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The Morning Risk Report: Supreme Court Looks Poised to Curb SEC Enforcement Powers
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Good morning. The Supreme Court appeared ready Wednesday to scale back the Securities and Exchange Commission’s power to enforce securities laws through administrative hearings rather than jury trials, in a case that could threaten similar executive-branch procedures Congress authorized for consumer protection, workplace safety and other areas.
Critics have complained about the SEC’s special courts for years, saying they rob defendants, including those accused of fraud, of their right to a jury trial. Administrative law judges, who preside in the in-house courts, are supposed to be independent but are appointed by the same commissioners who authorize the enforcement cases the judges hear. Last year, a federal appeals court in New Orleans found the SEC courts unconstitutional for several reasons, including violating the Seventh Amendment, which provides a right to jury trials in certain circumstances.
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Under current law: The SEC has the option of bringing some enforcement actions in federal court, where the jury right applies, or at an in-house hearing, where it doesn’t. On Wednesday, the court’s conservative majority signaled that it found the commission’s ability to make that choice troubling.
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Supreme Court precedents: The precedents have given Congress flexibility to devise new enforcement systems to deal with new situations. In a 1977 case, Atlas Roofing v. Occupational Safety and Health Administration, the court unanimously agreed with then-Solicitor General Robert Bork that it was constitutional for federal law to impose civil penalties for workplace-safety violations through administrative proceedings rather than jury trials.
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The government is much more likely to “proceed against you before one of its own agencies than in court,” said Chief Justice John Roberts. He said it was “curious that unlike most constitutional rights,” an SEC investigatory target was entitled to a jury trial “until the government decides that they don’t want you to have it.”
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Content from: DELOITTE
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Q&A: Equifax CISO on SEC Cyber Disclosure Requirements
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Disclosure provides transparency, says Equifax CISO Jamil Farshchi. Soon accountability, investment, and cybersecurity improvement will follow. “It’s a significant positive step forward,” he says. Keep Reading ›
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Former Binance CEO Changpeng Zhao pleaded guilty to anti-money-laundering violations last week. PHOTO: CHLOE COLLYER/BLOOMBERG NEWS
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Binance begins again with U.S. oversight. Will it survive?
Binance’s second act starts now.The largest global crypto exchange and its chief executive and co-founder, Changpeng Zhao, pleaded guilty last week to ignoring anti-money-laundering rules while serving U.S. customers. Binance agreed to pay over $4 billion in fines and consented to have a government-approved monitor oversee the firm’s activities. Zhao, who could face jail time, stepped down as CEO.
The shake-up leaves the six-year-old firm in the hands of Richard Teng, who was a regulator in Abu Dhabi and Singapore before joining Binance in 2021. He has said he believes the firm is in good shape and is ready to move forward.
But people inside Binance and around the crypto world say the firm faces stiff challenges in its new incarnation.
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Finra censures, fines TD Bank subsidiary over record-keeping.
The Financial Industry Regulatory Authority, Wall Street’s self-regulator, censured and fined TD Bank’s private-client subsidiary for failing to have a supervisory system that reviews correspondence and internal communications.
The settlement, which was signed on Monday, alleged that TD Private Client Wealth, a broker-dealer for retail and institutional customers, failed to review about 3.5 million emails related to 691 employee email accounts between 2013 and 2022. TD Private Client Wealth, which neither denied nor admitted to Finra’s findings, agreed to pay a fine of about $600,000 as part of the settlement.
A spokeswoman for TD said in an email “based on our rigorous internal review, TD Private Client Wealth is enhancing its policies and procedures to ensure more timely and appropriate email review. We continually work to strengthen our internal controls to meet our regulatory obligations.”
—Mengqi Sun
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U.S. anticorruption prosecutors look to deepen foreign ties.
The U.S. Justice Department has launched a new program to bolster international cooperation in fighting corruption, an official said. The department is assigning three veteran prosecutors to the International Corporate Anti-Bribery initiative, who will build relationships with counterparts around the world, said Acting Assistant Attorney General Nicole Argentieri.
The program will start with a focus on "key threats to financial markets and the rule of law," Argentieri said Wednesday at a conference in Washington.
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FDIC faces more demands for evidence of toxic culture at bank regulator.
