#securities and exchange commission

[mostlysignssomeportents]

Amazon’s financial shell game let it create an “impossible” monopoly

I'm on tour with my new, nationally bestselling novel The Bezzle! Catch me in TUCSON (Mar 9-10), then San Francisco (Mar 13), Anaheim, and more!

For the pro-monopoly crowd that absolutely dominated antitrust law from the Carter administration until 2020, Amazon presents a genuinely puzzling paradox: the company's monopoly power was never supposed to emerge, and if it did, it should have crumbled immediately.

Pro-monopoly economists embody Ely Devons's famous aphorism that "If economists wished to study the horse, they wouldn’t go and look at horses. They’d sit in their studies and say to themselves, ‘What would I do if I were a horse?’":

https://pluralistic.net/2022/10/27/economism/#what-would-i-do-if-i-were-a-horse

Rather than using the way the world actually works as their starting point for how to think about it, they build elaborate models out of abstract principles like "rational actors." The resulting mathematical models are so abstractly elegant that it's easy to forget that they're just imaginative exercises, disconnected from reality:

https://pluralistic.net/2023/04/03/all-models-are-wrong/#some-are-useful

These models predicted that it would be impossible for Amazon to attain monopoly power. Even if they became a monopoly – in the sense of dominating sales of various kinds of goods – the company still wouldn't get monopoly power.

For example, if Amazon tried to take over a category by selling goods below cost ("predatory pricing"), then rivals could just wait until the company got tired of losing money and put prices back up, and then those rivals could go back to competing. And if Amazon tried to keep the loss-leader going indefinitely by "cross-subsidizing" the losses with high-margin profits from some other part of its business, rivals could sell those high margin goods at a lower margin, which would lure away Amazon customers and cut the supply lines for the price war it was fighting with its discounted products.

That's what the model predicted, but it's not what happened in the real world. In the real world, Amazon was able use its access to the capital markets to embark on scorched-earth predatory pricing campaigns. When diapers.com refused to sell out to Amazon, the company casually committed $100m to selling diapers below cost. Diapers.com went bust, Amazon bought it for pennies on the dollar and shut it down:

https://www.theverge.com/2019/5/13/18563379/amazon-predatory-pricing-antitrust-law

Investors got the message: don't compete with Amazon. They can remain predatory longer than you can remain solvent.

Now, not everyone shared the antitrust establishment's confidence that Amazon couldn't create a durable monopoly with market power. In 2017, Lina Khan – then a third year law student – published "Amazon's Antitrust Paradox," a landmark paper arguing that Amazon had all the tools it needed to amass monopoly power:

https://www.yalelawjournal.org/note/amazons-antitrust-paradox

Today, Khan is chair of the FTC, and has brought a case against Amazon that builds on some of the theories from that paper. One outcome of that suit is an unprecedented look at Amazon's internal operations. But, as the Institute for Local Self-Reliance's Stacy Mitchell describes in a piece for The Atlantic, key pieces of information have been totally redacted in the court exhibits:

https://www.theatlantic.com/ideas/archive/2024/02/amazon-profits-antitrust-ftc/677580/

The most important missing datum: how much money Amazon makes from each of its lines of business. Amazon's own story is that it basically breaks even on its retail operation, and keeps the whole business afloat with profits from its AWS cloud computing division. This is an important narrative, because if it's true, then Amazon can't be forcing up retail prices, which is the crux of the FTC's case against the company.

Here's what we know for sure about Amazon's retail business. First: merchants can't live without Amazon. The majority of US households have Prime, and 90% of Prime households start their ecommerce searches on Amazon; if they find what they're looking for, they buy it and stop. Thus, merchants who don't sell on Amazon just don't sell. This is called "monopsony power" and it's a lot easier to maintain than monopoly power. For most manufacturers, a 10% overnight drop in sales is a catastrophe, so a retailer that commands even a 10% market-share can extract huge concessions from its suppliers. Amazon's share of most categories of goods is a lot higher than 10%!

