Securities Law Commons^™

Uncloaking The Secrecy Behind Large-Scale Land Deals, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Large-scale investments in agriculture and forestry have far-reaching implications for the lives of affected individuals and communities. They are also an integral part of efforts by national governments to implement the Sustainable Development Goals (SDGs) and improve the governance of land resources. Despite their significance, these “land deals” and the contracts that govern them are often cloaked in secrecy, removed from relevant spheres of public scrutiny and debate.

Global Value Chains And Resource Corridors: The Nexus Is Regional Integration, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

To be more involved in the global value chains, sub-Saharan African countries should intensify their regional integration efforts. A first step in this direction can be implementing cross-border resource-based development corridors.

Disruptive Technology And Securities Regulation, Chris Brummer

Fordham Law Review

Nowhere has disruptive technology had a more profound impact than in financial services—and yet nowhere do academics and policymakers lack a coherent theory of the phenomenon more, much less a coherent set of regulatory prescriptions. Part of the challenge lies in the varied channels through which innovation upends market practices. Problems also lurk in the popular assumption that securities regulation operates against the backdrop of stable market gatekeepers like exchanges, broker-dealers, and clearing systems—a fact scenario increasingly out of sync in twenty-first-century capital markets.

This Article explains how technological innovation “disrupts” not only capital markets but also the exercise of …

Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, And Sharing The Fruits Of Wiretaps, Alexandra N. Mogul

Fordham Law Review

Two key trends were present in the successful prosecution of Raj Rajaratnam and his coconspirators in one of the largest insider-trading conspiracies in history: the use of wiretaps to investigate and prosecute insider trading and a joint effort between the Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) to conduct the investigation. Despite the close working relationship between the DOJ and the SEC, the DOJ never disclosed the fruits of the wiretaps to the SEC, presumably due to its belief that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (as amended, the …

Arbitration Agreement Arbitrage?: Statutory Discrepancy Leads To Third Circuit Victory For Dodd-Frank Whistleblower Defendants In Khazin V. Td Ameritrade Holding Corp., John K. Lisman

Villanova Law Review

No abstract provided.

Political Uncertainty And The Market For Ipos, Jay B. Kesten, Murat C. Mungan

Faculty Scholarship

This Article presents a simple theory and model of the effects of political uncertainty on the market for IPOs. Our model generates four central predictions: (i) increased political uncertainty reduces the frequency of IPOs; (ii) firms that choose to conduct an IPO during periods of political uncertainty are, on average, of higher quality and generate greater return on investment in the secondary market; (iii) political uncertainty increases the cost of capital for IPO firms; but (iv) underpricing is less pronounced during periods of heightened political uncertainty. We demonstrate that each of these predictions is consistent with available empirical evidence.

Our …

Dodd-Frank’S Extension Of Criminal Corporate Liability Through The Foreign Corrupt Practices Act: Enabling Whistleblowers And Monitoring Conflict Minerals, Tim Bakken

Pace Law Review

In a sense, through its whistleblower provision, the Dodd-Frank Act has enabled the government to use corporate employee whistleblowers to support criminal prosecutions. That position finds agreement in this article, but the conclusion reached is that the results to be obtained from the whistleblower provision will be positive. Through an analysis of the Dodd-Frank Act, this article discusses further the new reach of the FCPA, particularly in light of the whistleblower and conflict-minerals provisions in the Dodd-Frank Act. Finally, this article concludes that although the new provisions can be costly, the provisions are beneficial. The traditional corporate model is now …

Locked In: The Competitive Disadvantage Of Citizen Shareholders, Anne M. Tucker

Anne Tucker

In this Essay, I challenge the conventional corporate law wisdom that unhappy mutual fund investors paying high fees don’t need litigation or regulation to protect their interests because they should simply exit a fund and reinvest elsewhere. The exit solution, advanced by Professors John Morley and Quinn Curtis in Taking Exit Rights Seriously provided an elegantly simply solution to the problem of unhappy indirect investors (e.g., mutual fund investors) given that they are often low-dollar, low-incentive, rationally-apathetic investors facing enormous information asymmetries and collective action problems. According to their view, competition produced by exit, or the threat of exit, is …

Exploring The Link Between Food Security And Climate Change, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Our growing global population is demanding a more resource-intensive and so-called “Western” diet. And that change in demand has drastic impact on how we must change our supply.

