Jim Hamilton's World of Securities Regulation: Corporate & Securities Law

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Corporate & Securities Law

Jim Hamilton's World of Securities Regulation

Opines on every level of securities regulation (federal, state, international, theoretical) covering market players of all types (e.g., accountants, broker-dealers, foreign issuers, hedge funds, market manipulators) who engage all sorts of transactions and activities (acquisitions, financial reporting, private placements, pyramid schemes). Highlights issues of particular importance to securities lawyers and their clients with emphasis on SEC rulemaking, industry trends, and the many curiosities that inhabit this world.
By Jim Hamilton

Post Frequency: 15.3/day

Last Entry: April 01, 2011 at 16:29:00

SEC Seeks Public Comment as Agency Conducts Dodd-Frank Mandated Study of Impact of 404(b) of Sarbanes-Oxley

Posted on October 18, 2010
The SEC has requested public comment on a wide range of issues on the Sarbanes-Oxley internal control audit attestation provision, Section 404(b), as it begins a Dodd-Frank mandated study on how to reduce the burden of 404(b) compliance for companies whose public float is between $75 million and $250 million...

IOSCO Forms Task Force to Globally Coordinate Derivatives Regulation, With SEC and CFTC in Lead Roles

Posted on October 18, 2010
With the Dodd-Frank Act mandating the federal regulation of derivatives and the EU committed to quickly act on legislation regulating derivatives, the International Organization of Securities Commissions (IOSCO) has formed a Task Force on OTC Derivatives Regulation to coordinate cross-border the efforts of securities and futures regulators to develop oversight structures related to the OTC derivatives markets...

PCAOB Advisory Group Examines Failure to Supervise and Professional Judgment Issues

Posted on October 17, 2010
At a recent meeting of the PCAOB's Standing Advisory Group (SAG), a panel discussed potential challenges to auditing. One of the most pressing issues today is the move towards global principles-based accounting and auditing standards promulgated respectively by the IASB and the IAASB...

UK FSA Senior Official Describes Impact of Remuneration Code on Hedge Funds

Posted on October 16, 2010
The proposed revision of the UK Remuneration Code contains two key general principles impacting hedge fund advisers, said Dan Waters, FSA Director of Asset Management at a recent seminar. The first principle requires that the remuneration policy of a hedge fund advisory firm promote effective risk management and not encourage excessive risk-taking...

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Hedge Fund Industry Requests Exemptions for Fund Advisers from Proposed UK Remuneration Code

Posted on October 16, 2010
Citing fundamental structural differences between hedge fund advisory firms and other financial firms, the hedge fund industry asked that the firms be exempted from some provisions of the proposed UK Remuneration Code. In a letter to the Financial Services Authority, the Managed Funds Association also requested an appropriate transition period for hedge fund advisers since the timelines for implementation, which begin as early as January 1, 2011, do not provide sufficient time to allow firms to implement changes that may be required as a result of the Code...

Latest EU Draft Legislation on Hedge Fund Regulation Sets Up Transitional Dual System for Marketing US Hedge Funds

Posted on October 16, 2010
In the continuing battle between protectionism and open markets, the European Union Council has set forth a new draft of legislation regulating hedge funds and private equity funds in an effort to find consensus on the marketing of US hedge funds in the EU...

SEC Proposes Regulation Controlling Conflicts of Interest in Swap Clearing and Execution Facilities

Posted on October 15, 2010
Acting on a mandate in Section 765 of the Dodd-Frank Act, the SEC proposed Regulation MC to mitigate conflicts of interest for security-based swap clearing agencies, security-based swap execution facilities, and national securities exchanges that post security-based swaps or make them available for trading...

Former SEC Chair Rod Hills Asks Commission to Create Safe Harbor for Auditor Professional Judgments

Posted on October 14, 2010
Former SEC Chair Rod Hills and Deloitte Deputy CEO Robert Kueppers said that there has been a significant increase in the intrinsic value of the outside, independent audit of corporate financial statements since the Sarbanes-Oxley Act created the PCAOB audit inspection regime...

European Commission Gives Policymakers Choices on Financial Sector Taxes

Posted on October 14, 2010
The European Commission has set forth the choices for policymakers considering taxes on the financial sector. In a report to the European Parliament, the Commission settled on two main types of tax regimes: one for financial transactions and one for financial activities...

