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Some LLC Names Slip Past California’s Statutory Ban

The California Revised Uniform Limited Liability Company Act explicitly bans a number of different words from being included in LLC names: The name shall not include the words “bank,” “trust,” “trustee,”...more

1/22/2015 - ALJ Corporations Code Limited Liability Companies RULLCA SEC Secretary of State

SEC Charges Attorney For Allegedly False Legal Opinion

Last week, the Securities and Exchange Commission announced charges against an attorney who was allegedly involved in the filing of false registration statements.  The SEC’s order instituting proceedings alleges that the...more

1/21/2015 - Consideration Corporate Issuers Enforcement Actions False Statements Issuers Opinion Letter Registration Statement SEC Shell Companies Stocks

The SEC’s Rule 14a-8 Process Just Became Even More Pointlessly Outré

Yesterday, Broc Romanek posted on SEC Chair Mary Jo White’s Friday surprise with respect the no-action letter request submitted by Whole Foods Market, Inc. Readers may recall that in December Whole Foods had obtained the...more

1/20/2015 - Board of Directors Mary Jo White No-Action Letters Proxy Access Rule Proxy Statements SEC Shareholder Activism Shareholder Proposals Shareholders Whole Foods

This Is One Form 8-K, You’ll Never Want To File

In a recently filed Form 8-K, an international money transmitter, Xoom Corporation, reported that been the victim of a criminal fraud. This was no small heist. According to company, over $30 million had been transferred to...more

1/16/2015 - Cyber Crimes Form 8-K Fraud Money Transmitter SEC

Representing Others Before The SEC

Not too long ago, I wrote about the Shareholder Rights Project (SRP) at Harvard Law School, noting that the SRP’s website and correspondence to the Securities and Exchange Commission explicitly stated that the SRP was...more

1/15/2015 - Client Services Harvard Law School Sarbanes-Oxley SEC

‘Tis A “Bootless Labour” To Ask The Staff To Appeal Its Own No-Action Advice

In This “Appeal” Of Whole Foods’ No-Action Letter Isn’t Very Appealing, I wrote about Jim McRitchie’s attempt to “appeal” the staff’s decision with respect to the exclusion of his proxy access proposal to Whole Foods Market,...more

1/12/2015 - Appeals No-Action Letters SEC Shareholder Proposals Shareholders Whole Foods

CalPERS Continues To Take Shots At The Press

I continue to be shocked at CalPERS’ vitriolic approach towards the press. In the last 12 months, CalPERS has taken on The Wall Street Journal, Fox News, several California metropolitan newspapers, several local newspapers,...more

1/8/2015 - CalPERS Ethics Media SEC

This “Appeal” Of Whole Foods’ No-Action Letter Isn’t Very Appealing

Last week, James McRitchie submitted an “appeal” of the staff’s grant of no-action advice to Whole Foods Market, Inc. As explained in a post by Broc Romanek, Whole Foods was able to obtain that staff’s concurrence in...more

12/29/2014 - Appeals No-Action Letters Proxy Season Proxy Statements SEC Shareholder Proposals Shareholders Whole Foods

SEC Condemns Breach Of Client Confidences While Offering Possible Bounties For Breaches

Yesterday, the Securities and Exchange Commission announced that it had “charged a California-based attorney and his wife with insider trading on confidential information obtained from a corporate client.” According to the...more

12/23/2014 - Attorney-Client Privilege Confidential Information Enforcement Actions Insider Trading Material Nonpublic Information Pharmaceutical Manufacturers SEC Whistleblower Awards

SEC Seeks To “Overrule” Fifth Circuit Whistleblower Interpretation

In Asadi v. G.E. Energy United States, L.L.C., 720 F.3d 620 (5th Cir. 2013), the Fifth Circuit Court of Appeals held that an employee who reported a suspected Foreign Corrupt Practices Act violation internally but not to the...more

12/15/2014 - Chevron Deference Dodd-Frank FCPA GE Energy SEC Whistleblowers

Commissioner Gallagher Posits SEC Would Prevail Against Harvard University

Just this week, Commissioner Daniel M. Gallagher and former Commissioner Joseph A. Grundfest issued a draft of a paper that takes on the Harvard Shareholder Rights Project. The Harvard SRP describes itself as “a clinical...more

12/12/2014 - Board of Directors Harvard University SEC Shareholders Universities

Nevada Poised To Increase Output Of Reported Decisions

In November, the voters of Nevada approved Question 1 which amended Article 6 of the Nevada Constitution to create an intermediate Court of Appeals. California’s intermediate court is styled the Court of Appeal (no “s”). ...more

12/11/2014 - Court Administration Final Rules Judges Regulation AB SEC

Should Judicial Deference To The SEC Be Strong, Weak or Non-Existent?

