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Requiring Broker-Dealers To Disclose Conflicts Of Interest: A Solution Protecting And Empowering Investors, Daniel P. Guernsey Jr. 2019 University of Miami Law School

Requiring Broker-Dealers To Disclose Conflicts Of Interest: A Solution Protecting And Empowering Investors, Daniel P. Guernsey Jr.

University of Miami Law Review

Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) instructed the Securities and Exchange Commission (“SEC”) to analyze the gaps in the regulatory regimes of investment advisers and broker-dealers. After analyzing the differences between the two regimes, the SEC proposed a rule that essentially created a fiduciary duty for broker-dealers equivalent to that of investment advisers. In theory, a uniform fiduciary duty would increase investor protection; however, such a drastic overhaul of broker-dealer regulation has attendant consequences. Indeed, as seen from the federal government’s previous attempts to create a broker-dealer fiduciary duty, increasing broker-dealer regulatory requirements limits ...


Global Standards For Securities Holding Infrastructures: A Soft Law/Fintech Model For Reform, Charles W. Mooney Jr. 2019 University of Pennsylvania Law School

Global Standards For Securities Holding Infrastructures: A Soft Law/Fintech Model For Reform, Charles W. Mooney Jr.

Michigan Journal of International Law

This Article outlines a “soft-law-to-hard-law” approach for the development and implementation of reforms to systems for the holding of publicly traded securities. It proposes the development of global standards for securities holding systems (“Global Standards”), to be led by the International Organization of Securities Commissions (the “IOSCO”). This approach contemplates that States would be encouraged and expected to implement the Global Standards by adopting “hard law” reforms through statutory and regulatory adjustments to their securities holding systems as well as modifications of the architecture of their securities holding systems. The successes of past IOSCO initiatives inspire this Article’s proposal ...


Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev 2019 UCLA School of Law

Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev

Boston College Law Review

This Article analyzes the history, design, and effectiveness of the highly controversial CEO pay ratio disclosure rule, which went into effect in 2018. Based on a regulatory mandate contained in the Dodd-Frank Act of 2010, the rule requires public companies to disclose the ratio between CEO pay and median worker pay as part of their annual filings with the Securities and Exchange Commission (SEC). The seven-year rulemaking process was politically contentious and generated a level of public engagement that was virtually unprecedented in the long history of the SEC disclosure regime. The SEC sought to minimize compliance costs by providing ...


The Regulation Of Insider Trading In The European Community, Manning Gilbert Warren III 2019 Selected Works

The Regulation Of Insider Trading In The European Community, Manning Gilbert Warren Iii

Manning G. Warren III

No abstract provided.


The Role Of The States In The Regulation Of Private Placements, Manning Gilbert Warren III 2019 Louis D. Brandeis School of Law, University of Louisville.

The Role Of The States In The Regulation Of Private Placements, Manning Gilbert Warren Iii

Manning G. Warren III

No abstract provided.


Reflections On Dual Regulation Of Securities: A Case Against Preemption, Manning Gilbert Warren III 2019 Selected Works

Reflections On Dual Regulation Of Securities: A Case Against Preemption, Manning Gilbert Warren Iii

Manning G. Warren III

No abstract provided.


Reflections On Dual Regulation Of Securities: A Case For Reallocation Of Regulatory Responsibilities, Manning Gilbert Warren III 2019 University of Louisville

Reflections On Dual Regulation Of Securities: A Case For Reallocation Of Regulatory Responsibilities, Manning Gilbert Warren Iii

Manning G. Warren III

I address the scope of state regulatory power that remains given the National Securities Markets Improvement Act of 1996's dictates and prerogatives. I then suggest for consideration significant alterations to the regulatory role traditionally performed by the states.


A Birthday Toast To Texas Gulf Sulphur, Manning G. Warren III 2019 University of Louisville Brandeis School of Law

A Birthday Toast To Texas Gulf Sulphur, Manning G. Warren Iii

Manning G. Warren III

This article commemorates the fiftieth anniversary of the Second Circuit’s Texas Gulf Sulphur decision by examining the impact of the case on insider trading law in the United States. The author begins by discussing the SEC’s opinion, In the Matter of Cady, Roberts & Co., which laid the foundation for the Texas Gulf Sulphur decision by creating a federal duty to disclose material nonpublic information or abstain from trading securities. The author then posits that the SEC, in its Cady, Roberts decision, rejected judicially developed common law fiduciary duty to disclose based on trust and confidence, and, by administrative ...


