Securities Law

Regulating the Sale of Stock Exchange Market Data to High-Frequency Traders

Jerry W. Markham

Abstract In 2014, author Michael Lewis published a bestselling book titled Flash Boys: A Wall Street Revolt, in which he argued that “high frequency traders” have been able to gain an unfair advantage in the stock market, in part because stock exchanges and “dark pools”—alternative venues for trading stocks—have enabled those traders to obtain and […]

Selective Disclosure and Insider Trading

Written by: Michael D. Guttentag

Abstract Determining when the selective disclosure of material nonpublic information should trigger insider trading liability is a deeply problematic aspect of insider trading doctrine. The current rule is that a selective disclosure can only trigger insider trading liability if “the insider [making the selective disclosure] personally will benefit, directly or indirectly, from his disclosure.” Dirks […]

Peter R. Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act

Abstract In 1977, the U.S. Securities and Exchange Commission (SEC) discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension […]

Johannes W. Fedderke & Marco Ventoruzzo,Do Conservative Justices Favor Wall Street? Ideology and the Supreme Court's Securities Regulation Decisions

The appointment of Supreme Court justices is a politically-charged process and the “ideology” (or “judicial philosophy”) of the nominees is perceived as playing a potentially relevant role in their future decision making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative […]

Onnig H. Dombalagian, Principles for Publicness

What duties does a “public” company owe investors, markets, and society? In recent years, Congress has both strengthened and diluted the federal disclosure and corporate governance regime that applies to public companies in the United States. However, it has never articulated a framework for what it means to be “public,” and how the obligations of […]

Amanda M. Rose & Larry J. LeBlanc, Policing Public Companies: an Empirical Examination of the Enforcement Landscape and the Role Played by State Securities Regulators

Multiple different securities law enforcers can pursue U.S. public companies for the same misconduct. These enforcers include a variety of federal agencies, class action attorneys, and derivative litigation attorneys, as well as fifty separate state regulators. Scholars and policy makers have increasingly questioned whether the benefits of this multienforcer approach are worth the costs, or […]

Steven J. Cleveland, Resurrecting Deference to the Securities and Exchange Commission: Mark Cuban and Trading on Inside Information

By applying the Supreme Court‘s administrative law jurisprudence to the examination of the validity of Rule 10b5-2(b)(1)—a rule recently adopted by the Securities and Exchange Commission (Commission)—this Article fills a significant gap in the existing literature. To date, commentators have argued against the rule‘s validity by applying the Supreme Court‘s securities law jurisprudence without considering […]

Stuart R. Cohn, The New Crowdfunding Registration Exemption: Good Idea, Bad Execution

Title III of the JOBS Act, signed by President Obama on April 5, 2012, sets forth a new exemption from federal and state securities registration for so-called “crowdfunding” promotions. Crowdfunding is an increasingly popular form of raising capital through broad-based internet solicitation of donors. Many promotions simply seek charitable or other donations. But the lure […]

Steven L. Schwarcz, Compensating Market Value Losses: Rethinking the Theory of Damages in a Market Economy

63 Fla. L. Rev. 1053 (2011)| | | ARTICLE :: The BP Deepwater Horizon oil spill and the Toyota car recalls have highlighted an important legal anomaly that has been overlooked by scholars: judicial inconsistency and confusion in ruling whether to compensate for the loss in market value of wrongfully affected property. This Article seeks […]

Adam Denver Griffin, The Federal Sentencing Guidelines' Abuse of Trust Enhancement: An Argument for the Professional Discretion Approach

63 Fla. L. Rev. 457 (2011)| |   | | INTRODUCTION :: In a national issue of first impression for the circuit courts, the Eleventh Circuit, in United States v. Louis, held that a federally licensed firearm dealer who knowingly sells a firearm to a convicted felon should not receive additional punishment for abusing a position […]

