Law Commons^™

Self-Regulation Of Insider-Trading In Mutual Funds And Advisers, Tamar Frankel

Faculty Scholarship

Mutual funds are required to impose Codes of Ethics on many of their employees. Did this requirement make a difference? After all, similar Codes proliferate in many other financial and business corporations! ⁴ with fairly miserable results. In fact, the temptations facing employees and managers of many business corporations that published self-imposed Codes are relatively weaker than the temptations facing employees and managers of mutual funds. Yet as compared to mutual funds, these business companies have failed to prevent insider-trading!

I believe that regulated mutual funds are less prone to insider-trading than non-regulated funds and traders because their Codes of …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

West Virginia Law Review

Under federal securities laws and regulations, public companies must disclose to investors a considerable amount of information about their risk management processes to limit losses. In contrast, these companies need not disclose virtually anything about their strategic management processes to gen- erate gains. This mismatch in disclosure gives investors a distorted sense of firm processes to create value, undermining the federal securities laws' central purpose of creating informed investors. It also signals that risk management processes, which are cast in disclosure sunlight, are more important to firm success than strategic management processes, which remain in the shadows. To address these …

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). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …

Securities Violations In 140 Characters Or Less: Social Media And Its Growing Impact On The Securities Industry, Kevin Etzel

Touro Law Review

As social media continues its rapid ascent, the law must be able to keep pace. The securities industry is where one area that must keep pace. This Comment demonstrates the drastic effects, both positive and negative, that social media has on securities regulation.

In Search Of Safe Harbor: Suggestions For The New Rule 506(C), Usha Rodrigues

Scholarly Works

I devote most of this essay to exploring how, exactly, the Securities and Exchange Commission (“SEC”) should go about providing guidelines to implement the statutory requirement that issuers have a reasonable belief that a purchaser is accredited. The SEC has proposed rules, but these rules merely restate what Congress has already required, thus sidestepping Congress’s direction that the agency itself articulate some verification methods. Taking the SEC’s decidedly amorphous proposal to task, I recommend that the SEC offer two nonexclusive safe harbors for issuers to guide them in determining whether a natural person is an accredited investor. The paragraphs below …

Legal Summaries, Susan Christopher

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

There's A New Sheriff In Town - Will The New Sec Chairman Allow Issuers Of American Depository Receipts To Use International Accounting Standards To Satisfy Listing Requirements On U.S. Exchanges?, Joseph J.M. Orabona

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Business Roundtable V. Securities And Exchange Commission: The Sec's First Big Shot At Proxy Access In The Shadow Of Dodd-Frank, Raymond E. Areshenko

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

When The Government Attempts To Change The Board, Investors Should Know, William O. Fisher

Pepperdine Law Review

In 2008 and 2009, the federal government effectively hired and fired directors at American International Group and Bank of America, without any securities filing of the sort that would have been required had a private market actor attempted to change the boards at those companies. The fact that current law allows the government to secretly reconstitute the governing bodies of multibillion-dollar, publicly traded companies is cause for concern, for who controls the board controls the company. This Article argues that, just as securities filings alert investors when private parties attempt board change, a new required filing should inform investors when …

Legal Summaries, Jamie H. Kim

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Long Road Back: Business Roundtable And The Future Of Sec Rulemaking, Jill E. Fisch

Seattle University Law Review

The Securities and Exchange Commission (SEC or Commission) has faced a number of challenges in the last few years. Judge Rakoff’s decision in Citigroup, the Madoff scandal, and the Business Roundtable decision are just a few of the developments that have dealt lasting damage to the SEC’s reputation. Critics have scrutinized the agency’s decisionmaking on multiple fronts—from its enforcement policy to the quality of its rulemaking—and the SEC has largely come up short in the analysis. The once-revered top cop of the securities markets has taken a hit, and it is unclear whether it can recover. The Business Roundtable decision …

Rule 10b-5(B) Enforcement Actions In Light Of Janus: Making The Case For Agency Deference, Matthew P. Wynne

Fordham Law Review

This Note addresses whether the Supreme Court’s recent decision in Janus Capital Group, Inc. v. First Derivative Traders applies to the Securities and Exchange Commission (SEC), and, if not, whether the SEC’s own interpretation of Rule 10b-5 should be entitled to deference in future SEC enforcement actions. Since its promulgation in 1942, Rule 10b-5 has been the subject of much debate, particularly regarding the scope of the private right of action that courts have interpreted the rule to imply. Having acknowledged that an implied right exists, the Supreme Court quickly began to limit Rule 10b-5 claims of private plaintiffs, citing …

Alternatives For Small Business Raising Capital Under The Securities Act Of 1933, David H. Barber

Pepperdine Law Review

The problems encountered by the business community in raising capital for new or small businesses has spurned implementation of responsive policy and regulations by the Securities and Exchange Commission. As a result of input from a series of nationwide small business hearings, the S.E.C. has recently demonstrated its commitment to aiding capital raising needs. This was accomplished by creating an Office of Small Business Policy to respond to the effects of major new changes to the Securities Act of 1933 which seek to facilitate the process of capitalization of small business. Professor David H. Barber, of Brigham Young University's J. …

The Sec Cooperation Initiative And Its Criminal Roots, Matthew P. Allen

Matthew P. Allen

No abstract provided.

