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International Tax Free Exchanges: The Structure Of I.R.C. Section 367, Vikram A. Gosain 2015 University of California, Hastings College of Law

International Tax Free Exchanges: The Structure Of I.R.C. Section 367, Vikram A. Gosain

Georgia Journal of International & Comparative Law

No abstract provided.


The Global Fight Against Foreign Bribery: Is Canada A Leader Or A Laggard?, Susana C. Mijares 2015 Western Law

The Global Fight Against Foreign Bribery: Is Canada A Leader Or A Laggard?, Susana C. Mijares

Western Journal of Legal Studies

This paper explores international responses to foreign bribery with a specific focus on Canada’s increased role in combating the issue. It outlines international anti-bribery measures and their impact on Canada’s approach to foreign bribery, with an overview of Canada’s anti-bribery legislation, the Corruption of Foreign Public Officials Act (CFPOA). These measures have met with international criticism, to which Canada has responded with legislative amendments. Four Canadian legal decisions since the CFPOA amendment exemplify Canada’s stricter enforcement of the Act. Transparency International (TI) issued a progress report that commented on Canada’s current and future role in ...


Wink, Wink, Nudge Judge: Persuading U.S. Courts To Take Accountants Seriously In Federal Securities Cases With Help From The U.K. Companies Act, Kurt S. Schulzke 2015 Kennesaw State University

Wink, Wink, Nudge Judge: Persuading U.S. Courts To Take Accountants Seriously In Federal Securities Cases With Help From The U.K. Companies Act, Kurt S. Schulzke

Kurt S. Schulzke

The 2008 collapse of Lehman Brothers reopened wounds many thought were healed by the Sarbanes-Oxley Act (SOX) in 2002. The Lehman litigation finally ended in late 2013 with audit firm Ernst & Young paying $99 million to investors who claimed the firm misled them with generally accepted accounting principles (GAAP) and other defendants, including banks, officers, and directors, paying out more than $500 million. The bright line standards of GAAP and SOX were obviously not enough to protect Lehman plaintiffs or defendants. Why not? The 2006 fraud trial of Enron CEO Jeffrey Skilling offers clues. When asked at trial whether U ...


Diverse Mandates Regarding The Esop Diversification Requirement Following Fifth Third Bancorp V. Dudenhoeffer, Thomas V. Bohac Jr. 2015 Notre Dame Law School

Diverse Mandates Regarding The Esop Diversification Requirement Following Fifth Third Bancorp V. Dudenhoeffer, Thomas V. Bohac Jr.

Notre Dame Law Review Online

In Dudenhoeffer, the Court focused on the Employee Stock Ownership Plan (ESOP) as a retirement benefit plan. However, this is only one function of ESOPs. Viewed in terms of both the original intent of Congress and contemporary corporate finance, the ESOPs are designed to meet several goals, including the alignment of employee and employer interests to facilitate a wider base of capital ownership including the average employee. As the Court has lost sight of these fundamental goals, it has drifted into the fallacy of interpreting ESOPs principally as employee retirement accounts. This has led the Court to apply ERISA fiduciary ...


Of Truth, Pragmatism, And Sour Grapes: The Second Circuit's Decision In Sec V. Citigroup Global Markets, Theodore D. Edwards 2015 Duke University

Of Truth, Pragmatism, And Sour Grapes: The Second Circuit's Decision In Sec V. Citigroup Global Markets, Theodore D. Edwards

Theodore D. Edwards

See manuscript


Of Truth, Pragmatism, And Sour Grapes: The Second Circuit’S Decision In Sec V. Citigroup Global Markets, Theodore D. Edwards 2015 Duke University

Of Truth, Pragmatism, And Sour Grapes: The Second Circuit’S Decision In Sec V. Citigroup Global Markets, Theodore D. Edwards

Theodore D. Edwards

No abstract provided.


The Law And Ethics Of High-Frequency Trading, Steven R. McNamara 2015 American University of Beirut, Olayan School of Business

The Law And Ethics Of High-Frequency Trading, Steven R. Mcnamara

Steven R. McNamara

Michael Lewis’s recent book Flash Boys has resurrected the controversy concerning “high-frequency trading” (HFT) in the stock markets. While HFT has been important in the stock markets for about a decade, and may have already peaked in terms of its economic significance, it touched a nerve with a public suspicious of financial institutions in the wake of the financial crisis of 2008-2009. In reality, HFT is not one thing, but a wide array of practices conducted by technologically adept electronic traders. Some of these practices are benign, and some even bring benefits such as liquidity and improved price discovery ...


