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Articles 1 - 30 of 89

Full-Text Articles in Securities Law

Multilateral Transparency For Security Markets Through Dlt, David C. Donald, Mahdi H. Miraz Jan 2020

Multilateral Transparency For Security Markets Through Dlt, David C. Donald, Mahdi H. Miraz

Fordham Journal of Corporate & Financial Law

For decades, changing technology and policy choices have worked to fragment securities markets, rendering them so dark that neither ownership nor real-time price of securities are generally visible to all parties multilaterally. The policies in the U.S. National Market System and the EU Market in Financial Instruments Directive— together with universal adoption of the indirect holding system— have pushed Western securities markets into a corner from which escape to full transparency has seemed either impossible or prohibitively expensive. Although the reader has a right to skepticism given the exaggerated promises surrounding blockchain in recent years, we demonstrate in this ...


Reconciling U.S. Banking And Securities Data Preservation Rules With European Mandatory Data Erasure Under Gdpr, Ronald V. Distante Jan 2020

Reconciling U.S. Banking And Securities Data Preservation Rules With European Mandatory Data Erasure Under Gdpr, Ronald V. Distante

Fordham Journal of Corporate & Financial Law

United States law, which requires financial institutions to retain customer data, conflicts with European Union law, which requires financial institutions to delete customer data on demand. A financial institution operating transnationally cannot comply with both U.S. and EU law. Financial institutions thus face the issue that they cannot possibly delete and retain the same data simultaneously. This Note will clarify the scope and nature of this conflict.

First, it will clarify the conflict by examining (1) the relevant laws, which are Europe’s General Data Protection Regulation (GDPR), the U.S. Bank Secrecy Act, and Securities and Exchange Commission ...


Newman/Martoma: The Insider Trading Law's Impasse And The Promise Of Congressional Action, Tai H. Park Jan 2020

Newman/Martoma: The Insider Trading Law's Impasse And The Promise Of Congressional Action, Tai H. Park

Fordham Journal of Corporate & Financial Law

The prohibition against insider trading is a judge-made law that has evolved for over fifty years, and has reached a critical impasse in two recent decisions in the Second Circuit Court of Appeals: United States v. Newman and United States v. Martoma. Judges of the Second Circuit are sharply divided over what conduct constitutes improper trading on material nonpublic information (“MNPI”), leaving the law in profound disarray. At bottom, the disagreement stems from a decades-old split within the judiciary about how to (1) ensure a fair securities marketplace, while (2) enabling institutional analysts to probe for corporate information in furtherance ...


Breaking Up The Focus On Relationships For Nonpecuniary Insider Trading Personal Benefits, Bradley Larkin Oct 2019

Breaking Up The Focus On Relationships For Nonpecuniary Insider Trading Personal Benefits, Bradley Larkin

Fordham Law Review

In 1983, the U.S. Supreme Court adopted the “personal benefit” requirement as an objective test for insider trading to help determine when confidential information is tipped for an improper purpose. Under this test, a tipper acts improperly by receiving a personal benefit for sharing confidential, nonpublic information, even if the tipper does not trade using the information. For instance, when a tipper leaks confidential information to a trading friend or relative, the tipper benefits personally because this amounts to trading on the confidential information and then gifting the profits. The personal benefit requirement is applied differently among the circuits ...


Security For Expense Statutes: Easing Shareholder Hopelessness?, Miriam R. Albert Jan 2019

Security For Expense Statutes: Easing Shareholder Hopelessness?, Miriam R. Albert

Fordham Journal of Corporate & Financial Law

The quintessential derivative suit is a suit by a shareholder to force the corporation to sue a manager for fraud, which is admittedly an awkward and likely unpleasant endeavor and, according to the Supreme Court, a “remedy born of stockholder helplessness.” Where ownership and control of an enterprise are vested in the same population, the need for a corrective mechanism like a derivative suit is greatly lessened because the owner/managers’ self-interests will arguably guide managerial conduct. But where ownership and control are in separate hands, the incentives change, and managerial conduct may not conform to the owners’ views of ...


