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Full-Text Articles in Securities Law

What Conflict Minerals Rules Tell Us About The Legal Transplantation Of Corporate Social Responsibility Standards Without The State: From The United Nations To The United States To Taiwan, Chang-Hsien (Robert) Tsai, Yen-Nung Wu Dec 2017

What Conflict Minerals Rules Tell Us About The Legal Transplantation Of Corporate Social Responsibility Standards Without The State: From The United Nations To The United States To Taiwan, Chang-Hsien (Robert) Tsai, Yen-Nung Wu

Chang-hsien (Robert) TSAI


To resolve global political and scholarly concerns over conflict minerals (“CM”) produced in the Democratic Republic of the Congo and neighboring regions, two kinds of CM-related disclosure rules (or “CM rules”) come into play in regulating their use: government-mandated laws such as Section 1502 of the Dodd-Frank Act in the United States (hereinafter “Sec. 1502”) and transnational voluntary codes such as the Electronic Industry Citizenship Coalition (“EICC”) Code of Conduct. The creation of both of these CM rules could be attributed to the promotion of such concerns by the United Nations. This article is the first attempt to unpack and ...


The Unicorn Governance Trap, Renee Jones Dec 2017

The Unicorn Governance Trap, Renee Jones

Boston College Law School Faculty Papers

The recent trend of large-scale start-up companies delaying an IPO creates a new kind of corporate governance problem. The prevalence of “unicorns” – privately held companies with market valuations of $1 billion or more – means the disciplinary mechanisms on which investors traditionally relied no longer function to prevent misconduct or mismanagement by unicorn founders. High profile frauds by unicorns like Zenefits and Theranos, and the recent travails of Uber highlight the need to rethink unicorn governance structure. These burgeoning controversies call for reconsideration of legal reforms that allow unicorns to remain for protracted periods in an ill-defined limbo between private and ...


Sec Filings, Regulatory Deadlines, And Capital Market Consequences, Eli Bartov, Yaniv Konchitchki Dec 2017

Sec Filings, Regulatory Deadlines, And Capital Market Consequences, Eli Bartov, Yaniv Konchitchki

New York University Law and Economics Working Papers

Timely disclosure of financial statement information is a critical requirement for firms and well-functioning capital markets. Yet, every quarter or year, a non-trivial number of firms are late in filing their financial statements. This paper identifies and probes various capital market consequences for late filings of quarterly and annual financial statements. It examines the short- and long-window reaction to late filings, as well as how equity investors process statements accompanying late filing announcements, such as managers declaring intentions to file within/outside SEC’s allowed grace periods. The paper documents that delayed quarterly filings have distinctly different valuation implications than ...


Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan Dec 2017

Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan

Michigan Law Review

When the government contracts with private parties, the risk of fraud runs high. Fraud against the government hurts everyone: taxpayer money is wasted on inferior or nonexistent products and services, and the public bears the burdens attendant to those inadequate goods. To combat fraud, Congress has developed several statutory frameworks to encourage whistleblowers to come forward and report wrongdoing in exchange for a monetary reward. The federal False Claims Act allows whistleblowers to file an action in federal court on behalf of the United States, and to share in any recovery. Under the Dodd- Frank Act, the SEC Office of ...


The Interest Is Not Mutual: Effect Of The Personal Property Securities Act 2009 (Cth) On Contractual Rights Of Set-Off, Caroline Woo Dec 2017

The Interest Is Not Mutual: Effect Of The Personal Property Securities Act 2009 (Cth) On Contractual Rights Of Set-Off, Caroline Woo

The University of Notre Dame Australia Law Review

In Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers Appointed), the Supreme Court of Western Australia held that the rights of ANZ, a secured creditor of Forge Group Power Pty Ltd (Forge) holding a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA), trumped Hamersley Iron Pty Ltd’s rights of contractual and equitable set-off. Forge is in receivership and in liquidation. In answering the preliminary issues in dispute between the parties, the Supreme Court examined the complex interaction between contractual and equitable rights, the PPSA and section 553C of the ...


