Pub Date : 2014-01-02DOI: 10.4337/9781782540076.00007
Arthur B. Laby
Definitions are essential in any regulatory regime and federal securities regulation is no exception. The most fundamental definition under federal and state securities regulation is for the term “security.” The application of multiple statutes, hundreds of administrative rules, and countless cases and interpretations, turns on this definition. This book chapter provides a brief overview of the definition of “security.” The goal is to provide a survey of the law, introduce key themes, and raise several controversial topics to give the reader a flavor for the debates that arise over the definition. Several themes emerge. First, the definition of “security” exemplifies the broader tension regarding the scope of federal securities regulation. Second, the definition dynamic, and lawyers, regulators, and courts often look to the definition of “security” to determine whether a newly minted investment scheme will be covered. Third, new products and services call for a careful review of the definition of “security” to determine whether it should be modified or adapted. The Chapter begins with the statutory definition of “security” and the definition of “investment contract,” a term included in the definition. It then discusses interests in various business organizations, such as corporations and partnerships. It then moves to a discussion of notes, derivative instruments, insurance products, and bank products, each presenting different problems. The Chapter then contains a short discussion of the state law definition of security primarily as a point of contrast with the federal definition. It concludes with emergent themes to keep in mind when analyzing whether a security exists.
{"title":"The Definition of 'Security' Under the Federal Securities Laws","authors":"Arthur B. Laby","doi":"10.4337/9781782540076.00007","DOIUrl":"https://doi.org/10.4337/9781782540076.00007","url":null,"abstract":"Definitions are essential in any regulatory regime and federal securities regulation is no exception. The most fundamental definition under federal and state securities regulation is for the term “security.” The application of multiple statutes, hundreds of administrative rules, and countless cases and interpretations, turns on this definition. This book chapter provides a brief overview of the definition of “security.” The goal is to provide a survey of the law, introduce key themes, and raise several controversial topics to give the reader a flavor for the debates that arise over the definition. Several themes emerge. First, the definition of “security” exemplifies the broader tension regarding the scope of federal securities regulation. Second, the definition dynamic, and lawyers, regulators, and courts often look to the definition of “security” to determine whether a newly minted investment scheme will be covered. Third, new products and services call for a careful review of the definition of “security” to determine whether it should be modified or adapted. The Chapter begins with the statutory definition of “security” and the definition of “investment contract,” a term included in the definition. It then discusses interests in various business organizations, such as corporations and partnerships. It then moves to a discussion of notes, derivative instruments, insurance products, and bank products, each presenting different problems. The Chapter then contains a short discussion of the state law definition of security primarily as a point of contrast with the federal definition. It concludes with emergent themes to keep in mind when analyzing whether a security exists.","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77989541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The SEC should require crowdfunding issuers under the Jumpstart Our Business Startups Act to obtain private insurance against liability based on Section 4A(c) of the Securities Act, using a model of Directors & Officers’ liability insurance. Antifraud concerns could be a major reason for SEC holdup on crowdfunding rulemaking because the SEC must balance investor protection against the costs of disclosure. To address these concerns, a private insurance model could spread the costs of fraud in crowdfunding across the issuers by using the market to determine the “present value of shareholder litigation risk” for that issuer. The maximum recovery would be capped by the amount of the crowdfunding offering, and any recovery under the proposed insurance plan would require proof of a cause of action under Section 4A(c).
