Securities Industry Commentator by Bill Singer Esq

November 27, 2017

Leandra English, Deputy Director and Acting Director, Consumer Financial Protection Bureau, Plaintiff, v. Donald John Trump, in his official capacity as President of the United States of America, and John Michael Mulvaney,in his capacity as the person claiming to be acting director of the Consumer Financial Protection Bureau, Defendants.(Complaint for Declaratory and Injunctive Relief / Emergency Temporary Restraining Order Sought / United States District Court for the District of Columbia / 17-CV-02534 / November 26, 2017) As set forth in the "Summary" of the Complaint:

The Dodd-Frank Act of 2010 created the Consumer Financial Protection Bureau as an independent federal agency, to be led by a single director. Effective at midnight on November 24, 2017, the Bureau's first Director, Richard Cordray, resigned his post. At that point, plaintiff Leandra English, the Bureau's Deputy Director, became the agency's Acting Director by operation of law. The Dodd-Frank Act is clear on this point: It mandates that the Deputy Director "shall . . . serve as the acting Director in the absence or unavailability of the Director." 12 U.S.C. § 5491(b)(5)(B). By statute, she serves in that capacity until such time as the President appoints and the Senate confirms a new Director. See 12 U.S.C. § 5491(b)(2). 

Disregarding this statutory language, President Trump issued a press release on the evening of November 24 indicating his desire to install defendant Mulvaney, the Director of the White House Office of Management and Budget, as the Bureau's Acting Director. Under this scenario, Mr. Mulvaney would seek to serve indefinitely as the interim head of a statutorily "independent" agency while simultaneously occupying his current White House post. 

The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988, 5 U.S.C. § 3345(a)(2). But the Vacancies Act, by its own terms, does not apply where another statute "expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity," 5 U.S.C. § 3347(a)(1)(B)-which is exactly what the Dodd-Frank Act does. The President's interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and mandatory text. The President's stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President's attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall statutory design and independence of the Bureau. As the rightful Acting Director of the Bureau, Ms. English brings this action against President Trump and Mr. Mulvaney seeking a declaratory judgment and, on an emergency basis, a temporary restraining order to prevent the defendants from appointing, causing the appointment of, recognizing the appointment of, or acting on the appointment of an Acting Director of the Consumer Financial Protection Bureau via any mechanism other than that provided for by 12 U.S.C. § 5491(b)(5)(B)/

READ the FULL TEXT Complaint

U.S. Charges Three Chinese Hackers Who Work at Internet Security Firm for Hacking Three Corporations for Commercial Advantage (Department of Justice Press Release)

The DOJ Press Release alleges that a federal grand jury indicted Chinese nationals/residents Wu Yingzhuo, Dong Hao and Xia Lei for allegedly conspiring between 2011 and May 2017 to hack into private corporate entities in order to maintain unauthorized access to, and steal sensitive internal documents and communications from U.S. and foreign employees and computers of three corporate victims in the financial, engineering and technology industries. As set forth in the DOJ Press Release in pertinent part:

Defendants Wu, Dong, Xia, and others known and unknown to the grand jury (collectively, "the co-conspirators") coordinated computer intrusions against businesses and entities, operating in the United States and elsewhere. To accomplish their intrusions, the co-conspirators would, for example, send spearphishing e-mails to employees of the targeted entities, which included malicious attachments or links to malware.  If a recipient opened the attachment or clicked on the link, such action would facilitate unauthorized, persistent access to the recipient's computer.  With such access, the co-conspirators would typically install other tools on victim computers, including malware the co-conspirators referred to as "ups" and "exeproxy."  In many instances, the co-conspirators sought to conceal their activities, location and Boyusec affiliation by using aliases in registering online accounts, intermediary computer servers known as "hop points" and valid credentials stolen from victim systems.

The primary goal of the co-conspirators' unauthorized access to victim computers was to search for, identify, copy, package, and steal data from those computers, including confidential business and commercial information, work product, and sensitive victim employee information, such as usernames and passwords that could be used to extend unauthorized access within the victim systems.  For the three victim entities listed in the Indictment, such information included hundreds of gigabytes of data regarding the housing finance, energy, technology, transportation, construction, land survey, and agricultural sectors.

READ the FULL TEXT Indictment

FINRA Suitability Settlement Involves Five Elderly Retired Morgan Stanley Customers

Today's Blog considers a recent regulatory settlement imposed upon a former stockbroker by the Financial Industry Regulatory Authority. Our publisher Bill Singer accepts that allegations as true but is troubled by the lack of effective compliance oversight, which amounts to little more than reading toe tags in the morgue. Bill asks what is the value of the self-regulation of Wall Street when FINRA announces in November 2017 that it has fined and suspended an individual who retired from the industry in April 2015 after he had allegedly engaged in misconduct throughout 2014 that caused nearly $1 million in losses during in the accounts of elderly, retired customers? READ