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Complete collection for November 2007
63(1): 001 - 024 (November 2007)
Reasonable or justifiable reliance is one of the elements of a claim by a private party under section 10(b) of the Securities Exchange Act of 1934. Section 18 of the Exchange Act has an even stricter reliance requirement, but proof of reliance is not required for a claim under section 11 of the Securities Act of 1933. This Article will discuss the basis for these discrepancies and inquire into whether traditional interpretations of the reliance requirement need to be re-examined.
The Business Lawyer - November 2007, vol. 63, no 1; When Should Investor Reliance Be Presumed in Securities Class Actions?By David S. Clancy and Matthew M.K. Stein
63(1): 055 - 079 (November 2007)
In recent years, here has been an explosion of “class arbitrations” – arbitration proceedings in which the claimant purports to represent a class of absent individuals. In this Article, the authors examine the legislative history of Federal Arbitration Act, and argue that, in enacting the FAA, Congress intended to open the door to non-judicial dispute resolution proceedings with particular fundamental characteristics, and that class arbitration proceedings do not have those characteristics.
63(1): 081 - 114 (November 2007)
The author provides his proposal to have an independent Change of Control Board be used during mergers and acquisition transactions. This would be similar to audit committee provisions seen in the Sarbanes-Oxley Act of 2002.
63(1): 125 - 146 (November 2007)
This Article examines the ways in which the federal securities laws and the U.S. Bankruptcy Code do – and, at times, do not – work together, with an emphasis on the potential conflict between the Fair Funds Provision of the Sarbanes-Oxley Act of 2002, which permits the U.S. Securities and Exchange Commission to distribute penalties and disgorged funds collected from debtor-corporations to shareholders, and the “absolute priority rule,” which prevents distributions to equity holders in Chapter 11 reorganization cases absent payment in full of creditors.
The Business Lawyer - November 2007, vol. 63, no 1; Having the Fiduciary Duty Talk: Model Advice for Corporate Officers (and Other Senior Agents)
63(1): 163 - 186 (November 2007)
In order to have recoverable damages in a Rule 10b-5 action, plaintiffs must establish loss causation, i.e., that the actionable misconduct was the cause of economic losses to the plaintiffs. The requirement of loss causation has come to the fore as a result of the U.S. Supreme Court’s landmark decision in Dura Pharmaceuticals, Inc. v. Broudo. We address in this Article a number of loss causation issues in light of Dura, including the proper use of event studies to establish recoverable damages, the requirement that there be a corrective disclosure, what types of disclosure should count as a corrective disclosure, post-corrective disclosure stock price movements, the distinction between the class period and the damage period, collateral damage caused by a corrective disclosure, and forward-casting estimates of recoverable damages.