Hoogenvorst Will Replace Tweedie as IASB Chair

Posted on October 13, 2010
The co-chair of a joint IASB-FASB expert group, who is firmly committed to a single set of global accounting standards, will replace David Tweedie as Chair of the International Accounting Standards Board. Hans Hoogervorst, co-chair of the Financial Crisis Advisory Group, and Chair of the Netherlands Authority for the Financial Markets, will replace Chairman Tweedie in mid-2011 and relinquish all his other positions at that time...

West Virginia Policy Reiterates Fee Required to Amend Form NF

Posted on October 13, 2010
A 2010 policy statement reiterates from Section 32-3-305 (m) and (n) of the West Virginia Securities Act that persons filing an amendment to Form NF, Uniform Investment Company Notice Filing Form, other than to increase the dollar amount of securities registered, must pay a $50 fee for each amended filing...

Senator Dodd Defends Placing the Bureau of Consumer Financial Protection in the Fed

Posted on October 13, 2010
In a major address on the Dodd-Frank Act at NYU, Senator Christopher Dodd defended the Act?s accomplsihment of creating a Bureau of Consumer Financial Protection out of the existing authority currently scattered throughout an alphabet soup of ineffective regulators and consolidating it into one focused and effective Bureau...

European Commission Proposes Major Reforms of Outside Audits of Company Financial Statements

Posted on October 13, 2010
The European Commission has issued a green paper seeking comment on legislation to reform the financial statement audit process to enhance the role of auditors, eliminate conflicts of interest by mandating rotation of audit firms and ending the issuer pay model, and encouraging joint audits that include a non-Big Four audit firm in order to involve more mid-tier firms in large company audits...

FDIC Proposes Rules under Title II of Dodd-Frank Allowing Different Treatment for Essential Creditors

Posted on October 12, 2010
The FDIC proposes to use its Dodd-Frank authority to liquidate failing systemically important securities, commodities, and other non-bank financial firms by sparingly differentiating among creditors. The authority to differentiate among creditors will be used rarely and only where such additional payments are, in the words of Dodd-Frank, essential to the implementation of the FDIC receivership of the failing firm or any bridge financial company...

Maryland Sets Time-Table for Mandatory Filing of Part 2 of Form ADV

Posted on October 11, 2010
Applicants for initial investment adviser registration in Maryland must, starting October 12, 2010, submit New Part 2 of Form ADV as part of their application or amended electronic filing of Form ADV through the IARD. Persons registered or pending registration as a Maryland investment adviser on October 12, 2010 may submit necessary Form ADV amendments between October 12, 2010 and December 31, 2010, by filing either the old Part II or the new Part 2 of Form ADV...

Indiana Sets Timetable for Mandating New Form ADV Part 2

Posted on October 08, 2010
* Investment adviser applicants and currently registered investment advisers may use either current ADV Part II or new ADV Part 2 between October 12, 2010 and January 1,2011.* New investment adviser applicants must file new Form ADV Part 2 through the IARD as part of their application as of January 1, 2011...

President Obama Signs Legislation Restricting SEC Dodd-Frank FOIA Exemptions

Posted on October 07, 2010
President Obama has signed legislation, P.L. 111-257,�eliminating�SEC exemptions from FOIA bestowed by Section 929I of the Dodd-Frank Act. The legislation, S 3717, was sponsored by Judiciary Committee Chair Patrick Leahy (D-Vt) and had strong bi-partisan support...

California Proposed Rule Excluding Associated Persons from BD Definition Further Revised

Posted on October 07, 2010
A proposed rule to exclude associated persons of issuers from the ?broker-dealer? definition would be further revised as proposed by the California Department of Corporations. An associated person of an issuer would be excluded from the definition of broker-dealer in Section 25004 of the California Securities Law of 1968 if the associated person is not considered a broker-dealer under Rule 3a4-1 of the Securities Exchange Act of 1934...

NYSE Corporate Governance Principles Detail Important Role for SEC

Posted on October 06, 2010
The NYSE has set forth corporate governance principles that envision a significant role for the SEC. For example, one of the ten core principles is that the SEC should work with all parties to the proxy system to ensure that companies�and investors are able to communicate about proxy voting issues on a timely basis�without undue costs or burdens, consistent with privacy concerns�from investors regarding the proprietary nature of their investment strategies...

