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

SEC Seeks Comment on Alternative

Posted on August 17, 2009
SEC Seeks Comment on Alternative Uptick RuleThe comment period on proposed changes to the SEC's short sale rules has been extended for 30 days so that the public may comment on an alternative approach to short selling price test restrictions. The alternative would allow short selling only at an increment above the national best bid...

5th Circuit Remains Hostile Terrain

Posted on August 14, 2009
5th Circuit Remains Hostile Terrain for Class ActionsIn Fener v. Belo Corp., a 5th Circuit panel continued that circuit's narrow view of securities class action pleading. Initially, the court rejected claims that that the Supreme Court's Stoneridge decision effectively overruled the 5th Circuit's 2007 decision in Oscar Private Equity Investments v...

9th Circuit Allows SOX Whistleblower

Posted on August 14, 2009
9th Circuit Allows SOX Whistleblower Claim to Go Forward A Sarbanes-Oxley whistleblower suit brought by two former in-house attorneys may proceed, ruled a unanimous 9th Circuit panel (Van Asdale v. International Game Technology). The case arose from the merger of companies that made gaming equipment and involved the alleged failure to disclose information concerning the viability of certain key patents...

Audit Work Papers Were Discoverable

Posted on August 14, 2009
Audit Work Papers Were Discoverable by IRS Since They Were Done for SEC-Required Financial Statements Not LitigationThe full First Circuit Court of Appeals has ruled that the attorney work product doctrine does not shield from an IRS summons tax accrual work papers prepared by a company?s lawyers to support the calculation of tax reserves for audited financial statements filed with the SEC...

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Hedge Fund Industry Seeks IRS Guidance

Posted on August 13, 2009
Hedge Fund Industry Seeks IRS Guidance on FBAR's Application to Private FundsThe hedge fund industry has asked the Internal Revenue Service for official guidance on the application of the duty to file the Report of Foreign Bank and Financial Accounts (FBAR) for investments in hedge funds and other private investment funds...

North Dakota Updates Form D Rule

Posted on August 13, 2009
North Dakota Updates Form D Rule 506 Policy*The updated parts are underlined:Issuers intending to make an offering under Rule 506 of federal Regulation D must file Temporary Form D (including the state appendix), a Form U-2, Uniform Consent to Service of Process, and fee within 15 days after the first sale of the securities in North Dakota...

UK FSA Adopts Remuneration Code for Financial Institutions

Posted on August 12, 2009
The UK Financial Services Authority has adopted a remuneration code for financial institutions, including broker dealers. The code takes effect on January 1, 2010; but by the end of October the firms must submit a remuneration policy statement providing the FSA with the information that it needs to verify that the firm?s remuneration policies and practices will be compliant with new code...

Obama Administration Unveils Legislation

Posted on August 11, 2009
Obama Administration Unveils Legislation to Regulate Derivatives, Including Credit Default SwapsThe Administration has proposed detailed legislation regulating the OTC derivatives markets. As part of the first-time federal regulation, credit default swap markets and all other OTC derivative markets would be subject to comprehensive regulation in order to guard against activities in those markets posing excessive risk to the financial system and promote the transparency and efficiency of those markets...

Financial Crisis Advisory Group

Posted on August 11, 2009
Financial Crisis Advisory Group Urges Convergence and Voices Concern over Pressure to Make Rapid Changes in Accounting StandardsA joint FASB-IASB expert group has urged the standard setters to develop a single set of high quality, globally converged financial reporting standards providing consistent information, regardless of the geographical location of the reporting entity...

EU Credit Default Swaps Begin Clearing

Posted on August 11, 2009
EU Credit Default Swaps Begin Clearing Through Central CounterpartiesCredit default swaps relating to European entities and indices based on these entities have begun clearing through central counterparties regulated in the EU. This measure is designed to reinforce financial stability by ensuring better risk management for European credit default swaps and comes in response to Commissioner McCreevy's earlier call to reduce the risks inherent in this market...

Lord Myners Defends UK Proposed

Posted on August 10, 2009
Lord Myners Defends UK Proposed Council of Financial StabilityAs debate in the US rages over whether the central bank or a council of financial regulators should be the new systemic risk regulator, the UK Financial Services Minister Paul Myners defended the government?s proposed Council of Financial Stability in testimony before the Treasury Committee...

Merits Brief Challenging Constitutionality

Posted on August 08, 2009
Merits Brief Challenging Constitutionality of PCAOB Focuses on Separation of Powers and Appointments Clause ViolationsThe audit firm challenging the constitutionality of the PCAOB has taken direct aim at the Board?s constitutional status in its merits brief filed with the US Supreme Court...

Federal Judge Withholds Approval

Posted on August 07, 2009
Federal Judge Withholds Approval of SEC-Bank of America SettlementDespite acknowledging the public importance of an SEC enforcement action against Bank of America, a federal judge (SD NY) said that the proposed consent judgment would leave uncertain the truth of the very serious SEC allegations...

Senate Legislation Would Provide

Posted on August 07, 2009
Senate Legislation Would Provide Private Right of Action for Aiding and Abetting Securities Fraud; Overruling Two Supreme Court OpinionsDraft legislation would overturn two US Supreme Court opinions and provide a private right of action for aiding and abetting securities fraud...

