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Articles 31 - 60 of 125
Full-Text Articles in Banking and Finance Law
China's Belt And Road Initiative: An Examination Of Project Financing Issues And Alternatives, August Nelson Dinwiddie
China's Belt And Road Initiative: An Examination Of Project Financing Issues And Alternatives, August Nelson Dinwiddie
Brooklyn Journal of International Law
In 2013, China launched the Belt and Road Initiative (BRI) to realize the vision of revitalizing the ancient Silk Road. The BRI can be characterized as a vast infrastructure development initiative spanning over sixty-five countries that total almost half of the world's GDP. Since its launch, BRI projects have primarily been financed through commercial loans provided by Chinese banks, creating concerns over debt sustainability. At the top of these concerns are fears over whether participation in the BRI will lead to a "debt-trap scenaro." Public-Private Partnerships (PPPs) provide an alternative financing option. In project development under a PPP, particularly the …
Little Power Struggles Everywhere: Attacks On The Administrative State At The Securities And Exchange Commission, Roberta S. Karmel
Little Power Struggles Everywhere: Attacks On The Administrative State At The Securities And Exchange Commission, Roberta S. Karmel
Faculty Scholarship
No abstract provided.
Buyer Beware: Variation And Opacity In Esg And Esg Index Funds, Dana Brakman Reiser, Anne Tucker
Buyer Beware: Variation And Opacity In Esg And Esg Index Funds, Dana Brakman Reiser, Anne Tucker
Faculty Scholarship
No abstract provided.
Compliance Officers: Personal Liability, Protections, And Posture, Jennifer M. Pacella
Compliance Officers: Personal Liability, Protections, And Posture, Jennifer M. Pacella
Brooklyn Journal of Corporate, Financial & Commercial Law
This Symposium Article will explore the evolving nature of the regulatory and enforcement landscape as it pertains to compliance officers, specifically regarding their susceptibility to personal liability. It will examine the posture of compliance officers in three contexts: i) as a possible target for enforcement activity by regulators; ii) as a quasi-professional subject to a current regime of “non-regulation”; and iii) as an employee in need of ample whistleblower protections, each of which create implications for a compliance officer’s risk of personal liability and protections as a constituent of the organization monitored. After considering the current guidance surrounding enforcement activity …
Artificial Intelligence & Artificial Prices: Safeguarding Securities Markets From Manipulation By Non-Human Actors, Daniel W. Slemmer
Artificial Intelligence & Artificial Prices: Safeguarding Securities Markets From Manipulation By Non-Human Actors, Daniel W. Slemmer
Brooklyn Journal of Corporate, Financial & Commercial Law
Securities traders are currently competing to use Artificial Intelligence (A.I.) in order to make more profitable decisions in the marketplace. While A.I. provides superior abilities in recognizing market patterns, its complexity can obscure its decision-making process beyond human comprehension. Problematically, the current securities laws prohibiting manipulation of securities prices rest liability for violations on a trader’s intent. In order to prepare for A.I. market participants, both courts and regulators need to accept that human concepts of decision-making will be inadequate in regulating A.I. behavior. However, the wealth of case law in the market manipulation doctrine need not be cast aside. …
Things Fall Apart (Next Door): Discriminatory Maintenance And Decreased Home Values As The Next Fair Housing Battleground, Michelle Y. Ewert
Things Fall Apart (Next Door): Discriminatory Maintenance And Decreased Home Values As The Next Fair Housing Battleground, Michelle Y. Ewert
Brooklyn Law Review
Banks that once preyed on communities of color through predatory lending now drive property values down by failing to adequately maintain foreclosed properties they own in those neighborhoods. Declining home values are especially destructive in communities of color because the family home is often a household’s most significant asset and, thus, the key to accumulating wealth and creating opportunity. This article argues that neighboring homeowners whose property values have declined as a result of banks’ discriminatory maintenance of foreclosed properties have standing to sue those banks under the Fair Housing Act (FHA). This article explores historic barriers to homeownership in …
Why Does The Sec Hate Lawyers And Will The Bitterness Ever Go Away: A Review Of The Reasons For The Current State Of This Relationship And A Proposed Path Forward, Ernest Edward Badway, Joshua Horn, Christie Mcguinness
Why Does The Sec Hate Lawyers And Will The Bitterness Ever Go Away: A Review Of The Reasons For The Current State Of This Relationship And A Proposed Path Forward, Ernest Edward Badway, Joshua Horn, Christie Mcguinness
Brooklyn Journal of Corporate, Financial & Commercial Law