What kind of monopsony power does Amazon wield? Well, for one thing, it is able to levy a huge tax on its sellers. Add up all the junk-fees Amazon charges its platform sellers and it comes out to 45-51%:

https://pluralistic.net/2023/04/25/greedflation/#commissar-bezos

Competitive businesses just don't have 45% margins! No one can afford to kick that much back to Amazon. What is a merchant to do? Sell on Amazon and you lose money on every sale. Don't sell on Amazon and you don't get any business.

The only answer: raise prices on Amazon. After all, Prime customers – the majority of Amazon's retail business – don't shop for competitive prices. If Amazon wants a 45% vig, you can raise your Amazon prices by a third and just about break even.

But Amazon is wise to that: they have a "most favored nation" rule that punishes suppliers who sell goods more cheaply in rival stores, or even on their own site. The punishments vary, from banishing your products to page ten million of search-results to simply kicking you off the platform. With publishers, Amazon reserves the right to lower the prices they set when listing their books, to match the lowest price on the web, and paying publishers less for each sale.

That means that suppliers who sell on Amazon (which is anyone who wants to stay in business) have to dramatically hike their prices on Amazon, and when they do, they also have to hike their prices everywhere else (no wonder Prime customers don't bother to search elsewhere for a better deal!).

Now, Amazon says this is all wrong. That 45-51% vig they claim from business customers is barely enough to break even. The company's profits – they insist – come from selling AWS cloud service. The retail operation is just a public service they provide to us with cross-subsidy from those fat AWS margins.

This is a hell of a claim. Last year, Amazon raked in $130 billion in seller fees. In other words: they booked more revenue from junk fees than Bank of America made through its whole operation. Amazon's junk fees add up to more than all of Meta's revenues:

https://s2.q4cdn.com/299287126/files/doc_financials/2023/q4/AMZN-Q4-2023-Earnings-Release.pdf

Amazon claims that none of this is profit – it's just covering their operating expenses. According to Amazon, its non-AWS units combined have a one percent profit margin.

Now, this is an eye-popping claim indeed. Amazon is a public company, which means that it has to make thorough quarterly and annual financial disclosures breaking down its profit and loss. You'd think that somewhere in those disclosures, we'd find some details.

You'd think so, but you'd be wrong. Amazon's disclosures do not break out profits and losses by segment. SEC rules actually require the company to make these per-segment disclosures:

https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=3524&context=lawreview#:~:text=If%20a%20company%20has%20more,income%20taxes%20and%20extraordinary%20items.

That rule was enacted in 1966, out of concern that companies could use cross-subsidies to fund predatory pricing and other anticompetitive practices. But over the years, the SEC just…stopped enforcing the rule. Companies have "near total managerial discretion" to lump business units together and group their profits and losses in bloated, undifferentiated balance-sheet items:

https://www.ucl.ac.uk/bartlett/public-purpose/publications/2021/dec/crouching-tiger-hidden-dragons

As Mitchell points you, it's not just Amazon that flouts this rule. We don't know how much money Google makes on Youtube, or how much Apple makes from the App Store (Apple told a federal judge that this number doesn't exist). Warren Buffett – with significant interest in hundreds of companies across dozens of markets – only breaks out seven segments of profit-and-loss for Berkshire Hathaway.

Recall that there is one category of data from the FTC's antitrust case against Amazon that has been completely redacted. One guess which category that is! Yup, the profit-and-loss for its retail operation and other lines of business.

These redactions are the judge's fault, but the real fault lies with the SEC. Amazon is a public company. In exchange for access to the capital markets, it owes the public certain disclosures, which are set out in the SEC's rulebook. The SEC lets Amazon – and other gigantic companies – get away with a degree of secrecy that should disqualify it from offering stock to the public. As Mitchell says, SEC chairman Gary Gensler should adopt "new rules that more concretely define what qualifies as a segment and remove the discretion given to executives."

