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Federal Deregulation of Small Issues of Securities: Rule 240
Get PDFThe fundamental purpose of the Securities Act of 1933 is the protection of the investor through the disclosure and distribution of information necessary to informed investment decisions. This disclosure is achieved through section 53 of the Act, which requires that, with certain enumerated exceptions, all issues of securities offered for sale to the public through the mails or other instrumentalities of interstate commerce shall be registered with the Securities and Exchange Commission. When filed, the registration statement becomes a public document setting forth all material facts about the offered securities and the issuer. No offer of securities is lawful until the registration statement has been filed, and no sale of securities is permitted until the registration statement becomes effective, usually twenty days after filing. Not every new issue of securities, however, must be registered. The Act exempts certain carefully defined issues in the belief that the protection afforded by registration is unnecessary. These exemptions are principally directed to small issues where either the limited volume of securities offered or the number and character of the offerees is thought to preclude the dangers attendant upon a large issue. The major exemptions have been the private offering, the intrastate offering, and the Regulation A offering. To these exemptions the SEC has recently added Rule 240. Because of the conditions around which it is structured, Rule 240 is the least restrictive of exemptions available to the small issuer. Accompanying the advantage to the issuer, however, is a potential danger to the investor through the effective deregulation of offerings within the purview of the Rule. The purpose of this Note is to examine the operation of the Rule and to suggest some of the problems incident to its administration
In Re M & G: A Misapplication of Stanley v. Illinois
Get PDFA Vermont probate court terminated the rights of M, an unwed mother, in her illegitimate child, although G, the putative father, did not receive official notice of the termination hearing and did not appear. The child was placed with prospective adoptive parents shortly after the hearing. In an effort to assert his parental rights, G joined in the mother\u27s post-hearing petition for habeas corpus. Relying on Stanley v. Illinois, G argued that he was entitled to notification of the termination hearing and an opportunity to be heard on his fitness as a parent. In In re M&G, the Vermont Supreme Court held that G\u27s claim was not yet ripe for determination because it had not been affected by the termination of the mother\u27s rights. The court declared that G\u27s parental rights would be fully protected by his opportunity to assert them at the final adoption hearing. The court\u27s recognition of the potential infringement of G\u27s parental rights was an implicit acceptance of the principles of Stanley v. Illinois. The application of Stanley to G\u27s claims required an expanded reading of the Supreme Court decision. But paradoxically, the Vermont court\u27s use of Stanley had the practical effect of impeding the very rights which Stanley sought to protect. This Note contends that the Vermont Supreme Court\u27s decision to permit temporary placement of an illegitimate child pending final adoption without opportunity to the putative father to claim custody not only misapplied the principles of Stanley but also impaired the traditional remedy of custodial habeas corpus
Forbes v. Wells Beach Casino and the Contemporaneous Ownership Rule
Get PDFPrior to the enactment of Title 13-A of the Maine Business Corporation Act in January 1972, it was unsettled in Maine law whether a stockholder suing in a derivative action had to allege ownership of stock at the time of the wrongful transaction. In Forbes v. Wells Beach Casino, Inc., initiated before Title 13-A became effective, the Maine Supreme Judicial Court handed down its initial pronouncement on the stockholder standing issue. The decision makes clear that even in those jurisdictions where contemporaneous ownership is required, the rule is not absolute. The Maine court found that there are instances in which a shareholder should be permitted to complain of corporate wrongs which occurred before the acquisition of stock. The case reached the Maine Law Court on appeal from a motion to dismiss the plaintiff\u27s second supplemental pleading for failure to state a claim upon which relief could be granted. The court treated the appeal as a motion for dismissal of both the original complaint and the supplemental pleadings. After a lengthy analysis of the initial complaint, the court concluded that the plaintiff had stated a good cause of action on the contract. It did not, however, limit its decision to that issue. The court also held that the plaintiff\u27s claim for derivative relief had, by itself, sufficient substance to defeat the motion to dismiss. It is this alternative holding, granting the plaintiff standing to sue as a stockholder, which is the subject of this Note
