Secured Transactions Commons^™

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

Navigating The Intersection Of Regulation And Vulnerability: The Evolving Landscape Of Cybersecurity In Investment Management And The Imperative For Comprehensive Safeguards, Giezi Rios

Catholic University Journal of Law and Technology

No abstract provided.

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. …

Attack On The Spac: The Push To Regulate Special Purpose Acquisition Companies As Investment Companies Under The Investment Company Act, Sean Meyer

University of Cincinnati Law Review

No abstract provided.

Quinquagenaries, Anthony Duggan

Dalhousie Law Journal

This article is part of a symposium to mark the 50th anniversary, or quinquagenary, of the Dalhousie Law Journal. The invitation to participate in the symposium asked authors to reflect on developments in their field over the past 50 years. My field is the law of secured transactions and, as it happens, the Canadian Personal Property Security Acts (PPSAs) are approaching their own quinquagenary. There have been numerous statutory and case law developments over the past 50 years, but one of the most remarkable turn of events is the influence the Canadian PPSAs have had on the reform of secured …

Designing Effective Regulation For Blockchain-Based Markets, Heather Hughes

Scholarly Articles in Law Reviews & Journals

Effective regulation of blockchain-based markets calls for coordination among lawyers, businesses, coders, and lawmakers. How might we achieve adequate coordination and why is it important? This Article takes up these questions, using one example of an increasingly popular type of blockchain-based financial transaction: the issuance of tokens backed by off-chain assets. The objective here is not to advocate for a particular regulatory treatment for asset tokenization, but rather to use this deal type as a springboard to discuss what "effective regulation" means in the context of blockchain-enabled markets.

A New System Of Electronic Chattel Paper: Notification Of Assignment, Thomas E. Plank

South Carolina Law Review

No abstract provided.

Engineered Credit Default Swaps: Innovative Or Manipulative?, Gina-Gail S. Fletcher

Articles by Maurer Faculty

Credit default swaps (“CDS”) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS investors are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled …

Broker-Dealer Law Reform: Financial Intermediaries In A State Of Limbo, Alexander R. Tiktin

Brooklyn Law Review

No abstract provided.

The Value Of Uncertainty, Cathy Hwang, Benjamin P. Edwards

Faculty Scholarship

No abstract provided.

The Value Of Public-Notice Filing Under Uniform Commercial Code Article 9: A Comparison With The German Legal System Of Securities In Personal Property, Jens Hausmann Dr.

Georgia Journal of International & Comparative Law

No abstract provided.

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.

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 …

Securitization Of Aberrant Contract Receivables, Thomas E. Plank

Chicago-Kent Law Review

Originators of traditional receivables, such as automobile loans, use securitization and structured finance debt transactions to obtain financing at lower net costs than traditional secured financing. The typical securitization or structured finance debt transaction combines (i) a sale of receivables to a separate, bankruptcy remote, special purpose legal entity (an “SPE”) and (ii) a loan to the SPE secured by the receivables. This combination produces lower net financing costs because the SPE’s lender can obtain repayment of its loan from the receivables while avoiding the costs that the Bankruptcy Code imposes on direct secured lenders to originators that could become …

Corporation Code Sections 309 And 1203: California Redefines Directors' Duties Towards Shareholders, Ernest F. Batenga, Mark Willis

Pepperdine Law Review

No abstract provided.

When The Government Attempts To Change The Board, Investors Should Know, William O. Fisher

Law Faculty Publications

In 2008 and 2009, the federal government effectively hired and fired directors at American International Group and Bank of America. At AIG, the government exercised its power through the ownership of voting stock, which meant that the company’s public securities filings revealed the government influence, though at times slowly and at times only by inference. At BofA, by contrast, the government imposed its will through an unpublished bank regulatory action, and no securities filing provided even a hint of the federal role. The fact that current law allows the government to secretly reconstitute the governing bodies of multi-billion-dollar, publicly traded …

Regulatory Conflicts: International Tender And Exchange Offers In The 1990s, John C. Maguire

Pepperdine Law Review

No abstract provided.

Mere Thieves, Robert Steinbuch

Maryland Law Review

No abstract provided.

Regulation A: Small Businesses’ Search For “A Moderate Capital”, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Small businesses are an important part of our national economy, accounting for as much as 40% of our total economic activity and providing society with important services and products.

Small businesses face daunting economic, structural, and legal impediments when they attempt to acquire external capital. The absence of financial inter-mediation services means that they are almost always on their own to find investors. Their small capital needs mean that their relative offering costs are often sky high. Federal and state securities rules significantly exacerbate these economic and structural disadvantages by imposing onerous and unwarranted conditions on their search for external …

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.

