Tag: Securities Law

What Is Securitization? And for What Purpose? – Article by Steven L. Schwarcz

From Volume 85, Number 5 (July 2012)
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In Re: Defining Securitization, Professor Jonathan Lipson attempts to define a “true” securitization transaction, ultimately characterizing it as “a purchase of primary payment rights by a special purpose entity that (1) legally isolates such payment rights from a bankruptcy (or similar insolvency) estate of the originator, and (2) results, directly or indirectly, in the issuance of securities whose value is determined by the payment rights so purchased.” There is much to admire in Lipson’s attempt but also much to question.

 

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Why (and How to) Define Securitization? A Sur-Reply to Professor Schwarcz – Article by Jonathan C. Lipson

From Volume 85, Number 5 (July 2012)
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In his brief essay, What Is Securitization? And for What Purpose? (“Purpose”), Professor Steven Schwarcz does me a great honor in responding to my article, Re: Defining Securitization (“Re: Defining”), where I ask what, exactly, does the term “securitization” mean?

As serious observers of, and participants in, securitization know, Professor Schwarcz is one of the leading authorities on the subject. His works–for both professional and academic audiences–are must-reads. Thus, if, as I say in Re: Defining, my goal was to be not the last word on this question but the first, the fact that he has written such a thoughtful response tells me I have succeeded.

Nevertheless, several of his criticisms warrant scrutiny. Unaddressed, they may leave readers misunderstanding the purpose of the definitional exercise I undertake in Re: Defining. Thus, I offer this brief “sur-reply” to Professor Schwarcz, which has four primary parts.

 

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Whose Office Is This Anyway? A Look at the IRS’s New Position on Offshore Lending – Note by William A. Kessler II

From Volume 84, Number 6 (September 2011)
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“Banks don’t lend anymore. Hedge funds have stepped in.” Lee Sheppard wrote these words in 2005, but the financial crisis starting in 2008 has shone a spotlight on this significant change in the reality of modern finance. What role hedge funds may have played in causing the financial crisis is debatable, but few will dispute that U.S. businesses have had trouble finding capital even as the economy, on the whole, has started to recover.

There are many possible contributors to the onset of the capital crunch. Among them are banks, which had difficulties meeting capital requirements, in part because their balance sheets were weighed down by mortgage-backed securities that proved to be less valuable than initially thought, and in part because of changes in accounting rules, as well as increases in minimum capital reserve requirements. The U.S. government and the Federal Reserve responded by combining to invest trillions of dollars to purchase “toxic” securities, guarantee loans, provide additional loans, and make direct capital injections into troubled financial institutions.

 

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A Flawed Solution: The Difficulties of Mandating a Leverage Ratio in the United States – Note by John Holman

From Volume 84, Number 3 (March 2011)
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While the causes of the recent financial crisis have been debated extensively, the conclusion that excessive leverage by financial institutions contributed to the crisis has garnered widespread support. Concerns over the role of leverage have spurred a renewed focus on banks’ ability to exploit the presence of moral hazard due to limited liability and the government’s tendency to rescue banks in distress. The crisis painfully underscored how banks use leverage to increase their expected returns while simultaneously shifting risk to creditors and the public at large.

 

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Rewriting Frankenstein Contracts: Workout Prohibitions in Residential Mortgage-Backed Securities – Article by Anna Gelpern & Adam J. Levitin

From Volume 82, Number 6 (September 2009)
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Modification-proof contracts boost commitment and can help overcome information problems. But when such rigid contracts are ubiquitous, they can function as social suicide pacts, compelling enforcement despite significant externalities. At the heart of the current financial crisis is a contract designed to be hyperrigid: the pooling and servicing agreement (“PSA”), which governs residential mortgage securitization. The PSA combines formal, structural, and functional barriers to its own modification with restrictions on the modification of underlying mortgage loans. Such layered rigidities fuel foreclosures, with spillover effects for homeowners, communities, financial institutions, financial markets, and the macroeconomy.