Broker-Dealer: A Fiduciary By Any Other Name?, William Alan Nelson II 2015 George Washington University School of Law

Broker-Dealer: A Fiduciary By Any Other Name?, William Alan Nelson Ii

William Alan Nelson II

Broker-dealers, unlike investment advisers, are not regulated as fiduciaries when providing investment advice, even though broker-dealers are holding themselves out as financial advisors and offering virtually identical services to investors. The lack of consistent regulation of financial service providers arises from the structure in which advice historically has been delivered. Financial services regulation since the Great Depression has developed along roughly dual tracks: laws governing the sale of financial products, which may or may not require that the products be suitable for the customer, and laws governing investment advice, which impose a fiduciary requirement on the adviser to act solely ...


The Sec's Proposed Uniform Fiduciary Standard For Investment Advisers: An Update, Barry R. Temkin, Matthew Photis 2015 Mound Cotton Wollan & Greengrass

The Sec's Proposed Uniform Fiduciary Standard For Investment Advisers: An Update, Barry R. Temkin, Matthew Photis

Barry R. Temkin

It has been been three years since the Securities and Exchange Commission, acting under the authority of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, released the results of its study recommending a uniform fiduciary standard for the conduct of registered representatives and investment advisers. While SEC Chair Mary Jo White has proclaimed that adoption of a uniform fiduciary standard as a major regulatory priority, the SEC has yet to promulgate final regulations implementing the change. It is unclear whether or when a universal fiduciary standard will be adopted. Adoption of a uniform fiduciary standard could lead ...


Bridgefunding Is Crowdfunding For Startups Across The Private Equity Gap, Seth C. Oranburg 2015 Florida State University

Bridgefunding Is Crowdfunding For Startups Across The Private Equity Gap, Seth C. Oranburg

Seth C Oranburg

Title III of the JOBS Act of 2012, which attempts to encourage entrepreneurship by allowing startups and small business to sell stock to the general public over the Internet through “crowdfunding,” is completely backwards. Its ceiling should be a floor—the $1 million limit should be inverted. By capping startups at raising $1 million from crowdfunding, the JOBS Act does not address the private equity gap, a fundamental problem in startup markets, and exposes unsophisticated investors to risk and fraud.

This Article presents a regulatory framework premised on “bridgefunding,” an approach that this article develops to protect new investors by ...


Examining Success, Jonathan C. Lipson 2015 Temple University

Examining Success, Jonathan C. Lipson

Jonathan C. Lipson

Chapter 11 of the Bankruptcy Code presumes that managers will remain in possession and control of a corporate debtor. This presents an obvious agency problem: these same managers may have gotten the company into trouble in the first place. The Bankruptcy Code thus includes checks and balances in the reorganization process, one of which is supposed to be an “examiner,” a private individual appointed to investigate and report on the debtor’s collapse.

We study their use in practice. Extending prior research, we find that examiners are exceedingly rare, despite the fact that they should be “mandatory” in large cases ...


Superior Supererogation: Why Credit Default Swaps Are Securities Under The Investment Advisers Act Of 1940, J. Tyler Kirk 2015 College of William & Mary Law School

Superior Supererogation: Why Credit Default Swaps Are Securities Under The Investment Advisers Act Of 1940, J. Tyler Kirk

William & Mary Business Law Review

No abstract provided.


Better Go It Alone: An Extension Of Fiduciary Duties For Investment Fund Managers In Securities Class Action Opt-Outs, Brian J. Shea 2015 College of William & Mary Law School

Better Go It Alone: An Extension Of Fiduciary Duties For Investment Fund Managers In Securities Class Action Opt-Outs, Brian J. Shea

William & Mary Business Law Review

Securities class actions provide a vehicle for plaintiffs to recover billions of dollars in settlement awards. Given the prevalence of institutional investors in the market for publicly traded securities, it is no surprise that large investment funds are often implicated as lead plaintiffs in securities class actions. Despite having recoverable claims in many of these settlements, these investment funds often fail to participate in the action on behalf of their beneficiaries (their investors). Some scholars argue that fund managers have a fiduciary obligation to participate in claim filing and monitoring processes in an effort to recover settlement awards and to ...


