Securities Regulation & Law Report Index-Summary

DEFAULT JUDGMENTS

– Argentinean trader, unauthorized trading and false information (D. Conn.), 27

DEFINITION OF SECURITIES

– Charitable gift annuities in Ponzi scheme are securities (9th Cir.), 1250
– Condominium units, dismissal for untimeliness affirmed (Fla. Dist. Ct. App.), 1959
– Indexed annuities regulated under '33 Act, Federal Brief, 86; rule may be affected by presidential rulemaking halt, 106; insurers file claims to invalidate rule (D.C. Cir.), 117; insurers file for expedited review, 168; expedited review granted, 201; state insurance regulators and legislators file claims, actions consolidated, 301; SEC defends rulemaking, 696; oral arguments heard, 902; rule struck down, 1385; further developments, see LEGISLATION, FEDERAL, HR 2733
– IOUs issued by Calif. are municipal securities, SEC staff statement, 1301
– Limited partnership, REIT subsidiary units are securities (D.C. Cir.), 1611
– REIT units, claims over merger subject to CAFA removal (7th Cir.), 59
– Television programming partnership interests are securities, conviction of promoter upheld (Colo. Ct. App.), 787
– Tire recycling venture, default judgment set aside, leave to pursue defense granted (E.D. Mich.), 1827
– Viaticals, SEC to review status as investments, possible regulation, 803; task force to examine emerging issues, 1723; Kanjorski (D-Pa) raises concerns re securitizations, 1793

DEPARTMENT OF

See specific department e.g., JUSTICE DEPARTMENT (DOJ)

DERIVATIVE ACTIONS

– ADS holders in Swiss pharmaceutical firm lack standing in derivative action (N.D. Cal.), 1679
– Attorneys' fees, bank officials named in derivative claim not entitled to indemnification from former colleagues dismissed from action (D.D.C.), 913
– Banking

– – Bear Stearns claims consolidated by subject matter (S.D.N.Y.), 47
– – Merger, Bank of America/Merrill Lynch claims, suits consolidated and lead plaintiffs chosen (S.D.N.Y.), 1309

– British Virgin Islands, statute requiring court permission to proceed is substantive, claims dismissed (Cal. Ct. App.), 1076
– Compensation, shareholder claims properly dismissed as derivative (La. Ct. App.), 276
– Failure to show presuit demand futility

– – Adolor Corp., insufficient disclosure of patient data, claims dismissed (E.D. Pa.), 1025
– – American Tower Corp., stock option backdating claims dismissed (Mass.), 728
– – Auction rate securities

– – – Citigroup claims fail (S.D.N.Y.), 1747
– – – Goldman Sachs, manipulation of ARS market claims dismissed (S.D.N.Y.), 1024

– – Autodesk stock option backdating claims dismissed (N.D. Cal.), 23
– – Bed Bath & Beyond stock option backdating, Delaware standard rejected, claims dismissed (N.Y. App. Div.), 134
– – Citigroup, subprime risk monitoring claims fail (Del. Ch.), 372
– – Computer Sciences Corp. option backdating claims dismissal affirmed (9th Cir.), 223
– – ePlus, stock option backdating claim, suit dismissed (D.D.C.), 1590
– – Executive compensation, claims alleging proxy misstatements dismissed (E.D.N.Y.), 64
– – Failed going-private deal, board conflict not valid argument for lack of demand (Del. Ch.), 313
– – Fees, claims for excessive marketing and distribution payments dismissed (S.D.N.Y.), 616
– – Huntington Bancshares acquisition of Sky Financial, claims dismissed (S.D. Ohio), 1905
– – Intel, likelihood of personal liability does not excuse failure to make presuit demand (D. Del.), 1217
– – Medtronic, breach of duty, abuse of control, mismanagement, and insider trading claims dismissed (D. Minn.), 983
– – Offshore oil and gas company, presuit demand conceded director independence, claims dismissed (Del. Ch.), 884
– – Oil field services, no presuit demand made for claims based on FCPA settlement (S.D. Tex.), 1075
– – Pfizer, cardiovascular risk and liability effect on stock price, claims dismissed (2d Cir.), 163
– – Two-sentence demand letter insufficient (Tex.), 1074
– – VeriFone, no demand made and no particularized facts pled, claim dismissed (N.D. Cal.), 1128