Reconciling The Volcker Rule With The Dodd-Frank Act’S Objectives: How To Best Combat Systemic Risk, Michael Leonidas Nester May 2018

Reconciling The Volcker Rule With The Dodd-Frank Act’S Objectives: How To Best Combat Systemic Risk, Michael Leonidas Nester

Fordham Law Review

This Note examines the Dodd-Frank Act’s ban on proprietary trading and on banks sponsoring hedge funds and private equity funds, known as the Volcker Rule. This Rule has been a point of contention since the Act was passed in 2010. Some argue that the ban is either a detriment to bond market liquidity or is unnecessary because a tenuous nexus exists between proprietary trading and true causes of the 2008 financial crisis. Proponents cite the role of proprietary trading in the crisis and the inherent risk that banks accept when engaging in such trading. The controversy surrounding the Volcker ...


What Would We Do Without Them: Whistleblowers In The Era Of Sarbanes-Oxley And Dodd-Frank, Sean Griffith, Jane A. Norberg, Ian Engoron, Alice Brightsky, Tracey Mcneil, Jennifer M. Pacella, Judith Weinstock, Jason Zuckerman Apr 2018

What Would We Do Without Them: Whistleblowers In The Era Of Sarbanes-Oxley And Dodd-Frank, Sean Griffith, Jane A. Norberg, Ian Engoron, Alice Brightsky, Tracey Mcneil, Jennifer M. Pacella, Judith Weinstock, Jason Zuckerman

Fordham Journal of Corporate & Financial Law

No abstract provided.


Venture Capital Contract Design: An Empirical Analysis Of The Connection Between Bargaining Power And Venture Financing Contract Terms, Spencer Williams Dec 2017

Venture Capital Contract Design: An Empirical Analysis Of The Connection Between Bargaining Power And Venture Financing Contract Terms, Spencer Williams

Fordham Journal of Corporate & Financial Law

This Article presents an empirical analysis of the connection between bargaining power and contract design using an original dataset of over 5,500 equity and debt venture financings from 2004–2015. Using the total supply of venture capital in the U.S. as a measure of relative bargaining power between entrepreneurs and investors, this Article finds that venture capital supply has a statistically significant relationship with price and non-price terms in both equity and debt financings. These results contradict one of three theoretical accounts of bargaining power and support the other two.


A Novel Approach To Defining "Whistleblower" In Dodd-Frank, Ian A. Engoron Dec 2017

A Novel Approach To Defining "Whistleblower" In Dodd-Frank, Ian A. Engoron

Fordham Journal of Corporate & Financial Law

Following the Financial Crisis of 2008, trust in the financial industry was at an all-time low as the American taxpayer was forced to bailout the very same institutions responsible for their suffering. In response, Congress passed Dodd-Frank in 2010 to ensure another crisis like 2008 never happen again. Section 78u-6 of the Act provides incentives and protections for whistleblowers who report violations of securities laws. In recent years there has been a divide among circuit courts over the question of whether employees who report violations internally to their bosses—and not directly to the SEC—are protected by the Act ...


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 ...


Cfius In The Age Of Chinese Investment, Patrick Griffin Mar 2017

Cfius In The Age Of Chinese Investment, Patrick Griffin

Fordham Law Review

As China’s economy has developed, its companies, both state-owned and privately held, have moved to expand their operations in the United States to the point where many now seek to invest in—and on occasion, acquire—U.S. counterparts. This trend has set off alarm bells over fears that China’s unique political and economic system, which gives the state extensive influence over all corporations regardless of their ownership structure, renders such transactions national security threats. Recent hostility toward Chinese-led inbound investment is not a new trend; Congress has attempted to assert itself into the screening process undertaken by ...


