Sunday, August 31, 2014
Mike Koehler of the FCPA Professor Blog has posted a useful and interesting reading list of his scholarship on the Foreign Corrupt Practices Act. Although this is obvious, he is one of the leading experts on corruption and his scholarship is well worth reading.
Monday, August 18, 2014
Chenghuan Sean Chu has posted Empirical Analysis of Credit Ratings Inflation as a Game of Incomplete Information on SSRN with the following abstract:
This paper models competition among credit rating agencies as an auction. Equilibrium ratings give a distorted representation of agencies' true assessment of quality, because the agencies choose their ratings strategically. I quantify the distortion in ratings for individual commercial mortgage-backed securities, and find the extent of distortion to be an important predictor of the securities' ex post performance. I also find that the distortion magnitudes decreased after the recent financial crisis. Through counterfactual simulations, I determine the marginal impact of additional rating agencies on distortions, and I identify the impact of proposed disclosure requirements.
Geoffrey Christopher Rapp has posted Intelligence Design: An Analysis of the SEC's New Office of Market Intelligence and its Goal of Using Big Data to Improve Securities Enforcement on SSRN with the following abstract:
This contribution to the University of Cincinnati's spring 2013 symposium on “Addressing the Challenges of Protecting the Public: Enforcement Practices and Policies in the Post-Financial Crisis Era,” discusses the SEC's creation of a new Office of Market Intelligence in January, 2010. OMI was created in the aftermath of the Madoff scandal and charged with using advanced techniques to detect securities fraud and to process tips and complaints, including those arising from the Dodd-Frank whistleblower bounty reward program. While it may be too soon to judge the success of the new Office, useful comparisons to other federal intelligence activities (such as in the national security context) and to the business tool of "Market Intelligence" can be drawn.
Saturday, August 16, 2014
The SEC Actions Blog has compiled This Week In Securities Litigation (Week ending August 15, 2014).
The following law review articles relating to securities regulation are now available in paper format:
Jesse M. Fried, Insider Trading Via the Corporation, 162 U. Pa. L. Rev. 801 (2014).
Christian Johnson, Regulatory Arbitrage, Extraterritorial Jurisdiction, and Dodd-Frank: The Implications of US Global OTC Derivative Regulation, 14 Nev. L.J. 542 (2014).
Neel Rane, Comment, Twenty Years of Shareholder Proposals after Cracker Barrel: An Effective Tool for Implementing LGBT Employment Protections, 162 U. Pa. L. Rev. 929 (2014).
John Jr. Robinson, Note, Water Securities: Rights to Use, Used as Collateral, 2013 Utah L. Rev. 1725.
Asking the Audience for Help: Crowdfunding as a Means of Control, Benette Zively, Moderator; David Marlett, Steven Bradford, Jolie Goodnight, Panelists, 15 Tex. Rev. Ent. & Sports L. 87-121 (2013).
Thursday, August 14, 2014
Randle B. Pollard and Tod Perry have posted 'Grade Incomplete': Examining the Securities and Exchange Commission’s Attempt to Implement Credit Rating and Certain Corporate Governance Reforms of Dodd-Frank on SSRN with the following abstract:
Following the financial crisis of 2007-2009, Congress passed the Dodd-Frank Act with stated goals, among others, of creating a sound economic foundation and protecting consumers. The Dodd-Frank Act creates several new agencies and restructures the financial regulatory system, yet controversies remain on the promulgation of new rules and the overall effectiveness in accomplishing the stated goals of the Act.
This Article briefly discusses the status of rulemaking by newly created agencies and the restructured financial regulatory system mandated by the Dodd-Frank Act three years after its passage. Next, we focus on certain aspects of the SEC and its charge from Dodd-Frank to implement new agencies and regulations. Specifically, we examine the SEC efforts to establish the Office of Credit Ratings and its regulations and the SEC’s efforts related to additional executive compensation disclosure regulations required by Dodd-Frank.
Wulf A. Kaal has posted The Systemic Risk of Private Funds after the Dodd-Frank Act on SSRN with the following abstract:
The Financial Stability Oversight Council (FSOC) was created under the Dodd-Frank Act with the primary mandate of guarding against systemic risk and correcting perceived regulatory weaknesses that may have contributed to the financial crisis of 2008-09. The SEC collects data pertaining to private fund advisers in order to facilitate the FSOC’s assessment of non-bank financial institutions’ potential systemic risks. Evidence that the SEC’s data collection encounters accuracy and consistency problems might hamper the FSOC’s ability to evaluate the systemic risk of private funds. The author shows that while the SEC’s data plays a crucial role in all stages of FSOC’s systemic risk assessment of private funds, the FSOC relies most heavily on some of the most problematic disclosure items collected by the SEC.
Adam B. Ashcraft, Kunal Gooriah, and Amir Kermani have posted Does Skin‐in‐the‐Game Affect Security Performance? Evidence from the Conduit CMBS Market on SSRN with the following abstract:
Does reducing the skin‐in‐the‐game of informed agents matter for the performance of securitized assets? In the conduit commercial mortgage backed securities (CMBS) market, an informed investor purchases the bottom five percent of the capital structure, known as the B‐piece, conducting independent screening of loans from which all other investors benefit. However, during the recent credit boom, a secondary market for B‐pieces developed, permitting these investors to significantly reduce their skin‐in‐the‐game. In this paper, we document, that after controlling for all information available at issue, the percentage of the B‐piece that is sold by these investors has a significant adverse impact on the probability that more senior tranches ultimately default. The result is robust to the use of an instrumental variables strategy which relies on the greater ability of larger B‐piece buyers to sell these positions given the need for large pools of collateral. Moreover we show the risk associated with this agency problem was not priced.
Andreas M. Fleckner has posted Regulating Trading Practices on SSRN with the following abstract:
High-frequency trading, dark pools, front-running, phantom orders, short selling — the way securities are traded ranks high among today’s regulatory challenges. Thanks to a steady stream of news reports, investor complaints and public investigations, calls for the government to intervene and impose order have become commonplace, both in financial and academic circles. The regulation of trading practices, one of the oldest roots of securities law and still a regulatory mystery to many people, is suddenly the talk of the town. From a historical and comparative perspective, however, many of the recent developments look less dramatic than some observers believe. This is the quintessence of the present chapter. It explains how today’s regulatory regime evolved, identifies the key rationale for governments to intervene, and analyzes the rules, regulators and techniques of the world’s leading jurisdictions. The chapter’s central argument is that governments should focus on the price formation process and ensure that it is purely market-driven. Local regulators and self-regulatory organizations will take care of the rest.
John C. Coates, IV has Securities Litigation in the Roberts Court: An Early Assessment posted on SSRN with the following abstract:
This article provides an early assessment – both quantitative and qualitative – of the Roberts Court’s securities law decisions. Such cases represent an increased share of Supreme Court’s docket, compared to prior Courts, but only because its overall docket has shrunk, while it has continued to take an average of one to two securities law cases per year. The Roberts Court has maintained the same overall split in “expansive” or “restrictive” outcomes as the post-Powell Rehnquist Court, with reduced polarization: more than half were unanimous and only three included five-vote majorities. An attitudinal model does no better than a coin flip in predicting outcomes. What are new is a heightened role for procedure and a resistance to bright-line rules, with procedural decisions more restrictive and rejections of bright-line rules more expansive. The turn to procedure matches the background and interests of the Chief Justice, a former appellate litigator leading a broader “procedural revolution” on the Court, beyond the limited reach of securities law. The analysis is applied to predict outcomes for cases to be argued in the October 2014 term, and is used to sketch the types of cases likely to attract the attention of the Court in the future.
Jesse Blocher and Robert E. Whaley have posted Passive Investing on SSRN with the following abstract:
Financial economists have long touted the benefits of passive investing, but see it as a lower cost subset of active investing. Instead, we show that passive fund managers have a fundamentally different business model than active fund managers, similar to a media/advertising model where the product (entertainment/news) is given away and the audience is monetized to generate revenue. Specifically, we show that Exchange Traded Funds (ETFs) derive most of their profits from securities lending, while charging a minimal expense ratio. Findings for passive index mutual funds are similar, but attenuated. ETF managers respond to these incentives by slanting their holdings toward more profitable to lend stocks. Investors see a small benefit, as securities lending revenue is associated with somewhat lower deviation from the underlying index.
