Securities Law Prof Blog

New in Print

The following law review articles relating to securities regulation are now available in paper format:

Carlos Gomez-Jara Diez, Honest Services Fraud as a Criminal Breach of Fiduciary Duties:  A Comparative Law Approach for Reform, 18 New Crim. L. Rev. 100 (2015).

Sarah E. Light, The New Insider Trading: Environmental Markets within the Firm, 34 Stan. Envtl. L.J. 3 (2015).

Marc Morris, United in Diversity, Divided by Sovereignty: Hybrid financing, Thin Capitalization, and Tax Coordination in the European Union, 31 Ariz. J. Int'l & Comp. L. 761 (2014). 

This Week in Securities Litigation

The SEC Actions Blog has compiled This Week In Securities Litigation (Two weeks ending July 10, 2015).

New in Print

The following law review articles relating to securities regulation are now available in paper format:

Kabir Ahmed & Dezso Farkas, A Proposal to Encourage Up-the-Ladder Reporting by Insulating In-House Corporate Attorneys from Managerial Power, 39 Del. J. Corp. L. 861 (2015).

Annalisa Leibold, Extraterritorial application of the FCPA under International Law, 51 Willamette L. Rev. 225 (2015).

Thomas J. Manning, Private Equity and the FCPA: Deal-Making as Reform Mechanism, 42 Pepp. L. Rev. 377 (2015).

Stephen Miles, Exploring Unexplored Frontiers:  The Private Right of Action under the Louisiana Securities Law, 75 La. L. Rev. 801 (2015).

Jeff Vogt, Note, Don't Tell Your Boss? Blowing the Whistle on the Fifth Circuit's Elimination of Anti-Retaliation Protection for Internal Whistleblowers under Dodd-Frank, 67 Okla. L. Rev. 353 (2015).

Natalie Wong, Note, NML Capital, Ltd. v. Republic of Argentina and the Changing Roles of the Pari Passu and Collective Action Clauses in Sovereign Debt Agreements, 53 Colum. J. Transnat'l L. 396 (2015).

Vollmer on Primary Liability Under Section 17(a) and Rule 10b-5

Andrew N. Vollmer has posted SEC Revanchism and the Expansion of Primary Liability Under Section 17(a) and Rule 10b-5 on SSRN with the following abstract:

An important issue in many enforcement cases brought by the Securities and Exchange Commission is the scope of primary liability under the two main anti-fraud provisions, Section 17(a) of the Securities Act and Rule 10b-5 of the Exchange Act. In Flannery, which was an administrative enforcement case, a bare majority of SEC Commissioners adopted broad positions on primary liability under Rule 10b-5(a) and (c) and Section 17(a)(1), (2), and (3). The Commission not only advanced expansive legal conclusions, but it also insisted that the courts accept the agency’s legal interpretations as controlling.

This article discusses two issues that Flannery raises, both of them related to the role of administrative agencies in the development, enforcement, and adjudication of federal law. First, the article compares the Commission’s interpretations of the parts of Section 17(a) and Rule 10b-5 with the reasoning and analysis of a series of prominent Supreme Court decisions that imposed meaningful boundaries around aspects of primary liability under Rule 10b-5. That comparison shows that much about Flannery is not consistent with, and is antagonistic to, the Supreme Court’s decisions in Central Bank, Stoneridge, and Janus.

Second, the article evaluates Flannery’s explicit demand for Chevron deference and concludes that a reviewing court would have doctrinal and precedential grounds for refusing to accept the Flannery positions as controlling. The reasons start with the text of the provision of the Administrative Procedure Act governing judicial review of agency actions and also cover the actual practice of the Supreme Court and courts of appeals when they review a legal conclusion in an agency adjudication.

The precedents identify good reasons for not granting Chevron deference to Flannery. Giving controlling effect to the SEC’s decision would allow the agency both to avoid the teachings of leading Supreme Court authorities and to trump the Supreme Court and other federal courts on significant matters of statutory interpretation.