Securities Law Commons^™

The Macroprudential Turn: From Institutional “Safety And Soundness” To “Systemic Stability” In Financial Supervision, Robert C. Hockett

Robert C. Hockett

This Working Paper is no longer available. The published version of this article is available at: http://scholarship.law.cornell.edu/facpub/1405/ Since the global financial dramas of 2008-09, authorities on financial regulation have come increasingly to counsel the inclusion of macroprudential policy instruments in the standard ‘toolkit’ of finance-regulatory measures employed by financial supervisors. The hallmark of this perspective is its focus not simply on the safety and soundness of individual financial institutions, as is characteristic of the traditional ‘microprudential’ perspective, but also on certain structural features of financial systems that can imperil such systems as wholes. Systemic ‘financial stability’ thus comes to supplement, …

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

Who Sits On Texas Corporate Boards? Texas Corporate Directors: Who They Are & What They Do, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Corporate directors play an important role in governing American business, in the capital formation process, and are fundamental to the stewardship of economic growth. Texas businesses play a disproportionately important role among the states in aggregate U.S. job creation, responsible for 37% of all net new American jobs since the post 2008-2009 recovery began. It is the job of the board of directors to govern the corporation. The duties and responsibilities of a corporate director include: the duty of care; duty of loyalty; and duty of good faith. This paper results from the author’s previously assembled biographical data for most …

The Outside Investor: Citizen Shareholders & Corporate Alienation, Anne M. Tucker

Anne Tucker

This Article explores the creation and conundrum of citizen shareholders - investors who enter the securities market primarily through employer-sponsored defined-contribution plans, invest in mutual or index funds, and are saving for long-term goals like retirement. Citizen shareholders are a consequence of a retirement revolution, and are the fastest growing group of investors. Citizen shareholders are distinguishable from other shareholders on the grounds of choice, exit, and the number of intermediaries inserted into the investment chain in defined-contribution plans. They are largely missing from corporate policy and scholarship debates; few discussions have incorporated the growing reality that shareholder status has …

Halliburton, Basic And Fraud On The Market: The Need For A New Paradigm, Charles W. Murdock

Charles W. Murdock

Summary: Halliburton, Basic and Fraud on the Market: The Need for a New Paradigm

If defrauded securities plaintiffs cannot bring a class-action lawsuit, there often will be no effective remedy since the amount at stake for individual plaintiffs is not sufficient to warrant the substantial costs of litigation. To surmount the problem of individualized reliance and establish commonality, federal courts for twenty-five years have been employing the Basic fraud-on-the-market theory which posits that, in an efficient market, investors rely on the integrity of the market price.

While class certification at one time was a matter of course, today it is …

Lig Se Assemelha Em Parte Aos Covered Bonds Que Contribuíram Para A Crise Do Subprime, Luiz Rafael De Vargas Maluf

Luiz Rafael de Vargas Maluf

No abstract provided.

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …

Debêntures: Iniciativas Para Aumento De Liquidez E Fomento Ao Mercado Secundário, Luiz Rafael De Vargas Maluf

Luiz Rafael de Vargas Maluf

No abstract provided.

Corporate Boardroom Diversity: Why Are We Still Talking About This?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for any organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? My goal is to provide answers to these questions, and to discuss …

Limits Of Disclosure, Steven M. Davidoff, Claire A. Hill

Steven Davidoff Solomon

One big focus of attention, criticism, and proposals for reform in the aftermath of the 2008 financial crisis has been securities disclosure. Many commentators have emphasized the complexity of the securities being sold, arguing that no one could understand the disclosure. Some observers have noted that disclosures were sometimes false or incomplete. What follows these issues, to some commentators, is that, whatever other lessons we may learn from the crisis, we need to improve disclosure. How should it be improved? Commentators often lament the frailties of human understanding, notably including those of everyday retail investors—people who do not understand or …

Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Jill E. Fisch, Sean J. Griffith, Steven M. Davidoff

Steven Davidoff Solomon

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result …

Enforcement Of The Duties Of Directors By The Securities And Futures Investors Protection Center In Taiwan, Christopher Chao-Hung Chen

Christopher Chao-hung CHEN

The purpose of this article is to examine the role of the Securities and Futures Investors Protection Center (SFIPC) in Taiwan in enforcing the duties of directors. To help shareholders or investors pursue a director for breach of company law or securities regulations, Taiwan created the SFIPC, a charity sanctioned by statutes, to bring class action or direct legal action on behalf of minority shareholders or individual investors. By conducting an empirical survey of judgments from lawsuits involving the SFIPC since its creation, we found that the SFIPC is generally very active in enforcing securities regulations but far less active …