The United States Securities and Exchange Commission (“SEC” or “Commission”) and its staff (“Staff”) have brought numerous actions against lawyers in a variety of contexts over the last several years. These enforcement actions have arguably prevented zealous advocacy as well as potentially leaving lawyers reluctant to make certain arguments on behalf of their clients so as to avoid potential disciplinary actions against them. While it is important for the Commission and its Staff to ensure that lawyers do not engage in violative conduct, this Article notes that the SEC and its Staff’s actions should be limited to only those occasions …
Transparency In Corporate Groups, Jay Lawrence Westbrook
Transparency In Corporate Groups, Jay Lawrence Westbrook
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article addresses a remarkable blind spot in American law: the failure to apply the well-established principles of secured credit to prevent inefficiency, confusion, and fraud in the manipulation of the webs of subsidiaries within corporate groups. In particular, “asset partitioning” has been a fashionable subject in which the central problem of non-transparency has been often mentioned but little addressed. This Article offers a concept for a new system of corporate disclosure for the benefit of creditors and other stakeholders. It would require disclosure of corporate structures and allocations of assets among affiliates to the extent the affiliates are to …
Insider Trading: Are Insolvent Firms Different?, Andrew Verstein
Insider Trading: Are Insolvent Firms Different?, Andrew Verstein
Brooklyn Journal of Corporate, Financial & Commercial Law
Federal law restricts insider trading. Yet these restrictions operate differently on insolvent or bankrupt firms. The law is more constraining in some respects: federal law extensively regulates the trading of residual claims in solvent firms but not insolvent firms. However, the law is more constraining in other respects: insider trading law does little to limit debt-trading at solvent firms, but a bankruptcy enmeshes all creditors in a web of insider trading rules. This Article identifies insolvency’s economic and legal influence on insider trading law and then normatively evaluates this transformation.
Backstop, Not Bailout: The Case For Preserving The Orderly Liquidation Authority Under Dodd-Frank, Mark R. Maciuch
Backstop, Not Bailout: The Case For Preserving The Orderly Liquidation Authority Under Dodd-Frank, Mark R. Maciuch
Brooklyn Journal of Corporate, Financial & Commercial Law
The Trump Administration and Republicans have initiated efforts to repeal certain provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), one of which is the Orderly Liquidation Authority (OLA) under Title II of Dodd-Frank. Critics of the OLA argue that it enables, rather than prevents, future bailouts funded by taxpayers. These critics are concerned with the Federal Deposit Insurance Corporation’s (FDIC) discretion to decide when and how to resolve distressed financial firms, as well as the FDIC’s access to large amounts of funds from the U.S. Department of the Treasury to carry out these functions. Proponents of …
The End Of The Home Affordable Modification Program And The Start Of A New Problem, Christopher K. Whelan
The End Of The Home Affordable Modification Program And The Start Of A New Problem, Christopher K. Whelan
Brooklyn Law Review
The mortgage crisis hit the United States hard, leaving millions of homeowners facing hardship and foreclosure. One of many programs enacted during the mortgage crisis was the Home Affordable Modification Program (HAMP). The Obama Administration set out to assist three to four million struggling homeowners in modifying their mortgages and avoiding foreclosure. This note examines HAMP, focusing on the years of litigation that shaped HAMP, giving life to a program that was built on a foundation ready to crack. HAMP provided homeowners with modified mortgage payments, typically beginning with a trial period plan. Once completed, homeowners were routinely denied, resulting …
Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham
Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of …
Financing Green: Reforming Green Bond Regulation In The United States, Echo Kaixi Wang
Financing Green: Reforming Green Bond Regulation In The United States, Echo Kaixi Wang
Brooklyn Journal of Corporate, Financial & Commercial Law
In recent years, green bonds have emerged as a way for the financial industry to contribute to environmentally friendly projects, combat climate change, and provide funds for green infrastructures across the world. While the green bond market has expanded drastically across large nations in Europe and Asia, market growth has stalled in the United States, in part due to a lack of promising regulations in the United States. Existing regulations on green bond issuance in the United States only exists in the form of non-binding international guidelines. This Note reviews the benefits and potentials of green bonds both as an …
Opacity, Fragility, & Power: Lessons From The Law Enforcement Response To The Financial Crisis, Gregory M. Gilchrist
Opacity, Fragility, & Power: Lessons From The Law Enforcement Response To The Financial Crisis, Gregory M. Gilchrist
Brooklyn Law Review
