Securities Litigation Blog | Burr & Forman LLP

Cybersecurity Legislation Stalks Bank Directors

Thomas K. Potter, III — Wed, 30 Dec 2015 09:00:01 -0500

To avoid potential personal liability for cybersecurity breaches, bank directors should take proactive steps to make sure their institution complies with all applicable regulations. In the wake of recent well-publicized breaches of cybersecurity, regulations and new legislation has proliferated, putting bank directors in the cross-hairs of scrutiny for potential liability. A board of directors may find that trying to defend its inaction regarding cybersecurity on claims of delegation to information technology and risk management teams no longer suffices. As SEC ...

FINRA Submits Revised Recruiting-Disclosure Rule to SEC

Thomas K. Potter, III — Tue, 22 Dec 2015 09:00:02 -0500

On December 16, FINRA submitted for SEC approval proposed Rule 2273 to require that brokers send customers an "educational disclosure" when changing firms. Although the proposal deletes a controversial provision that would have required disclosure of hiring bonuses, it requires hiring firms to deliver the FINRA-prescribed disclosure form when contacting former customers about account transfers or receiving their transferred funds. The Rule would require the communication to accompany mailings, be hyper-linked in emails, or sent within three business days after phone ...

Broker-Dealer "Pay-to-Play" Rule Proposed to SEC

Thomas K. Potter, III — Sat, 19 Dec 2015 09:00:03 -0500

This week FINRA proposed for SEC adoption a "pay-to-play" rule for broker-dealers engaged in distribution or solicitation activities with government entities. The Proposed Rule is modeled after investment-adviser pay-to-play Rule 206(4)-5 under the '40 Act, adopted by the SEC in 2010. Proposed FINRA Rule 2030(a) would prohibit a covered member from engaging in distribution or solicitation activities for compensation with a government entity on behalf of an investment adviser that provides or is seeking to provide investment advisory services to such government entity ...

MSRB Files New MA Pay-to-Play Rule with SEC

Thomas K. Potter, III — Fri, 18 Dec 2015 09:00:04 -0500

On December 16, the Municipal Securities Rulemaking Board ("MSRB") filed with the SEC a proposed rule that would extend to municipal advisers the MSRB's existing rule prohibiting "pay-to-play" practices and restricting campaign contributions in the municipal securities and advisory business. The proposed amendments extend Rule G-37 to municipal advisers and third-party solicitors:

Imposing a two-year ban on business with municipal entities after any contribution to an issuer official who can influence municipal-advisory business, subject to $250 de minimis

Supreme Court Reaffirms Arbitration Class-Waivers

Thomas K. Potter, III — Thu, 17 Dec 2015 09:00:05 -0500

The Supreme Court Monday re-affirmed the enforceability of class-waivers in arbitration agreements. The five-justice majority felt the need to rebuke the California courts for trying to end-run Federal preemption through a latent "States-rights" nullification approach. Two of the three dissenters saw the case as a consumerist crusade against big business. But the biggest take away for businesses using arbitration clauses just might lie hidden within the opinion. DirectTV's Conditional Class-Waiver. DirectTV's consumer contracts contained a conditional class waiver ...

Tenn. S. Ct. Examines Jurisdiction Over Non-Resident Defendants

Thomas K. Potter, III — Wed, 16 Dec 2015 09:00:06 -0500

The Tennessee Supreme Court released a December 14 decision reviewing personal jurisdiction over non-resident defendants. First Community Bank, NA v. First Tennessee Bank, NA, No. 2012-01422-SC-R110CV (Tenn. Dec. 14, 2015). The case involved a Virginia bank's securities claims against a host of defendants, among them a couple Tennessee-resident firms and three non-resident Ratings Agencies having rated various collateralized-debt-obligation securities - some of which had Tennessee securities as a small portion of their underlying portfolio assets. The trial and ...

VW Scandal Bears Out Emphasis on "Culture of Compliance"

Thomas K. Potter, III — Wed, 16 Dec 2015 09:00:07 -0500

Last week, VW blamed its "culture" for allowing "individual misconduct" that lead to the emissions-testing-evasion scandal engulfing the company. It reminded me of a couple of corporate-compliance mantras and of DOJ's recent Yates Memo: To deter individual misconduct, you need a "Culture of Compliance" set by "Tone from the Top." Volkswagen's mea culpa bears that out: VW admitted it had neither and blamed both. See "VW Says 'Culture' Flaw Led to Crisis," Wall St. J. at B1 (Dec. 11, 2015) For years - decades, in fact - the United States Department of Justice and securities ...

SEC Tees Up Newman & Admin Forum Issues for 2016

Thomas K. Potter, III — Tue, 15 Dec 2015 09:00:08 -0500

The SEC granted two petitions for review last week that tee-up significant issues for full Commission consideration late next Spring. The Commission will consider the application of the Second Circuit's Newman decision restricting the "gifting theory" of insider trading and also will take up the constitutionality of the agency's administrative enforcement forum. Insider-Trading After Newman. ALJ Patil dismissed insider-trading charges against trader Joseph Ruggieri last fall, finding that his tipper hadn't provided the inside information in return for any personal ...

A 1,500-Day Ordeal: First Circuit Rebukes SEC for In-House Prosecution

Thomas K. Potter, III — Mon, 14 Dec 2015 09:00:09 -0500

Five years after the SEC brought charges that cost two fund executives their jobs, the U.S. First Circuit overturned the sanctions, chiding the SEC for misreading critical evidence, lacking substantial evidence for its findings and disregarding its own Chief ALJ's opinion. The case illustrates the extraordinary burden respondents in SEC administrative actions must carry before getting a shot at vindication in the Courts. On September 30, 2010, the SEC instituted administrative proceedings charging two State Street executives involved with Limited Duration Bond Fund with ...

Whistleblower Standing Split in Circuits & TN Federal Courts

Thomas K. Potter, III — Wed, 09 Dec 2015 09:00:10 -0500

There's a developing circuit split over whistleblower standing for retaliation claims. A decision this week extended that split to U.S. district courts within Tennessee, too. In Verble v. Morgan Stanley Smith Barney, LLC, No. 3:15-CV-74-TAV-CCS (Dec. 8, 2015 USDC EDTN), the Eastern District of Tennessee joined with the Fifth Circuit view that Dodd-Frank whistleblowers must report to the SEC to have standing. An earlier decision from the Middle District of Tennessee had sided with the Second Circuit's view, deferring to the broader language of the SEC regulations that would ...