DC Circuit Court Panel's Deloitte Ruling Not Appealed to Supreme Court

Posted on October 06, 2010
It has been reported (Miller & Chevalier tax appellate blog) that the US Government has not filed a petition for certiorari seeking Supreme Court review of a decision by a panel of the DC Circuit Court of Appeals that a�memo prepared by a company?s outside audit firm recounting the thoughts of corporate counsel on the prospect of tax litigation over company partnerships could be protected attorney work product...

Florida Aligns Advertising Rule with FINRA Rule 2210

Posted on October 06, 2010
Advertisments or sales literature that comply with FINRA Rule 2210 (on public communication) do not have to be approved or filed with the Florida Office of Financial Regulation, effective September 30, 2010.For more information please see http://www.flofr...

South Dakota Proposes Reg. D and Other Exemption, Registration Changes

Posted on October 06, 2010
Rule amendments proposed by the South Dakota Securities Division include the following:* For Reg. D Rule 504, 505 and 506 offerings, an electronically or manually signed copy of Form D could be filed; the appendix and Form U-2 requirement would be eliminated...

EU Securities and Banking Authorities Will Play Data Gathering Role for European Systemic Risk Board as Office of Financial Research Plays for FSOC

Posted on October 06, 2010
It appears that the new European Systemic Risk Board that will come into being on January 1, 2011 will utilize the new European Supervisory Authorities for Securities and Banking to provide the information the Board will need to do its job of macro-prudential regulation of systemic risk to the EU financial system...

SIPA Reform Effort Must Include Cross-Border Insolvencies

Posted on October 05, 2010
Partially driven by the implosion of Lehman Brothers, the SIPC Modernization Task Force is pursuing legislative recommendations to coordinate cross-border brokerage firm failures as part of overall SIPA reform. Task Force Member Joseph Borg, Director of the Alabama Securities Commission, �is the point person for examining�SIPC?s involvement in international relations...

SEC Delays Proxy Access Rule Pending Judicial Review

Posted on October 05, 2010
The SEC has stayed the effectiveness of its recently-adopted proxy access rules at the request of the US Chamber of Commerce and the Business Roundtable until the resolution of a federal court challenge to the rules currently being mounted by the business groups...

Hedge Fund Industry Urges SEC-CFTC Rulemaking to Limit Breadth of Dodd-Frank Swap Dealer Definition

Posted on October 05, 2010
Concerned about the possible breadth of the definitions of swap dealer and security-based swap dealer in the Dodd-Frank Act, the hedge fund industry urges the SEC and CFTC to use the traditional definition of dealer when defining these terms in the derivatives regulations adopted under the Act...

UK FSA Chief Says Regulation of Corporate Culture Part of Sound Governance

Posted on October 05, 2010
n a groundbreaking speech at Mansion House, UK FSA Chief Exceutive Hector Sants said that sound corporate governance demands that regulators ensure that the proper corporate culture is in place to support effective risk management and executive compensation that encourages long-term value creation...

Financial Stability Oversight Council Begins Work of Identifying Systemically Important Financial Firms

Posted on October 04, 2010
The difficult and critical job of implementing Title I of the Dodd-Frank Act began Friday, Oct 1, 2010, with the first meeting of the Financial Stability Oversight Council, which has, among other things, a mandate to identify and monitor systemically risky non-bank financisl firms and hedge funds...

Bi-Partisan Support Growing for Legislation Creating US Covered Bond Market

Posted on October 03, 2010
Whether it happens in the upcoming lame duck session of the 111th Congress or next year in the 112th Congress, there is a growing bi-partisan consensus to pass legislation creating a US covered bonds market. Recently, the House Financial Services Committee reported out by voice vote the US Covered Bond Act, HR 5823...

Senate Banking Chair Sees Covered Bond Market as Alternative to Securitization

Posted on October 02, 2010
Bi-partisan legislation creating a US covered bond market has been reported out to the House floor and has a good chance of being passed during the final months of the 112th Congress. The legislation is designed to enhance liquidity in the secondary markets, reduce financing pressure, and more broadly reform the mortgage-backed securitization process...

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