This post yesterday by Broc Romanek alerted me to Judge Leonard P. Stark’s recent opinion in Trinity Wall Street v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 165431 (D. Del. Nov. 26, 2014). The case involved Wal-Mart’s...more

12/9/2014 - Chevron Deference Jurisdiction No-Action Letters Proxy Statements SEC Shareholder Proposals Shareholders Wal-Mart

Will The Courts Stop Deferring To SEC Interpretations?

In 1984, the U.S. Supreme Court announced a foundational principle of administrative law. When a court reviews an agency’s construction of a statute that it administers, the court should...more

11/20/2014 - Chevron Deference SCOTUS SEC

Court Of Appeal Takes A Deep Dive Into Short Selling

In a lengthy opinion issued yesterday, Justice Kathleen M. Banke explains naked short selling, describes the mechanics of executing and clearing stock trades, describes the SEC’s Regulation SHO, and recounts the SEC’s...more

11/14/2014 - Clearing Agencies Goldman Sachs Merrill Lynch Overstock.com Regulation SHO SEC Short Sales

Why Commissioner Gallagher Is Not Mistaken On Political Spending Disclosure

In this post published on October 30, I observed: According to Enver Fitch and Limor Bernstock at ISS ESG Proxy Research, shareholders associated with the Center for Political Accountability submitted 47 proposals this...more

11/13/2014 - Disclosure Requirements ISS Political Contributions SEC Securities Exchange Act Shareholders

Senator Blumenthal Urges SEC To Investigate Fee-Shifting Charter Provisions

Yesterday, Senator Richard Blumenthal wrote a letter to the Securities and Exchange Commission asking that the “Commission protect investors and America’s capital markets from a serious and imminent threat.” According to the...more

11/7/2014 - Compliance Enforcement Enforcement Actions Fee-Shifting Statutes SEC

Political Spending Disclosures – An Idea So Good That I Think You Should Pay For It

In July 2011, a group of ten law professors filed a rulemaking petition with the Securities and Exchange Commission seeking adoption of a rule requiring disclosure of political spending by publicly traded companies. ...more

10/30/2014 - Political Contributions Public Disclosure Publicly-Traded Companies Rulemaking Process SEC Shareholders

Should The SEC Ask What Would Blackstone Do?

The Securities and Exchange Commission recently trumpeted its enforcement successes for its 2014 fiscal year. For an agency dedicated to full disclosure, there were some notable omissions, including...more

10/27/2014 - Administrative Hearings Enforcement Actions Insider Trading SEC

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

10/24/2014 - Adjudicatory Process Administrative Procedure Act Enforcement Actions Rulemaking Process SEC

Why The SEC Should Stay Out Of The Fee-Shifting Charter Debate

In a recent post, Columbia Law School Professor John C. Coffee Jr. argues that the Securities and Exchange Commission should take a number of steps to challenge and discourage the adoption of fee-shifting charter provisions. ...more

10/16/2014 - Compliance Fee-Shifting Fee-Shifting Statutes SEC

SEC ALJs Face Free Enterprise Challenge

Several years ago, I testified as an expert witness in an administrative proceeding brought by the Securities and Exchange Commission. The hearing was held in what looked like a courtroom before what appeared to be a judge...more

10/13/2014 - Article III Federal Rules of Civil Procedure SEC Standing

Is A “Rule” An “Order” And Why Would Anyone Care?

Pay-to-Play Rule Challenged - Doug Cornelius recently wrote about the dismissal of a lawsuit challenging the Securities and Exchange Commission’s anti “pay-to-play” rule under the Investment Advisers Act of 1940. New...more

10/10/2014 - Administrative Procedures Act Government Entities Investment Adviser Investment Advisers Act of 1940 Pay-To-Play SEC Stare Decisis Subject Matter Jurisdiction

1, 2 or 3 Years? How Should Boards Decide The Frequency Of Say-On-Pay Votes?

Although the initial ruckus over how to determine the outcome of executive compensation say-on-frequency votes has subsided, I still maintain that the Securities and Exchange Commission botched the rule (§240.14a-21(b)). ...more

9/29/2014 - Board of Directors Corporate Governance Say-on-Pay SEC Shareholder Votes Shareholders

Oxfam America Takes A Stand, But Does It Have Standing?

Recently, I wrote about Oxfam America’s new lawsuit against the Securities and Exchange Commission for failing to adopt a final rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. ...more

9/23/2014 - Article III Dodd-Frank Oxfam SEC Standing

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