Twin Rivers Paper Company LLC, Et Al . v. Securities and Exchange Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2019 Decided August 16, 2019
No. 18-1213
TWIN RIVERS PAPER COMPANY LLC, ET AL .,
PETITIONERS
v.
SECURITIES AND EXCHANGE COMMISSION ,
RESPONDENT
On Petition for Review of an Order of
the Securities & Exchange Commission
Jane C. Luxton argued the cause and filed the briefs for
petitioners.
Alan W. Bakowski was on the brief for amici curiae Public
and Private Companies, Nonprofit Organizations, and Labor
Union in support of petitioners.
Tracey A. Hardin, Assistant General Counsel, Securities
and Exchange Commission, argued the cause for respondent.
With her on the brief were Michael A. Conley, Solicitor, and
Daniel E. Matro, Senior Counsel.
Eugene Scalia, Jacob T. Spencer, and Paul S. Stevens were
on the brief for amici curiae Investment Company Institute and
Independent Directors Council in support of respondent.

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Before: HENDERSON, ROGERS , and KATSAS , Circuit
Judges.
KATSAS , Circuit Judge: In 2018, the Securities and
Exchange Commission adopted a rule allowing investment
companies to post shareholder reports online and mail paper
copies to shareholders upon request. The petitioners—a
consumer-advocacy organization and representatives of the
paper industry—argue that the SEC did not adequately
consider the interests of shareholders who prefer reports in
paper form. Because the consumer organization lacks
constitutional standing and the paper-industry representatives
assert interests beyond those protected or regulated by the
securities laws, we deny the petition for review.
I
The Securities and Exchange Commission requires
investment companies, such as mutual funds, to transmit
periodic shareholder reports to their investors. See, e.g., 17
C.F.R. § 270.30e-1. Previously, the SEC required the
companies to mail paper copies unless an investor affirmatively
selected electronic delivery. In 2018, the Commission adopted
Rule 30e-3, which allows companies to change their default
method of transmission. See Optional Internet Availability of
Investment Company Shareholder Reports, 83 Fed. Reg.
29,158 (June 22, 2018) (Shareholder Reports). The rule now
permits investment funds to post shareholder reports online and
notify investors of their availability. See 17 C.F.R. § 270.30e-
3(b)–(d). Investment companies must mail shareholder reports
only to investors who expressly request a paper copy. See id.
§ 270.30e-3(e).

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The SEC gave two principal rationales for this change.
First, it projected that the rule would save investment funds
about $140 million annually. Shareholder Reports, 83 Fed.
Reg. at 29,187. It explained that because printing costs are paid
from fund assets, these savings ordinarily will be “passed along
to investors.” Id. at 29,183. Second, the Commission
concluded that “many investors would prefer enhanced
availability of fund information on the internet.” Id. at 29,165.
It explained that “an investor looking for a fund’s annual report
is most likely to seek it out on the fund’s website, rather than
request it by mail or phone.” Id. at 29,165 n.96. Moreover,
internet usage “has continued to increase rapidly” over the last
decade, including among “households owning mutual funds.”
Id. at 29,165 n.97. In short, the SEC expected the rule to match
shareholder preferences and save them money.
The Commission recognized that some investors may still
prefer paper delivery of shareholder reports. See, e.g.,
Shareholder Reports, 83 Fed. Reg. at 29,165–66. Several
features of Rule 30e-3 accommodate that preference. The rule
prescribes an extended transition period: investment
companies must continue to deliver paper copies of the reports
until at least January 1, 2021, and they must include with each
mailing a statement advising shareholders of the coming
change in the default mode of transmission. See 17 C.F.R.
§ 270.30e-3(i). Then, after making the switch, a fund must
mail a paper notice to all shareholders for each report that it
posts online. See id. § 270.30e-3(c). The notice must include
a toll-free telephone number that investors may call to request
a paper copy of the individual report or all future reports. See
id. § 270.30e-3(c)(1)(i)–(v). The notice also may specify other
ways to request paper reports, such as by e-mail or online. See
id. § 270.30e-3(c)(2). Finally, once an investor requests a
paper copy, the fund must mail the report within three business
days at no cost to the investor. Id. § 270.30e-3(e).

