Securities Law Commons^™

Is Transparency The Answer? Reconciling The Fiduciary Duties Of Public Pension Plans And Private Funds, In 2016 Private Fund Report: Public Pension Plans And Private Funds - Common Goals, Conlicting Interests (2016), Cary Martin Shelby

Books and Chapters

Public pension plans manage over $3 trillion in assets on behalf of millions of state and local government workers across the country. The trustees of such plans (“Trustees”) invest the bulk of these assets into a variety of equities and bonds, with the hopes of earning sufficient returns to finance the retirement of these countless public sector workers. In recent years however, Trustees have grown more creative in selecting their underlying investment allocations. Alternative investments, such as hedge funds and private equity funds for example provide unique opportunities for Trustees to maximize returns, protect against declining markets, and to diversify …

The Case For A Uniform Definition Of A Leveraged Loan, Zachary L. Pechter

Florida State University Law Review

Over the past twenty years, leveraged loans and high yield bonds have converged into similar instruments, sparking a debate as to whether leveraged loans should be regulated as securities like high yield bonds. This Note recognizes problems with the current regulatory framework for leveraged loans and shows that leveraged loans are not securities and should not be regulated as such. Instead of regulating leveraged loans as securities, which would likely be more costly than beneficial and contrary to the SEC’s mission statement, the SEC should promulgate a uniform definition of a leveraged loan. This solution would alleviate problems such as …

A Place Of Their Own Crowds In The New Market For Equit Crowdfunding, Seth C. Oranburg

Law Faculty Scholarship

[Excerpt] "Is small better than large? When it comes to normative business law policy, many seem to think so. Many scholars attribute the 2007–08 financial crisis to mis-regulation of large banks. Many others attribute the subsequent economic recovery to jobs created by small businesses. While the “99%” protested big banks on Wall Street, the “Startup America” grassroots campaign for small business garnered political support for corporate-finance legislation. Within a two-year period, Congress passed the JOBS Act—which tripled private company shareholder limits, authorized federal equity crowdfunding, and created the “mini-IPO” Regulation A+— and the Dodd-Frank Act—which seeks to end “too big …

Justice Stevens And Securities Law, Lyman P.Q. Johnson, Jason A. Cantone

Scholarly Articles

In this Article, we tell the overlooked story of Justice Stevens's important role in Supreme Court securities law decisions. In Part I, where we briefly highlight Stevens's career before his 1975 appointment to the Supreme Court, we observe that we can identify no evident interest in or connection to federal securities law or the securities industry, making his contributions all the more remarkable. The only foreshadowing of his prolific opinion-writing on the subject of securities law was his voluminous writing of opinions, in general, while serving on the Seventh Circuit Court of Appeals. This commitment to authoring opinions stemmed, in …

Uncertain Futures In Evolving Financial Markets, Anita K. Krug

Articles

Today's publicly offered investment funds, including mutual funds, have ever more diverse investment strategies, as they increasingly invest in financial instruments that, in earlier years, had been the province of only the most sophisticated investors. Although the new landscape of investment possibilities may substantially benefit retail investors, one financial instrument attracting increasing amounts of retail investors' assets is acutely troublesome: the commodity futures contract. Futures originated as a means for farmers and other producers of agricultural commodities to ensure that their products could be sold at reasonable prices. Early on, the goals of futures regulation centered on one particular risk …

Friends With Benefits: Analyzing The Implications Of United States V. Newman For The Future Of Insider Trading, Tebsy Paul

American University Business Law Review

No abstract provided.

Sos: Saving The Secondary Mortgage Market From The Consumer Financial Protection Bureau’S Ability-To-Repay Rule, 49 J. Marshall L. Rev. 857 (2016), Laquenta Rudison

UIC Law Review

No abstract provided.

Food Speculation: Between Virtual . . . And Reality, Alexandra Esmel

American University International Law Review

No abstract provided.

International Securities And Capital Markets, Jennifer Y. Poon, Manfred Ketzer, Walter Stuber, Robert Lando, Audrey Kravets, Sandeep Parekh, Perry Wildes, Ayelet Krispin, Piyansena Perera, Mario Piana

The International Lawyer

No abstract provided.

Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, Colleen Powers

Fordham Urban Law Journal

No abstract provided.