美国证券交易委员会应根据《Jumpstart Our Business Startups Act》要求众筹发行人根据《证券法》第4A(c)条，使用董事和高级管理人员责任保险模式，获得私人责任保险。反欺诈担忧可能是SEC拖延众筹规则制定的一个主要原因，因为SEC必须在投资者保护与披露成本之间取得平衡。为了解决这些问题，私人保险模式可以通过市场来确定发行人的“股东诉讼风险现值”，从而将众筹欺诈的成本分摊给发行人。最高赔偿金额将以众筹产品的金额为上限，根据拟议的保险计划，任何赔偿都需要根据第4A(c)条提供诉因证明。
{"title":"Fraud in Crowdfunding and Antifraud Insurance","authors":"T. Li","doi":"10.2139/SSRN.2273263","DOIUrl":"https://doi.org/10.2139/SSRN.2273263","url":null,"abstract":"The SEC should require crowdfunding issuers under the Jumpstart Our Business Startups Act to obtain private insurance against liability based on Section 4A(c) of the Securities Act, using a model of Directors & Officers’ liability insurance. Antifraud concerns could be a major reason for SEC holdup on crowdfunding rulemaking because the SEC must balance investor protection against the costs of disclosure. To address these concerns, a private insurance model could spread the costs of fraud in crowdfunding across the issuers by using the market to determine the “present value of shareholder litigation risk” for that issuer. The maximum recovery would be capped by the amount of the crowdfunding offering, and any recovery under the proposed insurance plan would require proof of a cause of action under Section 4A(c).","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84552925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The year 2013 is likely to be a watershed time in the development of shadow banking oversight and regulation. Of particular note, the FSB has commenced public consultations on its initial proposals and final recommendations are scheduled to be released in September 2013. Moreover, the US will soon begin designating its first nonbank SIFIs and will clarify its plans for regulating such entities in practice and the European Systemic Risk Board is preparing to recommend shadow banking oversight changes in early 2013. It is therefore an appropriate time to pause and re-evaluate the steps that have been taken thus far to address shadow banking at a national and global level. We find that, particularly in the USA, there has been an undue focus on identifying entities operating in the non-bank financial sector and a default to bank prudential regulation for such entities. This default response disregards other options available for risk mitigation, subjects diverse entities to a “one-size-fits-all” regulatory approach, and further complicates legal obligations for entities that are often already subject to other complex regulatory regimes. The consequence may be to potentially force risk migration rather than mitigation. We therefore advocate increased analysis of shadow banking activities, instead of current entity-based strategies imposing bank-like regulation. This approach allows for more effective identification of the sources of risk, greater uniformity in cross-border application of proposed reforms, and more flexibility in addressing financial innovation.We then examine two fiercely debated FSB workstreams: indirect regulation targeting bank interconnectedness and exposure to the shadow banking system and the proposed reforms of money market funds in the USA, EU and at the FSB. Both workstreams demonstrate the importance of tailored solutions that target the activities which create risk, rather than the application of uniform rules to shadow banking entities that ignore their unique characteristics, risk profiles and existing regulation.
{"title":"Promoting Risk Mitigation, Not Migration: A Comparative Analysis of Shadow Banking Reforms by the FSB, USA and EU","authors":"Edward F. Greene, Elizabeth Broomfield","doi":"10.1093/CMLJ/KMS065","DOIUrl":"https://doi.org/10.1093/CMLJ/KMS065","url":null,"abstract":"The year 2013 is likely to be a watershed time in the development of shadow banking oversight and regulation. Of particular note, the FSB has commenced public consultations on its initial proposals and final recommendations are scheduled to be released in September 2013. Moreover, the US will soon begin designating its first nonbank SIFIs and will clarify its plans for regulating such entities in practice and the European Systemic Risk Board is preparing to recommend shadow banking oversight changes in early 2013. It is therefore an appropriate time to pause and re-evaluate the steps that have been taken thus far to address shadow banking at a national and global level. We find that, particularly in the USA, there has been an undue focus on identifying entities operating in the non-bank financial sector and a default to bank prudential regulation for such entities. This default response disregards other options available for risk mitigation, subjects diverse entities to a “one-size-fits-all” regulatory approach, and further complicates legal obligations for entities that are often already subject to other complex regulatory regimes. The consequence may be to potentially force risk migration rather than mitigation. We therefore advocate increased analysis of shadow banking activities, instead of current entity-based strategies imposing bank-like regulation. This approach allows for more effective identification of the sources of risk, greater uniformity in cross-border application of proposed reforms, and more flexibility in addressing financial innovation.We then examine two fiercely debated FSB workstreams: indirect regulation targeting bank interconnectedness and exposure to the shadow banking system and the proposed reforms of money market funds in the USA, EU and at the FSB. Both workstreams demonstrate the importance of tailored solutions that target the activities which create risk, rather than the application of uniform rules to shadow banking entities that ignore their unique