Amazon is the poster-child for monopoly run amok. As Yanis Varoufakis writes in Technofeudalism, Amazon has actually become a post-capitalist enterprise. Amazon doesn't make profits (money derived from selling goods); it makes rents (money charged to people who are seeking to make a profit):

https://pluralistic.net/2023/09/28/cloudalists/#cloud-capital

Profits are the defining characteristic of a capitalist economy; rents are the defining characteristic of feudalism. Amazon looks like a bazaar where thousands of merchants offer goods for sale to the public, but look harder and you discover that all those stallholders are totally controlled by Amazon. Amazon decides what goods they can sell, how much they cost, and whether a customer ever sees them. And then Amazon takes $0.45-51 out of every dollar. Amazon's "marketplace" isn't like a flea market, it's more like the interconnected shops on Disneyland's Main Street, USA: the sign over the door might say "20th Century Music Company" or "Emporium," but they're all just one store, run by one company.

And because Amazon has so much control over its sellers, it is able to exercise power over its buyers. Amazon's search results push down the best deals on the platform and promote results from more expensive, lower-quality items whose sellers have paid a fortune for an "ad" (not really an ad, but rather the top spot in search listings):

https://pluralistic.net/2023/11/29/aethelred-the-unready/#not-one-penny-for-tribute

This is "Amazon's pricing paradox." Amazon can claim that it offers low-priced, high-quality goods on the platform, but it makes $38b/year pushing those good deals way, way down in its search results. The top result for your Amazon search averages 29% more expensive than the best deal Amazon offers. Buy something from those first four spots and you'll pay a 25% premium. On average, you need to pick the seventeenth item on the search results page to get the best deal:

https://scholarship.law.bu.edu/faculty_scholarship/3645/

For 40 years, pro-monopoly economists claimed that it would be impossible for Amazon to attain monopoly power over buyers and sellers. Today, Amazon exercises that power so thoroughly that its junk-fee revenues alone exceed the total revenues of Bank of America. Amazon's story – that these fees barely stretch to covering its costs – assumes a nearly inconceivable level of credulity in its audience. Regrettably – for the human race – there is a cohort of senior, highly respected economists who possess this degree of credulity and more.

Of course, there's an easy way to settle the argument: Amazon could just comply with SEC regs and break out its P&L for its e-commerce operation. I assure you, they're not hiding this data because they think you'll be pleasantly surprised when they do and they don't want to spoil the moment.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/03/01/managerial-discretion/#junk-fees

Image: Doc Searls (modified) https://www.flickr.com/photos/docsearls/4863121221/

CC BY 2.0 https://creativecommons.org/licenses/by/2.0/

[saywhat-politics]

The Securities and Exchange Commission on Tuesday filed a lawsuit against Elon Musk, alleging the X owner misled shareholders about his Twitter stock purchases in 2022.

The suit alleges Musk violated federal securities laws, enabling him to purchase shares of Twitter at artificially low prices before his $44 billion takeover of the social media site. Musk has called the SEC "just another weaponized institution doing political dirty work."

Musk started buying shares of Twitter, which he later renamed X, in early 2022. By mid-March, he'd acquired ownership of more than 5% of the company's outstanding stock, according to the SEC filing. He was required to file a report with the SEC disclosing his purchases, but the lawsuit alleges he failed to do so in a "timely" manner, allowing him to underpay other investors by at least $150 million for shares they bought during that period.

[justinspoliticalcorner]

Paul Blumenthal and Dave Jamieson at HuffPost:

In a Thursday ruling, the Supreme Court placed new restrictions on the ability of the Securities and Exchange Commission to charge a person or company with a violation and adjudicate it outside of federal court. The decision in SEC v. Jarkesy is the latest in a string of cases where the court has pared back the power of federal agencies. Limiting the ability of agencies to issue regulations ― and, now, to prosecute certain legal offenses ― is a hallmark of the court’s nearly four-year-old conservative supermajority.

[...] This case came about after the SEC charged conservative radio host George Jarkesy Jr. with securities fraud for alleged improper reporting regarding two investment funds that he ran. An internal SEC adjudication process found him guilty and imposed a fine of $300,000 in 2013. [...]

