Securities Law Commons^™

Lowering The Cost Of Rent: How Ifrs And The Convergence Of Corporate Governance Standards Can Help Foreign Issuers Raise Capital In The United States And Abroad, Kyle W. Pine

Northwestern Journal of International Law & Business

Since the early 1990s the United States has experienced a dramatic growth in the number of foreign firms choosing to trade their shares in U.S. markets. Meanwhile, Europe and other markets have not experienced this effect to the same extent. there has been an observable worldwide growth in stock market capitalization since the 1990s with an increasing number of foreign issuers choosing to cross-list their shares abroad, usually in the United States. Traditional explanations for why firms choose to cross-list have focused primarily on access to trade in more liquid markets. A more convincing theory for why firms cross-list, attributed …

The Case For Semi-Strong-Form Corporate Scienter In Securities Fraud Actions, Paul B. Maslo

Michigan Law Review First Impressions

The mental state of scienter - intent to defraud - is a required element of a securities fraud claim. The scienter inquiry is fairly straightforward when the defendant is an individual. It is more complex when a corporate entity is involved because a corporation can only act through its agents; it has no mind of its own. This article compares the three approaches courts have used to impute scienter to corporate defendants in the securities fraud context and concludes by recommending the approach which strikes an appropriate balance between several dueling public policy concerns.

Voting Power Without Responsibility Or Risk: How Should Proxy Reform Address The Decoupling Of Economic And Voting Rights, Roberta S. Karmel

Villanova Law Review (1956 - )

No abstract provided.

Federal Courts Not Federal Tribunals, Lumen N. Mulligan

Faculty Works

The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase …

Fending For Themselves: Why Securities Regulations Should Encourage Angel Groups, Abraham J. B. Cable

Faculty Scholarship

No abstract provided.

Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan Mcleod Heminway

Villanova Law Review (1956 - )

The article discusses the lessons learned from the restructuring of the U.S. Securities and Exchange Commission (SEC) under the Sarbanes-Oxley Act. The strengths and weakness of the SEC reform measures are highlighted. Key reform proposals stemming from the global financial crisis and reform efforts being undertaken as of the spring of 2010 include overhauling or abolishing the SEC, managing the SEC through the Federal Reserve or the Department of the Treasury, and combining the SEC with the Commodity Futures Trading Commission (CFTC).

Fiduciary Obligations Of Broker-Dealers And Investment Advisers, Arthur B. Laby

Villanova Law Review (1956 - )

The article discusses fiduciary obligation that broker-dealers and investment advisers owe their clients. It addresses questions in ascertaining whether financial reform is needed. The fiduciary obligations imposed on brokers and advisers are examined. An analysis of whether fiduciary duties should be imposed on brokers providing advice is offered.

Moving Beyond The Clamor For Hedge Fund Regulation: A Reconsideration Of Client Under The Investment Advisers Act Of 1940, Anita K. Krug

Villanova Law Review (1956 - )

The article argues that a better approach for hedge fund regulation in the U.S. would be for law to regard private fund investors as clients of the managers of those funds. It discusses the regulatory regime governing investment advisers. The Investment Advisers Act of 1940 is tasked to regulate investment advisers and to require some investment advisers to be registered with the Securities and Exchange Commission (SEC).

One Nation, Under Securities Fraud: The Third Circuit Notches A Win For Federalism In In Re Lord Abbett Mutual Funds Fee Litigation, Ethan H. Townsend

Villanova Law Review (1956 - )

No abstract provided.

The Decline Of Investment Banking: Preliminary Thoughts On The Evolution Of The Industry 1996-2008, Robert J. Rhee

Journal of Business & Technology Law

No abstract provided.

Rethinking Board Function In The Wake Of The 2008 Financial Crisis, Nicola Faith Sharpe

Journal of Business & Technology Law

No abstract provided.

Corporate Governance And Securities Law Responses To The Financial Crisis, Lisa M. Fairfax

Journal of Business & Technology Law

No abstract provided.

