Law Commons^™

Third Party Access And Refusal To Deal In European Energy Networks: How Sector Regulation And Competition Law Meet Each Other, Michael Diathesopoulos

Michael Diathesopoulos

In this paper, we will analyse the issue of concurrence between competition and sector rules and the relation between parallel concepts within the two different legal frameworks. We will firstly examine Third Party Access in relation to essential facilities doctrine and refusal of access and we will identify the common points and objectives of these concepts and the extent to which they provide a context to each other’s implementation. Second, we will focus on how Commission uses sector regulation and objectives as a context within the process of implementation of competition law in the energy sector and third, we will …

Hiv And Aids In Africa: Compulsory Licensing Under Trips And Doha Declaration, Ufuoma Barbara Akpotaire

Ufuoma Barbara Akpotaire

In today’s world, there is a lot of focus on issues such as militancy, global warming, terrorism, racism and even politics. Unfortunately, there is a problem that has killed and is still killing far more people than any of the above issues. That problem is HIV/AIDS.

AIDS is a serious medical condition that predisposes patients towards opportunistic infecting tumors, dementia and death. HIV is the viral agent associated with AIDS. Africa is without doubt more heavily affected by HIV/AIDS than any other region of the world. Although Nigeria’s HIV/AIDS prevalence rate is still relatively low compared to some countries in …

On The Role And Regulation Of Proxy Advisors, Paul Rose

Michigan Law Review First Impressions

In anticipation of proxy season-the springtime ritual where companies prepare and deliver proxy statements in preparation for annual shareholder meetings-U.S. public companies typically reexamine their corporate governance structures and policies. Many corporate governance structures that were acceptable ten years ago are now considered outmoded or even evidence of managerial entrenchment. For example, consider the classified board of directors. In recent years, many companies have shifted from a classified board of directors to an annually elected board. A company might adopt an annually-elected board structure for a number of reasons. A classified board can serve as an entrenchment device, for instance, …

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla

Victor D. Quintanilla

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social-psychological perspective. The field of social psychology has documented a pervasive phenomena—the Fundamental Attribution Error—the failure of decision-makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social-psychological research on the Fundamental Attribution Error, legal concepts such as intent, intentionality, mens rea, and …

A "New" Fiduciary Duty For Stockbrokers? Keeping The Dodd-Frank Rule Debate In Perspective, Robert N. Rapp

Robert N Rapp

No abstract provided.

The Unjustified Judicial Creation Of Class Certification Merits Trials In Securities, Michael J. Kaufman, John M. Wunderlich

University of Michigan Journal of Law Reform

The class action device is vital to deterring securities fraud and remedying its victims, who almost never suffer losses sufficient to justify an individual suit. Nonetheless, the federal courts have begun to convert the class certification process into a premature trial on the merits, thereby precluding victims of securities fraud from pursuing otherwise valid claims of financial wrongdoing. In particular, in a series of important decisions, the federal courts have required plaintiffs to prove the essential elements of their securities fraud claims at the preliminary class certification stage.

This Article demonstrates why this trend should end. The judicial creation of …

The End Of Mandatory Securities Arbitration?, Jill I. Gross

Pace Law Review

No abstract provided.

Uso Social Del Suelo Ejidal Y Comunal Para El Desarrollo Equilibrado De Las Áreas Urbanas Del Estado De Puebla, Bruno L. Costantini García

Bruno L. Costantini García

De origen, difundir los diversos esquemas permitidos por la Ley para posibilitar la realización de proyectos con fines inmobiliarios, a efecto de que los núcleos agrarios y sus integrantes se beneficien equitativamente de la urbanización de sus tierras, coadyuvando con ello al desarrollo urbano planificado y ordenado de los centros de población del Estado de Puebla; como consecuencia, impulsar el desarrollo habitacional equilibrado de éste. Eliminar el circulo.- “necesidad de tierra – asentamiento irregular – solución de conflicto”, mediante la planeación socioeconómico de los núcleos agrarios ejidales y comunales, a fin de diseñar un mecanismo eficaz que satisfaga las necesidades …

Business Associations, J. Lani Bader

Cal Law Trends and Developments

The new Corporate Securities Act, which became effective January 2, 1969, represents a sweeping change in the total fabric of administrative securities regulation. Indeed, no legislative act during the last decade has been of more importance to the lawyer representing business interests.