Regulating The U.S. Treasury Market, Jerry W. Markham

Marquette Law Review

None

No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth

University of Michigan Journal of Law Reform

A circuit split between the Second Circuit’s 2014 decision, United States v. Newman, and the Ninth Circuit’s 2015 decision, United States v. Salman, illustrates problems in insider trading law dating back over thirty years to the Supreme Court’s decision in Dirks v. SEC. Dirks held that when a corporate insider provides information to an outside party who then trades on the information, it must be shown that the insider received some form of a personal benefit for providing the information in order to impute liability. The courts in Newman and Salman disagreed on the sort of evidence …

Introduction, Forrest S. Mosten

Cardozo Journal of Conflict Resolution

This special edition of the Cardozo Journal of Conflict Resolution reflects the current exciting state of the Family Dispute Resolution field, inside and outside of the law school academy. The articles selected for this portion of the issue carry on the vibrant dialogue that took place at the Cardozo Journal of Conflict Resolution's Annual Symposium "All in the Family: Intimate Parties, Intimate Issues and ADR". This Symposium, hosted at the Benjamin N. Cardozo School of Law on October 19, 2015, engaged scholars, practitioners, and students from across the country.

International Investment Law And The Extractive Industries Sector, Lise Johnson, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Since the 1990s, international investment law has been rapidly evolving, resulting in a complex web of over 3,000 investment treaties. These treaties have been used to challenge a wide range of host state actions and inactions that have allegedly negatively affected foreign investors or investments. Those challenges, in turn, expose host states to potentially significant financial costs, and can restrict the ability of such states to maximize the benefits, and limit the environmental and social harms, that can result from the exploitation of natural resources. This briefing note provides an introduction to international investment law, with a view to assisting …

The Enduring Legacy Of Modern Efficient Market Theory After Halliburton V. John, Mark Klock

Georgia Law Review

In 1988 the U.S. Supreme Court approved the fraud on the market theory for securities trading in an efficient market thus enabling securities class action plaintiffs to establish their required reliance element of the case through a rebuttable presumption. Basic v. Levinson held that efficient markets incorporate publicly disseminated information and investors who purchased or sold securities in an efficient market therefore relied on any publicly disseminated misinformation. For more than a quarter century since Basic, the efficient market theory has sustained a barrage of assaults from commentators who object to the use of economic theory in legal decision making …

The Historical Basis Of Securities Arbitration As An Investor Protection Mechanism, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Why do broker-dealers fear a legal system in which the firms' customers have a unilateral right to demand arbitration of disputes? That scenario would return the industry to the pre-McMahon years, when, because the enforceability of PDAAs with respect to federal securities laws was in doubt, most brokerage customers had such a unilateral right. In fact, the pre-McMahon history of securities arbitration, written about only sparsely, reveals that, today, the primary stakeholders in the process--investors and brokerage firms--have lost sight of the original reason why the securities industry heavily relied on arbitration to resolve industry disputes. While offering a speedy, …

The Role Of Corporate Governance In Curbing Foreign Corrupt Business Practices, Poonam Puri, Andrew Nichol

Osgoode Legal Studies Research Paper Series

The role of corporate and securities laws in addressing foreign corrupt business practices has, to date, received limited consideration. Departing from the substantial literature on the criminal and public law response to international corruption, the authors analyze Canada’s Corruption of Foreign Public Officials Act in comparison with British and American legislation and conclude that the Canadian regime relies too heavily on the use of criminal sanctions and fails to contemplate the role of behaviour modification in its legislative structure. Recognizing that multinational corporations are well placed to identify, expose and prevent corrupt business practices, the authors propose a private law …

Securities Regulation: 2016-17, Dale H. Lastman

Osgoode Course Casebooks

Course Number 2620

“Ev’Ry American Experiment Sets A Precedent”: Why One Florida State Court’S Bitcoin Opinion Is Everyone’S Business, Allison Caffarone, Meg Holzer

Scholarly Works

Part I of this article seeks to explain in largely non-technical terms the design of the Bitcoin network. Part II explains the guidance and administrative rulings provided by the United States Department of the Treasury's Financial Crimes Enforcement Network in relation to the issues in the Espinoza case. Additionally, Part II surveys different approaches taken by state legislatures and regulators in seeking to address decentralized virtual currencies, including bitcoin. Careful attention is paid to how the terms "monetary value" and "virtual currency" are defined, and how those definitions have been interpreted. Part II further explores the differences in the way …

Disciplining Corporate Boards And Debtholders Through Targeted Proxy Access, Michelle M. Harner

Indiana Law Journal

Corporate directors committed to a failed business strategy or unduly influenced by the company’s debtholders need a dissenting voice—they need shareholder nominees on the board. This Article examines the biases, conflicts, and external factors that impact board decisions, particularly when a company faces financial distress. It challenges the conventional wisdom that debt disciplines management, and it sug-gests that, in certain circumstances, the company would benefit from having the shareholders’ perspective more actively represented on the board. To that end, the Article proposes a bylaw that would give shareholders the ability to nominate direc-tors upon the occurrence of predefined events. Such …