characteristics, risk profiles and existing regulation.","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87836312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article addresses a topic of contemporary public policy significance: the optimal allocation of law enforcement authority in our federalist system. Proponents of “competitive federalism” have long argued that assigning concurrent enforcement authority to states and the federal government can lead to redundant expense, policy distortion, and a loss of democratic accountability. A growing literature responds to these claims, trumpeting the benefits of concurrent state-federal enforcement — most notably the potential for state regulators to remedy under-enforcement by captured federal agencies. Both bodies of scholarship are right, but also incomplete. What is missing from this rather polarized debate is a deep appreciation for how context matters. This Article moves beyond the abstract case for or against concurrent state-federal enforcement, and provides a systematic account of the variables that will influence its desirability in disparate regulatory settings. To illustrate the significance of these variables, the Article also provides an empirically-grounded case study of one of the most contentious areas of concurrent state-federal authority — securities fraud enforcement against nationally traded firms.
{"title":"State Enforcement of National Policy: A Contextual Approach (with Evidence from the Securities Realm)","authors":"A. Rose","doi":"10.2139/ssrn.2127742","DOIUrl":"https://doi.org/10.2139/ssrn.2127742","url":null,"abstract":"This Article addresses a topic of contemporary public policy significance: the optimal allocation of law enforcement authority in our federalist system. Proponents of “competitive federalism” have long argued that assigning concurrent enforcement authority to states and the federal government can lead to redundant expense, policy distortion, and a loss of democratic accountability. A growing literature responds to these claims, trumpeting the benefits of concurrent state-federal enforcement — most notably the potential for state regulators to remedy under-enforcement by captured federal agencies. Both bodies of scholarship are right, but also incomplete. What is missing from this rather polarized debate is a deep appreciation for how context matters. This Article moves beyond the abstract case for or against concurrent state-federal enforcement, and provides a systematic account of the variables that will influence its desirability in disparate regulatory settings. To illustrate the significance of these variables, the Article also provides an empirically-grounded case study of one of the most contentious areas of concurrent state-federal authority — securities fraud enforcement against nationally traded firms.","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82698628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We formulate theory on the effect of board of director gender diversity on the broad spectrum of securities fraud, and generate three key insights. First, based on ethicality, risk aversion, and diversity, we hypothesize that gender diversity on boards can operate as a significant moderator for the frequency of fraud. Second, we advance that the stock market response to fraud from a more gender-diverse board is significantly less pronounced. Third, we posit that women are more effective in male-dominated industries in reducing both the frequency and severity of fraud. Results of our novel empirical tests, based on data from a large sample of Chinese firms that committed securities fraud, are largely consistent with each of these hypotheses.
{"title":"Gender Diversity and Securities Fraud","authors":"Douglas J. Cumming, T. Leung, Oliver M. Rui","doi":"10.2139/ssrn.2154934","DOIUrl":"https://doi.org/10.2139/ssrn.2154934","url":null,"abstract":"We formulate theory on the effect of board of director gender diversity on the broad spectrum of securities fraud, and generate three key insights. First, based on ethicality, risk aversion, and diversity, we hypothesize that gender diversity on boards can operate as a significant moderator for the frequency of fraud. Second, we advance that the stock market response to fraud from a more gender-diverse board is significantly less pronounced. Third, we posit that women are more effective in male-dominated industries in reducing both the frequency and severity of fraud. Results of our novel empirical tests, based on data from a large sample of Chinese firms that committed securities fraud, are largely consistent with each of these hypotheses.","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79849178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As shareholders increase their scrutiny of corporate disclosures, proxy ballots and increasingly withdraw support for management proposals, regulators are turning their attention to the role of information agents and intermediaries in the stewardship process in both Europe and North America. Proxy advisors research and advise on a range of corporate governance, environmental and social issues for (mainly) institutional investors. They are also said to be influential on voting outcomes. This paper presents a response to a recent regulatory 'discussion paper' from the European Securities Markets Authority, ESMA, raises questions about the current regulatory approach to proxy advisors and makes some suggestions for greater objective scrutiny of the issue. Consistent with other acadmic research and press reports, the paper questions the desirability of focusing on the role of information intermediaries at the expense of the investment fiduciaries.
