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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

Industry Groups Oppose Senate Reform

Posted on April 19, 2010
Industry Groups Oppose Senate Reform Bill's Corporate Governance ProvisionsIn a letter to the US Senate, industry groups including the Chamber of Commerce and the Business Roundtable said that provisions in the Restoring American Financial Stability Act such as mandating a shareholder right to proxy access and an advisory vote on executive compensation and requiring majority voting in uncontested director elections would federalize corporate law, thereby creating a ?one-size-fits all? approach to the resolution of these issues...

UK Takeover Code Amended to Enhance

Posted on April 19, 2010
UK Takeover Code Amended to Enhance DisclosuresEffective April 19, 2010, the UK Takeover Code has been amended to require any person who is interested in 1 per cent or more of any class of relevant securities of an offeree company to make an Opening Position Disclosure following the commencement of the offer period detailing the person?s interests and short positions in, and rights to subscribe for, any relevant securities of the company...

Senate Ag Chair Introduces Strong

Posted on April 16, 2010
Senate Ag Chair Introduces Strong Derivatives LegislationThe Chair of the Senate Agriculture Committee has introduced a strong measure that would regulate swaps and security-based swaps under a transparent regime bifurcating CFTC jurisdiction over swaps and SEC jurisdiction over security-based swaps...

Government Brief in Textron Case

Posted on April 14, 2010
Government Brief in Textron Case Asserts that Work Papers Used to Assess Uncertain Tax Positions in SEC Filings Subject to IRS DiscoveryTax accrual work papers used by a company?s accountants and lawyers in assessing uncertain tax positions for SEC filings are prepared for a business purpose rather than for litigation and can be discovered by the IRS, argued the US Solicitor General in the Textron case before the Supreme Court...

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3rd Circuit Rejects Government

Posted on April 12, 2010
3rd Circuit Rejects Government Liability Theories in Bristol-Myers CFO's Criminal TrialIn a pre-trial interlocutory appeal, a 3rd Circuit panel rejected the legal theories underlying several fraud charges against the former CFO of Bristol-Myers Squibb...

House and Senate Reform Bills Take

Posted on April 12, 2010
House and Senate Reform Bills Take Different Approach to Volcker RulesThe House and Senate financial reform bills both have provisions banning financial institutions from proprietary trading. Proprietary trading is generally trading on behalf of the financial firm, rather than on behalf of a client...

Industry Applauds US Treasury Secretary's

Posted on April 10, 2010
Industry Applauds US Treasury Secretary's Letter to EU Counterparts on Hedge Fund DirectiveThe US hedge fund industry strongly praised Treasury Secretary Tim Geithner?s renewed call for the European Union to participate in a globally coordinated approach toward financial regulatory reform and resist protectionist-driven initiatives such as the proposed Alternative Investment Fund Manager Directive...

Washington Legal Foundation Urges

Posted on April 10, 2010
Washington Legal Foundation Urges Supreme Court to Protect Tax Accrual Work Papers Used for SEC Filings from IRS DiscoveryTax accrual work papers used to help counsel and auditors assess a company?s tax positions in SEC mandated filings must be protected from IRS discovery since counsel?s conclusions, opinions and legal theories on uncertain tax position rest at the very heart of the work product privilege, the Washington Legal Foundation said in a Supreme Court amicus brief in the Textron case...

FASB and IASB Find Common Ground

Posted on April 09, 2010
FASB and IASB Find Common Ground on Fair Value AccountingAt a recent meeting, the IASB and FASB found some consensus on measuring securities and other instruments at fair value as their project to converge US GAAP and IFRS proceeds. The IASB and FASB have completed their discussions about the fundamental principles of fair value measurement...

Financial Reform Legislation Would

Posted on April 08, 2010
Financial Reform Legislation Would Close Regulatory Gaps in Municipal Securities MarketBoth the Senate and House reform bills would require municipal financial advisers to register with the SEC in recognition of the dramatic developments in the municipal securities market and a resultant regulatory gap...

