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List of Forms by Chapter - Chapter 1 — Federal Regulation of Securities
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I. Introduction - [1.1] Scope of Chapter
- [1.2] Federal Securities Laws
- [1.3] Illinois Securities Law
- [1.4] Integrated Disclosure
- [1.5] Organization of the Securities and Exchange Commission
- [1.6] Published Sources for Securities Acts, Securities and Exchange Commission Rules, Forms, and Related Materials
- [1.7] Dodd-Frank Wall Street Reform and Consumer Protection Act
- II. Scope and Purpose of Securities Act of 1933
- III. Exemptions from Registration Under Securities Act of 1933
- [1.14] In General
- [1.15] Exempt Securities — 15 U.S.C. §77c
- [1.16] Intrastate Transactions
- [1.17] Tier I and Tier II — Regulation A
- [1.18] Offerings by Small Business Investment Companies — Regulation E
- [1.19] Offshore Offers and Sales — Regulation S
- [1.20] Continuing Applicability of Antifraud Provisions
- Exempt Transactions — 15 U.S.C. §77d
- [1.21] Transactions by Persons Other than Issuers, Underwriters, or Dealers and Brokers’ Transactions — 15 U.S.C. §§77d(a)(1) and 77d(a)(4)
- [1.22] Private Offerings — 15 U.S.C. §77d(a)(2)
- [1.23] Regulation D
- [1.24] Small Offerings — Rule 504
- [1.25] Larger Private Offerings — Rule 506
- [1.26] Crowdfunding Rules
- [1.27] Registration
- [1.28] Compliance
- [1.29] Expansion of Regulation A
- IV. Registration of Securities
- [1.30] Decision To Go Public
- [1.31] Underwriters
- “Prefiling Period”
- [1.32] Underwriting Arrangements
- [1.33] Overview of Registration Statement and Process
- [1.34] “Gun-Jumping”
- [1.35] 2012 Jumpstart Our Business Startups Act Modifications
- [1.36] Consequences of Violating “Gun-Jumping” Provision
- “Waiting Period” After a Registration Statement Has Been Filed
- [1.37] In General
- [1.38] Signing of Underwriting Agreement
- [1.39] Post-Effective Period
- [1.40] Effect of Registration-Reporting Requirements
- [1.41] Mergers and Acquisitions — Regulation M-A
- [1.42] Securities Offering Reform Rules and Regulations
- [1.43] State Regulation of Securities
- V. Regulations Affecting Outstanding Securities
- [1.44] Resale of Restricted Securities — Rule 144
- [1.45] Private Resales of Securities to Institutions — Rule 144A
- [1.46] Reclassification of Securities, Mergers, Consolidations, and Acquisitions of Assets — Rule 145
- Requirements Applicable to Issuers of Publicly Held Securities
- [1.47] Registration Under the Securities Exchange Act of 1934
- Periodic Issuer Reports
- [1.48] In General
- [1.49] Annual Reports on Form 10-K
- [1.50] Quarterly Reports on Form 10-Q
- [1.51] Current Reports on Form 8-K
- [1.52] Sarbanes-Oxley Act Certification
- [1.53] Electronic Data Gathering, Analysis, and Retrieval (EDGAR) System
- [1.54] Proxy Solicitation and Information Requirements
- 15 U.S.C. §78n
- [1.55] In general
- [1.56] Proxy statement disclosure
- [1.57] Shareholder nomination of directors
- [1.58] Annual reports to shareholders
- [1.59] “Say on pay” shareholder vote
- [1.60] Election contests
- [1.61] Investor advocate
- [1.62] Ombudsman
- [1.63] Enforcement by the Securities and Exchange Commission — Wells notice
- [1.64] Broker authority to vote stock in street name
- Communications with Beneficial Owners, Filing Requirements, Antifraud, and Private Actions
- [1.65] Communications with beneficial owners
- [1.66] Filing requirements
- [1.67] Antifraud
- [1.68] Private actions
- [1.69] 15 U.S.C. §78n(c)
- [1.70] Proxy Proposals
- [1.71] Reporting Requirements of Insiders and Short-Swing Profit Recovery — 15 U.S.C. §78p
- [1.72] Insider Reporting Requirements — 15 U.S.C. §78p(a)
- Filing of reports
- [1.73] Forms 3, 4, and 5
- [1.74] Due date — proxy statement disclosure
- [1.75] “Officer” defined
- [1.76] “Class” defined
- [1.77] “Equity security” defined
- [1.78] Registered under the Securities Exchange Act of 1934
- [1.79] Trusts
- Short-Swing Profit Recovery — 15 U.S.C. §78p(b)
- [1.80] In general
- [1.81] Exemptions
- [1.82] Short Sales — 15 U.S.C. §78p(c)
- [1.83] Adoption of Mandatory Preclearance Policy
- [1.84] Suggested Procedures for Reporting Persons
- [1.85] Reports by Five-Percent Shareholders
- [1.86] Third-Party Tender Offers
- [1.87] Tender Offers by Issuers
- [1.88] Issuer Repurchases
- Open-Market Purchases (Not Involving a “Block”)
- [1.89] Listed and Other Consolidated-System-Reported Securities
- [1.90] Over-the-Counter Traded Securities
- [1.91] Block Purchases
- [1.92] Going-Private Transactions — Rule 13e-3
- VI. Effects of Violations of Securities Act of 1933
- Rule 10b-5
- [1.93] Insider Trading
- [1.94] What Information Is Material?
