Class-Action Tolling, Federal Common Law, And Securities Statutes Of Repose: A Recommendation,
2015
University of Idaho College of Law
Class-Action Tolling, Federal Common Law, And Securities Statutes Of Repose: A Recommendation, Wendy Gerwick Couture
Articles
This Essay focuses on a narrow, but potentially outcome determinative, question: Does the filing of a securities class action toll the three-year outer time limit applicable to claims under sections 11 and 12(a)(2) of the Securities Act and the five-year outer time limit applicable to claims under section 10(b) of the Securities Exchange Act, such that potential class members-after a decision on class certification-can assert an individual federal action, even if those outer time limits would have elapsed absent tolling? There is currently a circuit split on this issue, with the Tenth Circuit answering "yes" and the Second Circuit answering …
Global Systemic Risk And International Regulatory Coordination: Squaring Sovereignty And Financial Stability,
2015
University of New South Wales
Global Systemic Risk And International Regulatory Coordination: Squaring Sovereignty And Financial Stability, Federico Lupo-Pasini, Ross P. Buckley
American University International Law Review
No abstract provided.
It's Not Just About The Money: A Comparative Analysis Of The Regulatory Status Of Bitcoin Under Various Domestic Securities Laws,
2015
American University Washington College of Law
It's Not Just About The Money: A Comparative Analysis Of The Regulatory Status Of Bitcoin Under Various Domestic Securities Laws, Vesna Harasic
American University Business Law Review
No abstract provided.
Closed-End Fund Ipo Considerations,
2015
Barry University
Closed-End Fund Ipo Considerations, Benjamin P. Edwards
Faculty Scholarship
No abstract provided.
Materiality And A Theory Of Legal Circularity,
2015
University of Idaho College of Law
Materiality And A Theory Of Legal Circularity, Wendy Gerwick Couture
Articles
This Article argues that the materiality doctrine, which lies at the heart of securities fraud, has the potential to operate as a self-fulfilling prophecy. This Article labels this phenomenon "legal circularity." In order to place the potential legal circularity of materiality in context among the various other legal doctrines that share this potential, this Article proposes a two part Theory of Legal Circularity. First, this Article proposes the following Legal Circularity Test to identify potentially circular doctrines: A legal doctrine is potentially circular if: (1) the legal doctrine incorporates the behavior or attitude of a population or person, either hypothetical …
Professor Alan R. Bromberg And The Scholarly Role Of The Treatise,
2015
University of Idaho College of Law
Professor Alan R. Bromberg And The Scholarly Role Of The Treatise, Wendy Gerwick Couture
Articles
No abstract provided.
False Statements Of Belief As Securities Fraud,
2015
University of Idaho College of Law
False Statements Of Belief As Securities Fraud, Wendy Gerwick Couture
Articles
No abstract provided.
Corporate Law And The Limits Of Private Ordering,
2015
Duke Law School
Corporate Law And The Limits Of Private Ordering, James D. Cox
Faculty Scholarship
Solomon-like, the Delaware legislature in 2015 split the baby by amending the Delaware General Corporation Law to authorize forum-selection bylaws and to prohibit charter or bylaw provisions that would shift to the plaintiff defense costs incurred in connection with shareholder suits that were not successfully concluded. The legislature acted after the Boilermakers Local 154 Retirement Fund. v. Chevron Corp ATP Tour, Inc. v. Deutscher Tennis Bund, broadly empowered the board vis-à-vis the shareholders through the board’s power to amend the bylaws. Repeatedly the analysis used by each court referenced the contractual relationship the shareholders had through the articles of …
When Governments Write Contracts: Policy And Expertise In Sovereign Debt Markets,
2015
Duke Law School
When Governments Write Contracts: Policy And Expertise In Sovereign Debt Markets, W. Mark C. Weidemaier, Mitu Gulati, Anna Gelpern
Faculty Scholarship
