What Were They Thinking? State Of Mind Puzzles In Insider Trading,
2023
Georgetown University Law Center
What Were They Thinking? State Of Mind Puzzles In Insider Trading, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
Insider trading law is famously incoherent, the well-recognized product of its piecemeal creation by the judiciary rather than Congress or (with exceptions) SEC rulemaking. Asking what the insider or tippee was thinking is both a doctrinal inquiry and an expression of exasperation aimed at those whose trading doesn’t seem worth the risk. This essay seeks to situate state of mind questions as they address both reasons for asking, and to show that the case law on the subject is even more puzzling than generally thought.
Conflicts Of Interest At An Organization’S Highest Authority: How The District Of Columbia’S Rules Of Professional Conduct Can Fail To Protect Private Organizations,
2023
Constangy, Brooks, Smith & Prophete LLP
Conflicts Of Interest At An Organization’S Highest Authority: How The District Of Columbia’S Rules Of Professional Conduct Can Fail To Protect Private Organizations, Christopher Deubert
Catholic University Law Review
This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous …
The Mechanics Of Share Repurchases Or How I Stopped Worrying And Learned To Love Stock Buybacks,
2023
Villanova University Charles Widger School of Law
The Mechanics Of Share Repurchases Or How I Stopped Worrying And Learned To Love Stock Buybacks, Richard A. Booth
Faculty Publications
Stock repurchases by issuing corporations have always been controversial. They have become even more so recently because of the perception that the excess funds used to finance them have come from tax cuts and other sources (such as government bailouts) that were intended to stimulate reinvestment or enhanced wages and benefits for workers. As a result, critics have proposed amendments to tax law that discourage buybacks (and possibly dividends as well). The theory is that the benefits of such distributions go mostly to executives (who are compensated in large part with equity) and to already wealthy stockholders. The controversy is …
Fraud-On-The-Market Liability In The Esg Era,
2023
William & Mary Law School
Fraud-On-The-Market Liability In The Esg Era, Kevin S. Haeberle
Popular Media
No abstract provided.
When Does A Non-Fungible Token (Nft) Become A Security?,
2023
University of West Florida
When Does A Non-Fungible Token (Nft) Become A Security?, Brian Elzweig, Lawrence J. Trautman
Georgia State University Law Review
Non-fungible tokens (NFTs) gained prominence in the news cycle during March 2021 when $69 million was paid in a cryptocurrency known as Ether for a unique digital art piece titled Everydays: The First 5000 Days. Regulating NFTs is complicated because the technology encompasses varied applications. Therefore, it is the particular use of a given NFT that will determine its appropriate regulatory regime. For example, NFTs may take the form of collectibles, data associated with a physical item, financial instruments, or permanent records associated with a person, such as marriage licenses or property deeds. Just like digital art in the form …
To Spac Or Not To Spac: Liberalizing The Regulation Of Capital Markets,
2023
Vanderbilt School of Law
To Spac Or Not To Spac: Liberalizing The Regulation Of Capital Markets, Allison N. Swecker
Vanderbilt Journal of Transnational Law
The merger and acquisition world has experienced an uptick in deal flow since 2016, reaching unprecedented levels in 2020 due to enhanced private equity funding and market volatility. While the market volatility spurred by COVID-19 halted traditional initial public offerings (IPOs), the special purpose acquisition company (SPAC) market exploded. The flurry of SPAC activity in the United States triggered the development of SPAC markets worldwide. Unfortunately, SPACs’ great rise to fame in the past few years has come at a cost-—fraud. As such, the US Securities and Exchange Commission (SEC) is left grappling with how to best regulate the market …
Taking Stock Of Startup Stock Options: Addressing Disclosure And Liquidity Concerns Of Startup Employees,
2023
Vanderbilt Law / Owen Graduate School
Taking Stock Of Startup Stock Options: Addressing Disclosure And Liquidity Concerns Of Startup Employees, John R. Dorney
Vanderbilt Law Review
U.S. capital markets are becoming increasingly private. Initial public offerings have steadily declined since the 1990s, and private companies are remaining private over twice as long as they have in the past. Furthermore, private company financing has reached unprecedented levels. Private securities offerings now greatly outpace the value of publicly traded securities. Additionally, recent regulatory changes seem to be accelerating this shift from the public to the private markets. One result of this shift is that private company valuations have grown immensely, so much so that private companies with valuations of over $1 billion exist and are known as “unicorns.” …
Regulatory Managerialism Inaction: A Case Study Of Bank Regulation And Climate Change,
2023
American University Washington College of Law
Regulatory Managerialism Inaction: A Case Study Of Bank Regulation And Climate Change, Hilary J. Allen
Scholarly Articles in Law Reviews & Journals
In November of 2029, Hurricane Penelope struck New York City as a category two storm. Work had started on a wall to protect Manhattan from rising sea levels and storm surges, but the work was incomplete, and significant damage to Manhattan real estate was sustained. While almost all that real estate was insured, insurance companies were compromised by the sheer magnitude of the losses. Even with significant federal subsidies, they were unable to meet their full commitments on insurance policies. Some commercial real estate firms, who had never really recovered from the shift to remote working during the Covid pandemic, …
The Evolution Of Chapter 11: How Corporate Restructuring Has Evolved And Its Important Role In The Recovery Of A Struggling Economy,
2023
DePaul University
The Evolution Of Chapter 11: How Corporate Restructuring Has Evolved And Its Important Role In The Recovery Of A Struggling Economy, Eduardo Cervantes
DePaul Business & Commercial Law Journal
No abstract provided.
