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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

Three Former SEC Chairs Endorse

Posted on May 14, 2008
Three Former SEC Chairs Endorse Obama Presidential BidThree former SEC chairs have endorse Democratic Sen. Barack Obama's bid for the presidency William Donaldson, Arthur Levitt and David Ruder, will join former Fed Chair Paul Volcker in endorsing Sen...

FASB Chair Emphasizes Role of Disclosure

Posted on May 14, 2008
FASB Chair Emphasizes Role of Disclosure in Fair Value AccountingIn the aftermath of the role of fair value accounting in the market crisis, FASB Chair Robert Herz noted that fair value is not a new concept and is not required in many instances. Similarly, in a recent FASB issues fact sheet, the chair reminded that the use of fair value in determining writedowns in periods of down markets is not new...

Clinton Bill Would Require Shareholder

Posted on May 14, 2008
Clinton Bill Would Require Shareholder Advisory Vote on Executive PayA bill (S 2866) recently introduced by Senator Hillary Clinton would require a voluntary shareholder advisory vote on a company?s executive compensation package. The bill is similar to a measure that passed the House last year requiring that companies include in their annual proxy to investors the opportunity cast a non-binding vote on the company?s executive pay packages...

Provisions in Farm Bill Would Close

Posted on May 13, 2008
Provisions in Farm Bill Would Close Enron LoopholeA measure reauthorizing the CFTC and closing the Enron loophole is included in the massive Farm Bill that has been reported out of a House-Senate conference and awaits congressional action, and a possible presidential veto...

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SEC Proposes Major Revision to

Posted on May 12, 2008
SEC Proposes Major Revision to Cross-Border Exemption RulesTaking notice of the increasing globalization of the securities markets, the SEC proposes to enhance and expand its cross-border exemptions to facilitation the participation of US shareholders in cross-border business transactions...

SEC Chair Cox and IASB Oversight

Posted on May 12, 2008
SEC Chair Cox and IASB Oversight Chair Herald Global XBRL Standard for Financial StatementsAt a recent XBRL conference in the Netherlands, SEC Chair Christopher Cox and IASB oversight Chair Gerrit Zalm proclaimed a strong commitment to global use of XBRL in preparing and filing financial statements...

Canadian Banking Regulator Examines

Posted on May 10, 2008
Canadian Banking Regulator Examines Fair Value Accounting from Investor AngleFair value accounting has been much in the news lately and, in my view, rightly so given the difficulty of valuing illiquid securities during the market turmoil. There is a need to get more clarity around the issue of fair value accounting in light of the ongoing market crisis, in the view of Julie Dickson, Canadian Superintendent of Financial Institutions...

IASB Chair Defends Fair Value Accounting;

Posted on May 09, 2008
IASB Chair Defends Fair Value Accounting; Says IFRS Global by 2011Fair value accounting standards are not the cause of the current market crisis, declared IASB Chair David Tweedie in remarks to the Empire Club of Canada. While conceding the difficulty of valuing complex, illiquid securities and derivatives, he believes that showing the changes in values of these securities, even imperfectly, provides critical transparency and enables markets to adjust in a necessary albeit painful manner...

Volcker Examines Fair Value Accounting,

Posted on May 08, 2008
Volcker Examines Fair Value Accounting, Hedge Funds, and Fed's RoleFormer Federal Reserve Board Chair Paul Volcker said that the market crisis has raised questions about the usefulness of mark-to-market accounting, particularly its extension in uncertain and illiquid markets to what is euphemistically known as fair value accounting...

Basel Chair and ECB Chief Say Basel

Posted on May 07, 2008
Basel Chair and ECB Chief Say Basel II Key to Securitization ReformThe Basel II Accord will be a crucial element in controlling off-balance sheet entities and other risk exposures as the securitization process is reformed, in the view of Basel Committee Chair Nout Wellink and European Central Bank President Jean-Claude Trichet...

Failure to Disclose Receipt of

Posted on May 05, 2008
Failure to Disclose Receipt of Wells Notice Does Not Support Demand Futility Applying Delaware law, a federal judge ruled that a shareholder derivative action alleging proxy fraud in the company?s failure to disclose its receipt of a Wells Notice from the SEC could not proceed because of a failure to show demand futility...

Directors Owe No Fiduciary Duty

Posted on May 03, 2008
Directors Owe No Fiduciary Duty to Warrant Holders, But They Deserve Truthful AnswersDirectors did not have a fiduciary duty to holders of warrants in the company?s stock, ruled the Delaware Chancery court, and thus had no duty to give the warrant holders advance notice of dividend declarations...

Treasury Blueprint Envisions Fed

Posted on April 30, 2008
Treasury Blueprint Envisions Fed as Macro-Prudential Regulator for Financial FirmsThe Treasury Blueprint?s role for the Federal Reserve Board as market stability regulator envisions macro-prudential regulation that may encompass the risk exposures of hedge funds and other financial firms, according to David Nason, Assistant Secretary for Financial Institutions...

Treasury Official Views Fed-SEC

Posted on April 30, 2008
Treasury Official Views Fed-SEC Efforts on Consolidated Supervised EntitiesIn remarks at a London seminar on new financial frontiers, David Nason, Treasury official for financial institutions, said that the recasting of the Fed into a market stability regulator is in the future...

Intertwining of Bank and Securities

Posted on April 30, 2008
Intertwining of Bank and Securities Activities Strains Risk Management Says Fed Vice Chair KohnIn the wake of the Gramm-Leach-Bliley Act, noted Fed Vice Chairman Donald Kohn, large commercial and investment banks have become indispensable to the efficiency and stability of the securities markets...

