Law Commons^™

4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci

Touro Law Review

No abstract provided.

Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel

Michael L Seigel

This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is …

Coming Up Short: The United States' Second-Best Strategies For Corralling Purely Speculative Derivatives, Timothy E. Lynch

Faculty Works

Purely speculative derivatives (PSDs) are derivatives in which neither counterparty is engaged in hedging. Unless used for entertainment purposes, PSDs are irrational, less-than-zero-sum transactions. Entities that engage in PSDs jeopardize their stakeholders and increase systemic risk. PSDs can also increase moral hazard, be used for regulatory arbitrage, and redirect resources away from efficient allocation of market capital. PSDs should be unenforceable, void for public policy reasons, except where expressly permitted to provide gambling entertainment, enhance price discovery, or increase liquidity for hedgers. In the U.S., however, PSDs are often legal and enforceable, even after the financial crisis of 2008 that …

Aml In The Spotlight: Compliance Risks For Broker-Dealers And Investment Advisers, John H. Walsh, Cecilia Baute Mavico

The Journal of Business, Entrepreneurship & the Law

In light of regulators' renewed attention, this article discusses recent events, reviews AML enforcement actions against securities firms, and identifies the compliance risks they suggest. The article concludes that the time has come for broker-dealers and advisers alike to take a holistic view of compliance and their AML risks, and to prepare for enhanced oversight and regulation.

Securities Regulation - Great Expectations And The Reality Of Rule 144a And Regulation S; The Sec's Approach To The Internationalization Of The Financial Marketplace, R. Brandon Asbill

Georgia Journal of International & Comparative Law

No abstract provided.

From German Shepherds To Wet Poodles: The Sec Exacts Concessions From Daimler-Benz Concerning Disclosure Of Its Hidden Reserves, Andrew H. Walcoff

Georgia Journal of International & Comparative Law

No abstract provided.

Sec V. Bauer: If The Glove Fits, It's Insider Trading, Kramer Ortman

Catholic University Law Review

Until SEC v. Bauer, insider trading has never been applied within the context of an open-ended mutual fund. In alleging insider trading against Jilaine Bauer, an account executive of a mutual fund, the SEC originally won summary judgment; however, the case on appeal saw the SEC drop its original theory, the classical theory of insider trading, in favor of the alternative misappropriation theory. This Note argues that the misappropriation theory applies in the context of open-ended mutual funds by recognizing that the policy reasons underlying the prohibitions against insider trading are centered on the principles of fairness, market integrity, …

The Facebook Status That Sparked An Sec Investigation: Regulation Fair Disclosure And The Growth Of Social Media, Alyssa Wanser

Touro Law Review

No abstract provided.

An Officer Walks Into A Bar: Acknowledging The Need For Deterrence In Officer And Director Bars, Steven W. Shuldman

Fordham Law Review

The U.S. Securities and Exchange Commission (SEC) is the civil regulatory agency responsible for helping to defend and protect the American investor. One significant threat to investor security occurs when an individual, acting as an officer or director, violates a fiduciary duty to his or her employer and its shareholders, risking investor money. These actions could involve insider trading, fraudulent statements in public filings, or other self-serving conduct.
Recognizing the importance of deterring such misconduct, Congress gave the SEC the authority to bar certain individuals from serving as officers and directors of public companies. An individual should be barred if …

A Comparative Study Of Monitoring Of Management In German And U.S. Corporations After Sarbanes-Oxley: Where Are The German Enrons, Worldcoms, And Tycos?, Florian Stamm

Georgia Journal of International & Comparative Law

No abstract provided.

The Sarbanes-Oxley Act Of 2002: Are Stricter Internal Controls Constricting International Companies?, Jennifer K. Coalson

Georgia Journal of International & Comparative Law

No abstract provided.

Securities Laws As Foreign Policy, Karen E. Woody

Nevada Law Journal

No abstract provided.

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Since 1978, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. The NACD has grown from a mere realization of the importance of corporate governance to become the only national membership organization created by and for corporate directors. …

Legal Summaries, Hsuan Li

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Remembering George Michaely, Lawrence J. Trautman, Stanley Sporkin, John A. Dudley

Lawrence J. Trautman Sr.

