Bradford National Clearing Corp. v. Securities & Exchange Commission

590 F.2d 1085, 191 U.S. App. D.C. 383, 1978 U.S. App. LEXIS 8948
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 19, 1978
DocketNos. 77-1199, 77-1547
StatusPublished
Cited by7 cases

This text of 590 F.2d 1085 (Bradford National Clearing Corp. v. Securities & Exchange Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradford National Clearing Corp. v. Securities & Exchange Commission, 590 F.2d 1085, 191 U.S. App. D.C. 383, 1978 U.S. App. LEXIS 8948 (D.C. Cir. 1978).

Opinion

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge.

These two unconsolidated direct review proceedings involve challenges by subsidiaries of Bradford National Clearing Corporation to successive orders of the Securities and Exchange Commission (SEC or the Commission). In No. 77-1199, petitioners ask this court to set aside the Commission’s conditional approval of the application of intervenor National Securities Clearing Corporation (NSCC) for registration as a clearing agency pursuant to section 17A(b) of the Securities Exchange Act, 15 U.S.C. § 78q-l(b). In re The Application of Nat’i Securities Clearing Corp. for Registration as a Clearing Agency (hereinafter Order I), SEC Securities Exchange Act Release No. 13,163 (Jan. 13, 1977), 42 Fed.Reg. 3916 (1977). No. 77-1547 seeks reversal of a subsequent SEC order under section 19(b) of the Securities Exchange Act, 15 U.S.C. § 78s(b), allowing NSCC to adopt two self-regulatory rules that are purportedly aimed at meeting the conditions set by the Commission in approving NSCC’s registration as a clearing agency. In re Nat’i Securities Clearing Corp. (hereinafter Order II), SEC Securities Exchange Act Release No. 13,456 (Apr. 21, 1977), 42 Fed.Reg. 21881 (1977).

In light of the significant overlap in the issues involved in the two petitions, we have decided to treat both in the same opinion. The order involved in No. 77-1199 is affirmed, except insofar as the Commission approved NSCC’s use of “geographic price mutualization” and its mode of allocating its facilities management contract. As to those issues the case is remanded to the SEC for further consideration. The order under review in No. 77-1547 is affirmed.

I

Much of the historical and statutory background for this suit is laid out in considerable detail in Order I.1 From 1934 to the present, the Commission has exercised regulatory jurisdiction over transactions in major securities markets under the Securities Exchange Act of 1934 [hereinafter 1934 Act], 15 U.S.C. § 78a et seq. For most of that period, the SEC’s attention was directed to the registration and oversight of the major classes of participants in those markets, and particularly to the prevention of certain manipulative and abusive practices. In carrying out these duties, the SEC took the securities markets essentially as it [389]*389found them, and attempted to establish and preserve a high degree of openness and fairness. See. generally section 2 of the 1934 Act, 15 U.S.C. § 78b.

In the 1960’s and early 1970’s, however, more attention began to be paid to the possibility of changing the overall structure of the securities industry in order to make it more competitive, national, and efficient. Of particular relevance in this suit, the late 1960’s saw the breakdown of the efficient functioning of brokers’ “back offices” — i. e., of the segment of the industry that effectuates trades after they are initially negotiated on an exchange or in the over-the-counter market.2 As a result of this “paperwork crisis,” many purchasers never actually received their stock certificates nor sellers their money. Moreover, a goodly number of brokers, faced with liability for these incomplete transactions, went bankrupt.

In response to these “operational breakdowns and economic distortions,” Congress and the Commission undertook “the most searching reexamination of the competitive, statutory, and economic issues facing the securities markets, the securities industry, and . . . public investors, since the 1930’s.” House Comm, of Conference, Conference Report on the Securities Acts Amendments of 1975, H.Rep.No.229, 94th Cong., 1st Sess. 91 (1975), U.S.Code Cong. & Admin.News 1975, pp. 179, 322 [hereinafter referred to as Conf.Rep.]. The outgrowth of these investigations, see note 1 supra, was the Securities Acts Amendments of 1975 (1975 Amendments), Pub.L. 94-29, 89 Stat. 141 (1975). With this legislation, the SEC’s regulatory authority under the 1934 .Act was expanded to enable it to effect major changes in the method of handling securities transactions.

Two such changes bear directly on the issues raised by the petitions. Most critically, in terms of these petitions, Congress recognized the need for a “[njational system for clearance and settlement of securities transactions,” the objective of which is to interconnect all American clearing agencies and place them under uniform rules, so that together they can provide prompt, safe, and efficient clearance facilities that take full advantage of modern data processing and communications technology. Section 17A(a)(l) of the 1934 Act, 15 U.S.C. § 78q-1(a)(1). The 1975 Amendments direct the Commission to “facilitate the establishment” of this national system “in accord[390]*390anee with” the objective paraphrased above and “having due regard for” several other concerns, including the “maintenance of fair competition among brokers and dealers, clearing agencies, and transfer agents.” Id. § 17A(a)(2), 15 U.S.C. § 78q-l(a)(2).3

To carry out this broad directive, Congress gave the SEC authority to register clearing agencies that meet certain specified criteria, including an ability to clear and settle securities transactions promptly and accurately and an absence of rules that impose “any burden on competition not necessary or appropriate in furtherance of the purposes” of the 1934 Act. Without such registration, or an SEC exemption therefrom, it is illegal to operate such an agency. Id. § 17A(b), 15 U.S.C. § 78q-l(b)4

That Congress conceived of the registration process as a means toward the end [391]*391of a Commission-generated national clearing system is apparent from that process.5 Rather than mandating an adjudicatory procedure, as might be expected of an administrative mechanism aimed at conferring a government license, Congress made the process distinctly legislative in nature. After the application is filed, the agency must publish it and receive public comments thereon. The Commission may then grant registration, or institute proceedings to determine whether the application should be denied. Id. § 19(a), 15 U.S.C. § 78s(a).6 The quasi-legislative nature of registration decisions is further indicated by congressional references to the informal rulemaking provision in the Administrative Procedure Act and to the need to preserve the SEC’s rulemaking authority in the clearing area,7

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590 F.2d 1085, 191 U.S. App. D.C. 383, 1978 U.S. App. LEXIS 8948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradford-national-clearing-corp-v-securities-exchange-commission-cadc-1978.