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This case presents two sets of petitioners. Consumer
Action is a non-profit membership organization that represents
certain consumer interests. Twin Rivers Paper Company and
three industry organizations—which we call the Industry
Petitioners—represent the interests of the American paper
industry. Together, the petitioners argue that the SEC adopted
Rule 30e-3 in violation of three securities laws and the
Administrative Procedure Act. Among other grounds, they
contend that the Commission did not adequately protect
shareholders who prefer paper delivery.
II
We begin with the question whether Consumer Action has
constitutional standing to challenge Rule 30e-3. The
Constitution limits the “judicial Power of the United States” to
“Cases” or “Controversies,” U.S. Const. art. III, §§ 1–2, and
the requirement of standing is “rooted in the traditional
understanding of a case or controversy,” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). To establish standing under
Article III, a party “must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Id.
Consumer Action claims standing on behalf of its
members. To establish representational standing, an
organization must prove, among other things, that its members
would “have standing to sue in their own right.” Hunt v. Wash.
State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). In
turn, this requires proof that at least one member suffered an
injury in fact—“an invasion of a legally protected interest
which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992) (cleaned up). “A ‘concrete’

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injury must be ‘de facto’; that is, it must actually exist.”
Spokeo, 136 S. Ct. at 1548. Moreover, a party cannot rest on
“abstract,” id., or “conclusory” assertions of injury, Block v.
Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986), but must point
to “specific, concrete facts demonstrating … harm,” Warth v.
Seldin, 422 U.S. 490, 508 (1975).
In Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002), we
explained the procedures for proving standing when a
petitioner seeks review of agency action directly in a court of
appeals. “The party invoking federal jurisdiction bears the
burden of establishing” standing, which “must be supported in
the same way as any other matter on which the [party] bears
the burden of proof.” Defs. of Wildlife, 504 U.S. at 561. So a
petitioner “must either identify in [the administrative] record
evidence sufficient to support its standing to seek review or, if
there is none because standing was not an issue before the
agency, submit additional evidence to the court of appeals.”
Sierra Club, 292 F.3d at 899. Moreover, because “full
development of the arguments for and against standing requires
the same tried and true adversarial procedure we use for the
presentation of arguments on the merits,” the petitioner must
make this evidentiary presentation no later than when it files
the opening brief. Id. at 900. We have reiterated these
principles many times. See, e.g., Del. Dep’t of Nat. Res. &
Envt’l Control v. EPA, 785 F.3d 1, 8 (D.C. Cir. 2015); Texas v.
EPA, 726 F.3d 180, 198 (D.C. Cir. 2013); Int’l Bhd. of
Teamsters v. TSA, 429 F.3d 1130, 1134–36 (D.C. Cir. 2005).
And we have codified them in our Circuit Rule 28(a)(7), which
provides that, “[i]n cases involving direct review in this court
of administrative actions, the brief of the appellant or petitioner
must set forth the basis for the claim of standing,” and that,
“[w]hen the appellant’s or petitioner’s standing is not apparent
from the administrative record, the brief must include
arguments and evidence establishing the claim of standing.”

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Consumer Action’s initial submissions fail to show that its
members suffered or will suffer an injury in fact. To establish
such an injury, an organization must provide “individual
affidavits” from “members who have suffered the requisite
harm.” Summers v. Earth Island Inst., 555 U.S. 488, 499
(2009). It is “not enough to aver that unidentified members
have been injured.” Chamber of Commerce v. EPA, 642 F.3d
192, 199 (D.C. Cir. 2011). Despite these settled rules,
Consumer Action failed to submit any member affidavits with
its opening brief, and its own affidavit fails to identify any
individual members. Moreover, the affidavit barely describes
even the general contours of its membership. The affidavit
states that “members, followers and supporters include retirees
and retirement savers,” as well as “representatives of a national
network of nearly 7,000 community-based organizations that
serve seniors, minority Americans, disabled Americans, and
individuals living in rural areas.” Pet. Add. at 433. Left
unclear is whether the members are retirees and retirement
savers, members of other unnamed organizations, or perhaps
neither. To be sure, the opening brief states that Consumer
Action’s “members” include seniors, Americans who lack
internet access, and others. Pet. Br. at 17. But the brief still
fails to identify individual members, as required by Earth
Island Institute. And in any event, a petitioner must support its
standing “by affidavit or other evidence,” Sierra Club, 292
F.3d at 899 (quotation marks omitted), and briefs “are not
evidence,” id. at 901. Finally, the affidavit states only that
unspecified members or others “prefer a choice to have paper
communications” and wish to avoid the “burdens imposed by
SEC’s Rule 30e-3.” Pet. Add. at 433. The former statement is
puzzling because Rule 30e-3 preserves investors’ ability to
choose between electronic and paper communications. As for
the latter statement, “general allegations of injury are
insufficient,” Conservation Force, Inc. v. Jewell, 733 F.3d
1200, 1207 (D.C. Cir. 2013), so a reference to unspecified

