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Guest Column: Goldman Sachs Can Win, But At What Price
Guest columnist Jacob Frenkel writes that while Goldman has compelling arguments, a settlement with the SEC remains likely.
Guest Column: On the Misuse of Event Studies to Examine Market Efficiency
Guest columnist Dr. David Tabak challenges the methodology by which markets are often tested for efficiency.
Guest Column: The Second Circuit Opines on Loss Causation in Omnicom
Guest columnists Peter Wald and Jeff Hammel of Latham & Watkins LLP write about the Omnicom case and the stringent standard plaintiffs must meet to show loss causation at summary judgment.
Guest Column: New Ruling on Rating Agency Responsibility Bears Close Scrutiny
Judge Shira Scheindlin’s recent opinion in a credit rating agency case may prove to be significant.
Guest Column: Commission Alleges Violation of SOX 304
Guest columnists Nader H. Salehi and Elizabeth A. Marino of the law firm Bingham McCutchen LLP write that in SEC v. Maynard L. Jenkins, the Commission has broken new ground, essentially interpreting SOX 304 to have a strict liability standard.
Guest Column: “Straightforward Theory of Fraud” Leads Second Circuit Onto Slippery Slope
Guest columnist Amy Greer, a partner at Reed Smith LLP, writes that in its Dorozhko opinion, the Second Circuit stopped short of analyzing the facts, leaving it to the district court to determine whether this hack included a fraudulent misrepresentation. However, this decision vindicates a theory that the SEC has used before, in SEC v. Lohmus Haavel & Viisemann, and given the prevalence of computer hacking, other technology-based frauds, and the SEC’s never-ending challenge to apply decades-old statutes to novel fraudulent schemes, this case represents an important precedent for the agency.
Guest Column: Use of “Conscious Avoidance” Doctrine in Frederic Bourke Conviction Expands Corporate Executives’ FCPA Exposure
Guest columnists F. Joseph Warin, Michael S. Diamant and Matthew P. Hampton explain that understanding the significance of the Frederic Bourke conviction and the danger it illustrates for the unwary, starts with a simple observation: Bourke’s case was not a typical FCPA prosecution. Bourke was never accused of bribing or directing others to bribe government officials. Rather, the government charged Bourke with conspiring to violate the FCPA because he invested in an entity that he knew, or at least had every reason to know, was engaged in a scheme to bribe Azeri officials. In his closing, the prosecutor stated, Bourke “had enough understanding to know that something . . . was occurring” yet “ke[pt] his head in the sand.”
Guest Column: Assessing the Madoff Sentence
Guest columnist Michael L. Martinez, a partner in the Washington office of Crowell & Moring LLP, analyzes two questions arising out of the 150-year sentence handed down to Bernard Madoff: (1) is the length of the sentence appropriate; and (2) how does it compare with other sentences for similar crimes?
Guest Column: Justice Sandra Day O’Connor’s Involvement in the Flowserve Decision May Bode Well for Securities Plaintiffs
Re-posted for those who did not catch it over the holiday weekend:
Guest columnist Justin N. Saif of law firm Berman DeValerio writes that a recent Fifth Circuit opinion that revived a securities class action and included language strongly supportive of securities plaintiffs is attracting plenty of attention, not least because retired Supreme Court Justice Sandra Day O’Connor sat on the panel.
Guest Column: Sonia Sotomayor’s Securities Law Opinions – What President Obama’s Supreme Court Nominee Might Mean for Private Securities Litigation
Guest columnists Mary Eaton and Roger Netzer of Willkie Farr & Gallagher LLP write that Judge Sotomayor’s track record both as a United States District Court Judge and as a member of the Court of Appeals for the Second Circuit belies the suggestion that she has an “anti-business” tendency with respect to private securities law issues. Their analysis shows that, with few exceptions, Judge Sotomayor has tended to side with corporate defendants on private securities litigation matters during her 17 years on the bench.