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

Securities Regulators Agree to

Posted on March 03, 2010
Securities Regulators Agree to International Template for Hedge Fund DisclosureWith pending legislation in the US and EU to regulate hedge funds, securities regulators have agreed to an IOSCO-vetted template for hedge fund disclosure to assist in determining systemic risks in the sector...

Federal Court Rejects Challenge

Posted on March 02, 2010
Federal Court Rejects Challenge to Creation of FINRA Citing Absolute Immunity of SROsA federal judge (SD NY) dismissed a challenge to the consolidation of the NASD and the NYSE regulatory arm that created FINRA as the sole regulator of member firms. The Exchange Act authorizes the SEC to delegate regulatory functions to self-regulatory organizations, said the court, and as a result SROs are considered quasi-governmental bodies...

With SEC's "Naked Access" Proposal,

Posted on March 02, 2010
With SEC's "Naked Access" Proposal, Microseconds May Cause Major ControversiesFractions of a second can mean the difference between victory and defeat in many arenas, from the slopes of Vancouver to the world's financial districts. In some instances, medals are at stake, but on Wall Street, the contests can involve millions of dollars...

Senate Compromise on Financial

Posted on March 02, 2010
Senate Compromise on Financial Reform Legislation Could House Consumer Financial Protection Function in Existing Federal AgencyIn an effort to craft bi-partisan financial reform legislation, the Senate Banking Committee has apparently dropped the idea of an independent consumer financial protection agency in favor of a Bureau of Financial Protection to be housed within the Fed or the Treasury...

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Florida Adopts Review of Associated

Posted on March 01, 2010
Florida Adopts Review of Associated Person Applicants' Law Enforcement Record The law enforcement records of associated person applicants who have been found guilty of, or who have pled guilty or nolo contendere to, certain crimes will be reviewed by the Office of Financial Regulation, effective March 2, 2010, to determine their eligibility to register in Florida...

In Skilling Case Supreme Court

Posted on March 01, 2010
In Skilling Case Supreme Court Oral Argument, Government Limits Theft of Honest Services Crime to Company FiduciariesIn the oral argument before the US Supreme Court in Skilling v. US, 08-1394, the government asserted that the theft of honest services crime is limited to company fiduciaries and does not extend to all employees...

UK Court Says FSA Can Obtain Documents

Posted on February 28, 2010
UK Court Says FSA Can Obtain Documents from UK Accounting Firm to Aid SEC Enforcement ActionA UK appeals court has ruled that the Financial Services Authority can satisfy an SEC request to obtain documents from a London-based accounting firm to aid an SEC enforcement action in federal court...

SEC Fifth Circuit Brief in Insider

Posted on February 28, 2010
SEC Fifth Circuit Brief in Insider Trading Case Maintains that Agreement to Keep Information in Confidence Includes Agreement Not to TradeIn a brief filed with the Fifth Circuit Court of Appeals in a PIPE-related insider trading case, the SEC argued that the federal district court (ND TX) failed to give proper deference to Commission Rule 10b5-2(b)(1), which provides that an agreement to maintain information in confidence gives rise to a duty that makes trading on the confidential information without disclosure deceptive...

Former NY Fed President Describes

Posted on February 27, 2010
Former NY Fed President Describes Difference between Risk Monitoring and Risk ManagementWith Congress poised to pass legislation creating a federal systemic risk regulator for the financial markets, former NY Fed President Gerald Corrigan emphasized the critically important difference between risk management and risk monitoring...

PCAOB Staff Interprets New Engagement

Posted on February 26, 2010
PCAOB Staff Interprets New Engagement Quality Review StandardAccording to a PCAOB staff Q&A, the new standard on engagement quality review, AS No. 7, does not require the documentation of all of the interactions between the engagement quality reviewer and the engagement team, including all of the interactions before a matter is identified as a significant engagement deficiency...

Senators Say SEC Action Falls Short

Posted on February 26, 2010
Senators Say SEC Action Falls Short of Solving Naked Short Selling ConcernSenators Ted Kaufman and Johnny Isakson said that the partial action taken by the SEC will neither provide investors with the same protections as the uptick rule nor address the enforcement issues surrounding the current naked short selling rule...

SEC Reaffirms Its Commitment to

Posted on February 24, 2010
SEC Reaffirms Its Commitment to IFRSWhile noting that incorporating IFRS into the US financial reporting system would involve a significant undertaking, SEC Chair Mary Schapiro reaffirmed the Commission?s support for a single set of global accounting standards...

Divided Commission Adopted Alternative

Posted on February 24, 2010
Divided Commission Adopted Alternative Uptick Rule for Short SalesThe below excellent analysis of the SEC's action today was filed by my colleague John Filar Atwood, who attended the SEC's open meeting at which this action was taken. In a 3-to-2 vote, the SEC adopted amendments to Rules 200(g) and 201 of Regulation SHO that will restrict short selling in instances where a company?s shares drop 10% or more in value in one day...

SEC Approves Short Selling RestrictionsThe

Posted on February 24, 2010
SEC Approves Short Selling RestrictionsThe SEC adopted a new rule restricting short selling when a stock is experiencing significant downward price pressure. The alternative uptick rule is designed to restrict short selling from further driving down the price of a stock that has dropped more than 10 percent in one day...