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“burdens” is not proof of “direct, real, and palpable” injury,
Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C.
Cir. 2015) (quotation marks omitted).
Likewise, nothing in the administrative record shows a
concrete injury to identified members of Consumer Action.
The organization notes that, in various comments made during
the rulemaking, it warned that Rule 30e-3 would decrease
readership of shareholder reports, investor access to
information, and transparency. But none of the comments tied
these harms to any identified members. Consumer Action
further notes that the SEC acknowledged its comments that the
rule would disadvantage seniors and minorities. See
Shareholder Reports, 83 Fed. Reg. at 29,162 n.51. But again,
neither the comments themselves, nor the SEC’s response,
addressed whether the harms alleged would befall identified
members of Consumer Action. This should hardly be
surprising: Article III standing requirements do not apply to
agency rulemaking, so Consumer Action would have had no
occasion to argue, and the SEC would have had no occasion to
decide, whether the proposed rule would inflict an injury on
identified members of the organization. And because
Consumer Action was not itself an object of the rulemaking, its
standing would not likely have been apparent. See Sierra Club,
292 F.3d at 899–900.
Consumer Action submitted affidavits from individual
members with its reply brief, but they came too late. We may
excuse forfeitures of non-jurisdictional preservation
requirements for “good cause.” Sierra Club, 292 F.3d at 900.
In the context of Sierra Club and Circuit Rule 28(a)(7), we
have found such good cause in two circumstances: where “the
parties reasonably, but mistakenly, believed that the initial
filings before the court had sufficiently demonstrated
standing,” Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588,

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599 (D.C. Cir. 2015) (quoting Ams. for Safe Access v. DEA,
706 F.3d 438, 443 (D.C. Cir. 2013)); and where the parties
“reasonably assumed that [their] standing was self-evident”
from the administrative record, Am. Library Ass’n v. FCC, 401
F.3d 489, 494 (D.C. Cir. 2005); see Del. Dep’t of Nat. Res. &
Envt’l Control, 785 F.3d at 8; Town of Barnstable v. FAA, 740
F.3d 681, 691 (D.C. Cir. 2014). In this case, Consumer Action
could not reasonably have believed that its barebones affidavit,
vaguely describing the preferences and burdens of unnamed
members and others, sufficed to prove its representational
standing. Nor could it reasonably have believed that its
standing was self-evident from the rulemaking record.
Consumer Action suggests that Communities Against
Runway Expansion, Inc. v. FAA, 355 F.3d 678 (D.C. Cir. 2004)
(CARE), allows a petitioner to prove standing for the first time
in a reply brief, so long as standing is obvious. We do not read
CARE that broadly. There, an organization challenged the
approval of a runway expansion at Logan Airport. With its
opening brief, the organization submitted affidavits from
members who lived nearby, but the affidavits lacked “facts
sufficient to support a finding that the declarants would be
exposed to a concrete and particularized ‘injury in fact’ as a
result of the contested project.” Id. at 684. With its reply brief,
the organization submitted additional affidavits from other
members who declared that they would experience “increased
noise from aircraft operations at Logan.” Id. CARE thus
involved new factual material tendered to shore up deficient
individual affidavits submitted with the opening brief. In that
circumstance, we considered the reply affidavits—which, we
stressed, made the organization’s standing “patently obvious”
and “irrefutable.” Id. at 685.
This case differs from CARE in three critical respects.
First, Consumer Action made a far less substantial showing of

