Law Commons^™

Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, And Sharing The Fruits Of Wiretaps, Alexandra N. Mogul

Fordham Law Review

Two key trends were present in the successful prosecution of Raj Rajaratnam and his coconspirators in one of the largest insider-trading conspiracies in history: the use of wiretaps to investigate and prosecute insider trading and a joint effort between the Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) to conduct the investigation. Despite the close working relationship between the DOJ and the SEC, the DOJ never disclosed the fruits of the wiretaps to the SEC, presumably due to its belief that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (as amended, the …

Disruptive Technology And Securities Regulation, Chris Brummer

Fordham Law Review

Nowhere has disruptive technology had a more profound impact than in financial services—and yet nowhere do academics and policymakers lack a coherent theory of the phenomenon more, much less a coherent set of regulatory prescriptions. Part of the challenge lies in the varied channels through which innovation upends market practices. Problems also lurk in the popular assumption that securities regulation operates against the backdrop of stable market gatekeepers like exchanges, broker-dealers, and clearing systems—a fact scenario increasingly out of sync in twenty-first-century capital markets.

This Article explains how technological innovation “disrupts” not only capital markets but also the exercise of …

Arbitration Agreement Arbitrage?: Statutory Discrepancy Leads To Third Circuit Victory For Dodd-Frank Whistleblower Defendants In Khazin V. Td Ameritrade Holding Corp., John K. Lisman

Villanova Law Review

No abstract provided.

Dodd-Frank’S Extension Of Criminal Corporate Liability Through The Foreign Corrupt Practices Act: Enabling Whistleblowers And Monitoring Conflict Minerals, Tim Bakken

Pace Law Review

In a sense, through its whistleblower provision, the Dodd-Frank Act has enabled the government to use corporate employee whistleblowers to support criminal prosecutions. That position finds agreement in this article, but the conclusion reached is that the results to be obtained from the whistleblower provision will be positive. Through an analysis of the Dodd-Frank Act, this article discusses further the new reach of the FCPA, particularly in light of the whistleblower and conflict-minerals provisions in the Dodd-Frank Act. Finally, this article concludes that although the new provisions can be costly, the provisions are beneficial. The traditional corporate model is now …

Broader Is Better: How Courts Should Determine Whether Or Not An Allegation Of Fraud Falls Under The Preemption Provision Of The Securities Litigation Uniform Standards Act, Jennifer Rose Roeske

St. John's Law Review

(Excerpt)

This Note argues that the correct approach for interpreting the scope of SLUSA's preemption language is the "literalist" approach taken by the Sixth Circuit. Part I of this Note lays out the legal framework of the Reform Act of 1995, Congress's intent in enacting the legislation, and the unintended consequences that flowed from the PSLRA's heightened pleading requirements. Part I also discusses SLUSA, what led to its passage, and its preemption language. Additionally, it looks at the Supreme Court's interpretation of preemption statutes generally, as well as the Supreme Court's broad interpretation of SLUSA in Merrill Lynch, Pierce, Fenner …

Regulating To Achieve Stability In The Domain Of High-Frequency Trading, Lindsey C. Crump

Michigan Telecommunications & Technology Law Review

High-frequency trading has become a darling of capital markets debate. This debate thrives because the true and long-lasting effects of high-frequency trading are still unknown. On one hand, high-frequency trading evidences recent and powerful advances in trading technology; on the other, it is said to harness speed at the expense of fairness, prudence, and stability. In part because of this duality, the regulation of high-frequency trading in the United States has been slow to develop. Other nations, however, have been quicker to react and to promulgate laws that directly, or indirectly, affect high-frequency trading. This Note explores the legal responses …

The Sum Of Its Parts: The Lawyer-Client Relationship In Initial Public Offerings, Jeremy R. Mcclane

Fordham Law Review

This Article examines the impact of the quality of a lawyer's working relationship with his or her client on one of the most important types of capital markets deal in a company's existence: its initial public offering (IPO). Drawing on data from interviews with equity capital markets lawyers at major law firms, and analyzing data from IPOs in the United States registered with the Securities and Exchange Commission between June 1996 and December 2010, this study finds a strong association between several measures of IPO performance and the familiarity between the lead underwriter and its counsel, as measured by the …

Guide To Structuring Resales Of Restricted Securities Held By Control And Non-Control Holders Under Federal And Arkansas Law, John F. Griffee

University of Arkansas at Little Rock Law Review

No abstract provided.