This Article situates PSAs in the context of theoretical and policy debates about contract rigidity, bond contract modification, and contractual bankruptcy. We propose a typology of contract rigidities, ranging from formal prohibition on amendment (formal rigidity) to extreme collective action problems (functional rigidity). We then draw on New Deal jurisprudence for strategies to overcome each type of rigidity. These strategies include narrowly tailored legislation that renders the problematic terms unenforceable on public policy grounds, administrative restructuring mandates, and special bankruptcy regimes.

 

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Equity Compensation and Informant Bounties: How Tying the Latter to the Former May Finally Alleviate the Securities Fraud Predicament in America – Note by Justin Tyler Hughes

From Volume 82, Number 5 (July 2009)
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Recent Supreme Court decisions, including Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. and Tellabs, Inc. v. Makor Issues & Rights, Ltd., have brought complex securities fraud issues back into the national limelight. Moreover, growing frustration with the Sarbanes-Oxley Act of 2002 and the current financial catastrophe have further intensified securities concerns. Regardless of which side one supports in the ongoing debate regarding appropriate regulation, one thing is certain: securities fraud continues to purge the American markets of billions of dollars per year. With today’s political disposition favoring increased government oversight of corporate America, and with a new presidential regime, the time for reevaluating America’s procedure for detecting and deterring large-scale securities fraud is swiftly approaching.

 

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Protecting Privacy Expectations and Personal Documents in SEC Investigations – Note by Abraham Tabaie

From Volume 81, Number 4 (May 2008)
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Consider the following hypothetical: the Securities and Exchange Commission (“SEC”) is investigating a corporation for stock option backdating by the corporation’s officers and directors, and possible criminal charges are looming. The implicated company fires an executive, and seals her office. All of the executive’s documents inside the office, including her personal documents, are subpoenaed by the SEC. In a modern world, both work related documents and purely personal documents are often left at the office. These documents could include, but are not limited to, personal bank statements, other personal financial documents, letters, a diary, and even medical information. While personal files could have nothing to do with the corporation, the corporation must turn over these documents to the SEC pursuant to a valid subpoena. The SEC later can provide these documents to the U.S. Attorney’s office in a parallel criminal investigation of securities fraud. In a traditional criminal case, the government would need a search warrant and probable cause to enter someone’s home or office and take personal documents from the individual. Through the SEC subpoena, however, the documents may be subpoenaed for mere “official curiosity” and then handed over to the U.S. Attorney’s office, as long as the parallel proceedings were not carried out in bad faith.

 

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Markets as Regulators: A Survey – Article by Stavros Gadinis & Howell E. Jackson

From Volume 80, Number 6 (September 2007)
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Stock exchanges around the world have recently discarded their traditional mutual membership structure in favor of a for-profit corporate format. This development increased fears of conflicts of interest, as for-profit exchanges are more sensitive to pressures from their constituents and more likely to abuse their regulatory powers. In this Article, we explore the allocation of regulatory responsibilities to market infrastructure institutions, administrative agencies, and central government entities in the eight most influential jurisdictions for securities regulation in the world. Examining how different jurisdictions answer this question is particularly pressing given the December 2006 transatlantic stock exchange merger activity. After discussing the role of self-regulatory organizations in the oversight of modern stock exchanges, we report the results of a survey of the allocation of regulatory powers in a sample of eight key jurisdictions. In that survey, we examine the allocation of such powers at three levels: rulemaking, monitoring of compliance with these rules, and enforcement of rules violations. Based on our findings, we categorize these jurisdictions in three distinct models of allocation of regulatory powers: a Government-led Model that preserves significant authority for central government control over securities markets regulation, albeit with a relatively limited enforcement apparatus (France, Germany, and Japan); a Flexibility Model that grants significant leeway to market participants in performing their regulatory obligations, but relies on government agencies to set general policies and maintain some enforcement capacity (United Kingdom, Hong Kong, and Australia); and a Cooperation Model that assigns a broad range of power to market participants in almost all aspects of securities regulation, but also maintains strong and overlapping oversight of market activity through well-endowed governmental agencies with more robust enforcement traditions (United States and Canada).

 

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