Securities Law Commons^™

Compromise Merit Review—A Proposal For Both Sides Of The Debate, Gregory Gorder

Washington Law Review

As is the case with many facets of modem life, government is involved in regulating the primary securities markets. Both federal and state laws require registration of initial securities offerings. Federal registration is procedural in nature, requiring full disclosure. State registiation, on the other hand, usually includes "merit review" of proposed securities offerings; state administrators typically may deny registration of a security if the offering would not be fair, just, and equitable or would be unreasonable in certain respects. This Comment analyzes the advantages and disadvantages of merit review, specifically the discretionary power reposed in the state administrator, and proposes …

Short-Swing Profiles In Failed Takeover Bids—The Role Of Section 16(B), Donna Darm

Washington Law Review

This Comment examines the scope of section 16(b) liability for the unsuccessful takeover bidder. It then develops two possible analyses by which the courts might exempt the takeover bidder from section 16(b)'s provisions. Alternatively, it recommends that if the courts do not exonerate takeover bidders, they should at least allow a less harsh calculation of profit.

Customer Rights Under The Commodity Exchange Act, Jerry W. Markham, Kyra K. Bergin

Vanderbilt Law Review

This Article reviews customer rights and remedies now available under the CEA. Specifically, part II of this Article explores the scope of transactions covered by the CEA, part III addresses the antifraud provisions of the CEA, and part IV discusses the standard of intent required to prove that fraud has been committed under CEA provisions. Part V of this Article examines the secondary liability of brokerage firms and others for the fraudulent acts of its employees, part VI discusses fiduciary liability under the CEA, and part VII enumerates the various forums available for customer remedies." This Article concludes in part …

The Patentability Of Computer Programs: Merrill Lynch's Patent For A Financial Services System, Lynne B. Allen

Indiana Law Journal

No abstract provided.

The Continuing Puzzle Of Secured Debt, Alan Schwartz

Vanderbilt Law Review

In 1981, I wrote an article showing that no good answer had been given to the question why corporations issue some debt on a secured basis and other debt on an unsecured basis.' This showing had normative implications because claims that the institution of personal property security is efficient or otherwise desirable must be impeached if the actual purposes that security serves are unknown. Consequently, the law's favorable treatment of secured debt-for example, giving it first place in bankruptcy distributions--is without plausible support. My article did not advocate repealing the privileges attached to secured debt, however, because then--current knowledge also …

The Ninth Circuit's Requirement Of Notice To Targets Of Third Party Subpoenas In Sec Investigations—A Remedy Without A Right—Jerry T. O'Brien, Inc. V. Sec, 704 F.2d 1065 (9th Cir. 1983), Rev'd, No. 83-751, Slip Op. (U.S. June 18, 1984), Judith Bellamy Peck

Washington Law Review

The threat of civil, criminal, or administrative sanctions is, of course, the greatest risk faced by a subject of an SEC investigation. However, regardless of the investigatee's guilt or innocence, an investigation poses other hazards, especially damage to business reputation. SEC investigatees traditionally have had virtually no protection against the economic risks that accompany the investigative process. These risks have been seen as the unavoidable cost of pursuing a regulated activity. This Note examines generally the economic interests of SEC investigatees and reviews prior judicial treatment of these interests. The Note then analyzes the O'Brien decision, focusing on the court's …

Florida's Response To The Need For Uniformity In Federal And State Securities Registration Exemption Requirements, Rex A. Hurley, Carla Green

Florida State University Law Review

No abstract provided.

Insider Trading And The Insider Trading Sanctions Act Of 1984: New Wine Into New Bottles?, David M. Brodsky

Washington and Lee Law Review

No abstract provided.

Extraterritorial Application Of Fraud Provisions Of The Commodity Exchange Act

Washington and Lee Law Review

No abstract provided.

The Sale Of Business Doctrine: Judicial Exemption From The Federal Securities Laws

Washington and Lee Law Review

No abstract provided.

The Severability Of Arbitrable And Nonarbitrable Securities Claims

Washington and Lee Law Review

No abstract provided.

The Use Of The Fifth Amendment In Sec Investigations, Seymour Glanzer, Howard Schiffman, Mark Packman

Washington and Lee Law Review

No abstract provided.

Negligence Vs. Scienter: The Proper Standard Of Liability For Violations Of The Antifraud Provisions Regulating Tender Offers And Proxy Solicitations Under The Securities Exchange Act Of 1934

Washington and Lee Law Review

No abstract provided.

Oral Misrepresentations At "Roadshows" And In Other Settings: Illusory Liability Under Rule Lob-57

Washington and Lee Law Review

No abstract provided.

Precious Metals Trading-The Last Frontier Of Unregulated Investment, David J. Gilberg

Washington and Lee Law Review

No abstract provided.

Corporate Morality And Management Buyouts

Washington and Lee Law Review

No abstract provided.

The Effect Of A Defendant's Affirmative Concealment Of His Securities Fraud On Section 10(B) Limitations Periods

Washington and Lee Law Review

No abstract provided.

