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2018

Securities Law

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Full-Text Articles in Law

The Howey Test: Are Crypto-Assets Investment Contracts?, Justin Henning Dec 2018

The Howey Test: Are Crypto-Assets Investment Contracts?, Justin Henning

University of Miami Business Law Review

With innovation always comes unknowns. Blockchain technology and crypto–assets are no different. Often times, innovators are so worried about getting their product to market or scaling at mass that they overlook the legal ramifications of their innovations. As Mark Zuckerberg infamously said, “move fast and break things.” Facebook was in no way alone in this style of innovation. However, with respect to crypto–assets, the SEC has stepped in and is attempting to prevent the “break things” aspect. One of the major issues relating to crypto–assets is that many people still do not understand what they are, or how the underlying …


Are Passive Index Funds Active Owners? Corporate Governance Consequences Of Passive Investing, Giovanni Strampelli Dec 2018

Are Passive Index Funds Active Owners? Corporate Governance Consequences Of Passive Investing, Giovanni Strampelli

San Diego Law Review

The exponential rise of mutual funds designed to track stock indices has been one of the drivers behind the re-concentration of ownership of listed companies in the United States. Because of the high concentration of the passive index funds industry, the three leading passive fund managers—BlackRock, Vanguard, and State Street—make up an increasingly important component of the shareholder base of listed companies. In spite of this however, it remains questionable whether they are actually interested in playing an active role in the corporate governance of investee companies. In fact, although passive investors are, by definition, focused on the long term …


“I’Ll Know It When I See It”: Defending The Consumer Financial Protection Bureau’S Approach Of Interpreting The Scope Of Unfair, Deceptive, Or Abusive Acts Or Practices (“Udapp”) Through Enforcement Actions, Stephen J. Canzona Dec 2018

“I’Ll Know It When I See It”: Defending The Consumer Financial Protection Bureau’S Approach Of Interpreting The Scope Of Unfair, Deceptive, Or Abusive Acts Or Practices (“Udapp”) Through Enforcement Actions, Stephen J. Canzona

Journal of Legislation

No abstract provided.


Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, A.C. Pritchard, Robert B. Thompson Nov 2018

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, A.C. Pritchard, Robert B. Thompson

Notre Dame Law Review

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress …


Corporate And Business Law, Christopher L. Mclean Nov 2018

Corporate And Business Law, Christopher L. Mclean

University of Richmond Law Review

The past two years have produced a number of pieces of legislation from the Virginia General Assembly that serve to bring the set of Virginia business entity statutes up to date with its peers around the country. Part I highlights changes to the Virginia Stock Corporation Act (“VSCA”) and the Virginia Nonstock Corporation Act (“VNSCA”). Part II highlights changes to the Virginia Securities Act (“VSA”) and other statutes affecting Virginia business entities. Part III reviews two significant cases that the Supreme Court of Virginia decided over the past two years with respect to Virginia corporate law. Those decisions provided guidance …


Private Ordering In The Old Dominion: A Solution To Frivolous Litigation Or The Elimination Of A Fundamental Shareholder Right?, Rebekah Biggs Nov 2018

Private Ordering In The Old Dominion: A Solution To Frivolous Litigation Or The Elimination Of A Fundamental Shareholder Right?, Rebekah Biggs

University of Richmond Law Review

No abstract provided.


The Elephant In The Room: Helping Delaware Courts Develop Law To End Systemic Short-Term Bias In Corporate Decision-Making, Kenneth Mcneil, Keith Johnson Oct 2018

The Elephant In The Room: Helping Delaware Courts Develop Law To End Systemic Short-Term Bias In Corporate Decision-Making, Kenneth Mcneil, Keith Johnson

Michigan Business & Entrepreneurial Law Review

Short-termism in corporate decision-making is as problematic for long-term investors as relying on a three-mile radar on a supertanker. It is totally inadequate for handling the long-term risks and opportunities faced by the modern corporation. Yet recent empirical research shows that up to 85% of the S&P 1500 have no long-term planning. This is costing pension funds and other long-term investors dearly. For instance, the small minority of companies that do long-term planning and risk management had a long-term profitability that was 81% higher than their peers during the 2001–2014 period—with less stock volatility that costs investors dearly as well. …


The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger Oct 2018

The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.


Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu Oct 2018

Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal securities law seeks to ensure the quality and quantity of information that corporations make publicly available. Informational asymmetries associated with companies in financial distress, but not in bankruptcy, have received little attention. This Article explores some important asymmetries in this context that are curious in their origin, nature, and impact. The asymmetries are especially curious because of the impact of a world with credit default swaps (CDS) and CDS-driven debt “decoupling.” The Article explores two categories of asymmetries. The first relates to information on the company itself. Here, the Article suggests there is fresh evidence for the belief that …


Insider Trading: Are Insolvent Firms Different?, Andrew Verstein Oct 2018

Insider Trading: Are Insolvent Firms Different?, Andrew Verstein

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal law restricts insider trading. Yet these restrictions operate differently on insolvent or bankrupt firms. The law is more constraining in some respects: federal law extensively regulates the trading of residual claims in solvent firms but not insolvent firms. However, the law is more constraining in other respects: insider trading law does little to limit debt-trading at solvent firms, but a bankruptcy enmeshes all creditors in a web of insider trading rules. This Article identifies insolvency’s economic and legal influence on insider trading law and then normatively evaluates this transformation.


Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin Oct 2018

Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin

Brooklyn Journal of Corporate, Financial & Commercial Law

Bankruptcy is a market for corporate control. Current bankruptcy practice offers two alternative mechanisms for effectuating changes in control of a firm: (1) a pre-plan all-asset sale under section 363(b) of the Bankruptcy Code; or (2) an asset sale or recapitalization pursuant to a plan of reorganization under section 1129 of the Code. Pre-plan sales under section 363(b) are fast, but lack the procedural protections associated with a restructuring or sale pursuant to a plan. Plan confirmation can be costly and uncertain, however. Restructuring support agreements (“RSAs”)—contractual agreements to support a future restructuring that has certain agreed-upon characteristics—appear to offer …


Backstop, Not Bailout: The Case For Preserving The Orderly Liquidation Authority Under Dodd-Frank, Mark R. Maciuch Oct 2018

Backstop, Not Bailout: The Case For Preserving The Orderly Liquidation Authority Under Dodd-Frank, Mark R. Maciuch

Brooklyn Journal of Corporate, Financial & Commercial Law

The Trump Administration and Republicans have initiated efforts to repeal certain provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), one of which is the Orderly Liquidation Authority (OLA) under Title II of Dodd-Frank. Critics of the OLA argue that it enables, rather than prevents, future bailouts funded by taxpayers. These critics are concerned with the Federal Deposit Insurance Corporation’s (FDIC) discretion to decide when and how to resolve distressed financial firms, as well as the FDIC’s access to large amounts of funds from the U.S. Department of the Treasury to carry out these functions. Proponents of …


Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer Oct 2018

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. …


Sec Disgorgement Actions: Equitable Remedy Or Penalty?, Armando Lopez Sep 2018

Sec Disgorgement Actions: Equitable Remedy Or Penalty?, Armando Lopez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers Sep 2018

Sg’S Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey S. Lubbers

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Opinion Of The Court, Elena Kagan Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Opinion Of The Court, Elena Kagan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Administrative Law Scholars In Support Of Neither Party, Richard J. Pierce Jr. Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Administrative Law Scholars In Support Of Neither Party, Richard J. Pierce Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Federal Administrative Law Judges Conference In Support Of Neither Party, John M. Vittone Sep 2018

Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Federal Administrative Law Judges Conference In Support Of Neither Party, John M. Vittone

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Introduction To Lucia Et Al. V. Securities And Exchange Commission, Selina Malherbe Sep 2018

Introduction To Lucia Et Al. V. Securities And Exchange Commission, Selina Malherbe

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Control On Blockchain Network, Aleksei Gudkov Sep 2018

Control On Blockchain Network, Aleksei Gudkov

Nova Law Review

No abstract provided.


Equity Crowdfunding Portals Should Join And Enhance The Crowd By Providing Venture Formation Resources, Jeff Thomas Sep 2018

Equity Crowdfunding Portals Should Join And Enhance The Crowd By Providing Venture Formation Resources, Jeff Thomas

Nova Law Review

No abstract provided.


Realizing The Recession: Modifying Dodd-Frank With A View To The Future, David E. Chaney Sep 2018

Realizing The Recession: Modifying Dodd-Frank With A View To The Future, David E. Chaney

West Virginia Law Review

No abstract provided.


Essay: Insiders, Outsiders, & Fair Access: Identifying Culpable Insider Trading, Jonathan D. Glater Jul 2018

Essay: Insiders, Outsiders, & Fair Access: Identifying Culpable Insider Trading, Jonathan D. Glater

Brooklyn Law Review

The Supreme Court’s insider trading doctrine has become increasingly convoluted as each effort to cope with novel fact patterns results in a new rule not tethered to principled understanding of the nature of the wrong committed. That this is not a terribly controversial claim is evidence of how far the Court’s jurisprudence has drifted. This essay proposes that the early error was abandonment of concern for third parties who trade on exchanges but who do not enjoy legal access to information possessed by insiders or tippees who receive information from insiders. The Court’s error, the essay contends, rests on a …


Do Independent Directors Curb Financial Fraud? The Evidence And Proposals For Further Reform†, S. Burcu Avci, Cindy A. Schipani, Nejat Seyhun Jul 2018

