Jim Hamilton's World of Securities Regulation: Corporate & Securities Law

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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

Conference Committee Struck Compromise

Posted on June 29, 2010
Conference Committee Struck Compromise on Uniform Duty of Care for Brokers and AdvisersThe current regulatory regime treats brokers and advisers differently and subjects them to different standards of care even though the services they provide investors are very similar and investors view their roles as essentially the same...

Conference Committee Reconvenes

Posted on June 29, 2010
Conference Committee Reconvenes to Deal With PAYGO and Adjourns AgainHouse-Senate conference on the financial reform legislation reconvened today to deal with the objection of key Republican Senators to Title XVI of the legislation, which complied with the Statutory Pay-As-You-Go Act by establishing a financial crisis assessment regime, with an attendant fund housed in Treasury...

Franken Amendment on Random Assignment of Credit Ratings May Yet Be Implemented

Posted on June 28, 2010
The legislation that passed the Senate on May 20, 2010 contained a provision, Sec. 939D, authored by Senator Al Franken that conducted a frontal attack on the conflict of interest problem by adding new Exchange Act Sec. 15E(w) to create an SRO overseen by the SEC that would assign credit rating agencies to provide initial ratings for asset-backed securities and structured financial products on a rotating basis...

PCAOB's Dual Insulation from President's

Posted on June 28, 2010
PCAOB's Dual Insulation from President's Authority Violates Constitutional Separation of Powers DoctrineThe PCAOB?s double layer of insulation from presidential removal of its members is an unconstitutional violation of the Separation of Powers doctrine, ruled the US Supreme Court...

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Federal Tax Bar Loses GiantWe note

Posted on June 28, 2010
Federal Tax Bar Loses GiantWe note with great regret the passing of Martin D. Ginsburg, eminent authority on the federal tax code and spouse of US Supreme Court Justice Ruth Bader Ginsburg. Mr. Ginsburg was a professor at Georgetown University Law Center and of counsel to the law firm of Fried, Frank, Harris, Shriver and Jacobson; or as Mr...

Dodd-Frank Act Creates Financial

Posted on June 27, 2010
Dodd-Frank Act Creates Financial Crisis Assessment Regime to Comply with PAYGOIn order to comply with the Statutory Pay-As-You-Go Act, the Dodd-Frank Act establishes a financial crisis assessment regime, in Title XVI, with an attendant fund housed in Treasury...

House-Senate Conference Reports

Posted on June 25, 2010
House-Senate Conference Reports Out Historic and Sweeping Overhaul of US Financial RegulationA House-Senate conference committee has reported out the Dodd-Frank Wall Street Reform and Comsumer Protection providing for a sweeping overhaul of the regulation of US financial services and markets...

Supreme Court Restricts Extraterritorial Application of US Federal Securities Laws

Posted on June 24, 2010
In what is perhaps the first foreign-cubed case to ever reach the US Supreme Court, the Court ruled that Rule 10b-5 does not provides a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges...

Leahy Antifraud Amendment Approved by Senate Conferees

Posted on June 23, 2010
By unanimous consent, Senate conferees approved the bi-partisan Leahy Amendment, which is an antifraud amendment that Senator Leahy had offered on the Senate floor (SA 3794). The amendment was not voted on before the Senate passed the bill. As of last night, the House had not acted on the Leahy Amendment...

Senate Conferees Agree on Shareholder Advisory Vote on Golden Parachutes

Posted on June 23, 2010
Senate conferees, on June 22, 2010, acceded to the House and agreed to require a shareholder advisory vote on golden parachutes. The bill the House passed had included golden parachutes in the say on pay provision, but the Senate-passed bill did not. Both House and Senate bills add a new section to the Exchange Act proxy provisions mandating a separate shareholder advisory vote to approve the compensation of the executives as disclosed pursuant to the SEC executive compensation disclosure rules for named executive officers...

Senate Conferees Approve Harkin Amendment on Fixed Income Annuities

Posted on June 23, 2010
By an 8-4 vote, Senate conferees approved an amendment to the financial reform legislation that would treat fixed index annuities as insurance products to be regulated by state insurance officials, thereby essentially nullifying SEC Rule 151A. The amendment was offered by Senator Tom Harkin...

Specter Amendment Having Last Hurrah

Posted on June 22, 2010
An amendment offered by Rep. Maxine Waters in the House-Senate conference on the financial reform legislation mirrors an amendment offered to the Senate bill by Senator Arlen Spector (D-PA) that would overturn two US Supreme Court opinions and provide a private right of action for aiding and abetting securities fraud...

House-Senate Conference Agrees

Posted on June 22, 2010
House-Senate Conference Agrees to Amendment Facilitating US Covered Bonds MarketHouse-Senate conferees accepted an amendment sponsored by Rep. Scott Garrett that would facilitate a covered bonds market in the U.S. to add liquidity and certainty to the capital markets...

House and Senate Conferees Reaching

Posted on June 21, 2010
House and Senate Conferees Reaching Consensus on Corporate Governance ProvisionsHouse and Senate conferees have completed a great deal of agreement on the corporate governance provisions of the financial reform legislation, There will be a requirement for a non-binding shareholder advisory vote on executive compensation in the final legislation...

Senate Conferees Defend Payment,

Posted on June 20, 2010
Senate Conferees Defend Payment, Clearance and Settlement Provisions of Financial Reform LegislationThe Chair of the Senate Banking Committee, Senator Chris Dodd, and his Ranking Member Senator Richard Shelby strongly defended Title VIII of the financial reform legislation at the June 17, 2010 meeting of the House-Senate conference reconciling the House-Semate bills...

