Securities Law Commons^™

Midnight In The Garden Of Ne Bis In Idem: The New Urgency For An International Enforcement Mechanism, Thomas J. Bussen

Cardozo Journal of International and Comparative Law

The article examines the challenges posed by the global proliferation of antibribery laws, particularly the Foreign Corrupt Practices Act (FCPA) and similar international laws, which have led to overlapping prosecutions of multinational companies (MNCs) for the same offenses. This phenomenon, termed "da mihi quoque" or "me too" prosecutions, results in significant financial and reputational costs for companies. The article argues that while these laws aim to combat corruption, their broad jurisdictional reach and uneven enforcement may inadvertently harm economic opportunities and governance systems in developing countries. It advocates for a more coordinated and balanced approach to enforcement to address these …

Rethinking Regulation Fair Disclosure And Corporate Free Speech, Susan B. Heyman

Cardozo Law Review

In a significant departure from the disclosure regime created by the insider trading rules of the Securities and Exchange Act of 1934 (Exchange Act), Regulation Fair Disclosure (Reg FD) forces publicly traded companies to make simultaneous public disclosure of any information they make available to analysts or institutional investors. The rule gives issuers a choice: make public disclosure or don't disclose to anyone. Reg FD targets the transmission of information, rather than any actual trading based on that information. Unlike the insider trading rules, Reg FD is not an anti-fraud provision and the government can assert a claim without establishing …

Trusting Strangers: Dispute Resolution In The Crowd, Anjanette H. Raymond, Abbey Stemler

Cardozo Journal of Conflict Resolution

Hoping to be the next Pebble, entrepreneurs and businesses have flocked to various crowdfunding platforms to contribute dollars to fund initial launches of products and other investments. As readers are undoubtedly aware, Kickstarter was the first and bestknown crowdfunding website, having helped to launch more than 95,000 projects to date. On March 3, 2014, Kickstarter reported that it passed $1 billion in pledges with over 5.7 million people donating to creative projects. There are currently over 800 crowdfunding platforms, with the bulk of dollars contributed going to social campaigns. Of course, as donations grew and the number of backers surged, …

Intellectual Property Securitization, Dov Solomon, Miriam Bitton

Cardozo Arts & Entertainment Law Journal

This Article aims to explore the securitization of intellectual property [hereinafter "IP"], introducing the promise of said financing method in the growing field of IP. In recent years, IP has become a major component of developed economics. Raising funds for research, development, and the creation of new inventions and works of authorship has never been an easy task. This Article, therefore, presents a review of securitization in the field of IP and in doing so makes a few major contributions. It offers a thorough discussion of securitization, its benefits, and its prominence over more traditional methods of financing, such as …

Introduction: Data Breaches: Moving Forward, Practically, Cindy E. Zuniga

Cardozo Law Review de•novo

Cardozo Law Review de•novo’s online symposium: Data Breaches: Moving Forward, Practically focuses on proactive steps that policymakers, regulators, the judiciary, and businesses can take to address the array of issues arising from data breaches. The online symposium features articles from Lauren Henry, Adam Lamparello, Peter Yu, and David Thaw.

Where Do We Fight?: A Way To Resolve The Conflict Between A Forum Selection Clause And Finra Arbitration Rule 12200, Suleman Malik

Cardozo Journal of Conflict Resolution

First, Section II summarizes the historical background of the dispute between Goldman Sachs & Co. ("Goldman Sachs") and Golden Empire Schools Financing Authority ("Golden Empire"). Second, Section II identifies the forum selection and merger clauses from the 2004 Broker-Dealer Agreement at issue in Golden Empire. Third, Section II provides a brief background of FINRA and its rules and regulations most pertinent to this dispute, mainly FINRA Rule 12200. Fourth, Section II discusses the emerging circuit split and explains the holdings from each of the circuits. As discussed more fully below, Golden Empire marks a growing circuit split over the availability …

Blockchain: A Proposal To Reform High Frequency Trading Regulation, Christina Batog

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Improbable Birth And Conceivable Death Of The Securities Arbitration Clinic, Jill Gross

Cardozo Journal of Conflict Resolution

This Article explores the birth, life, and possible death of SACs in the United States. Part II of this Article describes the history of the securities arbitration clinic in the United States. Part III describes how a SAC operates and how SAC students help investors. Part IV reviews the pedagogical advantages and disadvantages of a SAC, and addresses the reluctance of many law schools to embrace this type of clinic. Part V concludes by predicting whether these clinics have a future in light of the modern challenges to clinical legal education.

