Participants in the syndicated loan markets may have been relieved last month when the SEC declined to file the amicus brief requested by the Second Circuit Court of Appeals in Kirschner v. JP Morgan Chase Bank. In an unusual turn of events, the SEC choose not to weigh in on whether the syndicated term loans at issue are securities. In a July 18, 2023 letter to the court, the SEC explained that “despite the best efforts to respond to the court’s request, the Staff was not in a position to file a brief on behalf of the Commission.” Id. Whatever the reason, the SEC’s decision leaves the Second Circuit panel without the agency’s views, and to speculate over the agency’s reasons for its clearly very deliberate decision not to act.
