Court Of Appeals Holds No ERISA Preemption Of Section 419(b)

The Ninth Circuit Court of Appeals’ recent holding in Sender v. Franklin Res., Inc., 2015 U.S. App. LEXIS 10113 (9th Cir. Cal. June 16, 2015) is reasonably clear and yet there is much about the case that puzzles me. The case involved the seemingly quixotic quest of Mr. Sender to obtain stock certificates that he allegedly

Why The WSJ Is Wrong About SEC Rulemaking On Claw backs

As noted by Broc Romanek, The Wall Street Journal yesterday announced: The Securities and Exchange Commission will soon propose long-awaited rules forcing companies to claw back, or revoke, some of their top officials’ incentive pay if they have to restate the financial results that led to it, according to people familiar with the agency’s internal

Will California Require Notice Filings For Regulation A Offerings?

Last month, the Securities and Exchange Commission adopted amendments to Regulation A as required by Section 3(b)(2) of the Securities Act of 1933, which was added by Section 401 of the Jumpstart Our Business Startups (JOBS) Act. Section 3(b)(2) requires the SEC to adopt rules exempting from the registration requirements of the Securities Act offerings of up to

This May Not Be Rocket Science, But Is NASAA’s Form D Filing Fee Legal?

Earlier this week, the North American Securities Administrators Association (aka NASAA) announced the launch of its Electronic Filing Depository (EFD).  The EFD allows issuers to file Form Ds in Rule 506 offerings online.  A number of states (but not California) issued press releases announcing their participation in NASAA’s EFD.  New Jersey, for example, issued this

Court Of Appeal’s Long Opinion On Short Selling

In a lengthy opinion issued yesterday, Justice Kathleen M. Banke explains naked short selling, describes the mechanics of executing and clearing stock trades, provides a run down on the SEC’s Regulation SHO, and recounts the SEC’s enforcement of Regulation SHO.  Overstock.com v. Goldman Sachs & Co. (Cal. Ct. App. Case No. A135682, Nov. 13, 2014). Along the way she

California Dividend Statutes Found To Preempt Common Law Claims

Chapter 5 of the California Corporations Code imposes specific limitations on “distributions to shareholders”, a term defined in Corporations Code section 166.  Directors who approve the making of any distribution to shareholders in violation of the provisions of Sections 500 to 503 may be jointly and severally liable to the corporation.  Cal. Corp. Code § 316.  The

Commissioner Signals Intent To Expand Authority Over Federal Bank Subsidiaries

Last month, Commissioner of Business Oversight Jan Owen issued an invitation for comment on two proposed rules that would subject non-depository operating subsidiaries, affiliates and agents of federal banks and other financial institutions to licensing under the California Finance Lenders Law or the Residential Mortgage Lending Act.  I found this proposal to be particularly interesting

An American Icon Amends Stock Plan To Make It Section 25102(o) Eligible – Why?

Section 102 the National Securities Markets Improvement Act (which amended Section 18 of the Securities Act of 1933) deems securities listed (or authorized for listing) on the NYSE, the American Stock Exchange or the National Market System of NASDAQ to be “covered securities”.   A security is also a “covered security” under the NSMIA if it is listed

Securities Regulator “Surprised and Offended” By SEC’s Regulation A+ Proposal

Section 401 of the JOBS Act directs the Securities and Exchange Commission to adopt rules exempting offerings of up to $50 million of securities annually from the registration requirements of the Securities Act of 1933, as amended.  Last December the SEC proposed rule amendments to Regulation A to implement this mandate.  This is sometimes referred

Does The SEC’s Regulation A Proposal Defy Congress’ Clear Intent?

This week’s announcement by the Securities and Exchange Commission that it is proposing amendments to update and expand Regulation A has attracted quite a bit of attention.  David Lynn writing in Broc’s Blog took special note of the proposed preemption of state blue sky laws.  As expected, additional preemption did not sit well with the