Corporate and Securities Law

For decades, the pri­vate right of action for secu­ri­ties fraud has been nar­rowed, both by Con­gress and in the courts. In this Con­tri­bu­tion, Charles Bloom (’21) con­sid­ers the extent to which the Supreme Court’s most recent deci­sion in a secu­ri­ties fraud case revers­es that trend. Ulti­mate­ly, this Con­tri­bu­tion will argue that the Court has per­mis­si­bly expand­ed pri­vate lia­bil­i­ty for secu­ri­ties fraud, clos­ing cer­tain loop­holes cre­at­ed by its ear­li­er precedents.

Do Sec­tion 10(b) the Exchange Act and SEC Rule 10b‑5 apply to secu­ri­ties trans­ac­tions entered into in the Unit­ed States where the secu­ri­ty is not sold on a nation­al exchange and is val­ued based on the price of a dif­fer­ent secu­ri­ty not sold with­in the Unit­ed States? In this Con­tri­bu­tion, William Bris­tow (’21) dis­cuss­es the impli­ca­tions of Mor­ri­son v. Nation­al Aus­tralia Bank Ltd., where the Supreme Court held that the Exchange Act does not apply extrater­ri­to­ri­al­ly and thus only applies to domes­tic secu­ri­ties trans­ac­tions. This Con­tri­bu­tion argues that Morrison’s “trans­ac­tion­al test” estab­lish­es a suf­fi­cient con­di­tion for the appli­ca­tion of the Exchange Act, not a nec­es­sary condition.

Does a board of direc­tors’ pow­er to direct a cor­po­ra­tion allow it to tie its own hands in the course of nego­ti­at­ing debt agree­ments? In this Con­tri­bu­tion, Caitlin Mil­lat (’18) ana­lyzes the prob­lem of dead-hand proxy puts under Delaware law, con­sid­er­ing whether these pro­vi­sions are ever allowed, and if they are, under what stan­dard of scruti­ny they should be reviewed. This con­tri­bu­tion argues that dead-hand proxy put pro­vi­sions should be eval­u­at­ed under the busi­ness judg­ment rule, not the Uno­cal enhanced scruti­ny standard.

Should a board of direc­tors of a par­ent com­pa­ny owe fidu­cia­ry duties not just to its share­hold­ers, but also to the share­hold­ers of com­pa­nies involved in lim­it­ed part­ner­ships with one of its sub­sidiaries? In this Con­tri­bu­tion, Natal­ie Noble (’18) dis­cuss­es the impli­ca­tions of In re USACafes, L.P. Lit­i­ga­tion, in which the Delaware Chancery Court held that the board of direc­tors of a cor­po­ra­tion engaged in a lim­it­ed part­ner­ship owe fidu­cia­ry duties to the lim­it­ed part­ner­ship and the lim­it­ed part­ners. This Con­tri­bu­tion argues that the USACafes doc­trine should be aban­doned because it dis­cour­ages free­dom of con­tract, dis­suades investors from financ­ing new enter­pris­es, and con­tra­venes bedrock doc­trines of cor­po­rate law.