{"title":"‘An Overview of the Proxy Advisory Industry, Considerations on Possible Policy Options’: Manifest Responds","authors":"Sarah Wilson, Paul S. Hewitt","doi":"10.2139/ssrn.2091016","DOIUrl":"https://doi.org/10.2139/ssrn.2091016","url":null,"abstract":"As shareholders increase their scrutiny of corporate disclosures, proxy ballots and increasingly withdraw support for management proposals, regulators are turning their attention to the role of information agents and intermediaries in the stewardship process in both Europe and North America. Proxy advisors research and advise on a range of corporate governance, environmental and social issues for (mainly) institutional investors. They are also said to be influential on voting outcomes. This paper presents a response to a recent regulatory 'discussion paper' from the European Securities Markets Authority, ESMA, raises questions about the current regulatory approach to proxy advisors and makes some suggestions for greater objective scrutiny of the issue. Consistent with other acadmic research and press reports, the paper questions the desirability of focusing on the role of information intermediaries at the expense of the investment fiduciaries.","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81835634","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although securities fraud class actions are a well-established legal institution, few (if any) such actions in fact meet the requirements of Rule 23 of the Federal Rules of Civil Procedure for certification as a class action. Among other things, Rule 23 requires the court to find that the representative plaintiff will fairly and adequately protect the interests of the class and that a class action is superior to other means of resolving the dispute.In the typical securities fraud case, the plaintiff class consists of investors who buy the subject stock at a time when the defendant corporation has negative material information that should be publicly disclosed. When the truth comes out, stock price declines, and those who bought during the fraud period sue the corporation for damages equal to the difference between the price they paid and the price at which the stock finally settles. Only buyers have standing to sue in such circumstances. Mere holders have no claim.The problem is that most buyers are also holders. Most investors are well diversified. More than two-thirds of all stock is held through mutual funds, pension plans, and other institutional investors, who trade mostly for purposes of portfolio balancing. As a result, most of the buyers in the plaintiff class will also be holders as to more shares than the number of shares bought during the fraud period. Because the defendant corporation pays any settlement – further reducing the value of the corporation and its stock price through what I call feedback damages – most of the plaintiff class will lose more as holders than they gain as buyers. Thus, many members of the plaintiff class would prefer that the action be dismissed. It is therefore impossible for anyone to be an adequate representative of a class composed of both members who support the action and members who oppose the action. Even if a court would permit a plaintiff class to be gerrymandered to include only those buyers who would gain more than they lose, there is no practical way to identify such investors.In addition, it is likely that in most meritorious securities fraud actions, part of the decrease in stock price will come from expenses associated with defending and settling the securities fraud claim and from harm to the reputation of the defendant company resulting in an increase in its cost of capital. But these claims are derivative rather than direct. Accordingly, it is the corporation – and not individual buyers – who should recover for this portion of the damages. Aside from the fact that such claims are derivative in nature and presumably must be litigated as such, a derivative action is clearly superior to a class action because recovery by the corporation from individual wrongdoers – rather than payment by the corporation to buyers – eliminates feedback damages and thus reduces the size of the aggregate claim. Moreover, a derivative action is much more efficient in that there is a single plaintiff – the corporati
{"title":"Class Conflict in Securities Fraud Litigation","authors":"R. Booth","doi":"10.2139/ssrn.1811768","DOIUrl":"https://doi.org/10.2139/ssrn.1811768","url":null,"abstract":"Although securities fraud class actions are a well-established legal institution, few (if any) such actions in fact meet the requirements of Rule 23 of the Federal Rules of Civil Procedure for certification as a class action. Among other things, Rule 23 requires the court to find that the representative plaintiff will fairly and adequately protect the interests of the class and that a class action is superior to other means of resolving the dispute.In the typical securities fraud case, the plaintiff class consists of investors who buy the subject stock at a time when the defendant corporation has negative material information that should be publicly disclosed. When the truth comes out, stock price declines, and those who bought during the fraud period