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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

New FSA Chair Says Securitization

Posted on October 13, 2008
New FSA Chair Says Securitization Here to Stay but Must Return to Its RootsSecuritization will survive the current market crisis, in the view of new UK Financial Services Authority Chair Adair Turner, but the process must be reformed back to the original idea of securitizing assets on bank balance sheets for sale to investors in transparent simple instruments held to maturity...

Reform of Financial Regulation

Posted on October 12, 2008
Reform of Financial Regulation May Be Global but the Past Offers SolaceAs we speak of the complete overhaul of financial and securities regulation in the USA and even globally, and as many call for a first 100 days of a new President in 2009 analogous to the 100 days of President Franklin D...

Wisconsin Emergency Adopts Prohibition

Posted on October 10, 2008
Wisconsin Emergency Adopts Prohibition Against Using Senior Certifications or Designations Persons in the securities industry such as broker-dealers, agents, investment advisers or investment adviser representatives are prohibited from using certain professional designations that state or imply specialized knowledge of the financial needs of senior citizen investors...

Bank of America, RBC Settle Auction

Posted on October 09, 2008
Bank of America, RBC Settle Auction Rate Securities ClaimsThe SEC announced preliminary settlements in principle with Banc of America Securities LLC and Banc of America Investment Services, Inc., and with RBC Capital Markets Corp. The agreements will allow investors to sell back auction rate securities they purchased before the ARS market collapsed in February 2008...

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Bailout Bill Gives SEC Oversight

Posted on October 06, 2008
Bailout Bill Gives SEC Oversight Role; Uses SEC Executive Compensation RulesThe Emergency Economic Stabilization Act empowers the Secretary of the Treasury to purchase illiquid mortgage-backed securities under strong oversight by a board composed of the SEC and Fed Chairs, as well as the HUD Secretary...

Bailout Bill Allows SEC to Suspend

Posted on October 06, 2008
Bailout Bill Allows SEC to Suspend FAS 157 Mark-to-Market AccountingThe Emergency Economic Stabilization Act passed by Congress permits the SEC to suspend the application of FASB Standard No. 157 on fair value accounting, or mark-to-market accounting, for any issuer, including financial institutions, or for any transaction...

3rd Circuit Changes Course, Finds

Posted on October 06, 2008
3rd Circuit Changes Course, Finds Reclassification Exempt from Section 16(b)Revisiting a case that prompted the SEC to amend its short-swing trading rules, a 3rd Circuit panel found that a reclassification of preferred stock to common shares was not a Section 16 purchase (Levy v...

9th Circuit: Bar Orders in Settled

Posted on October 06, 2008
9th Circuit: Bar Orders in Settled Case Were Too Broad A 9th Circuit panel found that bar orders issued in a settled class action did not extinguish state claims brought by a non-settling defendant against other defendants named in the class action. As a result, an employee of a firm that was the underwriter in an allegedly fraudulent municipal bond issue could pursue state tort claims against certain co-defendants, including his employers and the creators and operators of the bond offerings...

House Passes Rescue Bill Despite

Posted on October 03, 2008
House Passes Rescue Bill Despite Some MisgivingsBy Katalina M. Bianco, Law Analyst, Wolters Kluwer Banking and Finance GroupIn its second vote of the week, the House of Representatives passed the Emergency Economic Stabilization Act on October 30. The crucial vote was 263-171...

House Passes Bailout BillDespite

Posted on October 03, 2008
House Passes Bailout BillDespite "no" votes from a majority of Republican representatives, the financial services bailout bill passed the House by a 263-171 vote.

2nd Circuit: Basic Presumption

Posted on October 03, 2008
2nd Circuit: Basic Presumption Could be Available in Suit Against Research AnalystsA 2nd Circuit panel held that the fraud on the market reliance presumption established by the Supreme Court in Basic Inc. v. Levinson is not limited to statements by issuers, and could be available in an action against research analysts...

Commission Extends Temporary OrdersThe

Posted on October 02, 2008
Commission Extends Temporary OrdersThe SEC announced that it was extending several of the emergency provisions ordered in response to the market crisis. The temporary prohibition of short selling in financial companies will now expire on the later of either 1) the third business day after enactment of the anticipated bailout legislation or 2) October 17, 2008...

Bailout Bill in Senate Retains

Posted on October 02, 2008
Bailout Bill in Senate Retains House Securities Law ProvisionsThe Senate version of the bailout bill leaves the securities law provisions of the original House measure described in the posts below basically untouched. New Section 403 in the tax provisions changes the Internal Revenue Code section concerning broker reporting of customer basis in specified securities transactions, however.

SEC to Hold Roundtable on 21st

Posted on October 02, 2008
SEC to Hold Roundtable on 21st Century Disclosure InitiativeThe SEC has announced that it will hold a roundtable on modernizing securities regulation under the auspices of its 21st Century Disclosure Initiative, which is an initiative to completely rethink the federal regulation of securities...

SEC and FASB Guide on Fair Value

Posted on October 01, 2008
SEC and FASB Guide on Fair Value Accounting under FAS 157As the market crisis continues, the SEC and FASB have issued joint guidance on the fair valuation of illiquid securities under FAS 157. Some commenters have said that the mark to market accounting demanded by FAS 157 contributed to the crisis...

