I guess it depends on the framing: a scam perpetrated on whom? It's not a scam on active investors if you lock in a bump from guaranteed passive investors. The active investors will see gains from that bump. But on the passive investors? On wider society?

If you spot the regulator looking the other way and try to sneak one past, is that legitimate, or sketchy? What if you recently had the influence to make them look the other way or be under-resourced?

You could argue 'treason' is a better word than 'scam'.

I mean sure some indexes will include the name eventually but I would hope most “passive investors” are not investing in the Nasdaq 100. Folks have latched on to this like it’s the greatest fraud of all time. It’s not showing up in most normal passive portfolios anytime soon.