At least three times in the past two decades, national governments and institutions at the regional and international levels have tried to reform sovereign bond contracts to facilitate debt restructuring. Increasingly, these efforts have focused on promoting majority modifications clauses, a species of collective action clause (CAC) that facilitates a binding debt restructuring. Rather than legislate or regulate, governments have convened expert commissions, produced model CACs, and aggressively marketed these clauses to debtors and creditors. When events prove the existing CAC template inadequate or irrelevant, the process begins anew. This paper considers this mode of government intervention, which has a …
The Costs Of Mandatory Cost-Benefit Analysis In Sec Rulemaking,
2015
Indiana University Maurer School of Law
The Costs Of Mandatory Cost-Benefit Analysis In Sec Rulemaking, Donna M. Nagy
Articles by Maurer Faculty
Cost-benefit analysis can be a valuable tool when deployed at the Securities and Exchange Commission's discretion to improve its rulemaking process and the overall quality of SEC rules. However, when a cost-benefit analysis obligation is imposed externally whether from an explicit statutory command or from a de facto requirement enforced through judicial review-the costs of that mandatory cost-benefit analysis can be quite substantial. This Article identifies and explores the qualitative costs that that have already been incurred, and are bound to continue, if the adequacy of the SEC's cost-benefit analysis remains subject to extensive judicial scrutiny. These costs will only …
Piercing The Fiduciary Veil,
2015
University of Missouri - Kansas City, School of Law
Piercing The Fiduciary Veil, Colin P. Marks
Faculty Works
Limited partnerships (LPs) and limited liability companies (LLCs) permit formation with a unique management structure in that these entities may be managed by another limited liability entity, such as a corporation. Thus, the true managers are those individuals who manage the manager. It is well settled that the managing entity, such as a corporate general partner, owes default fiduciary duties, but what of these second-tier managers? Technically, it is the managing entity that owes the duties, not the managing entity's owners, officers, and directors, yet courts have struggled with strict adherence to this separation when it would seem inequitable to …
Trusting Strangers: Dispute Resolution In The Crowd,
2015
Indiana University
Trusting Strangers: Dispute Resolution In The Crowd, Anjanette H. Raymond, Abbey Stemler
Cardozo Journal of Conflict Resolution
Hoping to be the next Pebble, entrepreneurs and businesses have flocked to various crowdfunding platforms to contribute dollars to fund initial launches of products and other investments. As readers are undoubtedly aware, Kickstarter was the first and bestknown crowdfunding website, having helped to launch more than 95,000 projects to date. On March 3, 2014, Kickstarter reported that it passed $1 billion in pledges with over 5.7 million people donating to creative projects. There are currently over 800 crowdfunding platforms, with the bulk of dollars contributed going to social campaigns. Of course, as donations grew and the number of backers surged, …
New Weaknesses: Despite A Major Win, Arbitration Decisions In 2014 Increase The Us’S Future Exposure To Litigation And Liability,
2015
Columbia Law School, Columbia Center on Sustainable Investment
New Weaknesses: Despite A Major Win, Arbitration Decisions In 2014 Increase The Us’S Future Exposure To Litigation And Liability, Lise Johnson
Columbia Center on Sustainable Investment Staff Publications
In 2014, the US continued its overall record of success in defending investment treaty claims. But it did suffer losses on a number of important issues, and those losses will render the US (and its treaty parties) vulnerable to future claims, litigation expense, and liability. The US’s recent losses, which have thus far been largely ignored in commentary on the US’s experiences in investment arbitration, are highlighted in this briefing note.
India,
2015
Southern Methodist University
India, Kavita Mohan, Raj Barot, Aseem Chawla, Ashish Jerjurkar, Divya Ashta, Gagan Kumar, Niyati Chanana, Sharanya G. Ranga, Laxmi Joshi, Fatema Merchant, Priyanka Sharma Goswami, Poorvi Chothani
The International Lawyer
This article surveys significant legal developments in India during the year 2014.
