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Reserve Board, and all applications, reports, and documents to be filed by such banks shall be filed with the Federal Reserve Board. All powers and duties imposed hereunder to or upon the Commission insofar as they apply to persons subject to the provisions of Section 20 of the Interstate Commerce Act, as amended, shall be exercised and performed by the Interstate Commerce Commission, and all applications, reports, and documents to be filed by such persons shall be filed with the Interstate Commerce Commission.
MEMBERS AND EMPLOYEES OF FEDERAL TRADE COM MISBION
SEC. 32. (a) The Federal Trade Commission shall hereafter be composed of seven commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate, and not more than four of whom shall be members of the same political party. The two additional commissioners who shall be appointed pursuant to this Act shall continue in office through September 25, 1936, and September 25, 1937, respectively, the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. No commissioner shall engage in any other business, vocation, or employment, or hereafter effect any transaction in any security (other than exempted security) unless ten days prior to such transaction he shall notify in writing the other members of the Commission of his intention to effect such transaction, and shall also notify in writing the Commission that such transaction has been effected, which later notice shall immediately be made a matter of public record by the Commission. The President is authorized by his order to divide the members of the Commission into as many divisions (each to consist of not less than three members) as he may deem necessary, which may be changed from time to time. Any commissioner may be assigned to and may serve on such division or divisions as the President may direct, and the senior in service of the commissioners constituting any of said divisions hall act as chairman thereof. In case of vacancy in any division, or of absence or inability to serve thereon of any commissioner thereto assigned, the chairman of the Commisison or any commissioner designated by him for that purpose, may temporarily serve on said division until the President shall otherwise order. The Commission may by order direct that any of its work, business, functions, or powers arising under this Act, an Act to provide full and fair disclosure of the character of securities sold in interstate and foreign commerce and through the mails, and to prevent frauds in the sale thereof, and for other purposes, approved May 27, 1933; an Act to encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes, approved June 16, 1933; an Act to promote export trade, and for other purposes, approved April 10, 1918; an Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes, approved October 15, 1914; and an Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes, approved September 26, 1914; or under any statutory provisions amendatory thereof or supplemental thereto, or under any amendment which may be made to any of said Acts, or under any other Act or joint resolution which has been or may be approved, or in respect of any matter which has been or may be referred to the Commission, be assigned or referred to any of said divisions for action thereon, and may by order at any time amend, modify, supplement, or rescind any such direction. All such orders shall take effect forthwith and remain in effect until otherwise ordered by the Commission. In conformity with and subject to the order or orders of the Commission in the premises, each division so constituted shall have power and authority by a majority thereof to hear and determine, order, certify, report, or otherwise act as to any of said work, business, functions, or powers so assigned or referred to it for action, and in respect thereof the division shall have all the jurisdiction and powers now or then conferred by law upon the Commission, and be subject to the same duties and obligations. Any order, decision, report made or other action taken by any of said divisions in respect of any matters so assigned or referred to it shall have the same force and effect, and may be made, evidenced, and enforced in the same manner as if made, or taken by the Commission. The Secretary and seal of the Commission shall be the secretary and seal of each division thereof. After a decision,
order, requirement, rule, or regulation has been made by any said division, any party aggrieved thereby may, according to such regulations as may be pre scribed by the full Commission, make application for rehearing of the same, or any matter determined therein. If sufficient reason be made to appear for granting such a rehearing, the full Commission in its discretion shall do so, and the rehearing shall be held before the full Commission. In case a rehearing is granted, the proceedings thereupon shall conform as nearly as may be to the proceedings in the original hearing, except as the full Commission may otherwise direct; and if, in its judgment, after such rehearing and the consideration of all facts, including those arising since the former hearing, it shall appear that the original decision, order, or requirement is in any respect unjust or unwarranted, the full Commission may reverse, change, or modify the same accordingly. Any decision, order, or requirement made after such rehearing, reversing, changing, or modifying the original determination shall be subject to the same provisions as an original order. No such application for a rehearing shall excuse any person from complying with or obeying any decision, order, or requirement of a division, or operate in any manner to stay or postpone the enforcement of any decision, order, requirement, rule or regulation, without the special order of the full Commission.
