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Corporate & Securities Law

Jim Hamilton's World of Securities Regulation

Opines on every level of securities regulation (federal, state, international, theoretical) covering market players of all types (e.g., accountants, broker-dealers, foreign issuers, hedge funds, market manipulators) who engage all sorts of transactions and activities (acquisitions, financial reporting, private placements, pyramid schemes). Highlights issues of particular importance to securities lawyers and their clients with emphasis on SEC rulemaking, industry trends, and the many curiosities that inhabit this world.
By Jim Hamilton

Post Frequency: 15.3/day

Last Entry: April 01, 2011 at 16:29:00

European Commission Seeks Public

Posted on January 26, 2009
European Commission Seeks Public Comment on Prospectus DirectiveWe are indebted to my colleague John Filar Atwood for the below post.The European Commission has issued a consultation paper on proposals to improve and simplify the prospectus directive...

SEC Chair Schapiro Cautions on

Posted on January 26, 2009
SEC Chair Schapiro Cautions on IFRS RoadmapSEC Chair Mary Schapiro said the Commission would proceed to implement IFRS with great caution in order to avoid a race to the standard setting bottom. At her confirmation hearing before the Senate Banking Committee, the new SEC Chair said that she does not feel bound by the existing roadmap that the Commission put out for comment last year...

European Commission Proposes Public

Posted on January 26, 2009
European Commission Proposes Public Funding for Accounting and Auditing Standard SettersIn an effort to address the independent funding issue hanging over the IASB with the global acceptance of IFRS, the European Commission has proposed public funding for the Board in an effort to enhance its independence...

Geithner Will Direct IRS to Examine

Posted on January 24, 2009
Geithner Will Direct IRS to Examine Legislation Repealing IRC 162(m) Exemption for Performance-Based Executive CompensationAt his confirmation hearings, Treasury Secretary Tim Geithner agreed to consider legislation to amend section 162(m) of the Internal Revenue Code to eliminate the deduction of commissions and performance-based pay for a company?s most highly paid exexutives...

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Michigan Adopts Uniform Securities

Posted on January 23, 2009
Michigan Adopts Uniform Securities Act of 2002Michigan adopted Act 551, which can be cited as the "Michigan Uniform Securities Act (2002)." This Act replaces the existing Michigan Securities Act, and is effective October 1, 2009. Although differences occur, this new Act adopts a large part of the Uniform Securities Act of 2002 (USA 2002) verbatim...

Appeals Court Finds Protection

Posted on January 23, 2009
Appeals Court Finds Protection for Tax Accrual Work Papers Produced for Dual Purpose of Possible IRS Litigation and SEC-Filed Financial StatementsA split First Circuit panel ruled that the work-product doctrine protects tax accrual work papers prepared by a company for the purpose of calculating tax reserve liability from an IRS subpoena even though the work papers were also prepared in conjunction with the independent audit of the company?s SEC-filed financial statements...

House Passes TARP Reform Bill Emphasizing

Posted on January 22, 2009
House Passes TARP Reform Bill Emphasizing Oversight and Executive Compensation ReformThe House passed a bill to reform the Troubled Assets Relief Program (TARP) provisions of the Emergency Economic Stabilization Act of 2008. The vote was 260-166. The TARP Reform and Accountability Act, HR 384, would strengthen accountability, close loopholes, increase transparency, and require Treasury to take significant steps on foreclosure mitigation...

Dismissal of Enron SPE Action Against

Posted on January 22, 2009
Dismissal of Enron SPE Action Against JPMorgan Chase & Co. AffirmedA class action suit against JPMorgan Chase & Co. arising from an affiliated special purpose entity involved with Enron Corp. were properly dismissed, concluded the 2nd Circuit...

Frank Reorganizes Financial Services

Posted on January 22, 2009
Frank Reorganizes Financial Services Committee for 111th CongressFacing the need for major financial regulation reform legislation this year, House Financial Services Committee Chair Barney Frank has named crucial subcommittee chairs for the 111th Congress...