SEC Ombudsman and Whistleblower

Posted on June 19, 2010
SEC Ombudsman and Whistleblower Protection Office Added to Financial Reform Conference BillTwo new provisions were put into the financial reform conference bill this past week. They were both proposed by the House and accepted by the Senate.SEC Ombudsman: There would be created within the SEC an overall ombudsman...

Senate Conferees Agree to End Credit Rating Agency Expert Exemption

Posted on June 18, 2010
At the core of the Securities Act is the idea that a company should provide investors with basic information about the securities it is issuing. It requires issuers to publicly disclose significant information about themselves and terms of the securities...

SEC Self Funding Still Under Debate

Posted on June 17, 2010
After the House agreed to the Senate provision providing that the SEC could become self-funding, Senate conferees had doubts about SEC self-fuding being outside the congressional approproiation process. Senator Richard Shelby proposed an amendment that would give appropriators a role in the process...

Senate Proposes Minimum Ownership Thresholds and Holding Period for Proxy Access

Posted on June 17, 2010
In the House-Senate conference, the Senate has proposed changes in the proxy access provision in the financial reform legislation that would provide for a five percent ownership threshold and two-year holding period for access to management's proxy card to nominate directors...

Senate Proposal in House-Senate Conference on Financial Reform Would Overrule Supreme Court Gustafson Opinion

Posted on June 17, 2010
A Senate counteroffer in the House-Senate conference reconciling the two versions of financial reform legislation would amend the Securities Act to address the effects of a 1995 Supreme Court ruling in the Gustafson case that has left investors in private securities offerings without protection from material misstatements or omissions in the security?s prospectus...

Senate Agrees to a Number of House Proposals on Financial Reform

Posted on June 17, 2010
At the House-Senate conference commitee yesterday on financial reform legislation, theSenate agreed with the House proposals below and these provisions are now part of the conference billAdd the House provision requiring the SEC to study the need for enhanced examination and enforcement resources for investment advisers...

New Democrat Coalition Seeks Removal

Posted on June 17, 2010
New Democrat Coalition Seeks Removal of Ban on Bank Derivatives Trading and Swap Dealer Fiduciary Duty from Senate Reform BillThe New Democrat Coalition opposes provisions in the Senate financial reform bill that would ban bank trading of derivatives and impose a fiduciary duty on swap dealers and the governmental entities and pension funds with whom they contract in swaps...

House-Senate Conferees Reach Compromise on Franken Amendment

Posted on June 16, 2010
The House-Senate conference on the financial reform legislation has reached a compromise on the Franken Amendment mandating a new SRO within the SEC to randomly assign initial credit ratings for structured products. Under the compromise, the Franken Amendment, codified as Section 939D of the Senate bill , would take effect after an SEC study and report to Congress...

House Agrees with Senate on SEC Self-Funding

Posted on June 16, 2010
The SEC is very likely to be granted self-funding in the conference bill that emerges from the ongoing House-Senate conference. During the conference session of June 16, the House acceded to the Senate provision (Sec. 991) providing for the SEC to become a self-funding organization...

Senate Conferees Agree to Section 404(b) Exemption for Smaller Companies

Posted on June 16, 2010
After a spirited debate, Senate conferees in the House-Senate conference committee on financial reform legislation agreed by a 7-5 vote to a House provision exempting small issuers (less than $75 million in market capitalization) from the requirements of Sarbanes-Oxley Section 404(b) (House � 7606)...

Financial Reform Base Conference

Posted on June 15, 2010
Financial Reform Base Conference Bill Carves Out Exemptions from Mandate of Independent Compensation CommitteesThe baseline conference bill contains the Senate corporate governance provisions. But the provision mandating independent compensation committees contains substantive differences in the baseline conference bill from the bill that passed the Senate last month...

Collins Amendment Adds Leverage and Risk-Based Capital Requirements to Systemic Risk Title of Financial Legislation

Posted on June 14, 2010
Section 171 of the baseline financial reform legislation, authored by Senator Susan Collins, and inserted by way of amendment to the Restoring American Financial Stability Act on the Senate floor, would require financial firms to have adequate amounts of cash and other liquid assets to survive financial crisis...

Competing Drafts of EU Hedge Fund Legislation Differ Radically in Treatment of US Hedge Funds and Advisers

Posted on June 14, 2010
As European hedge fund legislation moves towards final passage, there remains a material differences of view between the Council of Ministers and the European Parliament over the treatment of US and other non-EU hedge funds and hedge fund advisers, called third country funds and fund managers in EU regulatory parlance...

House Aims to Remove Franken Amendment from Baseline Conference Financial Reform Bill

Posted on June 14, 2010
In tommorrow's meeting of the House-Senate conference committee on the financial reform legislation, the House will propose the stripping of the Franken Amendment in the baseline conference bill. The Franken Amendment, codified as Sec. 939D, would create an SRO under the SEC that would randomly assign responsibility for initial ratings of structured securities to a qualified credit rating agency...

House Passes Legislation Ending Carried Interest; Measure Now in Senate

Posted on June 10, 2010
The House has passed legislation that would prevent investment fund managers from paying taxes at capital gains rates on investment management services income received as carried interest in an investment fund. To the extent that carried interest reflects a return on invested capital, the American Jobs and Closing Tax Loopholes Act, HR 4213, would continue to tax carried interest at capital gain tax rates...

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