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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 Proposes Regulation

Posted on November 12, 2008
European Commission Proposes Regulation of Credit Rating AgenciesWith the financial crisis still roiling, the European Commission has proposed the strict regulation of credit rating agencies in an effort to restore confidence in the markets. The regulations are designed to ensure that the ratings issued by the agencies are independent, objective, and of the highest quality...

"Lost Causes?"--Fraud Pleading

Posted on November 12, 2008
"Lost Causes?"--Fraud Pleading in the 5th Circuit In light of two decisions by 5th Circuit panels and a recent district court decision within the circuit, it appears that the 5th may be the place where class actions go to die, and the cause of death is likely to be loss causation...

French Central Bank Head Calls

Posted on November 11, 2008
French Central Bank Head Calls for Macro Prudential Regulation and Securitization ReformEchoing the call of the US Treasury blueprint and other policy makers, French central bank governor Christian Noyer said that macro prudential must be an essential component of reforming financial regulation...

Appellate Courts Struggle with

Posted on November 11, 2008
Appellate Courts Struggle with "Core Operations," "Collective Scienter" InferencesCourts have long recognized that an actionable inference of scienter may not be drawn merely from the fact that individual defendants were senior officers of a company. However, recent circuit court cases issued in light of the Supreme Court's Tellabs, Inc...

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Kansas Reluctantly Grants IA Registration

Posted on November 11, 2008
Kansas Reluctantly Grants IA Registration Exemption for Hedge Fund Managers in No-Action LetterNo enforcement action was taken by the Kansas Office of the Securities Commissioner against managers of a large private equity investment fund ("hedge fund") for failing to register as investment advisers under the Kansas Uniform Securities Act...

Proposed Changes to Dutch Corporate

Posted on November 11, 2008
Proposed Changes to Dutch Corporate Governance (Tabaksblat) Code Focus on Executive CompensationChanges have been proposed to the Dutch Corporate Governance Code, popularly known as the Tabaksblat Code, that will produce significant changes in management remuneration, including the introduction of a claw back clause...

European Commission Says IASB Must

Posted on November 10, 2008
European Commission Says IASB Must Urgently Provide Guidance on Embedded Derivatives in CDOs and Reclassification Out of Fair ValueThe European Commission has endorsed the IASB?s recent ameliorating changes to fair value accounting standards. The IASB standards are consistent with changes made to fair value accounting by FASB and the SEC?s Office of the Chief Accountant...

SEC Staff Legal Bulletin Discusess

Posted on November 10, 2008
SEC Staff Legal Bulletin Discusess Shareholder Proxy Proposal Rule 14a-8In its continuing effort to identify and provide guidance on issues that commonly arise under the shareholder proposal rule, Rule 14a-8, the Division of Corporation Finance issued Staff Legal Bulletin No...

Cox Pledges Greater International

Posted on November 09, 2008
Cox Pledges Greater International Enforcement Efforts; SEC Developed Enhanced MOUAgainst the backdrop of impending financial market reform, which many policy makers say must be global, SEC Chairman Christopher Cox committed the Commission to greater international enforcement actions on top of recent efforts...

Dodd Will Remain Senate Banking

Posted on November 07, 2008
Dodd Will Remain Senate Banking Committee Chair to Guide Legislative Reform of Financial RegulationNoting that he is remaining chair of the Banking Committee in the upcoming 111th Congress, Senator Christopher Dodd said that the first order of business will be to erect a new financial regulatory regime in order to restore investor confidence in the securities markets...

Vermont's Proposed 506 Offering

Posted on November 06, 2008
Vermont's Proposed 506 Offering Rule Modified to Accommodate Electronic Form DVermont's 506 offering rule, recently proposed by the Department of Banking, Insurance, Securities and Health Care Administration, was modified to accommodate electronic Form D that issuers have the option of filing electronically through March 15, 2009 but will be required to file electronically with EDGAR starting March 16, 2009...

NACD Issues Key Principles for

Posted on November 06, 2008
NACD Issues Key Principles for Sound Corporate GovernanceThe National Association of Corporate Directors has issued a set of key corporate governance principles embodying the values of transparency, accountability, shareholder communication and access, and the proper tone at the top...

NY Fed Welcomes Industry Effort

Posted on November 05, 2008
NY Fed Welcomes Industry Effort on OTC Derivatives InfrastructureThe Federal Reserve Bank of New York has praised the initiative of hedge fund industry groups and major market participants to further strengthen the operational infrastructure for OTC derivatives...

US Treasury Endorses Code of Best

Posted on November 05, 2008
US Treasury Endorses Code of Best Practices for Sovereign Weath FundsThe US Treasury has endorsed a voluntary set of principles for sovereign wealth funds recently adopted by an international working group vetted by the IMF. In remarks at the Dubai International Financial Center, Deputy Secretary Robert Kimmitt said that the principles underscore the fact that sovereign funds have a decades-long track record of investing on sound economic and financial grounds, and are long-term investors that can tolerate short-term volatility...

Volcker Report on Financial Regulation

Posted on November 05, 2008
Volcker Report on Financial Regulation Favors Twin Peaks Approach of Tresury Blueprint for ReformWith former Federal Reserve Board Chair Paul Volcker reported to be President-Elect Obama?s principal adviser on the financial and securities markets, a recently released report by Mr...

Fed Chair Bernanke Sets Out Three

Posted on November 04, 2008
Fed Chair Bernanke Sets Out Three Scenarios for Reforming the Securitization of MortgagesNoting that no mortgage securitization is occurring today in the absence of a government guarantee, Federal Reserve Board Chairman Ben Bernanke set forth three alternative ways to reform securitization so that mortgage-backed securities can regain the confidence of investors: privatize Fannie Mae and Freddie Mac, tie them closer to the federal government, or introduce covered bonds...