Crowdfunding Signals, Darian M. Ibrahim Nov 2017

Crowdfunding Signals, Darian M. Ibrahim

Popular Media

No abstract provided.


Leverage: State Enforcement Actions In The Wake Of The Robo-Sign Scandal, Raymond H. Brescia Oct 2017

Leverage: State Enforcement Actions In The Wake Of The Robo-Sign Scandal, Raymond H. Brescia

Maine Law Review

In the fall of 2010, the revelations that tens of thousands of foreclosure filings across the nation were likely fraudulent—if not outright criminal—sparked a nation-wide investigation by all fifty state attorneys general to assess the extent of the scandal and its potential impacts, but also to consider likely legal and policy responses to such behavior. One of the tools at the state attorneys general’s disposal that might rein in this behavior includes each state’s Unfair and Deceptive Acts and Practices (UDAP) laws. Such laws typically prohibit “unfair” and “deceptive” practices, which are described loosely in these ...


Reviving Reliance, Ann M. Lipton Oct 2017

Reviving Reliance, Ann M. Lipton

Fordham Law Review

This Article explores the misalignment between the disclosure requirements of the federal securities laws and the private causes of action available to investors to enforce those requirements. Historically, federally mandated disclosures were designed to allow investors to set an appropriate price for publicly traded securities. Today’s disclosures, however, also enable stockholders to participate in corporate governance and act as a check on managerial misbehavior. To enforce these requirements, investors’ chief option is a claim under the general antifraud statute, section 10(b) of the Securities Exchange Act of 1934. But courts are deeply suspicious of investors’ attempts to use ...


In Re Petrobras Securities Litigation: Validade E AbrangêNcia Da CláUsula Arbitral, Bruno Meyerhof Salama Sep 2017

In Re Petrobras Securities Litigation: Validade E AbrangêNcia Da CláUsula Arbitral, Bruno Meyerhof Salama

Bruno Meyerhof Salama

O caso In Re Petrobras Securities Litigation envolve investidores da Petrobras que adquiriram securities tanto no Brasil quanto nos Estados Unidos e que ajuizaram uma class action em uma Corte americana. A Petrobras buscou afastar da jurisdição americana com uma discussão sobre a validade e abrangência da cláusula arbitral presente em seu Estatuto Social. Este trabalho explica os argumentos utilizados por cada uma das partes e esclarece a decisão proferida pela Corte americana. Ao final, são apresentadas algumas das implicações e dúvidas relevantes para empresas brasileiras emissoras de securities nos ...


Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon Sep 2017

Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon

Faculty Scholarship

The Dodd-Frank Act of 2010 mandated a number of regulatory reforms including a requirement that large U.S. public companies provide their shareholders with the opportunity to cast a non-binding vote on executive compensation. The “say on pay” vote was designed to rein in excessive levels of executive compensation and to encourage boards to adopt compensation structures that tie executive pay more closely to performance. Although the literature is mixed, many studies question whether the statute has had the desired effect. Shareholders at most companies overwhelmingly approve the compensation packages, and pay levels continue to be high.

Although a lack ...


When Is The ‘Force’ With A Securities Claim That Is ‘Brought To Enforce’ A Federal Securities Law?, Michelle Wellnitz Sep 2017

When Is The ‘Force’ With A Securities Claim That Is ‘Brought To Enforce’ A Federal Securities Law?, Michelle Wellnitz

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Tales From A Form Book: Stock Stories And Transactional Documents, Susan M. Chesler, Karen J. Sneddon Sep 2017

Tales From A Form Book: Stock Stories And Transactional Documents, Susan M. Chesler, Karen J. Sneddon

Montana Law Review

Tales from a Form Book: Stock Stories and Transactional Documents


Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert Aug 2017

Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert

Faculty Scholarship

Automated financial product advisors – “robo advisors” – are emerging across the financial services industry, helping consumers choose investments, banking products, and insurance policies. Robo advisors have the potential to lower the cost and increase the quality and transparency of financial advice for consumers. But they also pose significant new challenges for regulators who are accustomed to assessing human intermediaries. A well-designed robo advisor will be honest and competent, and it will recommend only suitable products. Because humans design and implement robo advisors, however, honesty, competence, and suitability cannot simply be assumed. Moreover, robo advisors pose new scale risks that are different ...