House Floor Colloquy Sheds Light

Posted on August 06, 2009
House Floor Colloquy Sheds Light on Frank Amendment to Corporate Governance LegislationA colloquy on the House floor between Financial Services Chair Barney Frank and Rep. Tom Price illuminated a provision inserted on the floor by the Chair into the Corporate and Financial Institution Compensation Fairness Act (HR 3269)...

Japan FSA Extends Restrictions

Posted on August 05, 2009
Japan FSA Extends Restrictions on Short SellingThe Japanese Financial Services Agency extended its restrictions on short selling until October 31, 2009. The restrictions were to have expired on July 31, 2009. Thus, the regulatory measures on short selling currently in place will continue with regard to all listed stocks in Japan...

Delaware Court Rejects Revlon Claims;

Posted on August 05, 2009
Delaware Court Rejects Revlon Claims; Approves Process-Based Approach for Evaluating Director ActionsA Revlon claim against target company directors for their conduct in negotiating a sale of the company failed. While it was possible that the directors could arguably have better navigated the sale process, held the Chancery Court, Delaware law does not require perfection...

SEC Chair Tells Senator Schumer

Posted on August 04, 2009
SEC Chair Tells Senator Schumer that Commission Will Ban Flash TradingSenator Charles Schumer (D-NY) announced that SEC Chair Mary Schapiro has assured him that the Commission plans to ban the practice of flash trading that gives advance knowledge of stock orders to certain traders...

Hong Kong Securities and Futures

Posted on August 04, 2009
Hong Kong Securities and Futures Commission Proposes Enhanced Short Position ReportingThe Hong Kong Securities and Futures Commission has proposed the enhanced transparency of short selling in line with the IOSCO principles for the regulation of short selling...

Fed Regional Presidents Criticize

Posted on August 03, 2009
Fed Regional Presidents Criticize Treasury Reform Plan for Not Addressing Too Big to FailWhile acknowledging that financial regulation reform is needed now, two regional Federal Reserve Bank presidents said that the Treasury legislative reform proposal fails to come to grips with the doctrine of too big to fail (TBTF)...

European Union Approves Legislation

Posted on August 03, 2009
European Union Approves Legislation Regulating Credit Rating AgenciesThe Council of the European Union has approved legislation providing for the regulation of credit rating agencies under a regime of sound corporate governance that includes registration, surveillance, transparency, differentiation, and monitoring duties for independent board members...

NASAA Encourages FINRA to Strengthen

Posted on August 03, 2009
NASAA Encourages FINRA to Strengthen Suitability StandardsIn a comment letter to the Financial Industry Regulatory Authority (FINRA), the North American Securities Administrators Association (NASAA) has encouraged FINRA to strengthen the suitability standards applicable to broker-dealers...

European Union Council Urges the

Posted on August 03, 2009
European Union Council Urges the Reduction of Pro-Cycality on Many FrontsThe Council of the European Union recently underscored the urgency of addressing the fact that the absence of counter-cyclical buffers and the lack of flexibility of accounting rules in allowing for through-the-cycle provisioning have been important factors in the amplification of the financial crisis...

European Union Amends Capital Requirements

Posted on August 03, 2009
European Union Amends Capital Requirements Directive to Strengthen SecuritizationThe Council of the European Union has amended the Capital Requirements Directive in an effort to enhance the originate and distribute model and strengthen securitization practices...

UK Appeals Court Rules Company

Posted on August 02, 2009
UK Appeals Court Rules Company Engaged in Fraud Could Not Claim Losses Against Its AuditorA divided UK high court of appeals has ruled that it would be against public policy to allow a company that was used by its beneficial owner as a vehicle to defraud banks to recover losses against the audit firm that failed to detect the fraud...

UK Court Says Directors Owed Duty

Posted on August 02, 2009
UK Court Says Directors Owed Duty of Loyalty with Regard to Investment PropertyIn a significant opinion involving the fiduciary duties of directors, A UK appeals court has ruled that directors violated their duty of loyalty to the company when they personally purchased investment property that came to their attention in their capacity as directors of the company acting on the company's business and using information they obtained in the course of so acting...

Senator Schumer Urges SEC to Prohibit

Posted on August 01, 2009
Senator Schumer Urges SEC to Prohibit Flash OrdersIn a letter to SEC Chair Mary Schapiro, Senator Charles Schumer (D-NY) urged the Commission to ban the practice of flash trading that gives advance knowledge of stock orders to certain traders or he would consider introducing legislation to ban the practice in connection with optional pre-routing programs in order to ensure that trading in the capital markets is fair and transparent for all market participants...

Wisconsin Announces Annual Rules

Posted on July 31, 2009
Wisconsin Announces Annual Rules RevisionWisconsin's 2009 annual rules revision is partly to make nonsubstantive changes to statutory cross references to align the rules with the new Wisconsin Securities Act that took effect January 1, 2009, along with proposing more substantive rule changes (see below)...

House Passes Corporate Governance

Posted on July 31, 2009
House Passes Corporate Governance Legislation with Say-on-Pay MandateThe House passed legislation mandating shareholder advisory votes on executive compensation as part of the overall reform of financial regulation. Final House passage is expected later this week...

House Financial Services and Ag

Posted on July 30, 2009
House Financial Services and Ag Committee Chairs Reach Agreement in Principle on Derivatives LegislationThe important derivatives regulation piece of the Obama Administration?s proposed legislation to overhaul regulation of the financial markets came closer to fruition as the Chairs of the House Financial Services and the Agriculture Committees agreed on the basic principles of derivatives legislation...

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