– Jurisdiction, excessive bonus suit does not present federal question (E.D. Mo.), 1459
– Representation found adequate, pension funds unable to intervene in Ambac claims (S.D.N.Y.), 917
– Standing

– – Acquisition disrupts continuous ownership, claims dismissed (S.D.N.Y.), 311
– – Bankruptcy extinguishes shareholder rights (6th Cir.), 111
– – Minority shareholder has standing as class of one (Utah), 1216
– – Recapitalization, dilution claim is derivative, dismissed for lack of standing (Del. Ch.), 1023

– Valuation, pending derivative claim must be included in stock assessment (Cal. Ct. App.), 312
– Wash., stock option backdating, knowing manipulation of grants may be inferred when considering presuit demand futility (Wash.), 1021

DERIVATIVES

– Arbitration, FINRA sees dramatic increase in claims, 608
– Capital requirements, CFTC seeks increase for futures commission merchants and introducing brokers, 944; comment letter says proposal would be anticompetitive, 1333
– Carbon offsets, CFTC expands advisory panel to include environmental markets, 733
– Clearance and settlement

See CLEARANCE AND SETTLEMENT

– Collateralized mortgage obligations, FINRA and SEC file fraud charges against firm for fraudulent marketing (S.D. Fla.), 1059
– Deregulation, Gramm denies bills were deregulatory and defends policies, 180
– Disclosure and operations, key players meet to discuss improvement measures, 600
– Embedded derivatives

– – FASB to defer effective date of proposed new guidance, 435
– – IASB seeks comments on emergency amendment, 30; effective date for amendment set, 386

– EU and US likely to develop separate regulatory regimes with common goals, officials tell conferees, 1103
– Fixed income derivatives, clearing joint venture announced between NYSE Euronext and Depository Trust & Clearing, 1177
– Global trading, first ever decline in second half of 2008, 988
– IOSCO task force concluded regulators lack necessary data, 429
– Mutual funds, Donohue solicits attorney input on reconsideration of rules, 696
– Over-the-counter market

– – Central repository key to reducing systemic risk, DTCC official says, 1730
– – Collateral, global agreement to be formalized, 1895
– – Dual oversight scheme, Gensler outlines proposal to Senate Agric. Comm., 1078; Schapiro proposes SEC jurisdiction over securities-related products, 1220; Obama plan calls for dual SEC/CFTC authority, 1294; Frank (D-Mass) and Peterson (D-Minn) present regulatory outline, 1434; SEC and CFTC to release harmonization report, 1815; SEC and CFTC point out defects in Frank draft, 1856; joint report released, 1907; further developments, see LEGISLATION, FEDERAL, HR 3795
– – EU and U.S. downplay potential regulatory differences, 1821
– – Exemptions to oversight, Gensler argues for comprehensive plan, 1962
– – Inter-dealer brokers form association, Wholesale Market Brokers' Ass'n Am., 1367
– – Regulation of all transactions

See LEGISLATION, FEDERAL, HR 2448

– – Skepticism expressed on success of reform proposals, 1965
– – Treasury releases draft legislation, 1517; CFTC suggests enhancements, 1592; House Financial Services Comm. hearings agenda set, 1749; Treasury draft likely to be basis for bill, 1753; Schapiro suggests modifications to reduce regulatory arbitrage, 1769; Gensler outlines regulatory ideas in European speeches, 1800; passage of Treasury proposal would create CFTC staffing challenges, 1839; further developments, see LEGISLATION, FEDERAL, S 1691

– Oversight

– – Coordinated regulation under new Office of Derivatives Supervision

See LEGISLATION, FEDERAL, HR 3300

– – Joint authority to SEC and CFTC, Obama administration seeks legislation to grant, 897

– Recordkeeping and reporting, Obama administration issues proposals, 1137
– Refco lawyer found guilty for role in financing cover-up (S.D.N.Y.), 1364
– Regulated exchanges, mandate to trade on designated markets

See LEGISLATION, FEDERAL, S 272

– Regulation, Group of Thirty report recommends legislation, 108
– Structured finance products, IOSCO urges greater post-trade transparency, 1736
– Swaps