Do Independent Directors Curb Financial Fraud? The Evidence And Proposals For Further Reform†, S. Burcu Avci, Cindy A. Schipani, Nejat Seyhun

Indiana Law Journal

In this Article, we argue that the U.S. corporate governance rules put too much faith in the independent board members and insufficient emphasis on the shareholders to control and monitor top management. Given the agency problem between the board of directors and the shareholders, outside directors can be captured by management, thereby leading to inadequate checks on management. The evidence presented in this Article shows that outside board members do not exercise sufficient controls on management even when management has gone awry. To solve this agency problem, we propose increasing the power of the principals: make shareholder resolutions binding on …


The Inevitable United States Adoption Of Ifrs: How And Why The United States Should Be Prepared, Erika M. Tribuzi Jul 2018

The Inevitable United States Adoption Of Ifrs: How And Why The United States Should Be Prepared, Erika M. Tribuzi

Indiana Journal of Global Legal Studies

In an age where technology makes the world smaller and business transactions happen by the microsecond, both private and public entities have utilized global standards. These standards are often voluntary and span many different industries. In the twenty-first century, financial reporting standards have not been immune toward the pull for global uniformity. The International Financial Reporting Standards (IFRS) are a set of international financial reporting standards that countries can choose to adopt in full or in part. Currently, there are 143 countries that have adopted IFRS in some capacity. This Note addresses the voluntary nature of global standards in the …


Online Arbitration As A Remedy For Crowdfunding Fraud, C. Steven Bradford Jul 2018

Online Arbitration As A Remedy For Crowdfunding Fraud, C. Steven Bradford

Florida State University Law Review

It is now legal to sell securities to the general public in unregistered, crowdfunded offerings. But offerings pursuant to the new federal crowdfunding exemption pose a serious risk of fraud. The buyers will be mostly small, unsophisticated investors, the issuers will be mostly small startups about whom little is known, and crowdfunded offerings lack some of the protections available in registered offerings. Some of the requirements of the exemption may reduce the incidence of fraud, but there will undoubtedly be fraudulent offerings. An effective antifraud remedy is needed to compensate investors and help deter wrongdoers. But because of the small …


Proxy Access Voting: Evaluating Proxy Access And The Recent Phenomenon Of Corporations Adopting Shareholder Protective Policies, Danielle Vukovich Jun 2018

Proxy Access Voting: Evaluating Proxy Access And The Recent Phenomenon Of Corporations Adopting Shareholder Protective Policies, Danielle Vukovich

San Diego International Law Journal

Shareholders hold a financial stake in a corporation, and therefore are often viewed as owners of the corporation and believed to be in control for all corporate actions. However, their powers are circumscribed. Board of directors committees nominate directors to serve the corporation and these directors have the power to select the corporation’s officers. The committees provide shareholders a slate of proposed directors that are voted on and approved at the annual shareholder meeting. Shareholders may also propose their own slate of directors, but this typically requires a proxy contest, which can be expensive due to the costs both associated …


Essay: Corporate Triplespeak: Responses By Investor-Owned Utilities To The Epa’S Proposed Clean Power Plan, Alan R. Palmiter Jun 2018

Essay: Corporate Triplespeak: Responses By Investor-Owned Utilities To The Epa’S Proposed Clean Power Plan, Alan R. Palmiter

Brooklyn Law Review

During the year following the EPA’s proposed Clean Power Plan to regulate CO2 emissions in the power sector, the largest investor-owned electric utilities engaged in a curious triplespeak. Employing the moral language of political conservatives, the utilities focused on whether and how the EPA had transgressed its “traditional” regulatory role, thus altering the “structure” of energy federalism and potentially “degrading” orderly power supplies. In disclosure filings with the Securities and Exchange Commission, the utilities used the moral language of political libertarians, focusing on the “financial risks” that federal government “intervention” poses to efficient power “markets” and to the “freedom” of …


Rules Are Meant To Be Amended: How Regulation Crowdfunding's Final Rules Impact The Lives Of Startups And Small Businesses, Dylan J. Hans Jun 2018

Rules Are Meant To Be Amended: How Regulation Crowdfunding's Final Rules Impact The Lives Of Startups And Small Businesses, Dylan J. Hans

Brooklyn Law Review

The Securities and Exchange Commission effectuated the final crowdfunding rules in 2016, and since then, those rules have become the target of scrutiny from startups and investors. Crowdfunding, a form of public capital raising, is an exciting means by which new companies raise money. But, how long will this regulation be a viable option for startups and small businesses? Will the regulation continue to create opportunities for small market enterprises to raise capital? This Note argues that the Securities and Exchange Commission must make adjustments to the Regulation Crowdfunding exemption to improve investor protection, while also reducing draconian disclosure requirements …