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Ninth Circuit Requires Particularity In All Elements Of Securities Fraud Pleading

Sometimes, I find it useful to take a step back and review the legal standard applicable to securities fraud claims under Section 10(b) and Rule 10b-5. To stay in court, and securities litigation all about surviving motions...more

12/17/2014 - Dismissals Pleading Standards Pleadings PSLRA Rule 10b-5 Section 10(b) Securities Securities Exchange Act Securities Fraud

Why Including The Year Of Enactment Can Be Important

Several provisions of the California Corporate Securities Law of 1968 need to be brought up to date. Section 25100(i) is one of them. That section exempts from the qualification requirements of Sections 25110, 25120 and...more

10/16/2014 - CPUC Securities Utilities Sector

Really? Requiring Someone To Use Information “Fairly And Lawfully” Can Be Illegal?

Companies have lots of very good reasons for adopting codes of conduct. These reasons include: - Ensuring compliance with applicable exchange listing rules (e.g., NYSE Rule 303A.10 and NASDAQ Rule 5610); -...more

8/5/2014 - Code of Conduct Collective Bargaining Confidential Information Employer Liability Issues Fresh & Easy Issuers Nasdaq NLRA NLRB NYSE Privacy Laws Regulation FD Rule 10b-5 Securities Trade Secrets Unions

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

This Ruling Appears To “Unravel The Very Fabric Of The Space-time Continuum”

In prior posts, I’ve cast a jaundiced eye on last year’s amendment of California’s general securities fraud statute, Corporations Code Section 25401. See Die Verwandlung: How The Legislature Likely Raised The Bar On...more

6/9/2014 - Corporate Counsel Corporations Code New Amendments Section 10(b)-5 Section 25401 Securities Securities Act of 1933 Securities Fraud

DBO Filing Procedures Set To Change Big Time

When I joined the Department of Corporations, it had no website and filings were made only in hard copy. In the ensuing years, the Department (now known as the Department of Business Oversight) created a website, established...more

5/29/2014 - Department of Business Oversight Department of Corporations Electronic Filing Filing Requirements Franchise Taxes Lenders Licenses Section 25102f Securities Websites

Securities Regulator “Surprised and Offended” By SEC’s Regulation A+ Proposal

Section 401 of the JOBS Act directs the Securities and Exchange Commission to adopt rules exempting offerings of up to $50 million of securities annually from the registration requirements of the Securities Act of 1933, as...more

2/25/2014 - JOBS Act Registration Regulation A SEC Securities Securities Act of 1933

California Finders Bill Moves To Senate on 73-1 Vote

Yesterday, I wrote about a recent no-action letter issued by the SEC’s Division of Trading and Markets with respect to “M&A Brokers”. Here in California, the legislature is considering a bill, AB 713 (Wagner) that would...more

2/7/2014 - Accredited Investors Acquisitions Broker-Dealer Finders Mergers Notice Requirements Offering Documents SEC Securities

This Plaintiff Dreamed Of Shares That Never Were

It’s hard for me to imagine being the owner of something that doesn’t exist. It’s even harder to imagine being the owner of something that doesn’t exist. Hardest of all is imagining being the equitable owner of something...more

1/31/2014 - Derivative Suit Securities Securities Litigation Shareholders

Commissioner Adopts Rewrite Of Investment Adviser Custody Rule

To many, the words “custody” and “hide” would seem to have absolutely nothing in common. Etymologically speaking, however, they are cognates (blood relatives). Their common ancestor is the Proto-Indo-European etymon –...more

1/9/2014 - Custody Rule Financial Reporting Investment Adviser Investment Management Securities

Finders Bill Finds Some Forward Transaction

Finders in securities transactions are common but their legal status is uncertain at best. Last year, I wrote that Assembly Member Donald P. Wagner had introduced a bill, AB 713, to statutorily homologate the status of...more

1/8/2014 - Broker-Dealer Finders Nasdaq Securities

CalPERS’ Offbeat Personal Trading Policy

Yesterday’s post discussed a news report of an SEC inquiry into insider trading by CalPERS. Rather than being abashed by this news, CalPERS responded by congratulating itself on having implemented a personal trading policy....more

12/31/2013 - CalPERS Exemptions Insider Trading SEC Securities

SEC Reportedly Investigating CalPERS’ Stock Trades

In October 12, 2012, I wrote about CalPERS’ proposed adoption of regulations governing personal trading by members of its Board of Administration and employees. Although I did offer a few technical comments on the proposed...more

12/30/2013 - Government Investigations Insider Trading Pensions Public Employees Retirement Plan SEC Securities

Does The SEC’s Regulation A Proposal Defy Congress’ Clear Intent?