Review of Mary Kreiner Ramirez and Steven A. Ramirez, THE CARE FOR THE CORPORATE DEATH PENALTY: RESTORING LAW AND ORDER ON WALL STREET (New York 2017) The Case for the Corporate Death Penalty, by Mary Kreiner Ramirez and Steven A. Ramirez, argues that the limited law enforcement response to the 2008 financial crisis represented an unprecedented failure of the rule of law. It further maintains that the weak response by law enforcement was caused by the economic and political power of the largest financial institutions and those who run them. It concludes that the failure to vigorously prosecute the people …
Regulating The “Too Big To Jail” Financial Institutions, Jerry W. Markham
Regulating The “Too Big To Jail” Financial Institutions, Jerry W. Markham
Brooklyn Law Review
This article addresses the “too big to jail” regulatory model in which large banks pay hundreds of billions of dollars to settle multiple and duplicative regulatory charges brought by a horde of state, federal, and even foreign regulators. The banks pay those massive settlements in order to keep their banking charters and to obtain immunity from prosecution for senior executives. In turn, regulators benefit from the headlines these fines generate. Much criticism has been directed at these settlements because the banks are allowed to continue business as usual and no senior executives are jailed. Other critics contend that these settlements …
Improvident Student Lending, Vijay Raghavan, Joseph Sanders
Improvident Student Lending, Vijay Raghavan, Joseph Sanders
Faculty Scholarship
No abstract provided.
Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz
Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz
Brooklyn Journal of Corporate, Financial & Commercial Law
The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament …
Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben
Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben
Brooklyn Journal of Corporate, Financial & Commercial Law
The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short …
Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello
Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello
Brooklyn Journal of Corporate, Financial & Commercial Law
Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …
Financing The Benefit Corporation, Steven A. Dean, Dana Brakman Reiser
Financing The Benefit Corporation, Steven A. Dean, Dana Brakman Reiser
Faculty Scholarship
No abstract provided.
A Bridge Too Far: A Critical Analysis Of The Securities And Exchange Commission's Approach To Equity Market Regulation, John Polise
Brooklyn Journal of Corporate, Financial & Commercial Law
Using the framework articulated by Thomas S. Kuhn in his book, The Structure of Scientific Revolutions, this Article traces the evolution of equity market regulation in terms of its epistemological foundations and operative paradigms. It examines the SEC’s growth from a more passive partner with the securities industry to being an aggressive and perhaps overly intrusive arbiter of equity market operations. This Article identifies two distinct paradigms of securities regulation—the “Self-Regulatory Paradigm” and the “Micro-Intervention Paradigm.” The Self-Regulatory Paradigm and the Micro-Intervention Paradigm are not compatible, and this Article explains how the intellectual dissonance between them ultimately allowed the Micro-Intervention …
Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao
Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao
Brooklyn Journal of Corporate, Financial & Commercial Law
Accountability is an essential aspect of corporate governance and it has been argued that the “wenze” system of accountability in China comes very close to the accountability systems developed in Anglo-American corporate governance. This Article examines the role of cultural factors, namely guanxi and its derivatives, in corporate governance in China to determine what effect, if any, these cultural factors have on the operation and development of the “wenze” system in large listed companies. The Article specifically considers whether the cultural elements affect accountability, and if so, how and to what extent. It also explores whether these cultural factors are …
From Systemic Risk To Financial Scandals: The Shortcomings Of U.S. Hedge Fund Regulation, Marco Bodellini
From Systemic Risk To Financial Scandals: The Shortcomings Of U.S. Hedge Fund Regulation, Marco Bodellini
Brooklyn Journal of Corporate, Financial & Commercial Law
In the recent past, hedge funds have demonstrated that they can pose and spread systemic risk across the financial markets, and that their managers can use them to commit fraud and misappropriation of fund assets. Even if the first issue now seems to be considered a serious one by the U.S. legislature, which in 2010, as a legislative response to the global financial crisis of 2007-2008, enacted the Dodd-Frank Act Wall Street Reform and Consumer Protection Act (Dodd-Frank), the current regulation still appears inconsistent and inappropriate to prevent and face it. By contrast, the second issue is not always considered …
Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano
Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano
Brooklyn Journal of Corporate, Financial & Commercial Law