Utah Proposes Amendments to 506

Posted on November 04, 2008
Utah Proposes Amendments to 506 Notice Filing Rule to Allow for Electronic Form DProposed amendments to its 506 offering rule by the Utah Securities Division would permit issuers to file either: (1) Temporary Form D until March 15, 2009; or (2) a copy of the notice of sales on Form D filed electronically with the SEC until an electronic filing system acceptable to the Division is implemented by NASAA...

California Provides Guidance on

Posted on November 04, 2008
California Provides Guidance on BD Licensing Requirements for Issuers' Directors and Officers Effecting Securities Transactions without Receiving Commissions following People v. ColeCalifornia's policy on broker-dealer licensing for an issuer's officers or directors who effect securities transactions without receiving a commission was clarified in a release in light of the recent California Appellate Court case People v...

Eleventh Circuit: SLUSA Dismissal

Posted on November 03, 2008
Eleventh Circuit: SLUSA Dismissal of Claims Against Merrill Lynch ProperState law claims brought by the Instituto de Prevision Militar, a Guatemalan agency charged with administering benefits for the country's military personnel, against Merrill Lynch were preempted by the Securities Litigation Uniform Standards Act, concluded an 11th Circuit panel...

SEC and FASB Issue Comfort Letter

Posted on November 03, 2008
SEC and FASB Issue Comfort Letter on Warrants Issued under Treasury Capital Purchase ProgramThe SEC and FASB have issued what is essentially a no-action letter on warrant accounting under the Treasury?s program to purchase securities from troubled financial institutions under the Emergency Economic Stabilization Act...

Financial Crisis Adds Impetus to

Posted on November 02, 2008
Financial Crisis Adds Impetus to Shareholder Advisory Vote on Executive Compensation; Obama Favors LegislationAs it becomes apparent that executive compensation, particularly the structure of incentive compensation, played a role in the unfolding global financial crisis, the efficacy of requiring a shareholder advisory vote on executive pay is back at the forefront of corporate governance reform...

In Light of Market Crisis, EU Commissioner

Posted on November 02, 2008
In Light of Market Crisis, EU Commissioner McCreevy Questions Efficacy of Voluntary Corporate Governance CodesWith the unfolding debacle in global financial markets, European Commissioner for the Internal Market Charlie McCreevy has questioned the role of corporate governance, particularly as it applies to credit rating agencies...

Senator Schumer Questions IRS and

Posted on November 01, 2008
Senator Schumer Questions IRS and Treasury on Notice 2008-83 Allowing Bank Write-Offs of Acquired Losses from Acquisitions of Troubled BanksIn a letter to Treasury and the IRS, Senator Charles Schumer demanded to know why the IRS issued a notice allowing financial institutions pursuing acquisitions to write-off acquired losses stemming from takeovers of other banks to offset future income...

Treasury Abandons Proposal to Subject

Posted on November 01, 2008
Treasury Abandons Proposal to Subject Hedge Funds and Other Private Equity Funds to Anti-Money Laundering RegulationsThe Treasury has withdrawn its proposal to subject hedge funds and other private equity funds to anti-money laundering regulations in light of the fact that the financial institutions they deal with are subject to such regulations...

Compensation Committee Given Duties

Posted on October 31, 2008
Compensation Committee Given Duties under TARP Regime set up by Emergency Economic Stabilization ActThe Treasury regulations for financial institutions participating in the troubled asset relief program (TARP) under the Emergency Economic Stabilization Act require compensation committees to meet, within 90 days after a purchase under the program, with senior risk officers to ensure that the firm?s incentive compensation arrangements do not encourage senior executive officers to take unnecessary and excessive risks that might threaten the value of the financial institution...

Emergency Economic Stabilization

Posted on October 31, 2008
Emergency Economic Stabilization Act Bonus Forfeiture Provision Differs from Similar Sarbanes-Oxley ProvisionIt should be noted that the forfeiture standards under section 111(b)(2)(B) of the Emergency Economic Stabilization Act differ significantly differ from the forfeiture provisions of section 304 of the Sarbanes-Oxley Act...

House Leaders Demand Hedge Funds

Posted on October 30, 2008
House Leaders Demand Hedge Funds Drop Opposition to Foreclosure PreventionIn a letter to two hedge funds and the Managed Funds Association, House Financial Services Committee leaders, led by Chairman Barney Frank, expressed their outrage at a report that at least two hedge funds have warned companies servicing mortgages that they should not take advantage of the American Housing Rescue and Foreclosure Prevention Act...

Auction Rate Securities Dealers

Posted on October 30, 2008
Auction Rate Securities Dealers Ask Treasury for Liquidity Facility under Emergency Economic Stabilization ActAs the financial crisis deepens, auction rate securities dealers have asked the Treasury to offer a standby liquidity facility to issuers of such securities, for which the issuers would pay a commitment fee...

Congress May Form Select Committee

Posted on October 29, 2008
Congress May Form Select Committee to Reform Financial RegulationThe idea of forming a special Congressional committee to reform the entire spectrum of financial regulation is gaining ground as the 110th Congress moves towards a close. In addition to a recent Wall Street Journal piece espousing this idea, in testimony before the House Financial Services Committee, Joel Seligman urged each house of Congress to create a Select Committee to provide a focused and less contentious review of what should be done...

Panelists Address Securities Litigation

Posted on October 29, 2008
Panelists Address Securities Litigation LandscapePanelists at the Practising Law Institute's Securities Litigation and Enforcement Institute described a litigation environment that has changed dramatically in recent years. Major Supreme Court decisions such as Dura, Tellabs and Stoneridge have reshaped the scope and pleading requirements for class actions, while the market turmoil has complicated the requirement of pleading firm-specific fraud when stock prices are declining across the board...

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