Access to information is crucial for investors and traders. Even a small advantage in timing can make a big difference. An enduring theme is access for the "little guy" versus big-time traders.
An interesting chapter in that story is playing out with little attention from the financial media. The story is worth our attention.
The US Court of Appeals for the Second Circuit just heard an appeal from Theflyonthewall.com. The Fly picks up research reports from the big name firms and distributes the results to their clients before the market actually opens. This interferes with the business model of brokers at the big name firms, who want to use the research as a basis for recommending client trades. If everyone already knows the story, what advantage is there from the expensive research?
Historical Background
In a practical sense, this issue was settled fifteen years ago through the pioneering efforts of Maria Bartiromo. Starting work each day long before most people awakened, she cultivated a network of sources that revealed the big "calls" from the major firms. As the first person to report daily from the floor of the New York Stock Exchange, she made a major difference in what information was available to the average investor.
She endured a lot of hazing from those who objected to her presence. I remember it all very well and I would like to share it with those who were not around for this part of history. Please enjoy this video, and also note that she sees "breaking open the research call" as the biggest accomplishment.
Maria Bartiromo has moved on to become a top-notch interviewer, getting the very best subjects. She also has the knack of bringing out their story, instead of making herself more important than the subject matter. This is easier to do when you are confident of your own accomplishments.
The Legal Issue
On one side of the current issue we have the big-name firms. Why are they picking on The Fly and not going after CNBC, The New York Times, Briefing.com, or other firms? Here is the explanation from their attorney:
Attorney Bruce Rich told a three-judge panel of the 2nd U.S. Circuit Court of Appeals that several financial services firms sued Theflyonthewall.com because the company made a business of widely releasing their expensive-to-produce research findings before their clients could act on the information, weakening the value of the reports.
He said the firms, including Barclays Capital Inc., Bank of America Corp.'s Merrill Lynch & Co. and Morgan Stanley Inc., did not see a similar threat to their business from news outlets such as CNBC.
"The difference is that Fly does it for a living," he said. "CNBC delivers a broad spectrum of news reporting."
This makes no sense. It suggests that publication may or may not be legal depending upon the business model of the publisher. Really? Why not look at the impact? These sources all have more reach than The Fly.
The Sides
On one side of the issue -- agreeing with The Fly -- we have Google and Twitter. On the other side we have the rest of mainstream media, supporting a concept of "hot news." Here is a simple explanation:
Attorney Andrew Deutsch, who represented a dozen media outlets including The Associated Press at the hearing, said Sullivan had misinterpreted the law by insisting there was not more protection for the original distributors of information.
"The position taken by Google is absolutely wrong," he said.
The media outlets were not asking the court to rule one way or the other. They were asking the judges to leave intact the legal standards that currently govern when "hot news" has been misappropriated. The "hot news" doctrine was established in a 1918 Supreme Court case involving the AP. The principle holds that while facts cannot be copyrighted, media organizations can sue when competitors copy time-sensitive news.
A Final Take
The main advantage of a research report comes from the direction of the move (downgrade or upgrade) and who is saying it. I love reading the reports for detailed analysis and long-term strategies, but I am among the few. The shelf life of these calls is very short. Most market pundits know the direction of the major calls, but they could not utter two coherent sentences about the content. The summary is everything.
Maria had it right and we all have something at stake in the outcome. It is a developing story and one worth watching.
Hat tip to Talking Biz News, one of our featured sites, and a great way to follow business journalism.