Senate Reform Bill Would Enhance

Posted on January 22, 2009
Senate Reform Bill Would Enhance SEC Enforcement CapabilitiesIn the wake of the Madoff scandal and as the financial crisis deepens, Senators Charles Schumer and Richard Shelby introduced bipartisan legislation to enhance SEC enforcement capabilities, as well as overall federal enforcement ability...

Minnesota Proposes Securities Rules

Posted on January 21, 2009
Minnesota Proposes Securities Rules to Coordinate with New ActNew securities rules to coordinate with the Minnesota Uniform Securities Act adopted in 2007 were proposed by the State's Department of Commerce.The proposed rules can be found at http://www...

Ohio Adopts Electronic Filing Procedures

Posted on January 21, 2009
Ohio Adopts Electronic Filing Procedures for Investment Company and Rule 506 IssuersFederally-registered investment companies (or those investment companies having filed a registration statement under the Investment Company Act of 1940), and issuers intending to make a securities offering under Rule 506 of federal Regulation D, may file electronically a Form NF, Uniform Investment Company Notice Filing, or Form D, Notice of Sale of Securities Pursuant to Regulation D, respectively...

SEC Commissioner Calls for Legislation

Posted on January 21, 2009
SEC Commissioner Calls for Legislation to Register Hedge Fund AdvisersSEC Commissioner Luis Aguilar has called on Congress to pass legislation mandating the registration of hedge funds so that the Commission can obtain at least basic information about the funds and their advisers...

President's Working Group on Financial

Posted on January 20, 2009
President's Working Group on Financial Markets Issues Best Practices for Hedge Fund ManagersAgainst the backdrop of market turmoil, two committees established by the President's Working Group on Financial Markets have issued complementary sets of best practices for hedge fund investors and asset managers in the most comprehensive effort yet to increase accountability for participants in this industry...

President Obama Brings Winds of

Posted on January 19, 2009
President Obama Brings Winds of Securities Regulatory ChangeIt is fitting that President Obama will take the oath of office today on the bible used by President Lincoln because, like Lincoln, he comes into office with a full blown crisis well underway...

Treasury Amends TARP Executive

Posted on January 18, 2009
Treasury Amends TARP Executive Compensation Rules to Drop CD&A Disclosure and Clarify Duties of SEC Smaller Reporting CompaniesThe Treasury regulations for financial institutions participating in the troubled asset relief program (TARP) under the Emergency Economic Stabilization Act have been amended to require that the compensation committee?s certification be included in the committee?s report rather than in the Compensation Discussion & Analysis portion of SEC filings...

Using SEC Data, GAO Finds that

Posted on January 17, 2009
Using SEC Data, GAO Finds that TARP Recipients Have Subsidiaries in Offshore Tax Havens; Legislation LikelyA new GAO study reveals that an overwhelming majority of the 100 largest U.S. corporations in terms of 2007 revenue reported to the SEC have multiple subsidiaries in offshore tax havens...

Senate Bill Would Regulate OTC

Posted on January 17, 2009
Senate Bill Would Regulate OTC Derivatives and Credit Default SwapsA bill introduced by Senator Tom Harkin would bring all OTC financial transactions and credit default swaps currently traded without federal oversight onto regulated exchanges. The Derivatives Trading Integrity Act, S...

House Stimulus Bill Would Repeal

Posted on January 15, 2009
House Stimulus Bill Would Repeal IRS Ruling 2008-83 Favoring Bank Acquisitions; Exclude TARP Recipients from 5-Year Loss CarrybackThe economic stimulus bill unveiled by the House today would prospectively repeal IRS Notice 2008-83 that interprets Section 382 of the Internal Revenue Code to allow banks and other financial institutions pursuing acquisitions to write-off acquired losses stemming from takeovers of other banks to offset future income...

