Archives: Securities Laws

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U.S. Supreme Court Adopts Narrow View of Who Can Rely on Dodd-Frank Act’s Anti-Retaliation Protections

The U.S. Supreme Court ruled on February 21, 2018 that the Dodd-Frank Act’s anti-retaliation provisions protect only whistleblowers that make a report to the SEC, and do not apply to whistleblowers who report internally. The Court’s ruling, which resolved a circuit split on the question of who was entitled to the Act’s provisions, will significant … Continue Reading

Guest Post: The Benefit of an ICO Bubble Burst

As many readers undoubtedly are aware, the prices for bitcoin has plunged in recent days, from a peak of nearly $20,000 in December to approximately $8,300 more recently, representing a decline of nearly 60%. The prices for other cryptocurrencies have also fallen along the same order of magnitude. This dramatic decline certainly at least raises … Continue Reading

Guest Post: Beware ICO Lawyers: As Regulatory Gatekeepers, You’re the Next SEC Target

Many readers may have noted SEC Jay Clayton’s January 22, 2018 speech about his agency’s scrutiny of cryptocurrencies, as well as the January 24, 2018 opinion piece Clayton wrote in the Wall Street Journal along with his counterpart from the CFTC, J. Christopher Giancarlo. In both statements, Clayton made in clear that the SEC intends … Continue Reading

SEC Fiscal Year Enforcement Statistics Reflect an Agency in Transition

On November 15, 2017, when the SEC Enforcement Division released its annual report detailing its enforcement activity during the preceding fiscal year, the report included a statement by the division’s co-directors detailing the division’s priorities for the coming year. As detailed below, the enforcement statistics in the report clearly reflect an agency in transition. The … Continue Reading

Guest Post: The SEC and ICOs: Winter is Coming

 As I noted in a recent post (here), the business pages these days are full of headlines about Initial Coin Offerings (ICOs). Among many issues swirling around ICOs one is the question of how the offerings fit within the overall legal and regulatory framework. In the following guest post, John Reed Stark, President of John … Continue Reading

Three Key Securities Law Cases on Supreme Court’s Docket as Term Begins

For almost the entire time that there have even been federal securities laws, the U.S. Supreme Court only rarely and infrequently agreed to take up cases arising securities cases. Until recently, years would pass between the times that securities cases appeared on the Supreme Court’s docket. For some reason, beginning around the middle of the … Continue Reading

Now Trending: Cybersecurity and Climate Change Disclosure Practices

One of the fundamental principles on which our system of securities regulation is based is the importance of disclosure. The system is built on the notion that companies must disclose certain basic information about their operations and performance so that investors can make informed investment decisions. While the disclosures required are a matter of regulation … Continue Reading

U.S. Securities Laws Apply to OTC Transactions in Daimler’s Sponsored ADRs

Following the U.S. Supreme Court’s June 2010 decision in Morrison v. National Australia Bank (here), the lower federal courts have set about implementing the Morrison decision’s holding that the U.S. securities laws do not apply extraterritorially. One issue that the courts have wrestled with is whether or not the U.S. securities laws apply to over-the-counter … Continue Reading

Supreme Court Holds Disgorgement Claims Subject to Five-Year Statute of Limitations

On June 5, 2017, in an opinion written by Justice Sonia Sotomayor for a unanimous court, the U.S. Supreme Court held that the five-year statute of limitations applies to claims for disgorgement imposed as a sanction for violation the federal securities laws. The Court rejected the SEC’s argument that the statute of limitations was not … Continue Reading

Proposed Disclosure and Corporate Governance Reforms in the Financial Choice Act 2.0

In a post last week, I wrote about the proposed revised Financial Choice Act (H.R. 10) now pending before Congress and the potential impact that the bill could have on the SEC’s enforcement program. In this post, I address the potential impact that the bill’s provisions could have on public company disclosure requirements and corporate … Continue Reading

Financial Choice Act 2.0 Proposes Significant Changes to the SEC’s Enforcement Authority

One of the Trump administration’s high profile initiatives is the review and rollback of many of the Dodd-Frank Act’s features.  Consistent with these efforts, an updated version of a bill that would undo many of the Act’s provisions is now making its way through Congress. The Financial Choice Act (H.B. 10) was introduced in April … Continue Reading

U.S. Securities Enforcement Authorities’ Extraterritorial Reach Under Morrison, Dodd-Frank Act

Prior to the U.S. Supreme Court’s June 2010 decision in Morrison v. National Australia Bank, U.S. courts held that the U.S. securities laws could be applied extraterritorially if there was sufficient fraudulent conduct or were sufficient effects from that conduct in the U.S.  In Morrison the Supreme Court rejected this “conduct or effects” test, ruling … Continue Reading

More About Litigation Reform Bylaws: Will “No Pay” Provisions Succeed Where Forum Selection Bylaws Have Failed?

In recent years, we approached the point where nearly every M&A transaction attracted one or more merger objection lawsuit, which all too often was resolved through a “disclosure only settlement” in which the defendant company agreed to make supplemental deal document disclosures and to pay the plaintiffs’ attorneys fees, in exchange for a comprehensive release … Continue Reading

Guest Post: Supreme Court to Review Whether Statute of Limitations Applies to SEC Disgorgement Claims

Last Friday, the U.S. Supreme Court granted cert in two cases involving the limitations periods under the federal securities laws. One case, as I noted in a post earlier this week, will address the question of whether or not the filing of a securities class action tolls the Securities Act’s statue of repose. The second … Continue Reading

SEC Enforcement Activity Involving Public Companies

While the confirmation earlier this week that Mary Jo White will step down as SEC Chair at the end of the Obama administration raises interesting questions about the SEC’s possible future direction and priorities, the agency’s public company-related enforcement activities during the last fiscal year provide some very interesting insights about the SEC’s recent priorities. … Continue Reading

Guest Post: IPO Lock-Up Agreement Parties Not a “Group” Liable for Short-Swing Profits

In the following guest post, attorneys from the Paul Weiss law firm review and analyze a November 3, 2016  Second Circuit decision (here)  in which the appellate court held that the standard pre-IPO lock-up agreements between a company’s pre-IPO shareholders and the company’s lead IPO underwriters do not make those parties a “group” within Section … Continue Reading
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