In a 6-3 decision written by Chief Justice John Roberts, the court ruled that when the agency sought civil penalties for alleged fraud, the defendant was entitled to a jury trial ― though it set aside other constitutional questions raised by Jarkesy’s case. “The SEC’s antifraud provisions replicate common law fraud, and it is well established that common law claims must be heard by a jury,” Roberts wrote.

The radical and out-of-touch majority on SCOTUS ruled 6-3 to limit the ability to punish corporate wrongdoing in the SEC v. Jarkesy case.

[nationallawreview]

Regulatory Update and Recent SEC Actions

REGULATORY UPDATES Recent SEC Leadership Changes On January 10, 2023, the Securities and Exchange Commission (the “SEC”) announced the appointment of Cristina Martin Firvida as director of the Office of the Investor Advocate, effective January 17, 2023. Ms. Martin Firvida was most recently the vice president of financial security and livable communities for government affairs at the American…

[pwrn51]

SEC Issues with The Mormon Church

  In this episode of Scam DamNation, host Lillian S. Cauldwell dives into the $32 billion investment scheme orchestrated by the Mormon Church, which concealed the funds in ‘shell’ companies for over two decades. The Securities and Exchange Commission (SEC) has fined the Church $5 million for failing to disclose its investment holdings properly. The Church, concerned about the potential negative…

[siliconpalms]

Ripple Secures Stay on SEC Judgment Payment: What It Means for Investors

In a significant turn of events for the cryptocurrency world, Ripple Labs has successfully secured a stay on the payment of a judgment imposed by the U.S. Securities and Exchange Commission (SEC). The SEC, which has been embroiled in a lengthy legal battle with Ripple, had sought to enforce penalties on the blockchain company, alleging that it conducted an unregistered securities offering through…

[tocitynews]

Trump Media Auditor Charged By U.S. Securities and Exchange Commission With ‘Massive Fraud,' Permanently Barred From Public Company Audits – Los Angeles California reporting

● The auditing firm for Trump Media and the auditor's owner were charged with "massive fraud" by the Securities and Exchange Commission for work that affected more than 1,500 SEC filings, the federal regulator announced.

● The auditor, BF Borgers CPA and its owner Benjamin Borgers have agreed to be permanently suspended from practicing as accountants before the SEC, and also agreed to pay a combined $14 million in civil penalties, the SEC said.

● The share price of Trump Media, which owns the Truth Social app, was down 9% shortly after trading began.

The auditing firm for Trump Media and the auditor's owner were charged Friday with "massive fraud" by the Securities and Exchange Commission for work that affected more than 1,500 SEC filings, the federal regulator announced.

▶︎ The auditor, BF Borgers CPA and its owner Benjamin Borgers have agreed to be permanently suspended from practicing as accountants before the SEC, and also agreed to pay a combined $14 million in civil penalties, with admitting or denying the allegations, the SEC said.

The agency, ▶︎ calling BF Borgers a "sham audit mill," said the company and its owner engaged in "deliberate and systemic failures to comply with Public Company Accounting Oversight Board … standards in its audits and reviews incorporated in more than 1,500 SEC filings from January 2021 through June 2023," according to a press release.

The respondents also were charged with falsely telling clients that the auditor's work would comply with PCAOB standards, fabricating audit documents to make it seem that the work did comply with those standards, and "falsely stating in audit reports included in more than 500 public company SEC filings that the firm's audits complied with PCAOB standards," the release said.

"As a result of their fraudulent conduct, they not only put investors and markets at risk by causing public companies to incorporate noncompliant audits and reviews into more than 1,500 filings with the Commission, but also undermined trust and confidence in our markets," Grewal said.

The bombshell SEC action raised questions about the accuracy of the financial information in thousands of reports that were issued by the companies Borgers audited, including Trump Media, whose majority shareholder is former President Donald Trump.

