A Framework for Analyzing Attorney Liability Under Section 10(b) and Rule 10b-5

[Excerpt] “Lawyers who make their living representing securities issuers face a myriad of challenges. Securities lawyers must navigate and master an intricate body of statutory, regulatory, and case law at both the state and the federal level and ensure that their clients comply with the law. The compliance requirement, however, is not limited to the issuer clients. Defrauded investors will often seek recovery of their losses from both the issuer of the failed investment securities and from the lawyers who represent the issuer, which only exacerbates the complexity of the securities lawyer’s work. These securities fraud actions against lawyers raise serious questions about the proper scope of liability under the federal securities laws. Just as lawyers strive for clarity, consistency, and predictability in advising their clients on securities compliance issues, lawyers seek the same level of precision regarding their own compliance. … The Court has never directly addressed the issue of attorney liability under section 10(b) of the 34 Act and Rule 10b-5. However, the Court’s recent pronouncements on primary liability of secondary actors under Rule 10b-5 indicate that the standard for such liability is increasingly becoming one that attorneys acting in the traditional role of adviser and draftsperson to securities issuers will not satisfy. This development does not give lawyers unbridled freedom or authority to commit securities fraud without fear of sanction, nor does it undermine the 34 Act’s purpose of insuring fairness and honesty in the securities markets. On the contrary, protecting lawyers who lend their expertise to the issuers and sellers of securities is consistent with insuring such fairness and honesty. Moreover, existing rules and standards governing attorney conduct and the concomitant penalties for violation of those rules provide the appropriate level of regulation for lawyers, and this article does not suggest otherwise. The article argues only that section 10(b) and Rule 10b-5 are inappropriate and, in most cases, inapposite means of redressing attorney misconduct in connection with a fraudulent securities transaction. Part II of this article will provide some background on section 10(b) and Rule 10b-5 and will discuss how section 10(b) and Rule 10b-5 have been applied in the area of liability of outside service providers such as lawyers and other secondary actors. In addition, part II will review the most recent developments of the law in this area and discuss how these developments provide an increased level of protection for securities lawyers. Part III of this article will examine how other areas of federal and state law have addressed the issue of attorney liability and suggest that the concepts can be applied to the section 10(b) and Rule 10b-5 analysis. Part IV will briefly discuss the role of the securities lawyer and the influence of the market for legal services on the manner in which these lawyers sell their services to potential clients. The article will then argue that the potential liability of any person under section 10(b) and Rule 10b-5 must be defined in terms of conduct and not in terms of the person’s role in the particular transaction giving rise to the claim. That framework will permit the securities lawyer to more effectively fulfill his or her role because the standard for attorney liability in a private action under section 10(b) and Rule 10b-5 will be clearer.

Testimonial Statements, Excited Utterances and the Confrontation Clause: Formulating a Precise Rule after Crawford and Davis

This Article will analyze whether the post-Crawford decisions have been consistent in their treatment of statements that qualify as excited utterances in light of the Confrontation Clause principles and various definitions of testimonial in Crawford. Part II of this Article will provide a discussion of the Crawford decision itself and an analysis of Crawford\u27s treatment of earlier cases in this area. Part III of this Article will provide a discussion and analysis of court decisions that have applied Crawford in the context of excited utterances. It will do this by examining the factors that these courts have considered and emphasized in their analysis of whether an excited utterance qualifies as a testimonial statement, which would implicate the Confrontation Clause protections set forth in Crawford. Part IV of this Article will discuss Crawford\u27s impact on the admission of excited utterances by analyzing the various factors from the cases under the different formulations of testimonial set forth in Crawford. Part IV will then propose a composite definition of testimonial that will take into account the three definitions from Crawford and the application of those definitions in the cases. Part V of this Article concludes that the intended positive impact of the Crawford decision will be realized only if courts refrain from applying its protections to situations that the Supreme Court neither intended nor contemplated

Testimonial Statements, Excited Utterances and the Confrontation Clause: Formulating a Precise Rule after Crawford and Davis

This Article will analyze whether the post-Crawford decisions have been consistent in their treatment of statements that qualify as excited utterances in light of the Confrontation Clause principles and various definitions of testimonial in Crawford. Part II of this Article will provide a discussion of the Crawford decision itself and an analysis of Crawford\u27s treatment of earlier cases in this area. Part III of this Article will provide a discussion and analysis of court decisions that have applied Crawford in the context of excited utterances. It will do this by examining the factors that these courts have considered and emphasized in their analysis of whether an excited utterance qualifies as a testimonial statement, which would implicate the Confrontation Clause protections set forth in Crawford. Part IV of this Article will discuss Crawford\u27s impact on the admission of excited utterances by analyzing the various factors from the cases under the different formulations of testimonial set forth in Crawford. Part IV will then propose a composite definition of testimonial that will take into account the three definitions from Crawford and the application of those definitions in the cases. Part V of this Article concludes that the intended positive impact of the Crawford decision will be realized only if courts refrain from applying its protections to situations that the Supreme Court neither intended nor contemplated

