Securities Law Commons^™

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

Patricia A. O'Hara

No abstract provided.

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

Patricia A. O'Hara

No abstract provided.

Why Register Hedge Fund Advisers—A Comment, Lyman P.Q. Johnson

Lyman P. Q. Johnson

No abstract provided.

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

Patricia L. Bellia

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 …

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

Matthew J. Barrett

No abstract provided.

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

Matthew J. Barrett

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 …

Credit Default Swaps: Dubious Instruments, Charles W. Murdock

Charles W. Murdock

No abstract provided.

E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …

Goliath Versus Goliath In Hight-Stakes Mbs Litigation, Bradley T. Borden, David J. Reiss

Bradley T. Borden

The loan-origination and mortgage-securitization practices between 2000 and 2007 created the housing and mortgage-backed securities bubble that precipitated the 2008 economic crisis and ensuing recession. The mess that the loan-origination and mortgage-securitization practices caused is now playing out in courts around the world. MBS investors are suing banks, MBS sponsors and underwriters for misrepresenting the quality of loans purportedly held in MBS pools and failing to properly transfer loan documents and mortgages to the pools, as required by the MBS pooling and servicing agreements. State and federal prosecutors have also filed claims against banks, underwriters and sponsors for the roles …

Surveillant And Counselor: A Reorientation In Compliance For Financial Firms, James A. Fanto

James A. Fanto

This Article argues that the compliance officer should play a major role in the ongoing reform of financial firms because compliance is now well established and accepted and compliance officers are close to decision-making at all levels of a firm. The contention is that the role of compliance must be rethought and reoriented if it is to contribute fully to the reform. Compliance officers now ensure that the firms and their employees comply with the numerous laws and regulations governing them and their activities, primarily by producing detailed compliance procedures and policies and then revising, and monitoring compliance with, them. …

What Kahneman Means For Lawyers: Some Reflections On Thinking, Fast And Slow, Charles W. Murdock, Barry Sullivan

Charles W. Murdock

No abstract provided.

What Kahneman Means For Lawyers: Some Reflections On Thinking, Fast And Slow, Charles W. Murdock, Barry Sullivan

Barry Sullivan

No abstract provided.

Too Complex To Perceive?: Drafting Cash Distribution Waterfalls Directly As Code To Reduce Complexity And Legal Risk In Structured Finance, Master Limited Partnership, And Private Equity Transactions, Ralph Carter Mayrell

Ralph Carter Mayrell

The intricate procedural and data-driven decision trees that play a critical role in complex financial contracts like cash distribution waterfalls in structured finance agreement indentures (e.g., collateralized debt obligations (CDOs)), master limited partnership agreements, and private equity fund agreements are inefficiently depicted as written contracts. As Professor Henry Hu explains in Too Complex to Depict?, the difficulty of translation—or depiction—between original mathematical models, plain English prospectuses, legal contracts, and programmed execution means that often the written depictions that form the basis of disclosures do not accurately define the act of execution. To overcome this, the SEC proposed an amendment to …

Financial Armageddon Routs Law Again, Nicholas L. Georgakopoulos

Nicholas L Georgakopoulos

This essay, after highlighting the unique aspects of financial markets, offers a mostly rational account for financial crises, centering on the 2008 crisis as an example. The thesis is that market participants overestimate the duration of high productivity growth due to new technologies and produce occasional—and likely unavoidable—bubbles. Considering potential changes in the regulation of financial markets, the conclusion is grim. Regulators appear to have exhausted the effective legal levers against overestimations of continued high growth. The legislative responses to the last few crises were likely unproductive. The sole (but still unrealistic) effective protection would be the constitutional development of …

Re-Envisioning The Controlling Shareholder Regime: Why Controlling Shareholders And Minority Shareholders Embrace Each Other, Sang Yop Kang

Sang Yop Kang

According to conventional corporate governance scholarship, controlling shareholder regimes exist in jurisdictions where minority shareholders are not well protected by controlling shareholders’ expropriation. However, Professor Ronald Gilson raises a critical point against the conventional view; if laws are inefficient and do not protect investors, as the conventional view explains, why do we observe any minority shareholders at all in such “bad-law” countries? One possible reason is that in response to controlling shareholders’ expropriation, minority shareholders discount severely shares that corporations issue. Then, a related question is: if it is true, why do some controlling shareholders in bad-law countries have many …

Recent Development On Misleading Disclosure And Non-Disclosure To The Securities Market (And Their Relationships With Insider Trading) In Singapore: Madhavan Peter V Pp And Other Appeals, Wai Yee Wan

Wai Yee WAN

In Madhavan Peter v PP and other appeals,[1] the Singapore court had to consider the scope of the offence of misleading disclosure to the securities market allegedly committed by three directors of Airocean,[2] a company listed on Singapore Exchange (“SGX”), and the scope of the offence of non-disclosure of material information to the securities market allegedly committed by two of the three directors. The case is controversial and significant for a number of reasons.

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …

Insider Trading Law In East Asia And Enforcement: Japan, China, Hong Kong And Taiwan Visite, Chien-Chung Lin

Chien-Chung Lin

No abstract provided.

