Survivor Funds, 2017 University of Oklahoma
Survivor Funds, Jonathan Barry Forman, Michael J. Sabin
Pace Law Review
This Article explains how to create “survivor funds”—short-term investment funds that would pay more to those investors who live until the end of the fund’s term than to those who die before then. For example, instead of just investing in a ten-year bond and dividing the proceeds among the investors at the end of the bond term, a survivor fund would invest in that ten-year bond but divide the proceeds only among those who survived the full ten years. These survivor funds would be attractive investments because the survivors would get a greater return on their investments, while ...
Omnicare V. Indiana State District Council And Its Rational Basis Test For Allowing For Opinion Statements To Be A Misleading Fact Or Omission Under Section 11 Of The Securities Act Of 1933, 2017 University of West Florida
Omnicare V. Indiana State District Council And Its Rational Basis Test For Allowing For Opinion Statements To Be A Misleading Fact Or Omission Under Section 11 Of The Securities Act Of 1933, Brian Elzweig, Valrie Chambers
Pace Law Review
This article examines when statements in a registration statement, couched as opinion, can and cannot be considered to be misstatements of material fact that could lead to liability under Section 11 (and potentially other sections) of the Securities Act. The rest of this paper is formatted as follows. We review the Omnicare case, followed by the key cases in the Second, Third, Ninth, and Sixth Circuit Courts of Appeals. The Second, Third, and Ninth Circuits have all required that, in order for there to be an actionable claim under Section 11, the plaintiff must plead not only that the statement ...
Sec Reporting Requirements For Publicly Traded Companies Should Not Be Expanded Despite Advancements In Information Technology, Lindsey Kell
Duke Law & Technology Review
Advancements in information technology allow information to be collected and analyzed quickly within a corporation. As a result, technology also allows the quicker release of information to the Securities Exchange Commission (SEC)—much quicker than the Form 10-K and Form 10-Q releases that are currently required for publicly traded companies. Although publicly traded companies must also disclose certain significant events in Form 8-K, the reporting requirements for publicly traded companies are not nearly as expansive as they could be considering the easy access these companies have to their business information. Even with this in mind, the SEC is well into ...
A New Coalescence In The Housing Finance Reform Debate?, 2017 Boston College Law School
A New Coalescence In The Housing Finance Reform Debate?, Patricia Mccoy, Susan Wachter
Patricia A. McCoy
This policy brief examines recent proposals for reform of the housing finance system.
Representations And Warranties: Why They Did Not Stop The Crisis, 2017 Boston College Law School
Representations And Warranties: Why They Did Not Stop The Crisis, Patricia Mccoy, Susan Wachter
Patricia A. McCoy
During the run-up to the 2008 financial crisis, representations and warranties (contractual statements enforceable through legal action) may have given investors false assurance that mortgage loans were being properly underwritten. This assurance in turn may have contributed to overinvestment in mortgage-backed securities in two ways. First, the assumption that legally enforceable penalties associated with reps and warranties would deter lax underwriting may have led to less monitoring of these contracts than would otherwise have occurred. In turn, the lack of monitoring of actual underwriting practices enabled the spread of lax lending practices. The existence of these reps and warranties and ...
Investment Treaties Are About Justice, 2017 Boston College Law School
Investment Treaties Are About Justice, Frank J. Garcia
Frank J. Garcia
This Perspective argues that investment law is ripe for a paradigm shift away from pure capital protection. Rather, investment law should be recognized as part of a comprehensive global economic governance system for ensuring justice and the rule of law, in this case in the allocation of investment capital.
Unveiling Management’S Crystal Ball, 2017 Louisiana State University Law Center
Unveiling Management’S Crystal Ball, Eric R. Harper
Louisiana Law Review
The article focuses on the item 303 disclosures of U.S. Securities and Exchange Commission for preventing private securities fraud causes of action by the companies, and mentions reporting companies to disclose information about the companies' plans for the future of their businesses.
