How the SEC Neglects to Enforce Control Person Liability

Scholars and politicians alike have spoken and written at great length about the importance of gatekeepers in our current corporate governance system. However, relatively little has been done to discipline  gatekeepers who seem to have lost the keys to the gate.  Meanwhile, the country’s primary securities regulator, the Securities and Exchange Commission, refuses to employ one of its most powerful tools to keep gatekeepers in check.  Our recent article, Laxity at the Gates:  The SEC’s Neglect to Enforce Control Person Liability, examines the SEC’s reluctance to bring claims against corporate insiders under Section 20(a)[1] of the Securities Exchange … Read more

Gibson Dunn Offers Second-Quarter Update on Class Actions

This update provides an overview of key class action developments during the second quarter of 2017 (April through June):

  • Part I explores a significant decision from the Supreme Court concerning defeating novel attempts by plaintiffs to obtain appellate review of denials of class certification.
  • Part II addresses rulings from the Supreme Court and Ninth Circuit regarding the breadth of the American Pipe tolling doctrine for statutes of limitations in class actions.
  • Part III analyzes recent decisions interpreting and applying the Supreme Court’s Article III standing decision in Spokeo, Inc. v. Robins.
  • Part IV discusses noteworthy rulings interpreting the Class

Read more

Shareholders Deserve Right to Choose Mandatory Arbitration

On July 17, SEC Commissioner Michael Piwowar extended an important invitation to U.S. public companies. “For shareholder lawsuits,” Piwowar offered, “companies can come to [the SEC] to ask for relief to put… mandatory arbitration into their charters.” To some, this idea may be unfamiliar or even controversial. But, as someone who has studied the U.S. securities class action system and its impact on our capital markets extensively, I know this policy is a sound one that serves U.S. investors and markets well.

Indeed, the Committee on Capital Markets Regulation, which I direct, first introduced the idea of corporation-stockholder non-class arbitration … Read more

Cleary Gottlieb Discusses Federal Spoofing Conviction

On August 7, 2017, the U.S. Court of Appeals for the Seventh Circuit unanimously upheld Michael Coscia’s conviction on spoofing and commodities fraud charges in United States v. Coscia, No. 16-3017 (KFR), 2017 WL 3381433 (7th Cir. Aug. 7, 2017), rejecting Coscia’s constitutional challenge to the anti-spoofing statutory provision and finding Coscia’s conviction adequately supported by the evidence and testimony adduced at trial.

Coscia was the first trader to be convicted under the anti-spoofing provision of the Commodity Exchange Act (“CEA”), 7 U.S.C. § 6c(a)(5).  The Seventh Circuit’s decision upholding Coscia’s conviction marks the first time a federal appellate … Read more

Simpson Thacher Discusses Combating Securities Fraud Allegations With10b5-1 Trading Plans

A recent decision issued by the United States District Court for the District of Massachusetts, Harrington v. Tetraphase Pharmaceuticals, Inc., highlights the value of established trading plans in defending against securities fraud allegations.[1] These trading plans, which are established pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, are not absolute defenses, but do offer corporate directors and officers (“insiders”) a greater level of protection in the event they purchase or sell company shares during the putative class period of a subsequent securities litigation. There are, however, several factors to consider in deciding whether a 10b5-1 … Read more

The Twilight Zone: OTC Regulatory Regimes and Market Quality

More than 8,000 domestic equity securities were publicly traded in the U.S. over-the-counter (OTC) market in 2010.  Yet, research studying this market is limited.  On the one hand, the OTC market attracts stocks of firms that tend to be small and growing.  On the other hand, it generally offers investors less protection than the traditional exchanges do, and fraudulent and abusive practices in this market can cause significant economic harm to investors.  Thus, the OTC market illustrates the trade-off that securities regulators face between ensuring investor protection and creating a viable market for small growth firms.  This trade-off has come … Read more