Securities Regulations Investigations - United States-Swiss Treaty Attempts To Increase Cooperation In Releasing Names Of Swiss-Based Account Holders Involved In United States Securities And Exchange Commission Investigations, Daniel B. Simon III 2015 University of Georgia School of Law

Securities Regulations Investigations - United States-Swiss Treaty Attempts To Increase Cooperation In Releasing Names Of Swiss-Based Account Holders Involved In United States Securities And Exchange Commission Investigations, Daniel B. Simon Iii

Georgia Journal of International & Comparative Law

No abstract provided.


Tax Reform Act Of 1984 - Netherlands Antilles - Effect Of The Repeal Of The Withholding Tax On Portfolio Interest Payments To Foreign Investors, Lee C. Dilworth 2015 University of Georgia School of Law

Tax Reform Act Of 1984 - Netherlands Antilles - Effect Of The Repeal Of The Withholding Tax On Portfolio Interest Payments To Foreign Investors, Lee C. Dilworth

Georgia Journal of International & Comparative Law

No abstract provided.


Buying Voice: Financial Rewards For Whistleblowing Lawyers, Nancy J. Moore, Kathleen Clark 2015 Boston University School of Law

Buying Voice: Financial Rewards For Whistleblowing Lawyers, Nancy J. Moore, Kathleen Clark

Nancy J Moore

“Buying Voice: Financial Incentives for Whistleblowing Lawyers”

Kathleen Clark and Nancy J. Moore

Abstract

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have ...


The Great And Powerful Faa: Why Schwab’S Class Action Waiver Should Have Been Enforced Over Finra’S Rules, Clint Hale 2015 Pepperdine University

The Great And Powerful Faa: Why Schwab’S Class Action Waiver Should Have Been Enforced Over Finra’S Rules, Clint Hale

Pepperdine Law Review

This Comment argues that recent Supreme Court precedent, circuit court decisions in contexts similar to FINRA’s oversight of the securities industry, and investors’ true interests all instruct that Schwab’s class action waiver should have been enforced over FINRA’s contrary command. Part II discusses FINRA’s role in the securities industry, the FAA and recent Supreme Court precedent interpreting the FAA, and the FINRA Rules that Schwab’s class action and joinder waiver violated. Part III analyzes why the conflict between the FAA and FINRA’s rules should have been resolved in favor of the FAA and supports ...


Securities Fraud Damages Under The Pslra, Mohammed A. Misbah 2015 SelectedWorks

Securities Fraud Damages Under The Pslra, Mohammed A. Misbah

Mohammed A Misbah

The United States Private Securities Litigation Reform Act ("PSLRA") implemented several substantive changes affecting certain cases brought under the federal securities laws. It was designed to reduce the number of “frivolous” securities lawsuits filed in federal courts. Prior to the PSLRA, a securities fraud case could proceed with minimal evidence and use pre-trial discovery to search for more evidence that strongly suggested a deliberate fraud. Under the PSLRA plaintiffs need such evidence simply in order to commence an action. This article seeks to explain what evidence is required of a plaintiff in a security fraud case, in order to defeat ...


The Vanishing Supervisor, JAMES A. FANTO 2015 Brooklyn Law School

The Vanishing Supervisor, James A. Fanto

James A. Fanto

This Article begins with two stories that are emblematic of related trends in broker-dealers: the importance of compliance officers and the significance of technology for the oversight of brokers and their activities. The stories also point to the lessening role of the supervisor who is “on the ground” in the branches of these firms. The diminished position of the mid-level supervisor is surprising, even shocking, in the federal regulation of broker-dealers. The history of this regulation reveals that Congress, the Securities and Exchange Commission (“SEC”) and self-regulatory organizations (“SROs”) like the Financial Industry Regulatory Authority (“FINRA”) sought to prevent broker ...


Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson II 2015 George Washington University School of Law

Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson Ii

William Alan Nelson II

The pervasive use of mandatory pre-dispute arbitration agreements in the securities industry is a relatively new phenomenon. However, research reflects that an overwhelming majority of retail brokerage and investment advisory agreements include language requiring that all disputes between the customer and the broker-dealer / investment adviser be resolved through arbitration – most often with Financial Industry Regulatory Authority (FINRA) Dispute Resolution. Thus, only in rare instances can an investor open either a brokerage or investment advisory account without agreeing to submit to mandatory pre-dispute arbitration.

The enclosed article is the first to focus on the fairness of mandatory pre-dispute arbitration agreements through ...


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