Also of considerable importance is the 1968 adoption of the Professional Corporation Act, which marks the entry of the corporation in California into a hitherto closed area. Since this enactment is referred to in another article in this volume, the comments here will be restricted to a discussion of the new Corporate Securities Act and of the changes …

The Uneasy Case For The Inside Director, Lisa Fairfax

All Faculty Scholarship

In the wake of recent scandals and the economic meltdown, there is nearly universal support for the notion that corporations must have independent directors. Conventional wisdom insists that independent directors can more effectively monitor the corporation and prevent or otherwise better detect wrongdoing. As the movement to increase director independence has gained traction, inside directors have become an endangered species, relegated to holding a minimal number of seats on the corporate board. This Article questions the popular trend away from inside directors by critiquing the rationales in favor of director independence, and assessing the potential advantages of inside directors. This …

Are Investors’ Gains And Losses From Securities Fraud Equal Over Time? Theory And Evidence, Alicia J. Davis

Law & Economics Working Papers

Most leading securities regulation scholars argue that compensating securities fraud victims is inefficient. They maintain that because diversified investors that trade frequently are as likely to gain from trading in fraud-tainted stocks as they are to suffer harm from doing so, these investors should have no expected net losses from fraud over the long term. This assertion, which analogizes trading in fraud-tainted stocks to participating in a coin toss game in which players win $1 on heads and lose $1 on tails, is problematic for a number of reasons. First, even if we accept this analogy, probability theory holds that …

Sec V. Talbot: The "Misappropriation-Plus" Theory, Kalina Laleva

Golden Gate University Law Review

No abstract provided.

Is Our Economy Safe? A Proposal For Assessing The Success Of Swaps Regulation Under The Dodd-Frank Act, Michael Greenberger

Michael Greenberger

On July 21, 2010, President Barack Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act into law. The central goal of the Dodd-Frank Act is to ensure that all standardized derivates products are regulated. The Act requires these trades be fully transparent and backed by adequate capital. The central question for evaluating the success of the Dodd-Frank Act is simple but profound: Has the Dodd-Frank Act made the economy any safer from the threat of another economic meltdown? This paper introduces a number of metrics that can be used to assess the success of the Dodd-Frank Act.

The Lion Awakens: The Foreign Corrupt Practices Act - 1977 To 2010, Michael B. Bixby

San Diego International Law Journal

This Article discusses the history, purposes and provisions of the Foreign Corrupt Practices Act, and traces its use and enforcement activity from 1977 to the present. This once little-used law has in recent years become the focus of aggressive activity by both the U.S. Department of Justice and the Securities and Exchange Commission. The manuscript also includes numerous charts reporting on key cases and enforcement activities over the last thirty-three years by the DOJ and SEC, as well as other information and statistics regarding the Foreign Corrupt Practices Act.

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

Law & Economics Working Papers

Historically, securities law has not been a high priority for the Supreme Court. The first five years of the Roberts Court, however, suggest an upsurge of interest in the federal securities laws, with nine cases decided, a significant increase from the Rehnquist Court’s average. These numbers are deceptive. Analysis of the opinions deciding these cases – and more importantly, the issues debated by the justices – suggests that the Court is not interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation and the …

An Overview Of Caribbean Securities Exchanges, Clifford Chad Henson

Clifford Chad Henson

Caribbean securities exchanges have existed since the 1969 creation of the Jamaican Stock Exchange; in the last 15 years those exchanges have increased in number and signiicance. From the creation of the Bermuda Stock Exchange in 1971 to the creation of the Trinidad & Tobago Stock Exchange in 1981, no new exchanges with staying power were added. Beginning with the Barbados Stock Exchange in 1987 and followed by the Bolsa de Valores de la Republica Dominicana in 1991, the Cayman Islands Stock Exchange in 1997, the Bahamas International Securities Exchange and the International Finance Center and Exchange in 1999, and …