See SWAPS

– Systemic risk, major banks agree to voluntary best practices, 1060
– Transparency, NASAA urges legislation, 175
– UK, FSA recommends tougher regulation and supervision of cross-border institutions, 509

DIRECTORS AND OFFICERS

– Anonymous internet postings by corporate executives, Analysis and Perspective, 417
– Attorneys' fees, executives to receive advancement from investor (Del. Ch.), 1457
– Books and records, semiconductor investor files claim over retained unelected directors and rejection of acquisition (Del. Ch.), 627; request denied, 1904
– Commodities, CFTC adopts final definition of designated contract market “public director,” lifts best practices stay, 830
– Conflicts

– – Merger honoring prearranged contract does not prove conflict (Del. Ch.), 24
– – Warner (D-Va) encourages Senate to focus attention on board activity, 549

– Control person liability in SEC enforcement actions, Analysis and Perspective, 1686
– Deadlocked board, biotechnology company with no funding dissolved (Del. Ch.), 177
– Decision rights and responsibilities, ABA report urges balance between shareholders and boards, 1484
– Elections

See PROXIES

– Energy company executives charged for siphoning money and false certifications (W.D. Okla.), 1203
– Equity for personal guaranties in non-crisis breaches fiduciary duty (1st Cir.), 1957
– EU, credit rating agencies subject to director independence rules, 757
– Executive compensation

See EXECUTIVE COMPENSATION

– FCPA individual liability, executives need to be vigilant, Attorney Insight, 1495
– Fiduciary duty

See FIDUCIARY DUTY

– Hostile takeover, shareholder request to expedite board elections denied (Del. Ch.), 730
– Independent directors, SEC considering changes to requirements, 79
– Insider trading, three pay sanctions after inferring event from director behavior (S.D.N.Y.), 1623
– Inspection rights do not include attorney-client material in director action (Cal. Ct. App.), 134
– Loans to CEO, shareholder claims reinstated (9th Cir.), 1786
– Mutual funds, Aguilar encourages directors to engage in regulatory reform debate, 745
– Ouster, “blank check vehicle” must hold annual meeting to elect directors (Del. Ch.), 885
– Parent company may proceed with fraud claims against CEO for conduct re subsidiary (Del. Ch.), 1638
– Penny stocks, officer-and-director bar sought in illegal distribution scheme (S.D. Fla.), 617
– Personal liability, Analysis and Perspective, 714
– Presuit demands on board

See DERIVATIVE ACTIONS

– Qualified proposals for bylaw amendments, law professors file amicus brief supporting action (2d Cir.), 342; Chamber of Commerce files amicus brief opposing action, 755
– Sanctions, permanent bar from serving as an officer or director too draconian (D.D.C.), 235
– Short-swing profits, hedge fund investors created 13(d) group (S.D.N.Y.), 81
– Stock option backdating

– – Criminal charges, CEO of home builder indicted (C.D. Cal.), 431
– – Governance reforms included in Maxim settlement (Del. Ch.), 133
– – Interested directors, Delaware standard rejected (N.Y. App. Div.), 134

– Tax risks, IRS says directors need to take a more active role to manage, 1933
– Web-based group launched to organize shareholders and communicate with lawmakers, 1204

DISABLED PERSONS

– Ponzi scheme targeting the deaf, SEC and CFTC charges filed (D. Haw.), 321
– Terminally ill and mentally impaired clients targets of fraud, investment adviser settles with SEC, faces criminal charges (S.D.N.Y.), 1111

DISCLOSURE

See also REPORTING REQUIREMENTS
– Asset-backed securities, IOSCO publishes guidance for regulators, 1247
– Asset swap transaction, alleged omissions were not material, dismissal affirmed (2d Cir.), 1823
– Bank merger, omission of prior deal terms from registration statement not misleading (9th Cir.), 112
– Blockbuster, restatement of cash flows after divestiture does not create claim absent material misrepresentation (Del.), 224
– Clothing retailer, class certified in claim asserting concealment of excess inventories (S.D. Ohio), 1036
– Connecticut

– – Advisers to private funds, senate passes bill, 1021; filibuster threat causes adjournment without action, 1121
– – Hedge funds, registration and disclosure bill considered, 626

– Debenture offering, asset freeze agreed to over misrepresentations and misuse of funds (N.D. Tex.), 763
– Discovery

