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StockGate: Note To Depository Trust & Clearing Corp.:

This Is What An ‘Opinion’ Looks Like / FinancialWire®

April 18, 2005 (FinancialWire) Personal Privilege By Gayle Essary / We at Investrend were recently as stunned and disturbed as anyone else when the powerful and reclusive Depository Trust & Clearing Corp. became a prime suspect in the sudden and inexplicable “indefinite postponement” by General Electric’s (NYSE: GE) “Dateline NBC” of what was expected to have been a shocking expose of the DTCC’s purported role now and over the years in the counterfeiting of electronic certificates supporting illegal naked short sales.

After all, the DTCC is presided over by such otherwise seemingly responsible and luminous institutions as the NASD and the NYSE, its two “preferred” shareholders, along with Jonathan E. Beyman, Chief Information Officer, Lehman Brothers (NYSE: LEH); Frank J. Bisignano, Chief Administrative Officer and Senior Executive Vice President, Citigroup / Solomon Smith Barney's Corporate Investment Bank (NYSE: C), and John W. Cummings, Senior Vice President & Head of Global Technology & Services, Merrill Lynch & Co. (NYSE: MER).

Surely none of these would be party to shenanigans that lead to the censorship or disabling of any media. But wait, you say, there is no proof. Maybe, not yet, but we don’t have to wait for proof that the DTCC engages in such un-American activities as press censorship.

The DTCC, an agent of SROs that gives it quasi-government status, has admitted outright that it has engaged in communications that are not only tortuous interference but that more to the point, seem to have put it in the glaring headlights of the First Amendment to the Constitution of the United States of America, that protects media from interference by any government institution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

A prominent law school overview of the First Amendment is at http://www.law.cornell.edu/topics/first_amendment.html
The organization’s outside counsel, Proskauer Rose LLP, has written FinancialWire counsel Marshal Shichtman, Esq., not only readily admitting to its mischief, but actually expressing pride at its bullying.
The letter is posted in its entirety at http://www.investrend.com/Admin/Topics/Articles/Resources/349_1113403487.pdf

In the letter, attorney Charles S. Sims, in classic Orwellian double-speak, actually references the First Amendment as giving his clients the right to interfere with another’s First Amendment rights. Which, of course, is how we wind up here further exercising our opinion about his opinion about our opinion of the First Amendment, ad infinitus, we guess. The only difference is that neither this opinion nor our regular news are now distributed to the readers of Investors Business Daily or to finance news users at Yahoo (NASDAQ: YHOO), because the DTCC didn’t just express its opinion. Its communications were designed to squelch our rights to publish, and resulted in Investors Business Daily immediately taking down our news feed.

What was the “First Amendment opinion” stated by the DTCC that cause this harm not only to our business but also to our rights of free expression? It was that FinancialWire is “not a bona fide news” provider.

We beg to differ, of course. No, we are adamant in our differing.

If our news articles leaned against counterfeiting of shares and naked short sales that’s because we have been working under the illusion that both are actually illegal. We have to say, however, that the recent postings by bureaucratic staff members on the SEC.gov site that says “not all naked short selling” is illegal and further, that those who did engage in illegal naked short sales before the beginning of 2005 have been granted a kind of stock market manipulation “amnesty” by a “grandfathering” that to our knowledge was neither asked for nor approved by the Congress or the President was another shocker that by now has just been layered on to a cacophony of shockers.

However, in the end that is something our readers will and can sort out and judge. Our readerships continue to grow rather phenomenally, even after the loss of these two outlets, so if you accept this readership growth as the measure, the “opinion” of the DTCC is dead wrong.

Whatever the case, the bottom line is that the readers at Investors.com and Yahoo! Finance no longer get to make that choice. The DTCC has made that choice for them.

If you’re a user of one of those services and that’s okay with you, we have no concerns. If it’s not okay with you, you can express your own opinion of this press censorship and interference to other media, to the two outlets, to the DTCC, to the two “preferred shareholders,” to any of the 21 DTCC board members, or in whatever means suits you.

Why did we call this un-American? First and foremost, you can contrast the variety of news you receive in America due to our Constitutional protections to those the public is allowed to receive in say, China, or say, Syria, or say, Myanamar, or say, Russia, or any authoritarian government. The press is your proxy. You do not have the time to ask questions or to dispute the statements of governments, institutions, or bureaucracies, so it is the role of the media to do that for you.

When an institution such as the DTCC takes it upon itself to decide for you what is news and what is not, simply because it does not like what it is reading, or it is asking too many questions or raising disturbing issues, we have a difficult time not seeing parallels.

Perhaps you were not yet an adult or fully aware of the press restrictions in oppressive regimes such as the Nazis or the Communists, but you most certainly were aware only four years ago that Russian President Vladimir Putin unilaterally shut down NTV, the only non-state-owned television channel in Moscow and replaced it with state-employed reporters and producers. You have surely seen the results of this in the scant Russian coverages of the Moscow theatre and school hostage situations, not to mention the Yukos debacle.