Is The Eu Taking Shareholder Rights Seriously? An Essay On The Impotence Of Shareholdership In Corporate Europe, Pavlos E. Masouros

Pavlos E. Masouros

This article critically analyzes the Shareholder Rights Directive ("SRD") (Directive 2007/36/EC). It is essentially an attempt to show that the deficit in the European corporate governance model with regard to the status of the shareholders persists even in the post-SRD era and that we still have a long distance to cover in order to truly empower shareholders in the EU. The SRD along with certain other Company Law Directives and the various European national corporate laws form a synthesis that falls short of providing shareholders with the full potential of getting their corporate governance voice through within listed corporations.

First …

Is Our Economy Safe? A Proposal For Assessing The Success Of Swaps Regulation Under The Dodd-Frank Act, Michael Greenberger

Faculty Scholarship

On July 21, 2010, President Barack Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act into law. The central goal of the Dodd-Frank Act is to ensure that all standardized derivates products are regulated. The Act requires these trades be fully transparent and backed by adequate capital. The central question for evaluating the success of the Dodd-Frank Act is simple but profound: Has the Dodd-Frank Act made the economy any safer from the threat of another economic meltdown? This paper introduces a number of metrics that can be used to assess the success of the Dodd-Frank Act.

Trimming The "Judicial Oak": Rule 10b5-2(B)(1), Confidentiality Agreements, And The Proper Scope Of Insider Trading Liability, Ryan M. Davis

Vanderbilt Law Review

In recent years the Securities and Exchange Commission, commonly known as the SEC, has been involved in a number of high- profile suits that have attracted a good deal of media attention. Among those prosecuted by the Commission are hedge fund billionaire and Galleon Group founder Raj Rajaratnam, investment/Ponzi- scheme guru Bernie Madoff, television host and magazine publisher Martha Stewart, and colorful Dallas Mavericks owner Mark Cuban. Although such notable suits may simply be the SEC's attempt to justify its own existence and role in the market it polices in light of the financial disasters of the past decade, these …

Outsider Hacking And Insider Trading: The Expansion Of Liability Absent A Fiduciary Duty, James A. Jones Ii

Washington Journal of Law, Technology & Arts

In January 2008, the United States District Court for the Southern District of New York held that trading put options of a company’s stock based on inside information allegedly obtained by hacking into a computer network did not violate antifraud provisions of federal securities law. The court ruled that the defendant’s alleged “hacking and trading” did not amount to a violation of section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, promulgated thereunder, because there was no proof the hacker breached a fiduciary duty in obtaining the information. The United States Court of Appeals for the Second …

The Fsa, Integrated Regulation, And The Curious Case Of Otc Derivatives, Dan Awrey

Cornell Law Faculty Publications

With a view to better understanding the optimal structure of financial regulation, this paper tests prevailing theoretical hypotheses respecting the efficiency and overall desirability of integrated financial regulation relative to competing institutional models. This test is conducted through the lens of a comparative case study examining the approaches adopted by (fragmented) U.S financial regulators and the (integrated) UK Financial Services Authority (FSA) toward the myriad of regulatory challenges posed by the emergence, growth, and systemic importance of over-the-counter (OTC) derivatives markets. More specifically, this paper examines why, despite the numerous theoretical advantages of integrated regulation, the FSA adopted a non-interventionist …

The Sec And The Extent Of Its Power To Sanction: An Analysis Of Teicher V. Securities And Exchange Commission - Did The Court Correctly Apply Chevron V. Natural Resources Defense Council To A Matter Of Agency Interpretation?, Rose Arce

Golden Gate University Law Review

This note will address two primary issues in analyzing Teicher. The first is whether the SEC has the authority within its sanctioning power, specifically under Section 15(b)(6) of the Exchange Act, to impose collateral limitations on a person who violates the Exchange Act, such as preventing that person from utilizing his or her license in another branch of the securities industry. The second is whether the SEC has the authority within its sanctioning power, specifically under Section 203(f) of the Advisers Act, to bar a person who violates the Adviser's Act from associating or seeking to become associated with an …