(b) For the purposes of this Act and of the Securities Act of 1933, the Federal Trade Commission may select, employ, and fix the compensation of such attorneys, examiners, and other special experts as shall be necessary for the transaction of the business of the Commission with respect to such Acts without regard to the provisions of other laws applicable to the employment and compensation of officers or employees of the United States.
SEPARABILITY OF PROVISIONS
SEC. 33. If any provisions of this Act, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Act, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.
Sec. 34. This Act shall become effective upon its enactment, except that section 5 and section 11 (b) (c) (d) (e) shall become effective on July 1, 1934, and sections 4, 6, 7, 8 (a) (8), 9, 10, 11 (a), 12, 13, 14, 15, 16, 17, 18, and 29 shall become effective on August 1, 1934.
The CHAIRMAN. I have communications and statements here from the following gentlemen, which will be inserted in the record at this point: Mr. Arthur W. Sewell, Philadelphia, Pa.; the New York Produce Exchange, 2 Broadway, New York, N.Y.; National Association of Mutual Savings Banks, 343 Madison Avenue, New York, N.Y.; a letter from J. Harry Covington, Esq., counsel for the American Institute of Accountants, submitting a statement on behalf of the American Institute of Accountants; Daniel J. Hennessy, president Controllers Institute of America, 1 East Forty-second Street, New York, N.Y., enclosing a statement by the Controllers Institute of America; the National Association of Building Owners and Managers, signed by Mr. R. B. Beach, executive secretary, 134 South LaSalle Street, Chicago, Ill.; Mr. Harry J. Gerrity, 1001 Hill Building, Washington, D.C., with a statement of Mr. Richard G. Babbage, representing the Real Estate Board of New York, N.Y.; a statement from Mr. John C. Legg, Jr., representing 18 broker-dealers of Baltimore, Md.; the Merchants Association of New York, N.Y., by Mr. Louie K. Comstock, president, enclosing a statement by that association; the National Association of Railroad and Utilities Commissioners, by Mr. John E. Benton, general solicitor, enclosing a memo
randum by Mr. Adolph Johnson, chief counsel, Public Service Commission of Wisconsin; and the National Association of Manufacturers of the United States, 11 West Forty-second Street, New York, N.Y., by Mr. George H. Houston, vice president. (The communications and statements referred to are as follows:)
PHILADELPHIA, March 9, 1934. Hon. Sam RAYBURN,
Chairman House of Representatives, Washington, D.C. DEAR MR. RAYBURN: As you see, I am taking the liberty of forwarding to you under this cover duplicates of arguments submitted yesterday to the Senate Committee on the National Securities Exchange Act of 1934, which were received by said committee and made part of the record.
Myself and my associates, Mr. Harrison Hoblitzelle, president General Steel Castings Corporation, Eddystone, Pa., and Mr. Edward B. Leisenring, president Westmoreland Coal Co., Philadelphia, would be very much pleased and distinctly benefited should you feel that you consistently can accept the written part of the arguments that we placed before the Senate committee and make them a part of the House record in the premises if, as seems to be the necessary condition, we have passed the time when we could appear and make an oral argument before your honorable body. With the hope that this can be done, we shall be deeply pleased if you would be so kind as to permit the distribution of the enclosed mimeographed copies of arguments to the members of your committee whose names appear on the margin.
May I add that in case you should wish us to come to a later hearing and shall 8o inform us, we shall be delighted to come back to Washington for oral argument on short notice. With assurances of our highest consideration, I beg you to believe me, Sincerely yours,
ARTHUR W. SEWALL.
NATIONAL SECURITIES EXCHANGE ACT OF 1934
On Friday, February 23, 1934, a gathering of those interested in the above act was held at the Midday Club, Philadelphia, at 4 o'clock in the afternoon and it was attended by a representative group of upward of 200 manufacturers, business men, insurance company executives, and bankers.
At this meeting the following resolutions were adopted:
“Resolved, that it is the sense of this meeting that the National Securities Exchange Act of 1934 in the form now before the respective committees of the Senate and House of Representatives of the United States Congress is detrimental to the business interests of this country and to the individuals interested in the welfare of the corporations; it produces a conflict of authority between the Federal Trade Commission and other constituted governmental agencies competent to regulate the corporations subject to their jurisdiction, such as financial institutions, railroads, and public utilities, and appears to destroy completely the jurisdiction of many State regulatory bodies.