Monday, August 11, 2014
The following law review articles relating to securities regulation are now available in paper format:
Elizabeth R. Gorman, Note, When the Poor Have Nothing Left to Eat: The United States' Obligation to Regulate American Investment in the African Land Grab, 75 Ohio St. L.J. 199 (2014).
David Groshoff, Kickstarter My Heart: Extraordinary Popular Delusions and the Madness of Crowdfunding Constraints and Bitcoin Bubbles, 5 Wm. & Mary Bus. L. Rev. 489 (2014).
Daniel E. Herz-Roiphe, Comment, Innocent Abroad? Morrison, Vilar, and the Extraterritorial Application of the Exchange Act, 123 Yale L.J. 1875 (2014).
The Foreign Corrupt Practices Act: A Panel at the 2012 National Lawyers Convention, Hon. William H. Pryor Jr., Moderator; Lanny A. Breuer, Mark F. Mendelsohn, Michael B. Mukasey and George T. Terwilliger III, Panelists, 51 Am. Crim. L. Rev. 433 (2014).
The SEC Actions Blog has compiled This Week In Securities Litigation (Week ending August 8, 2014).
Tuesday, August 5, 2014
Benjamin P. Edwards has posted Securities Fraud, Federalism & the Rise of the Disaggregated Class: The Case for Pruning the State Law Exit Option on SSRN with the following abstract:
In the securities litigation world, changes to federal law have repeatedly caused unintended consequences in state courts. This article explores two consequences of securities litigation reform and calls for further reform. First, the federal scheme for securities class action litigation has effectively excluded many individual state law claims from federal court. This reality, in connection with a well-documented trend toward institutional investors “opting out” of class actions to pursue higher-value individual claims in state court, has led to the second new and unexplored dynamic: a new procedural vehicle to aggregate lower-value individual claims outside of a securities fraud class, a vehicle I call the “disaggregated class.”
This article explores these dynamics and argues that the partial preclusion structure of the Securities Litigation Uniform Standards Act (“SLUSA”) should be extended to preempt many state law claims. At present, SLUSA only makes state law claims nonactionable in the class action form. To breathe life into precluded class claims, plaintiffs have begun to go to great lengths to aggregate individual claims in ways that do not trigger SLUSA’s application. As this trend continues, the distinction between class and individual actions begins to break apart and the rationales behind SLUSA’s ban on state law class action litigation begin to apply to individual actions. Expanding SLUSA to limit plaintiffs’ ability to exit federal class action litigation in favor of state law suits in state courts seems likely improve securities fraud deterrence by reducing over-deterrence costs, more appropriately aligning state and federal authority over the national securities markets, and by making private securities class counsel more responsive to exit threats from large investors.
William K. Sjostrom Jr. has posted Direct Private Placements on SSRN with the following abstract:
A direct private placement, or DPP, is a private securities offering to investors by a company without the aid of a placement agent. In other words, it is an offering marketed and sold directly to investors by company personnel. The paper examines two impediments to a DPP: (1) a company’s lack of relationships with accredited investors, and (2) company personnel lack of federal broker and state agent registrations.
Bryce C. Tingle, J. Ari Pandes, and Michael J. Robinson have posted The IPO Market in Canada: What a Comparison with the United States Tells Us About a Global Problem on SSRN with the following abstract:
Initial Public Offerings (IPOs) in the world’s most important financial markets have been falling for the past decade. This has not been a gentle decline, but a collapse that preceded the 2008 financial crisis and shows no sign of abating. Public companies have been an integral part of developed economies for the past century and their apparent decline has occasioned a great deal of concern in the United States, including recent law reform attempts to reverse the trend.
Surprisingly, there has been no analysis of the phenomenon in Canada, where the proliferation of Exchange-traded Funds (ETFs) and the rise and fall of income trust conversions have made trends in this country difficult to see without detailed analysis. Insofar as the Canadian IPO market has been referenced at all in U.S. discussions, it has been said to be in good health, with little change over the last decade, and used as a foil by those arguing something specific to American capital markets has gone wrong. This is not true, however. The Canadian IPO market has also undergone a severe contraction over the past decade, and the differing regulatory and legal regimes between the two culturally similar, economically-linked countries can tell us a lot about what is, and is not causing the decline of public markets in the United States and elsewhere.