Share-Buyback-Scheme-And-Contemporary-Tax-Treatment-Oluwaseun-Viyon-Ojo.Pdf, Oluwaseun Viyon Ojo Aug 2017

Share-Buyback-Scheme-And-Contemporary-Tax-Treatment-Oluwaseun-Viyon-Ojo.Pdf, Oluwaseun Viyon Ojo

Oluwaseun Viyon Ojo

This paper briefly examines the concept of share buyback scheme in Nigeria and the extant position of the Nigerian Law as regards the transaction. The present writer essentially places emphasis on an indepth analysis and examination of  the tax implications of the transaction from the perspectives of the tax treatment models in other jurisdictions, particularly the United States, United Kingdom and Canada. From the comparative analysis from the above mentioned jurisdictions, the writer further analyses the present position of the extant Nigerian tax statutes on the possible tax treatment of share buyback in Nigeria. It then finally recommended the possible ...


The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow Aug 2017

The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow

Faculty Scholarship

Digital tokens have been used to raise substantial amounts of money. But little attention has been paid to the tax consequences surrounding their issuance and sale. There are significant potential tax liabilities lurking in the use of digital tokens. But, because of the anonymity inherent in the blockchain structures used for the issuance of tokens and payments for them, there is a significant question as to whether those tax liabilities will ever be collected.


The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher Aug 2017

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

SMU Law Review

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street ...


The Perfect Storm Is Brewing Once Again: What Scaling Back Dodd-Frank Will Mean For The Credit Default Swap, Daniel Isaacson Jul 2017

The Perfect Storm Is Brewing Once Again: What Scaling Back Dodd-Frank Will Mean For The Credit Default Swap, Daniel Isaacson

The Journal of Business, Entrepreneurship & the Law

The current presidential administration has expressed a concerted desire to “scale back” and even “get rid of” the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd–Frank). Focusing specifically on Dodd–Frank’s regulation of the credit default swap (CDS), this Article explores two timely queries. First, whether Dodd–Frank’s regulatory response to these financial instruments is a justifiable one, and second, what effect a repeal may have. This Article will show that the “perfect storm” CDS—which contributed so significantly to the 2007–2010 financial crisis—flourished in a regulatory environment that contained two key weaknesses ...


A Textual Analysis Of Whistleblower Protections Under The Dodd-Frank Act, Brent T. Murphy Jul 2017

A Textual Analysis Of Whistleblower Protections Under The Dodd-Frank Act, Brent T. Murphy

Notre Dame Law Review

This Note endorses the reasoning of the Fifth Circuit in Asadi v. G.E. Energy (USA), L.L.C., and argues that the plain language of Dodd-Frank limits its whistleblower protections to individuals who provide information to the SEC. This Note argues that the reasoning of the Second Circuit in Berman v. Neo@Ogilvy LLC relying on the Supreme Court’s decision in King v. Burwell is inapposite, and that the Second Circuit introduced ambiguity where no ambiguity previously existed and improperly extended Chevron deference to the SEC.


The Case For Federal Preemption Of State Blue Sky Laws, Rutheford B. Campbell Jr. Jun 2017

The Case For Federal Preemption Of State Blue Sky Laws, Rutheford B. Campbell Jr.

Rutheford B Campbell Jr.

In our market economy, imposing rules on capital formation makes economic sense. Well-constructed rules regarding capital formation can promote the efficient flow of capital to its highest and best use and prevent or ameliorate fraud or unfairness to investors. These rules, however, generate additional offering costs that may retard or in some cases completely choke off the flow of capital from investors to businesses. The problem with state blue sky laws is their registration requirements, which significantly impede efficient capital formation and provide no material economic or societal benefits, such as protection of investors from fraud.