Tpp Would Let Foreign Investors Bypass The Canadian Public Interest, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In early October, prime ministerial candidate Justin Trudeau promised Canadians “a full and open public debate” on the Trans-Pacific Partnership. With 30 chapters that would bind Canada to sweeping agreements on everything from services to intellectual property to the environment to procurement, there is much to debate.

Next Generation Treaty – India’S New Model Bit Makes It Clear That Its Goal Is To Accomplish More Than Investor Protection, Lisa E. Sachs, Lise Johnson, Sudhanshu Roy

Columbia Center on Sustainable Investment Staff Publications

The April release of India’s draft model bilateral investment treaty 1(BIT), which is expected to be approved by the cabinet soon, has generated a rich public debate on its international investment regime. There are important questions about the purpose and content of investment treaties, both in India and other countries. However, some reactions – like Augusts Law Commission report suggesting that the model BIT was not sufficiently investor-friendly – frame the discussion too narrowly, ignoring key questions and objectives behind India’s transitioning investment policy regime.

Locked In: The Competitive Disadvantage Of Citizen Shareholders, Anne M. Tucker

Faculty Publications By Year

In this Essay, I challenge the conventional corporate law wisdom that unhappy mutual fund investors paying high fees don’t need litigation or regulation to protect their interests because they should simply exit a fund and reinvest elsewhere. The exit solution, advanced by Professors John Morley and Quinn Curtis in Taking Exit Rights Seriously provided an elegantly simply solution to the problem of unhappy indirect investors (e.g., mutual fund investors) given that they are often low-dollar, low-incentive, rationally-apathetic investors facing enormous information asymmetries and collective action problems. According to their view, competition produced by exit, or the threat of exit, is …

How Algorithmic Trading Undermines Efficiency In Capital Markets, Yesha Yadav

Vanderbilt Law School Faculty Publications

This Article argues that the rise of algorithmic trading undermines efficient capital allocation in securities markets. It is a bedrock assumption in theory that securities prices reveal how effectively public companies utilize capital. This conventional wisdom rests on the straightforward premise that prices reflect available information about a security and that investors look to prices to decide where to invest and whether their capital is being productively used. Unsurprisingly, regulation relies pervasively on prices as a proxy for the allocative efficiency of investor capital.

Algorithmic trading weakens the ability of prices to function as a window into allocative efficiency. This …

Broader Is Better: How Courts Should Determine Whether Or Not An Allegation Of Fraud Falls Under The Preemption Provision Of The Securities Litigation Uniform Standards Act, Jennifer Rose Roeske

St. John's Law Review

(Excerpt)

This Note argues that the correct approach for interpreting the scope of SLUSA's preemption language is the "literalist" approach taken by the Sixth Circuit. Part I of this Note lays out the legal framework of the Reform Act of 1995, Congress's intent in enacting the legislation, and the unintended consequences that flowed from the PSLRA's heightened pleading requirements. Part I also discusses SLUSA, what led to its passage, and its preemption language. Additionally, it looks at the Supreme Court's interpretation of preemption statutes generally, as well as the Supreme Court's broad interpretation of SLUSA in Merrill Lynch, Pierce, Fenner …

Lawyers And Fools: Lawyer-Directors In Public Corporations, Lubomir P. Litov, Simone M. Sepe, Charles K. Whitehead

Lubomir P. Litov

The accepted wisdom—that a lawyer who becomes a corporate director has a fool for a client—is outdated. The benefits of lawyer-directors in today’s world significantly outweigh the costs. Beyond monitoring, they help manage litigation and regulation, as well as structure compensation to align CEO and shareholder interests. The results have been an average 9.5% increase in firm value and an almost doubling in the percentage of public companies with lawyer-directors. This Article is the first to analyze the rise of lawyer-directors. It makes a variety of other empirical contributions, each of which is statistically significant and large in magnitude. First, …