Gibson Dunn Updates Securities Litigation for First Half of 2017

The first half of 2017 brought with it a nearly unprecedented rate of new filings (a pace few predicted), as well as several important developments in the securities laws.  Among other things, the U.S. Supreme Court decided to weigh in on several key issues, including state court jurisdiction over Securities Act class actions and whether omissions of disclosures under Item 303 of Regulation S-K are actionable under Section 10(b).  We also highlight a key change in public company audit standards that may very well play a role in future securities litigation, as well as new decisions interpreting and applying Omnicare … Read more

Debevoise & Plimpton Discusses SEC View of Blockchain Tokens as Securities

On July 25, 2017, the Securities and Exchange Commission (“SEC”) Division of Enforcement issued a report of investigation under Section 21(a) (the “Report”) concluding that blockchain tokens sold by The DAO (“DAO Tokens”) were securities as defined under relevant law. These blockchain tokens are analyzed under the so-called Howey[1] test, and the SEC found that DAO Tokens allowed the holders to profit from the efforts of others, a key element of that test. We labeled a blockchain token that meets the definition of security a “security token” in our memorandum that accompanied “A Securities Law Framework Read more

The Value of Corporate Disclosure in Emerging Markets

It has been well documented that in the U.S. and other countries with developed stock markets, sound public disclosure practices strengthen the reputation and credibility of firms. However, it’s unclear whether good disclosure practices are also beneficial in emerging markets that have weak systems of financial controls. Does disclosure build investor confidence? If so, are public disclosures the most effective way to disseminate information?

In my paper, “Catering through Disclosure: Evidence from Shanghai-Hong Kong Connect,” I use China to explore these questions and find that, although firms operating in developing markets use disclosure to boost investor confidence, it … Read more

Insider Trading: Personal Benefit Has No Place in Misappropriation Tipping Cases

The Supreme Court’s decision last December in Salman v. United States[1] settled important issues concerning Rule 10b-5’s reach over trades based on a tip of confidential material information. One important question, however, remains unanswered: In tipping cases based on the misappropriation theory, is it necessary, as some courts have stated, to show that the tipper enjoyed a personal benefit of which the trader was aware? There are commentators who assume the need for such a showing,[2] but in fact the lower courts have split on the issue and the Supreme Court in Salman explicitly said that it was … Read more

Cheating the Algorithm: The New “Pump and Dump” Fraud

Old frauds never die. Nor do they fade away. Rather, they mutate and morph into new configurations in response to new opportunities (which new technologies usually create). Thus, the traditional boiler room “pump and dump” scheme was a product of the widespread adoption of the telephone, which allowed high pressure salesmen to reach hundreds of gullible customers in a day. Today, an analogous new technological development is inviting new forms of fraud. The new development is algorithmic trading (which by some estimates now accounts for 30 percent of stock trading[1]). Computers are programmed to trade in a micro-second … Read more

The Rise of Regulatory Affairs in Innovative Startups

A few years ago, signs of change started to appear in the startup world. Media headlines began reporting battles between regulators and Uber and Airbnb. Sharing economy companies faced worker classification issues, and fintech companies bumped up against securities regulation, lending laws, and licensing requirements. Former politicians and government aides joined startup boards. A top-tier venture capital firm created the first policy and regulatory affairs group to help its portfolio companies navigate laws affecting their businesses and foster contacts with policy makers, regulators, and investors.

In a forthcoming book chapter, available here, I describe the increasing importance of regulatory … Read more

Gibson Dunn Discusses OCC Office’s Guidance on Third-Party Business Relationships

In June, the Office of the Comptroller of the Currency (OCC), the regulator of national banks, federal savings associations, and federal savings banks, issued additional guidance on the oversight and risk management of third-party relationships (Bulletin 2017-21).  The guidance takes the form of responses to fourteen “frequently asked questions” about the OCC’s prior guidance in its Bulletin 2013-29.  In that Bulletin, the OCC required banks to adopt risk management and oversight procedures for third-party relationships based on the level of risk and complexity of the applicable relationship.  OCC Bulletin 2013-29 also outlined a recommended risk management process consisting of:  (i) … Read more

