Category Archives: Volume 12-1

VISITORIAL POWERS AND THE GENERAL POWER TO ENFORCE THE LAW: ANDREW M. CUOMO, ATTORNEY GENERAL OF NEW YORK V. THE CLEARING HOUSE ASSOCIATION, L.L.C.

BY ALEXANDRA KUTCHINS

The Supreme Court of the United States vacated an injunction against the attorney general of New York insofar as it prohibited him from bringing a judicial enforcement action to enforce compliance with New York fair-lending law because the vesting of visitorial powers in the Comptroller of the Currency does not preclude a state from enforcing its laws of general applicability.
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THE SUPREME COURT’S REVIEW OF JONES V. HARRIS ASSOCIATES AND § 36(b) CLAIMS UNDER THE INVESTMENT COMPANY ACT OF 1940—A PROSPECTIVE AND ANALYTICAL VIEW

BY JAMES F. KOEHLER, ESQ. AND P. WESLEY LAMBERT, ESQ.

Since its enactment, no plaintiff has ever prevailed in a court case challenging the size of an advisory fee charged by a mutual fund adviser under § 36(b) of the Investment Company Act of 1940 (the “ICA”).
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THE ONGOING BATTLE AGAINST INSIDER TRADING: A COMPARISON OF CHINESE AND U.S. LAW AND COMMENTS ON HOW CHINA SHOULD IMPROVE ITS INSIDER TRADING LAW ENFORCEMENT REGIME

BY LIU DUAN

Almost every country prohibits insider trading in order to protect its investors and to ensure fair and competitive security markets. For the People’s Republic of China (“China”), an effective and reliable financial market reasonably free of the stain of insider trading is essential for its successful integration into the global economy.
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INVIGORATING THE ROLE OF THE IN-HOUSE LEGAL ADVISOR AS STEWARD IN ETHICAL CULTURE AND GOVERNANCE AT CLIENTBUSINESS ORGANIZATIONS: FROM 21ST CENTURY FAILURES TO TRUE CALLING

BY BEN G. PENDER II

As a composite, American business organizations are a moral failure. Public trust in business has reached a forty year low.1 The current global economic downturn is, “at its core, a crisis of trust.” Characterized by former NASDAQ chairman Bernard Madoff, Satyam CEO Byrraju Ramalinga Raju, Stanford Financial Group CEO Sir Robert Allen Stafford, and Petters Group CEO Tom Petters, too many executives and their supporting cast of often-acquiescent inhouse attorneys have pawned public trust for large salaries, big cars, supersized corner offices, and the McMansion.
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COMPLIANCE AS THE COMPETITIVE DIFFERENTIATOR

BY JAMES RATHZ

Financial compliance is often perceived as an insular risk management process designed to keep the regulated firm and its employees in conformity with federal and state securities statutes. This certainly is an essential aspect of compliance, but thoughtful consideration will reveal that this regulatory comportment is not the sole attribute of a sound compliance regimen.
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ORGANIC COMPLIANCE . . . DOING MORE WITH LESS

BY ELIZABETH HORRIGAN RATHZ

The risk management capabilities of a financial services management team have always been a game changer for shareholders, clients, and employees. For regulated entities, timely and perceptive identification of regulatory and reputational risk contributes to improved productivity and a greater return on capital investment over the long run. As business processes remain compliant, the firm’s reputation stays intact. In retrospect, it is apparent that the events leading up to (and through) the Great Recession of 2007–2009 have common risk tendencies, the most notable among them being the absence of timely and perceptive risk identification.
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