Dodd-Frank’s Missed Opportunity on Whistleblower Law

One of the highest-profile provisions of the Dodd-Frank Act is Section 922. That provision provides protection and monetary awards for whistleblowers. To qualify, the whistleblower must provide information to the Securities and Exchange Commission that leads to the recovery of monetary sanctions. While many have argued that this provision does not go far enough in providing incentives for whistleblowers, the reality is that it goes too far. By providing protection and compensation for whistleblowers without imposing any costs, Section 922 attracts both low- and high-quality tips without providing the SEC with any means of differentiating the two. This will lead … Read more

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Editor's Tweet: Professor Anthony J. Casey of University of Chicago Law School discusses Dodd-Frank’s Missed Opportunity on Whistleblower Law

Ring-Fencing: Functions and Conceptual Foundations

“Ring-fencing” is often touted as a potential regulatory solution to problems in banking, finance, public utilities, and insurance. However, both the precise meaning of ring-fencing, as well as the nature of the problems that ring-fencing regulation purports to solve, are ill defined.  My new article, recently posted here on SSRN, examines the functions and conceptual foundations of ring-fencing.

The recent report by the U.K. Independent Commission on Banking (known as the “Vickers Report”) proposes ring-fencing banks by legally separating certain of their risky assets from their retail banking operations.[1]  Federal regulators in the United States are considering requiring the … Read more

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Editor's Tweet: Professor Steven L. Schwarcz of Duke Law discusses ring-fencing.

How much does management influence shareholder votes?

In the paper, “Management Influence on Investors: Evidence from Shareholder Votes on the Frequency of Say on Pay”, which was recently made publicly available on SSRN, my co-author (David Oesch of the University of St. Gallen) and I examine the peculiar non-binding shareholder votes  required by the Dodd-Frank Act on the frequency of Say-on-Pay (SOP) votes (with a choice between every 1, 2, or 3 years).  Our purpose is to obtain a direct estimate of management’s influence on investors. We also investigate whether management influence varies across firms and whether there is evidence of strategic use of management … Read more

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Editor's Tweet: Professor Fabrizio Ferri of Columbia Business School discusses how much management influences the frequency of Say on Pay votes?

Sullivan & Cromwell Discusses How Companies Should Prepare for Potential Proxy Disclosure Litigation

Plaintiffs’ attorneys have continued to bring, or threaten, litigation against U.S. companies following the filing of their annual proxy statements. These complaints generally allege disclosure deficiencies in connection with the approval of equity compensation plans and/or the advisory shareholder “say-on-pay” vote and, as with merger-related “strike suits,” seek to enjoin the annual meeting. Early cases gained some traction, resulting in settlements yielding additional proxy disclosures and legal fees for the  plaintiffs, though most companies have resisted settling. While some companies have taken the  heightened litigation risk into account in crafting 2013 proxy disclosure, it seems likely that no level of  … Read more

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Editor's Tweet: Sullivan & Cromwell Discusses How Companies Should Prepare for Potential Proxy Disclosure Litigation

Davis Polk’s Dodd-Frank Progress Report March 2013

On March 1, Davis Polk & Wardwell LLP released its March 2013 Dodd-Frank Progress Report, which can be found here. Davis Polk issues these Progress Reports monthly to update the market on the progress of the rulemaking required under Dodd-Frank.

  • No New Deadlines, Requirements Met or Requirements Proposed. No rulemaking requirements were due in February and no new rules were adopted or proposed to meet rulemaking requirements.
  • Current Status.  As of March 1, 2013, a total of 279 Dodd-Frank rulemaking requirement deadlines have passed. Of these 279 passed deadlines, 176 (63.1%) have been missed and 103 (36.9%) have

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Money Market Fund Reform: Endorsement of the Minimum Balance at Risk Proposal

On February 28, I submitted a letter on Money Market Fund Reform to the Financial Stability Oversight Council in response to their November 2012 request for comments on a number of alternative proposals.  I endorse the so-called “Minimum Balance at Risk Proposal,” in which fund sponsors would create a capital buffer by contributing or raising capital of one percent of a money market fund’s assets while fund investors would be subject to delayed redemption of three percent of their account over $100,000.  This approach could cause sponsors to internalize the costs of portfolio security selection while forcing large fund investors … Read more

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Editor's Tweet: Professor Jeffrey N. Gordon of Columbia Law School discusses Money Market Fund Reform

Skadden on Swap Regulation: The CFTC and SEC Chart the Road Ahead

The Dodd-Frank Act authorized the CFTC and the SEC to develop comprehensive regulations for swap transactions and security-based swaps, respectively. Considering swaps generally were unregulated before Dodd-Frank, the CFTC and the SEC have been writing for two years on a blank slate. In 2012, the agencies began to fill in many of the blanks, but much work remains for 2013 and beyond.

