JPMorgan Chase is one of the oldest and most respected banks in the United States. However, during the summer of 2012 Chase announced trading losses and bad investment decisions that resulted in a loss of approximately $5.8 billion. Not only did they report this substantial loss they admitted to falsifying their first quarter reports, were they where attempting to conceal the massive loss. Three months prior to this event JPMorgan Chase was viewed as the top American bank. The first question to be discussed in this paper will be what actions can Administrative Agencies such the Securities and Exchange Commission (SEC) and or the Commodities Futures Trading Commission (CFTC) take to prevent high risk gambles in securities/banking which are one of the main cornerstones of this country’s economy.
According to the SEC, their “main mission is to protect investors, to maintain fair, orderly, efficient markets and facilitate capital formation” (www.sec.gov) One of the ways that SEC does this is by requiring public companies to disclose meaningful financial information to the public to help the public decide which companies will be the best to invest in. In response to the JPMorgan Chase revelation SEC Chairperson Mary Shapiro told the Senate Banking Committee that “her agency’s investigation is limited, because the trades happened in divisions of the banking giant that are not subject to SEC regulation”. She also stated that “we (the SEC) did not have any direct oversight or knowledge of the transactions”. In addition to the above statements Ms. Shapiro stated that “the SEC’s investigation would target the appropriateness and completeness of the entity’s (JPMorgan Chase) financial reporting and other public disclosures” (Liberto, 2012). Next I will discuss the Commodity and Futures Trading Commission’s (CFTC) main purpose as well as some of its other responsibilities.
The Commodity and Futures Trading Commission’s (CFTC) main purpose is to regulate commodity futures and options markets. Its goals include the promotion of competitive and efficient futures markets and the protection of investors against manipulation, abusive trade practices and fraud (www.sec.gov). Gary Gensler, chairman of the CFTC told the Senate Banking Committee that “he couldn’t provide specific information about the investigation, but he did say that he first learned about the questionable trades from press reports. He also stated that the CFTC does not have regulators on the ground to look at bank trades yet. Chairman Gensler also told the Banking Committee that currently, the American public is not protected in that way (e.g. having regulators looking at the trades as they happen) (Liberto, 2012). Regulators have been struggling for months trying to figure out who should be included in a new crackdown on swaps and derivatives.
Swaps and derivatives are complex financial bets derived from other financial products. Gensler made it clear that once the Dodd-Frank Wall Street reforms are fully implemented it will be illegal for JPMorgan Chase to make the kinds of trades that resulted in the $5.8 billion loss. He also clarified that Dodd-Frank allows for trades made to hedge against “individual and aggregate positions” – not to guard against future economic losses, as the JPMorgan trades have been described (Liberto, 2012). Next I will cover the elements of a valid contract, as well as discuss how consumers and banks each have a duty of god faith and fair dealing in the banking relationship “A contract is a legally enforceable promise or set of promises. If the promise is broken, the person to whom the promise was mad – the promise – has certain legal rights against the person who made the promise – the promisor” (Bagley, 2012). There are 4 basic elements to a contract and they are: 1) offer and acceptance, 2) consideration, 3) both parties must have the capacity to enter into a contract, 4) the contract must have a legal purpose.
“The offer is a manifestation of willingness to enter into a bargain that justifies another person in understanding that his or her assent will conclude the bargain” (Bagley, 2012). Acceptance indicates the receiving person’s willingness to enter into the agreement proposed in the offer (Bagley, 2012). Consideration is something of value that is provided by both parties (Bagley, 2012). Lastly, a valid contract requires that both parties have the capacity to enter into the agreement (Bagley, 2012. Next I will discuss the duty of god faith and fair dealing in the consumer/banking relationship. Prior to 1929, Massachusetts expressly provided that good faith was applicable to all contracts. In 1929, the Supreme Judicial Court, in addressing a breach of contract claim under an option agreement for the purchase of stock in an oil-producing leasehold, expressly stated, for the first time, that there was an obligation of good faith and fair dealing in all contracts.