sue the corporation for damages equal to the difference between the price they paid and the price at which the stock finally settles. Only buyers have standing to sue in such circumstances. Mere holders have no claim.The problem is that most buyers are also holders. Most investors are well diversified. More than two-thirds of all stock is held through mutual funds, pension plans, and other institutional investors, who trade mostly for purposes of portfolio balancing. As a result, most of the buyers in the plaintiff class will also be holders as to more shares than the number of shares bought during the fraud period. Because the defendant corporation pays any settlement – further reducing the value of the corporation and its stock price through what I call feedback damages – most of the plaintiff class will lose more as holders than they gain as buyers. Thus, many members of the plaintiff class would prefer that the action be dismissed. It is therefore impossible for anyone to be an adequate representative of a class composed of both members who support the action and members who oppose the action. Even if a court would permit a plaintiff class to be gerrymandered to include only those buyers who would gain more than they lose, there is no practical way to identify such investors.In addition, it is likely that in most meritorious securities fraud actions, part of the decrease in stock price will come from expenses associated with defending and settling the securities fraud claim and from harm to the reputation of the defendant company resulting in an increase in its cost of capital. But these claims are derivative rather than direct. Accordingly, it is the corporation – and not individual buyers – who should recover for this portion of the damages. Aside from the fact that such claims are derivative in nature and presumably must be litigated as such, a derivative action is clearly superior to a class action because recovery by the corporation from individual wrongdoers – rather than payment by the corporation to buyers – eliminates feedback damages and thus reduces the size of the aggregate claim. Moreover, a derivative action is much more efficient in that there is a single plaintiff – the corporati","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90436278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Regulatory forbearance and government financial support for the largest U.S. financial companies during the crisis of 2007–09 highlighted a "too big to fail" problem that has existed for decades. As in the past, effects on competition and moral hazard were seen as outweighed by the threat of failures that would undermine the financial system and the economy. As in the past, current legislative reforms promise to prevent a reoccurrence. This paper proceeds on the view that a better understanding of why too-big-to-fail policies have persisted will provide a stronger basis for developing effective reforms. After a review of experience in the United States over the last 40 years, it considers a number of possible motives. The explicit rationale of regulatory authorities has been to stem a systemic threat to the financial system and the economy resulting from interconnections and contagion, and/or to assure the continuation of financial services in particular localities or regions. It has been contended, however, that such threats have been exaggerated, and that forbearance and bailouts have been motivated by the "career interests" of regulators. Finally, it has been suggested that existing large financial firms are preserved because they serve a public interest independent of the systemic threat of failure they pose—they constitute a "national resource." Each of these motives indicates a different type of reform necessary to contain too-big-to-fail policies. They are not, however, mutually exclusive, and may all be operative simultaneously. Concerns about the stability of the financial system dominate current legislative proposals; these would strengthen supervision and regulation. Other kinds of reform, including limits on regulatory discretion, would be needed to contain "career interest" motivations. If, however, existing financial companies are viewed as serving a unique public purpose, then improved supervision and regulation would not effectively preclude bailouts should a large financial company be on the brink of failure. Nor would limits on discretion be binding. To address this motivation, a structural solution is necessary. Breakups through divestiture, perhaps encompassing specific lines of activity, would distribute the "public interest" among a larger group of companies than the handful that currently hold a disproportionate and growing concentration of financial resources. The result would be that no one company, or even a few, would appear to be irreplaceable. Neither economies of scale nor scope appear to offset the advantages of size reduction for the largest financial companies. At a minimum, bank merger policy that has, over the last several decades, facilitated their growth should be reformed so as to contain their continued absolute and relative growth. An appendix to the paper provides a review of bank merger policy and proposals for revision."