Don’T Ask, Just Tell: Insider Trading After United States V. O’Hagan, Kimberly D. Krawiec, Richard W. Painter, Cynthia A. Williams

Cynthia A. Williams

The United States Supreme Court validated the misappropriation theory in United States v. O'Hagan, but unfortunately rendered a confusing opinion that left many questions unresolved. In this article we discuss the history of the Supreme Court's Section 10(b) jurisprudence as it relates to insider trading, giving particular attention to the Court's insistence prior to O'Hagan that "a material misrepresentation or material failure to disclose," not merely a breach of fiduciary duty, must exist to impose liability under Section 10(b). We then discuss the pervasive inconsistencies among lower courts in interpreting the misappropriation theory, and how the O'Hagan decision does little …

Developments In Financial Services Regulation: A Canadian Perspective, Poonam Puri, Andrew Nichol

Poonam Puri

No abstract provided.

High Tech Lending: Maintaining Priority In An Intangible World, Richard Haigh, Marc R. Mercier

Richard Haigh

Financing intangible intellectual property in Canada presents some novel demands on lenders because of the interaction of provincial security schemes with federal intellectual property legislation. This article looks at the relative ease with which security interests in intangible property may be obtained under provincial personal property security regimes, and then at the various federal intellectual property statutes which exhibit more of a piecemeal approach to financing. In addition, a number of constitutional issues arise because of this jurisdictional split, and the article explores these issues, comparing the situation in Canada with that in the United States. The article suggests that …

Weather, Leather, And The Obligation To Disclose: Kerr V. Danier Leather Inc., Anita Anand, Mary Condon

Mary G. Condon

Is an issuer legally obliged to update its prospectus if a material event occurs following the receipt for the prospectus but prior to the closing of the offering? This is the crucial issue that is addressed in Kerr v. Danier Leather Inc., a case that has been heard at the trial and appeal levels in Ontario and that will be heard in 2007 by the Supreme Court of Canada. In this commentary, we argue that the Court of Appeal decision in the case overlooked crucial aspects of contemporary securities law and policy in holding that there is no obligation to …

The Vanishing Supervisor, James A. Fanto

Faculty Scholarship

No abstract provided.

Shared-Use Mining Infrastructure In Sub-Saharan Africa, Sophie Thomashausen, Glen Ireland

Columbia Center on Sustainable Investment Staff Publications

The IBA’s recent Conference, Investing in Africa: Opportunities for Businesses and

the Lawyers Who Counsel Them, held in New York on 24-26 June 2015, highlighted the growing challenges and opportunities related to infrastructure needed for major mining projects in sub-Saharan Africa. The mining sector, which remains critical to many economies in the region, is being hampered by the lack of adequate transport, power and other infrastructure, as was underscored by participants in the ‘Trends in the Mining Sector’ panel. In the current depressed commodity price environment, large investments in infrastructure required to develop major, ‘world-class’ deposits is difficult to justify, …

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

Faculty Publications

I IN the aftermath of the 1929 crash of the stock market and during the height of the Great Depression, the federal government took steps to strengthen U.S. securities laws.1 To that end, via the Securities Exchange Act of 1934, the U.S. Congress (Congress) created the U.S. Securities and Exchange Commission (SEC), whose “mission [is] to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.”2 As “the primary overseer and regulator of the U.S. securities markets,” the SEC has the power to bring enforcement actions against parties it believes to be in violation of the nation’s securities …

Regulating To Achieve Stability In The Domain Of High-Frequency Trading, Lindsey C. Crump

Michigan Telecommunications & Technology Law Review

High-frequency trading has become a darling of capital markets debate. This debate thrives because the true and long-lasting effects of high-frequency trading are still unknown. On one hand, high-frequency trading evidences recent and powerful advances in trading technology; on the other, it is said to harness speed at the expense of fairness, prudence, and stability. In part because of this duality, the regulation of high-frequency trading in the United States has been slow to develop. Other nations, however, have been quicker to react and to promulgate laws that directly, or indirectly, affect high-frequency trading. This Note explores the legal responses …

