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The SEC and Foreign Private Issuers: A Path to Optimal Public Enforcement

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TypeOfResource
Text
TitleInfo
Title
The SEC and Foreign Private Issuers: A Path to Optimal Public Enforcement
Name (type = personal)
NamePart (type = family)
Guseva
NamePart (type = given)
Yuliya
Affiliation
Dean's Office (School of Law-Newark), Rutgers University
Role
RoleTerm (authority = marcrt); (type = text)
author
Name (authority = RutgersOrg-Department); (type = corporate)
NamePart
Dean's Office (School of Law-Newark)
Name (authority = RutgersOrg-School); (type = corporate)
NamePart
School of Law-Newark
Genre (authority = RULIB-FS)
Article, Refereed
Genre (authority = NISO JAV)
Version of Record (VoR)
Note (type = peerReview)
Peer reviewed
OriginInfo
DateIssued (encoding = w3cdtf); (keyDate = yes)
2018-07-11
Abstract (type = Abstract)
This Article examines SEC enforcement policies and seeks to find the optimum approach to enforcement against foreign private issuers. My previous empirical study of securities class actions against foreign firms identified a number of crucial developments that mainly occurred after Morrison v. National Australia Bank. In Morrison, the Supreme Court sought to limit the extraterritorial reach of the antifraud provisions of the U.S. securities laws. The Court has scaled down the exposure of foreign issuers to securities liability risk, particularly in class-action litigation. If the Supreme Court in Morrison has created a risky enforcement lacuna on the side of private class actions against foreign corporations, how should the SEC adjust its enforcement strategy? To answer this question, this Article presents an empirical survey of SEC enforcement actions against foreign issuers between 2005 and 2016. The results suggest that the SEC consistently pursues a lenient enforcement approach in this area. This low-key policy is the Commission’s dominant strategy. The Article also discusses post-Morrison doctrinal developments, market trends, and red flags potentially indicative of an increased risk of fraud. Although the traditional low-key enforcement policy may attract some foreign “lemons” in the post-Morrison environment, the SEC should not depart from its dominant strategy and engage in more enforcement actions. Instead, the warning signs identified in this paper call for better preventive monitoring. The Article suggests a number of low-cost fraud prevention policies, including promoting cooperation with foreign firms, using new data analysis programs, and galvanizing market “gatekeepers.” Through implementing the mechanisms suggested in this Article, the SEC may reach a more efficient level of deterrence without ramping up enforcement and increasing the costs of foreign firms seeking to access American capital markets.
Language
LanguageTerm (authority = ISO 639-3:2007); (type = text)
English
PhysicalDescription
InternetMediaType
application/pdf
Extent
81 pages
Subject (authority = local)
Topic
Securities litigation
Subject (authority = local)
Topic
Enforcement
Subject (authority = local)
Topic
Class actions
Subject (authority = local)
Topic
Securities and Exchange Commission
Subject (authority = local)
Topic
Morrison
Subject (authority = local)
Topic
Foreign private issuers
Subject (authority = local)
Topic
Foreign corporations
Subject (authority = local)
Topic
Empirical survey
Subject (authority = local)
Topic
Enforcement reform
Extension
DescriptiveEvent
Type
Citation
DateTime (encoding = w3cdtf)
2018
AssociatedObject
Name
Boston College Law Review
Type
Journal
Relationship
Has part
Detail
2055-2133
Identifier (type = volume and issue)
59(6)
Reference (type = url)
https://lawdigitalcommons.bc.edu/bclr/vol59/iss6/5/
RelatedItem (type = host)
TitleInfo
Title
Guseva, Yuliya
Identifier (type = local)
rucore30258300001
Location
PhysicalLocation (authority = marcorg); (displayLabel = Rutgers, The State University of New Jersey)
NjNbRU
Identifier (type = doi)
doi:10.7282/T3Q52T8M
Genre (authority = ExL-Esploro)
Journal Article
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Rights

RightsDeclaration (AUTHORITY = FS); (TYPE = [FS] statement #1); (ID = rulibRdec0004)
Copyright for scholarly resources published in RUcore is retained by the copyright holder. By virtue of its appearance in this open access medium, you are free to use this resource, with proper attribution, in educational and other non-commercial settings. Other uses, such as reproduction or republication, may require the permission of the copyright holder.
Copyright
Status
Copyright protected
Availability
Status
Open
Reason
Permission or license
RightsEvent
Type
Permission or license
AssociatedObject
Type
License
Name
Sole author license v. 1
Detail
I hereby grant to Rutgers, The State University of New Jersey (Rutgers) the non-exclusive right to retain, reproduce, and distribute the deposited work (Work) in whole or in part, in and from its electronic format, without fee. This agreement does not represent a transfer of copyright to Rutgers.Rutgers may make and keep more than one copy of the Work for purposes of security, backup, preservation, and access and may migrate the Work to any medium or format for the purpose of preservation and access in the future. Rutgers will not make any alteration, other than as allowed by this agreement, to the Work.I represent and warrant to Rutgers that the Work is my original work. I also represent that the Work does not, to the best of my knowledge, infringe or violate any rights of others.I further represent and warrant that I have obtained all necessary rights to permit Rutgers to reproduce and distribute the Work and that any third-party owned content is clearly identified and acknowledged within the Work.By granting this license, I acknowledge that I have read and agreed to the terms of this agreement and all related RUcore and Rutgers policies.
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Technical

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ContentModel
Document
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1.7
DateCreated (point = start); (encoding = w3cdtf); (qualifier = exact)
2018-07-11T21:07:49
DateCreated (point = start); (encoding = w3cdtf); (qualifier = exact)
2018-07-11T21:07:49
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