Class Action Removable to Federal

Posted on January 15, 2009
Class Action Removable to Federal Court Under CAFASecurities class actions covered by the Class Action Fairness Act of 2005 were removable to federal court, concluded a 7th Circuit panel. The case, which arose from a real estate investment trust merger,conflicts with a July 2008 9th Circuit case on the interplay between the non-removal provisions of the 1933 Act and CAFA...

SOX Whistleblower Claim Properly

Posted on January 15, 2009
SOX Whistleblower Claim Properly DeniedThe Department of Labor properly affirmed an administrative review board's dismissal of a whistleblower claim under Sarbanes-Oxley Act Section 1514A. The employee, who reported alleged accounting improprieties by his employer, Intel Corp...

Former Fed Chief Volcker Unveils

Posted on January 15, 2009
Former Fed Chief Volcker Unveils Plan for Reforming Financial RegulatioFormer Federal Reserve Board head Paul Volcker has unveiled a plan for the reform of the regulation of the financial markets that envisions a macro prudential regulator and more robust regulation of credit rating agencies...

Auditors Advised on Going Concern

Posted on January 14, 2009
Auditors Advised on Going Concern Issues Spawned by Financial CrisisIn light of the impact of the current crisis on financial statements, the European Federation of Accountants has advised auditors on issues ranging from fairly valuing securities to going concern considerations...

US Supreme Court Asked to Rule

Posted on January 13, 2009
US Supreme Court Asked to Rule PCAOB UnconstitutionalA small audit firm has asked the US Supreme Court to declare the PCAOB unconstitutional because Sarbanes-Oxley Act provisions creating the Board violated the separations of powers and Appointments Clause by stripping the President of all powers to appoint or remove or otherwise supervise Board members...

House Bill Would Require SEC to

Posted on January 13, 2009
House Bill Would Require SEC to Reinstate the Uptick RuleActing on a growing congressional sentiment for the SEC to reinstate the uptick rule, which was rescinded in 2007, Rep. Gary Ackerman has introduced a bill, HR 302, in the 111th Congress that would order the SEC to reinstate the uptick rule within 90 days...

Financial Crisis Advisory Group

Posted on January 12, 2009
Financial Crisis Advisory Group Members Named; First Meeting ScheduledThe first meeting of the joint IASB-FASB advisory group created to consider financial reporting issues arising from the global financial crisis will occur this month. The group is co-chaired by Hans Hoogervorst, Chairman of the Netherlands Authority for the Financial Markets and former SEC Commissioner Harvey Goldschmid...

ABA's Blue Sky Bugle Newsletter

Posted on January 09, 2009
ABA's Blue Sky Bugle Newsletter for Blue Sky LawyersThe ABA's Committee of State Securities Regulation publishes an online newsletter of articles of interest to Blue Sky lawyers. This newsletter, called the "Blue Sky Bugle," is published around major holidays about four times per year...

Frank TARP Reform Bill Emphasizes

Posted on January 09, 2009
Frank TARP Reform Bill Emphasizes Executive Compensation ReformHouse Financial Services Committee Chair Barney Frank (D-MA) has introduced a bill to reform the Troubled Assets Relief Program (TARP) provisions of the Emergency Economic Stabilization Act of 2008 The TARP Reform and Accountability Act, HR 384, would strengthen accountability, close loopholes, increase transparency, and require Treasury to take significant steps on foreclosure mitigation...

European Commission Launches Review

Posted on January 08, 2009
European Commission Launches Review of Hedge Fund Regulation in Light of Financial Crisis The European Commission has launched a wide-ranging consultation on the regulation of hedge funds in light of the financial crisis. The consultation will examine issues dealing with transparency, market integrity, risk management at the hedge funds, and any systemic risks that the funds may impose...

GAO Provides Framework for Modernizing

Posted on January 08, 2009
GAO Provides Framework for Modernizing Financial Regulatory SystemThe GAO has provided Congress with a broad framework for modernizing the needlessly complex and fragmented financial regulatory system. The fragmentation of US financial regulation, said the report, has complicated efforts to coordinate securities regulation internationally...

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