Civil Liability And Remedies In Ohio Securities Transactions, Keith A. Rowley

Scholarly Works

The Ohio Securities Act (“OSA”) was enacted in 1913 to “guard [ ] investors against fraudulent enterprises, to prevent sales of securities based only on schemes purely speculative in character, and to protect the public from swindling peddlers of worthless stocks in mere paper corporations.” The OSA, which is administered by the Ohio Division of Securities (“Division”) and enforced by both the Division and private litigants, regulates the sale and purchase of securities in Ohio. The OSA and the rules and regulations promulgated pursuant to it by the Division are designed both to encourage compliance by those who might otherwise …

The Overwhelming Case For Elimination Of The Integration Doctrine Under The Securities Act Of 1933, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

The thesis of this Article is that the Securities and Exchange Commission should entirely eliminate the integration doctrine from the Securities Act of1933. Under the integration doctrine, a single "offering" or "issue" of securities cannot be split. The doctrine is expensive for society and furthers no valid policy of the 1933 Act. More specifically, the doctrine does not promote investor protection but does retard capital formation, an outcome that is contrary to the presently articulated purposes of the 1933 Act.

Part II of this Article traces the history of the adoption of the integration doctrine both by the Commission and …

United States V. O'Hagan: The Supreme Court Abandons Textualism To Adopt The Misappropriation Theory, Amy E. Fahey

Fordham Urban Law Journal

This article analyzes the Supreme Courts ruling in United States v. O'Hagen holding that Section 10(b) of the Securities and Exchange Act can be applied to insider trading by corporate outsiders. The article argues that the Supreme Court incorrectly expanded the reach of the statute beyond that which Congress had intended.

The Concept Of Transaction As A Restraint On Resale Limitations, J. William Hicks

Articles by Maurer Faculty

No abstract provided.

Rule 145: Mergers, Acquisitions And Recapitalizations Under The Securities Act Of 1933, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

The most significant occurrence surrounding the adoption of Rule 145 was the repeal by the Securities and Exchange Commission of Rule 133, the conceptually deficient “no sale” rule that had perplexed commentators for years. In Rule 133, the Commission took the position that no offer or sale of a security was involved when, for example, a shareholder of a company to be acquired in a merger (an “acquired company”) voted whether to authorize the merger of the acquired company into an acquiring company (an “acquiring company”) in exchange for stock in the acquiring company. The purpose of this Article is …

Santa Fe Industries, Inc. V. Green: An Analysis Two Years Later, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

In 1977, the Supreme Court decided Santa Fe Industries, Inc. v. Green. Although the outcome of that decision should have surprised no one, since the trend of the Court clearly had been to constrict the scope of the federal securities legislation, the case was a major decision that will have a substantial impact on the development of corporate law in this country. Indeed, it may turn out to be one of the most significant corporate cases decided by the Supreme Court in recent years. Since by this point the dust has settled from the case, it seems appropriate to …

Definition Of Control In Secondary Distributions, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Section 2(11) of the Securities Act of 1933 (Act) generally subjects the sale of securities by a person "controlling an issuer" to the same rules that govern the sale of securities by an issuer. Accordingly, before a "control" person may sell the securities he holds in the controlled corporation he must either register them with the Securities and Exchange Commission (Commission) or qualify for an exemption from the registration requirement. While the Act clearly requires that a "control" person either register or qualify for an exemption, it fails to define "control." Thus, the task of defining has fallen to the …

Real Estate Investments As Securities: The Sufficiency Of The Howey Test Student Symposium - Interpreting The Statutory Definition Of A Security: Some Pragmatic Considerations., John W. Mcleod

St. Mary's Law Journal

The purpose of this article is to examine the kind of protection afforded to real estate investors through the securities acts passed the 1930s. The Supreme Court decision in SEC v. W.I. Howey Co. (1946) held that a security exists when (1) there is an investment of money (2) in a common enterprise (3) with profits to come solely from the efforts of others. This study considers the criticisms of Howey by two legal commentators of the late 1960s, Professor Coffee and Professor Long, in its examination of three main types of real estate investments: land syndications, condominiums, and cooperative …

Applying Securities Regulations To Sales Of Club Memberships Student Symposium - Interpreting The Statutory Definition Of A Security: Some Pragmatic Considerations., James P. Brennan

St. Mary's Law Journal

The term “association” ordinarily suggests a collective of people bound together in pursuit of a particular purpose. The purpose of many associations is to realize financial gain through investing members’ money under circumstances that may amount to the sale of a security by the association. There are various types of associations that sell club memberships. These transactions lie either within or without the scope of federal and state securities acts. In examining the substance of membership in an association, courts have identified the elements that determine whether a transaction is a security. The elements include the investment of a member’s …