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Cross-Motion for SJ

Cross-Motion for SJ

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Published by occupytheSEC
The US Attorney for the Eastern District filed a motion to dismiss our Federal lawsuit which requests the regulators finalize guidelines under the Volcker rule of Dodd-Frank. Our cross-motion for summary judgment.
The US Attorney for the Eastern District filed a motion to dismiss our Federal lawsuit which requests the regulators finalize guidelines under the Volcker rule of Dodd-Frank. Our cross-motion for summary judgment.

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Published by: occupytheSEC on Jun 30, 2013
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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xERIC TAYLOR and :KRISTINE EKMAN :
, :
 -against- :
 :BEN BERNANKE, in his official capacity as : Civil Case No. CV 13-1013Chairman of the Board of Governors of the Federal : (Ross, J.)Reserve System; MARTIN J. GRUENBERG, in : (Azrack, M.J.)his official capacity as Chairman of the Federal :Deposit Insurance Corporation; MARY JO :WHITE, in her official capacity as Chairperson :of the U.S. Securities and Exchange Commission; :GARY GENSLER, in his official capacity as :Chairman of the U.S. Commodity Futures Trading :Commission; THOMAS J. CURRY, in his official :capacity as Comptroller at the Office of the :Comptroller of the Currency, U.S. Department of :the Treasury, MARY J. MILLER, in her capacity as :Under Secretary for Domestic Finance, U.S. :Department of the Treasury; JACOB LEW in his :official capacity as Secretary of the Treasury :at the U.S. Department of the Treasury. ::
. :- - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - xPlaintiffs Eric Taylor and Kristine Ekman, as individuals and in their capacities asmembers of Occupy the SEC (“OSEC”), hereby cross-move for summary judgment seekingdeclaratory, injunctive and mandamus relief under the Administrative Procedure Act (“APA”)and this Court’s mandamus powers to compel the Defendants, in their capacities as officers or employees of certain federal agencies, to issue a joint Final Rulemaking under 12 U.S.C. § 1851(“Volcker Rule”), which is the codification of Section 619 of the Dodd–Frank Wall StreetReform and Consumer Protection Act of 2010 (“Dodd–Frank Act”). Pub. L. No. 111-203, 124
 2Stat. 1376 (2010). Plaintiffs also request that the Court retain jurisdiction to ensure compliancesuch that Defendants implement a Final Rulemaking on a timely basis.Defendants’ motion to dismiss introduces new facts that allow this motion to beconverted to a Rule 56 motion for summary judgment.
Fed. R. Civ. P. 12(d). Plaintiffs areentitled to such a judgment based on the totality of the undisputed facts. The Points andAuthorities in support of this Motion are set forth below.
A. The Parties
Section 619 directs certain agencies (the Federal Reserve Board, the Federal DepositInsurance Corporation (“FDIC”), the Office of the Comptroller of the Currency(“OCC”), the Securities and Exchange Commission (“SEC”), and the Commodity FuturesTrading Commission (“CFTC”) (collectively, the “Agencies”)) to promulgate coordinatedregulations implementing the Volcker Rule. 12 U.S.C. § 1851(b)(2)(A); Defendants' Pre-MotionLetter to Dismiss (ECF No. 9) ("Defs.' Pre-Mot. Ltr.") at 2. The Department of the Treasury isresponsible for coordination of the regulations as chairperson of the Financial Stability OversightCouncil (“FSOC”). 12 U.S.C. § 1851(b)(2)(B)(iii); Defs.' Pre-Mot. Ltr. at 2. Defendants aresenior officers at these agencies, and have responsibility over the issuance of a Final Rulemakingin connection with the Volcker Rule. Am. Compl. ¶¶ 7-12 (ECF No. 12).Plaintiff Eric Taylor is a 30 year-old U.S. citizen residing in Brooklyn, NY. Mr.Taylor has deposits in a checking account held by JPMorgan Chase Bank, N.A., which is anational bank and a U.S. insured depository institution.
¶ 5. Plaintiff Kristine Ekman is a 36year-old U.S. citizen residing in Brooklyn, NY.
. at ¶ 6. Ms. Ekman has deposits in a
 3checking account held by Wells Fargo Bank, N.A., which is a national bank and a U.S. insureddepository institution.
.Mr. Taylor and Ms. Ekman are members of Occupy the SEC, a subgroup of the OccupyWall Street movement and an unincorporated association that advocates for regulatory reforms inthe banking and financial system.
. at ¶¶ 5, 6. OSEC has been recognized internationally as anauthoritative voice on the Volcker Rule. Taylor Decl. ¶ 8. OSEC’s advocacy on the Rule hasincluded meetings with hundreds of Congressional staffers and regulatory officials from each of the five Agencies in charge of writing the Rule, op-ed articles, press releases, and close to onehundred interviews with domestic and international media outlets.
. OSEC submitted a 325- page comment letter in February 2012 in response to the Proposed Rule promulgated by the fiveAgencies responsible for the Volcker Rule rulemaking.
. ¶ 7. This comment letter has been praised as “powerful” by the N.Y. Times, “amazing” by Reuters, and an “intelligent, sober response to a serious issue” by Time Magazine.
B. Background on the Volcker Rule
The Volcker Rule generally prohibits banking entities from engaging in proprietarytrading and from maintaining certain relationships with hedge funds or private equityfunds. 12 U.S.C. § 1851. It was passed to help avert another global financial crisis, byrestraining the type of high-risk proprietary trading that can undermine insured depositoryinstitutions.
156 Cong. Rec. S5894 (daily ed. July 15, 2010) (statement of Sen. Merkley).The Glass-Steagall Act of 1933 protected bank depositors from market fluctuations by prohibiting retail banks from engaging in most trading activities. Am. Compl. ¶ 13. That lawgenerally required a structural separation of retail banks from investment banks.
. TheFinancial Services Modernization Act of 1999 repealed parts of the Glass-Steagall Act, allowing

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