The foreign tax credit, which saves U.S. taxpayers from paying both foreign and domestic income taxes on the same income, is critical to facilitating global commerce. However, as savvy taxpayers discover increasingly complicated ways to abuse the foreign tax credit regime through the structuring of business transactions, courts have become increasingly skeptical of the validity of those transactions. Using the economic substance doctrine, a common law doctrine codified in 2010 at I.R.C. § 7701(o), courts will disallow tax benefits stemming from a transaction that is not profitable absent its tax benefits, and which the taxpayer had no incentive to undertake …
Full Disclosure: Moving Beyond Disclosure Regulations To Affirmative Regulation Of Executive Compensation, Christopher Saverino
Full Disclosure: Moving Beyond Disclosure Regulations To Affirmative Regulation Of Executive Compensation, Christopher Saverino
Brooklyn Journal of Corporate, Financial & Commercial Law
In the period following the financial crisis of 2008, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), which compelled the Securities and Exchange Commission (SEC) to engage in substantial rulemaking. The Dodd-Frank mandate in Section 953(b) required the SEC to promulgate a rule, which it eventually finalized and is currently known as Pay Ratio Disclosure. Historically, SEC rulemaking has received great deference when rules are judicially challenged. However, following the passage of Dodd-Frank, the D.C. Circuit Court of Appeals has begun to grant less deference to SEC rulemaking where it has found that the SEC has …
Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic
Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic
Brooklyn Journal of Corporate, Financial & Commercial Law
The Dodd-Frank Wall Street Reform and Consumer Protection Act created, among other things, the Financial Stability Oversight Council (FSOC), an entity within the U.S. Department of the Treasury tasked with assessing and mitigating financial risk. Financial institutions with over $50 billion in assets are automatically deemed “systemically important.” However, under the Dodd-Frank Act, FSOC has the authority to designate non-bank companies engaged in financial activity as systemically important as well. Once designated as a systemically important financial institution (SIFI), these companies are subject to enhanced regulation and supervision by the Federal Reserve. Because the costs associated with such enhanced regulation …
Preserving Human Agency In Automated Compliance, Onnig H. Dombalagian
Preserving Human Agency In Automated Compliance, Onnig H. Dombalagian
Brooklyn Journal of Corporate, Financial & Commercial Law
As technology transforms financial services, so too must it transform the regulation of financial markets and intermediaries. The imperative of real-time, prophylactic regulation increasingly compels reallocation of regulatory and compliance budgets to surveillance and enforcement technology. At the same time, in light of the well-known weaknesses of automated systems, securities firms (and their regulators) must temper investment in automation with efforts to augment the agency of compliance professionals. This symposium contribution considers how investment in the professional development of compliance personnel can better integrate automated tools within established compliance and supervisory structures and thereby advance regulatory and operational objectives.
The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi
The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets, protects consumers, and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades, and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without any substantial …
Dashboard Compliance: Benefit, Threat, Or Both?, James Fanto
Dashboard Compliance: Benefit, Threat, Or Both?, James Fanto
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article poses the basic question that is reflected in its title and that was the subject of the conference where the Article was initially presented: whether technology poses any threats to the mission of compliance and the position of compliance officers, whether it is just another useful tool for them, or whether it is something of both. It begins by explaining the origin of compliance in broker-dealers and investment advisers and its important current position in those firms. It then discusses why compliance officers have always been drawn to technology, particularly to keep up with the business sides of …
Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard
Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission (SEC or Commission) appears to be on the verge of requiring investment advisers to undergo third party examinations. One justification for the rulemaking is that the Commission lacks sufficient resources to examine advisers frequently enough. Another is to create indirectly a self-regulatory organization (SRO) for investments advisers. Both may leave a rulemaking particularly vulnerable to challenge as arbitrary and capricious under the Administrative Procedures Act. This Article considers three novel grounds on which a rulemaking may be successfully challenged. Congress has repeatedly rejected SEC requests to provide additional funding for examinations or to create an …