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standing in its initial submissions. In CARE, the organization
tendered affidavits from members who lived near Logan
Airport and alleged injury in at least general terms. See 355
F.3d at 684. So, there was at least arguably good cause to
excuse the forfeiture. See Ctr. for Sustainable Econ., 779 F.3d
at 599. Here, in contrast, Consumer Action tendered no
member affidavits, identified no specific members, and failed
to describe its membership in even general terms. This cannot
amount to good cause.
Second, the reply affidavits in this case raise an entirely
new theory of standing. In CARE, the injury pinned down in
the reply affidavits—increased airport noise—was hardly
surprising in light of initial submissions from individuals living
near an airport and complaining about a runway expansion.
Here, in contrast, the opening submissions give no sense of the
theory of injury introduced in reply. Consumer Action’s
opening affidavit speaks vaguely of “burdens,” and its opening
brief elaborates that Rule 30e-3 will harm members “with
respect to their ability not only to access but also to understand
critical shareholder information.” Pet. Br. at 17. Yet, in the
reply submissions, some affiants stress ideological opposition
to Rule 30e-3, see Pet. Reply Add. at 50 (“I do not believe I
should have to take these extra steps to continue receiving
paper copies of my information”); id. at 59 (“I do not like the
idea of fund managers relying on ‘implied consent’ to stop
sending paper copies”), while others do not wish to “spend
[their] valuable time” to make a toll-free telephone call to
receive paper copies of shareholder reports, id. at 55–56, 58.
No member alleges impeded access to or understanding of
shareholder reports. In short, the original suggestion of
impaired access and understanding has morphed into an
objection about having to make a free phone call.

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We cannot read CARE to permit reply affidavits that
propose a new theory of injury—whether obvious or not.
Because standing must be shown in the same way as other
issues, Defs. of Wildlife, 504 U.S. at 561, we have held that “the
ordinary rules of forfeiture apply to standing,” Gov’t of
Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019).
Those rules include the basic precept that arguments generally
are forfeited if raised for the first time in reply. See, e.g.,
United States v. Van Smith, 530 F.3d 967, 973 (D.C. Cir. 2008).
Likewise, an argument is forfeited if the petitioners “were
obscure on the issue in their opening brief and only warmed to
the issue in their reply brief.” Novak v. Capital Mgmt. & Dev.
Corp., 570 F.3d 305, 316 n.5 (D.C. Cir. 2009) (cleaned up). At
best, that is what Consumer Action has done here, for its
opening submissions did not fairly raise the theory of injury
that it now seeks to press. We recognize that Americans for
Safe Access considered a theory of injury first raised in a
supplemental brief ordered by this Court. See 706 F.3d at 443–
45. But we reasoned that the agency, by not arguing in its own
later submission that the theory was raised too late, forfeited its
forfeiture argument. Id. at 444. Here, in contrast, the SEC had
no comparable opportunity to respond to the theory of injury
first raised by Consumer Action in its reply. And in any event,
it has stressed all along that “[a] petitioner is generally required
to meet its burden to establish standing in its opening brief.”
Resp. Br. at 22.
Third, the reply affidavits in this case hardly make
standing patently obvious. The affiants stating ideological
opposition to Rule 30e-3 plainly lack standing, for an “interest
in the proper administration of the laws” is quintessentially
“nonconcrete.” Earth Island Inst., 555 U.S. at 497 (quotation
marks omitted). The affiants complaining of lost time present
a closer question. On the one hand, even a small financial
injury confers Article III standing. See, e.g., Carpenters Indus.

