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Full-Text Articles in Securities Law

A Practice Worth Ending: Eps Guidance Harming Long-Term Growth, Rachel G. Miller Dec 2019

A Practice Worth Ending: Eps Guidance Harming Long-Term Growth, Rachel G. Miller

Notre Dame Law Review

This Note focuses on one factor—earnings per share (EPS) guidance—that contributes to myopic behavior and short-termism within public companies. Part I discusses the history of the shareholder primacy norm and the need for management to act in the best interest of its shareholders. Additionally, this Part provides background on EPS guidance and the notion of short-termism. Part II lays out a framework for quarterly reporting and argues that the current disclosure requirements should remain intact. This Part addresses the importance of frequency in quarterly reporting and provides two examples—the United Kingdom and Regulation A—of practices with ...


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Law Professor Comment Letter On Harmonization Of Private Offering Rules, Elisabeth D. De Fontenay, Erik F. Gerding, John Coffee, Jr., James D. Cox, Stephen F. Diamond, Merritt B. Fox, Michael Guttentag, Colleen Honigsberg, Renee M. Jones, Donald Langevoort, Saule T. Omarova, James Park, Jeff Schwartz, Andrew F. Tuch, Urska Velikonja Sep 2019

Law Professor Comment Letter On Harmonization Of Private Offering Rules, Elisabeth D. De Fontenay, Erik F. Gerding, John Coffee, Jr., James D. Cox, Stephen F. Diamond, Merritt B. Fox, Michael Guttentag, Colleen Honigsberg, Renee M. Jones, Donald Langevoort, Saule T. Omarova, James Park, Jeff Schwartz, Andrew F. Tuch, Urska Velikonja

Research Data

Comment letter filed on Sept. 24, 2019.

"File No. S7-08-19"

"We are fifteen law professors whose scholarship and teaching focuses on securities regulation. We appreciate the opportunity to comment on the U.S. Securities and Exchange Commission’s (“SEC” or the “Commission”) Concept Release on Harmonization of Securities Offering Exemptions (the “Concept Release”)."


Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers Sep 2019

Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers

Jeffrey Lubbers

No abstract provided.


Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev Apr 2019

Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev

Boston College Law Review

This Article analyzes the history, design, and effectiveness of the highly controversial CEO pay ratio disclosure rule, which went into effect in 2018. Based on a regulatory mandate contained in the Dodd-Frank Act of 2010, the rule requires public companies to disclose the ratio between CEO pay and median worker pay as part of their annual filings with the Securities and Exchange Commission (SEC). The seven-year rulemaking process was politically contentious and generated a level of public engagement that was virtually unprecedented in the long history of the SEC disclosure regime. The SEC sought to minimize compliance costs by providing ...


Making Sustainability Disclosure Sustainable, Jill E. Fisch Apr 2019

Making Sustainability Disclosure Sustainable, Jill E. Fisch

Faculty Scholarship at Penn Law

Sustainability is receiving increasing attention from issuers, investors and regulators. The desire to understand issuer sustainability practices and their relationship to economic performance has resulted in a proliferation of sustainability disclosure regimes and standards. The range of approaches to disclosure, however, limit the comparability and reliability of the information disclosed. The Securities & Exchange Commission (SEC) has solicited comment on whether to require expanded sustainability disclosures in issuer’s periodic financial reporting, and investors have communicated broad-based support for such expanded disclosures, but, to date, the SEC has not required general sustainability disclosure.

This Article argues that claims about the relationship ...


When The Same Words Mean Different Things: Varjabedian V. Emulex Corp., And The Requirements Of Section 14(E) Of The Exchange Act, Isaac Lederman Mar 2019

When The Same Words Mean Different Things: Varjabedian V. Emulex Corp., And The Requirements Of Section 14(E) Of The Exchange Act, Isaac Lederman

Boston College Law Review

On April 20, 2018, in Varjabedian v. Emulex Corp., the United States Court of Appeals for the Ninth Circuit held that Section 14(e) of the Securities Exchange Act of 1934 requires only a showing of negligence, not scienter, to establish a violation. The Ninth Circuit derived that requirement from the fact that Section 14(e) resembles Section 17(a)(2) of the Securities Act of 1933. In reaching this conclusion, the Ninth Circuit split with all the other courts to consider this question. The Second, Third, Fifth, Sixth, and Eleventh Circuits had previously held that Section 14(e) shares ...