Rule 10b-5-Application Of The In Pari Delicto Defense In Suits Brought Against Securities Brokers By Customers Who Have Traded On Inside Information, Mark G. Strauch

Vanderbilt Law Review

This Note advocates that courts should permit tipper defendants to assert the in pari delicto defense in private 10b-5 cases against tippee plaintiffs unless one of the first three exceptions to the analytical framework applies. Part II of this Note discusses the purpose and application of the in pari delicto defense and the four situations in which courts have rejected it. Part II also illustrate show courts analyze the in pari delicto defense in contract, anti-trust, and non-10b-5 securities cases. Part III provides a general background on the purpose of the Securities and Exchange Act of 1934 and rule 10b-5, …

Xii. Securities Law

Washington and Lee Law Review

No abstract provided.

Lifting The Cloud Of Uncertainty Over The Repo Market: Characterization Of Repos As Separate Purchases And Sales Of Securities, William F. Hagerty, Iv

Vanderbilt Law Review

In light of the actual and potential financial harm that repo investors faced after failures of several repo market participants,this Note proposes a new legal characterization of repos and argues for adoption of proposed Bankruptcy Code amendments pertaining to repos. Both of these suggestions would give repo investors significant future financial protection without destroying the financially attractive characteristics of repurchase agreements.

Part II of this Note begins laying the foundation for this proposal by discussing current repo market problems that the failures of several repoissiers have exposed.

Part II discusses new policies concerning the appropriate uses of the collateral securities …

Materiality, Law Reform, And Regulation By Prosecution, Michael Rosenzweig

Michigan Law Review

A Review of Regulation by Prosecution: The Securities & Exchange Commission Versus Corporate America by Roberta S. Karmel

Tax Shelter Litigation And Securities Law: Should Tax Benefits Be Used To Reduce Plaintiff Awards?, Carole Schecter

Loyola University Chicago Law Journal

No abstract provided.

Massachusetts Securities Regulation: In Search Of The Fulcrum, Stephen M. Honig

University of Baltimore Law Review

The Massachusetts Securities Division and representatives of the Massachusetts Securities Bar are currently reevaluating Massachusetts blue sky regulation. In this article, the author reviews the existing practices, and concludes that the Division has waivered between adopting a merit review or disclosure approach to regulation of registered and exempt offerings. The author concludes that vigorous merit review is unjustified under the Massachusetts statute, and advocates fundamental reform of existing practices to ensure certainty in regulation and national uniformity.

Casenotes: Blue Sky Law — New York Blue Sky Law Antifraud Provision Used To Impose Criminal Liability On Attorney Who Engaged In Insider Trading. People V. Florentino, 116 Misc. 2d 692, 456 N.Y.S.2d 638 (N.Y. Crim. Ct. 1982), Ralph V. Partlow Iii

University of Baltimore Law Review

No abstract provided.

Casenotes: Securities Fraud — Rule 10b-5 — Tippee Liability Requires Breach Of Fiduciary Duty By Tipper, And Tippee's Knowledge Of The Breach. Dirks V. Sec, 103 S. Ct. 3255 (1983), Nancy I. Knapp

University of Baltimore Law Review

No abstract provided.

Who Speaks For The Investor? An Evaluation Of The Assault On Merit Regulation, Hugh H. Makens

University of Baltimore Law Review

Merit regulation is under attack from critics who allege that it unnecessarily delays or inhibits capital formation. The author draws on his experience as both a state and federal securities regulator and as a private securities practitioner to examine the scope of merit regulation, analyze the criticisms, explain why the quantitative studies of the regulatory system have failed to prove its value, and recommend changes that would lead to a more effective administration of merit standards.

Comments: Maryland Statutory And Common Law Remedies For Misrepresentation In Securities Transactions, Robert L. Humphreys Jr.

University of Baltimore Law Review

Victims of misrepresentation in securities transactions generally bring their claims into federal court under Rule 10b-5. Because some courts have constricted the scope of this federal remedy, other means of relief for misrepresentation have assumed greater importance. This comment explores Maryland's statutory and common law remedies and discusses certain advantages available through these avenues of relief.

Municipal Securities And State Securities Laws: A New Look, Michael Newman

University of Baltimore Law Review

The Uniform Securities Act exempts from registration the offerings of municipal or tax exempt securities. Although a number of jurisdictions have adopted the Uniform Act, they have not uniformly applied this exemption. The author examines various state registration schemes with reference to the specific types of municipal securities: general obligation bonds, revenue bonds, and industrial development bonds. He proposes statutory changes that accomplish the purposes for the exemption, yet simply the offerings of municipal securities.

Comments: Requiring Criminal Defendants To Prove Blue Sky Exemptions: A Question Of Due Process, Anthony J. Dipaula

University of Baltimore Law Review

The Uniform Securities Act, which has been adopted in nearly every state, places the burden of proving an exemption from its blue sky registration provisions on the person claiming the exemption. Although some courts have interpreted this to mean the defendant has only the burden of raising the issue of exemption, most courts have placed the entire burden of persuasion on the defendant. This comment examines both rules to determine whether they are constitutional in light of the Supreme Court decisions on shifting burdens.

State Limited And Private Offering Exemptions: The Maryland Experience In A National Perspective, Mark A. Sargent

University of Baltimore Law Review

A limited or private offering of securities exempted from federal registration still may have to be registered in one or more states, because the state exemptions for these transactions are often different from the available federal exemptions. These differences, however, do not reflect a principled allocation of regulatory responsibilities between the Securities and Exchange Commission and the state securities administrators, but rather derive from historical, philosophical, and structural differences between the federal and state securities laws. Recent reforms of the federal exemptive system have produced new concern about the impact of these differences on the capital formation process, and have …