Securities Law

Last week, Netflix announced that it received a Wells notice from the SEC. Apparently, while the SEC was cruising Facebook (what else is there to do while neglecting to investigate Wall Street?), someone noticed Netflix CEO Reed Hastings posting that Netflix had surpassed one billion hours of streaming old episodes of Facts of Life to shut ins.

The SEC staff thinks Hastings disclosed material information in this Facebook post, possibly violating Reg FD, the 2000 regulation that put a stop to companies giving an advantage to small subsets of investors by disclosing material information between blowing rails of coke off strippers.

But Facebook isn’t a seedy strip club full of free drugs and prostitutes (read: Christian Mingle). Reed Hastings has over 200,000 “fans,” many of whom are analysts and reporters. In pursuing enforcement without exercising a little discretion, the SEC ignores these facts.

Netflix is arguing that the disclosure was not material and that most investors knew that the CEO’s Facebook page is recognized as an avenue for public disclosure.

Regardless of the specific resolution of this matter, this is one more reminder that the SEC is woefully behind when it comes to adapting to technological developments. Like, oh I don’t know, HFT perhaps?

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Justice RBG rocking her doily.

* As soon as Mary Schapiro announced she was stepping down as chairwoman of the SEC, Obama nominated another woman to take her place. Congrats to SEC Commissioner Elisse Walter! [WSJ Law Blog]

* In other breaking news that no one will care about now that bonus season is upon us, Justice Ruth Bader Ginsburg swapped out her neck doily for a blingy necklace from Glamour. [Josh Blackman's Blog]

* You know what the ancient Romans would’ve hated more than watching the fall of the Roman empire? The Citizens United decision. Cato, Cicero, and Julius Caesar wouldn’t have been impressed with this. [Slate]

* Why go to law school if you’re already doing well financially? Perhaps you’re just another prestige hunter. If you are, then all the better for you, because that seems to be what all of the law schools are selling these days. [Inside the Law School Scam]

* Don’t cry for Argentina: they may be in the middle of a billion-dollar bond dispute, but the uber-prestigious lawyers on either side of the case (Boies; Olson) are enough to make you forget about their troubles. [Reuters]

* A Biglaw attorney from Alston & Bird with a rare sleep disorder confronts Big Pharma and… doesn’t win. At least not yet. But on the bright side, she’s not sleeping for 18 hours anymore. [The Last Word on Nothing]

* We’re honored to announce that Above the Law was named as one of the ten law blogs in the ABA Journal’s inaugural Blawg 100 Hall of Fame. Please click here if you’d like to help us win again this year. [ABA Journal]

* After the jump, Bloomberg Law’s Lee Pacchia speaks with Bill Lawlor, a Dechert partner, who claims “hope springs eternal for M&A attorneys.” Will the mergers and acquisitions market begin to boom once again?

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* Bank of America agreed to pay $2.43 billion, one of the biggest securities class-action settlements in history, to put the Merrill Lynch mess behind it. According to Professors Peter Henning and Steven Davidoff, B of A “is probably quite happy with the settlement given that it could have potentially faced billions of dollars more in liability in the case.” [DealBook / New York Times]

* “Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting.” Here is Robert Barnes’s take on the SCOTUS Term that starts today. [Washington Post]

* And here is Professor Garrett Epps’s review of Jeffrey Toobin’s new book on the Supreme Court, The Oath (affiliate link). [New York Times]

* How Dewey justify paying a big bonus to a member of the management team “when it has been widely pointed out that excessive compensation to the firm’s upper management significantly contributed to the firm’s collapse in the first place?” [Bankruptcy Beat via WSJ Law Blog]

* A high-profile Vatican trial raises these questions: “‘Did the butler do it?’ Or rather, ‘was it only the butler who did it?’” [Christian Science Monitor]

* Ben Ogden, an Allen & Overy associate who was killed in a Nepalese plane crash, R.I.P. [Am Law Daily]

Nothing pisses off a lawyer more than uncertainty. Uncertainty gives rise to the risk of undermining the facade of perfect knowledge that attorneys prefer to convey to their clients. Given this character trait, it’s no surprise that the collective white-collar and corporate counsel community is freaking the hell out about every scrap of information it can glean from the Justice Department about its new Foreign Corrupt Practices Act (FCPA) enforcement policy.

So what exactly has these observant lawyers in a tizzy?

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Down in Charlotte, at the quadrennial “We Hate America” (spelled “Amercia”) Convention, the Communist Pander-Bears have released a 70-page Party Platform replete with dozens of references to specific pieces of legislation that no one necessarily understands to remind us of the scores of bills that the Democrats have failed to pass since 2008.

The Democrats don’t provide nearly as many bold changes to the legal structure of the country as the Republicans. But there are a few legal planks worth reviewing, though tragically little on the subject of porn. How dare they not respond to the strongest plank of the Republican platform?

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A Biglaw firm gets screwed...

