Law Commons^™

Small Issue Public Offerings Conducted Over The Internet: Are They ‘Suitable’ For The Retail Investor?, Jeffrey J. Haas

Articles & Chapters

No abstract provided.

Understanding The Choice Between Public And Private Equity Financing Of Early Stage Companies: A Comment On Barry And Turki, Ronald J. Gilson

Faculty Scholarship

This Comment considers the results of Barry and Turki's research data that indicates that investments perform differently depending on whether innovation is financed by private or public equity investment. The Comment posits two hypotheses for the differential performance. The first highlights ex ante differences between private and public subsamples, that is that the financing choice separates good prospects from bad. The second hypothesis focuses on ex post differences in performance that results from differences in governance structure and incentives created by the structure of public and private equity investment. The ex ante separation hypothesis and the ex post performance hypothesis …

Should Labor Be Allowed To Make Shareholder Proposals?, Randall Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

In this Article, we investigate whether labor unions and related entities should be permitted to continue to make shareholder proposals using Rule 14a-8 of the federal securities laws. We focus on the claim that labor is using the shareholder proposal mechanism to further the interests of workers at the expense of other shareholders. In particular, corporate management groups have suggested that when labor is involved in collective bargaining negotiations with management, it should be barred from submitting shareholder proposals because labor proposals seek to further interests not shared by other security holders of the company. Using data on shareholder proposals …

United States V. O'Hagan: Defining The Limits Of Fraud And Deceptive Pretext Under Rule 10b-5, Theodore C. Mccullough

Seattle University Law Review

This Note argues that broadening the present embezzlement model of the Rule 10b- 5 misappropriation theory will more fully reflect both the language and intent of § 10(b) (of the 1934 Securities Exchange Act) and Rule 10b-5, and more importantly accommodate the sophistication of today's insider trading schemes. Part II of this Note examines the uses of inside information both prior to and after the creation of the 1934 Securities Exchange Act, and how § 10(b) and Rule 10b-5 were created to proscribe these uses. Part III examines the language and intent behind § 10(b) and Rule 10b-5 and argues …

"Disclose-Or-Abstain" Without Restraint: The Supreme Court Misses The Mark On Rule 14e-3 In United States V. O'Hagan, E. Livingston B. Haskell

Washington and Lee Law Review

No abstract provided.

Don’T Ask, Just Tell: Insider Trading After United States V. O’Hagan, Kimberly D. Krawiec, Richard W. Painter, Cynthia A. Williams

Faculty Scholarship

The United States Supreme Court validated the misappropriation theory in United States v. O'Hagan, but unfortunately rendered a confusing opinion that left many questions unresolved. In this article we discuss the history of the Supreme Court's Section 10(b) jurisprudence as it relates to insider trading, giving particular attention to the Court's insistence prior to O'Hagan that "a material misrepresentation or material failure to disclose," not merely a breach of fiduciary duty, must exist to impose liability under Section 10(b). We then discuss the pervasive inconsistencies among lower courts in interpreting the misappropriation theory, and how the O'Hagan decision does little …

Theories Of The Corporation And The Limited Liability Company: How Should Courts And Legislatures Articulate Rules For Piercing The Veil, Fiduciary Responsibility And Securities Regulation For The Limited Liability Company, David L. Cohen

Oklahoma Law Review

No abstract provided.

Look Who's Talking: Defining The Scope Of The Misappropriation Theory After United States V. O'Hagan, Janet E. Kerr, Tor S. Sweeney

Oklahoma Law Review

No abstract provided.

The Sky Is Still Blue In Texas: State Law Alternatives To Federal Securities Remedies, Keith A. Rowley

Scholarly Works

Recent actions by the United States Supreme Court and by Congress have reduced the number of avenues by which plaintiffs relying on federal law may pursue alleged wrongdoers for securities fraud and have imposed significant additional requirements on plaintiffs suing in federal court to recover from securities fraud. As a consequence, persons who claim injury from some material misrepresentation or omission in the purchase, sale, offer for purchase, or offer for sale securities, or who have suffered as a consequence of some other impropriety relating to such transactions, may find better options available in state court or under state law …

Joe Six-Pack, U.S. V. O'Hagan, And Private Securities Litigation Reform: A Line Must Be Drawn, Michael H. Dessent

Faculty Scholarship

No abstract provided.

State Securities Litigation May No Longer Be A Class Act: Federal Preemption Looms On The Horizon, Susan J. Becker

Law Faculty Articles and Essays

State courhouse doors may soon be closed to class actions by shareholders of nationally traded stocks seeking redress for alleged misstatements and omissions in the issuer's financial forecasts.

Notary Bonds And Insurance: Increasing The Protection For Consumers And Notaries, 31 J. Marshall L. Rev. 839 (1998), Michael J. Osty

UIC Law Review

No abstract provided.

