Securities Law Commons^™

Leveraging Extractive Industry Infrastructure Investments For Broad Economic Development: Regulatory, Commercial And Operational Models For Railways And Ports, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for mineral railways and ports.

Addressing Climate Change Mitigation And Adaptation Through Insurance For Overseas Investments: The Example Of The U.S. Overseas Private Investment Corporation, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In 2008, the United Nations Framework Convention on Climate Change (UNFCCC) estimated that investments of between US$540–570 billion in physical assets and other financial flows will be needed to adequately reduce global greenhouse gas (GHG) emissions to combat climate change; additionally, tens and possibly hundreds of billions of dollars may be necessary to enable countries to adapt to the phenomenon’s challenges. Through climate negotiations under the UNFCCC in Copenhagen and Cancun, developed country governments committed to provide developing countries roughly US$30 billion between 2010 and 2012 and to mobilize approximately US$100 billion per year by 2020 for climate change activities. …

Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett

Cornell Law Faculty Working Papers

One way or another, the European Monetary Union (EMU) is apt to endure. The prospect of continuation under the precise contours of the regime as we presently find it, however, is anything but certain. Hence many investors and other actual or prospective contract parties are likely to remain skittish until matters grow clearer. This skittishness, importantly, can itself hamper the prospect of expeditious European recovery. Addressing particular sources of ongoing uncertainty about EMU prospects can itself therefore aid in the project of recovery.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty …

Arbitration Case Law Update 2012, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act (FAA). This chapter identifies recent decisions by the Supreme Court under the FAA, as well as selected lower court decisions that could have an impact on securities arbitration practice.

Allocating Loss In Securities Fraud: Time To Adopt A Uniform Rule For The Special Case Of Ponzi Schemes, Grant Christensen

William & Mary Business Law Review

The global financial crisis precipitated a condensing of capital and a fall in global equities markets that not only resulted in the necessity of government bailouts of the financial industry, but also exposed a number of Ponzi schemes that collectively will cost investors tens of billions of dollars. With a new wave of litigation by innocent investors against Ponzi scheme operators just beginning, and likely to take years to finish, it becomes important to clearly identify the methodologies used to value the loss and allocate existing assets among the remaining creditors. To that end, this Article argues that courts ought …

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 …

It's Payback Time, Or Is It?: An Argument To Apply Universal Heightened Standards To All Employee Stock-Based Individual Account Programs In The Post-Enron Era And Why Sarbanes-Oxley's Preventive Measures Do Not Adequately Protect Employee Investor Interests, Sarah Y. Rifaat

Pepperdine Law Review

No abstract provided.

Conflicting Currents: The Obligation To Maintain Inviolate Client Confidences And The New Sec Attorney Conduct Rules, Keith Paul Bishop, James F. Fotenos, Steven K. Hazen, James R. Walther, Nancy H. Wojtas

Pepperdine Law Review

No abstract provided.

Investors Win: Howsam V. Dean Witter Reynolds, Inc. Makes Entering Arbitration Quicker, Easier, And Less Expensive, Peter J. Smith Iv

Pepperdine Dispute Resolution Law Journal

In securities arbitration disputes, a split in the federal circuits arose over whether an arbitrator or a court should determine if the National Association of Securities Dealers Code of Arbitration Procedure ("NASD Code") Section 10304 barred the bringing of a claim that was more than six years old. While some courts have held the issue was a procedural one for the arbitrator to decide, others have held that it was a substantive issue for the courts to decide. Obviously, the resolution of the time eligibility rule by the court delays the resolution of the dispute diminishes the benefits and duplicates …

Selective Disclosure: The Abrogation Of The Attorney-Client Privilege And The Work Product Doctrine, Zach Dostart

Pepperdine Law Review

No abstract provided.

Who Should Do The Math? Materiality Issues In Disclosures That Require Investors To Calculate The Bottom Line, Stefan J. Padfield

Pepperdine Law Review

Corporations sometimes tread a fine line by disclosing the data necessary to calculate the bottom line impact of a particular set of facts, while failing to disclose the bottom line itself. For example, in 2002, Merck & Co., Inc., disclosed that one of its subsidiaries had recognized as revenue co-payments it never actually received, but failed to disclose that the total amount so recognized was $5.54 billion for the year 2001. When plaintiffs challenge such incomplete disclosure, courts routinely dismiss their claims based upon what I call the Simple Math rule. The Simple Math rule states that, assuming a material …

Say On Pay And The Sec Disclosure Rules: Expressive Law And Ceo Compensation , Sandeep Gopalan

Pepperdine Law Review

The debate over the lack of correlation between CEO compensation and performance has caused a divide amongst corporate law scholars. Proponents of intervention have predictably welcomed the legislative activity and have called for more. This article argues that the legislative and regulatory interventions by the state are in furtherance of the expressive functions of the law, and that even in the absence of sanctions such expressive laws can have an affect on behavior. It argues that while legislative and regulatory actions can express certain norms, they are ultimately unlikely to be of much help in behavior modification unless accompanied by …

Mexico And The Settlement Of Investment Disputes: Icsid As The Recommended Option, Bernardo Sepúlveda

Pepperdine Dispute Resolution Law Journal

The changes that have taken place in arbitration conditions, the greater fairness in the arbitration process, and the increasingly stringent qualifications to be met by arbitrators, as well as contemporary economic realities, have been instrumental in causing Mexico's about-face on its approach to arbitration. Although in certain quarters doubts remain in Mexico as to the advantages of international arbitration, it would be ill advised to ignore a legal and political reality. In signing treaties that include an arbitration clause, Mexico has assumed rights and obligations. Politically speaking, a border has already been crossed. In the face of this indisputable fact, …

Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis

Pepperdine Dispute Resolution Law Journal

This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …

Insider Trading, Informed Trading, And Market Making: Liquidity Of Securities Markets In The Zero-Sum Game, Stanislav Dolgopolov

William & Mary Business Law Review

This Article reexamines the nexus of relationships among informed transactions, information asymmetry, and liquidity of securities markets in the context of public policy debates about insider trading and its regulation.The Article analyzes this nexus, with the emphasis on recent empirical studies and developments in the securities industry, from a variety of perspectives and considers the validity of the alleged link between insider trading—as opposed to other forms of informed trading—and market liquidity as a justification for the existence of regulation.

Federal Discovery Stays, Gideon Mark

University of Michigan Journal of Law Reform

In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue …

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 …

The Quest For Financial Regulatory Reform: Will A Uniform Fiduciary Standard Guide The Way?, Bonnie M. Treichel

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Rating Agencies: Where We Have Been And Where Do We Go From Here?, Joshua D. Krebs

The Journal of Business, Entrepreneurship & the Law

The credit rating agencies are supposed to be gatekeepers to the public securities markets. As “gatekeepers,” they are reputational intermediaries in the investment process. Other gatekeepers include: independent auditors, credit rating agencies, securities analysts, investment bankers, and attorneys. The function of these reputational intermediaries is to act as neutral third party advisors to the investment process. While these intermediaries are paid for their opinions by one or more parties to a transaction, in theory the opinions will be neutral. This is due to the thought that any resulting reputational damage from non-neutral opinions would severely damage long-term profitability, in exchange …

L3cs: The Next Big Wave In Socially Responsible Investing Or Just Simply Too Good To Be True?, David J. Schwister

The Journal of Business, Entrepreneurship & the Law

No abstract provided.