* Dewey have some novel issues for our bankruptcy lawyers, or what? As we noted last night, now that D&L has filed for Chapter 11, they’ll have to deal with bank debt, and bondholders, and possible criminal proceedings, oh my! [New York Law Journal]

* And did we mention that Dewey’s defectors and their new firms might get screwed out of millions thanks to the recent Coudert decision? You really should’ve tried to finish up your business before the firm flopped. [WSJ Law Blog]

* Our SCOTUS justices’ summer plans don’t include debating the results of their landmark health care and immigration cases. They’ll be off to fabulous destinations to teach by the first week of July. [Associated Press]

* A federal judge in Brooklyn doesn’t like what seems to be happening in the “game of grams” when it comes to mandatory minimum drug sentencing. Perhaps the DOJ will heed his call for reform. [New York Times]

* Facebook’s IPO was an epic fail, but it’s been great business for plaintiffs lawyers. Twelve securities class action firms are gathering leads and getting ready to sue, and two have already sued. [National Law Journal]

* This wasn’t exactly well planned: if you’re involved in state politics, it’s probably not a good idea to fake a legal internship with a state representative so that you can graduate from law school. [Concord Monitor]

* In happier news, a New York Law School graduate walked across the stage to receive her diploma with the help of her seeing-eye dog. The pooch hasn’t lifted a leg on her law degree… yet. [New York Daily News]

... and so do folks down under.

* “Brothels are never going to be a vote winner.” But even so, if you’re looking to get it in down under, a plan to build Australia’s largest cathouse may soon gain approval if lawyers are able to do their work quick and dirty. [Bloomberg]

* Thanks to this case, stupid teenagers in New Jersey who send texts to others that they know are driving can now revel in the fact that they can’t be held liable for injuries that may occur thanks to careless driving. [New Jersey Law Journal]

Law firm financials can be shrouded in mystery. Sure, the American Lawyer releases its closely watched and highly influential Am Law 100 rankings each year, which shed some light on the subject. But these numbers are not Gospel truth, and sometimes they get restated — which is what happened last month to Dewey & LeBoeuf.

Making a material misrepresentation to the American Lawyer doesn’t violate the securities laws. Making a material misrepresentation in connection with the purchase or sale of any security — well, that’s more problematic.

Let’s take a closer look at a subject we mentioned last night and again this morning, namely, the offering memorandum for Dewey’s 2010 private placement of $125 million in bonds….

Note: we’ve added UPDATES, after the jump.

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That’s the question the WSJ Law Blog just asked about the [pick your favorite adjective: beleaguered / collapsing / flailing / troubled] law firm of Dewey & LeBoeuf. Today brings big, bad news for Dewey: bankruptcy superstar Martin Bienenstock is taking his practice to Proskauer Rose. He’s moving with five other partners — Philip Abelson, Irena Goldstein, Timothy Karcher, Michael Kessler, Judy Liu — and nine associates.

Dewey’s loss is Proskauer’s gain. “He is absolutely the crown jewel over there, a fantastic lawyer who will be a great partner,” a current Proskauer partner told us. “This is going to vault us into the company of Kirkland and Weil, giving us one of the top bankruptcy practices in the country. We are really thrilled.”

As you may recall, Bienenstock was a member of the five-person Office of the Chairman at Dewey. As my colleague Staci Zaretsky wondered earlier today, “Dewey seriously have one chairman again?” With Bienenstock to Proskauer, Jeffrey Kessler to Winston & Strawn, Richard Shutran to O’Melveny & Myers, and Steve Davis off to who knows where, only Charles Landgraf remains in the chairman’s office. (Note that Landgraf’s bio is still on the Dewey website.)

Bienenstock’s departure doesn’t mark the end of Dewey’s difficulties. Let’s review the latest news….

Of course we’ve added UPDATES, after the jump.

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(Plus an actual lawsuit, a possible lawsuit, and a partner’s theory of blame.)”

Fashion: brought to you by lawyers.

* A bill to legalize gay marriage in New Jersey has passed in the state Senate. If this passes in the state Assembly, will Chris Christie put the kibosh on it? Someone better make him a faaabulous offer he can’t refuse. [Wall Street Journal]

* They might not be the most stylish bunch, but without lawyers (and the contracts they write), events like New York Fashion Week wouldn’t happen. Models, please keep that in mind while you do your little turn on the catwalk. [Reuters]

* Is a mandatory life sentence a cruel and unusual punishment for the Underwear Bomber? Because you’ve got to remember, it’s not like the guy actually killed 300 people. He only almost killed 300 people. [Detroit Free Press]

* Hey 0Ls, here’s some advice on how to “beat” the wait-list blues that’s reminiscent of bad dating advice: don’t call too soon; it’ll make it look like you’re “desperate and hasty.” [Law Admissions Lowdown / U.S. News]

* Two Occupy Wall Street protesters are suing the police officer who pepper-sprayed them. Here’s a video of what happened. Those poor little hipsters, they didn’t even see it coming. [New York Daily News]

In the first lawsuit (during the proxy fight), the judge held that certain statements made in proxy materials were false and misleading. That lawsuit settled. In the next lawsuit (the 10b-5 class action), plaintiffs explain that precisely the same statements appeared in an annual report, and it is now settled law that those words are false and misleading. How do you avoid the devastating effect of collateral estoppel in the second case?

I solved that puzzle back in 1990. Now I’ve moved in-house, and I fear that I’ll never solve a similar puzzle again.

Have I lost my creativity? I don’t think so. Does my job still require creativity? Yes — but different kinds of creativity. This column is a requiem to a type of thinking that an in-house job — or, at a minimum, my in-house job — doesn’t seem to permit….

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