[dencyemily]

XRP ETF Plans in Limbo as BlackRock Steps Back Due to Regulatory Challenges

BlackRock, the global asset management giant, is reportedly adopting a cautious stance by refraining from supporting an XRP exchange-traded fund (ETF) in the current regulatory climate. Fox Business reporter Charles Gasparino shared the news on Twitter, revealing that BlackRock has no immediate plans for a Spot XRP ETF. The decision is closely linked to the prevailing uncertainty in the regulatory landscape, notably the ongoing legal clash between Ripple Labs, the force behind XRP, and the Securities and Exchange Commission (SEC).

Larry Fink, BlackRock's CEO, chose not to comment on the matter during a recent interview, emphasizing the regulatory uncertainty as a significant barrier. The crucial question revolves around whether XRP should be categorized as a security or a commodity. While Judge Torres' 2023 ruling provided some clarity by stating that XRP sales on exchanges do not constitute an "investment contract," the asset remains in a regulatory gray area.

BlackRock's hesitance to embrace an XRP ETF aligns with the company's risk-averse investment approach, particularly when dealing with assets entangled in legal disputes. The potential exposure to risks associated with launching an ETF for an asset amidst a lawsuit underscores the importance of regulatory clarity in BlackRock's decision-making process.

The resolution of Ripple's legal battle with the SEC holds the key to determining XRP's broader acceptance as an investment vehicle. A favorable outcome could pave the way for increased institutional adoption, potentially including the introduction of XRP ETFs. However, with the legal proceedings ongoing, a conclusive resolution may be months or even years away.

[johanbetter]

New Blog:

[gwgaccountant]

In my Advanced Financial Accounting class, we were taught about the SEC. Among its divisions and offices is the Office of the Chief Accountant, which mainly serves to advise the commissioners about accounting and auditing matters which are relevant to securities law. It also works with private groups like the FASB and AICPA.

But most importantly for Tumblr, there is indeed a specific person whose title is Chief Accountant. His name is Paul Munter. [citation] That is such an amusingly specific yet superficially grandiose title. Chief Accountant.

[ghostlytidalwavephantom]

The SEC would literally tell you it's not legal to have your own product if they could.

[justinspoliticalcorner]

Josh Kovensky at TPM:

Donald Trump is setting his sights on a critical target if he wins: independent federal agencies. There are dozens of these agencies, often known by their three- or four-letter acronyms. Some are obscure. Others, like the Federal Reserve, the Federal Communications Commission, the Securities and Exchange Commission, and the National Labor Relations Board, are well known. Unlike executive branch agencies, these entities tend to be bipartisan or apolitical, and report to Congress. The former President’s campaign trumpets a move to bring the key regulatory bodies “under presidential authority,” framing it as part of a broader assault on the “administrative state” and an attempt to “liberate” America from “Biden’s regulatory onslaught.” “These agencies do not get to become a fourth branch of government,” Trump’s campaign website declares.

The rhetoric portends the worst excesses of a potential Trump presidency: the corruption of the independent, evidence-based agencies, many of them products of the New Deal era and beloved by liberal America — and the abuse of their power for political ends. The plans align neatly with Trump’s promises to shift the apparatus of government towards “retribution,” teasing criminal cases against his political opponents and suggesting that he would be a “dictator on day one.” But as with many of Trump’s proclamations and plans, the reality of what he might attempt and of what he might ultimately accomplish remains far less clear. And for him, the fear that such plans instill in his opponents is part of the point. Experts told TPM that the bark of Trump’s plan for the independent agencies appears to exceed its potential bite. It’s far from clear how what Trump is proposing to require of the independent agencies would work in practice, and whether it would hold up in court.

