« PreviousContinue »
come from those three rather than being deposited with still a fourth agency, the Securities and Exchange Commission.
From our standpoint, what we are concerned with is primarily the control of transactions in the interest of preventing fraud by brokers and dealers, whether they be registered or not registered. I can see some justification for taking this point of view, that so far as the ordinary private individual is concerned, the control of his transaction should be governed by ordinary statutory law, namely, the general concepts of fraud which are already in the statute, and he should not be required to go to the administrative regulations of anybody in order to determine just what he can or cannot do.
But, from the standpoint of the brokers and dealers, who are already within the administrative scheme, it is not an imposition on them for them also'to concern themselves with the rules and regulations of an administrative body insofar as they affect this section.
In fact, the brokers and dealers, as I see it, would be benefited by a power of that nature which will enable more careful definition of these fairly elusive terms, such as fraud, concealment, and the like.
This section would enable them to get a gradual annotation of those concepts through the process of administrative regulation.
The CHAIRMAN. Do you have your suggested amendment written out in some form that you can submit to the committee?
Mr. LANDIS. I do not have that yet. The last discussion that I had with the municipal-bond dealers was at 9 o'clock this morning and I think for the first time we finally got to an understanding of where the difference in viewpoint was.
I thought for a time that they objected to any control under section 15 (c), and from our standpoint I did not see how they were justified in that position. But I can understand their position when they say, "No; we are not objecting to your having an administrative power to determine what are fraudulent practices, but we object to your being able to say to us 'you shall conduct your sales of municipal bonds in such a way and not in that way which is not intrinsically fraudulent simply because by doing it in one way it may be possible for fraud to enter."
To make that concrete, their contention is this: That under this section we would have the power to say that no municipal bonds shall be sold unless facts, we will say A to X, were stated in a prospectus, with reference to those bonds, and were also verified by some independent source, because any other thing might lead to concealment, might lead to a nondisclosure of material facts.
Personally, I do not conceive that that power is in section 15 (c), but I can admit that it might be possible for somebody to see that, and therefore, if that be so, I see no objection to straightening that language to make clear that that scope of regulation over the activities of the municipal-bond dealers is not intended and was not intended to be covered by that section.
If that is the position that the municipal-bond dealers take, it seems to me a position which is the same as the intent of this section 15 (c) and therefore it becomes merely a question of phrasing that section adequately to carry out that intent.
The balance of this act contains a series of amendments of the Securities Exchange Act which are purely formal in character. All they do is to tie in certain other sections of the act to carry out
the substantive provisions of the earlier sections, with one exception, and that is section 8.
Section 8 brings into the Exchange Act a principle which is already applied in the Securities Act, which I think is a beneficial principle of administration, and that is this. Doubt always arises in the border instances as to whether or not a particular regulation is within the power of an administrative body. If the regulation is enacted and somebody acts in good faith in reliance upon that regulation, it seems to me very unjust that he should be penalized if perhaps some court at some later time might find that that regulation was not within the power of the Commission.
Therefore, the Securities Act, when it was amended in 1934, embodied the principle that so long as any individual, acts in good faith '*and in reliance upon 'a regulation passed by the Commission, the mere fact that that regulation may as of some later date be upset, should not penalize him.
What 'section 8 does is simply to carry that principle of immunity where there is reliance upon the regulatory authority to the provisions of the Exchange Act and as such I think is a wise principle.
I think that in main outline explains this bill. I would be ready to be at your service with reference to any particulars that may be contained in it.
Mr. COLE. Mr. Chairman, I should like to ask a question. The part of this bill dealing with unlisted securities, I understand, embodies the recommendation of the Commission following a study which the bill of 1934 directed the Commission to make; is that correct?
Mr. LANDIS. Yes, sir.
Mr. COLE. And in the 1934 bill you were required to make a report to Congress, as I remember it.
Mr. LANDIS. Yes, sir.
Mr. COLE. And the recommendations accompanying the report are incorporated in this bill?
Mr. LANDIS. Yes. This bill carries out those recommendations.
Mr. LANDIS. The 3d of January, I think it was, the day after Congress came back into session. I have some copies of that report available.