See DISCOVERY

– Distressed company investment fund, failure to disclose undercapitalization, claims may proceed (S.D.N.Y.), 15
– Dividends, announcement of increase in payouts after share buyback does not prove intent to mislead (5th Cir.), 698; (U.S., rev den), 1859
– Electronic post mark, failure to disclose sales metrics not fraudulent absent duty (S.D.N.Y.), 568
– Enron

– – Banks did not owe disclosure duty to shareholders, class action dismissed (S.D. Tex.), 506
– – Broadband executive sentenced to prison for false promotion (S.D. Tex.), 1844

– Environment

– – Climate change-related information, businesses routinely fail to disclose, report finds, 1063; SEC guidance expected on materiality, 1417
– – Liabilities, failure to disclose insufficient reserves, lead plaintiffs appointed (S.D.N.Y.), 1945

– Exchange traded funds, investors allege nondisclosure of risks in leveraged ETF (S.D.N.Y.), 1536
– Executive compensation

– – Pay realizable, consulting firm suggests SEC amend current rules, 1071
– – Supplemental disclosures may be necessary, experts say, 357
– – TARP, Kucinich (D-Ohio) asks SEC to determine if Bank of America made material omissions re bonuses, 654; SEC investigates disclosures, 695; settlement between Bank of America and SEC rejected (S.D.N.Y.), 1476; court rebukes SEC for settlement attempt with shareholder funds, 1609; SEC defends decision not to charge executives, 1660; settlement rejected, 1718; Inspector Gen. to investigate SEC charges, 1720; House Oversight Committee seeks testimony on regulatory role in deal, 1726

– FASB requirements

See FINANCIAL ACCOUNTING STANDARDS BOARD (FASB)

– Filing requirements

See REPORTING REQUIREMENTS

– Former insider may pursue fiduciary breach claims for nondisclosure during stock sales to insiders (Del. Ch.), 1589
– Freedom of Information Act

See FREEDOM OF INFORMATION

– Health care products company, securities fraud claims re financial projections dismissed (N.D. Ill.), 283
– Hedge fund, missing manager alleged to have overstated value of funds, emergency relief granted (M.D. Fla.), 117; adviser arrested on criminal fraud charges (S.D.N.Y.), 162; manager indicted (S.D.N.Y.), 818; investors seek to consolidate claims, 1491
– Helicopter armor, nondisclosure of termination of contract by military is material, fraud claims may proceed (E.D.N.Y.), 709
– Investment adviser, assets frozen over failure to inform investors of enforcement action, other misrepresentations (M.D. Fla.), 761; financial firms dismissed as relief defendants, 1207
– Kickbacks, broker liability for failure to tell clients of role in pump-and-dump scheme affirmed (2d Cir.), 1161
– Management fees, investment adviser settles disclosure charges (SEC), 1065
– Management's Discussion and Analysis

See MANAGEMENT'S DISCUSSION AND ANALYSIS (MD&A)

– Medicare pilot program, claims re misleading disclosures may proceed (M.D. Tenn.), 569
– Mergers and acquisitions

– – Accounting guidance on contingent items, FASB finalizing, 384; final guidance published, 633
– – Del., nondisclosure of material facts on short-form merger grants minority shareholders unrestricted quasi-appraisal rights (Del.), 1369

– Model privacy form, SEC reopens comment period, 697
– Mortgage-backed securities, pension fund claims Wells Fargo concealed risk levels (S.D.N.Y.), 215
– Municipal securities

See MUNICIPAL SECURITIES

– Music production company, trading suspended over promotional brochure (SEC), 1315
– Mutual funds

– – Derivatives, Donohue asks attorneys for input on potential rulemaking beyond documentary requirements, 696
– – Mortgage-backed securities, Evergreen settles selective disclosure claims (SEC), 1105
– – Risk profile, class action alleging Schwab misrepresentation may proceed (N.D. Cal.), 272
– – Shelf space, website disclosures foreclose claims re secret payments (2d Cir.), 292

– Pharmaceuticals

– – Acne drug, class certified in concealed preclinical trial claim (N.D. Cal.), 978
– – Alzheimer's drug, concealment of clinical trial defects, claim dismissed (S.D.N.Y.), 620
– – Antivirals, loss causation adequately pleaded where product demand is fueled by unlawful practices (U.S., rev den), 746
– – Stem cell company settles charges over readiness for human testing, CEO to contest (W.D. Wash.), 1682; claims against stock promoter dismissed, 1828

