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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

SEC Advisory Committee To Consider Fee-Shifting Bylaws, But Why?

One agenda item for the upcoming meeting of the Investor Advisory Committee is a “Discussion of Issuer Adoption of Fee-Shifting Bylaws for Intra-Corporate Litigation”. This is indeed an interesting and timely topic in light...more

9/22/2014 - Bylaws Fee-Shifting Fee-Shifting Statutes SEC

M&A Broker Exemption Bill Resurrects Financial Statement Replaced in 1988

Last week, the North American Securities Administrators Association withdrew its support for S. 1923 which, if enacted, would exempt “M&A brokers” from the broker registration requirements of the Securities Exchange Act of...more

9/15/2014 - Broker-Dealer Compliance Registration SEC Securities Exchange Act

SEC Shamelessly Targets Late Filers

Yesterday, the Securities and Exchange Commission announced “charges” against 28 officers, directors, or major shareholders for failing to report timely ownership and transactions as required by Section 16(a) and Section 13...more

9/11/2014 - Dodd-Frank Enforcement Actions Filing Requirements SEC Securities Exchange Act

This Court’s Ruling Puts The Opinion In Auditor’s Internal Control Opinion

A brief ruling issued this week by U.S. District Court Judge James C. Mahan makes it clear that an auditor isn’t always liable even when a subsequent auditor uncovers fraud. In Oaktree Capital Mgmt., L.P. v. KPMG, 2014 U.S....more

8/6/2014 - Accounting Controls Auditors Fraud GAAP Internal Controls KPMG Professional Liability SEC

Facebook/Oculus VR Acquisition Raises Pseudo-Foreign Corporation Question

Yesterday, The Guardian reported that Facebook had acquired Oculus VR using a combination of cash and stock. Facebook avoided SEC registration by availing itself of a fairness hearing before the Department of Business...more

7/23/2014 - Department of Business Oversight Facebook Fairness Hearings Foreign Corporations Oculus VR SEC

Why Doesn’t The SEC Post SubCommittee Recommendations?

Last Thursday, the Investor Advisory Committee held another meeting. The agenda included this rather vague agenda description...more

7/14/2014 - SEC

If Fee-Shifting Bylaws Are Ever Put On Trial, This Case Should Be Exhibit A

Item 5.07(d) of Form 8-K requires issuers to disclose “the company’s decision in light of such vote as to how frequently the company will include a shareholder vote on the compensation of executives in its proxy materials...more

6/23/2014 - Board of Directors Bylaws Executive Compensation Form 8-K Proxy Statements Say-on-Pay SEC Shareholder Litigation Shareholders

Notes From The 2114 Securities Law Conference

Courtesy of Professor Emmett Brown, I recently attended the 2114 Securities Law Conference and I must say that I was heartened by what I heard there and then. Here are some of my notes from the conference...more

6/20/2014 - Dodd-Frank Form 8-K Insider Trading Reporting Requirements SCOTUS SEC Section 16

Commissioner Rings Pension Fund Tocsin

In a speech given late last month, SEC Commissioner Daniel M. Gallagher warned that “for years, state and local governments have used lax governmental accounting standards to hide the yawning chasm in their balance sheets.” ...more

6/16/2014 - Balance Sheets CalPERS Pensions SEC SEC Commissioner Securities

Do You Want Your Lawyer To Be Horatius Or Atticus Finch?

I was profoundly disheartened by these recent remarks by SEC Commissioner Kara M. Stein: Are we treating lawyers differently from other gatekeepers, such as accountants? I think we should carefully review the role...more

6/6/2014 - Ethics SEC

Is Nevada Free-Loading On The SEC?

Nevada’s corporate law continues to attract attention from the academic community. In a recent paper, three professors of accounting at West Chester University of Pennsylvania undertook a forensic examination of Nevada’s...more

5/6/2014 - Corporate Charters Enforcement Actions PCAOB SEC

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

4/15/2014 - Administrative Procedure Act Conflict Mineral Rules Disclosure Requirements First Amendment SEC

American Icon Amends Stock Plan To Make It Section 25102(o) Eligible – Why?

Section 102 the National Securities Markets Improvement Act (which amended Section 18 of the Securities Act of 1933) deems securities listed (or authorized for listing) on the NYSE, the American Stock Exchange or the National...more

4/14/2014 - Employee Incentive Plans Exemptions Levi Strauss Nasdaq NSMIA NYSE SEC

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