Cross-Appeals in Maine: Pitfalls for the Winning Litigant
Get PDFThe question of when a winning party must cross-appeal to challenge non-determinative findings in defense of a favorable judgment was answered for the first time in Maine in the recent case of Littlefield v. Littlefield. Noting a split of authority between the federal and state courts, the Maine Supreme Judicial Court unpredictably determined that an appellee must file a cross-appeal if he seeks to attack adverse findings which, if decided differently, would adequately support the judgment. In Littlefield, the court\u27s objective was to provide notice to opposing parties. Recognizing that this end is a legitimate concern, the question here is whether the means chosen can realistically achieve the stated goal. This note will attempt to show that the filing of a cross-appeal is rarely a guarantee of the notice which was sought by the Littlefield court. By permitting cross-appeals from non-dispositive findings, the new rule seriously undermines the final judgment limitation on appeals and introduces a concept of cross-appealability which may facilitate the application of collateral estoppel to non-determinative findings. Littlefield purports to have rejected the federal rule in favor of the state position on cross-appeals. This paper will attempt to point out that, in light of the potential problems alluded to above, the federal rule provides a more reasonable alternative
The Role of the Maine Law Court in Abrogating the Common Law Doctrines of Governmental and Charitable Immunity from Tort Liability
Get PDFDuring the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court\u27s traditional role of deciding cases properly before it
Preliminary Questions of Fact: Respective Roles of Judge and Jury in Maine Courts
Get PDFVirtually indisputable in the law is the notion that the trial judge determines questions of admissibility of evidence. However, when admissibility depends upon the evaluation of a preliminary question of fact, both courts and commentators disagree as to whether the judge should continue to occupy the role of sole decision-maker. The intertwining of fact, the preliminary condition, and law, the admissibility decision, raises some havoc with accepted views of the judge as arbiter of the law and the jury as fact finder. If the judge determines both questions, he is resolving not only legal, but also factual issues traditionally within the province of the jury. Similarly, a jury decision in both areas forces laymen to consider legal issues possibly outside their range of competence. The muddling of this situation is increased by the diversity of state practices in settling preliminary fact issues. This comment investigates the question of who should decide preliminary questions of fact prior to admissibility of evidence, and in what situations, with emphasis on Maine policies and practices
The Constitutional Law of Remedies in Welfare Litigation
Get PDFIt is becoming increasingly obvious that the problems of poor people in the United States are dependent, more than those of other classes, upon the proper administration of government agencies. The contact of poor people with government agencies involves most of their chief concerns in life: Welfare, social security, adequate health care, adequate income from work, a safe and healthy place to live, whether privately or publicly owned, and schools that provide real education without racial or economic discrimination. Where payments are improperly withheld from a presumably destitute recipient, the need for a speedy and adequate remedy should be obvious. Yet, the remedies available to an aggrieved welfare applicant who has been denied benefits pursuant to an unconstitutional state eligibility rule are vague and speculative. The law of effective relief in federal courts for welfare plaintiffs, and indeed for other participants in federal transfer programs, is largely undeveloped. Judges and lawyers for the poor have searched with little success for authority in point. The search has confronted the doctrines of sovereign immunity, exhaustion of administrative remedies, and interests of federalism. This article considers whether a federal court may award retroactive payments to a class of welfare recipients specifically in a suit against state officers in their official capacity, when a state regulation or statute has been declared unconstitutional, without regard to the question of whether the defendants acted in bad faith. The thesis is that only one answer is correct—a class retroactive order of payment. This result is required by the constitutional law of remedies, by equity, and by sound judicial administration and, in light of the supremacy clause and the equal protection clause, is not prohibited by the eleventh amendment or the wording of section 1983
The Fair Credit Reporting Act