Private Securities Litigation Reform Act Of 1995: Do Issuers Still Get Soaked In The Safe Harbor?, Noelle Matteson

Golden Gate University Law Review

This Comment will examine the background and development of protection for forward-looking statements through the SEC, the courts and Congress. Following this background examination, Part III will focus on the recently passed Reform Act. This discussion will consider the arguments made by opponents and proponents of the Reform Act, the effects of this act and whether it is encouraging disclosure by issuers and protecting the same issuers from frivolous lawsuits.

Securities Law - Securities & Exchange Commission V. Rind: Sec Civil Enforcement Actions Are Not Subject To Statute Of Limitations, Joan E. Low

Golden Gate University Law Review

In Securities & Exchange Commission v. Rind, the United States Court of Appeals for the Ninth Circuit, ruling on an issue of first impression, held that civil enforcement actions brought by the Securities and Exchange Commission (hereinafter "SEC") are not subject to statute of limitations restrictions. Additionally, the court ruled that no right to a jury trial attaches in SEC civil enforcement actions seeking disgorgement of illicit profits.

Securities Law - Mccormick V. Fund American Companies: Altering The Total Mix Of Information Made Available During Disclosure In Corporate Repurchases Of Stock, David E. Wanis

Golden Gate University Law Review

In McCormick v. Fund American Companies, the Ninth Circuit granted summary judgment to defendant corporation over plaintiff shareholder's claim that defendant had violated the Securities Exchange Act by misrepresenting or omitting material information during negotiations to repurchase stock from plaintiff. The court found that in light of plaintiff's status as a "sophisticated business executive," defendant's alleged misrepresentations and omissions did not "significantly alter the total mix of information made available" concerning the contemplated sale of a subsidiary company of defendant corporation.

Securities Law, Peter A. Maclaren

Golden Gate University Law Review

In Hocking v. Dubois, the Ninth Circuit held that where an arrangement to sell a condominium included an option to participate in a rental pool arrangement ("RPA"), the arrangement constituted an investment contract. Consequently, what appeared to be a simple sale of real estate was subject to the provisions of the federal securities laws including the antifraud provisions of Rule I0b-5. This note will examine the rationale supporting the Ninth Circuit's application of securities law to condominium sales, examine the application of rules limiting private causes of action, and analyze the issues presented by the facts of Hocking.

Securities Law, Peter A. Mastromonaco

Golden Gate University Law Review

No abstract provided.

Fraud On The Market: The Decline Of Reliance In A 10b-5 Action, M. Lynn Haggerty

Golden Gate University Law Review

Since the Supreme Court's decision in Affiliated Ute Citizens v. United States, l there has been considerable variation among the circuits regarding the requirement of reliance as an element of an action under rule 10b-5 of the federal securities regulations. The differences seem to stem from a disagreement as to the underlying purposes of the securities regulations. While the regulations were established to force disclosure of material investment information and to maintain market stability, they were also designed to protect the investing public. In an attempt to reconcile these sometimes disparate purposes, one circuit has designed a theory since labeled …

Registros Acelerados: Emissores Com Grande Exposição (Egems) Já Podem Acessar O Mercado Mais Rapidamente, Luiz Rafael De Vargas Maluf

Luiz Rafael de Vargas Maluf

No abstract provided.

Leveraged Etfs: The Trojan Horse Has Passed The Margin-Rule Gates, William M. Humphries

Seattle University Law Review

What do the Great Depression, the Great Recession, and the demise of Lehman Brothers and Bear Sterns all have in common? One word: leverage. The misuse of leverage, in all its forms, contributed greatly to all of these events. Yet even today, common investors can purchase a leveraged exchange-traded fund (leveraged ETF), a complex product that uses leverage to increase returns, without triggering applicable laws designed to regulate the use of leverage. This Comment articulates the basics surrounding the functions and operations of leveraged ETFs and margin rules in order to assess the compatibility of the two. The Comment argues …