Integrating The Financial Crisis In The Business Associations Course: Benefits And Pitfalls, Afra Afsharipour

Journal of Business & Technology Law

No abstract provided.

The Best Of Times, The Worst Of Times: Securities Regulation Scholarship And Teaching In The Global Financial Crisis, Joan Macleod Heminway

Journal of Business & Technology Law

No abstract provided.

Ignoring The Writing On The Wall: The Role Of Enterprise Risk Management In The Economic Crisis, Michelle M. Harner

Journal of Business & Technology Law

No abstract provided.

Examining Government Reform In The Wake Of The Financial Crisis

Journal of Business & Technology Law

No abstract provided.

The Road Not Taken: Rethinking Securities Regulation And The Case For Federal Merit Review, Daniel J. Morrissey

University of Richmond Law Review

No abstract provided.

An Examination Of The Government Accounting Standards Board, Christopher D. Jones

CMC Senior Theses

This thesis examines the Government Accounting Standards Board by considering its history, current structure, and treatment of a current accounting standards debate. It then uses this examination to make recommendations as to reforms of the GASB and government accounting.

Banks And Brokers And Bricks And Clicks: An Evaluation Of Finra's Proposal To Modify The "Bank Broker-Dealer Rule", Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

As discussed in this article, the proposed rule change protects bank customers who may be solicited for the purchase of investment products and services, but only to a limited extent. It does not rectify sales practices of broker-dealers--affiliated with financial institutions--which tend to confuse, and even mislead, financially unsophisticated investors of modest means who can least afford to be exposed to excessive risk. Additionally, the proposed rule change adds no meaningful surveillance, inspection, enforcement, or punitive mechanisms to prevent and/or redress insidious practices that are akin to “bait and switch” tactics and are particularly effective against financially unsophisticated investors. In …

Pleading A Loss Cause: Resolving The Pleading Standard For The Element Of Loss Causation In A Private Securities Fraud Claim And A Plaintiff's Heavy Burden Pleading It Under Iqbal, Jason N. Haycock

American University Law Review

No abstract provided.

Monitoring To Reduce Agency Costs: Examining The Behavior Of Independent And Non-Independent Boards, Anita Anand, Frank Milne, Lynnette Purda

Seattle University Law Review

Berle and Means’s analysis of the corporation—in particular, their view that those in control are not the owners of the corporation—raises questions about actions that corporations take to counter concerns regarding management’s influence. What mechanisms, if any, do corporations implement to balance the distribution of power in the corporation? To address this question, we analyze boards of directors’ propensity to voluntarily adopt recommended corporate governance practices. Because board independence is one way to enhance shareholders’ ability to monitor management, we probe whether firms with independent boards of directors (which we define as boards with either an independent chair or a …

Rethinking The Separation Of Ownership From Management In American History, Kenneth Lipartito, Yumiko Morii

Seattle University Law Review

In <em>The Modern Corporation and Private Property</em>, Adolf Berle and Gardiner Means would use AT&T as a prime example of what they saw as a dangerous new trend, the replacement of ownership-based capitalism with giant corporations controlled by a small group of propertyless managers. Indeed, AT&T became Berle and Means’ favorite example. . . . As we shall see, however, the claim that AT&T was a leading example of the separation of ownership from management is incomplete. More importantly, the common interpretation of Berle and Means’ work is mistaken, placing the emphasis incorrectly on the number of shareholders and reading …

In Praise Of Process: Examining The Sec, Rule 14a-8(I)(8), And Afscme V. Aig, Jena Martin

Faculty Articles

Part one of this essay will discuss the rule, including a brief analysis of proxy access generally and the "election exclusion" specifically. Part two will examine the AFSCME v. AIG case and the SEC's response thereto in more detail-discussing the arguments posited both for and against increased shareholder access, as well as the aftermath of the SEC's decision. Part three will analyze how the SEC's failure to change Rule 14a-8(i)(8) to allow greater shareholder access specifically caused one thread in the financial crisis-as a direct result of a loss of shareholder empowerment. Finally, part four offers an epilogue-a discussion of …