In 2012, the CFTC and the SEC finished the specific joint Dodd-Frank Act assignments Congress gave them: The agencies finalized the product definitions (rules defining “swaps” and “security-based swaps”) and the entity definitions (rules defining “swap dealer” and … Read more

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Editor's Tweet: Skadden discusses the road ahead for swap regulation

Why Buckley v. Valeo May Solve the CFPB’s Most Pressing Dilemma

On January 25, the D.C. Circuit issued a controversial decision in the Noel Canning case.[1]  The Court invalidated three of President Obama’s recess appointments to the National Labor Relations Board after finding that the President overreached in making the appointments without Senate confirmation.  The holding implies that the President’s recess appointment of Richard Cordray, as Director of the Consumer Financial Protection Bureau (“CFPB”), would likewise be invalid.  This is of great interest to banks and others in the financial services industry who are regulated by the new agency.

In my recent post, Columbia Law Professors Weigh in on Noel Read more

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Editor's Tweet: Jason W. Parsont of Columbia Law explains why Buckley v. Valeo may solve the CFPB’s most pressing dilemma

Columbia Law Professors Weigh in on Noel Canning

The D.C. Circuit’s recent decision, Noel Canning v. NLRB, available here, has generated a barrage of commentary by law firms and others.  Much of the interest in the business community has focused on the impact that the decision might have on the Bureau of Consumer Financial Protection (the “CFPB”).  For views and reactions, I consulted three experts at Columbia Law School:  Professors Henry Paul Monaghan, Trevor W. Morrison, and Peter L. Strauss. As described below, each believes that the Supreme Court is likely to take the case, but there is less certainty over how the case might ultimately … Read more

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Editor's Tweet: Columbia Law Professors Monaghan, Morrison, and Strauss weigh in on Noel Canning

Market Discipline: The Next Generation

My forthcoming article, Interbank Discipline, draws attention to the important role that banks play monitoring and disciplining other banks.  To understand the significance of interbank discipline, the Article proposes a new way of thinking about market discipline more generally.  In the first wave, advocates of market discipline viewed it as a basis for deregulation.  Why expend government resources duplicating the efforts of market participants, the rationale went, particularly considering that regulation can discourage market discipline and markets are often more effective than regulators?  The 2007-2009 financial crisis, and numerous scandals preceding it, largely brought an end to such reasoning.  … Read more

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Editor's Tweet: Professor Kathryn Judge of Columbia Law School discusses the next generation of market discipline.

The Custom-to-Failure Cycle

The article, The Custom-to-Failure Cycle, which I wrote with my research assistant Lucy Chang (Duke Law School class of 2012), examines how reliance on heuristic-based customs can lead to financial failures. In areas of complexity, people often rely on heuristics—by which we broadly mean simplifications of reality that allow people to make decisions in spite of their limited ability to process information. When this reliance becomes routine and widespread within a community, it can develop into a custom. This type of custom may not—and indeed, our article assumes, does not—become the basis for law per se. Rather, it is … Read more

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Editor's Tweet: Professor Steven Schwarcz of Duke Law discusses his recent article with Lucy Chang on the cycle leading from custom to failure.

Dodd-Frank Progress Report February 2013

On February 1, Davis Polk & Wardwell LLP released its February 2013 Dodd-Frank Progress Report, which can be found here. Davis Polk issues these Progress Reports monthly to update the market on the progress of the rulemaking required under Dodd-Frank.

  • 46 New Deadlines. 42 rulemaking requirements and 4 studies were due in January.
  • 12 Requirements Met, 0 Proposed. The CFPB released final rules on qualified mortgage standards, mortgage servicing and loan originator compensation. The CFPB, FDIC, Federal Reserve, FHFA, NCUA and OCC released a joint final rule that establishes new appraisal requirements for higher-priced mortgage loans.
  • Current Status.  As

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The Proper Role of the Federal Government in Corporate Governance

Commissioner Daniel M. Gallagher delivered the below remarks before the Corporate Directors Forum at the University of San Diego, San Diego, California, on January 29, 2013:

Thank you Anne [Sheehan] for your very kind introduction.  I am honored to be here today.  Conferences like this are critically important, and all too rare, opportunities for directors, executives, shareholders, and regulators to interact.

Before I go any further, I need to provide the standard disclaimer that my remarks today are my own and do not necessarily reflect the views of the Commission or my fellow Commissioners.

Today I would like to talk … Read more

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Editor's Tweet: SEC Commissioner Daniel M. Gallagher discusses the proper role of the federal government in corporate governance

Implications for the CFPB After the D.C. Circuit’s Recess Appointments Decision

A panel of three judges in the D.C. Circuit stunned Washington on Friday by striking down President Obama’s recess appointments to the NLRB in Noel Canning v. NLRB on a basis much more sweeping than had been anticipated. The two holdings in the decision cast doubt over the longstanding practice of intrasession recess appointment, which has been used especially frequently in the last two decades.