Can Bad Law Do Good? A Retrospective On Conflict Minerals Regulation, Karen E. Woody 2019 University of Maryland Francis King Carey School of Law

Can Bad Law Do Good? A Retrospective On Conflict Minerals Regulation, Karen E. Woody

Maryland Law Review

Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) created a novel approach to corporate social responsibility (“CSR”) in supply chains by requiring public companies to disclose the presence of conflict minerals in their products. Dodd-Frank, as a whole, has faced a barrage of criticism since its passage, and Section 1502 was not immune from intense critical backlash. As I argued in prior scholarship and congressional testimony, Section 1502 was ill-conceived in substance and form. Its application resulted in the improper use of securities laws to the detriment of its laudable public international law ...


Making Sustainability Disclosure Sustainable, Jill E. Fisch 2019 University of Pennsylvania Law School

Making Sustainability Disclosure Sustainable, Jill E. Fisch

Faculty Scholarship at Penn Law

Sustainability is receiving increasing attention from issuers, investors and regulators. The desire to understand issuer sustainability practices and their relationship to economic performance has resulted in a proliferation of sustainability disclosure regimes and standards. The range of approaches to disclosure, however, limit the comparability and reliability of the information disclosed. The Securities & Exchange Commission (SEC) has solicited comment on whether to require expanded sustainability disclosures in issuer’s periodic financial reporting, and investors have communicated broad-based support for such expanded disclosures, but, to date, the SEC has not required general sustainability disclosure.

This Article argues that claims about the relationship ...


Intermediated Securities Holding Systems Revisited: A View Through The Prism Of Transparency, Thomas Keijser, Charles W. Mooney Jr. 2019 Radboud University Nijmegen

Intermediated Securities Holding Systems Revisited: A View Through The Prism Of Transparency, Thomas Keijser, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This chapter explains several benefits of adopting transparent information technology systems for intermediated securities holding infrastructures. Such transparent systems could ameliorate various prevailing problems that confront existing tiered, intermediated holding systems, including those related to corporate actions (dividends, voting), claims against issuers and upper-tier intermediaries, loss sharing and set-off in insolvency proceedings, money laundering and terrorist financing, and privacy, data protection, and confidentiality. Moreover, transparent systems could improve the functions of intermediated holding systems even without changes in laws or regulations. They also could provide a catalyst for law reform and a roadmap for substantive content of reforms. Among potential ...


The Lehman Brothers Bankruptcy F: Introduction To The Isda Master Agreement, Christian M. McNamara, Andrew Metrick 2019 Yale University

The Lehman Brothers Bankruptcy F: Introduction To The Isda Master Agreement, Christian M. Mcnamara, Andrew Metrick

Journal of Financial Crises

When Lehman Brothers Holdings, Inc. (LBHI) sought Chapter 11 protection, the more than 6,000 counterparties with which its subsidiaries had entered into over 900,000 over-the-counter (OTC) derivatives transactions faced the question of how best to respond to protect their interests. The existence of standardized documentation developed by the International Swaps and Derivatives Association (ISDA) for entering into such transactions meant that the counterparties likely thought that they were dealing with a well-defined and robust set of options in answering this question. Yet, in practice, the resolution of Lehman’s OTC derivatives portfolio ended up being less orderly than ...


The Lehman Brothers Bankruptcy E: The Effects On Lehman’S U.S. Broker-Dealer, Rosalind Z. Wiggins, Andrew Metrick 2019 Yale University

The Lehman Brothers Bankruptcy E: The Effects On Lehman’S U.S. Broker-Dealer, Rosalind Z. Wiggins, Andrew Metrick

Journal of Financial Crises

Lehman’s U.S. broker-dealer, Lehman Brothers Inc. (LBI), was excluded from the parent company’s bankruptcy filing on September 15, 2008, because it was thought that the solvent subsidiary might be able to wind down its affairs in a normal fashion. However, the force of the parent’s demise proved too strong, and within days, LBI and dozens of Lehman subsidiaries around the world were also in liquidation. As a regulated broker-dealer, LBI was required to comply with the Securities and Exchange Commission financial-responsibility rules for broker-dealers, including maintaining customer assets separately. However, the corporate complexity and enterprise integration ...


