Securities Law Commons^™

Back To The Future[S]: A Critical Look At The Film Futures Ban, Paul G. Anderson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

What Role For “Women,” “Men,” And Transpeople/Intersex People In Gender Equality: A Commentary, Edward D. Stein

Articles

This has been a very rich opening panel to what promises to be a terrific conference. The panelists' comments go in such varied directions that it is a challenge to be both a commentator and summarizer, especially when I have just a few minutes to speak. What I plan to do is say a little bit to draw together some of the themes that the panelists have been talking about that are connected to a couple of topics I have been working on while at the same time trying to look forward to some of the things I hope we …

Confidential Witnesses: The Reform Act And The Battle At The Pleading Stage, Ariel S. Lichterman

Cardozo Public Law, Policy & Ethics Journal

The note examines the role of confidential witnesses in securities litigation under the Private Securities Litigation Reform Act (PSLRA) and the Supreme Court's Tellabs v. Makor Issues & Rights, Ltd. decision. It highlights the challenges courts face in evaluating confidential witness statements, advocating for a balanced approach that considers both the necessity of such evidence and the prevention of abusive litigation. The analysis emphasizes the need for courts to align their methods with the holistic review mandated by Tellabs while addressing the tension between protecting anonymity and assessing credibility.

The False Modesty Of Department Of Revenue V. Davis: Disrupting The Dormant Commerce Clause Through The Traditional Public Function Doctrine, Edward A. Zelinsky

Articles

No abstract provided.

The Wisdom Of Crowds? Groupthink And Nonprofit Governance, Melanie B. Leslie

Articles

Scandals involving nonprofit boards and conflicts of interest continue to receive considerable public attention. Earlier this year, for example, musician Wyclef Jean's Yele Haiti charity became the target of intense criticism after the charity disclosed that it had regularly transacted business with Jean and entities controlled by Jean and other directors. Although scandals caused by self-dealing undermine public confidence in the charitable sector, they continue to erupt. Why do charitable boards sanction transactions with insiders?

This Article argues that much of the blame lies with the law itself. Because fiduciary duty law is currently structured as a set of fuzzy …

To Disclose Or Not To Disclose? Csx Corp., Total Return Swaps, And Their Implications For Schedule 13d Filing Purposes, Daniel Bertaccini

Cardozo Law Review

No abstract provided.

Canceling The Deal: Two Models Of Material Adverse Change Clauses In Business Combination Agreements, Robert T. Miller

Cardozo Law Review

In any large corporate acquisition, there is a delay between the time the parties enter into a merger agreement and the time the transaction is effected and the purchase price is paid. One effect of this delay is that the business or financial condition of one of the parties may deteriorate before the deal closes. When this happens to the target in a cash deal or to either party in a stock deal, the counterparty may conclude that the transaction is no longer attractive. Merger agreements typically protect counterparties against such contingencies through material adverse change (MAC) clauses. Under the …

What Due Diligence Dilemma? Re-Envisioning Underwriters' Continuous Due Diligence After Worldcom, Joseph K. Leahy

Cardozo Law Review

The recent WorldCom decision is widely believed to pose a "due diligence dilemma." This dilemma supposedly forces underwriters for large, established corporations to choose between their clients' desire to issue securities quickly in shelf-registered offering and the obligation to exercise reasonable care in due diligence. According to most commentators, the bar for due diligence set by WorldCom is simply too high to surmount during a shelf takedown. As a result, underwriters will either lose lucrative business or lose their defense to liability for misstatements or omissions in the offering document. And the stakes are high: in WorldCom, the underwriters …

Absent Class Members: Are They Really Absent? The Relationship Between Absent Class Members And Class Counsel With Regards To The Attorney-Client And Work Product Privileges, Mindi Guttmann

Cardozo Public Law, Policy & Ethics Journal

The note argues that absent class members in class action litigation do not have the same attorney-client or work product privileges as traditional clients due to the fundamentally different nature of their relationship with class counsel. It critiques the ambiguity in defining "client" and proposes clearer distinctions to address judicial confusion and ensure effective legal representation while protecting sensitive information.

The Flight To New York: An Empirical Study Of Choice Of Law And Choice Of Forum Clauses In Publicly-Held Companies' Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cardozo Law Review

We study choice of law and choice of forum in a data set of 2,882 contracts contained as exhibits in Form 8-K filings by reporting corporations over as six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. These material contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. They therefore provide evidence of efficient ex ante solutions to contracting problems. In prior work examining merger contracts, acquiring firms incorporated in Delaware tended to select Delaware law or a Delaware forum to govern disputes …

The Sec's 2006 Soft Dollar Guidance: Law And Economics, D. Bruce Johnsen

Cardozo Law Review

After some two years of deliberations, in July 2006 the SEC released its long-awaited Guidance on the scope of the "soft dollar safe harbor." Passed as part of the Securities Acts Amendments in May, 1975, the safe harbor has protected fund advisers and other money managers for over 30 years from criminal actions and civil suits for breach of fiduciary duty when they use client assets to pay more than the lowest available brokerage commissions in exchange for "brokerage and research services." During this time, the SEC has interpreted and reinterpreted the safe harbor's scope, largely owing to the public …

Challenging Class Action Bans In Mandatory Arbitration Clauses, F. Paul Bland Jr., Claire Prestel

Cardozo Journal of Conflict Resolution

After a brief summary of relevant Supreme Court doctrine, this article sets out the argument that exculpatory class action bans violate many states' generally applicable contract law and responds to several common corporate defenses offered in support of such bans.