This short essay is a memorial tribute about George P. Michaely, Jr. (1926 to 2014). After graduating from both the University of Notre Dame and its law school, he began his legal career, serving for approximately seven years as attorney in the Office of General Counsel. He was then appointed Chief Counsel of the Commission’s Division of Corporation Finance, where he served for approximately the next four years and was responsible for advising the Commission and the public concerning the interpretation of the statutory provisions and rules relating to the registration provisions of the Securities Act of 1933 and the …

Canceling The Order: How High Frequency Traders Are Disrupting The Derivatives Market, And What The Regulators Can Do To Stop Them, Andrew C. Burr

Andrew C Burr

High Frequency Trading (“HFT”) is now a part of the modern financial lexicon, and inspires feelings of awe, fear, and ignorance. While millions of investors around the world are still trying to grapple with what exactly HFT is and does, the U.S. regulators who are tasked with investigating and charging manipulators are finding themselves in a quandary of how to prosecute the offenders. Further, while the media has focused its attention on the U.S. Securites Exchange Commission’s (“SEC”) new policies on the subject, few have noticed the progress made by the U.S. Commodity Futures Trading Commission (“CFTC”), and how the …

Is The Independent Director Model Broken?, Roberta S. Karmel

Seattle University Law Review

At common law, an interested director was barred from participating in corporate decisions in which he had an interest, and therefore “dis-interested” directors became desirable. This concept of the disinterested director developed into the model of an “independent director” and was advocated by the Securities and Exchange Commission and court decisions as a general ideal in a variety of situations. This Article explores doubts regarding the model of an “independent director” and suggests that director expertise may be more important that director independence. The Article then discusses shareholder primacy and sets forth alternatives to the shareholder primacy theory of the …

The Sec Whistleblower Program - What Employers Need To Know, Matthew P. Allen

Matthew P. Allen

No abstract provided.

Proposed Crowdfunding Regulations Under The Jobs Act: Please, Sec, Revise Your Proposed Regulations In Order To Promote Small Business Capital Formation, Rutheford B. Campbell Jr.

Law Faculty Advocacy

The Jobs Act was enacted to promote efficient access to external capital by small businesses. Title III of the Jobs Act offers small businesses the chance of efficient financial intermediation through crowdfunding. The crowdfunding exemption is not self-executing but, instead, requires regulatory implementation by the SEC.

The Commission’s first iteration of its crowdfunding rules fails to offer small businesses efficient access to external capital. Principally, this is because the proposed crowdfunding rules: (1) require excessive disclosures, especially regarding smaller crowdfunding offerings; (2) fail to offer small businesses relying on the crowdfunding exemption two-way safe harbor integration protection; and (3) fail …

Exculpatory Hedge Clauses In Investment Advisory Contracts: Developments Since Heitman Capital, Francis J. Facciolo, Leland Solon

Faculty Publications

The Investment Company Act of 1940 (ICA) and the Investment Advisers Act of 1940 (IAA) prevent an investment adviser from contractually limiting liability to its advisees through three main routes: statutory anti-waiver prohibitions, the IAA’s anti-fraud provisions, and limitations on indemnification by registered investment companies of their investment advisers. This article focuses on one of these three areas, the IAA’s anti-fraud provisions, and specifically, the SEC’s expansive interpretations of those anti-fraud provisions to cover exculpatory “hedge clauses” – caveats or cautionary statements – by investment advisers purporting to limit their liability to their advisees.

Unfinished Business: Dodd-Frank's Whistleblower Anti-Retaliation Protections Fall Short For Private Companies And Their Employees, Chelsea Hunt Overhuls

The Journal of Business, Entrepreneurship & the Law

The Sarbanes-Oxley Act of 2002 (“SOX”) revolutionized the world of securities law whistleblowing. It encouraged employees to reveal corporate fraud by providing federal anti-retaliation protection to incentivize such reports. Securities law whistleblowing was transformed a second time in 2010 when Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Under Dodd-Frank, employees that report information to the Securities and Exchange Commission (“SEC”) are not only provided federal anti-retaliation protections but also are eligible for a hefty bounty. Two major differences separate these statutes: (1) SOX is limited to employees of companies who are subject to the reporting …