Get PDFWith the increasing importance of credit in the United States economy, a specialized group of agencies has developed to supply businesses with personal information on consumers. These reporting agencies come in two basic forms. Credit bureaus deal with purely economic data and use a file system to develop their reports. Investigative consumer reporting agencies issue a more comprehensive report which is generally the result of a field investigation. Because of subjective judgments, errors of identification, or use of untrustworthy sources, consumer reports often are inaccurate. The direct result of most inaccuracy is harm to the report\u27s subject, the consumer. An erroneous piece of information may deprive him of credit, insurance, or employment. Despite the fact that in the past few years reports of individuals whose lives have been ruined or severely damaged by consumer reports have increased, the majority of American jurisdictions have held, in effect, that in defamation actions against reporting agencies, society\u27s interest in the free flow of commercial information outweighs the interests of individuals who might be harmed by agency reports. This sheltering of the reporting industry from strict liability in defamation has been accomplished largely through the doctrine of conditional privilege. While state legislation has attempted to meet the need to regulate the practices of consumer reporting agencies, only a few states have dealt with the problem in a meaningful way. In response to the excesses of the consumer reporting industry, Congress has enacted the Fair Credit Reporting Act (FCRA). Its purpose is to require that consumer reporting agencies meet the obvious need for their services with a fair and equitable regard for the interests of consumers. While the legislation is deficient in some respects, it is significant in the progression of congressional consumer protection. The Act, technically an amendment to the Consumer Credit Protection Act, is applicable to all consumer reporting agencies which use the facilities of interstate commerce to prepare or send out their reports. Regulation of mercantile or business reporting agencies is omitted. The central concern of the FCRA is to insure accuracy in the reporting system. It also regulates the uses of consumer information and provides federal remedies in certain situations
State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy ?
Get PDFBecause of their strategic location on the sparsely settled Canadian border, the Passamaquoddy Indians were of great importance in the American Revolution, and played a decisive role in securing eastern Maine for the United States. As soon as the hostilities had ended, however, the federal government promptly forgot about these Indian allies in what is now the State of Maine and, whether intentionally or not, left the Passamaquoddy Tribe in its dealings with the dominant society to the mercy of Massachusetts and, after 1820, Maine. The Passamaquoddy Tribe is a relatively small one, but there are approximately 120,000 other tribal Indians, mostly residing in the Eastern United States, who also have been ignored by the federal government. As a result, these Indians are denied services which the federal government provides for Indians, and are prevented from invoking the protections provided by federal Indian law. In analyzing the validity of the dichotomy between federal and state Indians, this article examines the effects, and questions the possible sources, of Maine\u27s power to deal with the Passamaquoddy Tribe exclusive of the federal government
Conservation, Policy and the Role of Counsel
Get PDFThe conservation interests in the State of Maine have been roused to a furor by the decision of Maine\u27s highest court in State v. Johnson. The case, in substance, holds that Maine\u27s Wetlands Act is unconstitutional when applied to prohibit the filling of a specific segment of salt water marsh. While both the decision and the underlying statute are of considerable substantive interest, the case deserves particular study for the light it sheds on the role of counsel in helping the legal process accommodate new policy concerns. A note of caution must, of course, be sounded before seeking to generalize too broadly from a single example. It is always possible that a case of major significance may arise among private parties, or even between government and private parties, without its importance being recognized by those directly involved. Such was not the case with Johnson. When the permit to fill the marshland was denied and the owners sought judicial review, it was recognized as the first contested case to arise under the new Wetlands Act. The parties and the trial justice sought to expedite appeal of the case, the landowners seeking an immediate declaration of the unconstitutionality of the Act. The expedited appeal was rejected, and the case was remanded for the taking of evidence. At that early stage the Natural Resources Council of Maine had already entered the case as amicus curiae, and a law school faculty member who had helped draft the legislation participated in preparing the amicus brief. The case also received comment in a recent study of laws affecting marine resources in Maine. It is precisely because it was a cause celebre by the time of trial that the case deserves careful analysis as an example of the lawmaking process