"Resolved that it is the sense of this meeting that the National Securities Exchange Act should be opposed in its present form, and that unless so amended that its harmful and objectionable features are eliminated, the passage of this bill by the United States Congress should be opposed and the efforts of those represented by this meeting should be directed to accomplish its defeat.
"Resolved that the chairman of the meeting be and is hereby requested and authorized to appoint a committee of such number as he may deem proper to act for the interests represented by this meeting with power to take such steps as in their judgment may seem necessary to bring to the attention of the members of the Senate and House of Representatives of the Congress of the United States the reason why the National Securities Exchange Act should not be passed in its present form."
Mr. Joseph Wayne, Jr., president of the Philadelphia National Bank and president of the Philadelphia Clearing House Association, presided, and, as authorized by this meeting, appointed the following cominittee:
Mr. Benjamin Rush, president, Insurance Co. of North America, Philadelphia; Mr. Arthur W. Sewal, president, General Asphalt Co., Philadelphia; Mr. Harrison Hoblitzelle, president, General Steel Castings Corporation, Eddystone, Pa.; Mr.
William A. Law, president. Penn Mutual Life Insurance Co., Philadelphia; Mr. Edward B. Leisenring, president, Westmoreland Coal Co., Philadelphia.
The above presents as follows its recommendations and conclusions to which it solicits your helpful and invaluable attention:
Our statement deals with our appraisal of the probable effects on business corporations resulting from the passage in present form of the identical bills introduced before the Senate and House entitled "A bill to provide for the registration of national security exchanges operating in interstate and foreign commerce and through the mails and to prevent inequitable and unfair practices on such exchanges, and for other purposes."
The title in no way suggests the full intent of the bill and this is significant inasmuch as many business men believe it to cover only the purposes indicated in the title and undoubtedly do not comprehend the extraordinary authority over business which the bill proposes to give to the Federal Trade Commission.
Throughout the bill we find references to "any person who transacts business in securities." This clause is subject to wide interpretation and if retained should be clearly defined to exclude those who buy or sell securities primarily for investment for legitimate corporate purposes as distinguished from those who are primarily engaged in the transaction of a security business as such. It is assumed that this is the intent of the bill.
Section 3, definition no. 9 contemplates regulation by the Federal Trade Commission of all types of corporations, partnerships, associations, etc., including railroads, banks, trust companies, savings funds, insurance and utility companies.
This proposed supplementary regulation of the latter groups, even though modified to obviate conflict with present Federal, State, or other regulatory authorities, would at least render administration of such corporations increasingly difficult and add to their cost of doing business.
Section 6 in prohibiting the customary use of unlisted securities as collateral and materially raising the marginal requirements on listed securities for collateral purposes would seriously restrict the obtaining of credit by individuals and corporations. Corporations would be handicapped in borrowing for legitimate corporate purposes on collateral consisting of their own marketable investment or treasury securities. Furthermore, the power given to the Commission to prescribe lower loan values than those as computed by the formula described in section 6 would, where exercised, have an immediately unfavorable effect on the corporation's general credit in all of its business dealings. At a time when every effort of the Government is being expended in fostering the extension of credit it seems anomalous that serious consideration should be given to certain provisions of this bill which, without apparently sound reason, would unduly curtail the purchasing power of the individual and corporation by diminishing their facilities for credit.
Section 8, subsection (a) (5) reverses the usual doctrine of one being innocent until proven guilty by unfairly, in our opinion, placing the burden of proof on a corporate officer in the event " an average investor" sues him for damages on the grounds that he was mislead with respect to any of various items on the published balance sheet or other statements.
Section 8, subsection (a) (7) as it now stands would deny a corporation the right, except under such rules and regulations as the commission may prescribe, to either buy or sell its stocks or bonds in any appreciable volume as this would necessarily to a greater or less extent have the "effect of pegging, fixing or stabilizing the price of such securities". This might prove disadvantageous to corporations purchasing bonds or preference stocks for sinking funds or retirement or selling treasury bonds or stocks for purposes of raising working capital. This subsection would be improved by striking out the words “or effect".
Section 8, subsection 9 denies a corporation the privilege of acquiring an option to purchase, through the means of securities, control or ownership of another corporation. We believe the privilege referred to is a legitimate one and should not be prohibited.
