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Materiality (2006 Professionalism Discussion Paper)
AMERICAN ACADEMY OF ACTUARIES Council on Professionalism MATERIALITY Concepts on Professionalism Discussion Paper Prepared by Task Force on Materiality PROFESSIONALISM SERIES 2006 • NO. 8 TABLE OF CONTENTS Preface............................................................................................................ ii Background ................................................................................................... iii Purpose and Scope ......................................................................................... v Defining Materiality....................................................................................... 1 Reflecting Upon Materiality: User is Key .................................................... 3 Applying Judgment About Materiality ......................................................... 5 Accounting Vs. Actuarial Materiality ........................................................... 7 Communication and Disclosure..................................................................... 8 Appendix: Helpful Sources for Use in Selecting Materiality Standards ....... 9 MATERIALITY • JUNE 2006 i PREFACE This discussion paper was developed by the Task Force on Materiality of the Council on Professionalism of the American Academy of Actuaries for discretionary use by actuaries. Its purpose is to assist actuaries in considering various aspects of materiality as they provide professional services to their principals. This paper was not promulgated by the Actuarial Standards Board and is not binding -
In the United States District Court for the District of Kansas
Case 5:04-cr-40141-JTM Document 293 Filed 10/20/05 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS UNITED STATES OF AMERICA, ) ) Plaintiff, ) CRIMINAL ACTION ) v. ) No. 04-40141-01, 02 ) ARLAN DEAN KAUFMAN and ) LINDA JOYCE KAUFMAN, ) ) Defendants. ) ) ORDER This case comes before the court on a motion to quash the subpoena issued to Tom R. (Doc. 286.) Defendants subpoenaed Tom R. to testify in their behalf. They have proffered what his testimony would likely be. That proffer will be filed under seal as a court exhibit. The motion to quash the subpoena is DENIED, subject to conditions. Defendants’ rights have been aptly summarized in United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004): The compulsory process right does not attach to any witness the defendant wishes to call, however. Rather, a defendant must demonstrate that the witness he desires to have produced would testify "in his favor," U.S. Const. amend, VI, see United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982). Thus, in order to assess [defendants’] interest, we must determine whether [Tom R.] could provide testimony material to [defendants’] defense. Because [defendants have] not had--and will not receive--direct access to [Tom R., they] cannot be required to show materiality with the degree of specificity that applies in the ordinary case. Case 5:04-cr-40141-JTM Document 293 Filed 10/20/05 Page 2 of 3 See Valenzuela-Bernal, 458 U.S. -
The Reasonable Investor of Federal Securities Law
This article was originally published as: Amanda M. Rose The Reasonable Investor of Federal Securities Law 43 The Journal of Corporation Law 77 (2017) +(,121/,1( Citation: Amanda M. Rose, The Reasonable Investor of Federal Securities Law: Insights from Tort Law's Reasonable Person & Suggested Reforms, 43 J. Corp. L. 77 (2017) Provided by: Vanderbilt University Law School Content downloaded/printed from HeinOnline Tue Apr 3 17:02:15 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device The "Reasonable Investor" of Federal Securities Law: Insights from Tort Law's "Reasonable Person" & Suggested Reforms Amanda M. Rose* Federalsecurities law defines the materiality ofcorporatedisclosures by reference to the views of a hypothetical "reasonableinvestor. " For decades the reasonable investor standardhas been aflashpointfor debate-with critics complaining of the uncertainty it generates and defenders warning of the under-inclusiveness of bright-line alternatives. This Article attempts to shed fresh light on the issue by considering how the reasonable investor differs from its common law antecedent, the reasonableperson of tort law. The differences identified suggest that the reasonableinvestor standardis more costly than tort, law's reasonableperson standard-theuncertainty it generates is both greater and more pernicious. But the analysis also reveals promising ways to mitigate these costs while retainingthe benefits of theflexible standard 1. -
Fraud Against Financial Institutions: Judging Materiality Post- Escobar