Sung Hui Kim, Naked Self-Interest? Why the Legal Profession Resists Gatekeeping

63 Fla. L. Rev. 129 (2011)| | | | ABSTRACT :: This Article asks and answers the following question: why does the legal profession resist gatekeeping? Or, put another way, why do lawyers resist duties that require them to act to avert harm to their corporate client, its own shareholders, and-possibly-the capital markets? While acknowledging […]

Andrew Brady Spalding, Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions Against Emerging Markets

62 Fla. L. Rev. 351 (2010) |   |   |   | ABSTRACT :: Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA), is to deter bribery, empirical evidence demonstrates a problematic collateral effect. In countries where bribery is perceived to be relatively common, the present enforcement regime […]

Brent J. Horton, In Defence of Private-Label Mortgage-Backed Securities

61 Fla. L. Rev. 827 (2009) | | | | ABSTRACT :: The House Financial Services Committee recently concluded that lack of regulation of private-label mortgage-backed securities (MBS) is to blame for the unsustainable housing bubble that peaked in mid-2006-and consequentially, the economic crisis that ensued when the bubble burst. It is true that the […]

Dustin G. Hall, The Elephant in the Room: Dangers of Hedge Funds in our Financial Markets

60 Fla. L. Rev. 183 (2008) | | | | INTRODUCTION :: Hedge funds are our modern titans of industry, and like their predecessors they now represent the best and the worst of the new global economy. These minimally regulated investment entities -in which historically only super-rich investors could have an interest -have recently had […]

Ann Morales Olazábal & Patricia Sanchez Abril, In Honor Of Walter O. Weyrauch: The Ubiquity of Greed: A Contextual Model for Analysis of Scienter?

60 Fla. L. Rev. 401 (2008) | | | | ABSTRACT :: Some securities fraud plaintiffs contend that greed-in the form of perpetuating a prestigious executive position, ensuring a gainful bonus, or maintaining the appearance of corporate profitability-is a bona fide motive evidencing scienter. But currently, no single judicial standard or analytical rubric guides the […]

Lindsay Roshkind, Interpreting I.R.C. § 67(e): The Supreme Court's Attempt to Nail Investment Advisory Fees to the "Floor"

60 Fla. L. Rev. 961 (2008) | | | | TEXT :: In the process of statutory interpretation, a court must determine “whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. [The court’s] inquiry must cease if the statutory language is unambiguous and the […]

Verity Winship, Fair Funds and the SEC's Compensation of Injured Investors

60 Fla. L. Rev. 1103 (2008) | | | | ABSTRACT :: The Fair Fund provision of Sarbanes-Oxley allows the SEC to distribute money penalties to injured investors, heralding a new compensatory role for the agency. The SEC has announced that it will direct money to injured investors whenever possible, but has not articulated clear […]

Dustin G. Hall, Constitutional Law: What to Do When a State Fails to Take Notice that its Notice has Failed?

59 Fla. L. Rev. 453 (2007) | | | | TEXT :: After Petitioner paid off his mortgage, his annual property taxes went unpaid. Respondent, Commissioner of State Lands, subsequently certified Petitioner’s property as delinquent. Under the applicable state statute, Respondent sent, via certified mail, a notice of delinquency to Petitioner’s property. The notice indicated […]

Julia Patterson Forrester, Still Crazy After All These Years: The Absolute Assignment Of Rents In Mortgage Loan Transactions

59 Fla. L. Rev. 487 (2007) | | | | ABSTRACT :: This Article explores the problems caused by the absolute assignment of rents in mortgage loan transactions, which have continued for more than a century, and discusses possible solutions. Rents are a significant part of the security for loans secured by income-producing properties such […]

James Fanto, Paternalistic Regulation of Public Company Management: Lessons from Bank Regulation

58 Fla. L. Rev. 859 (2006) | | | INTRODUCTION :: By all accounts, the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) represented a significant intrusion by the federal government into the substantive regulation of corporate governance of U.S. public companies, an area long considered to be the province of state corporate law. Among other things, Sarbanes-Oxley […]