The Big Banks: Background, Deregulation, Financial Innovation, And ‘Too Big To Fail,’, Charles W. Murdock

Charles W. Murdock

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This Article asserts that the big banks were major culprits in causing the crisis by funding the non-bank lenders that created the toxic mortgages, which the big banks securitized and sold to unwary investors. Ironically, banks that were then too big to fail are even larger today. The Article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It then traces the impact of deregulation, which led to the savings and loan …

Limited Liability Companies In The Decade Of The 1990'S. Legislative And Case Law Developments And Their Implications For The Future, Charles W. Murdock

Charles W. Murdock

No abstract provided.

Ignoring The Writing On The Wall: The Role Of Enterprise Risk Management In The Economic Crisis, Michelle M. Harner

Michelle M. Harner

No abstract provided.

The Professional Obligations Of Securities Brokers Under Federal Law: An Antidote For Bubbles?, Steven A. Ramirez

Steven A. Ramirez

No abstract provided.

Dirt Lawyers And Dirty Remics, Bradley T. Borden, David J. Reiss

Bradley T. Borden

It is appropriate that the day-to-day practice of real estate law did not touch on the intricacies of the securitization of mortgages, let alone the tax laws that apply to mortgage-backed securities. Securitization professionals did not, however, account for the day-to-day practices of real estate lawyers as they relate to the transfer and assignment of mortgage notes and mortgages when structuring mortgage-backed securities. The consequences of this may turn out to be severe for investors, underwriters, and securitization professionals.

One of the consequences of the sale of a negotiable note not done in accordance with the requirements of the holder …

Dodd-Frank Regulators, Cost-Benefit Analysis, And Agency Capture, Paul Rose, Christopher J. Walker

Christopher J. Walker

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate nearly 400 new rules. Scholars, regulated entities, Congress, courts, and the agencies themselves have all recognized — even before Dodd-Frank — the lack of rigorous cost-benefit analysis in the context of financial rulemaking. The D.C. Circuit has struck down several financial regulations because of inadequate cost-benefit analysis, with three more challenges to be decided this summer. Members of Congress have introduced legislation to address this problem, including a call for the President to intervene …

Squeeze-Outs, Freeze-Outs And Discounts: Why Is Illinois In The Minority In Protecting Shareholder Interests?, Charles W. Murdock

Charles W. Murdock

No abstract provided.

Liquid Assets: A Coasian Economic Analysis Of Oregon's Allocation Of Conserved Water Program, Richard A. Grisel

Richard A Grisel

Diversions for residential, agricultural, recreational, commercial, industrial, and other beneficial uses have had the effect of removing water from rivers and tributaries throughout the western U.S. Another, more recent, competing use is ecological, demonstrated by the legal recognition of instream beneficial uses in some jurisdictions. As awareness of the progressively acute need for reallocation has increased in the arid West, so has interest in water markets and other mechanisms to facilitate transfers across beneficial uses. However, governments and water users face a legacy prior appropriation system that prohibits instream beneficial uses, encourages maximal diversion, stifles water right fungibility, and generally …

Will Law Firms Go Public?, Roberta S. Karmel

Roberta S. Karmel

Law in the United States is a big business and big law firms are a global business. Currently, under rules of the American Bar Association (ABA) and most states law, firms are not allowed either to include non-lawyers as partners or accept equity investments from non-lawyers. This Article will argue that (even if law firms retain the form of partnerships) they eventually will accept investments from third parties, and possibly even go public, but this development could lead to a loss of professionalism, as it has with other industries, and could also lead to the end of self-regulation. Among the …

Dodd-Frank’S Confict Minerals Rule: The Tin Ear Of Government-Business Regulation, Henry Lowenstein

Henry Lowenstein

This paper examines an unusual provision included in the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010), Section 1502 known as the Conflict Minerals Rule. This provision, having nothing to do with the subject matter of the act itself, attempts to place a chilling effect on the trade of four identified minerals from the Democratic Republic of Congo. The provision and its subsequent rule, surprisingly delegated to the U.S. Securities and Exchange Commission (an agency lacking subject matter expertise in minrals) presents a case and object lession of almost every cost, procedural and legal error that can take place …

Avoiding Surprise Activism At Your Annual Shareholders Meeting: Adopting Advance Notice By-Laws, Jean-Francois Seguin

Jean-Francois Seguin

Highlights: Advance Notice By-Laws limit the ability of shareholders to surprise the issuer by nominating alternative directors at the annual general meeting without prior notice to the issuer; Advance Notice By-Laws increasingly seen as the best tool to defend against activist shareholders planning a surprise nomination of alternative directors at an annual shareholders meeting; Growing support for and use of Advance Notice By-Laws by Canadian issuers; ISS and Glass Lewis support Advance Notice By-Laws under certain conditions; Advance Notice By-Laws have already been tested in a Canadian court and were validated and enforced; Advance Notice By-Laws are more common in …

The Dodd- Frank Wall Street Reform And Consumer Protection Act: What Caused The Financial Crisis And Will Dodd-Frank Succeed In Preventing Future Crises?, Charles W. Murdock

Charles W. Murdock

No abstract provided.