[...] Of the many ideas tossed out, however, the independent agencies gambit appears to be among the more difficult to accomplish — and may, for now, be tossed in primarily to stoke outrage and fear in his opponents while throwing a bone to supporters of his deregulatory agenda. Designed by statute to have bipartisan leadership and limit the president’s ability to fire their heads, the agencies promulgate regulations that impact nearly every area of American life: They are charged, for example, with keeping pharmaceuticals safe, markets free of fraud, and competition roaring. They form the mainstay of a vision of government rooted in the progressive era in which, UPenn media professor Victor Pickard told TPM, the idea was to insulate the agencies from any one concentration of power. “It’s a way to create a countervailing force in society that forces these industries and sectors to serve the public interest,” he said.

Key to their operation is their independence, largely guaranteed by the provision that the president cannot fire the agencies’ leaders except for a few enumerated reasons. Some of the independent agencies have other forms of autonomy, too. Lawmakers, for example, exempted most of the independent financial regulatory agencies, like the Securities and Exchange Commission, Federal Deposit Insurance Corporation, the Comptroller of the Currency, and others, from having to submit legislative recommendations to the White House before sending them on to Congress if the views expressed are those of the agency and “do not necessarily represent the views of the President.” That independence would collide with what Trump is threatening: to place any new regulations under review by the Office of Management and Budget, the White House entity tasked with implementing the President’s policies. The push is largely rooted in the conservative-backed “unitary executive theory,” which holds that the president wields power over the entire executive branch — even if Congress has enacted statutes limiting his authority in certain areas.

Donald Trump, if God forbid he gets a 2nd term, will use his "Presidency" to erode the independence of federal agencies under the "unitary executive theory" doctrine as part of his dictatorial retribution agenda.

[faultfalha]

In a dissent that Labyrinthine in its construction, SEC Commissioner Peirce argued against the proposed rules on Cybersecurity Disclosure. Claiming that the measures would only serve to confuse and mislead investors, Peirce's dissent was a maze of Borgesian proportions. While the majority of the Commission felt that the rules were a necessary step in ensuring that investors were kept aware of the cyber risks faced by public companies, Peirce felt that they would do more harm than good.

[onenettvchannel]

SEC-Philippines halts to register the Online Lending Platforms

MAKATI, MANILA -- The Securities and Exchange Commission in the Philippines (SEC-PH) has put a halt to online lending platforms that have newly registered due to a series of massive complaints regarding loan harassments and debt shaming from a lending institution. This halt was put into effect indefinitely by last Tuesday morning (June 20th, 2023 -- Makati local time).

In a report from 24 Oras of GMA News, the newly registered lenders have all stopped due to delinquent borrowers failing to repay or reimburse themselves to the lending company online instead of through traditional banking institutions in this generation. Loan sharks and debts are prevalent throughout the Philippines, as many loans are unsecured and lack proper regulation from the SEC-PH.

There are also data breaches that can occur when guarantors or co-makers put themselves at risk. As ASec. Mico Clavano said in a press briefing: "Contacting the debtor's list, including those who were guarantors or co-makers, is already a violation. If they are no longer on the guarantor's list, it will also constitute a violation of FCPE."

Online lenders in the Philippines may be facing multiple charges with a fine of PHP2M each (roughly U$D36k) and can be sentenced to up to 5 years in prison. Due to the persistent issues and a lack of regulation with loan sharks complaints, as well as debt shaming, SEC-PH will no longer accepting new lending registrants. This serves as a reminder that the financial industry must consider proper regulation and ethical practices for the safety of all monetary parties involved.

PHOTO COURTESY: Lourdes Escaros of DZXL-AM 558khz's Radyo Trabaho: RMN Manila via FB Photo BACKGROUND PROVIDED BY: Tegna

*https://www.gmanetwork.com/news/topstories/nation/872849/story/ [Referenced News Article via GMA News] *https://www.facebook.com/100045347622025/posts/789288365926077 [Referenced FB News Article via DZXL-AM 558khz's Radyo Trabaho: RMN Manila] *https://www.youtube.com/watch?v=LgOJaocDw3Y [Referenced News Item via GMA Integrated News] and *https://news.abs-cbn.com/news/06/20/23/6-companies-32-individuals-face-abusive-collection-raps [Referenced News Article via ABS-CBN News]

-- OneNETnews Team