Judicial Reliance On Regulatory Interpretations In Sec No-Action Letters: Current Problems And A Proposed Framework, Donna M. Nagy

Articles by Maurer Faculty

Judicial descriptions of SEC no-action letters have run the gamut from law, to orders, to rulings, to informal opinions, to prosecutorial decisions. This judicial failure to characterize no-action letters consistently is symptomatic of a more fundamental problem: many courts treat informal regulatory interpretations in no-action letters as interchangeable with formal and official regulatory interpretations that the full Commission has promulgated. Consequently, courts often defer automatically to the regulatory interpretations in no-action letters. In other words, many courts accept no-action letter authority as definitive interpretations of the federal securities statutes and SEC rules and regulations without independently analyzing the particular regulatory …

Reframing The Misappropriation Theory Of Insider Trading Liability: A Post-O'Hagan Suggestion, Donna M. Nagy

Articles by Maurer Faculty

For almost two decades, the United States Supreme Court was silent as to the validity of the so-called 'fraud on the source" misappropriation theory of insider trading liability. This changed in June 1997 when the theory received a resounding endorsement from the Court in United States v. O'Hagan.

Critics of O'Hagan have argued that the Court's decision reaches too far. However, this Article contends that the Court actually endorsed a theory that does not reach far enough. By analyzing and critiquing the reasoning of the majority opinion in O'Hagan, this Article demonstrates that the Court's unnecessarily restrictive misappropriation theory will …

Securities Arbitration: A Clinical Experiment, Constantine N. Katsoris

Fordham Urban Law Journal

This Article discusses the use of non-attorneys in representing such clients, as well as pro se representation by such claimants. It then describes the efforts of the Securities and Exchange Commission ("SEC") to ensure that such claimants have access to adequate and effective representation through the use of law school clinics. Finally, this Article raises numerous issues that must be considered before establishing such clinics, and concludes that proper planning and adjustment is necessary for a successful clinical program.

Can Internet Offerings Bridge The Small Business Capital Barrier?, Jill E. Fisch

All Faculty Scholarship

Internet technology offers the potential to reduce the search and information costs associated with capital formation. Commentators have suggested that the Web will enable small business to achieve better access to the capital markets. To facilitate this access, they have suggested regulatory reforms to make internet offerings cheaper and easier. At the same time, small business offerings have been identified as among the most risky, offering a caution to those who counsel regulatory reform. This article examines the existing regulatory climate. State and federal regulators have adopted a number of recent reforms to facilitate the use of the internet and …

Cross-Border Securitization: Without Law, But Not Lawless, Tamar Frankel

Faculty Scholarship

The Article discusses two puzzles posed by cross-border securitization.

First, why do the innovators in this area "give away" their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from "giving away" their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a "law merchant," which is later incorporated into domestic laws. In fact, …

The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox

Faculty Scholarship

This Article addresses the appropriate reach of the U.S. mandatory securities disclosure regime. While disclosure obligations are imposed on issuers, they are triggered by transactions: the public offering of, or public trading in, the issuers' shares. Share transactions are taking on an increasingly transnational character. The barriers to a truly global market for equities continue to lessen: financial information is becoming increasingly globalized and it is becoming increasingly inexpensive and easy to effect share transactions abroad. There are approximately 41,000 issuers of publicly traded shares in the world. For an ever larger portion of these issuers, there will be significant …

Should Labor Be Allowed To Make Shareholder Proposals?, Randall S. Thomas, Kenneth J. Martin

Washington Law Review

In this Article, we investigate whether labor unions and related entities should be permitted to continue to make shareholder proposals using Rule 14a-8 of the federal securities laws. We focus on the claim that labor is using the shareholder proposal mechanism to further the interests of workers at the expense of other shareholders. In particular, corporate management groups have suggested that when labor is involved in collective bargaining negotiations with management, it should be barred from submitting shareholder proposals because labor proposals seek to further interests not shared by other security holders of the company. Using data on shareholder proposals …

High Tech Lending: Maintaining Priority In An Intangible World, Richard Haigh, Marc R. Mercier

Articles & Book Chapters

Financing intangible intellectual property in Canada presents some novel demands on lenders because of the interaction of provincial security schemes with federal intellectual property legislation. This article looks at the relative ease with which security interests in intangible property may be obtained under provincial personal property security regimes, and then at the various federal intellectual property statutes which exhibit more of a piecemeal approach to financing. In addition, a number of constitutional issues arise because of this jurisdictional split, and the article explores these issues, comparing the situation in Canada with that in the United States. The article suggests that …

United States V. O'Hagan: Agency Law And Justice Powell's Legacy For The Law Of Insider Trading, Adam C. Pritchard

Articles

The law of insider trading is judicially created; no statutory provision explicitly prohibits trading on the basis of material, non-public information. The Supreme Court's insider trading jurisprudence was forged, in large part, by Justice Lewis F. Powell, Jr. His opinions for the Court in United States v. Chiarella and SEC v. Dirks were, until recently, the Supreme Court's only pronouncements on the law of insider trading. Those decisions established the elements of the classical theory of insider trading under § 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"). Under this theory, corporate insiders and their tippees who …

The Securities Litigation Uniform Standards Act Of 1998: The Sun Sets On California's Blue Sky Laws, David M. Lavine, Adam C. Pritchard

Articles

It is often said that California sets the pace for changes in America's tastes. Trends established in California often find their way into the heartland, having a profound effect on our nation's cultural scene. Nouvelle cuisine, the dialect of the Valley Girl and rollerblading all have their genesis on the West Coast. The most recent trend to emerge from California, instead of catching on in the rest of the country, has been stopped dead in its tracks by a legislative rebuke from Washington, D.C. California's latest, albeit short-lived, contribution to the nation was a migration of securities fraud class actions …