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Articles 1 - 27 of 27
Full-Text Articles in Law
How To Interpret The Securities Laws?, Zachary J. Gubler
How To Interpret The Securities Laws?, Zachary J. Gubler
Seattle University Law Review
In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …
Rethinking Absolute Immunity From Defamation Suits In Private Quasi-Judicial Proceedings, Nat Stern
Rethinking Absolute Immunity From Defamation Suits In Private Quasi-Judicial Proceedings, Nat Stern
The University of New Hampshire Law Review
No abstract provided.
The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas
The Indian Securities Fraud Class Action: Is Class Arbitration The Answer?, Brian T. Fitzpatrick, Randall S. Thomas
Northwestern Journal of International Law & Business
Abstract:
In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other …
The New Bond Workouts, William W. Bratton, Adam J. Levitin
The New Bond Workouts, William W. Bratton, Adam J. Levitin
All Faculty Scholarship
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 (“TIA”), …
Finra Dispute Resolution Task Force Releases Its Final Report, With Support For Mediation And Live Hearings, Jill I. Gross
Finra Dispute Resolution Task Force Releases Its Final Report, With Support For Mediation And Live Hearings, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
This article briefly describes the task force’s formation; highlights its key recommendations (such as requiring mediation before arbitration of all claims—subject to party opt-out, and introducing a more affordable, live hearing option for small claims); analyzes in more detail a few more controversial suggestions (such as expressly banning class action waivers in customer agreements and increasing the use of explained awards), and critiques the task force’s inability to reach consensus on other hot-button issues, such as mandatory arbitration.
The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross
The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross
Brooklyn Journal of Corporate, Financial & Commercial Law
Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.
More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …
The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross
The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.
More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms' duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …
Harmonizing Third-Party Litigation Funding Regulation, Victoria Sahani
Harmonizing Third-Party Litigation Funding Regulation, Victoria Sahani
Faculty Scholarship
Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a “wild west” due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation …
Harmonizing Third-Party Litigation Funding Regulation, Victoria A. Shannon
Harmonizing Third-Party Litigation Funding Regulation, Victoria A. Shannon
Victoria Shannon Sahani
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Pepperdine Dispute Resolution Law Journal
This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …
The End Of Mandatory Securities Arbitration?, Jill I. Gross
The End Of Mandatory Securities Arbitration?, Jill I. Gross
Pace Law Review
No abstract provided.
Perceptions Of Fairness In Securities Arbitration: An Empirical Study, Jill I. Gross
Perceptions Of Fairness In Securities Arbitration: An Empirical Study, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
This Report to the Securities Industry Conference on Arbitration (SICA) documents the results of the authors’ empirical study, through a one-time mailed survey, of survey participants’ perceptions of fairness of securities Self-Regulatory Organization (SRO) arbitrations involving customers. The survey was designed to assess participants’ perceptions of the: (1) fairness of the SRO arbitration process; (2) competence of arbitrators to resolve investors’ disputes with their broker-dealers; (3) fairness of SRO arbitration as compared to their perceptions of fairness in securities litigation in similar disputes; and (4) fairness of the outcome of arbitrations.
Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel
Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel
Scholarly Works
The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …
Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth
Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth
Faculty Publications
This article explains the provisions of the UARA and encourages its prompt adoption in states that presently lack comprehensive statutes governing security interests in rents.
Securities Arbitration Awards Of Punitive Damages: Protective Or Expansive Steps For Review - Sawtelle V. Waddell & (And) Reed, Inc., Andrew Kopp
Journal of Dispute Resolution
An award of punitive damages is often the most significant and detrimental part of an award arising from a judicial or arbitral proceeding. In 1995, the United States Supreme Court resolved a circuit split upholding an arbitral panel's authority to award punitive damages under a securities arbitration agreement. This decision was monumental in establishing arbitral power. However, it left several questions unanswered. For example, which, if any, standards should be applied to such awards? This casenote addresses the reviewability of punitive damages awards arising out of a securities arbitration hearing.
Applying The Eligibility Rule In Securities Arbitration: Resolving Circuit Court Conflict Regarding The Proper Role Of Arbitrators And Courts - Howsam V. Dean Witter Reynolds, Inc., James D. Hughes
Journal of Dispute Resolution
In Howsam v. Dean Witter Reynolds, Inc., the United States Supreme Court reviewed a Tenth Circuit holding that the eligibility rule presented a question of arbitrability, and was thus for the court to decide. Reversing, the Supreme Court held that the arbitrator, not a court, should apply the time limit rule. The Court's decision resolves the split among the circuit courts in addition to allowing arbitration clauses in securities firms' client agreements to serve their purpose of providing an efficient and less costly method of litigating disputes relating to investment accounts, ultimately increasing investor confidence in the securities industry.
Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul
Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul
LLM Theses and Essays
A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …
The High Cost Of Efficiency: Mandatory Arbitration In The Securities Industry, Beth E. Sullivan
The High Cost Of Efficiency: Mandatory Arbitration In The Securities Industry, Beth E. Sullivan
Fordham Urban Law Journal
Mandatory arbitration agreements have become standard in the securities industry via the required Form U-4 for anyone seeking a license to buy or sell a security. However, the arbitration agreements generally submits a claimant to a panel of "white males in their sixties," and often claimants do not fare well before such panels. The article explores the claims of proponents of such agreements, such as the efficiency of resolving the dispute, which allegedly benefits both employers and employees, notions of freedom of contract, and ability to foster employment relationships which otherwise would be difficult to enact. However, the article examines …
Sica: The First Twenty Years, Constantine N. Katsoris
Sica: The First Twenty Years, Constantine N. Katsoris
Fordham Urban Law Journal
This Article provides a broad overview of the topic of securities arbitration. It expresses the views of litigants from both sides of the spectrum. It argues that the public must trust in the integrity of the SRO (self-regulatory organization) arbitration process for securities arbitration to remain the basically mandatory system that it is today. The Article traces the evolution of arbitration rules in effect at various SROs. It then examines the Uniform Code of Arbitration in detail, and the SRO Codes. It explores the role of the American Arbitration Association (AAA), the NYSE Symposium, the Ruder Report and the Role …
Should Mandatory Written Opinions Be Required In All Securities Arbitrations?: The Practical And Legal Implications To The Securities Industry , Lynn Katzler
American University Law Review
No abstract provided.
Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek
Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek
Journal of Dispute Resolution
In the complex securities fraud arena, partial pretrial settlement in cases involving multiple defendants would appear to reduce litigation in the dispute. However, conflict over the proper method of allocating responsibility for a damage award among settling and non-settling defendants can in fact increase litigation. Federal courts disagree as to which method most fairly and equitably apportions damage liability. In re Jiffy Lube Securities Litigation is the most recent case that touches upon the issue of damage allocation among settling and non-settling defendants. This Note will address competing policy considerations which drive courts to choose different allocative methods.
Your Forum Or Mine - Where To Arbitrate Investor-Broker Securities Claims, Christopher J. Moeller
Your Forum Or Mine - Where To Arbitrate Investor-Broker Securities Claims, Christopher J. Moeller
Journal of Dispute Resolution
This Comment will discuss the present forums available for customer-broker arbitration disputes, the problems arising in the current system, what changes in the present system may help resolve these problems, and the desirability of creating a new forum to handle all securities arbitrations between customers and brokers. This Comment will not challenge the desirability of arbitrating customer-broker disputes in general. Indeed, many scholars and commentators argue that arbitration is beneficial to both the customer and the broker because it provides a more efficient and less expensive means of settling disputes than litigation. However, for arbitration to effectively handle customer grievances, …
Just Saying No: Avoiding Predispute Agreements To Arbitrate In Securities Cases, Jim Parks
Just Saying No: Avoiding Predispute Agreements To Arbitrate In Securities Cases, Jim Parks
Journal of Dispute Resolution
This Comment will explore the current state of securities arbitration and will examine the advisability of arbitration in a securities context. In addition, this Comment will consider avenues of relief open to the securities plaintiff who is seeking to avoid arbitration.
Mandatory Securities Industry Arbitration: The Problems And The Solution, David A. Lipton
Mandatory Securities Industry Arbitration: The Problems And The Solution, David A. Lipton
Maryland Law Review
No abstract provided.
Arbitration In The Securities Industry: Too Much Of A Good Thing, David A. Lipton
Arbitration In The Securities Industry: Too Much Of A Good Thing, David A. Lipton
Journal of Dispute Resolution
The study upon which this article is based was conducted in response to the explosive growth of the use of arbitration in the securities industry as a means of resolving broker/customer disputes. The study was designed to investigate whether the use that is being made of arbitration is efficient and, if inefficiencies were found, what procedures might be employed to screen out inefficient use
Enforceability Of Agreements To Arbitrate: An Examination Of The Public Policy Defense, Stewart E. Sterk
Enforceability Of Agreements To Arbitrate: An Examination Of The Public Policy Defense, Stewart E. Sterk
Articles
This Article seeks to demonstrate that the public policy of doctrine should be, and in general has been, limited to two types of cases. First, as already discussed, an agreement to arbitrate should not be enforced when the statute or case law principle at issue has aims other than promoting justice between the parties. Second, when a party to the agreement belongs to a class peculiarly subject to imposition by the class to which the other party belongs, an agreement to arbitrate will not and should not be enforced.
In the latter class of cases, the susceptibility to imposition may …
Securities Arbitrations Involving Mortgage-Backed Securities And Collateralized Mortgage Obligations: Suitable For Unsuitability Claims?, Bradley J. Bondi
Securities Arbitrations Involving Mortgage-Backed Securities And Collateralized Mortgage Obligations: Suitable For Unsuitability Claims?, Bradley J. Bondi
Fordham Journal of Corporate & Financial Law
No abstract provided.