Securities Law Commons^™

Constraining Monitors, Veronica Root

Journal Articles

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

Pcaob And The Persistence Of The Removal Puzzle, Patricia L. Bellia

Journal Articles

In Free Enterprise Fund v. Public Company Accounting Oversight Board ("PCAOB"), the Supreme Court invalidated a statutory provision protecting the tenure of members of the PCAOB, a board created to oversee the auditing of public companies subject to the securities laws. The case carried the potential for a major shift in the Court's approach to separation of powers disputes. Although the Court delivered no such result, the PCAOB case provides a fascinating window on the removal puzzle. The case reflects an entanglement of multiple textually derived and nontextual separation of powers principles. One of the central principles on which the …

The Securities Laws And The Mechanics Of Legal Change, Barry Cushman

Journal Articles

This essay, prepared for the Virginia Law Review symposium marking the 75th anniversary of the Securities Exchange Commission, explores the mechanisms through which the Roosevelt Administration secured the Supreme Court's approval of various features of the New Deal's securities law program.

The Sec And Accounting, In Part Through The Eyes Of Pacioli, Matthew J. Barrett

Journal Articles

As part of a symposium marking the seventieth anniversary of the creation of the Securities and Exchange Commission, this article pulls together two threads, namely Luca Pacioli's prominence in accounting and the importance of the Management's Discussion and Analysis (MD&A) requirements that seek to give investors an opportunity to view a public company through the eyes of management, to evaluate the SEC's record on certain accounting issues. Because writers in legal journals have largely ignored Pacioli's efforts, the article begins by highlighting some of the friar's contributions to accounting precepts. The article next applies some of those precepts in a …

Reforming Securities Class Actions From The Bench: Judging Fiduciaries And Fiduciary Judging, Lisa L. Casey

Journal Articles

The attorneys' fees awarded to plaintiffs’ counsel in securities fraud class actions have generated controversy for years. Critics have claimed that enormous fee awards come at the expense of defrauded investors and simply spur extortionate lawsuits against issuers and other potential deep pocket defendants. Commentators also have raised concerns that plaintiffs' class action lawyers manipulated class representatives, persons who had little incentive to monitor class counsel’s activities.

To address these concerns, Congress enacted the Private Securities Litigation Reform Act ("PSLRA"). Among other things, the statute sought to protect absent class members by giving control of the litigation to lead plaintiffs …

Does Sec Rule 10b-5 Provide An Implied Private Right Of Action For Aiding And Abetting Securities Fraud?, Matthew J. Barrett

Journal Articles

This case concerns the civil liability of persons who aid and abet securities fraud in violation of federal law. First, the Supreme Court will decide if federal securities law recognizes an implied private right of action against those who aid and abet securities fraud. Second, if the Court concludes that there is a private right of action, it is asked to decide if recklessness satisfies the mental-state requirement which lower courts have held is a prerequisite for imposing civil liability.

The Elusive Concept Of Control In Churning Claims Under Federal Securities And Commodities Law, Patricia A. O'Hara

Journal Articles

Account executives—when serving as either a broker or a dealer—stand in a conflict of interest position with their customers. The brokerage house profits through commissions from the execution of the transaction regardless of whether the customer profits on the investment. Account executives who do so, violate the fiduciary duties he owes to a customer in favor of his own self-interest. The customer can bring an action for churning under federal securities and commodities laws if he or she can demonstrate that the broker excessively traded an account over which the broker exercised control in order to generate commissions for himself …

Erosion Of The Privity Requirement In Section 12(2) Of The Securities Act Of 1933: The Expanded Meaning, Patricia O'Hara

Journal Articles

Section 12(2) of the Securities Act of 1933 provides a securities purchaser with an express cause of action against his seller if the purchaser can establish that the seller used interstate commerce or the mails to offer or sell a security by means of a written or oral communication which misstated or omitted to state a material fact of which the purchaser was unaware. Upon proof of the foregoing, the purchaser is entitled to rescind his purchase or, in the event he no longer owns the security, to recover equivalent damages unless the seller sustains the burden of proving that …