To Be A "Whistleblower," Or Not To Be A "Whistleblower? " That Is The Question-Whether 'Tis Nobler In The Mind Of The Courts To Suffer For Reporting Wrongdoing To The Sec Or Employers Internally: Examining The Recent Circuit Split Regarding The Definition Of A Whistleblower Under Dodd-Frank, Luke I. Landers Jun 2017

To Be A "Whistleblower," Or Not To Be A "Whistleblower? " That Is The Question-Whether 'Tis Nobler In The Mind Of The Courts To Suffer For Reporting Wrongdoing To The Sec Or Employers Internally: Examining The Recent Circuit Split Regarding The Definition Of A Whistleblower Under Dodd-Frank, Luke I. Landers

The Journal of Business, Entrepreneurship & the Law

Under the current state of the law, the circuit courts are split over whether an employee must report corporate wrongdoing directly to the Securities and Exchange Commission (SEC), or report wrongdoing to a company’s management in order to receive whistleblower protection under Dodd–Frank. The resolution of this circuit split not only will have implications for American employees caught in situations similar to the fiction above, but also will provide a prime opportunity for the Supreme Court to clarify how courts are to understand the interpretive and deferential relationship between the language of legislative statutes and their corresponding bureaucratic ...


Regulating Moral Hazard: The True Risk Of Dodd-Frank's Risk Retention Requirement, Ethan T. Mobley Jun 2017

Regulating Moral Hazard: The True Risk Of Dodd-Frank's Risk Retention Requirement, Ethan T. Mobley

The Journal of Business, Entrepreneurship & the Law

Dodd–Frank was implemented in response to the Great Recession as a means to curb abuses on Wall Street. The Act mandated broad reform of the financial system, and in particular, required regulators to promulgate rules controlling the complex structure of Asset-Backed Security (ABS). Dodd–Frank required securitizers to retain a portion of the credit risk associated with ABS. The goal was to curb moral hazard—the market failure commonly blamed for the Financial Crisis. However, there is reason to believe Dodd–Frank may “not adequately address” the moral hazard problem. In Part I, this Article will set forth the ...


The Legal Aspects Of Portfolio Margining: A Move Toward The Lsoc Model, Christian Chamorro-Courtland Jun 2017

The Legal Aspects Of Portfolio Margining: A Move Toward The Lsoc Model, Christian Chamorro-Courtland

The Journal of Business, Entrepreneurship & the Law

This Article focuses on the legal aspects of “portfolio margining” in the United States and their potential for reducing costs and facilitating the management of collateral for the participants involved. First, this Article outlines the level of protection that customer “margin” deposits receive in clearing systems using a Central Counterparty (CCP). Second, it explains the process of portfolio margining from a legal perspective and discusses the benefits of adopting these arrangements. Thirdly, it argues that adopting the “Legal Segregation and Operationally Commingled Model” (LSOC Model) in the futures industry can facilitate the implementation of portfolio margining. Finally, the conclusion explains ...


Clarifying The Original Clawback: Interpreting Sarbanes-Oxley Section 304 Through The Lens Of Dodd-Frank Section 954, J. Royce Fichtner, Patrick Heaston, Lou Ann Simpson Jun 2017

Clarifying The Original Clawback: Interpreting Sarbanes-Oxley Section 304 Through The Lens Of Dodd-Frank Section 954, J. Royce Fichtner, Patrick Heaston, Lou Ann Simpson

The Journal of Business, Entrepreneurship & the Law

In the early 2000s, major accounting scandals involving reporting violations and audit failures sent the United States financial markets into turmoil. Congress and President George W. Bush reacted to the controversy by passing the Public Company Accounting Reform and Investor Protection Act, better known as the Sarbanes–Oxley Act (SOX), in July of 2002. Section 304 created an explicit procedure, whereby the SEC could disgorge or clawback a CEO or CFO’s incentive-based compensation or stock gains when such profits were based on inflated financial statements later required to be restated to reflect the company’s true financial position. When ...