Halliburton Ii: A Loser's History,
2015
University of Michigan Law School
Halliburton Ii: A Loser's History, Adam C. Pritchard
Articles
The Supreme Court was presented with an opportunity to bring fundamental reform to securities class actions last term in Halliburton Co. v. Erica P John Fund, Inc.. The Court ducked that opportunity, passing the buck to Congress to undo the mess that the Court had created a quarter century prior in Basic Inc. v. Levinson. Congress's history in dealing with securities class actions suggests that reform is unlikely to come from the legislature anytime soon. The Securities and Exchange Commission appears to be satisfied with the status quo as well. With these institutional actors resisting reform, corporations and …
Loser Pays: The Latest Installment In The Battle-Scarred, Cliff-Hanging Survival Of The Rule 10b-5 Class Action,
2015
Columbia Law School
Loser Pays: The Latest Installment In The Battle-Scarred, Cliff-Hanging Survival Of The Rule 10b-5 Class Action, John C. Coffee Jr.
Faculty Scholarship
When I was an upper-year student at Yale Law School in the late 1960s, I was sometimes as undermotivated as contemporary upper-year law students regularly appear to be. But there was then an appropriate role model for us: a graduate student, brimming with efficiency and self-discipline, who occupied a carrel in the law library, seemingly working day and night on a special research project. He had piled law review articles and cases a foot or more about his carrel, and anyone walking by could see that he seemed obsessed with something called Rule 10b-5. I had dimly heard of this …
Where Do We Fight?: A Way To Resolve The Conflict Between A Forum Selection Clause And Finra Arbitration Rule 12200,
2015
Benjamin N. Cardozo School of Law
Where Do We Fight?: A Way To Resolve The Conflict Between A Forum Selection Clause And Finra Arbitration Rule 12200, Suleman Malik
Cardozo Journal of Conflict Resolution
First, Section II summarizes the historical background of the dispute between Goldman Sachs & Co. ("Goldman Sachs") and Golden Empire Schools Financing Authority ("Golden Empire"). Second, Section II identifies the forum selection and merger clauses from the 2004 Broker-Dealer Agreement at issue in Golden Empire. Third, Section II provides a brief background of FINRA and its rules and regulations most pertinent to this dispute, mainly FINRA Rule 12200. Fourth, Section II discusses the emerging circuit split and explains the holdings from each of the circuits. As discussed more fully below, Golden Empire marks a growing circuit split over the availability …
Ceo Stock Ownership Policies: Rhetoric And Reality,
2015
Harvard Law School
Ceo Stock Ownership Policies: Rhetoric And Reality, Nitzan Shilon
Indiana Law Journal
This Article is the first academic endeavor to analyze the efficacy and transparency of stock ownership policies (SOPs) in U.S. public firms. SOPs generally require managers to hold some of their firms’ stock for the long term. Following the 2008 financial crisis, firms universally adopted these policies and cited them more than any other policy as a key element in their mitigation of risk. However, my analysis of the recent SOPs of S&P 500 CEOs disputes what firms claim about these policies. First, I find that SOPs are extremely ineffectual in making CEOs hold on to their firm’s stock; this …
Recklessness As A State Of Mind In 10(B) Cases: The Civil-Criminal Dialectic,
2015
University of Miami School of Law
Recklessness As A State Of Mind In 10(B) Cases: The Civil-Criminal Dialectic, Patricia S. Abril, Ann M. Olazabal
Articles
No abstract provided.
Anticipating A Sea Change For Insider Trading Law: From Trading Plan Crisis To Rational Reform,
2015
Mississippi College School of Law
Anticipating A Sea Change For Insider Trading Law: From Trading Plan Crisis To Rational Reform, John P. Anderson
Journal Articles
The Securities and Exchange Commission is poised to take action in the face of compelling evidence that corporate insiders are availing themselves of rule-sanctioned Trading Plans to beat the market. These Trading Plans allow insiders to trade while aware of material nonpublic information. Since the market advantage insiders have enjoyed from Plan trading can be traced to loopholes in the current regulatory scheme, increased enforcement of the existing rules cannot address the issue. But, simply tweaking the existing rule structure to close these loopholes would not work either. This is because the SEC adopted the current rule as a part …
