Law Commons^™

Alternative Data And Insider Trading: Are Investment Managers Assleep At The Wheel On Big Data Use?, William Montemarano

Brooklyn Journal of Corporate, Financial & Commercial Law

The rapid rise of “big data” has transformed the way that professional investors make investment decisions. In addition, the intersection of the United States federal securities laws and the use of “big data” to inform securities trading lies in uncharted waters. The nuanced and factually-dependent securities laws are far behind industry practices, and the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have remained largely silent on the issue to date. This Note argues that this combination of murky laws and rapidly evolving business practices gives rise to legal and regulatory risk, and that investment managers leveraging …

Securing Crypto: Exempting Certain Cryptoassets From The Arkansas Securities Act, Jesse Kloss

Arkansas Law Review

Out of fifty states in 2019, Arkansas was ranked forty-fourth for technology and innovation with a grade of “F,” thirty-sixth for economy with a grade of “D+,” and thirty-seventh for business friendliness with a grade of “D+.” It is time to make Arkansas an innovation and business friendly state. Exempting certain fully functional cryptoassets, those that have some purpose other than a speculative or investment purpose, from the Arkansas Securities Act is one step towards doing so.

A Babe In The Woods: An Essay On Kirby Lumber And The Evolution Of Corporate Law, Lawrence Hamermesh

All Faculty Scholarship

This essay examines the development of corporate law during the time span of the author's career, focusing on the interrelated subjects of valuation, corporate purpose, and shareholder litigation.

Grown From The Shadows: How Technology And Taxes Can Bring Private Companies Into The Public Light, Alon Sugarman

Vanderbilt Journal of Entertainment & Technology Law

The initial public offering (IPO) has started to make a comeback, but in forms that require less oversight and at a later point in a company’s lifecycle. These new trends cut main street investors out of early-stage corporate growth and have imperiled the fortunes and retirement funds of a generation. One of the most significant precipitating factors in this new dynamic is electronic private markets that allow sophisticated investors to trade pre-IPO shares. These electronic private markets provide liquidity to institutional investors, which relieves institutional pressure on companies to go public. The current approaches to IPO reform are primarily deregulatory, …

The Future Of Reorganization Procedures In The Era Of Pre-Insolvency Law, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Several countries and regions around the world, including Singapore, the United Kingdom, and the European Union, are amending their restructuring framework to implement a pre-insolvency mechanism that includes most of the features that exist in the US Chapter 11 reorganization procedure. However, unlike what happens in the United States, where unsuccessful reorganizations lead to Chapter 7 liquidations, companies using this ‘de facto Chapter 11’ (DFCH11) are still allowed to use formal reorganization procedures. This article argues that, while the rise of the DFCH11 is not necessarily undesirable provided that various protections are put in place, jurisdictions implementing this restructuring tool …

Securities Scholars' Comment Letter On Draft Whistleblower Award And Protection Act, Andrew K. Jennings, Samantha J. Prince, Benjamin P. Edwards, Andrew C. Baker

Faculty Scholarly Works

In May 2020, the North American Securities Administrators Association (NASAA), an organization representing state and provincial securities regulators in Canada, the United States, and Mexico, released a draft Model Whistleblower Award and Protection Act (the Proposed Act) for public comment. The Proposed Act drew from securities-whistleblower statutes in Utah and Indiana, as well as the federal Sarbanes-Oxley and Dodd-Frank Acts.

In brief, the Proposed Act provided for a state-level securities whistleblower-award program and an anti-retaliation private right of action. NASAA received seven comment letters, including one from securities scholars. Our securities scholars’ letter highlighted two areas of concern. First, we …

Regulation Of Securities Offerings In California: Is It Time For A Change After A Century Of Merit Regulation?, Neal H. Brockmeyer

Loyola of Los Angeles Law Review

The California securities law originated in 1913 from a populist movement that embodied a paternalistic attitude toward the protection of investors. It was characterized by the registration of offerings of securities with few exemptions and exclusions, a qualitative review of the merits of those offerings and an administrator with broad authority to implement and enforce the law. While the California securities law is still based on merit review, exclusions and exemptions have been added and expanded over the years by the California legislature and securities regulators. More recently, Congress has preempted state registration and merit review of various securities and …

Briefing Note: Aligning International Investment Agreements With The Sustainable Development Goals, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to …

Draft Transparency Policy And Dfc Board Of Directors Public Engagement Policy, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Submission to the US International Development Finance Corporation (DFC) regarding its draft Transparency Policy and Board of Directors Public Engagement Policy (2020).