Curbing Broker-Dealers' Abusive Sales Practices: Does Professor Jensen's Integrity Framework Offer A Better Approach?, Barbara Black

Faculty Articles and Other Publications

Retail investors, particularly senior citizens, need competent and careful investment advice more than ever before. Many must rely on the services provided by investment advice providers, including broker-dealers. Regulators have sounded the alarm about sales of risky, complex products to retail customers in search of better returns, especially senior citizens and retirees. Both the SEC and FINRA have identified abusive broker-dealer sales practices as priorities in their examinations of broker-dealers and have brought numerous enforcement actions against broker-dealers for sales practices that harm retail investors. These enforcement actions frequently allege both failures of the firms’ due diligence processes to assure …

Business Lawyering In The Crowdfunding Era, John Macleod Heminway

American University Business Law Review

No abstract provided.

Rise Of The Intercontinentalexchange And Implications Of Its Merger With Nyse Euronext, Latoya C. Brown

Latoya C. Brown, Esq.

This paper examines the impending merger between the IntercontinentalExchange (ICE) and NYSE Euronext against the backdrop of the current structure of the global financial services industry. The paper concludes that the merger embodies what the financial services industry is becoming and captures the model that will allow exchanges to remain competitive in today’s marketplace: mega-exchanges with broader asset classes and electronic platforms. As technology and globalization threaten their vitality, exchanges will need to continue reinventing and adapting. Increasingly over the last decade they have done so by merging and by moving, at least a part of, their operations on screen. …

The Regulation Of U.S. Money Market Funds: Lessons From Europe, Latoya C. Brown

Latoya C. Brown, Esq.

The recent financial crisis challenged long held perceptions of money market funds (“MMFs”) as stable and highly liquid instruments. Regulators in the US and in Europe now seek to impose additional rules on MMFs to avoid another significant failure as happened to the Reserve Fund. In the US, the debate is drawing even more media attention as question of which regulatory body - such as the Securities and Exchange Commission, the Treasury Department, and the Financial Stability Oversight Council – should lead the way has taken interesting twists and turns. This paper examines primary reform options being proposed in the …

"Ice" Capades: Restitution Orders And The Fcpa, Shane Frick

Richmond Journal of Global Law & Business

No abstract provided.

Dodd-Frank And International Regulatory Convergence: The Case For Mutual Recognition, Nicholas W. Turner '12

NYLS Law Review

No abstract provided.

An Examination Of Foreign Corrupt Practices Act Issues, Mike Koehler

Richmond Journal of Global Law & Business

This article provides an overview of 2012 Foreign Corrupt Practice Act enforcement and examines the top FCPA issues from the year. The goal of the article is to place FCPA enforcement in better context and provide readers a more informed base in analyzing enforcement trends, assess- ing enforcement agency rhetoric and policy positions, and in sifting through the mounds of information disseminated by FCPA Inc.

Crowdfunding Securities, Andrew A. Schwartz

Publications

A new federal statute authorizes the online "crowdfunding" of securities, a new idea based on the concept of "reward" crowdfunding practiced on Kickstarter and other websites. This method of selling securities had previously been banned by federal securities law but the new CROWDFUND Act overturns that prohibition.

This Article introduces the CROWDFUND Act and explains that it can be expected to have two primary effects on securities law and capital markets. First, it will liberate startup companies to use peer networks and the Internet to obtain modest amounts of capital at low cost. Second, it will help democratize the market …

Resurrecting Court Deference To The Securities And Exchange Commission: Definition Of “Security”, Steven J. Cleveland

Catholic University Law Review

No abstract provided.

Foreign Official Define Thyself: How To Define Foreign Officials And Instrumentalities In The Face Of Aggressive Enforcement Of The Foreign Corrupt Practices Act, Alexander L. Harisiadis

Catholic University Law Review

No abstract provided.

The Long Road Back: Business Roundtable And The Future Of Sec Rulemaking, Jill E. Fisch

All Faculty Scholarship

The Securities and Exchange Commission has suffered a number of recent setbacks in areas ranging from enforcement policy to rulemaking. The DC Circuit’s 2011 Business Roundtable decision is one of the most serious, particularly in light of the heavy rulemaking obligations imposed on the SEC by Dodd-Frank and the JOBS Act. The effectiveness of the SEC in future rulemaking and the ability of its rules to survive legal challenge are currently under scrutiny.

This article critically evaluates the Business Roundtable decision in the context of the applicable statutory and structural constraints on SEC rulemaking. Toward that end, the essay questions …

Keep It Light, Chairman White: Sec Rulemaking Under The Crowdfund Act, Andrew A. Schwartz

Publications

Title III of the JOBS Act, known as the CROWDFUND Act, authorizes the “crowdfunding” of securities, defined as raising capital online from many investors, each of whom contributes only a small amount. The Act was signed into law in April 2012, and will go into effect once the Securities and Exchange Commission (“SEC”) promulgates rules and regulations to govern the new marketplace for crowdfunded securities. This Essay offers friendly advice to the SEC as to how to exercise its rulemaking authority in a manner that will enable the Act to achieve its goals of creating an ultralow-cost method for raising …