{"title":"Too Big to Fail in Financial Crisis: Motives, Countermeasures, and Prospects","authors":"B. Shull","doi":"10.2139/SSRN.1621909","DOIUrl":"https://doi.org/10.2139/SSRN.1621909","url":null,"abstract":"Regulatory forbearance and government financial support for the largest U.S. financial companies during the crisis of 2007–09 highlighted a \"too big to fail\" problem that has existed for decades. As in the past, effects on competition and moral hazard were seen as outweighed by the threat of failures that would undermine the financial system and the economy. As in the past, current legislative reforms promise to prevent a reoccurrence. This paper proceeds on the view that a better understanding of why too-big-to-fail policies have persisted will provide a stronger basis for developing effective reforms. After a review of experience in the United States over the last 40 years, it considers a number of possible motives. The explicit rationale of regulatory authorities has been to stem a systemic threat to the financial system and the economy resulting from interconnections and contagion, and/or to assure the continuation of financial services in particular localities or regions. It has been contended, however, that such threats have been exaggerated, and that forbearance and bailouts have been motivated by the \"career interests\" of regulators. Finally, it has been suggested that existing large financial firms are preserved because they serve a public interest independent of the systemic threat of failure they pose—they constitute a \"national resource.\" Each of these motives indicates a different type of reform necessary to contain too-big-to-fail policies. They are not, however, mutually exclusive, and may all be operative simultaneously. Concerns about the stability of the financial system dominate current legislative proposals; these would strengthen supervision and regulation. Other kinds of reform, including limits on regulatory discretion, would be needed to contain \"career interest\" motivations. If, however, existing financial companies are viewed as serving a unique public purpose, then improved supervision and regulation would not effectively preclude bailouts should a large financial company be on the brink of failure. Nor would limits on discretion be binding. To address this motivation, a structural solution is necessary. Breakups through divestiture, perhaps encompassing specific lines of activity, would distribute the \"public interest\" among a larger group of companies than the handful that currently hold a disproportionate and growing concentration of financial resources. The result would be that no one company, or even a few, would appear to be irreplaceable. Neither economies of scale nor scope appear to offset the advantages of size reduction for the largest financial companies. At a minimum, bank merger policy that has, over the last several decades, facilitated their growth should be reformed so as to contain their continued absolute and relative growth. An appendix to the paper provides a review of bank merger policy and proposals for revision.\"","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85796687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It was only about three decades back that insider trading was recognized in many developed countries as what it was - an injustice; in fact, a crime against shareholders and markets in general. At one time, not so far in the past, inside information and its use for personal profits was regarded as a perk of office and a benefit of having reached a high stage in life. It was the Sunday Times of UK that coined the classic phrase in 1973 to describe this sentiment - "the crime of being something in the city", meaning that insider trading was believed as legitimate at one time and a law against insider trading was like a law against high achievement. "Insider trading" is a term subject to many definitions and connotations and it encompasses both legal and prohibited activity. Insider trading takes place legally every day, when corporate insiders - officers, directors or employees - buy or sell stock in their own companies within the confines of company policy and the regulations governing this trading. It is the trading that takes place when those privileged with confidential information about important events use the special advantage of that knowledge to reap profits or avoid losses on the stock market, to the detriment of the source of the information and to the typical investors who buy or sell their stock without the advantage of "inside" information. Almost eight years ago, India's capital markets watchdog - the Securities and Exchange Board of India organised an international seminar on capital market regulations. The scope of this paper would be restricted to India however reference would be made to foreign jurisdictions to have a better clarity to understand the topic. The important issues would be highlighted at length in the paper and the researcher would try to come up with solutions pertaining to these issues. An attempt would also be made to understand the relevant laws on this topic and the researcher would also try to point out the lacunae in these laws.
