert petition less than a month after the panel ruling.
Taking a victory lap on this tweet of mine from May 9 in light of today's 5th Circuit decision holding the CFPB funding structure unconstitutional.
And just two days ago we wrote about several court rulings, including this CFPB one, we expect will limit Biden's
#finreg
agenda.
Also worth re-reading this fn (h/t
@reporterev
) from Kavanaugh's dissent in the PHH en banc decision when he was on the DC Circuit. Seems that the funding issue troubled him when layered on top of the removal restriction, but doesn't quite reveal how he'll rule on it post-Seila.
I wrote a pretty personal piece about a moment that changed my life, and which is also the reason you're reading this (or anything else by me) today. I hope you'll give it a few minutes of your time:
A question I'm often asked by European clients is: "What does the U.S. government do with all the bank fines it collects?" I suspect this article will trigger that question even more.
Defendants have until Aug 16 to respond. Reminder that both Judge Torres and then the 2nd Circuit have to allow an interlocutory appeal before it can actually happen.
🚨BREAKING: The
@SECGov
has filed a letter of intent to request an interlocutory appeal to Judge Torres’s July 13th summary judgment in the
@SECGov
vs.
@Ripple
case.
Full letter below and story developing. 👇🏼
My updated note is available on
@TheTerminal
now: TL;DR = I still think Coinbase wins, especially on the secondary market issue, which I think will go to the Supreme Court and end with a narrowing of the Howey test.
While I was listening to the 3.5 hour (!!) SCOTUS argument on
@POTUS
’s student loan forgiveness plan, my kids did me a solid and shoveled the driveway and cleaned off the car. W00t w00t!!!
Love visiting DC for work, especially on a stunningly gorgeous day like today and having unexpected downtime in the early evening to run from site to site. Definitely took this city for granted living next door in Northern Va. from 5th-12th grade.
True story: I met Leslie Nielsen the day I graduated from high school (that’s me on the right) and he could not have been a nicer guy. Happy birthday in heaven good sir.
I hate listening to myself but thoroughly enjoyed chatting with
@JacobRobinsonJD
on his podcast about the SEC v Coinbase case and some other things both professional and personal. Thank you, Jacob!
Why does
@NYCStein
give Coinbase a 70% chance to win dismissal? What happened at the hearing to give him this confidence?
Full episode includes everything you should know from the Coinbase hearing last week👇
Good court win for Robinhood and others, winning dismissal of antitrust claims related to meme-stock trading limits in Jan. We said as early as Feb. 2 (see pics) that these suits were weak. And we reiterated our view on the antitrust claims in Aug., even after plaintiffs amended.
Citadel and Robinhood won dismissal of a proposed class action by retail investors who accused the firms of colluding during January’s meme-stock frenzy
Funny moment in today's hearing in Ambac v. Countrywide, et al., as Justice Bransten pronounced the law firm of Williams & Connolly as "Williams & Canoli." She sounded totally sincere, but there's no way she doesn't know the proper pronunciation, right?
I've said it before and I'll say it again, I love that SEC Commissioner Peirce actively tries to meet with folks wherever she goes. More (all?) public servants should do this.
I plan to be in Denver on 2/29 and 3/1. If you want to meet with me, please email CommissionerPeirce
@sec
.gov with Denver in the subject line and a brief description of what you'd like to talk about.
On this 80th anniversary of
#kristallnacht
, I’m thinking of my Mom’s parents, who lived in Germany at the time. Decades later they wrote down their memories of what they experienced. Here’s a translation of some of what my grandfather wrote.
Pro-tip: Follow my colleague
@mattschett
if you're not already doing so. As far as I know, he was the first to tweet out this little nugget yesterday that was an additional clue that SCOTUS pick was Kavanaugh.
Might D.C. Circuit's release of this decision today -- as opposed to usual practice of Tues/Fri -- have to do with a certain judge on the panel, and fact that it may need be to re-argued if he's not voting after today?
#SCOTUS
@NYCStein
wrote a great piece today on
@TheTerminal
looking at the SEC
@VirtuFinancial
financial impact. Said it was pretty limited, given statute of limitations, no proof data was actually accessed, adequate policies/proc, and self reporting/fixing of problem - prob <$25m