Covid-19 Vs. Constitution; Limited Government's Unlimited Response,
2023
DePaul University
Covid-19 Vs. Constitution; Limited Government's Unlimited Response, John A. Losurdo
DePaul Business & Commercial Law Journal
No abstract provided.
The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable,
2023
DePaul University
The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable, Sheng Tong
DePaul Business & Commercial Law Journal
No abstract provided.
The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule,
2023
DePaul University
The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule, Jorge Brito Pereira
DePaul Business & Commercial Law Journal
No abstract provided.
All Stick And No Carrot? Reforming Public Offerings,
2023
New York University
All Stick And No Carrot? Reforming Public Offerings, Stephen J. Choi, Adam C. Pritchard
Law & Economics Working Papers
The SEC heavily regulates the traditional initial public offering. Those regulatory burdens fuel interest in alternative paths for private companies to go public, “regulatory arbitrage.” The SEC’s response to the emergence of alternatives, most recently SPACs and direct listings, has been to suppress them by imposing heightened liability under Section 11 of the Securities Act. The SEC’s treatment of the traditional IPO regulatory process as a one-size-fits-all regime ignores the weaknesses of this process, in particular the informational inefficiency of the book-building process. In this essay we argue that the agency’s focus in regulating issuers going public should be on …
Bearer Negotiable Instruments: Addressing A Financial Intelligence Gap And Identifying Criminogenic Weaknesses,
2023
CUNY Graduate Center
Bearer Negotiable Instruments: Addressing A Financial Intelligence Gap And Identifying Criminogenic Weaknesses, Hollis B. Kegg
Dissertations, Theses, and Capstone Projects
Bearer Negotiable Instruments (BNI) are a long-standing category of financial instruments used to transfer large amounts of money in ways that may not be subject to regulation, reporting, tracking, review, or oversight. There is limited information available on BNIs, and no evidence that any studies have been undertaken on BNIs alone, much less reported. Increasingly, BNIs are being used for illegal purposes including money laundering. This study gathers information about their characteristics, nature, purpose, legal status, and numbers. It also focuses on the crime risks associated with BNIs, the crime opportunities they facilitate, and the criminal weaknesses in the financial …
Critiquing The Sec's Ongoing Efforts To Regulate Crypto Exchanges,
2023
William & Mary Law School
Critiquing The Sec's Ongoing Efforts To Regulate Crypto Exchanges, Carol R. Goforth
William & Mary Business Law Review
Despite the so-called “Crypto Winter” in the spring of 2022, which saw a deep plunge in global crypto markets, interest in the appropriate way to develop, use, and regulate cryptoassets and crypto-based businesses continues to be high. In the United States, a Presidential Executive Order and multiple bills that seek to tackle various issues of crypto regulation are regularly highlighted in the news, suggesting the appropriate treatment of crypto is a growing national priority. Despite these discussions, which tend to focus on finding a balanced way to regulate those within the industry without stifling the technology, the Securities and Exchange …
Shareholder Inspection Rights: From Credible Basis To Rational Belief,
2023
University of Cincinnati College of Law
Shareholder Inspection Rights: From Credible Basis To Rational Belief, Lin (Lynn) Bai
Faculty Articles and Other Publications
Jurisdictions are split on the standard of proof for shareholder inspection lawsuits when inspections are for the purpose of investigating managerial misconduct. Delaware and its followers apply a credible basis standard that calls for extrinsic evidence, beyond mere suspicion, curiosity, or disagreement with management, to permit an inference of misconduct. A minority of jurisdictions require shareholders to show merely a rational belief that mismanagement likely happened. Rational belief can be satisfied by sound logic without referencing extrinsic evidence. The Delaware Supreme Court rejected rational belief for fear that a permissive standard would lead to a cascade of frivolous inspections, although …
Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions,
2023
Pepperdine University
Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks
Pepperdine Law Review
Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world’s largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland’s biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan’s Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. The unique characteristics of total return swaps and …
Angels And Devils: The Early Crypto Entrepreneurs,
2023
William & Mary Law School
Angels And Devils: The Early Crypto Entrepreneurs, Darian M. Ibrahim
Popular Media
No abstract provided.
Special Purpose Acquisition Companies: Wall Street’S Latest Shell Game,
2023
Gonzaga University School of Law
Special Purpose Acquisition Companies: Wall Street’S Latest Shell Game, Daniel J. Morrissey
Arkansas Law Review
Special Purpose Acquisition Companies (“SPACs”) have been called “Wall Street’s biggest gold rush of recent years.” In reality, they are just another version of an old strategy to exploit a loophole in the federal securities laws that issuers of stock have used to avoid full registration with the SEC, the federal agency set up to administer and enforce the securities laws. The SPAC process circumvents that important protection for investors by taking private firms public through the back door—merging them into shell corporations. Those are companies whose shares are widely held but have no operations or assets.
The Failure Of Market Efficiency,
2023
Texas A&M University School of Law
The Failure Of Market Efficiency, William Magnuson
BYU Law Review
Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …
