We start with the statute’s text. It says:
DISRUPTIVE PRACTICES. – It shall be unlawful for any person to engage in any trading, practice, or conduct on or subject to the rules of a registered entity that [...] (C) is, is of the character of, or is commonly known to the trade as, ‘spoofing’ (bidding or offering with the intent to cancel the bid or offer before execution).
By using the definite article “the” immediately preceding the phrase “intent to cancel,” Congress made “spoofing” a specific intent crime. It defined the elements of the crime to consist of (a) an action (bidding or offering), coupled with (b) “the intent to cancel the bid or offer before execution.” Because there are no qualifiers between the words “the” and “intent to cancel,” the “intent to cancel” that must be possessed by a trader (and proved) must be unqualified; i.e., the trader’s intent to cancel must not be contingent upon anything intervening between entry of the bid or offer and its cancellation.
This construction is compelled because it is a rule of law that “the definite article ‘the’ particularizes the subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing force of “a” or ‘an.’.” Am. Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir. 2000). “An” intent to cancel could be either unconditional or conditional. That is, a trader can bid or offer either (a) possessed of the absolute and unconditional intent to cancel the bid or offer before it is executed, or (b) possessed of an intent to cancel the bid or offer before it is executed if some contingency occurs. By using the phrase “the intent to cancel” without any qualifiers interposed between the words “the” and “intent,” the statute’s text makes clear that what is prohibited is only bidding or offering while possessed of an unconditional and unqualified intention to cancel the bid or offer before it is executed.
The correctness of this construction is confirmed by analysis of the consequences if it were incorrect.
If the requisite intent to cancel is not an unqualified and absolute intent to cancel before execution, what basis is provided in the statute to distinguish among gradations of qualified or contingent intent to cancel? Obviously, none. No words in the statute provide any basis to distinguish between, e.g., a trading strategy in which a bid or offer is intended to be cancelled if the market moves away from the bid or offer and a trading strategy in which a bid or offer is intended to be cancelled if the market moves closer to, but does not hit the bid or offer (or upon the occurrence of some other non-temporal contingency). Likewise, the statutory text affords no basis to distinguish between a bid or offer intended to be cancelled 5 milliseconds after it is entered and bids or offers that are intended to be cancelled 5 hundredths of a second, 5 seconds, 5 minutes, or 5 hours after entry -- Thompson Coburn LLP
Представляется весьма сомнительным, что тупой и унылый государственный бред можно победить гораздо более талантливым и техничным частным бредом, но кто его знает. Я бывал неправ и раньше.