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August By Journal Alerts on August 22, April Company and Securities Law Journal update: August Company and Securities Law Journal update: February Company and Securities Law Journal update: Australian Business Law Review update: Criminal Law Journal update: Practical aspects of the new European Union prospectus regulation — revolution or just evolution? Returning cash to shareholders - 35th IBA International Financial Law Conference This panel explored why corporations, after working so hard to raise finance, are increasingly returning cash to their shareholders.


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The topic was introduced by Anita Phillips, who highlighted that gender equality affects everybody, not just women. The panellists shared their perspectives on recent developments and their views on whether they saw shareholder activism as a necessary feature of a vibrant market. Corporate governance for public companies and banks: This session dealt with the issues of corporate governance applying to public companies and banks in general and, in particular, the practices in Asia. It involved a discussion of the ways in which corporate governance could be improved.

The regulatory response to this has been less consistent. The panel discussed the various approaches of securities regulators in different jurisdictions around best practices in harnessing the potential for crowdfunding to stimulate innovation and economic growth, without drowning small-scale entrepreneurs in too much red tape. Navigating the path between a rock and a hard place: The panels addressed the relationships between the distressed company, its managing director, creditors, shareholders and purchasers.

Panel members considered applicable laws in Australia, certain European countries, England, India and the United States. Sweeps can be particularly effective where there is widespread misconduct. And it is fair to say that our sweeps have revealed widespread misconduct in some significant areas of the municipal securities market. Our most prominent sweep has been our MCDC initiative. Then, when the municipal issuers went back to market to offer new bonds, they were falsely telling potential new investors that they had fully complied with their disclosure obligations.

The Enforcement Division was also concerned that underwriters were failing to conduct sufficient due diligence on the representations made by the issuers and were selling bonds to their customers using offering materials that contained false statements. The program, announced by the Commission in , offered standard settlement terms to municipal issuers and underwriters who had conducted offerings which included these kinds of false statements. The initiative prompted a large number of underwriters and issuers to conduct self-reviews and to self-report potential misconduct.

In our review of the submissions, the Enforcement Division found widespread failures of due diligence by underwriters. This initiative exposed widespread misconduct and has had a significant impact on the market, which I will discuss later in my remarks. In addition, the Enforcement Division successfully used the sweep technique to raise industry awareness of an important investor protection rule that had not previously been charged in a Commission enforcement action. In November , the Commission charged 13 broker dealers who had engaged in misconduct in the sale of certain Puerto Rico junk bonds to retail investors.

That offering was, and still is, the largest junk-rated municipal bond offering in US history. The purpose of this kind of restriction is to discourage dealers from selling potentially unsuitable bonds to small, typically retail, investors, and the MSRB has a rule which prohibits broker dealers from making those sales. Enforcement staff recognized the risk that dealers might try to sell the bonds to their customers in retail-size lots.

So, when the offering went to market, the enforcement staff was surveilling the trading, which allowed us to immediately identify violations by a number of broker-dealers, i. The Commission then brought a sweep of settled enforcement actions against the dealers, each of whom agreed to pay civil penalties and to improve their policies and procedures.

A powerful enforcement tool available to the Commission is the ability to seek a temporary restraining order if we believe investors are in imminent danger of harm. This tool is frequently used, but the Commission had never employed it against a municipal issuer. That changed in , when the Enforcement Division was investigating certain bond offerings by the City of Harvey, Illinois. As a result of the Enforcement investigation, the Commission alleged that, for the previous few years, the city and its former comptroller had engaged in a scheme to divert the proceeds of bond offerings for improper, undisclosed uses.

During the investigation, the Enforcement Division learned that the City was about to issue similarly structured bonds, this time to fund the development of a supermarket. So, with Commission approval, we sought emergency relief in federal court to enjoin the offering until certain safeguards could be put in place.

After a hearing, the City agreed to a temporary restraining order barring it from offering any bonds for a period of time. The matter was resolved in December when the City agreed to a final judgment which prohibited it from offering any municipal bonds for three years unless, among other things, it retained independent disclosure counsel.

Another area where we have changed the landscape involves penalties against issuers of municipal bonds. Although the Commission historically has not sought penalties against municipal issuers, that has changed in recent years. Let me discuss the three cases to date where we determined that civil penalties were appropriate.

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The first instance involved settled charges against a public facilities district in the state of Washington. And finally, in the recent City of Miami matter, we are seeking a substantial civil penalty against the City after prevailing in a federal jury trial against it and its former budget director. The defendants failed to disclose that they had engaged in a shell game by using certain funds from restricted and other funds to inflate the general fund.

I note that the conduct at issue in this matter includes an egregious violation and the City is a recidivist violator whose conduct violated a prior cease-and-desist order issued by the Commission in for similar violations. These cases demonstrate that municipal issuers should not expect a pass on civil penalties.

Enforcement will scrutinize the nature of the issuer and the sources of funds available to pay a penalty and, with Commission approval, seek penalties where appropriate.

PLI: Treatises - The Securities Law of Public Finance (Third Edition)

And in particularly egregious cases, we will pursue penalties even when the source of those funds is the taxpayer base. Another area where Enforcement has increased its focus is on municipal issuer officials. Today we are increasingly holding those people accountable where they engage in violations, and where necessary, we are using new approaches and remedies to do so.

For example, controlling person liability under Section 20 a of the Exchange Act can be used to hold public officials responsible based on their control of the municipal entity that engaged in the fraud. While the Commission has used controlling person liability for many years in the corporate context, it was used for the first time in the municipal securities context against the former mayor of the City of Allen Park, Michigan. The Commission alleged that the former city administrator had full knowledge of the negative undisclosed information and prepared, reviewed, and approved the misleading offering documents.

But, as to the former mayor, who had the authority to direct the management and policies of the City and its administrator, the Commission alleged only that he was a champion of the project and knew some of the negative information. Notably, the Commission alleged that the former mayor was liable as a controlling person under Section 20 a of the Exchange Act, based on his authority and control over the municipality.