One Share, One Vote And The False Promise Of Shareholder Homogeneity, Grant M. Hayden, Matthew T. Bodie

Cardozo Law Review

No abstract provided.

Accountability And Competition In Securities Class Actions: Why "Exit" Works Better Than "Voice", John C. Coffee Jr.

Cardozo Law Review

No abstract provided.

Sense And Sensibility In Securitization: A Prudent Legal Structure And A Fanciful Critique, Thomas E. Plank

Cardozo Law Review

No abstract provided.

Chim-Nir Flight Services V. Tel Aviv Stock Exchange, Edna Arbel, Eliezer Rivlin, David Cheshin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Petitioner is the holder of leasing rights on a real estate property, which is held in collateral by the Second and Third Respondent. According to the agreement between them, the payment for realizing the collateral will be divided in a portion of 75 per cent to the Second Respondent (HaPoalim Bank) and 25 per cent to the Third Respondent (Le’umi Bank). HaPoalim Bank …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Cardozo Law Review

No abstract provided.

Securitization And Its Discontents: The Dynamics Of Financial Product Development, Kenneth C. Kettering

Cardozo Law Review

This paper takes as its point of departure the financing technique referred to as "securitization," a close cousin of secured lending that has grown to enormous size since its origin more than two decades ago. The paper pursues two themes. One is a critique of the legal foundations of securitization, which includes a perspective on aspects of fraudulent transfer law that are well established historically but have been neglected in recent decades. The other is exploration of the implications of this product growing so vast despite its dubious legal foundations. In that regard, the paper explores two points of legal …

Who Can Be Against Fairness? The Case Against The Arbitration Fairness Act, Peter B. Rutledge

Cardozo Journal of Conflict Resolution

In this brief essay, I hope to lay out the case against the Arbitration Fairness Act. Part I of this Article addresses the "findings" on which the act is premised. It explains how in several respects the current research on arbitration flatly contradicts the premises animating those findings (in other respects, the data is incomplete, so the "findings" at best are better described as "untested hypotheses" or "assumptions"). Part II of this Article explains why postdispute arbitration is not a viable alternative to our present system of enforceable predispute arbitration clauses.

The Mediation Of Securities Class Action Suits, Jed D. Melnick, Daniel Weinstein, Michael Young, Mary Jo Barry, Max Berger, Michael Goodstein, Gregory Markel, Samuel H. Rudman, Alan Salpeter

Cardozo Journal of Conflict Resolution

On September 27, 2007, a packed Moot Court Room at the Benjamin N. Cardozo School of Law welcomed two prominent JAMS mediators, Judge Daniel Weinstein (Ret.) and Michael Young, Esq., to a symposium on the mediation of securities class actions. Judge Weinstein and Mr. Young were joined by a panel of distinguished practitioners from all sides of the securities class action bar, including plaintiffs' lawyers Max Berger and Sam Rudman, defense lawyers Gregory Markel and Alan Salpeter, and insurance carrier lawyers Mary Jo Barry and Michael Goodstein.

Securities Class Action Abuse: Protecting Small Plaintiffs' Big Money, Russell Kamerman

Cardozo Law Review

No abstract provided.

Sarbanes-Oxley: The Evidence Regarding The Impact Of Sox 404, Robert Prentice

Cardozo Law Review

No abstract provided.

The Development Of Federal Professional Responsibility Rules: The Effect Of Institutional Choice On Rule Outcomes, Jason Mehta

Cardozo Public Law, Policy & Ethics Journal

The article examines the critical issue of institutional choice in drafting professional responsibility rules for attorneys, focusing on the implications of the Sarbanes-Oxley Act of 2002. It argues that understanding which institution—Congress, administrative agencies, federal courts, or self-regulatory bodies like the ABA—should draft these rules is essential for effective reforms. The analysis evaluates the strengths and weaknesses of each institution, emphasizing factors such as authority, expertise, and susceptibility to external influence. The article ultimately advocates for delegation to institutions with greater institutional competence, depending on the context, to ensure balanced and effective rulemaking.

The Group Dynamics Theory Of Executive Compensation, Michael B. Dorff

Cardozo Law Review

No abstract provided.

Remarks: Enron And Multi-Jurisdictional Fraud, John R. Kroger

Cardozo Law Review

No abstract provided.

Difficult, Duplicative And Wasteful?: The Nasd's Prohibition Of Class Action Arbitration In The Post-Bazzle Era, Matthew Eisler

Cardozo Law Review

No abstract provided.

The New Stage Of Corporate Governance Litigation: Section 220 Demands - Reprise, Stephen A. Radin

Cardozo Law Review

No abstract provided.

Barbarians At The Ballot Box: The Use Of Hedging To Acquire Low Cost Corporate Influence And Its Effect On Shareholder Apathy, Jonathan J. Katz

Cardozo Law Review

No abstract provided.

The Economic Value Of Securities Regulation, Frank B. Cross, Robert A. Prentice

Cardozo Law Review

No abstract provided.

Who Will Control Frankenstein?: The Korean Chaebol's Corporate Governance, Jeong Seo

Cardozo Journal of International and Comparative Law

In a chaebol, because a dominant family exercises control with only a small equity-holding, a sharp disparity exists between cashflow rights and voting rights. The controller reduces managerial agency costs but creates his own agency costs. Furthermore, the disparity exacerbates the controller's agency costs. Outsider shareholders' voting rights are ineffectual in eradicating this problem. Therefore, external monitoring devices over the chaebol controller are required.

Korea has relied on government regulation-including attempts to change chaebols' ownership structures-to address this problem. Unfortunately, without well-functioning capital markets, the regulation has proved ineffective. As observed in the SK scandal, a market for …