Anti-Activist Poison Pills, 2017 NYU School of Law
Anti-Activist Poison Pills, Edward Rock, Marcel Kahan
New York University Law and Economics Working Papers
Hedge funds have become active in corporate governance. They push for changes in strategy and the adoption of specific business plans. Their tactics include buying shares, conducting public campaigns, lobbying managers and other shareholders, seeking representation on the board of directors, and sometimes running a proxy contest. In response, boards have adopted a variety of “defensive measures” including deploying “poison pill” shareholder rights plans against activists.
This article provides a comprehensive policy and doctrinal analysis of the use of poison pills again activists in corporate governance contests (as distinguished from corporate control contests). We argue that, because of the significance ...
A Glass-Half-Empty Approach To Securities Regulation, 2017 University of Maryland Francis King Carey School of Law
A Glass-Half-Empty Approach To Securities Regulation, Wendy Gerwick Couture
Maryland Law Review
No abstract provided.
Reforming Sec Alj Proceedings, 2017 University of Michigan Law School
Reforming Sec Alj Proceedings, Joanna Howard
University of Michigan Journal of Law Reform
This Note considers the current constitutional challenges to SEC administrative proceedings and suggests process reforms to enhance fairness for respondents. Challenges have developed since the Dodd-Frank Act expanded the SEC’s ability to use administrative proceedings. Arguments that there is a pre-existing flaw in the method of appointing administrative law judges provide the most potential for success. The Tenth Circuit’s December 2016 decision against the SEC in Bandimere has created a split, diverging from the D.C. Circuit’s analysis of that question in Lucia. Resolution by the Supreme Court may be inevitable. Even if the challengers do ultimately ...
American Pipe Tolling, Statutes Of Repose, And Protective Filings: An Empirical Study, 2017 Stanford Law School
American Pipe Tolling, Statutes Of Repose, And Protective Filings: An Empirical Study, David Freeman Engstrom, Jonah B. Gelbach
This paper offers a conceptual and empirical analysis of a key issue that overhangs CalPERS v. ANZ Securities, soon to be decided by the Supreme Court. In particular, the paper offers an empirical estimate of the plausible quantity of wasteful protective filings that putative class members might make if the Court were to hold that American Pipe tolling does not apply to statutes of repose in the federal securities laws.
The Case For Federal Pre-Emption Of State Blue Sky Laws, 2017 University of Kentucky
The Case For Federal Pre-Emption Of State Blue Sky Laws, Rutheford B. Campbell Jr.
Law Faculty Scholarly Articles
State blue sky laws—state laws that regulate a company’s offer and sale of securities—are a substantial barrier to businesses’ efficient access to external capital. The registration provisions in state blue sky laws have been especially harmful to small businesses, a vital component of our economy that may account for 30% of the nation’s employment. The costs associated with complying with more than fifty separate and independent obligations to register securities often exceed what small businesses can pay and thus may foreclose small businesses from the capital market. At the same time, requiring small businesses to comply ...
Rethinking Corporate Governance For A Bondholder Financed, Systemically Risky World, 2017 College of William & Mary Law School
Rethinking Corporate Governance For A Bondholder Financed, Systemically Risky World, Steven L. Schwarcz
William & Mary Law Review
This Article makes two arguments that, combined, demonstrate an important synergy: first, including bondholders in corporate governance could help to reduce systemic risk because bondholders are more risk averse than shareholders; second, corporate governance should include bondholders because bonds now dwarf equity as a source of corporate financing and bond prices are increasingly tied to firm performance.
Cfius In The Age Of Chinese Investment, 2017 Fordham University School of Law
Cfius In The Age Of Chinese Investment, Patrick Griffin
Fordham Law Review
As China’s economy has developed, its companies, both state-owned and privately held, have moved to expand their operations in the United States to the point where many now seek to invest in—and on occasion, acquire—U.S. counterparts. This trend has set off alarm bells over fears that China’s unique political and economic system, which gives the state extensive influence over all corporations regardless of their ownership structure, renders such transactions national security threats. Recent hostility toward Chinese-led inbound investment is not a new trend; Congress has attempted to assert itself into the screening process undertaken by ...