Conference Board Proposes Best

Posted on April 29, 2008
Conference Board Proposes Best Practices on Hedge Fund ActivismA Conference Board working group has issued proposed recommendations for companies and institutional investors facing hedge fund activism. The Hedge Fund Activism working group suggested a number of practices that could be employed by public companies and institutional investors that find themselves involved in activism campaigns mounted by hedge funds...

European Commission Working Group

Posted on April 28, 2008
European Commission Working Group Sees US GAAP Equivalent to IFRSNoting that the convergence of US GAAP and IFRS is proceeding at an appropriate pace, a European Commission working group found that US GAAP is equivalent to IFRS for use in EU markets. In its report, the working group also praised the SEC for its recent elimination of the need for foreign private issuers to reconcile IFRS-driven financial statements to US GAAP...

FSA Director Says Due Diligence

Posted on April 26, 2008
FSA Director Says Due Diligence and Risk Management Key to Reform of SecuritizationEnhanced investor due diligence and strengthened risk management are the keys to the future of originate and distribute securitization, in the view of a senior UK FSA official...

SEC Has Int'l Enforcement Ability

Posted on April 24, 2008
SEC Has Int'l Enforcement Ability Regarding Sovereign Wealth FundsSeeking to allay the fears of Senate Banking Chair Christopher Dodd, an SEC senior official outlined the Commission?s enforcement capabilities with regard to sovereign wealth funds. Ethiopis Tafara, Director of the International Affairs Office, told the committee that an effective enforcement mechanism takes on heightened importance when sovereign wealth funds are involved since, while cross-border enforcement assistance involving private actors is readily honored, help may not as forthcoming when the subject is the government itself...

Washington First State to Propose Rules Chgs. to Accommodate SEC New Electronic Form D

Posted on April 24, 2008
Washington became the first state to propose changes to its Regulation D rules to coordinate with the SEC's recent adoption of amendments to federal Regulation D authorizing electronic filing of Form D through EDGAR. The SEC adoption allows Form D to be submitted in print or electronic format for a six-month period from September 15, 2008 to March 15, 2009...

Blue Sky No-Action Letter: Fin. Mgmt. Advisory Co. Permits Retired Advisers to Participate in Fee-Based Program to Consult with Former Clients

Posted on April 24, 2008
As often happens in Blue Sky law, a firm's request for a no-action letter in one state is granted so the firm makes the request in a number of states, resulting in the issue addressed in the no-action letter setting a new trend. Morever, the issue setting the trend typically arises out of a new condition in the business community taking place in the Country at the particular time...

McCreevy Praises Clearing and Settlement

Posted on April 22, 2008
McCreevy Praises Clearing and Settlement Code; But Warns Last Chance for Private SolutionThe private sector Code of Conduct on clearing and settlement has been very positive, said EU Commissioner for the Internal Market Charlie McCreevy, but at the same time he called on all infrastructures to fully respect and apply the Code in order to show that it can deliver competition...

IASB Oversight Chair Vows No More

Posted on April 22, 2008
IASB Oversight Chair Vows No More IFRS Carve OutsIn his first major address to the European Parliament, Gerrit Zalm, oversight chair of the IASB praised the SEC?s recent actions advancing the use of IFRS by foreign private issuers and US public companies...

Fraud Claims Revived Under Tellabs

Posted on April 18, 2008
Fraud Claims Revived Under Tellabs Analysis: 1st CircuitA securities fraud plaintiff pleaded "enough to give rise to inferences that are at least as strong as any competing inferences regarding scienter," wrote a 1st Circuit panel, as the court re-instituted one of four dismissed claims under a Tellabs analysis...

President's Working Group Committees

Posted on April 18, 2008
President's Working Group Committees Issue Best Practices for Hedge Fund Managers and InvestorsTwo private-sector 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...

McCreevy Urges Reform of Level

Posted on April 18, 2008
McCreevy Urges Reform of Level 3 of Lamfalussy ProcessAs the European Commission initiative to reform the Lamfalussy process rolls on, Internal Market Commissioner Charlie McCreevy urgently called for the strengthening of the Level 3 committees in order to clarify their duties and properly equip them...

Corporate Officers Also Have Fiduciary

Posted on April 15, 2008
Corporate Officers Also Have Fiduciary Duties under CaremarkA federal bankruptcy court has ruled that corporate officers, as well as directors, have fiduciary duties to the company under Delaware?s Caremark line of cases. While Delaware law does not impose fiduciary duty on employees generally, noted the court, it does impose failure of oversight fiduciary duty as to officers...

Claimed Government Misconduct Not

Posted on April 15, 2008
Claimed Government Misconduct Not a Bar to ProsecutionA 9th Circuit panel found that a district court improperly dismissed criminal securities fraud charges against two former corporate officers. The district court concluded that the government had engaged in quotedeceitful conduct quote in violation of due process by simultaneously pursuing civil and criminal investigations...

Investment Firm Entitled to Rule

Posted on April 15, 2008
Investment Firm Entitled to Rule 16b-3(d) Director ExemptionA 2nd Circuit panel held that the Exchange Act Rule 16b-3(d) exemption applies to so-called "directors by deputization." (Roth v. Perseus, L.L.C.) In reaching this result, the appellate panel found persuasive the SEC's interpretation of Rule 16b-3(d) that such directors, even if they were also 10 percent holders, were protected by the rule...

IAASB Revises Standard on Management

Posted on April 14, 2008
IAASB Revises Standard on Management Written Representations to AuditorAs part of its ongoing project to revise and redraft auditing standards, the International Auditing and Assurance Standards Board revised the standard governing written statements that management provides to auditors to confirm certain matters or to support other audit evidence...

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