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Skadden on Delaware Chancery’s Rejection of Forum Selection Limits on Securities Act Claims

By Cliff C. Gardner, Kenton J. King, Allison L. Land and Edward B. Micheletti January 4, 2019 by pss2150

On December 19, 2018, the Delaware Court of Chancery held that forum selection provisions contained in the certificate of incorporation of Delaware corporations are invalid to the extent that they require any claim under the Securities Act of 1933 to …

Debevoise & Plimpton Discusses SEC Enforcement Against Private Equity Advisers

By Jonathan Adler, Kenneth J. Berman, Robert B. Kaplan, Julie M. Riewe and Rebecca F. Silberstein December 24, 2018 by pss2150

On December 13, 2018, the U.S. Securities and Exchange Commission (“SEC”) announced a settled enforcement action against private equity adviser Yucaipa Master Manager, LLC (“Yucaipa”) for alleged negligent failure to disclose conflicts of interest and misallocation of fees and expenses …

The Protection of Investors and the Compensation for their Losses: Australia

By Olivia Dixon and Jennifer G. Hill December 14, 2018 by renholding

Investor protection has been an ideal in corporate and securities law ever since the early 20^th century, when Berle and Means famously highlighted shareholder vulnerability in modern public corporations. In more recent times, investor protection has been treated as …

Transparency and the (E)valuation of Asset-Backed Securities

By Jed J. Neilson, Stephen G. Ryan, K. Philip Wang and Biqin Xie December 13, 2018 by renholding

In 2011, the commission appointed by Congress to investigate the causes of the financial crisis concluded that “a combination of excessive borrowing, risky investments, and lack of transparency put the financial system on a collision course with crisis” (The …

SEC Chair Clayton Talks Small Business Capital Formation

By Jay Clayton December 13, 2018 by renholding

Every year the SEC staff does a tremendous job identifying topics, selecting speakers and coordinating the behind the scenes work necessary to organize this all-day event focused on small business capital formation.[1] Thank you Bill, Jennifer [Zepralka] and the

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Common Ownership: The Investor Protection Challenge of the 21st Century

By Robert J. Jackson, Jr. December 12, 2018 by renholding

Thank you so much, Scott [Hemphill], for that incredibly kind introduction.* It’s a real honor to be here with you—and to be invited to testify before the Federal Trade Commission (FTC). I share your commitment to making sure …

New York Attorney General Overreaches in Climate-Change Complaint Against Exxon

By Merritt B. Fox December 10, 2018 by renholding

The New York Attorney General (“NYAG”) recently filed a complaint against ExxonMobil alleging that the company violated the Martin Act, New York State’s securities law, by making material misstatements concerning how it was accounting for the possibility of increasingly stringent …

SEC Chair Talks Rulemaking Over the Past Year and the Road Ahead

By Jay Clayton December 7, 2018 by renholding

For many, December is a time to reflect on the past year and to look forward to what the New Year may bring. I believe organizations also should mark milestones, take stock of what has been done and what needs

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How the Regulation of Initial Coin Offerings Shifted from Inactivity to Full Enforcement

By Marco Dell’Erba December 5, 2018 by renholding

In recent years, Initial Coin Offerings (ICOs) have emerged as a disruptive tool in entrepreneurial finance. ICOs involve the sale of a stake in a project with the aim of raising funds at an early stage of development. Although ICOs …

Debevoise Discusses SEC’s Record Year for Whistleblowers

By Mary Jo White, Andrew J. Ceresney, Arian M. June, Jonathan R. Tuttle and Ada Fernandez Johnson December 4, 2018 by renholding

On November 15, 2018, the U.S. Securities and Exchange Commission’s (the “SEC” or the “Commission”) Office of the Whistleblower (the “OWB”) provided its annual report to Congress describing the status of the whistleblower program and touting a “record-breaking year” for …

Dissecting the Conundrum of Investing in Hedge Funds Despite High Fees and Mediocre Returns

By Cary Martin Shelby November 29, 2018 by renholding

October 2018 ended with the hedge fund industry suffering its worst monthly decline since September 2011, according to the HFRI Fund Weighted Composite Index. Some commentators are predicting that 2018 will end with the hedge fund industry experiencing its worst …

Skadden Discusses CFTC Division of Enforcement’s First Annual Report

By David Meister, Jonathan Marcus and Daniel B. O'Connell November 27, 2018 by renholding

On November 14, 2018, the Commodity Futures Trading Commission (CFTC) Division of Enforcement released an annual report, apparently the first of its kind.¹ In a speech given at New York University School of Law, James M. McDonald, director of …

What Justice Kavanaugh’s “Lorenzo” Dissent Means for the Future of Chevron Deference

By Matthew C. Turk and Karen E. Woody November 21, 2018 by renholding

On June 18, 2018, the Supreme Court granted cert in Lorenzo v. Securities and Exchange Commission (Lorenzo), a case that presents significant questions about the federal securities laws. Lorenzo also comes with a twist: The underlying D.C. Circuit decision …

SEC Divisions Set Forth Views on Issuing and Trading Digital Asset Securities

By Securities and Exchange Commission November 21, 2018 by renholding

In recent years, we have seen significant advances in technologies – including blockchain and other distributed ledger technologies – that impact our securities markets. This statement[1] highlights several recent Commission enforcement actions involving the intersection of long-standing applications of …

Dual Class Stock: The Shades of Sunset

By John C. Coffee, Jr. November 19, 2018 by renholding

The most important issue in corporate governance today is dual class capitalization, and the most important recent development is the petition submitted on October 24, 2018 by the Council of Institutional Investors (“CII”) to both the New York Stock Exchange …

SEC Chair Clayton Offers Remarks at Proxy Roundtable

By Jay Clayton November 16, 2018 by renholding

My fellow Commissioners and I have agreed to keep our remarks brief so we can move forward promptly with this important program. I am going to highlight four items.

First, thank you to Bill, Michele Anderson and staff from the

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SEC Commissioner Roisman Offers Remarks at Proxy Roundtable

By Elad L. Roisman November 16, 2018 by renholding

Good morning and thank you to the Divisions of Corporation Finance and Investment Management for organizing this roundtable. I hope that everyone here will take this opportunity to engage in a thoughtful, meaningful discussion on the proxy process. If the …

SEC Commissioner Stein’s Opening Remarks at Proxy Process Roundtable

By Kara M. Stein November 16, 2018 by renholding

Good morning. Welcome to the SEC staff’s roundtable on proxy process. I would like to start by thanking Chairman Clayton for asking the staff to host a roundtable on this very important topic. I would also like to thank Michele

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Short and Distort

By Joshua Mitts November 13, 2018 by renholding

Anonymous political speech has a celebrated history (Publius, 1787) and has long enjoyed strong protections under the U.S. Constitution.[1] But there is a dark side to pseudonymity: Fictitious identities can wreak havoc in financial markets. A large literature in …

Simpson Thacher Discusses SEC Clarifications of Shareholder Proposal Issues

By Karen Hsu Kelley and Shari Ness November 13, 2018 by pss2150

On October 23, 2018, the Division of Corporation Finance of the Securities and Exchange Commission (the SEC) issued new Staff Legal Bulletin 14J[1], following up on previous bulletins clarifying issues arising under Exchange Act Rule 14a-8. The new …

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