– Product defects, company not required to disclose unknown or unknowable future failures (2d Cir.), 1787
– Recapitalization, dilution claim dismissed for lack of standing, omission of key information claims may proceed (Del. Ch.), 1023
– Regulation FD

– – Anonymous internet postings by corporate executives, Analysis and Perspective, 417
– – Compliance and Disclosure Interpretations, SEC issues, 1563
– – Earnings information, CFO settles claims of selective disclosure (S.D. Ind.), 1782

– Related-party transactions, Rica Foods and CEO settle claims (S.D. Fla.), 15
– Research analyst conflict disclosures, Analysis and Perspective, 217
– Risk factors, privacy and data security are underreported in SEC filings, report shows, 774
– Safe harbor

See PRIVATE SECURITIES LITIGATION REFORM ACT (PSLRA)

– Securitizations and consolidation, FASB reaches tentative decisions, 635
– Speculative statements do not support loss causation (N.D. Cal.), 1601
– Student loan-backed securities, risk disclosures made, allegations fail to state claim (D. Mass.), 1577
– Subprime mortgage risk, Countrywide executives charged with misleading investors (C.D. Cal.), 1050
– Target date retirement funds, Kohl (D-Wis) urges SEC to investigate disclosures and holdings, 399; SEC examines disclosure practices and asset allocations, 855; joint meeting with SEC and Labor Dept. announced, 920; SEC staff examining names for misleading target dates, 1150; panelists at joint agency hearing agree more disclosure is necessary, 1158
– Web-based group launched to organize shareholders and communicate with lawmakers, 1204

DISCOVERY

– Arbitration, attorney representing member firm in FINRA action properly sanctioned for copying inadvertently disclosed privileged material (Cal. Ct. App.), 227
– Auto parts company, SEC must comply with targeted document requests (S.D.N.Y.), 235
– Confidential witnesses in securities class actions, disclosure of identity during discovery, Analysis and Perspective, 87
– Electronic data, companies need to plan ahead to control costs, speakers tell conferees, 1475
– FOIA as tool against SEC debated by attorneys, 1273
– Merger, shareholders may review post-deal financial data (Del. Ch. Ct.), 729
– Private Securities Litigation Reform Act

See PRIVATE SECURITIES LITIGATION REFORM ACT (PSLRA)

– Stock option backdating

– – Settlement, general counsel in backdating scheme not entitled to discovery on guilty plea (E.D.N.Y.), 1791
– – Statements to SEC, attempt by CFO to discover communications by other officers denied (N.D. Cal.), 1038

– Stock price manipulation, prejudice concerns of criminal authorities insufficient to stay related civil action (D. Ariz.), 1068

DISGORGEMENT

– Ability to pay, top 10 SEC enforcement developments of 2008, Analysis and Perspective, 360

DIVIDENDS

– Disclosure, announcement of increase in payouts after share buyback does not prove intent to mislead (5th Cir.), 698; (U.S., rev den), 1859
– Wisconsin

– – Division of profits by investment advisory owners is constructive dividend, not bonus (Wis. Ct. App.), 1026
– – Minority shareholder, direct claim re constructive dividend not extinguished by cash-out merger (Wis.), 826

DOJ

See JUSTICE DEPARTMENT (DOJ)

DOUBLE JEOPARDY

– Conspiracy, retrial based on inadequate jury instructions proper, prospective restrictions on admissibility not possible (10th Cir.), 1528
– Enron

– – Partial verdict with shared essential factual elements, retrial allowed (U.S., oral arg), 585; factual conclusions may not be drawn from jury inaction (rvs and rem), 1148
– – Predicate offenses, acquittal does not bar retrial on dependent claims (U.S., vac and rem), 1244; executive cannot be retried (5th Cir.), 1971

– Nigerian barge scam, reversal of conviction on presence of invalid legal theory, retrial not precluded (5th Cir.), 1223

DRUGS

See PHARMACEUTICALS

DUE PROCESS

– SEC investigation does not affect rights (E.D. Wis.), 1673
– Subpoena, enforcement does not violate due process (S.D. Fla.), 1938