Mr. COLE. That is all.
Mr. PEYSER. Mr. Landis, I have had a communication which refers to the Comptroller of the State of New York as well as the Comptroller of the City of New York and in which the writer of the communication cites that a certain section there, section 15 (c), line 14, should have an amendment, by adding the words "other than an exempted security.” The argument advanced is that it would affect municipal credit as well as State credit and adversely affect the prices of city and State bonds.
Now, that amendment contains only four or five words, I think, "other than an exempted security."
Have you considered that?
Mr Laxn4. Y. That is exact? the joint iron tich I ris taj 1,0 a ter minutes ago, vti reference o lee municipa.-junct (eg, oors.
MP PETR. Ind that is the amendment that you say there is no ot,jortion to
Mr. LAN, Vo There sahiption. I think that imendmont aq it ją s1197bateribut I think what we can meet the point that is raised there by a revision of the ast for orire lines of that certion.
Mr. Peguer. Iliat would sorer that same situation
Mr. LAND. That ron,si apuar pre are tillation. will be gesegrable to the musia 29.one tea.ers. It is tis. uat they have a fear of intensive, og at oncă the minicipal-coni ield. which is not right by this app cn is. Li trat is what is ! Perwars to penal ze franclient trage1.cne wherever they may occur. whether they ormar in the mici; 4.-on tipit or the corporateband field or any field. Tar al ckas ia bure bere, and I cannot app, that the existence of that. 66,7-. provideri it is limitzi to that would interfere with murrirai firanding or made it more (1y.
Mr. Pryser. Have you had a communication from the comptroller of the state of Vew York!
Mr. LANDTA, I have
Mr. LANDS. Along that same line. And that is in substance largely the discussion that we had this morning and have been haring the last 2 or 3 days, to see if we cannot circumscribe that languayo, so as not to give rise to fears of that type which I personally fool are not well founded, but which is arguable, and therefore. I felt that any basis for the argument should be eliminated from the legislation.
Mr. PEYER. Their argument is that there is a certain amount of saules resistance which would be set up against the municipal and State securities, and which might affect the price of those securities. Whether I am correct in that belief, or whether they are, I do not know
Mr. LANDIS. For example, it is true, I think, that if that section gives this roving commission to us which some people suggest it might give, we might so abuse our powers in that connection as to increase the cost of municipal financing. My contention, of course, is thset it does not create that. But if it can be eliminated to the satisfaction of everyboily concerned, there is no objection from the Commission's standpoint, certainly.
Mr. PEYHER. Mr. Chairman, I ask that the two telegrams to which I have referred to be made a part of the record at this point.
The ('ITATHMAN. Without objection, the communications referred to my be made a part of the record at this point. ('The telegrams referred to are as follows:)
MAY 5, 1936. 11on, T11FODORE A. L'HYMER,
louse of Representatives: Mortion 17 of securities alot now prohibits fraud in dealing in municipal securities by law, and section 10 (b) of Securities Exchange Act of 1934 now
prohibits manipulative practices in municipal securities by law. If Senate bill 4023, which passed Senate April 24 under suspension of rules and is now before the House, becomes a law all municipal bonds will be subject to the broad rule making power of the section under the guise of preventing fraud and concealment. This is not government by Congress but by Commission and may seriously affect municipal credit. This bill may be an attempt to force regulation over matters other than fraud and should be amended by adding to section 15 (c), line 14, the words, “other than an exempted security.” This bill in hands of interstate and foreign commerce commission, Reyburn chairman. Hearing on same tomorrow morning at 10 a. m.
APRIL 29, 1936. Hon. T. A. PEYSER,
House of Representatives: In the opinion of all municipal bond dealers and State Comptroller Morris Tremaine and New York City Comptroller Frank Taylor, if Senate bill 4023, section 15 (c) is passed without amendment by House of Representatives, it will in the opinion of counsel make municipal bonds subject to section regulation and will adversely affect municipal-bond prices and in that way affect municipal credit. Necessary amendments in order of preference follow page 15, line 16, parenthesis should contain the words, “Other than an exempted security”, “commercial paper", "bankers' acceptances or commercial bills", close parenthesis. Second proposal, page 15, line 13, omit the words "Or any other person." Third proposal, page 15, line 22, omit remainder of paragraph with words beginning "or otherwise." The inclusion of one of these roposed amendments is regarded vitally important to good municipal credit.