Quality Evaluation Tool for Clinician Online Continuing Medical Education

The purpose of this study was to develop and assess an instrument evaluating the quality of online continuing medical education interventions for clinicians. A review of seminal literature for evaluating health-related websites was conducted to incorporate best practices from health education, health communication, and web-based design principles. After reviewing the literature, 12 preliminary quality indicators were developed. Two independent coders used the preliminary quality indicators to code continuing medical education interventions. Internal reliability of the preliminary indicators was calculated using the Krippendorff’s alpha coefficient. After completing the reliability testing and revising the tool, the quality evaluation framework consisted of six quality indicators: accessibility, content, design, evaluation, interactivity, and theory/models. The indicators are not specifically tied to one content area; therefore, this tool can be utilized to assess the quality of continuing medical education interventions of various content areas. Future research should be conducted to further develop a comprehensive metric to assess indicators’ effect on behavior change and clinician communication with patients. These quality indicators are important as they are a foundation for intervention developers to effectively communicate current medical information and new guidelines from medical organizations and, in turn, impact patient communication and care

Vehicle Exhaust Remote Sensing Device Method to Screen Vehicles for Evaporative Running Loss Emissions

Vehicle hydrocarbon (HC) emissions can be emitted from either tailpipe or non-tailpipe locations and understanding their fleet apportionment is important for successful air pollution policy. Vehicles initially misidentified as having elevated tailpipe HC emissions first indicated that roadside exhaust sensors could detect the presence of evaporative HC emissions as increased noise in the HC/carbon dioxide (CO2) correlation measurement. The 90th percentile of the largest residual of the HC/CO2 correlation is defined as a running loss index (RLI) for each measurement. An RLI that is three standard deviations or greater above the instruments noise indicates possible evaporative running loss emissions with the probability increasing with larger RLI values. Two databases of vehicle emission measurements previously collected in West Los Angeles in 2013 and 2015 were screened using this method. The screening estimated 0.09% (31/33,806) and 0.18% (49/27,413) of the attempted measurements indicated evaporative running loss emissions from a 9-year-old fleet. California LEV I certified vehicles (1994 – 2003 model years) accounted for the largest age group for both. Minimum detection limits for the instrument used were estimated at 2.8 and 1.6 g/mile on a propane basis for the 2013 and 2015 data respectively or 32 to 56 times the Federal Tier 2 and Tier 3 standards of 0.05 g/mile

Uniqueness and non-uniqueness of static vacuum black holes in higher dimensions

We prove the uniqueness theorem for asymptotically flat static vacuum black hole solutions in higher dimensional space-times. We also construct infinitely many non-asymptotically flat regular static black holes on the same spacetime manifold with the same spherical topology.Comment: to appear in Progress of Theoretical Physics Supplement No. 14

Lexicality and frequency in specific language impairment: accuracy and error data from two nonword repetition tests

Purpose: Deficits in phonological working memory and deficits in phonological processing have both been considered potential explanatory factors in Specific Language Impairment (SLI). Manipulations of the lexicality and phonotactic frequency of nonwords enable contrasting predictions to be derived from these hypotheses. Method: 18 typically developing (TD) children and 18 children with SLI completed an assessment battery that included tests of language ability, non-verbal intelligence, and two nonword repetition tests that varied in lexicality and frequency. Results: Repetition accuracy showed that children with SLI were unimpaired for short and simple high lexicality nonwords, whereas clear impairments were shown for all low lexicality nonwords. For low lexicality nonwords, greater repetition accuracy was seen for nonwords constructed from high over low frequency phoneme sequences. Children with SLI made the same proportion of errors that substituted a nonsense syllable for a lexical item as TD children, and this was stable across nonword length. Conclusions: The data show support for a phonological processing deficit in children with SLI, where long-term lexical and sub-lexical phonological knowledge mediate the interpretation of nonwords. However, the data also suggest that while phonological processing may provide a key explanation of SLI, a full account is likely to be multi-faceted

Comprehensive analysis of the chromatin landscape in Drosophila melanogaster.

Chromatin is composed of DNA and a variety of modified histones and non-histone proteins, which have an impact on cell differentiation, gene regulation and other key cellular processes. Here we present a genome-wide chromatin landscape for Drosophila melanogaster based on eighteen histone modifications, summarized by nine prevalent combinatorial patterns. Integrative analysis with other data (non-histone chromatin proteins, DNase I hypersensitivity, GRO-Seq reads produced by engaged polymerase, short/long RNA products) reveals discrete characteristics of chromosomes, genes, regulatory elements and other functional domains. We find that active genes display distinct chromatin signatures that are correlated with disparate gene lengths, exon patterns, regulatory functions and genomic contexts. We also demonstrate a diversity of signatures among Polycomb targets that include a subset with paused polymerase. This systematic profiling and integrative analysis of chromatin signatures provides insights into how genomic elements are regulated, and will serve as a resource for future experimental investigations of genome structure and function