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Articles 1 - 30 of 40
Full-Text Articles in Securities Law
Jarkesy V. Sec: Are Federal Courts Pushing The U.S. Toward The Next Financial Crisis?, Jennifer Hill
Jarkesy V. Sec: Are Federal Courts Pushing The U.S. Toward The Next Financial Crisis?, Jennifer Hill
Pepperdine Law Review
In the wake of both the Great Depression and the Financial Crisis of 2008, Congress established and expanded the powers of the Securities and Exchange Commission (SEC). As part of this expansion, the SEC in-house administrative proceedings, designed to adjudicate SEC violations before the SEC’s administrative law judges (ALJs), were born. These in-house proceedings have faced multiple constitutional attacks in the past decade. In the most recent iteration of such challenges, Jarkesy v. SEC, the Fifth Circuit held that the SEC’s in-house proceedings were unconstitutional on three grounds: (1) the in-house proceedings deprived petitioners of their constitutional right to jury …
Cryptocurrency: Regulate Or Facilitate? How States' Approaches To Cryptocurrency Can Be Applied On A Federal Level, Kelly Mahoney
Cryptocurrency: Regulate Or Facilitate? How States' Approaches To Cryptocurrency Can Be Applied On A Federal Level, Kelly Mahoney
Journal of the National Association of Administrative Law Judiciary
Within the past two years, the cryptocurrency market exceeded a record $2 trillion. As of November 2021, there are seventy-five million Bitcoin (a type of cryptocurrency) users and counting. Many states have implemented regulations and policies in response to this massive growth of the crypto market. While some states like Wyoming and Texas welcome cryptocurrency other states, such as New York and Washington, are more apprehensive and seek to constrain cryptocurrency due to its volatility and novelty. In contrast, federal agencies are still debating on how to address cryptocurrency, and glimpses of federal regulation can be seen through the 2021 …
Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks
Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks
Pepperdine Law Review
Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world’s largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland’s biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan’s Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. The unique characteristics of total return swaps and …
Direct Listing: How Spotify Is Streaming On The Nyse And Why The Sec Should Press Play, Cody L. Lipke
Direct Listing: How Spotify Is Streaming On The Nyse And Why The Sec Should Press Play, Cody L. Lipke
The Journal of Business, Entrepreneurship & the Law
This Note proposes that given Spotify’s successful launch on the NYSE, direct listings will become increasingly popular—primarily for start-ups but also as an exit strategy for VC and PE firms in their nonpublic investments. Part II of this Note will discuss the process of “going public” via an IPO or a direct listing. Part III will use Spotify as an illustrative example of the direct listing process. Part IV will consider the advantages and disadvantages of direct listing. Part V will conclude that the Securities and Exchange Commission (SEC or the Commission) should embrace the direct listing process and will …
Sec Disgorgement Actions: Equitable Remedy Or Penalty?, Armando Lopez
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
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
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.
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
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
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
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 Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission’S Administrative Law Judges, Linda D. Jellum, Moses M. Tincher
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 division prevailed …
When Is The ‘Force’ With A Securities Claim That Is ‘Brought To Enforce’ A Federal Securities Law?, Michelle Wellnitz
When Is The ‘Force’ With A Securities Claim That Is ‘Brought To Enforce’ A Federal Securities Law?, Michelle Wellnitz
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Perfect Storm Is Brewing Once Again: What Scaling Back Dodd-Frank Will Mean For The Credit Default Swap, Daniel Isaacson
The Perfect Storm Is Brewing Once Again: What Scaling Back Dodd-Frank Will Mean For The Credit Default Swap, Daniel Isaacson
The Journal of Business, Entrepreneurship & the Law
The current presidential administration has expressed a concerted desire to “scale back” and even “get rid of” the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd–Frank). Focusing specifically on Dodd–Frank’s regulation of the credit default swap (CDS), this Article explores two timely queries. First, whether Dodd–Frank’s regulatory response to these financial instruments is a justifiable one, and second, what effect a repeal may have. This Article will show that the “perfect storm” CDS—which contributed so significantly to the 2007–2010 financial crisis—flourished in a regulatory environment that contained two key weaknesses: (1) few restrictions on excessive speculation; and (2) the …
