In February 2022, the chief legal officer of hedge fund Citadel, Shawn Fagan, rang Eugene Scalia, a top lawyer who has made a career out of taking on US regulators.
Fagan wanted Scalia’s help in challenging a newly aggressive Securities and Exchange Commission, which under chair Gary Gensler was proposing rules that would bring private equity firms and hedge funds — part of a “shadow banking” sector whose rapid growth has alarmed regulators — under closer supervision.
It was a natural choice. Fagan had known Scalia for many years, having been a clerk at the US Supreme Court in the days when Eugene’s father Antonin Scalia, a conservative justice idolised by Republicans for his steadfast opposition to perceived government over-reach, was on the court.
Following the call, Citadel and the other hedge funds and private equity firms opposing the plans decided on a strategy altogether more drastic than simply quibbling about individual aspects of the rule they did not like — challenging in court the SEC’s very authority to introduce such regulation.
The lawsuit led a wave of legal challenges launched against federal agencies by lawyers like Scalia who sought to take on President Joe Biden’s broad regulatory agenda. That trend now threatens to undermine a whole swath of rules brought by Gensler’s SEC.
“This is not just an attack on the private funds rule and it’s not just an attack on the SEC, but it’s part of a broader attack on the scope of agency rulemaking and the scope of their power,” said Jill Fisch, professor at University of Pennsylvania’s law school.
Market participants have been emboldened by more pro-business judges sitting in higher courts. The Supreme Court, which is split 6-3 between conservative and liberal justices, in recent years has handed down decisions that have dramatically curbed agencies’ rulemaking powers.
To help their cause, rather than bringing a case in Washington, where SEC rules are traditionally challenged, the private fund industry groups chose a venue more likely to be sympathetic to their views: the conservative New Orleans-based Fifth Circuit Court of Appeals.
The plan worked to perfection. In June, the appeals court threw out the so-called private funds rules — which would have required firms to be more transparent with their clients about earnings, expenses and side deals with large investors — on the basis that the agency had overstepped its authority.
It is crucial to put forward strong arguments during the public consultation that could convince a court “as if you are going to trial” to lay the groundwork for a lawsuit, rather than simply giving your views, Scalia said in an interview with the Financial Times in reference to his advice to clients in contentious rulemakings.
“Litigation must be a part of any advocacy strategy in today’s environment,” said Drew Maloney, president of the American Investment Council, which represents private equity firms such as KKR, Blackstone and Apollo and also participated in the case against the SEC.
The court rejected the SEC’s argument that it had powers to introduce rules to protect not just retail customers but also investors in private equity and hedge funds, who are often more sophisticated clients.
“The commission has exceeded its statutory authority . . . no part of [the rule] can stand,” the court ruled. It also said the SEC had failed to specifically link the new rules to its traditional fraud-prevention authority.
Gensler told the FT that the SEC is “updating our rules to benefit investors and issuers alike within the laws and how the courts interpret those laws”.
“In the last few years, we’ve finalised 40 rules, the majority of which are being implemented. These projects are making our capital markets more efficient, transparent and resilient,” he added.
The focus on hedge funds and private equity comes as international regulators grow increasingly nervous about the rapidly expanding shadow-banking sector, its opacity and its relative lack of regulation.
The industry has used similar legal tactics to challenge other SEC rules. These include a proposal to impose banklike regulation on some hedge funds and trading firms in the US Treasury market, and another rule that would force hedge funds to disclose more information on short positions against companies.
“Will we be looking at final rules with a closer scrutiny based on statutory authority? Yes, I think we will do that,” said Bryan Corbett, president and chief executive of the Managed Funds Association, which represents some of the world’s largest hedge funds and joined Citadel in the private funds lawsuit.
Even before his confirmation as SEC chair in April 2021, Gensler was well known to the industry from his tenure as chair of the Commodity Futures Trading Commission, the US derivatives regulator.
There he had adopted a hard-charging style in the wake of the 2008 financial crisis, implementing the Dodd-Frank Act to clean up the derivatives market.
“His approach to the world is to load up the agenda . . . you can only pick so many things to fight,” said a former regulator who worked at the SEC and CFTC. “It’s what Gary did with Dodd-Frank and [derivative] swaps and it has been what he’s doing with the securities world right now . . . he’s picking a fight with everybody.”
The private funds lawsuit was the first time the MFA or AIC had sued the SEC, and came after other options appeared to have been exhausted.
Between Gensler’s confirmation and March this year, the MFA and the Alternative Investment Managers Association met him nine and four times respectively, according to public records, in addition to other commissioners.
Hedge fund Citadel and its sister firm Citadel Securities met him six and 12 times respectively. These included a meeting with the firms’ billionaire founder Ken Griffin, who has been publicly scathing about the SEC’s agenda.
But the hedge funds and private equity firms felt that the lobbying efforts encountered a cold reception, according to multiple people who attended meetings with the chair.
Hedge funds were particularly irked by the sheer volume of new rules proposed with just a one month comment period. They pointed to a rule intended to improve transparency of the securities lending market and proposed in November 2021, despite overlapping with Thanksgiving and Christmas.
The comment period was reopened twice, however, in February and October 2022. In the past two years, the SEC has reopened 18 rules for further public comment, and comments are often still submitted after the deadline.
The agency ultimately tweaked parts of the proposal before adoption. Nevertheless, by February 2022, when Citadel called Scalia, it had become clear to much of the industry that Gensler was unlikely to fundamentally overhaul the proposal, and that only the courts would be able to resolve their disagreement with the SEC.
“Citadel is proud of our constructive engagement with the SEC, supporting rules and reforms that strengthen market efficiency, resiliency and integrity. Through thoughtful and deliberate regulation, the SEC has historically fostered the creation of strong capital markets that promote growth and stability and expand the economic pie for everyone,” said Stephen Berger, Citadel’s global head of government and regulatory policy, in a statement.
Investor groups argue that dismantling Gensler’s ambitious regulatory agenda is bound to harm investors.
Gensler’s plans were “designed to ensure that the rules keep pace with the changes that we’ve seen in the market, so that investors can continue to be protected”, said Benjamin Schiffrin, director of securities policy at the Better Markets campaign group.
He added that the private funds rule was “tremendously important” as it would have provided more insight into funds as their investors “are increasingly pension funds that represent teachers, firefighters, police officers, everyday Americans”.
Gensler, meanwhile, warned in an interview with the FT about the risk of bets by non-bank financial institutions spilling out across asset classes and into the real economy.
After the upheaval in US government bonds in March 2023 following the collapse of Silicon Valley Bank, greater scrutiny of hedge funds and other parts of the shadow banking system was “more important than ever”, Gensler said.
Hedge funds and private equity firms see things very differently. In Gensler’s actions, they see an effort to clamp down on the industry without a mandate from lawmakers in Congress — a claim Gensler has repeatedly rejected.
“We knew when he was appointed he would be an aggressive chair, what we didn’t expect was that in light of no statutory authority directing him to take these rulemakings . . . he implemented a massive agenda targeting private funds on his own,” said the MFA’s Corbett.
The SEC last month let a deadline for a rehearing of the appeals court’s decision on the private funds rules pass. It could still ask the Supreme Court to reinstate the measures, but the US’s highest court has been highly sceptical of administrative power in recent years.
The Supreme Court in June overturned a landmark legal doctrine known as “Chevron deference”, which for 40 years had given federal agencies significant latitude in crafting rules in spheres ranging from climate to the securities market.
That could make pursuing a broad regulatory agenda even more challenging.
“Chairman Gensler and some of his colleagues at the SEC decided to push the envelope on their authority at exactly the wrong time,” Scalia told the FT.