When The Same Words Mean Different Things: Varjabedian V. Emulex Corp., And The Requirements Of Section 14(E) Of The Exchange Act, Isaac Lederman 2019 Boston College Law School

When The Same Words Mean Different Things: Varjabedian V. Emulex Corp., And The Requirements Of Section 14(E) Of The Exchange Act, Isaac Lederman

Boston College Law Review

On April 20, 2018, in Varjabedian v. Emulex Corp., the United States Court of Appeals for the Ninth Circuit held that Section 14(e) of the Securities Exchange Act of 1934 requires only a showing of negligence, not scienter, to establish a violation. The Ninth Circuit derived that requirement from the fact that Section 14(e) resembles Section 17(a)(2) of the Securities Act of 1933. In reaching this conclusion, the Ninth Circuit split with all the other courts to consider this question. The Second, Third, Fifth, Sixth, and Eleventh Circuits had previously held that Section 14(e) shares ...


The New Titans Of Wall Street: A Theoretical Framework For Passive Investors, Jill E. Fisch, Asaf Hamdani, Steven Davidoff Solomon 2019 University of Pennsylvania Law School

The New Titans Of Wall Street: A Theoretical Framework For Passive Investors, Jill E. Fisch, Asaf Hamdani, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

Passive investors — ETFs and index funds — are the most important development in modern day capital markets, dictating trillions of dollars in capital flows and increasingly owning much of corporate America. Neither the business model of passive funds, nor the way that they engage with their portfolio companies, however, is well understood, and misperceptions of both have led some commentators to call for passive investors to be subject to increased regulation and even disenfranchisement. Specifically, this literature takes a narrow view both of the market in which passive investors compete to manage customer funds and of passive investors’ participation in the ...


Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox 2019 Yale Law School

Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox

Articles

Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries has evolved to push them gently toward this consensus. But these laws still provide broad scope for fiduciaries to recommend that clients invest instead in specific assets that they believe will produce “alpha” by outperforming the market. Seeking alpha comes at a cost ...


Duty Or No Duty? That Is The Question: The Second Circuit Reasserts That A Violation Of Item 303'S Duty To Disclose Can Establish Liability Under Section 10(B), Rebecca Rabinowitz 2019 Boston College Law School

Duty Or No Duty? That Is The Question: The Second Circuit Reasserts That A Violation Of Item 303'S Duty To Disclose Can Establish Liability Under Section 10(B), Rebecca Rabinowitz

Boston College Law Review

On March 29, 2016, in Indiana Public Retirement Systems v. SAIC, Inc., the United States Court of Appeals for the Second Circuit reaffirmed its earlier conclusion that a violation of the duty to disclose imposed on publicly traded companies by Item 303 of Regulation S-K can constitute a violation of Section 10(b) of the Securities Exchange Act of 1934. In so doing, the Second Circuit directly conflicted with a decision from the United States Court of Appeals for the Ninth Circuit, Cohen v. NVIDIA Corp. (In re NVIDIA Corp. Securities Litigation), despite the fact that both courts relied upon ...


Berle X: Berle And His World: An Homage To William W. Bratton, Charles R. T. O'Kelley 2019 Seattle University School of Law

Berle X: Berle And His World: An Homage To William W. Bratton, Charles R. T. O'Kelley

Seattle University Law Review

An introduction to the Berle X symposium, honoring William W. (Bill) Bratton.


Made For This Moment: The Enduring Relevance Of Adolf Berle’S Belief In A Global New Deal, Leo E. Strine Jr. 2019 Seattle University School of Law

Made For This Moment: The Enduring Relevance Of Adolf Berle’S Belief In A Global New Deal, Leo E. Strine Jr.

Seattle University Law Review

At a time when the insecurity of working people in the United States and Europe is being exploited by nativist forces, the concept of a global New Deal is more relevant than ever. But, instead of a global New Deal, the predominant force in international trade in recent decades has been spreading pre-New Deal, laissez-faire approaches to markets, without extending with equal vigor the regulations essential to providing ordinary people economic security. Adolf Berle recognized that if the economy did not work for all, the worst impulses in humanity could be exploited by demagogues and authoritarians, having seen this first ...


Looking Forward In A Failing World: Adolf A. Berle, Jr., The United States, And Global Order In The Interwar Years, Jessica Wang 2019 Seattle University School of Law

Looking Forward In A Failing World: Adolf A. Berle, Jr., The United States, And Global Order In The Interwar Years, Jessica Wang

Seattle University Law Review

This essay explores Berle’s understanding of American power and its relationship to global order in the era between the First and Second World Wars. I first survey the history of progressive internationalism in the 1920s in order to situate Berle’s approach to U.S. foreign relations and global affairs, before proceeding to a close examination of Berle’s immediate response to the aftermath of World War I, and then his foreign policy activities as part of the Roosevelt administration in the late 1930s and early 1940s. My analysis focuses in particular on his public efforts to promote a ...


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