Extraterritorial Criminal Enforcement Of Securities Fraud Regulations After United States V. Vilar, Edgardo Rotman

University of Miami Law Review

In August 2013, the Court of Appeals for the Second Circuit in the case of United States v. Vilar denied extraterritorial application of the criminal law antifraud provisions contained in the Securities Exchange Act. The specific object of this paper is to criticize this decision and negate its premises.

After delving in depth into the notion of extraterritoriality, the paper offers a dynamic interpretation of the 1922 Supreme Court’s decision in United States v. Bowman, which is still the governing precedent on extraterritorial application of criminal laws. Furthermore, the paper criticizes the application of the 2010 Supreme Court’s decision …

Regulation Of Rule 506 Private Placements: The Teetering Balance Between Investor Protection And Capital Formation, Ilon Oliveira

Golden Gate University Law Review

This Comment aims to show that since the creation of Reg. D private placements, Congress and the SEC have promulgated a series of amendments and enactments that have collectively resulted in a heightened risk of fraud and inadequate safeguards for investors. Part I of this Comment will discuss private placements and the significant enactments and amendments that affect Rule 506 private placement offerings (“Rule 506 offerings”). The most notable amendments in this discussion will include the preemption of state blue-sky laws in 1996, the shortening of the holding period before resale in 2007, the exclusion of an investor’s primary residence …

Drafting And Securitizing Participation Mortgages: A Re-Introduction, Spencer J. Coopchik, Yildiray Yildirim

The Journal of Business, Entrepreneurship & the Law

This Paper will reintroduce, explore, and expand on the financing arrangement known as a Participation Mortgage. First, this Paper will cover the features, history, and policy purposes behind the mortgage. Second, the Paper will focus on legal mechanics and drafting considerations of Participation Mortgages, so they may later be securitized. Finally, the Paper will explore the possibility and legality of creating Participation Mortgaged Backed Securities to be sold in the secondary market.

Changing The Rules Of The Game: Beyond Disclosure Framework For Securities Regulation, Jena Martin

West Virginia Law Review

No abstract provided.

High-Speed Trading On Stock And Commodity Markets—From Courier Pigeons To Computers, Jerry W. Markham

San Diego Law Review

A growing concern in the stock and commodity markets over the last several years has been the rise of high-frequency traders (HFTs). Those traders employ high-speed computer technology for the algorithmic origination, transmission and execution of their orders through fiber optic cables and microwave towers. That technology allows HFT orders to be executed in times measured in fractions of a second. As a result of this technological advance, HFTs are now dominating trading volumes. This phenomenon has, on the one hand, led to claims by proponents of high-speed trading that HFTs are an important source of market liquidity and should …

Halliburton, Basic, And Fraud On The Market: The Need For A New Paradigm, Charles W. Murdock

Villanova Law Review

No abstract provided.

Clearinghouses And Regulation By Proxy, Yesha Yadav

Georgia Journal of International & Comparative Law

Related to Georgia Journal of International and Comparative Law Conference: The New Roles of Corporations in Global Governance.