The Sitting Ducks Of Securities Class Action Litigation: Bio-Pharmas And The Need For Improved Evaluation Of Scientific Data, Stuart R. Cohn, Erin M. Swick

UF Law Faculty Publications

Rule 10b-5, a powerful weapon against any publicly-listed company whose share price drops on adverse news, is particularly skewed against pharmaceutical and other bio-technology companies (bio-pharmas). It is not a coincidence that there is a disproportionate number of class actions filed against bio-pharmas. The volume and complexity of data underlying most bio-pharma cases create enormous outcome uncertainties, settlement pressures, and potentially huge contingent liabilities over substantial periods of time. The vulnerability and risks that bio-pharmas face in Rule 10b-5 class actions are unique among all publicly-traded industries, yet many cases proceed along traditional grounds without courts employing either their statutory …

In Praise Of Process: Examining The Sec, Rule 14a-8(I)(8), And Afscme V. Aig, Jena Martin Amerson

Journal of Business & Technology Law

No abstract provided.

Shareholder Democracy And The Curious Turn Toward Board Primacy, Grant M. Hayden, Matthew T. Bodie

All Faculty Scholarship

Corporate law is consumed with a debate over shareholder democracy. The conventional wisdom counsels that shareholders should have more voice in corporate governance, in order to reduce agency costs and provide democratic legitimacy. A second set of theorists, described as “board primacists,” advocates against greater shareholder democracy and in favor of increased board discretion. These theorists argue that shareholders need to delegate their authority in order to provide the board with the proper authority to manage the enterprise and avoid short-term decision making.

In the last few years, the classical economic underpinnings of corporate law have been destabilized by a …

Is The Pcaob A "Heavily Controlled Component" Of The Sec?: An Essential Question In The Constitutional Controversy, Donna M. Nagy

Articles by Maurer Faculty

The U.S. Supreme Court recently heard oral arguments in Free Enterprise Fund v. Public Company Accounting Oversight Board, described by D.C. Circuit Judge Brett Kavanaugh as “the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years.” Established by Congress as the cornerstone of the Sarbanes-Oxley Act of 2002, the PCAOB was structured as a strong, independent board in the private sector, to oversee the conduct of auditors of public companies.

This Article challenges the D.C. Circuit’s depiction of the PCAOB as “a heavily controlled component” of the SEC, and …

Renegotiation Of Cash Flow Rights In The Sale Of Vc-Backed Firms, Brian Broughman, Jesse Fried

Articles by Maurer Faculty

Incomplete contracting theory suggests that VC cash flow rights - including liquidation preferences - may be subject to renegotiation. Using a hand-collected dataset of sales of Silicon Valley firms, we find common shareholders do sometimes receive payment before VCs' liquidation preferences are satisfied. However, such deviations tend to be small. We also find that renegotiation is more likely when governance arrangements, including the firm's choice of corporate law, give common shareholders power to impede the sale. Our study provides support for incomplete contracting theory, improves understanding of VC exits, and suggests that choice of corporate law matters in private firms.

Personal Jurisdiction Over Foreign Directors In Cross-Border Securities Litigation, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.

Securities Intermediaries And The Separation Of Ownership From Control, Jill E. Fisch

Seattle University Law Review

The Modern Corporation & Private Property is a paradigm-shifting analysis of the modern corporation. The book is perhaps best known for the insights of Berle and Means about the separation of ownership from control and the consequences of that separation for the allocation of power within the corporation. The Berle and Means story focuses on the shareholder as the owner of the corporation. Berle and Means saw the mechanism of centralized management—in which the shareholder retains the economic interest but not the control rights associated with ownership—as threatening the conception of shareholder interests in terms of property rights. In particular, …