Appeals Court Backs TheStreet.com in NYSE Disclosure Case

A federal appeals court has upheld TheStreet.com's right to access testimony that the New York Stock Exchange has battled to keep secret.

Thursday's decision opens the door for the public to hear top NYSE officials' sworn statements about illegal trading on the exchange's floor and interactions between the NYSE and the Securities and Exchange Commission. The depositions arose out of litigation in which a former NYSE floor broker alleged that the exchange condoned the practice of "flipping," or quick intraday trades in which brokers shared the profits.

In 1998, 10 traders and brokerage officials were arrested and charged with securities law violations for flipping, which the SEC says is illegal when traders take a share of the profits. Many of the traders pleaded guilty, and several served prison terms, and in 1999 the SEC and the NYSE agreed to a settlement that was sharply critical of the exchange's oversight of trading on its floor.

The depositions at issue in Thursday's decision -- from NYSE President William Johnston and Edward Kwalwasser, the group vice president in charge of the NYSE's regulatory group -- were taken in a civil suit that the SEC filed against one alleged flipper, John D'Alessio. As part of his defense in that case, subsequently settled, D'Alessio said the NYSE encouraged the practice of flipping.

The trial judge in that case, U.S. District Court Judge Jed Rakoff, originally ruled in January to keep portions of those depositions secret. But at the urging of TheStreet.com, he reversed himself in April, saying that the desire of the NYSE and its officials for privacy was outweighed by the public's interest in the relationship between a governmental agency such as the SEC and a "quasigovernmental agency" such as the NYSE.

12/14/99	Former NYSE floor broker sues Big Board, claiming officials knew of illegal trading activities.
6/19/00	Court fight over trading scandal heats up
7/13/00	Ethics behind Fried Frank Harris Shriver & Jacobson's hiring of former SEC lawyer Carmen Lawrence questioned.
7/24/00	Federal judge in Manhattan upholds NYSE's immunity to certain legal challenges, says he will dismiss former broker's lawsuit.
11/2/00	Judge calls on NYSE Chairman Richard Grasso and President William Johnston to testify.
12/18/00	In depositions Grasso says he knew nothing of illegal trading activity.
2/16/01	New questions from the SEC and the U.S. attorney's office in Manhattan on how much NYSE officials knew of illegal trading.
2/26/01	Michigan Rep. John Dingell asks SEC to root why it took Exchange officials so long to turn over important documents on trading scandal.
3/14/01	TheStreet.com motions for top exchange officials' testimony in floor broker case to be unsealed.
3/21/01	Former floor trader's lawyer asks that NYSE be sanctioned for tardiness in turning over documents.
4/10/01	In response to suit brought by TheStreet.com, judge orders unsealing of testimony.
4/16/01	Judge orders that testimony remain sealed pending NYSE's appeal of his April 10 order.
4/26/01	Exchange officials told to take the stand in floor broker case.
5/1/01	Day before floor broker suit set to go to trial, case is settled.
5/8/01	Exchange's lead lawyer on broker case, Fried Frank Harris Shriver & Jacobson's Harvey Pitt, nominated by President Bush to head SEC.
6/22/01	NYSE and TheStreet.com argue case over testimony before three-judge panel of the U.S. Court of Appeals
11/29/01	Appeals court affirms April 10 order to unseal testimony, ruling that Rakoff's decision was "not an abuse of the Court's allowable discretion."

"We're pleased that the Court of Appeals affirmed Judge Rakoff's determination that the public, through the media, has a relevant interest in that testimony," says Jordan Goldstein, general counsel of TheStreet.com Inc. (TSCM Quote), which publishes this Web site. "And we are very interested in finding out what, if anything, the NYSE was so anxious to keep secret."

Robert Raskopf, the partner at White & Case who argued the appeal for TheStreet.com, says the testimony at issue could be unsealed within weeks, though the depositions might remain secret if the NYSE were to apply for a rehearing by the full panel of the second circuit.

A spokesman for the NYSE declined to comment.

Raskopf termed the decision "a vindication of the trial court's determination that constitutional and common-law rights of public access can be weighed in balance, and can be employed to reverse previously made decisions favoring secrecy."