Columbia Law School
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Securities Regulation
Proskauer discusses the D.C. Circuit’s Rejection of District Court Challenges to Pending SEC Administrative Enforcement Proceedings
The U.S. Court of Appeals for the District of Columbia Circuit held that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings. A party to a pending administrative proceeding must defend against …
The Unsophisticated Sophisticated: Old Age and the Accredited Investors Definition
Accredited investors are eligible to participate in unregistered securities offerings such as private equity, venture capital and hedge fund private placements under the SEC’s Regulation D. Based on current SEC Rule 501, an individual investor is qualified as an accredited …
Remarks by OFR Director Richard Berner at the Third Annual Workshop on Financial Interconnectedness
Thank you to the organizers and BIS for the opportunity to address this research conference on “Global Financial Interconnectedness.” The OFR was established to identify, monitor, and assess threats to financial stability, so improving our collective understanding of the interconnectedness …
Four Ways to Improve SEC Enforcement
The enforcement program at the Securities and Exchange Commission has been the subject of severe criticism in recent years, and occasional changes to the system have not begun to root out the deeper, structural defects in the investigation and charging …
Fried Frank Analyzes In re: Barclays Liquidity Cross and High Frequency Trading Litigation
Last week, a federal district court judge in New York overseeing several multidistrict litigation (“MDL”) proceedings dismissed all claims against Barclays PLC, Barclays Capital Inc., and several major U.S. stock exchanges (the “Exchanges”), including NASDAQ, the New York Stock Exchange, …
Collateral Damage: Adopting the LSOC Model and Insurance in the US Futures Markets
It is confounding that futures customers currently receive a lower level of protection than cleared swaps customers under US law. This legal phenomenon has occurred because the law in the US derivatives markets developed in a piecemeal fashion over several …
Public versus Private Provision of Governance: The Case of Proxy Access
The tradeoffs between facilitating private contracting or imposing a one-size-fits-all solution by regulatory mandate are often unclear. In the field of corporate governance, predicting which approach would be more efficient is particularly complicated. Because the optimal level of shareholder rights …
Mayer Brown explains SEC’s Continued Focus on Cybersecurity
On September 22, 2015, the US Securities and Exchange Commission (“SEC”) brought and settled charges against a registered investment adviser (the “RIA”) for violations of the Gramm-Leach-Bliley Act’s “safeguards rule” adopted under Regulation S-P.1 These violations occurred immediately prior …
Staggered Boards and Private Benefits of Control
Our paper titled “Staggered Boards and Private Benefits of Control” adds a new perspective to the ongoing debate about whether staggered (or classified) boards of directors lead to entrenchment. The novelty of the paper is focusing directly on …
Takeover Dispute Resolution in Australia and the United States – Takeovers Panel or Courts?
Takeover disputes can be fiercely contested. Given this, there is an important question about the forum for these disputes. Traditionally, takeover disputes were resolved by the courts. However, in recent years, there has been a trend to have these disputes …
Fried Frank explains FinCEN’s Proposed Rule Subjecting Investment Advisers to AML Compliance Requirements
On August 25, 2015, the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) proposed a rule that would subject investment advisers that are registered with the U.S. Securities and Exchange Commission (SEC) to certain formal anti-money laundering (AML) compliance program and …
The Governance Implications of DOJ’s New Corporate Conduct Enforcement Guidelines
The September 9 Department of Justice release of guidelines on corporate prosecution is a significant development that should be taken seriously by governing boards across industry sectors. The new guidelines, with their substantially increased focus on individual accountability, will likely …
The Possibilities and Practicalities of Financial Product Preapproval
Both parties to a complex financial instrument are likely to be sophisticated – this has led many to wonder why complex financial products need to be regulated at all. However, when the stability of the financial system is at stake, …
Orrick discusses Second Circuit Splitting with Fifth Circuit Setting Up Possible Supreme Court Review of Internal Whistleblowers’ Protection Under Dodd-Frank
On September 10, 2015, a divided panel of the Second Circuit issued an opinion in Berman v. Neo@Ogilvy LLC, No. 14-4626 (2nd Cir. Sept. 10, 2015), creating a split with the Fifth Circuit on an issue that has also …
The Evolving Role of Economic Analysis in SEC Rulemaking
Four years ago, the SEC set out to improve its cost-benefit approach in rulemaking. After enduring a series of judicial setbacks (e.g., Business Roundtable v. SEC) and criticisms from the Members of the Senate Banking Committee, the SEC conducted …
The Impact of SEC Disclosure Monitoring on the Uncertainty of Fair Value Estimates
Fair Value Accounting is arguably the most controversial financial reporting topic debated over the past decade. Conceptually, the idea behind fair value accounting is appealing: if a Balance Sheet is dated as of December 31, 2015, then all of the …
Backstabbing in Washington: The Curious Case of the PCAOB
Washington is a strange town! The more you succeed, the more you attract enemies. If you outperform all prior occupants of your office, behave like a model gentleman, and achieve what no one thought possible, that will make you a …
Jones Day explains SEC Bringing Hiring Practices into FCPA Focus
The SEC recently fined Bank of New York Mellon (“BNY Mellon”) nearly $15 million for allegedly violating provisions of the Foreign Corrupt Practices Act (“FCPA”) by providing student internships to family members of foreign government officials in the Middle East.…
Board Oversight of Risk Culture: Are U.S. Boards Willing and Able to Meet the Escalating Expectations?
Over the past 15 years expectations for board risk oversight have skyrocketed. In 2002 the Sarbanes-Oxley Act put the spotlight on board oversight of financial reporting. The 2008 global financial crisis focused regulatory attention on the need to improve board …