Maybe this comparison of the DTCC and Putin is more graphic to us because we were actually in Moscow when NTV was being shut down. This writer was on other business but accompanying the partner of Ted Turner, who was seeking to acquire NTV. Turner and our mutual business colleague met with Putin and in classic Turnerese, lectured the Russian president on the importance of a free press in his desires for a free market economy.

Putin would have nothing to do with Turner’s arguments, but did keep up the charade of allowing potential acquisition meetings to occur throughout the week this writer was present. Meanwhile the owner of NTV had already fled the country, and his second-in-command was under house arrest. We had the privilege of having an outing one evening with a dozen or so of the brave NTV editors, writers and producers, along with our business colleague, and they were already living in fear. They had their own armed guards stationed at all of the exits, to attempt to repel any sudden Putin-directed forces.

This writer shared an automobile back to the Metropole Hotel, whose balcony Lenin used to direct his revolution, and we were a little uneasy at various checkpoints since the hotel already had us mistakenly involved in the acquisition, and the Metropole was famously known to have been bugged. When our colleague was out, the hotel had called our room to ask us to retrieve a fax to him from Ted Turner, so if there was a sweep, we knew we were going to be in it.

Having escaped all this intact, it never occurred to us that Putin would be waiting for us back on American shores.

So, now that we have begun here to actually express “opinions not news,” which is an equally responsible role for the media, we’re going to move right on to three opinions:

1. The Depository Trust and Clearing Corp. has become too large, too encompassing, too powerful, too unresponsive to those it serves, primarily the investing public, too unresponsive to the Congress under whose auspices it should be operating, and most of all, too arrogant.

First, it is time to unconflict it, with real public representations on its board.

Second, it is time to break it up, with its various duties provided by smaller agencies under separate unconflicted boards.

2. General Electric, the world’s second largest corporation, is beginning to show that it can not be both a multinational comglomerate and a faithful media steward.

First, it is time for General Electric to think about divesting NBC to a group whose sole business is to manage a free, untethered press and media establishment.

Second, if it will not do that, then it should put its news operations in the hands of an independent, journalistic board that is not answerable to the conglomerate. This is not a bad idea for CBS, ABC and FOX as well.

3. The SEC should take its unilateral decision about legal illegal naked short sales and its amnesty program to Congress and get its authority, or at the least, vote up or down at the Commission before letting its staff double-speak away law-breaking and law breakers.

So, now, DTCC, you have three examples of “opinion” to point to.
Why that disqualifies us from First Amendment protection or protection from your bullying, tortuous interferences, however, is beyond us.

Now, before ending this opinion piece, let’s enumerate your bosses, since we have not yet heard from them as to whether they support your Un-American tactics:

The DTCC’s two preferred shareholders are the New York Stock Exchange and the NASD, a regulatory agency that also owns the Nasdaq and until recently, the American Stock Exchange.
Other DTCC board members include Michael C. Bodson, Managing Director, Morgan Stanley (NYSE: MWD); Gary Bullock, Global Head of Logistics, Infrastructure, UBS Investment Bank (NYSE: UBS); Stephen P. Casper, Managing Director and Chief Operating Officer, Fischer Francis Trees & Watts, Inc.; Jill M. Considine,Chairman, President & Chief Executive Officer, The Depository Trust & Clearing Corporation (DTCC);

Also, Paul F. Costello, President, Business Services Group, Wachovia Securities (NYSE: WB); John W. Cummings, Senior Vice President & Head of Global Technology & Services, Merrill Lynch & Co. (NYSE: MER); Donald F. Donahue, Chief Operating Officer, The Depository Trust & Clearing Corporation (DTCC); Norman Eaker, General Partner, Edward Jones; George Hrabovsky, President, Alliance Global Investors Service; Catherine R. Kinney, President and Co-Chief Operating Officer, New York Stock Exchange; Thomas J. McCrossan, Executive Vice President, State Street Corporation (NYSE: STT); Bradley Abelow, Managing Director, Goldman Sachs (NYSE: GS); Jonathan E. Beyman, Chief Information Officer, Lehman Brothers (NYSE: LEH); and Frank J. Bisignano, Chief Administrative Officer and Senior Executive Vice President, Citigroup / Solomon Smith Barney's Corporate Investment Bank (NYSE: C), Eileen K. Murray, Managing Director, Credit Suisse First Boston (NYSE: CSR); James P. Palermo, Vice Chairman, Mellon Financial Corporation (NYSE: MEL); Thomas J. Perna, Senior Executive Vice President, Financial Companies Services Sector of The Bank of New York (NYSE: BNY); Ronald Purpora, Chief Executive Officer, Garban LLC; Douglas Shulman, President, Regulatory Services and Operations, NASD; and Thompson M. Swayne, Executive Vice President, JPMorgan Chase (NYSE: JPM).

Gayle Essary is CEO of Investrend Communications, Inc., and serves its Investrend Information unit as Publisher of FinancialWire. He has been a practicing journalist since 1958, is a member of the Online News Association and has been a member of both the Texas and National Press Association.

http://www.investrend.com/articles/article.asp?analystId=0&id=14720&topicId=160&level=16...