The Application And Advancement Of International Law: France's New Cybersecurity Policy, Jonathan Katz

Fordham Undergraduate Law Review

The prolific growth of technological advancements has undoubtedly improved the quality of life for many, both directly and indirectly. However, the integral role technology now plays in our society presents a plethora of opportunities for the technologically-savvy to exploit; the consequences of such, many world leaders are incapable of dealing with. The 2016 United States Council of Economic Advisers estimated that pernicious operations resulted in losses upwards of fifty billion dollars. Indeed, hackers have intervened in governmental affairs, most notably in the fields of national defense, central infrastructure, and information and communication technologies (ICT).

In most cases, these crimes cross …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Whitman And The Fiduciary Relationship Conundrum, Lisa Fairfax

All Faculty Scholarship

While the law on insider trading has been convoluted and, in Judge Jed S. Rakoff’s words, “topsy turvy,” the law on insider trading is supposedly clear on at least one point: insider trading liability is premised upon a fiduciary relationship. Thus, all three seminal U.S. Supreme Court cases articulating the necessary elements for demonstrating any form of insider trading liability under § 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 made crystal clear that a fiduciary relationship represented the lynchpin for such liability.

Alas, insider trading law is not clear about the source from which the fiduciary …

Lorenzo V. Sec: Blurring The Line Between Primary And Secondary Securities Fraud Liability, Brian Elzweig

University of Cincinnati Law Review

No abstract provided.

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Missing The Role Of Property In The Regulation Of Insider Trading, Kevin R. Douglas

Catholic University Law Review

For decades, legal scholars have evaluated the law and practice of insider trading through a property lens. Some have debated whether a property rationale is useful for explaining past cases or might make a useful framework for deciding tough cases in the future. Others have explored which market actors should be allocated property rights in inside information in order to increase the efficiency or liquidity of U.S. securities markets. Yet scholars seem to have missed the fact that officials have consistently relied on the violation of some party’s property rights to justify imposing liability for insider trading—including in classical theory …

The Comet Framework: Greenhouse Gas Data Transparency To Enable The Success Of Eu Climate Policy, Martin Dietrich Brauch, Solina Kennedy

Columbia Center on Sustainable Investment Staff Publications

To further and fully understand how to plan for the decarbonization of mining value chains, we need better data on carbon and other greenhouse gas (GHG) emissions. However, neither consumers, corporates, or financial institutions know the embodied emissions in the products they produce or sell. While methods like life-cycle analysis and environmental product declarations exist, none use a verifiable, comparable, or widely adopted emissions reporting framework capable of sending supply chain signals.

To truly reform material supply chains, new solutions for markets, capital, and policy are required. COMET (the Coalition on Materials Emissions Transparency)—an alliance launched at Davos in January …

Congressional Securities Trading, Gregory Shill

Indiana Law Journal

The trading of stocks and bonds by Members of Congress presents several risks that warrant public concern. One is the potential for policy distortion: lawmakers' personal investments may influence their official acts. Another is a special case of a general problem: that of insiders exploiting access to confidential information for personal gain. In each case, the current framework which is based on common law fiduciary principles is a poor fit. Surprisingly, rules from a related context have been overlooked.

Like lawmakers, public company insiders such as CEOs frequently trade securities while in possession of confidential information. Those insiders' trades are …

The Independent Board As Shield, Gregory H. Shill

Washington and Lee Law Review

The fiduciary duty of loyalty bars CEOs and other executives from managing companies for personal gain. In the modern public corporation, this restriction is reinforced by a pair of institutions: the independent board of directors and the business judgment rule. In isolation, each structure arguably promotes manager fidelity to shareholder interests—but together, they enable manager prioritization. This marks a particularly striking turn for the independent board. Its origin story and raison d’être lie in protecting shareholders from opportunism by managers, but it functions as a shield for managers instead.

Numerous defects in the design and practice of the independent board …

High Seas Governance: Gaps And Challenges, Bernard H. Oxman

Articles

No abstract provided.

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Real Insider Trading, Michael A. Perino

Washington and Lee Law Review

In popular rhetoric, insider trading cases are about leveling the playing field between elite market participants and ordinary investors. Academic critiques vary. Some depict an untethered insider trading doctrine that enforcers use to expand their power and enhance their discretion. Others see enforcers beset with agency cost problems who bring predominantly simple, easily resolved cases to create the veneer of vigorous enforcement. The debate has, to this point, been based mostly on anecdote and conjecture rather than empirical evidence. This Article addresses that gap by collecting extensive data on 465 individual defendants in civil, criminal, and administrative actions to assess …

Revisiting The Law Of Confidence In Singapore And A Proposal For A New Tort Of Misuse Of Private Information, Cheng Lim Saw, Zheng Wen Samuel Chan, Wen Min Chai