With respect to section 10 referring to the segregation and limitation of the functions of broker, specialist and dealer, we wish to raise the question, without endeavoring to answer it, as to whether or not the segregation provided for would have the effect of increasing the financing costs to corporations in general at such time as they endeavored to raise capital through the issuance of new securities. It is suggested that this matter be given careful consideration to make sure that it does not work a hardship on business particularly with regard to the security flotations of small enterprises.
Section 11, subsection (c) (I) grants the Federal Trade Commisssion broad powers to enforce compliance by corporation officers, directors, and stockholders not only with the act but also with any amendments thereto and with any rules and regulations which they may make thereunder. This omnibus authority is in addition to specified information which must be periodically furnished under 11 (c) (II) and (III) and further blanket authority under 11 (e) (III) to call for any files of the corporation or its affiliates which the Commission may desire.
Section 11 is the crux of the bill insofar as business is concerned. We believe it to be neither necessary nor desirable to put American business under Government control. With a full recognition of the desirability of eliminating the unetichical and destructive practices of the few, we do not wish to see the vast majority of business men, whom we must concede are honestly motivated, fettered by a multiplicity of rules, regulations, and authorities, nor do we believe it will be advantageous to the public interest to have managements obliged to devote an increasing percentage of their time to collaboration with accountants and lawyers in the preparation, filing, and dissemination of reports.
The cost of making the reports required by sections 11 and 12 are impossible to estimate with exactness in advance for several reasons, one of which is that only the minimum number of reports required are stated and the number of additional reports which the Commission may further require is left entirely to their discretion. Nevertheless we believe that such costs as would be experienced upon the application of these provisions would be a serious burden on business and that the net benefits, if any, to be derived therefrom would be entirely incommensurate with the costs; furthermore it is conceivable that much of the information filed would result in harmful effects by virtue of its appropriation by competitors both in this and foreign countries. We believe that the rules with respect to publicity of information as made mandatory in this bill are unnecessary for the education of the stockholder inasmuch as a stockholder today can in almost any case secure from the officers of his corporation any legitimate information he desires which is not inimical to the interests of other stockholders. As a matter of fact is it not true that “the average investor" or stockholder will not today even take the time to read, much less study, the report of the board of directors and the financial statement which is mailed to him once a year?
The mailing of a complete stockholders list to each stockholder each time he was solicited for a proxy, as required under section 13 (a), would be obviously burdensome and expensive and an undesirable procedure. Stockholders lists widely distributed would fall into the hands of unscrupulous persons who might use them for an endless number of extraneous and even nefarious purposes.
Section 14 would destroy the market and therefore the liquidity of securities of any corporation which did not subject itself to the rules and regulations of the commission. This would have the effect of forcing the many small companies throughout the country, whose securities are unlisted, to abide by the same commission regulations and subject them proportionately to the same additional expense burdens as would be imposed upon the larger corporations. The so-called family or closed corporations, whose stockholders were so fortunate as to not require the securities thereof as collateral, would enjoy exemption.
Section 17 (a), as is the case with section 8, subsection (a) (7), reiterates the unAmerican principle of placing the burden on the accused to prove he is innocent.
While the penalties specified throughout the act are severe we do not object to them as such except for the all important fact that the wording of many of the prohibitions and regulations are so indefinite as to put even the most honest and conscientious business official in jeopardy of the unscrupulous litigating stockholder and the vagaries of court interpretations.
In conclusion we believe, for the reasons pointed out above, that the burdens and the additional expense incident thereto imposed upon corporation officers, directors and stockholders and business generally, by virtue of the placing of American business under Government control as contemplated in certain sections of the bill in question, would not be in the public interest, and under any circumstances we believe that any legislation with respect to business should be entirely divorced from legislation dealing with the control of security exchanges.
Benjamin Rush, president, Insurance Co. of North America, Phila
delphia, Chairman; Arthur W. Sewall, president General Asphalt Co., Philadelphia; Harrison Hobitzelle, president General Steel Castings Corporation, Eddystone, Pa.; William A. Law, president Penn Mutual Life Insurance Co., Philadelphia; Edward B. Leisenring, president Westmoreland Coal Co., Philadelphia.