The Great Etf Tax Swindle: The Taxation Of In-Kind Redemptions, Jeffrey Colon Jan 2017

The Great Etf Tax Swindle: The Taxation Of In-Kind Redemptions, Jeffrey Colon

Faculty Scholarship

Since the repeal of the General Utilities doctrine over 30 years ago, corporations must recognize gain when distributing appreciated property to their shareholders. Regulated investment companies (RICs), which generally must be organized as domestic corporations, are exempt from this rule when distributing property in kind to a redeeming shareholder. In-kind redemptions, while rare for mutual funds, are a fundamental feature of exchange-traded funds (ETFs). Because fund managers decide which securities to distribute, they distribute assets with unrealized gains and thereby significantly reduce the future tax burdens of their current and future shareholders. Many ETFs have morphed into investment vehicles that ...


Regulating A Revolution: From Regulatory Sandboxes To Smart Regulation, Dirk A. Zetzsche, Ross P. Buckley, Janos N. Barberis, Douglas W. Arner Jan 2017

Regulating A Revolution: From Regulatory Sandboxes To Smart Regulation, Dirk A. Zetzsche, Ross P. Buckley, Janos N. Barberis, Douglas W. Arner

Fordham Journal of Corporate & Financial Law

Prior to the global financial crisis, financial innovation was viewed very positively, resulting in a laissez-faire, deregulatory approach to financial regulation. Since the crisis the regulatory pendulum has swung to the other extreme. Post-crisis regulation, plus rapid technological change, have spurred the development of financial technology (FinTech). FinTech firms and data-driven financial service providers profoundly challenge the current regulatory paradigm. Financial regulators increasingly seek to balance the traditional regulatory objectives of financial stability and consumer protection with promoting growth and innovation. The resulting regulatory innovations include RegTech, regulatory sandboxes, and special charters. This Article analyzes possible new regulatory approaches, ranging ...


Quasi-Appraisal: Appraising Breach Of Duty Of Disclosure Claims Following "Cash-Out" Mergers In Delaware, Zachary A. Paiva Jan 2017

Quasi-Appraisal: Appraising Breach Of Duty Of Disclosure Claims Following "Cash-Out" Mergers In Delaware, Zachary A. Paiva

Fordham Journal of Corporate & Financial Law

In recent years, Delaware has served as the hot bed for the dramatic increase in merger appraisal litigation and the proliferation of “appraisal arbitrage” whereby opportunistic shareholders buy into companies following merger announcements and challenge announced deal prices as an investment strategy. While this has not always proved profitable, it has increased scrutiny over the Delaware appraisal regime and the ability for shareholders to avail themselves of the opportunity for a judicial valuation of their shares. Furthermore, it has highlighted information asymmetries in which controlling shareholders, particularly those seeking to cash out their minority shareholders, are incentivized to underpay or ...


The Seventeenth Annual A.A. Sommer, Jr. Lecture On Corporate, Securities And Financial Law At The Fordham Corporate Law Center, Matthew Diller, Ben Indek, Ira D. Hammerman Jan 2017

The Seventeenth Annual A.A. Sommer, Jr. Lecture On Corporate, Securities And Financial Law At The Fordham Corporate Law Center, Matthew Diller, Ben Indek, Ira D. Hammerman

Fordham Journal of Corporate & Financial Law

No abstract provided.


Dodd-Frank And The Spoofing Prohibition In Commodities Markets, Meric Sar Jan 2017

Dodd-Frank And The Spoofing Prohibition In Commodities Markets, Meric Sar

Fordham Journal of Corporate & Financial Law

The Dodd-Frank Act amended the Commodity Exchange Act and adopted an explicit prohibition regarding activity commonly known as spoofing in commodities markets. This Note argues that the spoofing prohibition is a necessary step towards improved market discipline and price integrity in the relevant commodities markets. It fills an important gap in the CEA in relation to an elusive form of price manipulation activity by providing an explicit statutory authority on which regulators and market operators may rely in policing suspect trading strategies falling under the spoofing umbrella.

Congress’ explicit denouncement of spoofing as an illegal act has ramifications not only ...