William & Mary Business Law Review Volume 12 (2020-2021) Issue 3 Article 3 April 2021 Fraud Against Financial Institutions: Judging Materiality Post- Escobar Matthew A. Edwards Follow this and additional works at: https://scholarship.law.wm.edu/wmblr Part of the Banking and Finance Law Commons, and the Courts Commons Repository Citation Matthew A. Edwards, Fraud Against Financial Institutions: Judging Materiality Post-Escobar, 12 Wm. & Mary Bus. L. Rev. 621 (2021), https://scholarship.law.wm.edu/wmblr/vol12/iss3/3 Copyright c 2021 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmblr FRAUD AGAINST FINANCIAL INSTITUTIONS: JUDGING MATERIALITY POST-ESCOBAR MATTHEW A. EDWARDS* ABSTRACT In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court held that proof of materiality is required for convictions under the federal mail, wire and bank fraud statutes. During the past 20 years, the federal courts have endeavored to apply the complex com- mon law concept of materiality to the federal criminal law context. The Supreme Court’s recent decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), a civil case involving the False Claims Act, provided the federal appellate courts with an ideal opportunity to reconsider materiality standards in federal fraud cases. In particular, criminal fraud defendants have argued that Escobar’s “subjective” materiality standard should be applied in mail, wire and bank fraud cases involving financial institutions. Thus far, these arguments have failed. Instead, the Courts of Appeals have endorsed an objective materiality standard tethered to what a reasonable bank would do—not the behavior of renegade lenders. -
COVID-19 Rescue Moratorium
Passport to disclosure and privilege Your global guide Paul Worth The law on disclosure and Co-Head of Global Litigation privilege differs between Eversheds Sutherland common law and civil law T: +44 207 919 0686 M: +44 790 968 4372 jurisdictions and from [email protected] country to country. Rocco Testani Our litigation and arbitration practice has a truly Co-Head of Global Litigation international reach with offices across the UK, Eversheds Sutherland Europe, Middle East, Asia, Africa and the US. Our T: +1 404 853 8390 dedicated teams from across the globe have M: +1 678 613 9954 collaborated to provide you with a quick [email protected] reference guide to the approach to disclosing documents and privilege across different Kymberly Kochis jurisdictions. For advice on specific issues, please Co-Head of Global Litigation get in touch with the contact/s for each Eversheds Sutherland jurisdiction. This is a free resource provided to T: +1 212 389 5068 our clients and the wider business community. M: +1 267 567 2946 We hope that you find the guide helpful for you [email protected] and your teams and welcome any feedback you may have on its future development. The information contained in this document is intended as a guide only. Whilst the information it contains is believed to be correct, it is not a substitute for appropriate legal advice. Eversheds Sutherland can take no responsibility for actions taken based on the information contained in this document. Jurisdictions UK Jurisdictions -
Download Download
BOOK REVIEWS 823 THE LAW OF EVIDENCE, David Paciocco and Lee Stuesser (Concord: Irwin Law, 1996) I. INTRODUCTION The Law of Evidence by David Paciocco and Lee Stuesser provides a useful handbook on the law of evidence. As a textbook of some 299 pages, it cannot compete with the treatise on Evidence in Trials at Common Law by Wigmore, nor the 1,000 page text on The Law of Evidence in Canada by Sopinka, Lederman & Bryant, 2d ed. Nonetheless, it is, in the words of Madam Justice Louise Chairon (who wrote the foreward to the textbook), "a concise yet scholarly summary of the major rules of the law of evidence."1 The book consists of thirteen chapters. Chapter 1 is an introduction, and chapter 13 is a conclusion. The remaining chapters consist of a discussion of the law of evidence on the following subjects, namely: "Relevance and Materiality: The Basic Rule of Admissibility"; "Character Evidence: Primary Materiality"; "Hearsay Exceptions"; "Opinion Evidence"; "Privilege"; "Self-Incrimination"; "Improperly Obtained Evidence"; "Methods of Presenting Evidence"; "Secondary Materiality and Your Own Witness"; "Rules Relating to the Use of Admissible Evidence." The textbook encompasses rules of evidence in civil litigation and criminal litigation. II. METHODOLOGY OF THE AUTHORS In chapters 2 through 12, the authors summarize what they extrapolate as the basic rules of evidence in a series of italicized statements. There are approximately sixty of these summations contained in the textbook. Each of these statements of the rules governing various areas of evidence law are then discussed in the context of the governing authorities. Some of these concise statements of the law are easily articulated and easily understood. -