Solving The Paradox Of Insider Trading Compliance, John P. Anderson

Journal Articles

Regulators demand the impossible when they require issuers to design and implement effective insider trading compliance programs because insider trading is a crime that neither Congress nor the Securities Exchange Commission has defined with any specificity. This problem of uncertainty is then compounded by the threat of heavy civil and criminal sanctions for violations. Placed between this rock and hard place, issuers tend to adopt overbroad insider trading compliance programs, which comes at a heavy price in terms of corporate culture, cost of compensation, share liquidity, and cost of capital. The irony is that, since all of these costs are …

When Does Corporate Criminal Liability For Insider Trading Make Sense?, John P. Anderson

Journal Articles

It is clear that not all insider trading is victimless, and not all employers of insider traders are innocent. But I am convinced that these critics are correct to point out that the current enforcement regime is absurdly overbroad in that it affords no principled guarantee to corporate victims of insider trading that they will not be indicted for the crimes perpetrated against them. The law should be reformed to ensure that corporations are only held criminally liable where they are guilty of some wrongdoing.

Beyond Dirks: Gratuitous Tipping And Insider Trading, Donna M. Nagy

Articles by Maurer Faculty

Did an investment banker who gratuitously shared material nonpublic information with his brother, with no expectation of receiving anything in return, commit securities fraud? And is the investment banker's brother-in-law jointly liable for trading securities on the basis of what he knew to be gratuitous tips? The Supreme Court is poised to answer those questions in Salman v. United States, after steering clear of insider trading law for nearly two decades. It has been even longer still since the Court last addressed securities fraud liability relating to stock trading tips-it articulated a "personal benefit" test for joint tipper-tippee liability in …

When May A Litigant Rely In Its Own Complaint On Allegations From Another Complaint? – Lipsky V. Commonwealth United Corp. And Its Progeny – Still An Unresolved Question, Laurence A. Steckman, Joseph T. Johnson

Touro Law Review

No abstract provided.

Linkages To The Resource Sector: The Role Of Companies, Governments, And International Development Cooperation, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

With support from GIZ, CCSI prepared a report titled "Linkages to the Resource Sector: The Role of Companies, Governments, and International Development Cooperation." It outlines options for how these stakeholders can increase the economic linkages to the extractive industries sector not only in terms of ‘breadth’ (number of linkages) but also in terms of ‘depth’ (local value added). Apart from providing the theoretical framework for linkage creation and an overview of existing literature on this topic, the study highlights successful case study examples. Recommendations are provided for the three types of stakeholders.

The Fifteenth Annual Albert A. Destefano Lecture On Corporate, Securities, & Financial Law At The Fordham Corporate Law Center, Frederick H. Alexander, Chris Cernich, Mark Lebovitch, Norman M. Monhait, Andrew J. Pincus

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Sec's Regulation A+: Small Business Goes Under The Bus Again, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Title IV of the JOBS Act, which is entitled "Small Company Capital Formation," requires the Securities and Exchange Commission to adopt new rules regarding offerings under Regulation A. The Commission has now adopted its final regulations implementing Title IV and providing a new regulatory regime for exempt offerings under Section 3(b) of the Securities Act of 1933. The new regime is generally referred to as Regulation A+.

Unfortunately, history and empirical data regarding the use of Regulation A and Regulation D strongly suggest that the final Regulation A+ rules are unlikely to provide any material relief for small businesses in …

Finra Dispute Resolution Task Force Releases Its Final Report, With Support For Mediation And Live Hearings, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Late in 2015, the FINRA Dispute Resolution Task Force, a group formed solely for the purpose of systematically assessing and critiquing securities arbitration, released its Final Report and Recommendations. The report contains 51 individual recommendations designed to improve FINRA's heavily-regulated dispute resolution program. Some recommendations offer specific details on implementation; others urge conceptual reform of a particular aspect of the arbitration process but leave FINRA to take care of fleshing out the details.

This article briefly describes the task force's formation; highlights its key recommendations (such as requiring mediation before arbitration of all claims-- subject to party opt-out, and introducing …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms' duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Paying High For Low Performance, Steven A. Bank, George S. Georgiev

Articles

This Essay argues that regulatory reforms in the area of executive compensation introduced by the Dodd-Frank Act of 2010 have not yet achieved their purpose of linking executive pay with company performance. The rule on shareholder say-on-pay appears to have had limited success over the five proxy seasons since its adoption. The rule on pay ratio disclosure, adopted in August 2015, and the rules on pay-versus-performance disclosure and the clawback of certain incentive compensation, proposed in April 2015 and July 2015, respectively, are also unlikely to succeed. For the most part, the rules are intuitive and well-intentioned, but a closer …