Opening The Floodgates Of Small Customer Claims In Finra Arbitration: Finra V. Charles Schwab & Co., Inc., Teresa J. Verges

Cardozo Journal of Conflict Resolution

When the Supreme Court held over twenty-five years ago that customers could be compelled to arbitrate their federal securities claims against their brokers, the vast majority of financial firms in the U.S. inserted pre-dispute arbitration provisions ("PDAAs") in agreements with their customers requiring them to arbitrate any claims arising out of their brokerage relationship. Since Sheerson/ Am. Express, Inc. v. McMahon, investor advocacy groups, scholars, and legislators have called for Congressional action to eliminate mandatory arbitration in securities cases, but the closest Congress has come to such elimination has been to punt this issue to the Securities and Exchange …

The Sec Adds A New Weapon: How Does The New Admission Requirement Change The Landscape?, Paul Radvany

Cardozo Journal of Conflict Resolution

This Article will examine the SEC's revised settlement policy in the aftermath of Judge Rakoff's concerns about the SEC's longstanding "no admit, no deny" policy. In order to determine the import of the SEC's new settlement policy on the conduct of companies, as well as ongoing investigations and cases, this Article will also include analysis from lawyers who have advised their clients on the SEC's policy change.

Part II provides an overview of the SEC and its Enforcement Division, and describes the SEC's prosecutorial discretion. Part III examines Judge Rakoff's decisions in SEC v. Bank of Am. Corp.1 4 and …

The Pepperdine Model: Learn First-Then Practice, Robert A. Uhl, Judith Hale Norris

Cardozo Journal of Conflict Resolution

On January 8, 2010, FINRA's Investor Education Foundation awarded Pepperdine University School of Law's Straus Institute for Dispute Resolution a grant of $250,000 to establish a comprehensive clinical education program in investor advocacy.

Substance Vs. Form: Rethinking The Scope Of Dodd-Frank's End-User Clearing Exception In Light Of Systemic Risk, David Hamid

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Municipal Securities: The Crisis Of State And Local Government Indebtedness, Systemic Costs Of Low Default Rates, And Opportunities For Reform, Christine Sgarlata Chung

Cardozo Law Review

No abstract provided.

The Role Of Mediation And Insurance In Bet The Company Litigation, Jed Melnick

Cardozo Journal of Conflict Resolution

When most of us graduate from law school, we are not able to read or understand our own car insurance policy, and yet the resolution of most commercial litigation would not happen without the involvement of insurance. The reality is that, in the context of class actions and "bet the company" litigation, insurance is usually the sole source of funds used to resolve the dispute. What follows is the transcript from a panel discussion that took place on February 9, 2012 at Cardozo Law School entitled, "The Role of Mediation and Insurance in Bet the Company Litigation." The idea behind …

Illuminating Corruption Pathways: Modifying The Fcpa's "Grease Payment" Exception To Galvanize Anti-Corruption Movements In Developing Nations, Ivan Perkins

Cardozo Journal of International and Comparative Law

The article argues that the Foreign Corrupt Practices Act (FCPA) should be modified to require companies to report "grease payments," small bribes intended to expedite routine government actions. This change aims to enhance transparency, align U.S. law with stricter international standards, and combat corruption more effectively. The proposal suggests that mandating disclosure of such payments to the Department of Justice (DOJ), which would then publish the information online, would help activists, journalists, and foreign governments identify and address corruption. While the article acknowledges potential challenges, such as companies circumventing reporting or facing reputational risks, it emphasizes the long-term benefits of …

Is There Blood On Your Hands-Free Device?: Examining Legislative Approaches To The Conflict Minerals Problem In The Democratic Republic Of Congo, Emily Veale

Cardozo Journal of International and Comparative Law

The article argues that Section 1502 of the Dodd-Frank Act, which mandates SEC disclosures for conflict minerals, is insufficient to address the violence and governance issues in the Democratic Republic of the Congo (DRC). It advocates for comprehensive legislation that ties U.S. foreign assistance to specific reforms in the DRC, such as military and governance improvements, to effectively combat the conflict minerals crisis. The SEC’s role in promoting social and foreign policy goals is critiqued, and the article proposes a tiered incentive system to encourage meaningful change in the DRC’s mining sector.

Critique Of Money Judgment Part Three: Restraining Notices, David G. Carlson

Articles

New York is virtually unique in permitting lawyers to issue court orders restraining debtors and third parties from conveying away any assets that could be used to satisfy a money judgment. In effect, these orders command the recipient to do nothing, whereas a turnover or garnishment orders the recipient to do something — pay the creditor or sheriff or surrender illiquid property to the sheriff. The weakness and strength of this debt collection tool is assessed at length. The Article also analyzes in detail New York’s Exempt Income Protection Act, enacted in 2008 to force banks to protect the exempt …

Exchanging Shares To Settle A Lawsuit: Should A Confidentiality Agreement Bar Evidence Of Securities Fraud?, Christopher Tao

Cardozo Journal of Conflict Resolution

Suppose that two parties enter into a mediated written settlement, but in a subsequent court proceeding, one party claims to have discovered evidence clearly establishing fraud by the opposing party during the mediation process. When a court has to determine whether or not to enforce a negotiated settlement, do mediation confidentiality rules permit the court to admit one party's evidence of the other party's fraud or misrepresentations during the mediation?

