Securities Law Commons^™

Who Owns A Class Action?, Richard A. Booth

Villanova Law Review

This Essay considers the potential implications for securities class actions of Standard Fire Insurance Co. v. Knowles, which is presently before the Supreme Court. Although the ultimate question in Knowles is whether the plaintiff class may be gerrymandered so as to avoid removal to federal court, a closely related question may arise in securities fraud class actions (which are filed in federal court in the first place). In an action under SEC Rule 10b-5, the plaintiff typically seeks to recover for losses suffered as a result of buying a stock at a price inflated by management misrepresentations. In such a …

Remembering George Michaely, Lawrence J. Trautman, Stanley Sporkin, John A. Dudley

Lawrence J. Trautman Sr.

This short essay is a memorial tribute about George P. Michaely, Jr. (1926 to 2014). After graduating from both the University of Notre Dame and its law school, he began his legal career, serving for approximately seven years as attorney in the Office of General Counsel. He was then appointed Chief Counsel of the Commission’s Division of Corporation Finance, where he served for approximately the next four years and was responsible for advising the Commission and the public concerning the interpretation of the statutory provisions and rules relating to the registration provisions of the Securities Act of 1933 and the …

Regulation A+ And The Question Of State Blue Sky Law Preemption Under The J.O.B.S. Act, Neal Newman

Neal F. Newman

No abstract provided.

Kickstarter My Heart: Extraordinary Popular Delusions And The Madness Of Crowdfunding Constraints And Bitcoin Bubbles, David Groshoff

William & Mary Business Law Review

This Article builds on my existing research program that (a) broadly seeks to analyze laws, regulations, instruments, and policy levers that inhibit a market’s ability to recognize an asset’s intrinsic value, whether in terms of financial, social, or human capital, and (b) explores and advances interdisciplinary corporate governance theories by employing a heterodox economic analytic to derive its proposal to the paradox of an unregulated virtual currency market (Bitcoins) and an overly regulated crowdfunding market (Kickstarter).

The Article functions not only as an homage to Charles MacKay’s legendary 1841 book, Extraordinary Popular Delusions and the Madness of Crowds, which described …

Transnational Corporate Regulation Through Sustainability Reporting: A Case Study Of The Canadian Extractive Sector, Navraj S. Pannu

Electronic Thesis and Dissertation Repository

Despite the benefits transnational corporations (TNCs) offer, they remain largely unregulated entities, enabling environmental, social, and human rights violations to be overlooked. Canadian extractive sector TNCs operating internationally are frequently cited as major perpetrators of such violations. Literature on new governance and self-regulation as well as global corporate social responsibility (CSR) increasingly offers disclosure and reporting as a solution for TNC regulation. This study examines disclosure in international CSR frameworks, and the reflexive law and new governance theories explaining the role of such disclosure and reporting. Mirroring international CSR initiatives, Canadian jurisdictions are increasingly recommending disclosure for its extractive sector …

Pawns For A Higher Greed: The Banking And Financial Services Industry’S Capture Of Federal Homeownership Policy And The Impact On Citizen Homeowners, Tracie R. Porter

Hamline Law Review

abstract

Cvm Set To Reduce Costs And Bureaucracy For Equity Offerings, Luiz Rafael De Vargas Maluf, Nair Veras Saldanha Janson

Luiz Rafael de Vargas Maluf

No abstract provided.

Canceling The Order: How High Frequency Traders Are Disrupting The Derivatives Market, And What The Regulators Can Do To Stop Them, Andrew C. Burr

Andrew C Burr

High Frequency Trading (“HFT”) is now a part of the modern financial lexicon, and inspires feelings of awe, fear, and ignorance. While millions of investors around the world are still trying to grapple with what exactly HFT is and does, the U.S. regulators who are tasked with investigating and charging manipulators are finding themselves in a quandary of how to prosecute the offenders. Further, while the media has focused its attention on the U.S. Securites Exchange Commission’s (“SEC”) new policies on the subject, few have noticed the progress made by the U.S. Commodity Futures Trading Commission (“CFTC”), and how the …

The Two Faces Of Janus: The Jurisprudential Past And New Beginning Of Rule 10b-5, John Patrick Clayton

University of Michigan Journal of Law Reform

Section 10(b) of the Securities Exchange Act and its implementing Rule 10b-5 are the primary antifraud provisions for both private and public enforcement of the federal securities laws. Neither the statute nor the rule expressly provides for a private right of action, but federal courts have long recognized such an implied right, and the Securities and Exchange Commission has supported the implied private right of action as a “necessary supplement” to its own efforts. However, after a decade of applying an expansive interpretation to Section 10(b), in the early 1970s the U.S. Supreme Court began to narrowly interpret this implied …

State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea

Columbia Center on Sustainable Investment Staff Publications

Many critiques of investment treaties relate to concerns that tribunals’ interpretations of these agreements depart from states’ understandings of the texts, and do so in unpredictable ways leading to expensive litigation and unforeseen liability. States, however, can take steps to make their intentions regarding the texts clearer, and reduce the risk of uncertain outcomes.