This week’s announcement by the Securities and Exchange Commission that it is proposing amendments to update and expand Regulation A has attracted quite a bit of attention. David Lynn writing in Broc’s Blog took special note...more

12/20/2013 - Blue Sky Laws NASAA Offerings Qualified Purchaser Regulation A SEC Securities State Regulators

Commodities And The CSL

A recent unpublished opinion by Justice William W. Bedsworth set me to cogitating on the status of commodities under the Corporate Securities Law of 1968. In Kelly v. Monex Co., 2013 Cal. App. Unpub. LEXIS 5903 (Aug. 21,...more

8/29/2013 - Broker-Dealer Commodities Securities Stocks

Loss Causation And Stichomythia

Yesterday, I wrote about the Ninth Circuit’s recent decision allowing a plaintiff to amend his complaint to plead that a subsequent event (the filing of a registration statement) had caused his loss as a result of an...more

8/21/2013 - Causation Injunctions Loss Causation SEC Securities

Your Condo May Be Secure, But Not A Security

Two years ago, I wrote about U.S. District Court Judge Dana Sabraw’s opinion in Salameh v. Tarsadia Hotels, 2011 U.S. Dist. LEXIS 30375. The case involved the question of whether ownership interests in individual units of...more

8/14/2013 - Condominiums Howey SCOTUS SEC Securities

The Politics Of Securities Enforcement

Historically, the Governor appointed California’s Commissioners of Corporations. Cal. Corp. Code § 25600. Today, the Governor still appoints the head of the new Department of Business Oversight. Having served as a...more

7/9/2013 - Appointed Public Officials Enforcement SEC Securities

Something May Be Missing In Your Affidavit Of Lost Share Certificate

When a certificated security has been lost, destroyed or wrongfully taken, the issuer has an obligation to replace that certificate if the owner...more

7/4/2013 - Affidavits Declaration Lost Share Certificates Securities

Can A Security Be Oral?

Yesterday’s post identified some of the differences between the lists of securities in the California Corporate Securities Law and the federal Securities Act of 1933. One difference that I did not mention was California’s...more

3/14/2013 - Securities

“Security” Definitions In CSL And ’33 Act – Similar But Not The Same

Both the California legislature and the U.S. Congress have enacted extensional definitions of “security” – that is Section 25019 of the Corporate Securities Law of 1968 and Section 2(a)(1) of the Securities Act each provides...more

3/13/2013 - Securities

Are There Silver Hills In Other States?

In Silver Hills May Tarnish Crowdfunding, I wrote about Justice Roger J. Traynor’s alternative definition of “security” under the predecessor to the Corporate Securities Law of 1968. Silver Hills Country Club v. Sobieski, 55...more

2/27/2013 - Crowdfunding Investment Funds Investors Risk Capital Securities

When Is A Gift A Sale?

According to Black’s Law Dictionary, a “gift” is a “voluntary transfer of property to another made gratuitously and without consideration”. Thus, it would seem that a gift could not be a sale. The California Corporations...more

2/22/2013 - Corporate Gifts Dividends Sales Securities Stocks

Federal Court Upholds Delaware Forum Selection Notwithstanding California Securities Law Claims

Corporations Code Section 25701 is California’s anti-waiver statute. It provides that “Any condition, stipulation or provision purporting to bind any person acquiring any security to waive compliance with any provision of...more

1/16/2013 - Acquisitions Anti-Waiver Statutes Forum Selection Clause Securities Waivers

Where Have All The CAFA Notices Gone?

On February 18 2005, Congress enacted the Class Action Fairness Act (CAFA), P.L. No. 109-2 (28 U.S.C. §§ 1332(d), 1453, and 1711 – 1715). In enacting the CAFA, Congress sought to protect consumers and investors from...more

1/9/2013 - CAFA Class Action Notice Requirements Securities

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