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The Columbia Journalism Review blog reports:

Since 2008, one particular federal government agency has aggressively investigated leaks to the media, examining some one million emails sent by nearly 300 members of its staff, interviewing some 100 of its own employees and trolling the phone records of scores more.  It’s not the CIA, the Department of Justice or the National Security Agency.

It’s the Securities and Exchange Commission. …

All that effort was for naught. Despite the time and resources that have been poured into them, none of the SEC’s eight investigations in the past six years have uncovered the leakers.…

The article further points out that the SEC’s pursuit of leakers has ramped up in the wake of the financial crisis, and it has no problem with leaks (if you call them “leaks”) when the leaks make the agency look good.

The SEC’s argument is that it needs to protect against the release of market moving information, and I’m quite sympathetic to that point, but the leaks involved here seem to be at least in part about concealing internal problems or dissension within the agency.  

Considering how at least two Commissioners have recently spoken out about their…

Several years ago, I was at the front of the classroom preparing for my Business Associations class when a student approached and asked if her friend could sit in on the class. “My friend’s interested in law school,” she said, “and I’m trying to talk her out of it.”

No comment needed. Res ipsa loquitur.

One of the most complex issues in Section 10(b) litigation concerns loss causation, i.e., the question whether the fraud ultimately resulted in a loss to the plaintiffs.

The reason loss causation is so complex is because companies rarely simply admit to wrongdoing, out of the blue.  Most of the time, the “truth” behind the fraud – whatever that truth may be – is revealed gradually or indirectly.   The first revelations concerning an accounting fraud, for example, might simply be a drop in earnings, as the company tries to “make up” for past premature revenue recognition without admitting to wrongdoing.  A company might announce a slowdown in product sales without ever admitting that it had previously lied about the product’s features.  A key officer might resign without explanation.  And very often, the first rumblings of a problem come from the announcement of a government investigation – without any further details – that may or may not ultimately culminate in an enforcement action.

In response to any of these announcements, the company might experience a stock price drop, even though the market either is unaware of the possibility of fraud or uncertain as to whether a fraud exists and/or its scope.  In such situations, can the fraud be said to have “caused” a loss?

In a pair of decisions by the Fifth and Ninth Circuits, it appears that whether such early warning signals constitute “loss causation” depends very much on what happened later.

[More under the cut]

A while ago, I wrote a post decrying multitasking. Travis Bradberry at Forbes has an excellent post discussing some research of multitasking conducted at Stanford University. My favorite takeway: “They found that heavy multitaskers—those who multitask a lot and feel that it boosts their performance—were actually worse at multitasking than those who like to do a single thing at a time.”

There has been much discussion recently about the SEC’s use of administrative proceedings, rather than court proceedings, for enforcement purposes. Both Peter Henning  and Gretchen Morgenson  have addressed the issue in the New York Times. And Jay Brown at Race to the Bottom has devoted several posts to the issue. See here,  here,  here, and here. (This final post claims to be part 5, but I believe this was a numbering error.)  .

I do not want to rehash that discussion, but I do want to bring your attention to an excellent new book I have been reading, Is Administrative Law Unlawful?, by Philip Hamburger.  Hamburger is a Columbia Law School professor who specializes in constitutional law and history. The book is an extensive examination of the history of administrative legislation and adjudication in England and America, going back to the Magna Carta. He constructs a convincing argument that current administrative practice is inconsistent with both English and American history and practice.

This is not beach reading. The book is well-written, but the arguments and the history are complex and require serious thought. It is, however, worth the effort. The book is…

My colleague Mark Phillips recently published a short article in the Nashville Bar Journal entitled Can Entrepreneurial Education Restore Faith in Legal Education? (pgs. 6-7). Mark primarily teaches entreprenuership classes in the undergraduate and graduate business schools at Belmont University, but has a JD from NYU Law, in addition to his MBA from NYU (Stern) and his PHD from George Washington University. 

For local readers, Mark will be speaking at a Nashville Bar Association breakfast on Nov 11th (at 8 am at Noshville restaurant at 1918 Broadway, Nashville, TN 37203). Mark has also started a website (www.eEsquire.net), which may be of interest to readers.

A portion of Mark’s recent Nashville Bar Journal article is below:

A great deal was lost in legal industry during the recent recession, but perhaps the most lasting damage was inflicted upon the reputation of law schools. When news broke in 2011 that a significant number of law schools had distorted their placement figures to increase enrollment and rankings, both current and prospective law students were shocked. After a stretch of bad publicity, coupled with some inevitable lawsuits, law schools worked to erase their new-found stigma through greater disclosure and transparency. Yet

…

As I previously posted, this semester I’m co-teaching a seminar with an old law school friend, Tanya Marsh (well, seminar-ish – we ended up with 17 students) on the financial crisis.

A couple of weeks ago, I dedicated a class to the concept of “regulation by deal” – inspired Steven Davidoff Solomon and David Zaring’s article with that title.  We talked about how Treasury and the Fed used dealmaking approaches to save individual firms, and thus the economy as a whole, and the corporate law issues that the government’s approach raised (lots of great inspiration also came from Marcel Kahan and Edward Rock’s When the Government is the Controlling Shareholder).  I assigned excerpts of the Regulation by Deal article, as well excerpts from the complaint filed by Fannie & Freddie shareholders, the AIG complaint, and the SIGTARP report on AIG’s payments to counterparties.  We also talked about the mergers between JP Morgan and Bear Stearns, and between Bank of America and Merrill Lynch.

Well, it was lucky timing, because that class – by sheer happenstance – was scheduled just before the AIG trial began, and then earlier this week, the Fannie & Freddie complaint was dismissed. …