The court emphasized that a business contract “is to be interpreted as a business transaction entered into by practical men to accomplish an honest and straightforward end”. Beginning in 1936, the duty of good faith was defined as a covenant “that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract”. This “fruits” articulation of the duty of good faith remains intact today and is regularly quoted as the operative standard (Weigand, 2013). The next topic is to compare and contrast the differences between intentional and negligent tort actions. There are several types of intentional torts and they are: torts against persons, intentional torts that involve personal property, and intentional torts with regard to economic interest and business relationships.
There are also several types of negligent torts. Two of which are: duty to rescue and duty to invitees. Intentional torts against consist of battery, assault, false imprisonment, intentional infliction of emotional distress, defamation, and invasion of privacy. The key word in all of these intentional torts is intent or purpose to cause harm to another. Intentional torts against property include trespass of land, nuisance, conversion, and trespass to personal property. Intent and purpose are also why these are considered intentional. The key difference between these two torts is that one is against people and the other is a misuse of another’s property. An individual has to purpose commit these acts. Negligent torts consist of different types of duties. Duty is when a person with a legal duty to another is required to act, reasonably, under the circumstances to avoid harming the other person.
Some examples of this are duty to rescue and duty to invitees. Duties are basically an obligation that one person is legally bound to perform for another. In comparing the two types of torts we find that intentional torts are torts that people commit against other people. Negligence also others but it is a failure to perform that causes the injury or unjust action. An example of this comparison is the intentional tort of battery and failure to perform the duty to rescue. When I commit battery I cause harm to another, when I fail to perform the duty to rescue the other individual also suffers harm but it is because I failed to act. In contrast intentional torts are actions committed against another and negligence is when I fail to take action on another. Next I will discuss the tort action of “interference with contractual relations and participating in a breach of fiduciary duty”. Interference with contractual relations protects the right to enjoy the benefits of legally binding agreements. It provides a remedy when the defendant intentionally induces another person to breach a contract with a plaintiff. Interference with contractual relations requires intent to interfere.
The existence of a contract is the difference between tortuous interference and the more difficult to prove tortuous interference with prospective contractual relations. The most famous case of tortuous interference was Pennzoil v Texaco which occurred in 1983 (Bagley, 2013). Similarly a defendant who knowingly participates in, or induces a breach of fiduciary duty by another commits the tort of participation in a breach of fiduciary duty. Lastly, I believe that if god grounds exist for the interference, such as exists in the JPMorgan Chase case then I should be able to prevail in the tort action. Lastly, I will cover how banks protect the software that allows for online transactions. Most banks protect the customers who participate in online transactions through what is called the Online Banking Guarantee. This protection covers your banking and personal information. It is the banks responsibility to ensure the customers protection while the customer engages in online transactions.
In most if not all case the customer is 100% covered in the case of theft of funds. One of main defenses for software protection is through complex encryption systems. Another deterrent is simply the vast amount of software that is available for online banking. So between the wide array of software and encryption systems online banking transaction are relatively safe. In this paper I have covered several topics and they are as follows: What actions Administrative Agency’s take to be effective in preventing high-risk gambles in securities and banking, the elements of a valid contract and the duty of good faith and fair dealing between banks and consumers, comparing and contrasting intentional and negligent torts, the tort action of “Interference with contractual relations and participating in a breach of fiduciary duty, and lastly, how banks protect the software that they use for online banking.
Bagley, C. (2013). Managers and the Legal Environment: Strategies for the 21st Century, 7th Edition. Mason: South-Western, Cengage Learning. Liberto, J. (2012) CNN Money. (n.d.). Retrieved March 1, 2013, from http://money.cnn.com/2012/05/22/news/economy/jp-morgan-senate/index.htm U.S. Commodity Futures Trading Commission. (n.d.). Retrieved March 1, 2013, from U.S. Commodity Futures Trading Commission: http://www.cftc.gov/index.htm U.S. Securities and Exchange Commission. (n.d.). Retrieved March 1, 2013, from U.S. Securities and Exchange Commission: http://www.sec.gov/ Weigand, T. (2013) . The Duty of Good Faith and Fair Dealng in Commercial Contracts in Massachusetts, Massachusetts Law Review. Retrieved 10Sep13