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The SEC’s Flawed Changes To Exchange Act Forms

Title I of the Jumpstart Our Business Startups (aka JOBS) Act amended the Securities Act and the Exchange Act to provide some regulatory relief to issuers that qualify as an “emerging growth company”. Recently, the...more

When The SEC Become A Real Estate Regulator

For at least a century, it has been said that only three things matter in real estate: location, location, location. Recently, the Securities and Exchange Commission took this old saw to heart in the context of disclosure of...more

Will California Public Pension Systems Go Underground In Implementing New Disclosure Law?

Writing in the Harvard Law School Forum on Corporate Governance and Financial Regulation, Catherine Skulan and Raj Marphatia provide an interesting overview of California’s recently enacted alternative investment vehicle fee...more

Chevron Deference In California

In mid July, the House of Representatives passed the Separation of Powers Restoration Act of 2016, H.R. 4768 (SOPRA). If enacted, the SOPRA would amend the federal Administrative Procedure Act to require a reviewing court to...more

Has The California State Treasurer’s Office Gone Underground?

Late last month, the California State Treasurer’s Office announced a “move to stop ‘Pay-to-Play’ school bond campaigns”. According to the announcement...more

“Interim Final Temporary Rules”, Say What?

Visitors to the Securities and Exchange Commission’s website will find a pull-down menu entitled “Regulation”. One of the items on that menu has the oxymoronic title of “Interim Final Temporary Rules”. How can a rule be...more

Did The SEC Staff Bypass The APA In Issuing New And Revised Non-GAAP Financial Measure C&DIs?

Earlier this week, the staff of the SEC’s Division of Corporation Finance issued several new, and rewrote several existing, Compliance and Disclosure Interpretations (“C&DIs”) relating to Non-GAAP Financial Measures. ...more

Do The Secretary Of State’s Criteria For Determining “Generally Recognized Presidential Candidates” Violate The APA?

Earlier this week, the California Secretary of State released his list of “generally recognized presidential candidates”. These are the individual whose names will appear on California’s June 2016 primary ballot. The...more

District Court Declines To Redress The SEC’s Failure To Respond To Petition Seeking Political Spending Disclosure Rule

Although placed right up front in the First Amendment to the U.S. Constitution, the right to petition the government for redress of grievances is often overshadowed by the other First Amendment rights. There can be no doubt,...more

Facing Legal Challenges, SEC Proposes To Reform Administrative Proceedings

As has been widely reported elsewhere, the Securities and Exchange Commission has been facing a spate of challenges to its administrative court. It should come as no surprise then that the SEC recently announced a number of...more

A Most Nescient Comment?

Monday was the close of the comment period on the Securities and Exchange Commission’s proposed rules with respect to listing standards requiring recovery of erroneously paid incentive compensation....more

Court Rules That The SEC Unlawfully Withheld Action Mandated By Congress

Last fall, I wrote about Oxfam America’s second lawsuit to force the Securities and Exchange Commission to adopt a resource extraction disclosure rule under Section 1504 of the Dodd-Frank Act.  Readers may recall that...more

Did The SEC Violate The Administrative Procedure Act?

Yesterday, Broc Romanek wrote about the joint dissent issued by Commissioners Daniel M. Gallagher and Michael S. Piwowar with respect to the Commission’s recent adoption of Regulation SBSR which requires regulatory reporting...more

The California Implications Of Perez v. Mortgage Bankers Association

On Monday, the U.S. Supreme Court heard oral arguments in Perez v. Mortgage Bankers Ass’n et al. The case, if decided against the Department of Labor (Thomas E. Perez is the Secretary of Labor), will have a significant...more

Adjudicate or Rule Make? That May Not Be A Question For The Courts

Professor Stephen Bainbridge yesterday passed along Henry G. Manne’s criticism of the SEC’s use of adjudication in lieu of rulemaking. For those who haven’t taken my Administrative Law class, there are actually two types of...more

FTB Issues Legal Ruling Addressing Filing And Franchise Tax Obligations of LLCs And Their Members

I’ve written several posts on discussing the meaning and ramifications of “doing business” for California tax purposes. See, e.g., Why Your LLC May Be Doing More Than You Think In California Even When It’s Doing Nothing, 60...more

Name And Shame No More?

The last few years has seen the rise of so-called “name and shame” laws. The aims of many these laws may be laudable, but yesterday’s decision by the Court of Appeals for the District of Columbia Circuit calls their...more

Just How Binding Are SEC Statements In An Adopting Release?

Two years ago, I coined the term ““ARR Ratio”. The ARR Ratio (Adopting Release to Rule Ratio) is calculated by dividing the total number of words in the Adopting Release by the total number of words in the actual text of the...more

OAH Seeks Opinion Regarding Appearances By Non-Attorneys and Out-of-State Attorneys

I’ve written on several occasions about the Office of Administrative Law. It should not be confused with the Office of Administrative Hearings. The OAH provides administrative law judges who conduct hearings for over 1500...more

Supreme Court Decision Underscores The Importance Of Administrative Law

Administrative law is one of the most useful subjects that someone can take in law school. I say that as someone who has taught the subject. Earlier this week, the California Supreme Court issued an opinion that illustrates...more

The Most Important Thing You Need To Know Now About The Lifting Of The General Solicitation Ban

I’m tempted to begin this post with the following: Last week, the Securities and Exchange Commission lifted the ban on general solicitation in Rule 506 and Rule 144A offerings....more

Court Rejects SEC’s Interpretation That All Exchange Act Reports Are Public

SEC Misreads The Dodd-Frank Act - Commenting on the SEC’s short-lived resource extraction rule, Professor Stephen Bainbridge recently posted: Can’t anybody at the SEC do basic cost benefit analysis? I hesitate to...more

FTB Fights Underground Regulation Determination – Why Won’t It Simply Do What’s Right?

Just last week, the California Taxpayers Association reported: For at least several months, the Franchise Tax Board has been sending filing enforcement notices to nonresidents of California, including many foreign...more

CalPERS To Consider External Investment Resource Disclosure Rule

Last August the Investment Committee of the California Public Employees’ Retirement System (CalPERS) approved revisions to its External Investment Resource Conflict of Interest Policy. A week later, I asked the Office of...more

Could The Product Of Two Debts Really Be A Fortune?

In 628 in the Gurjar capital city of Bhillamala (now, Bhinmal, India), the mathemetician Brahmagupta set out to explain how zero and negatives numbers work. In his book, Brahmasphutasiddhanta, he set forth the rule that the...more

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