United States District Court Southern District of Indiana Indianapolis Division
Case 1:15-cv-00758-JMS-MJD Document 264 Filed 04/19/18 Page 1 of 36 PageID #: <pageID> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION UNITED STATES SECURITIES AND EXCHANGE ) COMMISSION, ) ) Plaintiff, ) ) No. 1:15-cv-00758-JMS-MJD vs. ) ) ITT EDUCATIONAL SERVICES, INC., KEVIN M. ) MODANY, and DANIEL M. FITZPATRICK, ) ) Defendants. ) ORDER Plaintiff United States Securities and Exchange Commission (the “SEC”) filed this lawsuit against Defendants ITT Educational Services, Inc. (“ITT”),1 ITT’s former Chief Executive Officer Kevin Modany, and ITT’s former Chief Financial Officer Daniel Fitzpatrick, alleging that Defendants violated federal securities laws in connection with two student loan programs created by ITT for ITT students. The SEC on the one hand, and Mr. Modany and Mr. Fitzpatrick on the other, have filed numerous motions to exclude expert testimony in advance of the July 9, 2018 trial. Specifically, presently pending and ripe for the Court’s consideration are: (1) Defendants’ Motion to Exclude the Report, Testimony, and Opinions of Harvey L. Pitt, [Filing No. 197]; (2) the SEC’s Motion to Preclude the Testimony of Defendants’ Expert David B.H. Martin, [Filing No. 201]; (3) Defendants’ Motion to Exclude the Report, Testimony, and Opinions of Kevin Kinser, Ph.D, [Filing No. 199]; (4) the SEC’s Motion to Preclude the Testimony of Defendants’ Expert Roger Meiners, [Filing No. 203]; (5) Defendants’ Motion to Exclude Certain Testimony 1 The SEC and ITT’s trustee ultimately settled all claims against ITT, and only claims against Mr. Modany and Mr. Fitzpatrick remain pending. [See Filing No. -
The Use of Hearsay in Arbitration
CHAPTER 10 THE USE OF HEARSAY IN ARBITRATION JAMES A. WRIGHT* A common, if not dominant, procedural problem in labor arbitration is the admission and use of hearsay evidence. What should an arbitrator do when hearsay is offered into evidence? Is it important for an arbitrator to know what is and what is not hearsay evidence? Should hearsay evidence be admitted as a general rule? If hearsay evidence is admitted, what weight should it be given? Whether to admit hearsay evidence is one of the most com- mon questions confronting arbitrators. As a general rule, I believe that hearsay evidence should be admitted in an arbitra- tion hearing. This allows arbitrators to receive the complete picture of all relevant facts without encountering legal tech- nicalities. It permits advocates—who are often untrained in the jurisprudence of evidence—to present a complete case to the arbitrator. It also forces arbitrators to deal with the underlying reliability and relevancy of each offered item of evidence. Many courts and arbitrators recognize the fact that hearsay evidence helps the arbitrator establish a fair understanding of the facts and issues of the case.1 One arbitrator has stated: Admission of hearsay is justified to keep arbitration from becoming too cumbersome through procedural wrangling, or by the require- ment that every witness who might be brought in be required to appear.2 Clearly, arbitrators must be given complete control over the admission of evidence. This nonlegalistic philosophy has been *Husch & Eppenberger, Peoria, Illinois. lSee Walden v. Teamsters Local 71,468 F.2d 196, 81 LRRM 2608 (4th Cir. -
Specific Rulemaking on Materiality Guidance in Insider Trading Joan Macleod Hemingway
Louisiana Law Review Volume 72 | Number 4 Summer 2012 Just Do It! Specific Rulemaking on Materiality Guidance in Insider Trading Joan MacLeod Hemingway Repository Citation Joan MacLeod Hemingway, Just Do It! Specific Rulemaking on Materiality Guidance in Insider Trading, 72 La. L. Rev. (2012) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol72/iss4/4 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Just Do It! Specific Rulemaking on Materiality Guidance in Insider Trading Joan MacLeod Heminway * Issuers, investors, and regulators have struggled with applying 1 the materiality test since the enactment of the securities laws. I. INTRODUCTION Insider trading has been in the news on a relatively constant basis in the new millennium. Raj Rajaratnam and associates, 2 Mark Cuban, 3 and Martha Stewart 4 have been among the many subjects of legal actions involving insider trading since the Enron debacle in 2002. Some of these cases have been garden-variety insider trading cases; others have exposed confusing and evolving elements of U.S. insider trading doctrine. 5 Most recently, Copyright 2012, by JOAN MAC LEOD HEMINWAY . * College of Law Distinguished Professor of Law, The University of Tennessee College of Law; A.B. 1982, Brown University; J.D. 1985, New York University School of Law. Work on this article was supported by the diligent and capable research assistance of Olatayo Atanda (J.D. -