Anti-Fraud Provisions Of The Securities Act; Erisa; Pension Plans; Section 17(A) Private Right Of Action; Daniel V. International Brotherhood Of Teamsters, Marlene P. Emery, Barbara M. Heinzerling

Akron Law Review

In Daniel v. International Brotherhood of Teamsters the Seventh Circuit Court of Appeals held that the federal securities laws apply to disclosure of information regarding employee pension and profit sharing plans. In an era when disclosure of information has become mandatory and commonplace, it is not surprising that relevant information on pension plans should be disclosed to employees. The important aspect of this case is that disclosure was required under the anti-fraud provisions of the federal securities laws, rather than under the provisions of the Employee Retirement Income Security Act (ERISA). Questions concerning the Securities and Exchange Commission's jurisdiction over …

Securities Laws Implications For Savings Associations Acting As Trustees For Ira's And Keoghs

Akron Law Review

This article will focus on the major problem area which has resulted from the above legislation. That problem is whether or not a savings association must register with the Securities and Exchange Commission (SEC) pursuant to the Securities Act of 1931 or the Investment Company Act of 1940, as a consequence of acting as trustee for an IRA or Keogh plan.

Private Cause Of Action Under Section 17(A) Of Securities Exchange Act Of 1934; Doctrine Of Implication; Touche Ross V. Redington, James L. Miller

Akron Law Review

The Securities Exchange Act of 1934 is principally designed to protect investors through regulation of securities transactions on the organized exchanges and in the over-the-counter markets. In addition to the creation of the Securities and Exchange Commission as its leading enforcement mechanism, the 1934 Act provides for criminal penalties and, in certain instances, private causes of action for individuals who incur damage by others' violations of the Act. However, courts will often imply a civil cause of action for an injured party despite the absence of express statutory authorization.3 Subsequent judicial attempts to determine when supplemental civil relief can or …

Federalism To An Advantage: The Demise Of State Blue Sky Laws Under The Uniform Securities Act, Marianne M. Jennings, Bruce K. Childers, Ronald J. Kudla

Akron Law Review

They come at an opportune time. "They" are the changes to the Uniform Securities Act. Although some of the changes are perfunctory, the significant changes have a fascinating common thread running through them. That fascinating thread is federalism. Changes in the Act could move regulation away from the hands of the states and make federal registration, more or less, a ticket for sales without state approval. The changes are not without opposition. This article will discuss the changes, the reactions of particular concerned groups and the perceived effects of such changes.

Attorneys Beware: Increased Liability For Providing Advice To Corporate Clients Issuing Securites, Joseph Reece

Akron Law Review

Although the law in this area is rapidly evolving, a general overview of recent case law seems to indicate that attorneys may be liable even though their participation in the issuance of securities only involved rendering routine services to a corporate client. If an attorney were to have an active part in activities such as business planning or the promotion of securities, their exposure to potential liability would increase dramatically. As a result of this rapid change in the law, there is a degree of uncertainty concerning the potential liabilities attorneys may face when assisting their corporate clients in issuing …

Qualification Of Securities In California: Hostile Territory For Foreign Issuers, James K. Roosa

Akron Law Review

The purpose of this article is to outline these policies and to discuss the threat which compliance poses to the issuer's shareholders as well as the corporation law of the issuer's home state. Although much of the discussion is couched in terms of Ohio law and Ohio issuers, it applies equally to other jurisdictions whose corporation laws are similar to Ohio's.

Revisions To Ohio Securities Laws Needed, David E. Weiss

Akron Law Review

The purpose of this article is to discuss several proposed revisions to Ohio's securities laws which were addressed during the Registration Advisory Committee meeting held at the Division's annual conference in October 1989 and to recommend prompt action to amend those provisions of Ohio's securities laws to effectuate these revisions.

Liability For Insider Trading: Expansion Of Liability In Rule 10b-5 Cases, Arthur J. Marinelli

Akron Law Review

This article will examine the recent litigation developments of Section 10 and Rule 10-b in Carpenter v. United States and in Basic, Inc. v. Levinson. The origins and developments of the misappropriation theory and the application of the mail fraud statutes as applied to Section 10 will also be discussed. Finally, the duty of disclosure and the timing of disclosure of merger negotiations, along with the fraud-on-the-market theory of civil liability under Rule 10b-5, will be explored in the context of the Basic case.

Loss Causation, Economic Loss Rules And Offset Defenses – Dismissal Motion Practice After Acticon A.G. V. China North East Petroleum Holdings Ltd., Laurence A. Steckman, Robert E. Conner, Kris Steckman Taylor

Touro Law Review

No abstract provided.