The Twilight Of Equity Liquidity, Jeff Schwartz

Cardozo Law Review

This Article argues that U.S. equity markets fail to offer a satisfactory listing venue for emerging firms. I contend that this lacuna is a manifestation of a flawed structure of equity-market regulation and that this void undermines entrepreneurship, jeopardizes the future of U.S. equity markets, and weakens the broader U.S. economy. To close this gap and respond to these concerns, I recommend a new theoretical structure for regulating equity markets. Under the "lifecycle model" I propose, regulations would adapt to firms as they age. The key change would be to establish a market specifically for newly-public young firms, where they …

Citizen Petitions: An Empirical Study, Michael A. Carrier, Daryl Wander

Cardozo Law Review

In recent years, brand-name drug companies have engaged in an array of conduct that has delayed generic competition. While some of the activity - such as settlements between brand and generic firms and "product hopping" from one drug version to another - has received attention, another behavior has, until now, flown under the radar.

This Article examines the activity of "citizen petitions." A citizen petition is a request for the U.S. Food and Drug Administration (FDA) to take an action such as evaluating a drug's safety or effectiveness. When used appropriately, it could raise awareness of legitimate concerns with a …

The Foreign Corrupt Practices Act And New Governance: Incentivizing Ethical Foreign Direct Investment In China And Other Emerging Economies, Michael B. Runnels, Adam M. Burton

Cardozo Law Review

No abstract provided.

Variable Interest Entity Structures In The People's Republic Of China: Is Uncertainty For Foreign Investors Part Of China's Economic Development Plan?, David Schindelheim

Cardozo Journal of International and Comparative Law

No abstract provided.

Mad Money: Wall Street's Bonus Obsession, Jeanne L. Schroeder

Cardozo Law Review

No abstract provided.

Laughing Out Loud: Art, Culture, And Fantasy, Henrietta L. Moore

Cardozo Law Review

What makes art valuable? Why in times of crisis do people buy contemporary art? This Paper discusses whether or not investment in art can ever be seen as rational, and explores how the contemporary art market is expanding to include not just works of art, but art as a form of cultural practice. Audiences are no longer content simply to visit museums, galleries, and other cultural institutions. They want to participate, but why are art fairs, biennials, and museum events so popular? The contemporary art market has always been segmented, and reputation and display have been important motivators for rich …

Procedure In Eclipse: Group-Based Adjudication In A Post-Conception Era, Myriam E. Gilles

Articles

No abstract provided.

Read Between The Lines: Why Recent Ilsa Litigation Is Bad For Business And Contravenes Congressional Intent, Joseph Einav

Cardozo Law Review

No abstract provided.

Stimulating Long-Term Shareholding, Emeka Duruigbo

Cardozo Law Review

This Article answers, in the affirmative, two core research questions: do we need long-term shareholders and can we find them? The economy needs long-term shareholders to provide prudent and profitable patient capital, generate an antidote to corporate short-termism, and spearhead managerial accountability. Finding these shareholders requires a structure that provides the right environment and incentives for such investment. This Article presents a novel application of the trust fund theory - the dominant philosophical paradigm of American corporate finance in the nineteenth century - as a vehicle for stimulating long-term shareholding. The central features of the reformulated trust fund theory include …

Is The Third Time The Charm? Janus And The Proper Balance Between Primary And Secondary Actor Liability Under Section 10(B), Elizabeth Cosenza

Cardozo Law Review

On June 13, 2011, in a 5-4 ruling that has generated much criticism, the Supreme Court decided Janus Capital Group, Inc. v. First Derivative Traders, a landmark case establishing the limits of secondary actor liability under section 10(b) of the Securities Exchange Act of 1934 (Exchange Act). Following Janus, investment managers who deceive and manipulate their shareholders no longer face the prospect of liability under section 10(b) as long as those managers perpetrate their fraud through the mutual fund itself which is, in essence, a business trust. More importantly, the decision holds that liability under section 10(b) may …

Taming The Hydra Of Derivatives Regulation: Examining New Regulatory Approaches To Otc Derivatives In The United States And Europe, Daria S. Latysheva

Cardozo Journal of International and Comparative Law

The note examines the regulatory responses to the 2008 financial crisis, focusing on derivatives markets in the US and EU. It argues that while both the Dodd-Frank Act and the EU Proposal aim to enhance oversight and transparency, the EU's structured and centralized approach is more effective in achieving comprehensive regulation. The US framework, relying heavily on agency rulemaking and fragmented jurisdiction between the CFTC and SEC, risks inefficiencies and regulatory gaps, whereas the EU Proposal’s detailed provisions and centralized decision-making provide a more cohesive framework for reducing systemic risk.

A New Breath Of Life For Private Rule 10b-5(B) Litigation After Stoneridge: Sec V. Tambone And Implied Statements By Collateral Actors, David R. Allen

Cardozo Law Review

No abstract provided.