大约30年前，许多发达国家才认识到内幕交易的本质——不公正;事实上，这是对股东和整个市场的犯罪。在不久以前的某个时期，内幕消息及其为个人谋利的利用曾被视为一种办公室福利，以及达到人生高位的一种好处。英国《星期日泰晤士报》(Sunday Times)在1973年创造了一个经典短语来描述这种情绪——“在城市中有所作为的犯罪”(the crime of something in the city)，意思是说，内幕交易一度被认为是合法的，反对内幕交易的法律就像反对高成就的法律一样。“内幕交易”是一个有许多定义和内涵的术语，它包括合法和禁止的活动。内幕交易每天都是合法的，当公司内部人士——高管、董事或员工——在公司政策和管理这种交易的法规的范围内买卖自己公司的股票时。内幕交易是指那些拥有重要事件机密信息特权的人利用这一特殊优势在股票市场上获利或避免损失，损害信息来源和那些没有“内幕”信息优势的典型投资者买卖股票的交易。大约8年前，印度资本市场监管机构——印度证券交易委员会(Securities and Exchange Board of India)组织了一次关于资本市场监管的国际研讨会。本文件的范围将限于印度，但将参考外国司法管辖区，以便更好地理解本专题。重要的问题将在论文中详细强调，研究人员将试图提出与这些问题有关的解决方案。也将尝试了解有关这一主题的法律，并试图指出这些法律的空白。
{"title":"Project Report on Insider Trading in India","authors":"Ayan Roy","doi":"10.2139/SSRN.1620386","DOIUrl":"https://doi.org/10.2139/SSRN.1620386","url":null,"abstract":"It was only about three decades back that insider trading was recognized in many developed countries as what it was - an injustice; in fact, a crime against shareholders and markets in general. At one time, not so far in the past, inside information and its use for personal profits was regarded as a perk of office and a benefit of having reached a high stage in life. It was the Sunday Times of UK that coined the classic phrase in 1973 to describe this sentiment - \"the crime of being something in the city\", meaning that insider trading was believed as legitimate at one time and a law against insider trading was like a law against high achievement. \"Insider trading\" is a term subject to many definitions and connotations and it encompasses both legal and prohibited activity. Insider trading takes place legally every day, when corporate insiders - officers, directors or employees - buy or sell stock in their own companies within the confines of company policy and the regulations governing this trading. It is the trading that takes place when those privileged with confidential information about important events use the special advantage of that knowledge to reap profits or avoid losses on the stock market, to the detriment of the source of the information and to the typical investors who buy or sell their stock without the advantage of \"inside\" information. Almost eight years ago, India's capital markets watchdog - the Securities and Exchange Board of India organised an international seminar on capital market regulations. The scope of this paper would be restricted to India however reference would be made to foreign jurisdictions to have a better clarity to understand the topic. The important issues would be highlighted at length in the paper and the researcher would try to come up with solutions pertaining to these issues. An attempt would also be made to understand the relevant laws on this topic and the researcher would also try to point out the lacunae in these laws.","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85643421","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2010-05-01DOI: 10.1016/J.JFINECO.2011.03.002
D. Larcker, G. Ormazabal, Daniel J. Taylor
{"title":"The Market Reaction to Corporate Governance Regulation","authors":"D. Larcker, G. Ormazabal, Daniel J. Taylor","doi":"10.1016/J.JFINECO.2011.03.002","DOIUrl":"https://doi.org/10.1016/J.JFINECO.2011.03.002","url":null,"abstract":"","PeriodicalId":10000,"journal":{"name":"CGN: Securities Regulation (Sub-Topic)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73065684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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