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April 1, 2020Joseph T. McClure

A New Trend in Securities Fraud: Punishing People Who Do Bad Things

This article seeks to articulate a distinct view of federal securities law as it is increasingly used in non-traditional enforcement actions commenced to punish corporate bad behavior. This paper argues that these non-traditional enforcement mechanisms should be viewed with skepticism. This skepticism should not be misinterpreted as cynicism, as the author believes that these non-traditional enforcement actions are beneficial vehicles to accomplish the admirable governmental objective of “punishing people who do bad things.” However, the author recognizes that such use of securities law does not fall into a category of clearly defined criminal law and carries a significant risk of abuse. The author also recognizes the “admirable governmental objective” may be thwarted when it comes to private companies. Finally, the author is uneasy with the societal values conveyed when the government sanctions corporate misbehavior in the name of protecting shareholders from deception.

Arbitration vs. Litigation: Who Will Decide Your Dispute (And Who Decides Who Will Decide Your Dispute)?

Recent arbitration cases illustrate the importance of an arbitration agreement’s specific language, the language’s interplay with other contractual provisions, and the division of responsibility between courts and arbitrators in determining whether an issue is arbitrable.

Are You Prepared for Anonymous? Addressing Cybersecurity Risk

Assuring cybersecurity has become a necessity for businesses across all industries. Cybercrime — with over $1 trillion in annual revenues— is now the largest illegal global business. Any business with computers and internet access is vulnerable not only from outsiders waiting to pounce but also from within the enterprise as a result of human error or bad intentions. Given the size of this problem, it is not surprising that the National Association of Corporate Directors has stated that to make real progress in the cybersecurity area, businesses must treat cybersecurity as a matter of “corporate best practices” and not just a technology issue. Companies face the risk of substantial damage from loss of customer confidence, decrease in market value and damage to their reputations as well as litigation and regulatory risks in the event of a cybersecurity breach. With October, Cybersecurity Awareness Month sponsored by the Department of Homeland Security, just drawing to a close now may be the perfect time for you to refocus on whether your business has adequately planned for the security of its assets.