Pressure on the Federal Deposit Insurance Corp. over allegations of a toxic work environment mounted this week, as the agency’s internal watchdog launched its own inquiry and a Republican senator requested records related to settlements and nondisclosure agreements.
The FDIC’s inspector general will examine the “leadership climate at the FDIC with regard to all forms of harassment and inappropriate behavior,” a spokeswoman said. The IG will also assess the agency’s sexual harassment prevention program, including looking at what steps the FDIC has taken since a 2020 IG report found that program was flawed.
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Chemours said Wednesday that the company, along with DuPont de Nemours and Corteva, agreed with the State of Ohio to pay $110 million to resolve claims associated with the manufacture and sale of per- and polyfluoroalkyl substances, or PFAS.
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The London Metal Exchange chalked up a big victory over investors on Wednesday, when a court said it was within its rights to cancel trades during a high-profile blowup in the nickel market sparked by Russia’s full-scale invasion of Ukraine.
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WeTrade Group said its third-quarter financial statements weren’t signed and released by its management team and the data included in the report “is not true.”
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The Biden administration wants to require utilities to replace all lead drinking-water pipes across the U.S. within the next 10 years, the biggest push in decades by the federal government to eliminate lead from the nation’s tap water.
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The U.S. Education Department’s Office for Civil Rights on Tuesday added Harvard University to the list of schools the agency is investigating as part of a federal crackdown on race- and religious-based harassment since the start of the conflict in Gaza began last month.
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The bankruptcy estate of Bed Bath & Beyond has filed the largest ever lawsuit with the Federal Maritime Commission, seeking around $300 million from Mediterranean Shipping Co. for allegedly overcharging to move its cargo during the pandemic.
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The United Arab Emirates is hosting the annual United Nations climate meeting in Dubai. ANNIE SAKKAB/BLOOMBERG NEWS
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Welcome to COP28, the U.N. climate conference hosted by an oil giant.
Dubai, a desert city known for private jets, giant yachts and other symbols of carbon-heavy high living, is an awkward location for a conference on climate change. It’s hardly a surprise that the man in charge also runs the national oil company.
Hosting the United Nations’ annual climate confab—known as COP28—is the latest step in the United Arab Emirates’ bid to establish itself as a global power broker. The gambit is drawing attention to the country’s Jekyll-and-Hyde energy strategy.
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Israel is open to a new round of negotiations for the release of Israeli men and soldiers held in Gaza once all the civilian women and children hostages are freed, a senior official said, indicating that the current truce could extend beyond this week, even as the Israeli government says it is prepared to resume its war with Hamas if necessary.
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Despite its exponential growth, private credit’s professional ranks remain concentrated around white men. "There’s a few of us, and we still have to paddle pretty hard," said Ivelisse Rodriguez Simon, Avante Capital Partners managing partner.
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NATO members are grappling with the complexities of multiple simultaneous crises in the Middle East and Ukraine.
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The Russian government is proposing a new law to force foreigners entering the country to sign a loyalty agreement restricting what they can say about government policy and social values, the latest clampdown on freedom of expression by the Kremlin since its invasion of Ukraine.
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Elon Musk said advertisers pulling their ads from his social-media platform X can “go f—yourself.”
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Okta’s disclosure that all support customers had their data breached highlights the difficulties companies face with demanding cyber disclosure rules from the SEC set to go live in December. PHOTO: TIFFANY HAGLER-GEARD/BLOOMBERG NEWS
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Okta hack update shows challenges in rapid cyber disclosures.
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Okta’s admission that an October hack of its customer support system resulted in a far larger data breach than previously thought shows how challenging prompt cybersecurity disclosures can be, just weeks before new regulations that require many companies to do just that go into effect.
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The tech industry has largely recovered from the downturn, but Silicon Valley learned a long-lasting lesson: how to do more with less.
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The Biden administration is expected to release tax-credit rules on Friday that could shape the American market for electric vehicles, people familiar with the matter said.
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Containership operators rushed to order new vessels during the pandemic as booming demand for consumer goods was expected to fuel global trade for years to come.
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The United Auto Workers formally launched one of the largest organizing drives in its history with campaigns at 13 automakers, in an effort to leverage record gains from its recent labor deals in Detroit.
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