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Financial Services & E-Commerce

Has the Consumer Financial Protection Bureau (CFPB) Helped Consumers? - Event Audio/Video

2016 National Lawyers Convention
John A. Allison, Leonard N. Chanin, Deepak Gupta, Todd J. Zywicki, Edith H. Jones, Wayne A. Abernathy November 23, 2016

The Consumer Financial Protection Bureau (CFPB), in its more than five year existence, has ordered consumer financial service providers to return more than a billion dollars in monetary relief to consumers it believes were victims of practices that it deems unfair, deceptive, abusive, or otherwise violative of its view of regulations and laws. The CFPB has ordered monetary relief for discriminatory lending and proposed regulations that would shutter many low-income lending locations and encourage class actions lawsuits. Proponents of the Bureau point to fines collected and bad practices addressed. Critics assert that Bureau activities actually harm consumers rather than help them. This panel will assess whether the CFPB has been of net benefit or net harm to the people it was created to protect.

This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Financial Services & E-Commerce: Has the Consumer Financial Protection Bureau (CFPB) Helped Consumers?
12:30 p.m. – 2:45 p.m.
State Room

  • Mr. John A. Allison, Chairman, Executive Advisory Council, Center for Monetary and Financial Alternatives, Cato Institute
  • Mr. Leonard N. Chanin, Of Counsel, Morrison & Foerster LLP
  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Prof. Todd J. Zywicki, Foundation Professor of Law and Executive Director, Law & Economics Center, Antonin Scalia School of Law, George Mason University
  • Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit
  • Introduction: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association

The Mayflower Hotel
Washington, DC

Insider Trading & the Rule of Law

Short video featuring Thaya Brook Knight
Thaya Brook Knight November 10, 2016

Insider trading is a serious crime, yet why is there no statute that explicitly prohibits it? Thaya Brook Knight of the Cato Institute explains how the courts have developed an understanding of Section 10b of the Securities and Exchange Act, implemented by the SEC in Rule 10b-5, to prohibit insider trading—and how that creates uncertainty in criminal law.

Salman v. United States - Post-Argument SCOTUScast

SCOTUScast 11-3-16 featuring Thaya Brook Knight
Thaya Brook Knight November 03, 2016

On October 5, 2016, the Supreme Court heard oral argument in Salman v. United States. Bassam Yacoub Salman was convicted in a jury trial of conspiracy to commit securities fraud, as well as several counts of actual securities fraud. The government’s theory was that Salman, whose brother-in-law Mounir Kara (along with Mounir’s older brother Maher Kara) worked for Citigroup, had coordinated with Mounir in an insider trading scheme that, over the course of just a few years, grew a $396,000 brokerage account controlled by Salman into one worth more than $2 million.

Salman moved for a new trial, arguing that there was no evidence he knew that the tipper had disclosed confidential information in exchange for a personal benefit. The district court denied the motion. Salman made a similar argument to the U.S. Court of Appeals for the Ninth Circuit on appeal, urging the Court to adopt the then-recently established standard set out by the Second Circuit in United States v. Newman. Under Newman, the government must present sufficient evidence that the accused knew the “inside” information he received had been disclosed in breach of a fiduciary duty. Invoking its precedent in Dirks v. SEC, the Ninth Circuit rejected Salman’s challenge, holding that the close familial relationship between Salman and the Karas was sufficient to sustain Salman’s convictions.

The question now before the Supreme Court is whether the personal benefit to the insider that is necessary to establish insider trading under Dirks requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in Newman, or whether it is enough that the insider and the tippee shared a close familial relationship, as the Ninth Circuit held here.

To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.
 

Consumer Financial Protection Bureau Update - October 2016 - Podcast

Financial Services & E-Commerce Practice Group Podcast
Wayne A. Abernathy, Julius L. Loeser October 20, 2016

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee will provide an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). The wide-ranging discussion will cover the CFPB’s payday loan rulemaking, civil penalty fund, consumer complaint database, management challenges, and the bureau’s views on student loans. Another important topic will be the U.S. Court of Appeals for the District of Columbia’s recent ruling in PHH Corporation, et. al., v. CFPB, that the CFPB's structure is unconstitutional.

Featuring:

  • Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
  • Julius L. Loeser, Of Counsel, Winston & Strawn LLP

Courthouse Steps: Salman v. U.S. Oral Arguments - Podcast

Criminal Law & Procedure Practice Group Podcast
Todd F. Braunstein October 10, 2016

On Wednesday, October 5, the Supreme Court heard argument in Salman v. U.S. on what constitutes a personal benefit in insider trading.  The Court will consider the Ninth Circuit’s holding in this matter that a personal benefit can be established by the fact that a tippee shared a close family relationship. The Second Circuit previously held in United States v. Newman that a personal benefit to an insider necessary to establish insider trading under Dirks v. SEC requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” 

Featuring:

  • Todd F. Braunstein, Global Head of Legal Investigations, Willis Towers Watson