E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …

Intermediaries Revisited: Is Efficient Certification Consistent With Profit Maximization?, Jonathan M. Barnett

Jonathan M Barnett

Private certification mechanisms are a key component of the regulatory infrastructure in the financial sector and other commercial settings. It is generally assumed that certification intermediaries have profit-based incentives to deliver accurate information to the certified market. But this view does not account for repeated failures in certification markets. Those failures can be explained by an inherent defect in the incentive structure of certification intermediaries: entry barriers both support and undermine the consistent supply of accurate information to the certified market. Certification markets tend to converge on a handful of providers protected by switching costs, product opacity and reputational noise. …

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 …

Cvm Set To Reduce Costs And Bureaucracy For Equity Offerings, Luiz Rafael De Vargas Maluf, Nair Veras Saldanha Janson

Luiz Rafael de Vargas Maluf

No abstract provided.

Mural Do Leitor - Comentário Ao Artigo "Cvm Propõe Ofertas De Ações Restritas A Qualificados", Luiz Rafael De Vargas Maluf

Luiz Rafael de Vargas Maluf

No abstract provided.

Nova 476: Ofertas De Ações Dão Mais Um Passo E Se Assemelham Às Práticas Internacionais, Luiz Rafael De Vargas Maluf, Nair Veras Saldanha Janson, Tobias Stirnberg, Felipe Câmara

Luiz Rafael de Vargas Maluf

No abstract provided.

Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who are convicted …

Subjective Falsity Under Section 11 Of The Securities Act: Protecting Statements Of Opinion, Daniel H. Smith

Daniel H Smith

SUBJECTIVE FALSITY UNDER SECTION 11 OF THE SECURITIES ACT: PROTECTING STATEMENTS OF OPINION Daniel Hooper Smith Abstract Subjective Falsity Under Section 11 of the Securities Act: Protecting Statements of Opinion discusses the Sixth Circuit’s strict liability decision in Indiana State District Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc. for statements of opinion contained in registration statements, and its express departure from both the Second and Ninth Circuits. Consistent with the Second, Third, and Ninth Circuits, this Article proposes that both objective and subjective falsity should be the requisite pleading standard for section 11 opinion …

Ofertas Mais Ágeis: Nova 476 Isenta De Registro Ofertas De Ações, Luiz Rafael De Vargas Maluf, Nair Veras Saldanha Janson

Luiz Rafael de Vargas Maluf

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 …

Financial Institution Executive Compensation: The Problem Of Financially Motivated Excessive Risk-Taking, The Regulatory Response, And Common Sense Solutions, Jesse D. Gossett

Jesse D Gossett

This article addresses the issue of executive compensation at financial institutions as it relates to encouraging excessive risk-taking at these firms. First, I examine the economics of compensation and its relationship to risk-taking at financial firms. Next, I take a critical look at compensation provisions of Dodd-Frank (and to a lesser extent, Sarbanes-Oxley) and describe not only what Dodd-Frank does, but more importantly what it does not do. I then make specific recommendations for rules regulators should adopt under Dodd-Frank for the purpose of using compensation plans as a way of reducing excessive risk at financial institutions. I make these …

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 …

Controlling Shareholders: Benevolent “King” Or Ruthless “Pirate”, Sang Yop Kang

Sang Yop Kang

Unfair self-dealing and expropriation of minority shareholders by a controlling shareholder are common business practices in developing countries (“bad-law countries”). Although controlling shareholder agency problems have been well studied so far, there are many questions unanswered in relation to behaviors and motivations of controlling shareholders. For example, a puzzle is that some controlling shareholders in bad-law countries voluntarily extract minority shareholders less than other controlling shareholders. Applying Mancur Olson’s framework of political theory of “banditry” to the context of corporate governance, this Article proposes that there are at least two categories of controlling shareholders. “Roving controllers” are dominant shareholders with …

Assessing Hong Kong As An International Financial Centre, Bryane Michael

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

How can Hong Kong hope to catch up to London and New York as an international financial centre? Close ties with the Mainland result in financial fragility which could decrease Hong Kong's prospects as a financial centre in the longer term. In this paper, we review Hong Kong's dependence on the Mainland's economy. We provide 21 recommendations for strengthening Hong Kong's banking and securities markets.

The End Of Contractarianism? Behavioral Economics And The Law Of Corporations, Kent Greenfield

Kent Greenfield

Reviews the current state of the scholarship in the field of behavioral economics as it relates to corporate and securities law.