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Feature Articles

Toward a New SEC Enforcement Doctrine (11/01/2013)
By: Thomas O. Gorman*

Four years ago, the SEC reorganized and refocused its Enforcement program. Specialty groups were added. Expertise was brought in to bolster the capabilities of the Enforcement Division.  Record numbers of cases were brought. There can be no doubt that the program has been rejuvenated in the wake of a series of failures and scandals.
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Effective Securities Litigation Defense Requires a High Thought-to-Action Ratio (08/01/2013)
By: Douglas W. Greene*

I recently had occasion to review a number of motion-to dismiss rulings, including some in which denial of the motion seemed to an easy call.  I’ve since been mulling over whether there are circumstances in which it would be strategically advantageous not to make a motion to dismiss in a Reform Act case, or a motion to dismiss for failure to make a demand on the board in a derivative case.  I have never foregone such a motion, even when it was relatively weak.  But is that the right strategic and economic approach?**
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Avoiding Waiver of the Attorney-Client Privilege: Why Itís Necessary to Take Precautions in Responding to Government Subpoenas and Discovery Requests (07/01/2013)
By: Jennifer L. Farer*

SEC v. Welliver, Civil No. 11-CV-3076 (D. Minn., 10/26/12) serves as a useful reminder to take precautions when responding to government subpoenas and discovery requests to avoid waiving the attorney-client privilege. In Welliver, the SEC alleged that, in exchange for $4 million in high-interest loans, investment adviser Dblaine Capital, LLC and its control person, David B. Welliver, invested the assets of a mutual fund they managed in an illiquid private placement offered by an affiliate of the loan financier, knowing that the investment violated the fund’s investment restrictions and policies.
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Cost-Effective and Proactive Litigation Tips: Best Practices to Decrease Costs and to Increase the Chance of Concluding a Case Sooner Rather than Later Once Your Company is in Litigation (06/01/2013)
By: Penelope M. Taylor*

Many litigators have been taught to engage in trench warfare and to win at all costs in defending companies and corporations in litigation.  In these tough economic times, it is more important than ever for in-house counsel to take a step back and make sure their outside attorneys and litigation teams are proactive, are efficient, and are looking for cost-effective solutions.  This article suggests some practical tools you can use – or consider using – to decrease defense costs and to increase the chances of concluding a case sooner rather than later.
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Class Action Waivers in Arbitration Agreements: Whatís a Financial-Services Employer to Do? (04/01/2013)
By Robert S. Whitman*

Most national financial-services companies have a substantial presence in New York. Despite the obvious charms of life in the Big Apple, it is fraught with uncertainty these days for employers who are looking to use pre-dispute arbitration agreements to avoid class actions with their employees.
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Gabelli v. SEC Oral Argument (USSC) (01/01/2013)
The legal media was alive in mid-January with news that Justice Clarence Thomas had broken a seven-year chain of silence during oral argument by exchanging a comment with other Justices that was loud enough (albeit too fragmented to reveal meaning) to make the record of proceedings. It is said that Justice Thomas does not believe in shaping oral argument by interrupting counsels’ presentations.
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The Cross-Hairs Of Accounting And Law: The Vectors of Litigation Risk (09/01/2012)
By Norman B. Arnoff* and Paul I. Immerman**

The Dodd-Frank Wall Street Reform and Consumer Protection Act is a work in progress. The legislative intent is to recapture by more effective concentration on specific and inherent risks -- as well as more effective coordination among regulators -- the transparency and market integrity lost over the last number of years. There also should be additional methods of addressing and avoiding systemic risks.
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The JOBS Act: Sure, Itís a Catchy Name But Will It Boost Capital Formation and Create Jobs? (07/01/2012)
By Richard M. Leisner, Gary I. Teblum and Diana L. Hayes*

Editorial Note: Congress passed the Jumpstart Our Business Startups (”JOBS”) Act with the knowledge that it was upending compliance practices and time-proven securities rules governing public and private offerings of small business stocks – called EGCs or “Emerging Growth Companies” in the legislation – with an eye to revitalizing the nation’s capitalraising mechanism and streamlining the path to economic growth. Will the new changes work? Will the regulators pave the way or erect new roadblocks? Will the loosening of controls result in more fraud and more litigation? Our guest authors explain the new provisions and address these concerns and more.
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NLRB Finds Class Action Waivers in Employment Arbitration Agreements Invalid (05/01/2012)
By Katharine I. Rand*

In October of last year, the United States Supreme Court decided AT&T Mobility v. Concepcion (131 S. Ct. 1740), in which the Court upheld the use of a class action waiver in a consumer arbitration agreement. In light of this decision, employment lawyers everywhere encouraged employers to consider adding such waivers to their arbitration agreements or entering into arbitration agreements with class action waivers if they did not already have them. The National Labor Relations Board (NLRB), however, recently made clear that it has a different opinion about whether Concepcion, a consumer case, is applicable in the employment context.  Employers with or considering class action waivers in their arbitration agreements should pay attention to this increasingly unsettled area of the law.
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A Fine Line: The FinderĖBroker Distinction (04/01/2012)
By Norman B. Arnoff*

Whether a person who participates to any degree in the underwriting of securities is deemed merely a finder (who does not have to be licensed as a broker) or a broker and/or dealer that has to be registered depends upon the degree of involvement in the actual offering and sale of securities. These are important distinctions for the issuer, underwriter and the broker-finder herself, as a finding that an individual involved in an offering acted as an unlicensed broker creates liability under federal and state securities laws, can lead to enforcement action against the participants, and can jeopardize the ability of an issuer to obtain financing in the public markets and continue as an ongoing concern. This article examines the distinctions that separate the finder from the broker.
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The Federal Courts Jurisdiction and Venue Clarification Act of 2011: New Legislation Expands Removal Jurisdiction In Federal Court (05/01/2012)
By Laura M. Fontaine*

The Federal Courts Jurisdiction and Venue Clarification Act of 2011, H.R. 394, quietly went into effect in January 2012.1 This Act may be titled a “clarification” of federal jurisdiction and venue provisions, but it deserves attention, because it will significantly increase the number of cases that a defendant may remove from state court to federal court by eliminating procedural roadblocks to federal jurisdiction.
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The Sentinels, Madoff And Dodd-Frank Reform (11/01/2011)
By  Norman B. Arnoff,  Esq.*

Introduction & Statement of Purpose
This article in respect to Madoff’s fraud is not intended as a criticism of the SEC, the legal or accounting profession, or those who invested and traded through private equity and hedge funds. Nor is it the author’s intention to ascribe responsibility for the fiasco to one group or organization as opposed to others. The purpose is to achieve through an analysis a fair perspective of the systemic problems in our law and practices which allowed the Madoff Ponzi scheme to continue for the extraordinary length of time that it did. Hopefully in this manner we can take and continue to take such remedial steps as will avert such devastating frauds in the future.
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Groundbreaking Proposal by MSRB Relating to Municipal Securitiesí Underwriters Obligations to State and Local Governments (08/01/2011)
by Paul Tyrrell* and Hardy Callcott*

I. Introduction
On August 2, 2011, as a result of the Municipal Securities Rulemaking Board’s (“MSRB”) rulemaking initiatives required under the Dodd-Frank Wall Act, the MSRB proposed a groundbreaking proposed interpretive notice (the “Notice”) concerning the application of MSRB Rule G-17 and the obligations of municipal securities underwriters to state and local government bond issuers.
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