Duty Or No Duty? That Is The Question: The Second Circuit Reasserts That A Violation Of Item 303'S Duty To Disclose Can Establish Liability Under Section 10(B), Rebecca Rabinowitz Feb 2019

Duty Or No Duty? That Is The Question: The Second Circuit Reasserts That A Violation Of Item 303'S Duty To Disclose Can Establish Liability Under Section 10(B), Rebecca Rabinowitz

Boston College Law Review

On March 29, 2016, in Indiana Public Retirement Systems v. SAIC, Inc., the United States Court of Appeals for the Second Circuit reaffirmed its earlier conclusion that a violation of the duty to disclose imposed on publicly traded companies by Item 303 of Regulation S-K can constitute a violation of Section 10(b) of the Securities Exchange Act of 1934. In so doing, the Second Circuit directly conflicted with a decision from the United States Court of Appeals for the Ninth Circuit, Cohen v. NVIDIA Corp. (In re NVIDIA Corp. Securities Litigation), despite the fact that both courts relied upon ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


The Icarus Syndrome: How Credit Rating Agencies Lost Their Quasi Immunity, Norbert Gaillard, Michael Waibel Jan 2019

The Icarus Syndrome: How Credit Rating Agencies Lost Their Quasi Immunity, Norbert Gaillard, Michael Waibel

SMU Law Review

Subsequent to the 2007–2008 subprime crisis, the SEC and the US Senate discovered that it was common practice for major credit rating agencies (CRAs) to produce inflated and inaccurate structured finance ratings. A host of explanations were posited on how this was able to happen from the “issuer pays” model of CRAs and conflicts of interest to underscoring the CRA’s regulatory license and their ensuing insulation from legal liability. Historically, credit ratings were akin to opinions. However, when courts started to consider structured finance ratings as commercial speech in the 2000s, CRAs became more vulnerable to litigation. This ...


The Eu’S Struggles With Collective Action For Securities Fraud: An American Perspective, Dan Morrissey Jan 2019

The Eu’S Struggles With Collective Action For Securities Fraud: An American Perspective, Dan Morrissey

Texas A&M Law Review

Notwithstanding the apparent exit of the United Kingdom, the European Union (“EU”) has grown in membership and power since its modest beginnings after World War II, now rivaling the U.S. in economic strength. With the goal of promoting the security and prosperity of all the citizens of the countries that belong to it, the EU is pressing ahead to adopt laws that will promote their political and financial integration. Along those lines, it has also recently acknowledged a deficiency in the legal systems of its member states when it comes to allowing collective actions for victims of various types ...


Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz Jan 2019

Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz

Faculty Scholarship

To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with securities exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical importance because ...


Revolving Elites: The Unexplored Risk Of Capturing The Sec, James D. Cox, Randall S. Thomas Jan 2019

Revolving Elites: The Unexplored Risk Of Capturing The Sec, James D. Cox, Randall S. Thomas

Faculty Scholarship

Fears have abounded for years that the sweet spot for capture of regulatory agencies is the "revolving door" whereby civil servants migrate from their roles as regulators to private industry. Recent scholarship on this topic has examined whether America's watchdog for securities markets, the Securities and Exchange Commission (SEC), is hobbled by the long-standing practices of its enforcement staff exiting their jobs at the Commission and migrating to lucrative private sector employment where they represent those they once regulated. The research to date has been inconclusive on whether staff revolving door practices have weakened the SEC' s verve. In ...


Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena Nov 2018

Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena

Boston College Law Review

Global Administrative Law is an academic project that attempts to describe the emergence of a regulatory space beyond the state and to prescribe solutions to the problems it diagnoses through certain normative principles like participation, transparency, reasoned decision-making, judicial review, accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by Global Administrative Law are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of fair and equitable treatment include due process, arbitrariness, non-discrimination, vigilance ...


Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo Nov 2018

Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo

Boston College Law Review

Recent initiatives for investment reform demonstrated by the 2016 United Nations Conference on Trade and Development and 2018 World Investment Reports have raised key issues for sustainable development in the context of investment in natural resources and energy. Where there has been increasing convergence between trade and environmental norms as trade regimes confront domestic regulatory measures for environmental protection and climate change mitigation, similarly investment regimes also have had to address such domestic measures but with little progress towards normative convergence. At the same time, there’s an increasing skepticism for the traditional models of globalization of the 1990s and ...


Avoiding The Planned Obsolescence Of Modern International Investment Agreements: Can General Exception Mechanisms Be Improved, And How?, Camille Martini Nov 2018

Avoiding The Planned Obsolescence Of Modern International Investment Agreements: Can General Exception Mechanisms Be Improved, And How?, Camille Martini

Boston College Law Review

In light of the increase in investor-state disputes brought by foreign investors under the arbitration clauses contained in international investment agreements (“IIAs”), treaty negotiators have started to develop safeguards in recent IIAs in an attempt to mitigate the impact of these agreements on their regulatory powers. General exception clauses modeled on Article XX of the General Agreement on Tariffs and Trade are part of these new treaty provisions. General exceptions clauses are, in their current form, a source of uncertainty rather than coherence. Recent arbitration cases have shed light on the unworkable enforceability requirements contained in general exceptions clauses, preventing ...


Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer Oct 2018

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at ...


Complementary Macroprudential Regulation Of Nonbank Entities And Activities, Patricia A. Mccoy, Daniel Schwarcz, Jeremy Kress Sep 2018

Complementary Macroprudential Regulation Of Nonbank Entities And Activities, Patricia A. Mccoy, Daniel Schwarcz, Jeremy Kress

Boston College Law School Faculty Papers

In this blog entry, the authors describe their forthcoming law review article in Southern California Law Review.


Sec Disgorgement Actions: Equitable Remedy Or Penalty?, Armando Lopez Sep 2018

Sec Disgorgement Actions: Equitable Remedy Or Penalty?, Armando Lopez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers Sep 2018

Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Opinion Of The Court, Elena Kagan Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Opinion Of The Court, Elena Kagan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Administrative Law Scholars In Support Of Neither Party, Richard J. Pierce Jr. Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Administrative Law Scholars In Support Of Neither Party, Richard J. Pierce Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Federal Administrative Law Judges Conference In Support Of Neither Party, John M. Vittone Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Federal Administrative Law Judges Conference In Support Of Neither Party, John M. Vittone

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Introduction To Lucia Et Al. V. Securities And Exchange Commission, Selina Malherbe Sep 2018

Introduction To Lucia Et Al. V. Securities And Exchange Commission, Selina Malherbe

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva Jul 2018

The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva

Boston College Law Review

This Article examines SEC enforcement policies and seeks to find the optimum approach to enforcement against foreign private issuers. My previous empirical study of securities class actions against foreign firms identified a number of crucial developments that mainly occurred after Morrison v. National Australia Bank. In Morrison, the Supreme Court sought to limit the extraterritorial reach of the antifraud provisions of the U.S. securities laws. The Court has scaled down the exposure of foreign issuers to securities liability risk, particularly in class-action litigation. If the Supreme Court in Morrison has created a risky enforcement lacuna on the side of ...


Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh Jun 2018

Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh

Robert B. Ahdieh

A central feature – if not the central feature – of legal scholarship today is analysis across divides.

It is surprising, then, how little has been written across the divide that separates administrative law and financial regulation. That is perhaps especially so, given the modest nature of the relevant divide: one that is intra- rather than interdisciplinary, one that operates within rather than across geographic boundaries, and one that involves no temporal dimension but operates entirely within current-day law.

For all the proximity in their interests, targets of study, and even analytical tools, however, scholars of administrative law and of financial regulation ...


Third-Party Institutional Proxy Advisors: Conflicts Of Interest And Roads To Reform, Matthew Fagan Apr 2018

Third-Party Institutional Proxy Advisors: Conflicts Of Interest And Roads To Reform, Matthew Fagan

University of Michigan Journal of Law Reform

With the rise of institutional activist investors in recent decades—including a purported 495 activist campaigns against U.S. corporations in 2016 alone—the role that third-party institutional proxy advisors play in corporate governance has greatly increased. The United States Office of Government Accountability estimates that clients of the top five proxy advisory firms account for about $41.5 trillion in equity throughout the world. For several years, discussions have developed regarding conflicts of interest faced by proxy advisors. For example, Institutional Shareholder Services, the top proxy advisory firm in the world, frequently provides advice to institutional investors on how ...


The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission’S Administrative Law Judges, Linda D. Jellum, Moses M. Tincher Mar 2018

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

Journal of the National Association of Administrative Law Judiciary

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, the SEC realized a significant home-court advantage. For example, in 2014, the SEC’s enforcement ...


High‐Frequency Trading And The New Stock Market: Sense And Nonsense, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg Feb 2018

High‐Frequency Trading And The New Stock Market: Sense And Nonsense, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg

Articles

The stock market has been transformed during the last 25 years. Human suppliers of liquidity like the NASDAQ dealers and NYSE specialists have been replaced by algorithmic market making; stocks that once traded on a single venue now trade across twelve exchanges and a multitude of alternative trading systems. New venues like dark pools, and new participants like high‐frequency traders, have emerged to take on prominent roles. This new market has had more than its share of controversy and regulatory scrutiny, particularly in the wake of Michael Lewis’s bestseller Flash Boys. In this article, the authors analyze five ...