Fair Or Foul?: Sec Administrative Proceedings And Prospects For Reform Through Removal Legislation, Joseph A. Grundfest Dec 2016

Fair Or Foul?: Sec Administrative Proceedings And Prospects For Reform Through Removal Legislation, Joseph A. Grundfest

Fordham Law Review

This Article catalogues the long list of criticisms of the Commission’s administrative proceedings. It also evaluates data describing the outcome of litigated matters and finds that, with the exception of insider trading cases, the Commission has an exceptionally high and statistically indistinguishable record of success in administrative and federal court proceedings alike. The data thus seem not to support the view that the Commission has a generalized home-court advantage in administrative proceedings. Nonetheless, the Commission’s virtually unfettered discretion in forum selection decisions, when it can assign cases to a forum that it controls, raises a plethora of institutional ...


Consistently Inconsistent: What Is A Qualifying Investment Under Article 25 Of The Icsid Convention And Why The Debate Must End, Jeremy Marc Exelbert Dec 2016

Consistently Inconsistent: What Is A Qualifying Investment Under Article 25 Of The Icsid Convention And Why The Debate Must End, Jeremy Marc Exelbert

Fordham Law Review

International investment has helped to pave the way for an increasingly globalized world community. Consequently, the International Centre for Settlement of Investor Disputes (ICSID)—existing under the mandate of the World Bank and with the stated purpose of increasing economic development abroad—has become the leading international arbitration mechanism currently available for settling disputes arising out of such investments. It is unsettling, therefore, that the interpretation of “investment” within article 25 of the ICSID Convention (the provision that determines whether an ICSID tribunal may exercise jurisdiction over a dispute) has given rise to a unique interpretive controversy because the ICSID ...


In Defense Of The Dealers: Why The Sec Should Allow Substituted Compliance With The European Union For Security-Based Swap Dealers, John Welling Nov 2016

In Defense Of The Dealers: Why The Sec Should Allow Substituted Compliance With The European Union For Security-Based Swap Dealers, John Welling

Fordham Law Review

Following the 2008–2009 financial crisis, legislators around the world enacted laws that regulated the over-the-counter (OTC) derivatives markets for the first time. These laws, though necessary, have duplicative requirements that dampen market efficiency. In the United States, the Securities and Exchange Commission is contemplating a “substituted compliance” regime with other jurisdictions. This regime would allow market participants to comply with one jurisdiction’s requirements for certain transactions, rather than the requirements of multiple jurisdictions. This Note argues that the SEC should allow substituted compliance for OTC derivatives, but only for dealers located in the United States and European Union ...


Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour Oct 2016

Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour

Fordham Law Review

The Second Circuit has long been the country’s preeminent court in the field of securities and financial regulation. The reputation of the Second Circuit in the realm of securities has been so great that other courts, including the Supreme Court, often mention by name the particular judges that decided a given Second Circuit precedent to justify their reliance on that decision. Many courts have long looked to its jurisprudence for guidance in deciding novel or complex securities law issues. This article tracks the Second Circuit’s significant role in developing civil enforcement mechanisms for federal securities laws and making ...


Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi Oct 2016

Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi

Fordham Law Review

This Note discusses a securities disclosure issue stemming from a split between the Second Circuit and the Ninth Circuit. The question presented is whether failure to comply with a disclosure requirement created by Item 303 of Regulation S-K can provide a basis for liability under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The Ninth Circuit held that such violation does not provide a basis for liability. Conversely, in Stratte-McClure v. Morgan Stanley, the Second Circuit explicitly disagreed with the Ninth Circuit and concluded that this violation may serve as a basis for liability. This ...


White Collar Crime, Robert J. Anello, Miriam L. Glaser Oct 2016

White Collar Crime, Robert J. Anello, Miriam L. Glaser

Fordham Law Review

This Article will address six different areas of white collar law and procedure: (1) fraud, (2) the Racketeer Influenced & Corrupt Organizations Act (RICO), (3) conspiracy, (4) public corruption, (5) white collar practice, and (6) sentencing. Many of the cases profiled in this Article have driven legal and cultural developments far beyond the federal courts, including the cases of Leona Helmsley, one of New York’s most prominent real estate moguls; the “Mafia Commission,” a take-down of the bosses of the Five Families of La Cosa Nostra; and Abscam, a massive sting operation created by the federal government to expose corrupt officials. Of course, the cases and doctrines discussed can only scratch the surface of the vast wealth of jurisprudence and leadership that the Second Circuit has provided in the arena of white collar crime. Even more fascinating material therefore awaits the interested and industrious reader in his or her own research.


