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Full-Text Articles in Securities Law
Disclosure's Purpose, Hillary A. Sale
Disclosure's Purpose, Hillary A. Sale
Georgetown Law Faculty Publications and Other Works
The United States securities regulatory infrastructure requires disclosure of a wide array of information both by and about covered companies. The basic purpose of the disclosures is to level the playing field – for investors, for issuers, and for the public. Although investor protection is the disclosure goal often touted, this article develops the purposes of disclosure extending beyond investors to issuers and the public. Indeed, the disclosure system is designed to level the playing field for issuers— addressing confidentiality concerns, for example. In addition, the system helps to promote confidence in the markets, which, in turn, enables growth and …
Judgment Day For Fraud-On-The-Market: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort
Judgment Day For Fraud-On-The-Market: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
The Supreme Court has reaffirmed the "fraud on the market" presumption of reliance, facilitating large scale class actions for this kind of securities fraud. This essay traces the road from its decision last year in Amgen to this year's reaffirmation in Halliburton II, and considers some of the issues that will emerge as lower courts struggle with Halliburton II's secondary holding--that the issue of "price impact" is crucial to class certification, even if the burden of proof is on the defendants.
Lies Without Liars? Janus Capital And Conservative Securities Jurisprudence, Donald C. Langevoort
Lies Without Liars? Janus Capital And Conservative Securities Jurisprudence, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
The Supreme Court’s recent Janus Capital case offers a reading of the word “make” in Rule 10b-5 that speaks to ultimate legal authority over the communication in question. This creates the real possibility that we can have lies without liars, an entirely perplexing result in terms of any purposive meaning of the rule. In so holding, Justice Thomas joined a seemingly short list of judges who suggest that legal formalism is a particularly good weapon with which to fight securities fraud. This paper exploresJanus through the lens of conservative textualism, which takes us through a much longer intellectual history …
The Social Construction Of Sarbanes-Oxley, Donald C. Langevoort
The Social Construction Of Sarbanes-Oxley, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
The closer one looks at SOX and its origins in the financial scandals of the early 2000s, the blurrier the picture, which lets commentators see what they want to see and draw inferences accordingly. That is why social construction is so crucial. My aim in this paper is to illuminate the social nature of SOX's diffusion into practice. I will leave to the reader the judgment about whether this has been or will be good or bad, and for whom. If I seem to challenge SOX's critics more than its supporters, it is because the critics have been more venomous …
Private Litigation To Enforce Fiduciary Duties In Mutual Funds: Derivative Suits, Disinterested Directors And The Ideology Of Investor Sovereignty, Donald C. Langevoort
Private Litigation To Enforce Fiduciary Duties In Mutual Funds: Derivative Suits, Disinterested Directors And The Ideology Of Investor Sovereignty, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
This article focuses on independent directors and the processes of mutual fund corporate governance. To be clear, I believe (and research shows) that disinterested directors do add value as a form of shareholder protection, and this fact justifies the SEC's efforts to strengthen their role. But they are far from a panacea. While that point alone is almost trite, exploring some of the unique features of mutual fund governance shows why judges and policymakers should not even try to reason by analogy to governance in other kinds of corporations. Yet that is exactly what Burks and its progeny have done. …
Panel Presentation: Securities Regulation And Corporate Responsibility, Donald C. Langevoort
Panel Presentation: Securities Regulation And Corporate Responsibility, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
What I want to do is talk about the big picture, as John suggested, and consider the likely spillover effects of Sarbanes-Oxley. I want to do this in a discretely administrative law-oriented way, taking two themes that were very visible and driving forces behind the legislation. The first, as Mary suggested in her opening remarks, is a question about federalism. It has been common for the last twenty years, at least, to trot out - as John just did - a distinction between federal and state spheres of competency. The SEC is on the disclosure side, while the substance of …
Are Judges Motivated To Create "Good" Securities Fraud Doctrine?, Donald C. Langevoort
Are Judges Motivated To Create "Good" Securities Fraud Doctrine?, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
‘How Do Judges Maximize? (The Same Way Everybody Else Does – Boundedly): Rules of Thumb in Securities Fraud Opinions’, by Stephen M. Bainbridge and G. Mitu Gulati, confronts the reader with a theory about judicial behavior in the face of complex, "unexciting" cases such as those involving securities fraud. The story is simple: few judges find any opportunity for personal satisfaction or enhanced reputation here, so they simply try to minimize cognitive effort, off-loading much of the work that has to be done to their clerks. The evidence that Bainbridge and Gulati offer is the creation of some ten or …
Seeking Sunlight In Santa Fe's Shadow: The Sec's Pursuit Of Managerial Accountability, Donald C. Langevoort
Seeking Sunlight In Santa Fe's Shadow: The Sec's Pursuit Of Managerial Accountability, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
My aim in this paper is not to justify at length an expansive "new corporation law" perspective, though I do believe in it. Nor do I want to try to resolve a controversial question that the new learning admittedly leaves open: which jurisdictional body should set the disclosure and antifraud standards insofar as they are designed to promote better corporate governance? To say that corporate and securities law are largely unitary does not necessarily mean that centralization of authority in the Securities and Exchange Commission (SEC or Commission) is the right choice. Perhaps the states, foreign countries, or stock exchanges …
Deconstructing Section 11: Public Offering Liability In A Continuous Disclosure Environment, Donald C. Langevoort
Deconstructing Section 11: Public Offering Liability In A Continuous Disclosure Environment, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
This article is an effort to rethink civil liability in capital-raising transactions by large capitalization issuers. After a brief digression about who should set liability standards, the article then addresses two related questions. The first deals with a natural question: Should not the primary regulatory effort for large issuers be to assure continuous disclosure in the secondary marketplace, given the far larger volume of such trading in that market compared to that in primary transactions? Second, if we have developed a satisfactory regime of disclosure responsibilities for this setting, what more, if anything, in terms of liability protection, is needed …