This policy paper discusses these possible steps, and the legal rules supporting them, providing guidance to states, attorneys, and tribunals regarding the important role of states in clarifying vague standards in and managing liability under existing investment treaties. A second paper, published by the Global …

Putting The “Uniform” Back In The Securities Litigation Uniform Standards Act Of 1998: The Case For Employing A Reasonable Relationship Approach, Christopher R. Bellacicco

Catholic University Law Review

No abstract provided.

Evaluating The Performance And Accountability Of Regulators, Colin Scott

Seattle University Law Review

The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. In this Article, I follow the logic of an argument that regulation necessarily has political dimensions, even where it may appear technical. I am asking questions about how we might …

Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien

Seattle University Law Review

The global investigations into the manipulation of the London Interbank Offered Rate (Libor) have raised significant questions about how conflicts of interest are managed for regulated entities contributing to benchmarks. An alternative framework, which brings the management of the rate process under direct regulatory supervision, is under consideration, coordinated by the International Organization of Securities Commissions taskforce. The articulation of global principles builds on a review commissioned by the British government that suggests rates calculated by submission can be reformed. This paper argues that this approach is predestined to fail, precisely because it ignores the lessons of history. In revisiting …

The Timing And Source Of Regulation, Frank Partnoy

Seattle University Law Review

The distinction between specific concrete rules and general abstract principles has engaged legal theorists for decades. This rules–principles distinction has also become increasingly important in corporate and securities law, as well as financial market regulation. This Article adds two important variables to the rules–principles debate: timing and source. Although these two variables are relevant to legal theory generally, the specific goal here is not to address and engage the rules versus principles literature directly. Rather, the goal here is to ask whether the debate about financial market regulation might benefit from a more transparent analysis of temporal and legal source …

Are Defined Contribution Pension Plans Fit For Purpose In Retirement?, Jeremy R. Cooper

Seattle University Law Review

This Article considers the historical basis for the shift from defined benefit plans to defined contribution plans, the structural and practical shortcomings of defined contribution plans, alternate pension models, and adjustments to existing retirement plan models that may offer a degree of protection to plan contributors. Like the United States, Australia is now realizing the limitations of a defined contribution retirement system insofar as it relates the provision of reliable retirement income for a population with increasing life expectancy. Unlike defined contribution plans, defined benefit plans provide a benefit based typically on time served and a predetermined proportion of either …

Australia’S Experience With Foreign Direct Investment By State Controlled Entities: A Move Towards Xenophobia Or Greater Openness?, Greg Golding

Seattle University Law Review

Over the last few years, there has been considerable debate in Australia as to the appropriate regulation of foreign direct investment by entities affiliated with foreign governments. During that time, Australia has been a significant beneficiary of investment by sovereign wealth funds from many foreign jurisdictions, particularly by Chinese state owned enterprises. The Australian government, similar to governments of many developed Western countries, has struggled to properly calibrate its policy settings for regulating this type of investment activity. This Article considers the Australian regulatory regime and assesses Australia’s experience in regulating those investment flows during this period.

Is The Independent Director Model Broken?, Roberta S. Karmel

Seattle University Law Review

At common law, an interested director was barred from participating in corporate decisions in which he had an interest, and therefore “dis-interested” directors became desirable. This concept of the disinterested director developed into the model of an “independent director” and was advocated by the Securities and Exchange Commission and court decisions as a general ideal in a variety of situations. This Article explores doubts regarding the model of an “independent director” and suggests that director expertise may be more important that director independence. The Article then discusses shareholder primacy and sets forth alternatives to the shareholder primacy theory of the …

The New Policing Of Business Crime, Rachel E. Barkow

Seattle University Law Review

The central goal of this Article is to describe the burgeoning turn to new policing techniques in the business crime context and to offer some initial thoughts on the promises and limits of the approach. Part II begins by explaining the traditional or “old policing” of business crime. After implementing an initial strategy that focused on pursuing individuals, the government turned its attention to the organizations where those individuals operated. It increased the sanctions for violators and sought to target companies in an effort to prompt them to adopt internal compliance pro-grams. The focus on company compliance programs was designed …

Deferred Prosecutions In The Corporate Sector: Lessons From Libor, Justin O'Brien, Olivia Dixon

Seattle University Law Review

Since 2008, the global economic downturn has significantly in-creased operating pressures on major corporations. Additionally, there has been a corresponding increase in corporate tolerance for corruption, which has coincided with a marked preference by regulators in settling, rather than litigating, enforcement actions. This Article argues that the expansion of prosecutorial authority without appropriate accountability restraints is a major tactical and strategic error. It evaluates whether the mechanism can be made subject to effective oversight. It argues that the current frame-work in the United States is highly problematic, leading to settlements that generate newspaper headlines but not necessarily cultural change. It …

Proposed Regulation A Amendments Implementing The Jobs Act: Please, Sec, Revise Your Proposed Amendments In Order To Promote Small Business Capital Formation, Rutheford B. Campbell Jr.

Law Faculty Advocacy

The Jobs Act was enacted to promote efficient access to external capital by small businesses. Title IV of the Jobs Act raises the limit on the exemption from federal registration provided by Regulation A to $50 million and requires the SEC to enact enabling regulations. The Commission’s first iteration of its proposed Regulation A amendments implementing Title IV of the Jobs Act fails to offer small businesses efficient access to external capital. Principally, this is because the proposed Regulation A amendments: (1) fail to preempt state registration authority over small offerings by small businesses relying on the proposed Regulation A …