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Table of Contents
I. Introduction.................. 514
II. Subsection 21F in the Scheme of Securities Laws................... 520
A. The Language of Subsection 21F................... 520
B. Anti-Retaliation Protections Under Sarbanes-Oxley................... 521
C. The Structure of Dodd-Frank's and SOX's Anti-Retaliation Protections Vary Significantly.................. .523
III. Development of the Circuit Split................... 528
A. The SEC's Interpretive Rule................... 528
B. The Fifth Circuit Takes on the SEC: The Asadi Case................... 530
C. Criticism of the Asadi Decision: Setting the Stage for the Second Circuit................... 535
D. The Second Circuit Weighs in: The Berman Case................... 537
E. The Ninth Circuit's View: The Somers Case................... 542
F.The Chevron Two-Step.544
IV. The Path Forward.547
A. Dodd-Frank is Clear: Employing Chevron to Resolve the Split . 547
B. What Went Wrong? Explaining Berman's Reasoning.550
C. Policy Considerations: What if the Correct Legal Answer is Bad Policy?.555
V. Conclusion.559
VI. Postscript: Chevron in the Post-Somers Landscape.560
I.Introduction
In 2008, the United States financial system was brought to its knees, and many now regard the 2008 financial crisis as one of the worst, if not the worst, financial and economic crises in global history.1 In September of that year, the federal government, in an attempt to stabilize the U.S. housing market, seized control of Fannie Mae and Freddie Mac.2 At the time, Fannie Mae and Freddie Mac owned or guaranteed approximately half of the nation's twelve trillion dollar mortgage market,3 and-according to then-Treasury Secretary Henry Paulson-"a failure of either of them would cause great turmoil in our financial markets here at home and around the globe."4 In addition, Lehman Brothers, one of the largest and most prestigious financial firms in the world, filed for bankruptcy protection.5 Further, financial services and wealth management giant Merrill Lynch agreed to sell itself to Bank of America for a fraction of its overall value.6 As if these events were not enough to indicate an economic throttling, the U.S. government agreed to bail out insurance mammoth AIG at a price tag of $85 billion.7 Ultimately, the economic tailspin prompted the government to enact the Emergency Economic Stabilization Act of 2008,8 a $700 billion bailout of the financial services industry.9
With a purpose "[t]o promote the financial stability of the United States by improving accountability and transparency in the financial system, to...