Division of Trading and Market

Posted on October 01, 2008
Division of Trading and Market Offers Guidance on Sale of Loaned but Recalled SecuritiesIf a person who has loaned a security to another person sells that security, and a bona fide recall is initiated within two business days, the sale should be treated as "long" for purposes of the SEC's recent emergency orders...

Members of Congress Urge Suspension

Posted on October 01, 2008
Members of Congress Urge Suspension of Mark-to-Market Accounting More than 60 U.S. lawmakers urged the SEC to immediately suspend mark-to-market accounting. In a letter to SEC Chairman Cox, the legislators wrote that the rule, "while well-intended, has the unintended consequence of exacerbating economic downturns by hamstringing the ability of banks to make loans to consumers and businesses...

House Voices Concerns After Defeat

Posted on October 01, 2008
House Voices Concerns After Defeat of Financial Rescue BillBy Katalina M. Bianco, Law Analyst, Wolters Kluwer Banking and Finance GroupThe House of Representatives defeated the Emergency Economic Stabilization Act of 2008, popularly known as the ?bailout plan,? by a vote of 228-205 on Monday, Sept...

Senate to Consider Financial Bill

Posted on October 01, 2008
Senate to Consider Financial Bill Tonight, DeFazio Proposes AlternativeIt is likely that the U.S. Senate will take up a version of a financial bailout bill this evening. Sens. Obama, McCain and Biden are expected to attend.Rep. Peter DeFazio (D-Oregon) has also proposed an alternative to the earlier House bill, which he called the "No BAILOUT" Act (Bringing Accounting, Increased Liquidity, Oversight and Upholding Taxpayer Security)...

Inactive Markets, "Disorderly"

Posted on October 01, 2008
Inactive Markets, "Disorderly" Transactions Subject of SEC Advice In the guidance on mark-to-market accounting mentioned below, the SEC advised on the use of broker quotes and valuation involving "disorderly" transactions. The SEC advised that in a liquid market, a broker quote should reflect market information from actual transactions...

Bailout Bill Mandates Report to

Posted on September 30, 2008
Bailout Bill Mandates Report to Congress on Reforming Financial RegulationOne of the more forward looking and possibly mementous provisions in the Emergency Economic Stabilization Act is one mandating a report to Congress on modernizing financial regulation...

Bailout Bill Gives SEC Oversight

Posted on September 29, 2008
Bailout Bill Gives SEC Oversight Role Amidst Extraordinary Power for TreasuryThe Emergency Economic Stabilization Act that failed to pass the House today, but which I expect to pass Congress by the end of the week, gives the SEC a crucial role in overseeing the Secretary of the Treasury as that cabinet member exercises extraordinary, but judicially reviewable power in purchasing illiquid mortgage-backed securities from financial institutions...

CAFA Trumps 33 Act's Non-Removal

Posted on September 29, 2008
CAFA Trumps 33 Act's Non-Removal PositionJudge Harold Baer of the Southern District of New York held that the removal provisions of the Class Action Fairness Act of 2005 trumped the non-removal provisions of Section 22(a) of the Securities Act.In an action arising from the sub-prime mortgage crisis, Judge Baer found that Congress intended "to include within the reach of CAFA all securities class actions except for those set forth" in the specified exceptions...

Bailout Bill Falters in HouseWith

Posted on September 29, 2008
Bailout Bill Falters in HouseWith "no" votes from approximately 90 Democrats and 130 Republicans, the controversial financial bailout bill was defeated in the House today.

The Bailout Plan: Will it Work?By

Posted on September 29, 2008
The Bailout Plan: Will it Work?By Katalina M. Bianco, Law Analyst, Wolters Kluwer Banking and Finance GroupCongressional leaders and the White House announced on September 28 that they had reached a tentative agreement on the $700 billion rescue program dubbed the ?bailout plan? by the popular media...

Draft Bill Would Authorize SEC

Posted on September 29, 2008
Draft Bill Would Authorize SEC to Suspend FAS 157Section 132 of the draft bailout bill would authorize the SEC to suspend the operation of FAS 157 by rule, regulation or order for any issuer as required by the public interest and the protection of investors...

Bailout Draft Calls for Studies

Posted on September 29, 2008
Bailout Draft Calls for Studies of Regulatory RolesSection 105 of the draft bailout bill currently before the House requires the Secretary of the Treasury to "review the current state of the financial markets and the regulatory system" and to report to Congress by April 2009 on "the current state of the regulatory system and its effectiveness at overseeing the participants in the financial markets, including the over-the-counter swaps market and government-sponsored enterprises...

SEC's Consolidated Supervised Entities

Posted on September 28, 2008
SEC's Consolidated Supervised Entities Program EndedSEC Chair Christopher Cox has ended the Consolidated Supervised Entities (CSE) program, created in 2004 as a way for global investment bank conglomerates that lack a supervisor under law to voluntarily submit to regulation...

As a probable bailout bill moves

Posted on September 27, 2008
As a probable bailout bill moves through Congress, it may be a good time to assess some matters that impact federal securities regulation. It is too early to assees whether the financial regulatory regime we have labored under since the New Deal is broken beyond repair...

SEC Staff Issues Guidance on New

Posted on September 24, 2008
SEC Staff Issues Guidance on New Short Positions Disclosure Form SHThe SEC has adopted a new disclosure rule requiring hedge funds and other large institutional investors to disclose their short positions. The new rule, designed to ensure transparency in short selling, applies to asset managers with more than $100 million invested in securities, who are required to promptly begin public reporting of their daily short positions on new Form SH...

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