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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

Did Joseph P. Kennedy Make Insider Trading Illegal?

The Patriarch: The Remarkable Life and Turbulent Times of Joseph P. Kennedy. (Penguin Press, 2012) by Professor David Nasaw is one of several books that I am currently reading. As a securities lawyer, the following sentence...more

4/12/2017  /  Insider Information , SEC

Why Bassam Salman Should Not Have Been Convicted

A lot of ink has been spilt on the United States Supreme Court’s decision in Salman v. United States, 137 S. Ct. 420 (2016). In that case, the Supreme Court upheld the criminal conviction of Mr. Bassam Salman who received...more

Exactly What Part Of “To The Commission” Is Ambiguous?

The Dodd-Frank Act gave us many things, including Section 21F of the Securities Exchange Act of 1934. Section 21F, prohibits employers from retaliating against a “whistleblower”. 15 U.S.C. § 78u-6(h)(1)(A). We need not...more

Magistrate Judge Rules SEC’s Attorney-Conduct Rules Preempt State Law

Last December, Chief Magistrate Judge Joseph C. Spero ruled that the SEC’s attorney-conduct rules preempt California’s statutory and professional rules requiring attorneys to maintain inviolate the confidences. Wadler v....more

Ninth Circuit Accords Chevron Deference To The SEC, What Would Judge Gorsuch Say?

Last week, I noted that Judge Gorsuch has expressed a certain skepticism of Chevron deference. The next day, the Ninth Circuit Court of Appeals held that the Securities and Exchange Commission’s interpretation of Section...more

Will Congress Deep Six The SEC’s Resource Extraction Rule?

In December of last year, I wrote about how the Securities and Exchange Commission’s Resource Extraction Rule might meet an untimely end. See There’s Still Time For Congress To Void The SEC’s Resource Extraction Rule (Dec....more

SEC Continues To Pay Out Millions In Secrecy

Earlier this week, the Securities and Exchange Commission announced awards to three whistleblowers totaling more than $7 million. That is about all anyone can say about the awards. The SEC’s order is only 448 words long,...more

How Independent Is The SEC And How Independent Should It Be?

Can the President say “You’re Fired!” to an SEC Commissioner? In a recent post, Broc Romanek emphasized the commonly held understanding that the Securities and Exchange Commission is an “independent agency”. The...more

1/24/2017  /  Government Agencies , SEC

Is This SEC Claim False And Misleading?

Last week, the Securities and Exchange Commission announced yet another whistleblower award. According to the SEC, the award totals more than $5.5 million dollars. Tellingly, we don’t, and won’t, know the exact amount. The...more

1/9/2017  /  SEC , Whistleblower Awards

10th Circuit Holds SEC ALJs Are Holding Office Unconstitutionally

In March 2015, I posed the following question: But if you were hailed before an unconstitutional tribunal with the ostensible authority to fine you and bar you from working, would you want a “real” court to step in and...more

Has The SEC Paid Millions In Whistleblower Bounties To “Friends And Family”?

Earlier this month, the Securities and Exchange Commission announced yet another large whistleblower bounty. See SEC Awards Nearly $1 Million to Whistleblower. This brings to $136 million the total amount awarded to date by...more

SEC Takes Action Because Issuer Did Not Effect A Public Offering

Until the addition of paragraph (c) to Rule 506 three years ago, securities lawyers spent a lot of time advising their clients on how to avoid a public offering of their securities. Thus, I found it somewhat ironic to read...more

There’s Still Time For Congress To Void The SEC’s Resource Extraction Rule

Last June, the Securities and Exchange Commission belatedly adopted a rule requiring disclosure of resource extraction payments by issuers. As I wrote at the time...more

When A Majority Won’t Suffice

For California corporations, the general rule is that an act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present is the act of the board. Cal. Corp. Code §...more

This Company Solicited Consents To Remove A Sitting Director

It’s not often that you see a company soliciting consents to remove one of its sitting directors. However, that is what PICO Holdings, Inc. sought to do in this consent solicitation statement filed with the SEC on October...more

Is The SEC’s Universal Proxy Proposal A Product Of Agency Capture?

More than six decades ago, the late Professor Marver H. Bernstein published his theory of regulatory capture in Regulating Business By Independent Commission (Greenwood Press 1955). According to his theory, agencies follow a...more

SEC Hands Out Millions While Leaving The Public In The Dark

Last week, the Securities and Exchange Commission issued a press release announcing its decision to award $20 million “to a whistleblower who promptly came forward with valuable information that enabled the SEC to move...more

Incorporating In Delaware May Not Eliminate Director Liability Under This California Statute

Some readers may have skipped this week’s posts discussing director liability under California Corporations Code Section 316 on the theory that the statute applies only to directors of corporations incorporated under the...more

A New Regulatory Paradigm For The SEC?

Many are speculating on the future of federal securities regulation as a result of the election of Donald J. Trump and the concomitant Republican control of both houses of Congress. Broc Romanek, for example, asks whether...more

Why The SEC Isn’t Vegas

Last week, I wrote that the Securities and Exchange Commission is sending letters to registrants requesting information about compliance with Regulation G and Item 10(e) of Regulation S-K. These letters request issuers to...more

11/7/2016  /  FOIA , Regulation S-K , SEC

When CEOs Read This, They May Become Less Enamored Of Delaware

In a forthcoming paper, Professors Murali Jagannathan (Binghamton University School of Management) and A.C. Pritchard (University of Michigan Law School) evaluate whether there might be relationship between incorporation in...more

Five Propositions Concerning The SEC Whistleblower Program

Congress, not the Securities and Exchange Commission, established the whistleblower program six years ago as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. As the program has awarded over $100 million...more

Will New Rule 147A Lead To A Renaissance In California Permit Applications?

Yesterday, the Securities and Exchange Commission adopted a new intrastate offering exemption under the Securities Act of 1933. Significantly, new Rule 147A will have no restrictions on offers and will not require that an...more

Does Placing Non-GAAP Financial Measures First Violate The Law?

Yesterday’s post discussed the SEC staff’s recently announced position that Item 10(e)(1)(A) of Regulation S-K requires that issuers disclose comparable GAAP financial measures before non-GAAP financial measures. Item...more

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