Clifford Chance Discusses Smart Contracts

Consider a world in which contracts are performed by computers and drafted in computer code by legal software engineers. What kind of efficiencies in terms of speed of execution, legal certainty and transparency could be gained? Conversely, what are the risks of trusting machines to execute contracts, and perhaps even to enter into contracts with other machines? These are some of the questions raised by smart contracts, an emerging technology that promises self-executing contracts implemented in computer code and performed by networks of computers, with minimal intervention from human agents after they have been “launched” by the parties. Backers of … Read more

Cleary Gottlieb Discusses Supreme Court Case on State Court Jurisdiction in Securities Class Actions

The Supreme Court announced  last month that it will take up the question of whether state courts have subject matter jurisdiction over class actions under the Securities Act of 1933 (the Securities Act).  Cyan, Inc. v. Beaver Cty. Employees Ret. Fund, — S. Ct. —- No. 15-1439, 2017 WL 2742854, at *1 (June 27, 2017).  The first cases to adopt the view that the Securities Litigation Uniform Standards Act of 1998 (SLUSA) divested state courts of jurisdiction over class actions that allege only Securities Act claims were litigated by Cleary Gottlieb over a decade ago.  See Rovner v. Vonage Read more

Paul Weiss Discusses Treasury Report on Reforms to U.S. Banking Regulations

On June 12, the U.S. Department of the Treasury issued the first of four reports to President Trump (the “Report,” available here) in response to the executive order signed on February 3 (see our client alert here) (the “Executive Order”) setting forth “Core Principles” intended to guide the reform of the U.S. financial regulatory system.

This first report addresses the U.S. depository system, covering banks, savings associations and credit unions. The upcoming reports will cover the regulation of the following areas:  capital markets; the asset management and insurance industries; and non-bank financial institutions, financial technology and financial innovation.The … Read more

SEC Chair Clayton Lays Out Plans and Principles in First Public Speech

I am delighted to speak to you here at the Economic Club of New York.  The Club has established itself as an esteemed, non-partisan forum for economic discourse.  It is an ideal place to discuss policy of the U.S. Securities and Exchange Commission (“SEC” or “the Commission” or “the agency”) and its effects on the U.S. economy and the American people.  I intend to do just that in this, my first public speech as Chairman of the SEC.[1]

Nearly six months ago, my predecessor Mary Jo White gave her last public address as SEC Chair in this same forum.  … Read more

Skadden Discusses How Second Circuit Raised Bar for Class Certification in Petrobras Securities Case

On July 7, 2017, the U.S. Court of Appeals for the Second Circuit offered significant guidance regarding the circuit’s class certification requirements in In re Petrobras Securities, No. 16-1914. In addressing an issue of first impression, the Second Circuit underscored the need to consider the individualized nature of determining whether a plaintiff engaged in a “domestic” securities transaction under the U.S. Supreme Court’s decision in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010). The decision effectively creates an additional hurdle for plaintiffs seeking to certify a class of investors in nonexchange-traded securities.

In In re Petrobras Read more

Cleary Gottlieb Discusses Recent Cyber-Attack Developments

In late May, Target Corporation (“Target”) reached an $18.5 million settlement with the Attorneys General (“AGs”) of 47 states and the District of Columbia, resolving the AGs’ investigation into Target’s 2013 data security breach.  Target, like other victims of cyber breaches, has faced intense regulatory inquiries based on the incident, along with extensive civil litigation by consumers, shareholders, and financial institutions.

Target’s multistate settlement with regulators – the largest such data breach settlement to date – brings the total amount paid by the company to settle legal claims arising out of the breach to over $130 million, including settlements paid … Read more

SEC’s Acting Chief Economist Discusses Role of Big Data, Machine Learning, and AI in Assessing Risk

This is the first time that I have addressed the emergence of AI in one of my talks. But I have spoken previously on the two core elements that are allowing the world to wonder about its future: big data and machine learning.[1] Like many of your institutions, the Commission has made recent and rapid advancements with analytic programs that harness the power of big data. They are driving our surveillance programs and allowing innovations in our market risk assessment initiatives. And the thoughts I’m about to share reflect my view on the promises – and also the limitations … Read more