Broker-Dealers, Institutional Investors, And Fiduciary Duty: Much Ado About Nothing, Lin (Lynn) Bai

Faculty Articles and Other Publications

Under the mandate of Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the SEC is soliciting public opinions on whether broker-dealers should be subject to a fiduciary duty when advising retail and institutional investors. This paper focuses on the advisability of such a proposal for institutional investors. It shows that (1) a fiduciary duty could potentially enhance broker-dealers’ standard of conduct for only a subset of institutional investors who are well capitalized, capable of assessing risks independently, and acknowledge in writing their non-reliance on broker-dealers’ advice. Thus, the benefit of fiduciary duty is much narrower than what its …

Foreign Corrupt Practices Act Ripples, Mike Koehler

American University Business Law Review

No abstract provided.

Sec Preventative Measures Against Securities Violations And Fraud Post-Jobs Act, Kristie Benner

Kristie Benner

The purpose of the Securities Act and the Exchange Act is to supply investors with the necessary information to make informed decisions regarding an entity’s offerings. After the 2010 financial crisis, the economic crisis devastated the economy leaving many without jobs. In response to this economic recession, President Obama signed the Jumpstart Our Business Startups Act (JOBS Act) into law in 2012 as one method of stimulating the economy. This Act deregulated the securities laws for small businesses in the hopes of creating jobs and invigorating the economy. These changes allow a small business more access to capital by reducing …

Admission Of Guilt: Sinking Teeth Into The Sec's Sweetheart Deals, Larissa Lee

Larissa Lee

Throughout its existence, the Securities and Exchange Commission (SEC) has allowed defendants to settle cases without admitting to the allegations of wrongdoing. This “neither admit nor deny” policy has received heavy criticism by judges, Congress, and the public, especially in the wake of the 2008 financial crisis. On June 18, 2013, SEC Chairman Mary Jo White announced the agency’s intention to require admissions of guilt in certain cases. While Chairman White did not articulate a clear standard of when admissions would be required, she did say that the agency would focus on the egregiousness of the defendant’s conduct and the …

A New Affirmative Defense To The Fcpa For Countries Exiting Major Internal Strife, Chris Rohde

Richmond Journal of Global Law & Business

No abstract provided.

Grade Incomplete: Examining The Securities And Exchange Commission's Attempt To Implement Credit Rating And Certain Corporate Governance Reforms Of Dodd-Frank, Tod Perry, Randle B. Pollard

Scholarly Articles

Following the financial crisis of 2007-2009, Congress passed the Dodd-Frank Act with stated goals, among others, of creating a sound economic foundation and protecting consumers. The Dodd-Frank Act creates several new agencies and restructures the financial regulatory system, yet controversies remain on the promulgation of new rules and the overall effectiveness in accomplishing the stated goals of the Act.

This Article briefly discusses the status of rulemaking by newly created agencies and the restructured financial regulatory system mandated by the Dodd- Frank Act three years after its passage. Next, we focus on certain aspects of the SEC and its charge …

High-Frequency Trading: A Regulatory Strategy, Charles R. Korsmo

University of Richmond Law Review

No abstract provided.

Universal Anti-Bribery Legislation 
Can Save International Business: A Comparison Of The Fcpa And The Ukba In An Attempt To Create 
Universal Legislation To Combat
 Bribery Around The Globe, Lindsey Hills

Richmond Journal of Global Law & Business

No abstract provided.

Regulation Of Derivative Financial Instruments (Swaps, Options, And Futures), Ronald H. Filler, Jerry W. Markham

Books

As a result of the Dodd-Frank Act Wall Street Reform and Consumer Protection Act of 2010, derivatives regulation has become a hot topic on Wall Street and is, therefore, of much interest to law firms with financial institutions as clients. An increasing number of classes on this subject are being taught at law schools around the country, but, to date, there has been no casebook on the subject.

This casebook explores the regulation of swaps, futures and options by the Commodity Futures Trading Commission and the Securities and Exchange Commission. It examines the regulatory history of derivative instruments and traces …