LEHMAN BROS. Mr. TERRY. Mr. Landis, I received a telegram this morning from the mayor of my home town, Little Rock, in which he says
LITTLE ROCK., ARK.,
May 5, 1936. Hon. DAVID D. TERRY,
Washington, D. C.: Understand Senate bill 4023 up for hearing before House Committee on Interstate and Foreign Commerce tomorrow morning. As mayor of Little Rock, and having recently sold a municipal issue of 4 million, and in the process of selling 212 million additional, am very much interested and request that municipal bonds be exempt in section 15 (c) along with commercial paper, bankers' acceptances, and thereby not make municipal bonds subject to control of Securities Commission which would have tendency to depress prices on outstanding issues and it will increase the cost of new issues.
MAYOR R. E. OVERMAN. You say that your purpose is only to prevent fraudulent practice? Mr. LANDIS. That is all that our purpose is.
That telegram is indicative of the same sort of question that Mr. Tremain raises. I have also received a telegram of that nature from the city of Tacoma, and some other cities, which are worried about it, but I think that that worry can be straightened out.
Mr. TERRY. You think the amendment you are proposing will take care of that?
Mr. LANDIS. Yes. I have not got the words in form yet. As I say, we were discussing this just before coming over here, with a group of the municipal-bond people, and I think we can get to a satisfactory solution on that. If not, of course, we will inform you of that fact.
Mr. PEYSER. May I ask you another question? Is it your idea, then, Mr. Landis, to suggest such an amendment as will cover that point ?
Mr. LANDIS. To suggest an amendment which will remove any of these doubts to the effect that this is an encroachment upon a certain field, an extension of our powers, or to give any indication that this would even deposit powers with the Commission which, if abused,
would create the situation that you speak of. Mr. PEYSER. That is all.
Mr. PETTENGILL. Mr. Landis, what evil exists in the sale of municipal securities, or has existed ?
Mr. LANDIS. Well, there has been fraud in the sale of those securities, as in the sale of other securities:
Mr. PETTENGILL. In what respect !
Mr. PETTENGILL. Of the taxable property, and so forth, behind the security
Mr. LANDIS. Sometimes of that, sometimes of the character of the obligation.
Mr. PETTENGILL. As to whether it is
Mr. LANDIS. As to whether it is a general obligation or a special obligation.
Mr. PETTENGILL. Those fraudulent practices that have come to your attention, have they been by word of mouth or printed literature?
Mr. LANDIS. Usually by word of mouth. I do not know of any that have come to our attention recently which have been by printed literature.
Mr. PETTENGILL. How do you expect to cover the situation where the fraud consists in misrepresentation by word of mouth by salesmen?
Mr. LANDIS. If interstate commerce is involved in the transmission of that security, in the completion of the sale, we assume that we have jurisdiction in those instances. Of course, if no interstate commerce is involved anywhere in the sale of that security, then, no matter what fraud is perpetrated, it is completely within the control of the States rather than of us. But it would have to be word of mouth plus, we will say, the subsequent use of the mails, or instrumentalities of interstate commerce in the transmission of that security.
Mr. PETTENGILL. Do you know of any historical examples where fraud has been practiced in the sale of municipal securities which would conceivably come within the power of the Federal Government to deal with it?
Mr. LANDIS. A particular one?
Mr. PETTENGILL. The question in my mind is whether there is any evil here that it is within our power to cure that amounts to enough to justify us in changing the law.
Mr. LANDIS. Well, I think, for example, in the report sent up to the Congress on Monday, there is an illustration of one situation which would be within the purview of this section. There will find, for example, that it has been the practice of certa in bondholders' committees for defaulted municipalities to buy in outstanding bonds at sacrifice rates, largely due to a misrepresentation of the existing situation.