Statement of Policy Regarding Lawyers' Responses to Auditors
Lawyers’ Responses to Auditors’ Requests for Information 1999 AU Section 337C Exhibit II—American Bar Association Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Information Note: This document, in the form herein set forth, was approved by the Board of Governors of the American Bar Association in December 1975, which official action permitted its release to lawyers and accountants as the standard recom- mended by the American Bar Association for the lawyer's response to letters of audit inquiry. Source: SAS No. 12. Preamble The public interest in protecting the confidentiality of lawyer-client commu- nications is fundamental. The American legal, political and economic systems depend heavily upon voluntary compliance with the law and upon ready access to a respected body of professionals able to interpret and advise on the law. The expanding complexity of our laws and governmental regulations increases the need for prompt, specific and unhampered lawyer-client communication. The benefits of such communication and early consultation underlie the strict statutory and ethical obligations of the lawyer to preserve the confidences and secrets of the client, as well as the long-recognized testimonial privilege for lawyer-client communication. Both the Code of Professional Responsibility and the cases applying the eviden- tiary privilege recognize that the privilege against disclosure can be knowingly and voluntarily waived by the client. It is equally clear that disclosure to a third party may result in loss of the "confidentiality" essential to maintain the privilege. Disclosure to a third party of the lawyer-client communication on a particular subject may also destroy the privilege as to other communications on that subject. -
Resolving Election Error: the Dynamic Assessment of Materiality
William & Mary Law Review Volume 54 (2012-2013) Issue 1 Article 3 November 2012 Resolving Election Error: The Dynamic Assessment of Materiality Justin Levitt Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Civil Rights and Discrimination Commons, and the Election Law Commons Repository Citation Justin Levitt, Resolving Election Error: The Dynamic Assessment of Materiality, 54 Wm. & Mary L. Rev. 83 (2012), https://scholarship.law.wm.edu/wmlr/vol54/iss1/3 Copyright c 2012 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr RESOLVING ELECTION ERROR: THE DYNAMIC ASSESSMENT OF MATERIALITY JUSTIN LEVITT* ABSTRACT The ghosts of the 2000 presidential election will return in 2012. Photo-finish and error-laden elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet despite widespread agreement on the likelihood of another national melt- down, neither courts nor scholars have developed consistent princi- ples for resolving the errors that cause the chaos. This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an election error should turn on its materiality: whether the error is material to the eligibility of a voter or the determination of her ballot preference. In developing this argument, this Article offers the first trans- substantive review of materiality as a governing principle. -
Table of Contents
Table of Contents Preface and Acknowledgments....................................................vii About the Contributors ...................................................................ix Table of Chapters ...........................................................................xxi Chapter 1 Introduction Jonathan C. Dickey § 1:1 The Changing Landscape of Securities Litigation........... 1-1 § 1:1.1 Judicial Decisions .................................................... 1-1 § 1:1.2 Impact of New SEC and Legislative Initiatives on Private Securities Litigation ..................................... 1-5 § 1:2 Future Outlook ............................................................... 1-7 Chapter 2 Basic Claims Under the Federal Securities Laws Robert F. Serio & Aric H. Wu § 2:1 Securities Act of 1933..................................................... 2-4 § 2:1.1 Section 11 ................................................................ 2-4 [A] Standing................................................................... 2-5 [B] Who May Be Sued ................................................... 2-7 [C] Elements .................................................................. 2-7 [D] Damages .................................................................. 2-9 [E] Defenses—Purchaser’s Knowledge of Untruth or Omission............................................. 2-10 [F] Defenses—Due Diligence ...................................... 2-10 [G] Defenses—Resignation and Notice ........................ 2-10 [H] Defenses—Loss Causation....................................