Keeping Shareholder Activism Alive: A Comparative Approach To Outlawing Dead Hand Proxy Puts In Delaware, Danielle A. Rapaccioli May 2016

Keeping Shareholder Activism Alive: A Comparative Approach To Outlawing Dead Hand Proxy Puts In Delaware, Danielle A. Rapaccioli

Fordham Law Review

Current trends in shareholder activism have brought to light the competing interests of management and stockholders. With a rise in shareholder activism, firms are continuing to include change in control provisions, known as proxy puts, in their debt agreements to counter activist success. Recent litigation regarding the use of these provisions has created a debate as to whether these provisions are valid under Delaware law. Moreover, companies and lending institutions have morphed these provisions into a more restrictive form, known as “dead hand proxy puts.” The controversy analyzed in this Note arises out of the use of dead hand proxy ...


The Conscious Parallelism Of Wolf Packs: Applying The Antitrust Conspiracy Framework To Section 13(D) Activist Group Formation, William R. Tevlin Apr 2016

The Conscious Parallelism Of Wolf Packs: Applying The Antitrust Conspiracy Framework To Section 13(D) Activist Group Formation, William R. Tevlin

Fordham Law Review

Section 13(d) of the Williams Act requires all persons and groups that acquire 5 percent or more of an issuer’s outstanding stock to disclose their holdings to the Securities and Exchange Commission. Whether a group is formed under section 13(d) often is unclear. The legal precedent is ambiguous; courts give more weight to certain forms of circumstantial evidence than others without explaining why. With the substantial increase of hedge fund activism—in particular, the wolf pack tactic—further clarity or uniformity is necessary. A “wolf pack” is a loose association of hedge funds that employs parallel activist ...


Helping Yourself While Serving Two Masters: Do Specialists Violate Rule 10b-5 When They Interposition?, Roman Asudulayev Mar 2016

Helping Yourself While Serving Two Masters: Do Specialists Violate Rule 10b-5 When They Interposition?, Roman Asudulayev

Fordham Urban Law Journal

The decision of the Second Circuit in United States v. Finnerty (Finnerty III) was the culmination of a number of District Court decisions that found that specialists on the New York Stock Exchange (NYSE) could not be held liable for fraud under Rule 10b-5 for interpositioning, whereby they put themselves between buy and sell limit orders, in violation of NYSE rules, and profited on the spread. Finnerty III and its District Court sibling decisions were wrongly decided. Specialists presented a uniquely thorny issue of agency law to the Federal Courts in New York. This issue was under-analyzed by the Federal ...


Victimization On Main Street: Occupy Wall Street And The Mortgage Fraud Crisis, Sandra D. Jordan Feb 2016

Victimization On Main Street: Occupy Wall Street And The Mortgage Fraud Crisis, Sandra D. Jordan

Fordham Urban Law Journal

No abstract provided.


Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, Colleen Powers Jan 2016

Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, Colleen Powers

Fordham Urban Law Journal

No abstract provided.


The Fifteenth Annual Albert A. Destefano Lecture On Corporate, Securities, & Financial Law At The Fordham Corporate Law Center, Frederick H. Alexander, Chris Cernich, Mark Lebovitch, Norman M. Monhait, Andrew J. Pincus Jan 2016

The Fifteenth Annual Albert A. Destefano Lecture On Corporate, Securities, & Financial Law At The Fordham Corporate Law Center, Frederick H. Alexander, Chris Cernich, Mark Lebovitch, Norman M. Monhait, Andrew J. Pincus

Fordham Journal of Corporate & Financial Law

No abstract provided.


Disruptive Technology And Securities Regulation, Chris Brummer Dec 2015

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 ...


Behind Enemy Phone Lines: Insider Trading, Parallel Enforcement, And Sharing The Fruits Of Wiretaps, Alexandra N. Mogul Dec 2015

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 “Wiretap ...