The Ipo Crisis: Title I Of The Jobs Act And Why It Does Not Go Far Enough, Brian Howaniec

Pepperdine Law Review

This Comment explores the brewing controversy over Title I and assesses the actual impact that it is having (and will have) on investor protection and the IPO market. This Comment argues that Title I has the ability to affect both, but, due to factors outside of Congress's control, will likely have only a minimal effect on either. Part II discusses the objectives of investor protection legislation and how previous legislation regulated the financial markets. Part III explains how these regulations have been changed for emerging growth companies under Title I. Part IV examines what impact Title I will have on …

Is The Quest For Corporate Responsibility A Wild Good Chase? The Story Of Lovenheim V. Iroquois Brands, Ltd., D.A. Jeremy Telman

Akron Law Review

In Part I, this Article explores the law of shareholder proposals and the reasons why the SEC and the courts permit proposals relating to social or ethical issues (social proposals) so long as those issues relate to the corporation’s business. The focus here is on the regulation of such social proposals. Other regulations permitting the exclusion of shareholder proposals will be discussed only to the extent that they interact with the Rule relating to social proposals. Part II presents the complete narrative of the Lovenheim case, providing details that are not captured in the decision or in the limited secondary …

Is The Quest For Corporate Responsibility A Wild Goose Chase? The Story Of Lovenheim V. Iroquois Brands, Ltd., D.A. Jeremy Telman

Akron Law Review

This Article is a Law Story. Law Stories have many purposes, but their main goal is to supplement and demystify the case method of legal pedagogy. The case method has been criticized for presenting students with the law more or less as a fait accompli. The case method assumes a pre-existing body of law that students passively learn rather than learning to think of the law as something that they will have a hand in shaping...In Part II, this Article explores the law of shareholder proposals and the reasons why the SEC and the courts permit proposals relating to social …

Asadi: Renegade Or Precursor Of Who Is A Whistleblower Under The Dodd-Frank Act?, Mystica M. Alexander, John O. Hayward, David Missirian

Pace Law Review

Whistleblowers have a long and honorable history. From Ralph Nader blowing the whistle on the hazards of GM’s Corvair in Unsafe at Any Speed1 in the 1960’s to Jeffrey Wigand in 1996 exposing the duplicity of the tobacco industry, whistleblowers have put conscience ahead of career and personal success to expose corporate fraud and wrongdoing. Not surprisingly, they have had to endure ridicule and ostracism as well as financial hardship. Legislation has sought to protect them from retribution, often with mixed success. The most recent legislative effort is the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) that allows …

Resolving The Conflict Between Fiduciary Duties And Socially Responsible Investing, William Sanders

Pace Law Review

Part I of this Article clarifies and strictly defines the frequently nebulous idea of socially responsible investing (“SRI”), explaining its history, trends, and current status. To give perspective and perhaps temper hype, Part II discusses the efficacy of SRI as a method of change, concluding that while SRI may not have much effect on air quality or oppressive foreign governments, there are situations where SRI is useful and even necessary. Part III looks at the conflict between SRI and the fiduciary duties of trustees, investment advisers, and broker-dealers. It shows the contractual nature of fiduciary duties and why this is …

Assessing Irving Picard’S Writ Of Certiorari In Picard V. Jp Morgan Chase: Another Chapter In The Saga Of Bernie Madoff And His Impact On The Securities Industry, Bryce Cullinane

The Journal of Business, Entrepreneurship & the Law

An objective analysis of Picard's writ shows the Second Circuit should be affirmed. Picard's arguments are long on emotional appeal and customer-centric public policy but short on the law. The Second Circuit decision is in line with the intent of Congress. Furthermore, adopting Picard's interpretation would raise many issues and create many problems in the financial services industry. Part II of this note provides background on SIPA and the Securities Investor Protection Corporation (SIPC), as well as Section 544 of the Code. Part III provides background on the Picard case, including a brief discussion of Madoff's scheme and Picard's work …