To Be A "Whistleblower," Or Not To Be A "Whistleblower? " That Is The Question-Whether 'Tis Nobler In The Mind Of The Courts To Suffer For Reporting Wrongdoing To The Sec Or Employers Internally: Examining The Recent Circuit Split Regarding The Definition Of A Whistleblower Under Dodd-Frank, Luke I. Landers
The Journal of Business, Entrepreneurship & the Law
Under the current state of the law, the circuit courts are split over whether an employee must report corporate wrongdoing directly to the Securities and Exchange Commission (SEC), or report wrongdoing to a company’s management in order to receive whistleblower protection under Dodd–Frank. The resolution of this circuit split not only will have implications for American employees caught in situations similar to the fiction above, but also will provide a prime opportunity for the Supreme Court to clarify how courts are to understand the interpretive and deferential relationship between the language of legislative statutes and their corresponding bureaucratic regulations. In …
Clarifying The Original Clawback: Interpreting Sarbanes-Oxley Section 304 Through The Lens Of Dodd-Frank Section 954, J. Royce Fichtner, Patrick Heaston, Lou Ann Simpson
Clarifying The Original Clawback: Interpreting Sarbanes-Oxley Section 304 Through The Lens Of Dodd-Frank Section 954, J. Royce Fichtner, Patrick Heaston, Lou Ann Simpson
The Journal of Business, Entrepreneurship & the Law
In the early 2000s, major accounting scandals involving reporting violations and audit failures sent the United States financial markets into turmoil. Congress and President George W. Bush reacted to the controversy by passing the Public Company Accounting Reform and Investor Protection Act, better known as the Sarbanes–Oxley Act (SOX), in July of 2002. Section 304 created an explicit procedure, whereby the SEC could disgorge or clawback a CEO or CFO’s incentive-based compensation or stock gains when such profits were based on inflated financial statements later required to be restated to reflect the company’s true financial position. When the stock market …
Real Estate Crowdfunding – Modern Trend Or Restructured Investment Model?: Have The Sec’S Proposed Rules On Crowdfunding Created A Closed-Market System?, Cory Baker
The Journal of Business, Entrepreneurship & the Law
Crowdfunding is one of the fastest growing and most controversial segments of online purchasing and investing. Crowdfunding projects have been increasingly geared towards real estate development and are changing the scope of investment by enabling developers to solicit securities-based funding from the public. When the Securities and Exchange Commission (SEC) proposed its rules to allow crowdfunding under the Jumpstart Our Business Startups (JOBS) Act, it raised the issue of whether crowdfunding would be a viable option for building and owning large-scale projects. Offering developers new ways to finance projects, small investors a way in, and the socially conscious an avenue …
Deranged Disgorgement, James Tyler Kirk
Deranged Disgorgement, James Tyler Kirk
The Journal of Business, Entrepreneurship & the Law
This article seeks to explore the concept of equity embodied in the securities laws as intended by Congress. Accordingly, this article asks whether Congress intended to codify the traditional common law notions of equity in disgorgement, or is the SEC's disgorgement sui generis. To answer this question, the philosophy behind disgorgement is exhaustively fleshed out through a historical case analysis. Next, the article establishes what the author believes to be a new concept, the theory of regulatory equity. Following the establishment of this theory, the practice of offsetting disgorgement is analyzed to see whether it is faithful to this new …
Governing The Corporate Insiders: Improving Regulation Fair Disclosure With More Robust Guidance And Stronger Penalties For Individual Executives, Christopher Ippoliti
Governing The Corporate Insiders: Improving Regulation Fair Disclosure With More Robust Guidance And Stronger Penalties For Individual Executives, Christopher Ippoliti
The Journal of Business, Entrepreneurship & the Law
This article discusses the history of Regulation Fair Disclosure (Regulation FD), the problems it was intended to remedy, the scope of the regulation, and acceptable methods of disclosing material information in compliance with the rule. Part III examines specific further guidance and two investigative reports issued by the United States Securities and Exchange Commission (SEC) impacting Regulation FD disclosures. In Part IV, this article sets forth a comprehensive analysis of all the specific enforcement actions pursued by the SEC and the penalties assessed against publicly traded companies and individuals for Regulation FD violations. Part V evaluates the effectiveness of the …
Private Equity And The Fcpa: Deal-Making As Reform Mechanism, Thomas J. Manning
Private Equity And The Fcpa: Deal-Making As Reform Mechanism, Thomas J. Manning
Pepperdine Law Review
No abstract provided.
Restoring Confidence In The Financial Services Industry: Advocating For A Uniform, Rules-Based Fiduciary Standard, Katelin Eastman
Restoring Confidence In The Financial Services Industry: Advocating For A Uniform, Rules-Based Fiduciary Standard, Katelin Eastman
Pepperdine Law Review
No abstract provided.