IOSCO Report Shows Need to Regulate

Posted on February 23, 2010
IOSCO Report Shows Need to Regulate Hedge Funds for Systemic RiskAs the US and EU try to pass legislation to regulate hedge fund operators and advisers, a report by an IOSCO working group concluded that hedge funds can have a systemic impact on financial stability and hence the lack of a prudential regime for monitoring hedge funds is a critical gap in the regulatory framework...

Amendments to Proxy Rules Offer

Posted on February 23, 2010
Amendments to Proxy Rules Offer E-Proxy FlexibilityAmendments to the SEC's e-proxy rules highlighted a series of measures announced by the Commission to educate investors about proxy voting and to support greater investor participation in corporate elections...

Reid Jobs Bill Would Mandate Tax

Posted on February 22, 2010
Reid Jobs Bill Would Mandate Tax Reporting and Withholding Regime for Foreign Financial Firms with US InvestorsThe stripped down Reid jobs bill contains the Foreign Account Tax Compliance Act as a revenue offset to the tax credits contained elsewhere in the bill...

IRS Would Increase Transparency

Posted on February 22, 2010
IRS Would Increase Transparency of Uncertain FIN 48 Corporate Tax PositionsThe IRS is developing a schedule requiring corporate filers to provide information about their FIN 48 and other uncertain tax positions that affect their federal income tax liability...

SEC Views Scope of PSLRA's Safe

Posted on February 22, 2010
SEC Views Scope of PSLRA's Safe Harbor for Forward-Looking Statements at Invitation of Second CircuitInvited by a federal appeals court to give its view on the scope of the PSLRA?s safe harbor for forward-looking statements, the SEC said that statements in the MD&A section of a Form 10-Q were within the scope of the safe harbor since the MD&A is separate and distinct from the financial statements in the 10-Q...

5th Circuit Remains Hostile to

Posted on February 22, 2010
5th Circuit Remains Hostile to Securities Class ActionsA recent panel decision involving fraud claims against Halliburton again demonstrates the difficulties class action plaintiffs face in the 5th Circuit (Archdiocese of Milwaukee Supporting Fund, Inc...

FSA Official Says Proposed Hedge

Posted on February 22, 2010
FSA Official Says Proposed Hedge Fund Directive Would Place 40 Percent of Hedge Funds Off Limits to EU Investors A study commissioned by the UK Financial Services Authority found that up to 40% of hedge funds and 35% of private equity funds would no longer be available to EU investors because of the equivalence requirements imposed on third countries by the proposed EU Alternative Investment Fund Management Directive...

Canadian Finance Minister Readying

Posted on February 21, 2010
Canadian Finance Minister Readying Draft Securities Act Creating Federal Securities RegulatorNoting that 13 provincial securities regulators for Canada is a regulatory anomaly, Finance Minister Jim Flaherty said that the government will move forward quickly to establish a Canadian securities regulator...

Japan FSA Proposes Significant

Posted on February 20, 2010
Japan FSA Proposes Significant Enhancements to Corporate Governance DisclosureThe Japanese Financial Services Agency has proposed enhanced corporate governance disclosure in a company?s securities report. Listed companies in Japan are currently required to disclose basic information of their corporate governance systems in their securities reports...

Tax Reform and Resolution Authority

Posted on February 19, 2010
Tax Reform and Resolution Authority Are Keys to Regulating Systemic RiskReforming the tax code to move it away from favoring debt and leverage towards favoring equity is a component of controlling systemic risk to the financial markets, in the view of Jaime Caruana, General Manager of the Bank for International Settlements...

Delaware Corporate Law Does Not

Posted on February 18, 2010
Delaware Corporate Law Does Not Permit Shrinking Board of Directors by a By-Law AmendmentA shareholder?s effort to shrink the board of directors by amending the corporate by-laws failed because the attempt conflicted with the Delaware Corporation Code...

State Claims Against Hedge Funds

Posted on February 18, 2010
State Claims Against Hedge Funds Survive SLUSA ChallengeThe Securities Litigation Uniform Standards Act did not preempt state claims against the directors and administrators of two defunct hedge funds (Pension Committee of the University of Montreal Pension Plan v...

New EU Commissioner for Internal

Posted on February 18, 2010
New EU Commissioner for Internal Market Wants to Act Quickly on Financial Regulatory ReformThe new Commissioner for the Internal Market, Michel Barnier, wants to act quickly on the comprehensive overhaul of EU financial regulation and harmonize it internationally...

Senator Reed Sponsors Legislation

Posted on February 17, 2010
Senator Reed Sponsors Legislation Creating Executive Agency to Collect Data on Systemic RiskSenator Jack Reed has introduced a bill creating an executive agency to collect and standardize data on financial firms and their activities to aid and support the work of the federal financial regulators...

Senator Webb May Add Excessive

Posted on February 16, 2010
Senator Webb May Add Excessive Bonus Tax Legislation to Jobs BillLegislation taxing excessive Wall Street bonuses may be added to the jobs bill by Senator James Webb (D-Va). The Webb-Boxer measure, S 2994, would impose a 50 percent excise tax on the bonuses of employees at financial firms, and Fannie and Freddie, that exceeded $400,000 in 2009...

Jobs Legislation Includes Broad

Posted on February 16, 2010
Jobs Legislation Includes Broad New Reporting and Taxing Regime for Foreign Financial InstitutionsLegislation creating a new reporting and taxing regime for foreign financial institutions with US account holders is almost certain to be part of any jobs bill that passes Congress in the next few months...

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