Standing Voting Instructions: Empowering The Excluded Retail Investor, Jill E. Fisch Jun 2017

Standing Voting Instructions: Empowering The Excluded Retail Investor, Jill E. Fisch

Faculty Scholarship

Despite the increasing importance of shareholder voting, regulators have paid little attention to the rights of retail investors who own approximately 30% of publicly traded companies but who vote less than 30% of their shares. A substantial factor contributing to this low turnout is the antiquated mechanism by which retail investors vote. The federal proxy voting rules place primary responsibility for facilitating retail voting in the hands of custodial brokers who have limited incentives to develop workable procedures, and current regulatory restrictions impede market-based innovation that incorporate technological innovations.

One of the most promising such innovations is standing voting instructions ...


Getting Specific About The Policy And Tools Of Securities Regulation: A Limited Response To Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Joan Macleod Heminway May 2017

Getting Specific About The Policy And Tools Of Securities Regulation: A Limited Response To Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Joan Macleod Heminway

Washington and Lee Law Review Online

No abstract provided.


The Case For Federal Preemption Of State Blue Sky Laws, Rutheford B. Campbell Jr. May 2017

The Case For Federal Preemption Of State Blue Sky Laws, Rutheford B. Campbell Jr.

Law Faculty Popular Media

In our market economy, imposing rules on capital formation makes economic sense. Well-constructed rules regarding capital formation can promote the efficient flow of capital to its highest and best use and prevent or ameliorate fraud or unfairness to investors. These rules, however, generate additional offering costs that may retard or in some cases completely choke off the flow of capital from investors to businesses. The problem with state blue sky laws is their registration requirements, which significantly impede efficient capital formation and provide no material economic or societal benefits, such as protection of investors from fraud.


Are Disclosures Really Standardized? An Empirical Analysis, Uri Benoliel May 2017

Are Disclosures Really Standardized? An Empirical Analysis, Uri Benoliel

Villanova Law Review

No abstract provided.


Sec In-House Tribunals: A Call For Reform, Drew Thornley, Justin Blount May 2017

Sec In-House Tribunals: A Call For Reform, Drew Thornley, Justin Blount

Villanova Law Review

No abstract provided.


Lead Plaintiffs And Their Lawyers: Mission Accomplished, Or More To Be Done?, Adam C. Pritchard, Stephen Choi May 2017

Lead Plaintiffs And Their Lawyers: Mission Accomplished, Or More To Be Done?, Adam C. Pritchard, Stephen Choi

Law & Economics Working Papers

This chapter, written for the Research Handbook on Shareholder Litigation, surveys empirical work studying the lead plaintiff provision of the Private Securities Litigation Reform Act (PSLRA). That work finds that the lead plaintiff provision has encouraged institutional investors to participate in securities class actions and that those institutional investors have negotiated lower attorneys' fees. Those benefits from the lead plaintiff provision are undercut, however, by political contributions made by plaintiffs' lawyers. We suggest additional reforms to promote transparency and competition among lawyers for lead plaintiffs. We also suggest reforms to the lead plaintiff provision intended to enhance the screening effect ...


Statutory Interpretation Lessons Courtesy Of Pilgrim’S Pride, Philip G. Cohen May 2017

Statutory Interpretation Lessons Courtesy Of Pilgrim’S Pride, Philip G. Cohen

University of Miami Business Law Review

In Pilgrim’s Pride Corp. v. Commissioner, the Fifth Circuit reversed the Tax Court and held that the taxpayer was entitled to an ordinary loss deduction from its abandonment of securities. While the conclusion reached by the Fifth Circuit has been overshadowed by the promulgation of Treasury Regulation section 1.165-5(i) that effectively treats an abandoned security as worthless and thus characterizes the loss as capital, the case remains noteworthy because it provides an opportunity to examine the statutory interpretation of two distinct Internal Revenue Code sections, section 165(g)(1) and section 1234A. The article focuses on what ...