Research Collection Yong Pung How School Of Law

This article critically examines the recent Court of Appeal decision in I-Admin (Singapore) Pte Ltd v Hong Ying Ting [2020] 1 SLR 1130 and its implications for the law of confidence. The article begins by setting out the decision at first instance, and then on appeal. It argues that the Court of Appeal’s “modified approach” fails to meaningfully engage the plaintiff ’s wrongful gain interest and places the law’s emphasis primarily, if not wholly, on the plaintiff ’s wrongful loss interest. The new framework also appears to have been influenced by English jurisprudence, which has had a long but unhelpful …

Chiarella V. United States And Its Indelible Impact On Insider Trading Law, Donna M. Nagy

Articles by Maurer Faculty

Insider trading cases, which are typically prosecuted as securities fraud, carry a mystique rarely present in securities litigation. As a former U.S. Attorney for the Southern District of New York once observed, the cases involve "'basically cops and robbers. . . .[d]id you get the information and did you trade on it?" It is no wonder that each insider trading case featured in this symposium presents a captivating story. But for two distinct reasons, Chiarella v. United States occupies a special place in history. It was the first prosecution under the federal securities laws for the crime of insider trading. …

Airdrops: “Free” Tokens Are Not Free From Regulatory Compliance, Bridgett S. Bauer Esq.

University of Miami Business Law Review

No abstract provided.

The Bleeding Edge: Theranos And The Growing Risk Of An Unregulated Private Securities Market, Theodore O'Brien

University of Miami Business Law Review

America’s securities laws and regulations, most of which were created in the early twentieth century, are increasingly irrelevant to the most dynamic emerging companies. Today, companies with sufficient investor interest can raise ample capital through private and exempt offerings, all while eschewing the public exchanges and the associated burdens of the initial public offering, public disclosures, and regulatory scrutiny. Airbnb, Inc., for example, quickly tapped private investors for $1 billion in April of 2020, adding to the estimated $4.4 billion the company had previouslyraised.2 The fundamental shift from public to private companies is evidenced by the so-called “unicorns,” the more …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Equipping The Nigerian National Petroleum Corporation For The Low-Carbon Transition: How Are Other National Oil Companies Adapting?, Perrine Toledano, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye, Francisco Javier Pardinas Favela

Columbia Center on Sustainable Investment Staff Publications

The Nigerian National Petroleum Corporation’s (NNPC) persistent governance challenges have both hampered Nigeria’s oil sector development and deprived the country of public resources. The oil, climate, and COVID-19 crises and the ramp-up of the low-carbon transition exacerbate this reality, with the national oil company (NOC) delivering sub-optimal returns to its stakeholders.

Other NOCs have taken meaningful steps to become players in the low-carbon energy transition domestically or in­ternationally – for example, Sau­di Arabia’s Saudi Aramco, Norway’s Equinor, Brazil’s Petrobras, Malaysia’s Petronas, and Algeria’s Sonatrach. These NOCs can serve as sources of inspiration for NNPC. These five NOCs have also undergone …

Mining And The Sdgs: A 2020 Status Update, Responsible Mining Foundation, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In September 2015, the UN member states agreed on a set of 17 Sustainable Development Goals (SDGs), which represent the global agenda for equitable, socially inclusive, and environmentally sustainable economic development until 2030. Mining companies have the potential to become leading partners in achieving the SDGs. Through their direct operations, mining companies can generate profits, employment, and economic growth in low-income countries. And through partnerships with government and civil society, mining companies can ensure that benefits of mining extend beyond the life of the mine itself, so that the mining industry has a positive impact on the natural environment, climate …

Getting The Most Out Of Extractive Industries Transparency: How A More Explicit Treatment Of Political Considerations Could Strengthen The Impact Of Transparency Efforts, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Work on transparency in the extractive industries (EI) has achieved important successes over the last two decades. For example, significant commitments to disclosure have been secured, the volume of publicly available information about critical activities has increased considerably, and norms around certain information being in the public domain have been established. There is also a growing library of use cases for this information. Nonetheless, important work remains to be done to translate these efforts into impact.

Political context is crucial to determining the fate of transparency efforts. Therefore, grappling with political context more effectively will also be key to unlocking …

Securities Regulation And Social Media, Seth C. Oranburg

Law Faculty Scholarship

Federal securities regulation originally divided corporate finance into two neat categories, public and private. In 1933, private financing was limited to “sophisticated” investors but otherwise lightly regulated. Public financing became heavily regulated. In 1982, the SEC introduced Reg D, which introduced the concept of “general solicitation” to clarify the distinction between public and private offerings. Reg D is well understood to prohibit newspaper advertisements and permit direct solicitations to venture capital investors. This enabled great wealth consolidation in regions like Silicon Valley while effectively banning general solicitations in private offerings.

Now, social media communication challenges the definition of “general solicitation.” …