For financial institutions, the decision is of direct interest because it calls into question President Obama’s recess appointment that same day of Richard Cordray as Director of the CFPB and, as a result, all of … Read more

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Editor's Tweet: Davis Polk's Tahyar, Yanes, and Guynn discuss the DC Circuit's recent decision in Noel Canning v. NLRB and the Implications for the CFPB.

Congressional Use of the Federal Securities Laws To Achieve Social and/or Foreign Policy Goals: Trend or Aberration?

Many domestic and foreign companies that file periodic reports with the US Securities and Exchange Commission (“SEC” or “Commission”) are now coming to grips with three novel and highly prescriptive disclosure requirements dictated by Congress. What distinguishes these new requirements from most, if not all, existing securities disclosure standards is their unique focus on achieving humanitarian and/or foreign policy objectives that are largely unrelated to the central purposes of the federal securities laws – the protection of investors and the facilitation of efficient capital formation and secondary market trading through full and fair disclosure. Two “miscellaneous” provisions of the Dodd-Frank … Read more

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Editor's Tweet: Cathy Dixon of Weil Gotshal discusses the new social benefit disclosure requirements: conflict minerals, resource extraction, Iran

Davis Polk’s January 2013 Dodd-Frank Progress Report

Yesterday, Davis Polk & Wardwell LLP released its January 2013 Dodd-Frank Progress Report, which can be found here.  This report is one in a series of Davis Polk presentations that illustrate graphically the progress of the rulemaking work that has been done and is yet to occur under the Dodd-Frank Act. The Progress Report has been prepared using data from the Davis Polk Regulatory Tracker™, an online subscription service offered by Davis Polk to help market participants understand the Dodd-Frank Act and follow regulatory developments on a real-time basis.  Earlier blog posts about the progress report can be found … Read more

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Editor's Tweet: Margaret Tahyar and Gabriel Rosenberg of Davis Polk & Wardwell LLP have posted about the January edition of the Dodd-Frank Progress Report

Professor Robert J. Jackson Jr. Moderates Debate on Financial Innovation

Columbia Law School Professor Robert J. Jackson Jr. recently moderated a lively debate on financial innovation before a panel of experts including Congressman Barney Frank, The New York Times’ Andrew Ross Sorkin, Nobel Laureate Robert Solow, and Gary Gensler, chairman of the Commodity Futures Trading Commission.

The full press release can be viewed here and the entire debate can be viewed here.… Read more

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Editor's Tweet: Professor Robert J. Jackson Jr. of Columbia Law School Moderates Debate on Financial Innovation,

Securities Class Actions Against Foreign Issuers

My recent article published in the Stanford Law Review Securities Class Actions Against Foreign Issuers addresses the fundamental question of whether, as a matter of good policy, it is ever appropriate that a foreign issuer be subject to the U.S. fraud-on-the-market private damages class action liability regime, and, if so, by what kinds of claimants and under what circumstances. The bulk of payouts under the U.S. securities laws arise out of fraud-on-the-market class actions—actions against issuers on behalf of secondary market purchasers of their shares for trading losses suffered as a result of issuer misstatements in violation of Rule 10b-5. … Read more

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Editor's Tweet: Professor Merritt Fox of Columbia Law School presents his article Securities Class Actions Against Foreign Issuers

Bipartisan Policy Center Urges Consistency in Implementation of the Volcker Rule

Today, the Bipartisan Policy Center’s Financial Regulatory Reform Initiative working group on Capital Markets and the Volcker Rule sent a letter to the Treasury Department and the five federal financial regulators tasked with adopting Volcker Rule regulations. The letter responds to recent reports that the five federal financial regulators may not adopt a single, unified set of regulations.  It calls for one consistent Volcker rule and for a new public comment period for proposed regulations.

The initiative’s working group includes Professor John Coffee of Columbia Law School, Professor Jim Cox of Duke University School of Law, Annette Nazareth, a Partner … Read more

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Editor's Tweet: Bipartisan Policy Center Urges Consistency in Implementation of the Volcker Rule

The Political Economy of Dodd-Frank

For a number of years, commentators have noted that securities “reform” legislation seems to be passed only in the wake of major stock market crashes, with this pattern dating back to the South Sea Bubble. Some have argued that this pattern demonstrates the undesirability of such legislation, arguing that laws passed after a market crash are invariably flawed, result in “quack corporate governance” and “bubble laws,” and should be discouraged. Recently, this criticism has been directed at both the Sarbanes-Oxley Act and the Dodd-Frank Act. The forthcoming Cornell Law Review article, The Political Economy of Dodd-Frank: Why Financial Reform Tends Read more

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Editor's Tweet: Professor John C. Coffee, Jr. of Columbia Law School discusses why financial reform tends to be frustrated and systemic risk perpetuated