A Free Pass for Foreign Firms? an Assessment of SEC and Private Enforcement against Foreign Issuers

By Shnitser, Natalya | The Yale Law Journal, May 2010 | Go to article overview

A Free Pass for Foreign Firms? an Assessment of SEC and Private Enforcement against Foreign Issuers


Shnitser, Natalya, The Yale Law Journal


NOTE CONTENTS

INTRODUCTION

  I. THE U.S. CAPITAL MARKETS AND THE CROSSLISTING PHENOMENON
     A. An Overview
     B. The Bonding Hypothesis
     C. Crosslisting: Procedural and Substantive Requirements
        1. How Foreign Issuers Become Subject to U.S. Securities Laws
        2. Exceptions and Exemptions for Foreign Issuers
        3. Substantive Requirements for Foreign Private Issuers
           Registered with the SEC
        4. Impact of Sarbanes-Oxley

 II. PUBLIC ENFORCEMENT AGAINST FOREIGN ISSUERS
     A. Scholarship on Public Enforcement
     B. SEC Enforcement: Previous Empirical Findings
     C. SEC Enforcement Against Foreign Issuers: Theoretical
        Expectations

III. DATA AND EMPIRICAL METHODOLOGY
     A. Part 1: Search for Enforcement Actions Against Companies on
        the SEC's Lists of International Registered and Reporting
        Issuers
     B. Part 2: In-Depth Review of SEC Enforcement for Issuer
        Reporting and Disclosure Violations

 IV. EMPIRICAL RESULTS
     A. General Enforcement Trends
     B. Issuer Reporting and Disclosure Enforcement: A Comparison of
        Enforcement Rates
     C. Delinquent Issuer Enforcement: A Comparison of Enforcement
        Rates
     D. FCPA Enforcement Trends

  V. PRIVATE ENFORCEMENT AGAINST FOREIGN ISSUERS
     A. Class Action Trends in the United States
     B. Class Action Trends Abroad

CONCLUSION

APPENDIX

INTRODUCTION

In both the scholarly work of the last decade and in recent policymaker reports, (1) the competitiveness of U.S. financial markets has been evaluated in part by their ability to attract foreign companies to raise capital in the United States by listing or crosslisting on U.S. exchanges. (2) While policymakers have advocated reforms to make U.S. markets more attractive to foreign firms, scholars have sought to understand exactly what draws foreign issuers to crosslist in the United States and how such companies--and their investors--are affected by the decision to sell securities in the United States. The dominant academic explanation of crosslisting has emphasized the "bonding" effect of listing on U.S. markets. (3) Building on the law and finance literature, the proponents of the bonding hypothesis have focused on the effect of legal origins, rules, and institutions on crosslisting patterns. (4) They have posited that companies from countries with weaker legal regimes and capital markets list their shares in the United States to rent a stronger securities law and enforcement regime and "leapfrog[] local impediments." (5) By submitting to the disclosure requirements and public enforcement powers of the Securities Exchange Commission (SEC), as well as to the private enforcement powers of shareholders, foreign companies have been able to credibly subject themselves to the stricter legal and regulatory requirements available in the United States, and in return, to enjoy higher market valuations and lower costs of capital.

In much of this research, however, enforcement of the securities laws--an important premise of the argument--has been "relegated to status as a given." (6) Scholars have focused on comparing the substantive doctrinal differences between various legal and regulatory regimes, but little attention has been devoted to determining whether the securities laws analyzed by scholars are being enforced or whether the nominally powerful regulators are doing their jobs. (7) Although recent scholarship has begun to examine the role of enforcement, with the exception of recent research by Kate Litvak, (8) much of the work has focused on aggregate enforcement trends or country-to-country comparisons of general enforcement patterns. (9) Since little attention has been devoted to studying enforcement patterns for crosslisted firms, the impact of the enforcement of securities laws on the crosslisting phenomenon remains poorly understood.

It may be true that on paper, U.

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