Website Heading

CALIFORNIA CORPORATE & SECURITIES LAW

Is The SEC’s Universal Proxy Proposal A Product Of Agency Capture?

More than six decades ago, the late Professor Marver H. Bernstein published his theory of regulatory capture in Regulating Business By Independent Commission (Greenwood Press 1955).  According to his theory, agencies follow a life cycle of birth, maturity and old age.  As an agency enters senescence, it inevitably becomes captive to the groups that it regulates.…

Share on:

SEC Advisory Committee To Consider Fee-Shifting Bylaws, But Why?

One agenda item for the upcoming meeting of the Investor Advisory Committee is a “Discussion of Issuer Adoption of Fee-Shifting Bylaws for Intra-Corporate Litigation”.  This is indeed an interesting and timely topic in light of the Delaware Supreme Court’s holding in ATP Tour, Inc. v. Deutscher Tennis Bund, 2014 Del. LEXIS 209 (Del. May 8, 2014).  But is…

Share on:

Why Doesn’t The SEC Post SubCommittee Recommendations?

Last Thursday, the Investor Advisory Committee held another meeting.  The agenda included this rather vague agenda description: Discussion of Definition of Accredited Investor (which may include a recommendation of the Investor as Purchaser Subcommittee) The actual meeting did in fact include a discussion of the recommendation of the subcommittee.  The recommendation, however, was (and as of July…

Share on:

Just Who Is Behind The Universal Proxy?

Recently, it was reported that the Council of Institutional Investors had submitted a petition for rule making to the Securities and Exchange Commission.  Indeed, the CII did submit this petition on January 8, 2014.  In the petition, the CII describes itself as “a nonprofit, nonpartisan association of public, corporate and union pension funds and other employee benefit…

Share on:

Does SEC Independence Mean A Lack Of Accountability?

Earlier this week, Broc Romanek highlighted a recent panegyric on SEC independence given by SEC Chairwoman Mary Jo White.  Independent agencies are the platypodes of the federal government.  Many are inclined to view independent agencies as part of the executive branch.  But there are problems with that view. Because the SEC exercises enforcement authority, it…

Share on:

SEC’s Investor Advisory Committee Pushes For Oddly Named “Universal Proxy Ballots”

In late July, the SEC’s Investor Advisory Committee issued a recommendation that the SEC “explore relaxing the ‘bona fide nominee’ rule embodied in Rule 14a-4(d)(1) . . . to provide proxy contestants with the option (but not the obligation) to use Universal Ballots in connection with short slate director nominations (in other words, where the candidates nominated…

Share on:

SEC Faces A Swarm Of Legal Issues In Considering The Investor Advisory Committee’s Recommendations Concerning General Solicitation

The SEC’s Investor Advisory Committee held another meeting last week with Elisse B. Walter making her first public appearance as SEC Chairman.  She and Commissioner Luis A. Aguilar had many kind words for the Committee’s recommendations with respect to lifting the ban on general solicitations in Rule 506 offerings.  The insouciance of their remarks, however,…

Share on:

Revealed! The Investor Advisory Committee’s Recommendations On Lifting The General Solicitation Ban In Rule 506 Offerings

I was not the only one who was perturbed by the Investor Advisory Committee’s procedures for considering the Securities and Exchange Commission’s proposed rulemaking to lift the ban on general solicitation and Advertising in Rule 506 offerings.  Niels Holch, the Executive Director of the Coalition of Mutual Fund Investors, submitted this comment letter that concludes:…

Share on: