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NY Business Law Journal (David.Glass@Macquarie.Com) NYSBA SUMMER 2010 | VOL. 14 | NO. 1 NNYY BBusinessusiness LLawaw JJournalournal A publication of the Business Law Section of the New York State Bar Association Inside HeadNotes 5 (David L. Glass) Credit Rating Agencies: Their Role in the Financial Crisis and the Regulatory Price That They Must Now Pay 7 (Paul C. Roberts) Mortgage Broker Duties Under New York Law— Are Brokers Fiduciaries? 14 (Mordy Gross) Web Site Rights and Wrongs: Key Legal Issues in the Creation and Operation of Web Sites 22 (Jessica R. Friedman) Employment Law Update 32 (James R. Grasso) Inside the Courts: An Update on Securities Litigation 35 (Jay B. Kasner, Matthew J. Matule, Edward B. Micheletti and Peter B. Morrison) Caveat Corporate Litigator: The First Circuit Sets Back the Attorney Work Product Doctrine 46 (C. Evan Stewart) The Pendulum Begins to Swing Back: Kohen v. PIMCO 49 (David Pepper) Towards a More Consolidated Universe: Why and How Regulation Must Promote Essentially Inevitable Cross-Border Exchange Mergers 61 (Arielle L. Katzman) SEC Initiatives to Make the U.S. Capital Markets More Attractive to Foreign Private Issuers 81 (Guy P. Lander) Committee Reports 86 New York State Bar Association Business Law Section ANNUAL STUDENT WRITING COMPETITION The Business Law Section sponsors an annual Student Writing Competition, open to all students who are candidates for the J.D. or LL.M. degree at an ac- credited law school during the year in which the article is submitted. The stu- dent articles submitted in a given year that are judged fi rst and second best, provided they are of publishable quality and otherwise meet the criteria of the Competition, will receive cash prizes of $1,500 and $1,000, respectively. At the discretion of the editors, they also will be published in the NYSBA NY Busi- ness Law Journal, which is sponsored by the Section in cooperation with New York Law School. Additional cash prizes may be awarded in the discretion of the Section. Entries that do not qualify for cash prizes may also be considered for publication in the Journal. Articles submitted will be judged on the following criteria: • Relevance to the Journal’s audience (New York business lawyers) • Timeliness of the topic • Originality • Quality of research and writing • Clarity and conciseness The manuscript should follow Bluebook cite format (using endnotes rather than footnotes) and be a minimum of 3,000 words (there is no maximum). All submissions become the property of the NYSBA and the NY Business Law Jour- nal. By submitting an article, the student is deemed to consent to its publica- tion, whether or not a cash prize is awarded. To enter, the student should submit an original, unpublished manuscript in Word format to David L. Glass, Editor-in-Chief, NYSBA NY Business Law Journal ([email protected]). The student should include a brief biography, including law school attended, degree for which the student is a candidate, and expected year of graduation. NY BUSINESS LAW JOURNAL Summer 2010 Vol. 14, No. 1 THE BUSINESS LAW SECTION NEW YORK STATE BAR ASSOCIATION in cooperation with NEW YORK LAW SCHOOL © 2010 New York State Bar Association ISSN 1521-7183 (print) ISSN 1933-8562 (online) Business Law Section Officers Chair ..................................................................................... Bruce J. Baker Nixon Peabody, LLP 1100 Clinton Square Rochester, NY 14604 [email protected] First Vice-Chair ................................................................... Paul H. Silverman and Fiscal Offi cer McLaughlin & Stern LLP 260 Madison Avenue, 21st Floor New York, NY 10016 [email protected] Second Vice-Chair............................................................... Deborah Anne Doxey Phillips Lytle LLP 3400 HSBC Center, 34th Floor Buffalo, NY 14203-2887 [email protected] Secretary ...............................................................................Jay L. Hack Gallet Dreyer & Berkey LLP 845 Third Avenue New York, NY 10022 [email protected] Business Law Section Committees Chair Banking Law ........................................................................ David L. Glass Macquarie Group Limited 125 West 55th Street New York, NY 10019 [email protected] Bankruptcy Law .................................................................. Norma Ortiz Ortiz & Ortiz, LLP 127 Livingston Street Brooklyn, NY 11201 [email protected] Consumer Financial Services............................................. William R. Henrick DealerTrack, Inc. 1111 Marcus Avenue, Suite M04 Lake Success, NY 11042 [email protected] Corporations Law ............................................................... Jeffrey Bagner Fried Frank Harris Shriver & Jacobson LLP One New York Plaza New York, NY 10004 [email protected] 2 NYSBA NY Business Law Journal | Summer 2010 | Vol. 14 | No. 1 Derivatives and Structured Products Law ...................... Daniel N. Budofsky Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017-3911 [email protected] Franchise, Distribution and Licensing Law .................... David W. Oppenheim Kaufmann Gildin Robbins & Oppenheim LLP 777 Third Avenue, 24th Floor New York, NY 10017 [email protected] Insurance Law ..................................................................... Matthew E. Kaplan Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022-3902 [email protected] Legislative Affairs ............................................................... Peter W. LaVigne Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004-2498 [email protected] Membership ......................................................................... Ilene K. Froom JPMorgan Chase Bank, NA 245 Park Avenue, 11th Floor New York, NY 10167 [email protected] Public Utility Law ............................................................... Deborah Michele Franco Cullen & Dykman LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530-4850 [email protected] Securities Regulation .......................................................... Howard Dicker Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 [email protected] Technology and Venture Law ............................................Steven R. Masur MasurLaw 101 East 15th Street, 2nd Floor New York, NY 10003 [email protected] NYSBA NY Business Law Journal | Summer 2010 | Vol. 14 | No. 1 3 NY BUSINESS LAW JOURNAL Editor-in-Chief David L. Glass, Associate Director, Center on Financial Services Law, New York Law School Managing Editor James D. Redwood, Professor of Law, Albany Law School Editorial Advisory Board Chair Professor Ronald H. Filler, Director, Center on Financial Services Law, New York Law School Advisor Emeritus Stuart B. Newman, Salon Marrow Dyckman Newman & Broudy LLP Members Frederick G. Attea, Phillips Lytle LLP Adjunct Professor David L. Glass, Macquarie Holdings (USA) Inc. Richard E. Gutman, Exxon Mobil Corporation Guy P. Lander, Carter Ledyard & Milburn LLP Howard Meyers, Visiting Professor and Associate Director of the Center on Business Law & Policy, New York Law School Raymond Seitz, Phillips Lytle LLP Houman Shadab, Associate Professor, New York Law School C. Evan Stewart, Zuckerman & Spaeder, LLP Clifford S. Weber, Hinman Howard & Kattell, LLP Research Assistants Damien DiGiovanni Lauren Lostritto 4 NYSBA NY Business Law Journal | Summer 2010 | Vol. 14 | No. 1 HeadNotes As this issue was going to press, the U.S. Senate had practices, such as the use just passed legislation to reform the fi nancial system. of yield spread premiums The Senate version ultimately will have to be reconciled by banks to compensate with the House version passed in December before a fi nal brokers. In particular, he dis- bill can reach President Obama’s desk for signature, so cusses whether some of the it is still premature to comment defi nitively. However, changes in New York law, by in broad outline the legislation is noteworthy for what it imposing greater duties on does not do as well as what it does. For instance, it does mortgage brokers, might not not effect a fundamental overhaul and streamlining of have in effect turned them the fi nancial regulatory structure; the existing regulators into fi duciaries for their largely will remain in place with most of their powers customers. intact. But it will effect basic changes in the regulation of consumer fi nancial products, such as mortgages; the Apart from regulatory ability of regulators to rescue “too big to fail” institutions reform, New York business such as AIG; and perhaps most signifi cantly, the structure lawyers have plenty to keep them busy, judging from and conduct of the over-the-counter (OTC) market for de- this issue’s lineup. One area that certainly merits closer rivatives, such as swaps. How signifi cantly these changes attention by all business lawyers is the legal implications alter the landscape remains to be seen, and will be ad- of web sites, which increasingly are an indispensable tool dressed in future issues of the NY Business Law Journal. for any business. In “Web Site Rights and Wrongs: Key Legal Issues in the Creation and Operation of Web Sites,” Meanwhile, our contributors continue to explore Jessica Friedman, Esq., an experienced New York practi- various aspects of the fi nancial crisis and to express tioner specializing in copyright, trademark, and literary their views on causes and solutions. One aspect that has property law, outlines the many pitfalls that can arise in received a great degree
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