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Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017). On the other
hand, at least where intangible injuries are at issue, either the
injury must have “a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit in
English or American courts,” or a statute must make the injury
“legally cognizable.” Spokeo, 136 S. Ct. at 1549 (quotation
marks omitted). Consumer Action cites an out-of-circuit
decision predicating Article III standing on “the occupation of
[a] fax machine for … one minute.” Palm Beach Golf Ctr.–
Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251
(11th Cir. 2015) (parentheses omitted). But Palm Beach Golf
arose under the Telephone Consumer Protection Act, which
created statutory protection against unwanted phone or fax
solicitations. See id. at 1252. Here, in contrast, we are aware
of no analogous statute that protects shareholders from having
to use the telephone. Nor does Consumer Action contend that
the minimal time lost in making a free phone call bears any
close relationship to injuries traditionally deemed adequate in
law. These may be debatable questions, but Consumer Action
frustrated the adversarial process by teeing them up for the first
time in reply. Under these circumstances, we cannot find
standing based on its reply submissions.
III
To seek judicial review, the Industry Petitioners must
assert interests falling “arguably within the zone of interests to
be protected or regulated” by the laws that they invoke. Clarke
v. Secs. Indus. Ass’n, 479 U.S. 388, 396 (1987) (quotation
marks omitted). This rule was once described as one of
“prudential standing,” but then, in a case originating in district
court, was recast as one for “determining who may invoke the
cause of action” providing the basis for the lawsuit. Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
130 (2014). The zone-of-interests requirement also limits who

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may seek judicial review directly in a court of appeals, as we
have recognized both before and after Lexmark. See, e.g.,
Sierra Club v. EPA, 755 F.3d 968, 976 (D.C. Cir. 2014);
Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918,
921–22 (D.C. Cir. 1989) (HWTC). Protected interests are ones
asserted either by “intended beneficiaries” of the statute at
issue or by other “suitable challengers”—i.e., parties whose
interests coincide “systemically, not fortuitously” with those of
intended beneficiaries. HWTC, 885 F.2d at 922–24. These
rules are designed to prevent litigation by parties “whose suits
are more likely to frustrate than to further statutory objectives.”
Id. at 922 (quotation marks omitted).
The Industry Petitioners contend that Rule 30e-3 violates
the Securities Act of 1933, the Securities Exchange Act of
1934, and the Investment Company Act of 1940. Two of those
statutes permit any person aggrieved by an SEC regulation to
seek judicial review in this Court. See 15 U.S.C. §§ 77i(a),
80a-42(a); N.Y. Republican State Comm. v. SEC, 799 F.3d
1126, 1130–34 (D.C. Cir. 2015).1 The Industry Petitioners also
invoke the Administrative Procedure Act, but it neither creates
jurisdiction, Califano v. Sanders, 430 U.S. 99, 104–07 (1977),
nor augments specific-review provisions like those in the
securities statutes, see 5 U.S.C. § 704; Bennett v. Spear, 520
U.S. 154, 161–62 (1997). As their basis for constitutional
standing and statutory aggrievement, the Industry Petitioners
allege that Rule 30e-3 will harm paper companies by reducing
the demand for their products. So the dispositive question is
1 All three statutes permit any person aggrieved by an SEC “order”
to seek judicial review in this Court. 15 U.S.C. §§ 77i(a), 78y(b)(1),
80a-42(a). The word “order” encompasses SEC rules in the context
of the Securities Act and the Investment Company Act, see N.Y.
Republican State Comm., 799 F.3d at 1130–34, but not in the context
of the Exchange Act, Am. Petrol. Inst. v. SEC, 714 F.3d 1329, 1333–
37 (D.C. Cir. 2013).

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whether that interest—in selling more paper—is one arguably
protected by the securities laws.
As sellers of paper, the Industry Petitioners are not
intended beneficiaries of the securities laws. The Securities
Act “regulates initial distributions of securities,” and the
Exchange Act “regulates post-distribution trading.” Cent.
Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 171 (1994). These statutes “embrace a
fundamental purpose to substitute a philosophy of full
disclosure for the philosophy of caveat emptor.” Id. (cleaned
up). Likewise, the Investment Company Act regulates
investment companies to protect investors. See 15 U.S.C.
§ 80a-1(b). In sum, “shareholders [are] the direct and intended
beneficiaries” of the securities laws, Piper v. Chris-Craft
Indus., Inc., 430 U.S. 1, 32 (1977)—and paper sellers are not.
That leaves the question whether the interests asserted by
the Industry Petitioners systematically coincide with those of
shareholders. In HWTC, we held that a group representing the
interests of waste treatment plants could not challenge the
alleged laxity of regulations under the Resource Conservation
and Recovery Act. We reasoned that overly stringent
regulation might sometimes harm environmental interests, but
waste treatment facilities—which stand to profit from it—
would urge stricter regulation “whether the effect on health and
the environment [was] good, bad, or indifferent.” 885 F.2d at
924–25. We have applied this holding repeatedly, see Sierra
Club, 755 F.3d at 976, and we have extended it to bar
challenges by manufacturers of pollution-control equipment to
the alleged laxity of regulations under the Clean Air Act, see
Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 870–71
(D.C. Cir. 2001).