Aml In The Spotlight: Compliance Risks For Broker-Dealers And Investment Advisers, John H. Walsh, Cecilia Baute Mavico
Aml In The Spotlight: Compliance Risks For Broker-Dealers And Investment Advisers, John H. Walsh, Cecilia Baute Mavico
The Journal of Business, Entrepreneurship & the Law
In light of regulators' renewed attention, this article discusses recent events, reviews AML enforcement actions against securities firms, and identifies the compliance risks they suggest. The article concludes that the time has come for broker-dealers and advisers alike to take a holistic view of compliance and their AML risks, and to prepare for enhanced oversight and regulation.
Unfinished Business: Dodd-Frank's Whistleblower Anti-Retaliation Protections Fall Short For Private Companies And Their Employees, Chelsea Hunt Overhuls
Unfinished Business: Dodd-Frank's Whistleblower Anti-Retaliation Protections Fall Short For Private Companies And Their Employees, Chelsea Hunt Overhuls
The Journal of Business, Entrepreneurship & the Law
The Sarbanes-Oxley Act of 2002 (“SOX”) revolutionized the world of securities law whistleblowing. It encouraged employees to reveal corporate fraud by providing federal anti-retaliation protection to incentivize such reports. Securities law whistleblowing was transformed a second time in 2010 when Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Under Dodd-Frank, employees that report information to the Securities and Exchange Commission (“SEC”) are not only provided federal anti-retaliation protections but also are eligible for a hefty bounty. Two major differences separate these statutes: (1) SOX is limited to employees of companies who are subject to the reporting …
There's A New Sheriff In Town - Will The New Sec Chairman Allow Issuers Of American Depository Receipts To Use International Accounting Standards To Satisfy Listing Requirements On U.S. Exchanges?, Joseph J.M. Orabona
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Business Roundtable V. Securities And Exchange Commission: The Sec's First Big Shot At Proxy Access In The Shadow Of Dodd-Frank, Raymond E. Areshenko
Business Roundtable V. Securities And Exchange Commission: The Sec's First Big Shot At Proxy Access In The Shadow Of Dodd-Frank, Raymond E. Areshenko
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
When The Government Attempts To Change The Board, Investors Should Know, William O. Fisher
When The Government Attempts To Change The Board, Investors Should Know, William O. Fisher
Pepperdine Law Review
In 2008 and 2009, the federal government effectively hired and fired directors at American International Group and Bank of America, without any securities filing of the sort that would have been required had a private market actor attempted to change the boards at those companies. The fact that current law allows the government to secretly reconstitute the governing bodies of multibillion-dollar, publicly traded companies is cause for concern, for who controls the board controls the company. This Article argues that, just as securities filings alert investors when private parties attempt board change, a new required filing should inform investors when …
Materiality In Sarbanes-Oxley Act Employee Protection Claims, William Dorsey
Materiality In Sarbanes-Oxley Act Employee Protection Claims, William Dorsey
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Alternatives For Small Business Raising Capital Under The Securities Act Of 1933, David H. Barber
Alternatives For Small Business Raising Capital Under The Securities Act Of 1933, David H. Barber
Pepperdine Law Review
The problems encountered by the business community in raising capital for new or small businesses has spurned implementation of responsive policy and regulations by the Securities and Exchange Commission. As a result of input from a series of nationwide small business hearings, the S.E.C. has recently demonstrated its commitment to aiding capital raising needs. This was accomplished by creating an Office of Small Business Policy to respond to the effects of major new changes to the Securities Act of 1933 which seek to facilitate the process of capitalization of small business. Professor David H. Barber, of Brigham Young University's J. …
Boiler Room Fraud: An Operational Plan Utilizing The Injunction Against Fraud Pursuant To 18 U.S.C. §1345 , Robert M. Twiss
Boiler Room Fraud: An Operational Plan Utilizing The Injunction Against Fraud Pursuant To 18 U.S.C. §1345 , Robert M. Twiss
Pepperdine Law Review
No abstract provided.
Revising Federal Securityholder Communication Rules To Respond To Pension Funds' Increasing Market Presence, Kenneth R. Lehman
Revising Federal Securityholder Communication Rules To Respond To Pension Funds' Increasing Market Presence, Kenneth R. Lehman
Pepperdine Law Review
No abstract provided.