By Jeffrey R. McCord of The Investor Advocate
Although big Supreme Court cases involving gay marriage, corporate free speech and affirmative action gain more media and public attention, a proliferation of less noticed Court decisions on seemingly arcane legal procedural rules are raising barriers to all American citizens seeking their day in court.
November 8, 2012 - The term “freebooter,” derived from the Dutch vrijbuiter, means one who openly steals property. Once freebooters sailed from free ports such as Port Royal, Jamaica, taking what they wished with little or no consequences because authorities granted them immunity.
Today, a federal appeals court may determine if the United States has become the largest such free port for swindlers in modern history. At issue is the Supreme Court’s controversial 2010 decision (Morrison v. National Australia Bank), that provides immunity from investor accountability to off-shore shysters preying on Americans as well as on-shore fraudsters plundering foreigners as long as the fraudulent transactions take place outside the USA or involve securities listed overseas.
October 8, 2012 - Although most “fiscal cliff” rhetoric concerns Defense cuts, Congressional budgetary intransigence could push federal investor protection agencies off the cliff come January 1. Barring Congressional action, automatic cuts in all Federal programs will occur January 1. These include the Securities and Exchange Commission (a $115 million reduction), Commodity Futures Trading Commission ($17 million on the chopping block), federal courts ($384 million at risk), Public Accounting Oversight Board ($18 million) and the Securities Investor Protection Corporation ($23 million). In sum, $557 million would be cut from investor protection programs.
May 11, 2012 - SEC disagrees with Supreme Court’s anti-U.S. Investor Morrison decision and favors clearly defined private right of action against foreign wrongdoers, rather than abolition of U.S. investors’ legal rights, SEC Staff Study asserts.
April 4, 2012 - To-date, the presidential primaries have studiously avoided reference to the unfolding catastrophe brought to the American public just four years ago by the financial services industry. The political issues contested thus far bring to mind Hunter Thompson’s reporting of the 1972 election campaign: “This may be the year when we finally come face to face with ourselves; finally just lay back and say it — that we are really just a nation of 220 million used car salesmen with all the money we need to buy guns . . .”
(See: “Fear and Loathing: On the Campaign Trail, 1972,” by Hunter S. Thompson)
April 1, 2013 - In the early days of his brilliant career as legal journalist and commentator, Anthony Lewis, who passed at age 85 on March 25, referred to a vision of the Supreme Court that served as his touchstone:
“[W]hen the channels of opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event, the Court, by intervening, restores the processes of democratic government; it does not disrupt them . . .”
March 11, 2013 - Within recent months, two media events captured the attention of many Americans: the premier of the Spielberg movie “Lincoln,” showcasing the 19th century federal government’s ability to end our nation’s crime against humanity; and, the airing of the PBS Frontline series “The Untouchables”, showcasing the inability of the twenty-first century federal government to prosecute those responsible for our nation’s largest financial crime spree.
Now, the public watches mindless budgetary slashing of federal regulatory agencies – already underfunded and understaffed – charged with enforcing civil and voting rights and financial laws. And this “sequestration” proceeds at a time of widespread attempts to suppress people of color’s ability to cast ballots in federal elections, and financial fraud and abuse robbing and cutting the savings and assets of tens of millions of Americans.
February 7, 2013 - The BP Macondo well catastrophe in the Gulf of Mexico was caused “not as some have suggested by a coincidental alignment of disparate technical failures,” but by the “overarching failure of management,” concluded the National Commission on BP’s Deepwater Horizon Oil Spill. Internal e-mails to be filed as evidence in a civil trial later this month reportedly demonstrate that BP managers knowingly lied about the size of the oil leak to regulators, the public and, ultimately, investors.
August 28, 2012 - Many wonder why Federal regulatory precincts are so quiet several weeks following discovery that the London Interbank Offered Rate (LIBOR) had been rigged for years to benefit a handful of the world’s largest banks. Experts estimate damages to the economy can be measured in multiples of trillions of dollars. But, where are the expressions of horror and outrage, and other hot air emissions from the people’s elected representatives in Washington?
May 11, 2012 - Will Goldman or JPMorgan sell questionable Chinese stocks to Americans? Our story questions how American investors can legally protect themselves from spurious Chinese stocks sold to them by American banks.
March 1, 2012 --Inexplicably, the SEC is more than a month overdue in meeting its statutory responsibility to advise Congress whether or not to protect U.S. investors or leave in-place Morrison’s shield for foreign corporate wrongdoers against U.S. investor accountability.
January 30, 2012 - “Justice delayed is justice denied,” the old maxim attributed to William Penn, has new relevance today as federal court dockets grow longer, vacant judicial seats remain unfilled, and more aging jurists seek the semi-retirement of senior status, thereby creating still more vacant seats.
"The scale of fraud is immense. This whole bank scandal makes Teapot Dome [of the 1920s] look like some kid's doll set . . . If cheaters prosper, cheaters will dominate. It is like Gresham's law: Bad money drives out the good. Well, bad behavior drives out good behavior, without good enforcement."
-William Black, Associate Professor, Economics and Law, University of Missouri, Kansas City in interview with BARRON'S, April 13, 2009 ("The Lessons of the Savings and Loan Crisis")
The financial industry has reportedly spent approximately $300 million fighting financial reform. More than 850 banks, hedge funds, companies, associations, and other organizations hired 3,000-plus lobbyists to work on the reform bills. The U.S. Chamber of Commerce deployed 85 lobbyists alone.
“Among the many factors which led to the current financial crisis, fraud in the U.S. mortgage market played an important role. Changes in fair value accounting rules and a $50 trillion credit default swap/mortgage-backed securities market contributed to an environment conducive to deregulation, aggressive lending tactics, and, ultimately, fraud. [Among the types of fraud were] fraud in underwriting, misrepresentation and/or improper disclosure or risk, potential fraud in accounting for and valuing assets, and common corporate fraud.”Kroll Associates, the forensic accounting and fraud investigatory subsidiary of Marsh & McLennan Companies, in its “Global Fraud Report,” January, 2009