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Those cases control this one. As paper companies, the
Industry Petitioners would prefer paper disclosure for all
shareholders. There is no reason to think that this unqualified
preference systematically aligns with the interests of
shareholders. In fact, there is good reason to believe the
opposite. As the SEC explained, “an investor looking for a
fund’s annual report is most likely to seek it out on the fund’s
website, rather than request it by mail or phone.” Shareholder
Reports, 83 Fed. Reg. at 29,165 n.96. So, the Industry
Petitioners already are opposed to the largest cross-section of
individual shareholders. Moreover, there is a pronounced and
growing trend in favor of internet usage, especially among
households that own mutual funds. See id. at 29,165 n.97.
Thus, the conflict between the interests of paper sellers and
those of shareholders is likely to increase over time. This
suggests a systematic misalignment with shareholder
preferences, which makes paper companies distinctly
unqualified to advance the interests of shareholders.
The Industry Petitioners invoke First National Bank &
Trust Co. v. National Credit Union Administration, 988 F.2d
1272 (D.C. Cir. 1993), and Honeywell International, Inc. v.
EPA, 374 F.3d 1363 (D.C. Cir. 2004). These cases permitted
suits to enforce specific entry restrictions imposed on
competitors of the plaintiffs or petitioners. In First National
Bank, we allowed a bank to challenge an agency decision
allowing a rival credit union to expand its membership. 988
F.2d at 1275–79. The bank argued that the decision violated a
statute limiting membership to “groups having a common bond
of occupation or design.” Id. at 1273 (quotation marks
omitted). In Honeywell, we permitted a company to challenge
an agency decision allowing a competitor to market certain
products. 374 F.3d at 1370–71. The company argued that the
agency impermissibly had rested on economic rather than
environmental considerations, in violation of section 612(c) of

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the Clean Air Act. See id. at 1365, 1371–72. In both cases, we
distinguished HWTC on the ground that “the potentially
limitless incentives of competitors were channeled by the terms
of the statute into suits of a limited nature brought to enforce
the statutory demarcation.” First Nat’l Bank, 988 F.2d at 1278;
see Honeywell, 374 F.3d at 1370–71. In other words, both
cases involved statutes that “constrain[ed] competitors to a
limited role in guarding a congressionally drawn boundary.”
First Nat’l Bank, 988 F.2d at 1278.
The challenge here is not so limited. The SEC adopted
Rule 30e-3 under general grants of rulemaking authority to
carry out the purposes of the Securities Act, the Exchange Act,
and the Investment Company Act. See 15 U.S.C. §§ 77s(a),
78w(a), 80a-37(a). In exercising these authorities, the
Commission must consider “the public interest,” “the
protection of investors,” and “whether the action will promote
efficiency, competition, and capital formation.” 15 U.S.C.
§§ 77b(b), 78c(f), 80a-2(c). The Exchange Act further
prohibits rules that impose “a burden on competition not
necessary or appropriate in furtherance of the purposes of this
chapter.” Id. § 78w(a)(2). The Industry Petitioners argue that
the Commission violated these provisions, but none of them
forms a discrete “statutory demarcation” enforceable by “suits
of a limited nature.” First Nat’l Bank, 988 F.2d at 1278.
Because the securities laws impose no meaningful constraint
on the Industry Petitioners’ ability and incentive to push paper
regardless of the interests or preferences of shareholders, the
controlling precedent here is HWTC.
IV
Consumer Action lacks Article III standing, and the
Industry Petitioners assert interests beyond those arguably

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protected or regulated by the securities laws. Accordingly, we
deny the petition for review.
So ordered.

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