The New Bond Workouts, 2017 University of Pennsylvania Law School
The New Bond Workouts, William W. Bratton, Adam J. Levitin
Bond workouts are a famously dysfunctional method of debt restructuring, ridden with opportunistic and coercive behavior by bondholders and bond issuers. Yet since 2008 bond workouts have quietly started to work. A cognizable portion of the restructuring market has shifted from bankruptcy court to out-of-court workouts by way of exchange offers made only to large institutional investors. The new workouts feature a battery of strong-arm tactics by bond issuers, and aggrieved bondholders have complained in court. The result has been a new, broad reading of the primary law governing workouts, section 316(b) of the Trust Indenture Act of 1939 ...
What Exactly Is Market Integrity? An Analysis Of One Of The Core Objectives Of Securities Regulation, 2017 College of William & Mary Law School
What Exactly Is Market Integrity? An Analysis Of One Of The Core Objectives Of Securities Regulation, Janet Austin
William & Mary Business Law Review
One of the main objectives of securities regulation around the world is to protect the integrity or fairness of the markets. This, together with protecting investors, improving the efficiency of markets, and protecting the markets from systemic risk, form the four fundamental goals of securities regulation.
However, what exactly is envisaged by this concept of market integrity or fairness? Are these simply norms of behaviour incapable of further definition? Despite their importance, relatively little attention has been given to these concepts in the literature. Do they, for example, require securities regulators to just work towards eliminating dishonest trading practices such ...
The Presidency, Congressional Republicans, And The Future Of Financial Reform, 2017 University of Pennsylvania
The Presidency, Congressional Republicans, And The Future Of Financial Reform, Peter Conti-Brown
Penn Wharton Public Policy Initiative
This brief examines the tension between the Republican ideological commitment to curbing executive power and the opportunity Republicans now have for Trump to dominate the direction of financial regulatory reform. The discussion will focus on three key policy outcomes that Republicans have sought during the last six years: reforming the Federal Reserve, overhauling the Consumer Financial Protection Bureau, and changing the way in which the nation’s largest financial institutions are designated and regulated.
Taft V. Bowers: The Foundation For Non-Recognition Provisions In The Income Tax, 2017 Boston College Law School
Taft V. Bowers: The Foundation For Non-Recognition Provisions In The Income Tax, James R. Repetti
Boston College Law School Faculty Papers
Taft v. Bowers is a Supreme Court decision that is rarely studied in law schools or discussed by scholars. Yet, it is a case of vast significance. In the Taft decision, the Supreme Court confirmed that Congress may create non-recognition exceptions to the income tax that merely defer the recognition of income, rather than permanently exclude it. If the Taft case had been decided differently, it is likely that the number of non-recognition provisions in the Internal Revenue Code ("Code") would be significantly reduced.
Sec Enforcement Attorneys: Should I Stay Of Should I Go?, 2017 University of Michigan Law School
Sec Enforcement Attorneys: Should I Stay Of Should I Go?, Adam C. Pritchard, Stephen J. Choi
Law & Economics Working Papers
We examine the career paths of attorneys in the Enforcement Division at the SEC. Using a variety of performance metrics, we find evidence that long term lawyers and lawyers in regional offices do not perform as well as other SEC attorneys. We also report that men and women may differ in their career paths in this field. We find that early-stage female attorneys perform just as well as male attorneys. Notwithstanding their comparable performance, these early-stage women are less likely to get a raise or promotion. We find that women are more likely to stay at the SEC, at least ...
The Overlooked Daisy Chain Problem In Salman, 2017 University of the Pacific, McGeorge School of Law
The Overlooked Daisy Chain Problem In Salman, Franklin A. Gevurtz
McGeorge School of Law Scholarly Articles
In Salman v. United States, the Supreme Court granted certiorari to resolve a conflict with United States v. Newman as to when corporate insiders receive sufficient personal benefit from making gifts of inside information to make the tip and consequent trade illegal. This Essay explores an overlooked aspect of these cases, the “daisy chain problem,” which involves how the personal benefit element for illegal tipping applies to the subsequent tips that occur when the recipient of information from the corporate insider, in turn, passes the information on to others. This daisy chain problem could potentially distinguish the facts of Salman ...