Tax Treatment Of Derivative Instruments, Oluwaseun Viyon Ojo

Oluwaseun Viyon Ojo

The article provides an analysis of the various types of derivative instruments traded on the capital markets. As derivative instruments become frequently tradable in the Nigerian Financial market in the near projected future, it is expedient that the concerned companies plan adequately for the tax implications of such transactions and the appropriate tax authorities know how to treat the instrument of derivatives for the purpose of imposition of relevant taxes. This paper therefore dealt with the treatment of these instruments under the Capital Gains Tax Act (CGTA) and Companies Income Tax Act (CITA), though there are no specific rules for …

Amending China's Insider Trading Prohibition - An Immodest Proposal, Nicholas C. Howson

Law & Economics Working Papers

Presented in China in conjunction with the proposed amendment of the People's Republic of China (PRC) Securities Law 2006, this paper critiques the form and application of the PRC's current insider trading prohibition and its misconceived fealty to Rule 10b-5-limiting U.S. Supreme Court-derived doctrines of fiduciary duty and misappropriation, and urges that China's amended statute and enforcement system look to the broader doctrinal formulations employed in the United Kingdom and the European Union, ironically already used by China's securities regulator pursuant to internal (and likely illegal) administrative "guidance" norms.

Keep Securities Reform Moving: Eliminate The Sec's Integration Doctrine, Stuart R. Cohn

UF Law Faculty Publications

Small and developing companies raising capital under the federal securities laws often face the considerable barrier imposed by the SEC's integration doctrine. Despite recent reforms in registration exemptions the integration doctrine has remained untouched and continues to be a significant problem for many companies needing multiple infusions of capital. This article examines and recommends that the integration doctrine be eliminated nearly in its entirety.

Let Sleeping Regs Lie: A Diatribe On Regulation A'S Futility Before And After The J.O.B.S. Act, Neal F. Newman

Faculty Scholarship

Did Congress do the right thing when it attempted to revise Regulation A through Title IV of the J.O.B.S. Act or was their legislative effort an exercise in futility?

On April 4 2012, President Obama signed into law the J.O.B.S. (Jumpstart Our Business Startups) Act. The Act’s intent is to ease the regulatory burden on smaller companies when issuing securities in both private and public offerings. This paper’s specific focus is on the Act’s Title IV. Title IV makes revisions to Regulation A, a private securities offering exemption promulgated under the Securities Act of 1933.

A big problem with Regulation …

The Sum Of Its Parts: The Lawyer-Client Relationship In Initial Public Offerings, Jeremy R. Mcclane

Fordham Law Review

This Article examines the impact of the quality of a lawyer's working relationship with his or her client on one of the most important types of capital markets deal in a company's existence: its initial public offering (IPO). Drawing on data from interviews with equity capital markets lawyers at major law firms, and analyzing data from IPOs in the United States registered with the Securities and Exchange Commission between June 1996 and December 2010, this study finds a strong association between several measures of IPO performance and the familiarity between the lead underwriter and its counsel, as measured by the …

Guide To Structuring Resales Of Restricted Securities Held By Control And Non-Control Holders Under Federal And Arkansas Law, John F. Griffee

University of Arkansas at Little Rock Law Review

No abstract provided.

Extraterritorial Criminal Enforcement Of Securities Fraud Regulations After United States V. Vilar, Edgardo Rotman

University of Miami Law Review

In August 2013, the Court of Appeals for the Second Circuit in the case of United States v. Vilar denied extraterritorial application of the criminal law antifraud provisions contained in the Securities Exchange Act. The specific object of this paper is to criticize this decision and negate its premises.

After delving in depth into the notion of extraterritoriality, the paper offers a dynamic interpretation of the 1922 Supreme Court’s decision in United States v. Bowman, which is still the governing precedent on extraterritorial application of criminal laws. Furthermore, the paper criticizes the application of the 2010 Supreme Court’s decision …