Institutional Investors and Corporate

Posted on April 07, 2010
Institutional Investors and Corporate Governance Experts Praise Senate Reform BillInstitutional investors and leading corporate governance experts expressed support for the financial reform legislation reported out of the Senate Banking Committee. ?The time to act is now,? Executive Director Ann Yerger of the Council of Institutional Investors emphasized, adding that investors have suffered trillions of dollars in investment losses and confidence in the integrity of public markets has been undermined...

UK Finance Minister Calls for Aligning

Posted on April 05, 2010
UK Finance Minister Calls for Aligning Executive Compensation with Long-Term Company GoalsCalling executive compensation the ``zeitgeist?? of the global financial crisis and one of the iconic failures of corporate governance, UK Finance Minister Lord Myners said that executive compensation regimes that encouraged risk talking at the expense of long-term corporate goals were both a symptom and a contributor to the financial crisis...

UK FSA Official Urges Board Risk

Posted on April 05, 2010
UK FSA Official Urges Board Risk Committees as Part of Sound Corporate GovernanceA senior official of the Financial Services Authority urged firms to set up a board-level risk committee to ensure that risk management receives the high priority it is entitled to as part of effective corporate governance...

Senator Brown Seeks Analog to Lynch

Posted on March 31, 2010
Senator Brown Seeks Analog to Lynch Amendment on Derivatives Clearinghouses for Senate Financial Reform BillThere has been concern that, with derivatives trading required to be conducted through clearinghouses, large financial institutions would own and control the clearinghouses and effectively set rules for their own derivatives deals...

Bi-Partisan Senate Bill Would Provide

Posted on March 30, 2010
Bi-Partisan Senate Bill Would Provide Tax Relief to Victims of Ponzi Investment SchemesBi-partisan Senate legislation would provide tax relief to investors victimized by securities fraud in Ponzi-scheme types of operations. Since the legislation applies only to qualified fraudulent investment losses discovered in calendar years 2008 or 2009, it essentially assists victims of frauds such as those run by disgraced financiers Bernie Madoff and Alan Stanford...

US Supreme Court Affirms Gartenberg

Posted on March 30, 2010
US Supreme Court Affirms Gartenberg Approach to Fiduciary Duty in Fund Fee CasesThe US Supreme Court has affirmed the use of the Gartenberg standards for assessing the fiduciary duty under Section 36(b) of the Investment Company Act with with regard to investment adviser compensation...

UK FSA Official Views Amendments

Posted on March 29, 2010
UK FSA Official Views Amendments to Proposed Hedge Fund Directive as US Officials Voice Protectionist ConcernsAmendments being readied to the proposed EU Alternative Investments Fund Management Directive go some of the way towards ameliorating the protectionist tendencies of the Directive, said Dan Waters, Director of Asset Management at the Financial Services Authority, but there is still concern that the Directive could limit fund choice and damage investor returns...

Supreme Court Oral Argument Pits

Posted on March 29, 2010
Supreme Court Oral Argument Pits Extraterritorial Reach of Rule 10b-5 against Sovereign Right to Remedy Securities FraudIn what is perhaps the first foreign-cubed case to reach the US Supreme Court, foreign investors who purchased stock in a foreign bank on a foreign exchange, with alleged significant fraudulent conduct having occurred in the US, pitted their Rule 10b-5 remedy in federal court against the sovereign right of another nation to remedy securities fraud in its own way...

New England Legal Foundation Asks

Posted on March 27, 2010
New England Legal Foundation Asks Supreme Court to Shield Tax Accrual Work Papers Created for Audited SEC Financial Statements from IRS DiscoveryThe US Supreme Court has been asked to end an intolerable split among the federal circuits and hold that tax accrual work papers prepared for the dual purpose of anticipating litigation and assisting auditors in vetting SEC required financial statements were protected from IRS discovery...

SEC Staff to Review Derivatives

Posted on March 26, 2010
SEC Staff to Review Derivatives Use by FundsThe SEC Investment Management staff is reviewing the use of derivatives by mutual funds, exchange-traded funds and other investment companies. The review will examine if additional protections are necessary for those funds under the Investment Company Act...

In Letter to Treasury, Senator

Posted on March 26, 2010
In Letter to Treasury, Senator Shelby Examines Resolution Regime in Senate Reform BillSenator Richard Shelby believes that the financial regulatory reform legislation reported out of the Banking Committee does not go far enough to end the ``too big to fail?? problem and the moral hazard that comes with it and, indeed, institutionalizes the ``too big to fail?? doctrine...

Senate Financial Reform Legislation

Posted on March 26, 2010
Senate Financial Reform Legislation Provides for Say on Pay and Independent Compensation CommitteesThe Senate Banking Committee has reported out financial reform legislation that would enhance corporate governance and mandate increased transparency of executive compensation...

10th Circuit: Protective Orders

Posted on March 25, 2010
10th Circuit: Protective Orders Precluded Sharing Information Obtained in SEC Action with IRSA 10th Circuit panel found that the U.S. Attorney's Office improperly disclosed confidential information to the IRS in violation of two protective orders. These orders were entered to safeguard personal financial information provided to a receiver in an SEC enforcement action by the victim of a securities fraud scheme...

IASB Chair Reaffirms US GAAP-IFRS

Posted on March 25, 2010
IASB Chair Reaffirms US GAAP-IFRS Convergence against Backdrop of New IFRS 9 for Measuring Financial InstrumentsAs a second major wave of IFRS adoptions in Canada, Brazil, Japan and other countries begins this year, IASB Chair David Tweedie said that the convergence of US GAAP and IFRS is proceeding and intensifying...

UK and France Ask US Supreme Court

Posted on March 25, 2010
UK and France Ask US Supreme Court Not to Expand Extraterritorial Reach of Federal Securities LawsWith oral argument looming in a case involving a foreign investor?s action arising out of a foreign company?s securities offering on a foreign exchange, the UK and the Republic of France have asked the US Supreme Court not to allow the application of the federal securities laws to these foreign-cubed actions...

Key Senator Scores Protectionist

Posted on March 24, 2010
Key Senator Scores Protectionist EU Proposed Hedge Fund DirectiveJoining the growing outcry over protectionist tendencies in the proposed EU Directive regulating hedge funds, Senator Charles Schumer, a key member of the Banking Committee, expressed deep concern that the Directive would overtly discriminate against US hedge funds...

Manager Amendments to Senate Reform

Posted on March 24, 2010
Manager Amendments to Senate Reform Bill Give Systemic Risk Regulator Derivatives Role and Streamline SRO ProcessThe Managers Amendment to the Senate Banking Committee draft reform bill gives the new Financial Stability Oversight Council veto power over SEC and CFTC exemptions from the derivatives regulation regime...

Dodd's Reform Bill Would Weaken

Posted on March 23, 2010
Dodd's Reform Bill Would Weaken Federal Preemption of Rule 506 of Reg. DSenator Chris Dodd's Reform Bill in the Senate Banking Committee would weaken federal preemption of Rule 506 of Regulation D under Section 18(b)(4)(D) of the NSMIA Act of 1996 by:* Requiring the SEC to designate that certain Rule 506 offerings not qualify as "covered securities" because of their size, the number of states that would contain them and the types of offerees that would receive them...

Federal Appeals Court Construes

Posted on March 23, 2010
Federal Appeals Court Construes Sarbanes-Oxley Whistleblower ProtectionsIn deciding that an employee of the American Medical Association was not protected by the whistleblower protections of Sec.806 of Sarbanes-Oxley, a Seventh Circuit panel rejected the notion that the phrase ?contractor, subcontractor, or agent? in Sec...

New Briefing Paper Describes Jobs

Posted on March 22, 2010
New Briefing Paper Describes Jobs Bill ImpactA new briefing paper by Principal Analyst Jim Hamilton discussing the impact of the "Hiring Incentives to Restore Employment Act," or HIRE, is now available. The jobs bill, signed into law by the president on March 18, 2010, creates a new reporting and taxing regime for foreign financial institutions with U...

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