- [1.95] To Whom Does Duty To Disclose Apply?
- [1.96] Classical theory
- [1.97] Misappropriation theory
- [1.98] When Does Duty To Disclose Arise?
- [1.99] Scienter Requirement
- Litigation in Cases Not Involving Insider Trading
- [1.100] Who May Bring Suit?
- [1.101] Procedural Changes: Stay of Discovery and Sanctions
- [1.102] Elements Necessary To Recover in a Civil Rule 10b-5 Claim
- [1.103] Further Tightening of Pleading Standards Under Supreme Court Decisions
- False statements and omissions
- [1.104] False statements
- [1.105] Omissions: did defendant have a duty to disclose a fact?
- [1.106] Private Securities Litigation Reform Act: safe harbor for forward-looking statements
- [1.107] Materiality
- [1.108] Scienter
- [1.109] Reliance and fraud-on-the-market theory
- [1.110] Causation
- [1.111] Loss causation
- [1.112] Damages
- [1.113] Aiding and abetting securities fraud
- [1.114] Contribution from other tortfeasors
- [1.115] Statute of limitations
- [1.116] Broad Construction of Phrase “In Connection with the Purchase or Sale of Any Security”
- [1.117] Covered Class Actions
- [1.118] Investment Adviser Fees Under Investment Company Act
- Additional Securities and Exchange Commission Regulatory Powers
- [1.119] Insider Trading Sanctions Act and Insider Trading and Securities Fraud Enforcement Act
- [1.120] Other Securities and Exchange Commission Powers
- [1.121] Securities and Exchange Commission Enforcement Powers Greatly Enhanced Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
- [1.122] Judicial Review of Securities and Exchange Commission Agency Divisions
- [1.123] Recent Developments
- [1.124] Short Sales of Securities
- [1.125] Government Civil and Criminal Law Enforcement Proceedings Involving Transnational Securities Frauds
- [1.126] Nationwide Service of Process in Securities and Exchange Commission Enforcement Actions
- [1.127] Aiding and Abetting Violations
- [1.128] Expanded Cease-and-Desist Authority
- [1.129] Criminal Liability
- [1.130] Civil Liabilities — 15 U.S.C. §§77k and 77l
- [1.131] Liability of Designated Persons — 15 U.S.C. §77k
- [1.132] Private Lawsuits — 15 U.S.C. §77l
- [1.133] Statute of Limitations
- [1.134] Bespeaks-Caution Defense
- [1.135] Other Provisions
- VII. Miscellaneous Provisions
- The Dodd-Frank Wall Street Reform and Consumer Protection Act
- [1.136] Recovery-of-the-Erroneously-Awarded-Compensation Policy
- [1.137] Authority To Restrict Mandatory Pre-Dispute Arbitration
- [1.138] Risk Retention
- [1.139] Enforcement Actions Against Attorneys
- [1.140] Securities Litigation Uniform Standards Act
- [1.141] Limits on State Regulation — National Securities Markets Improvement Act
- [1.142] Sarbanes-Oxley Act
- [1.143] Incentive Compensation — Loans to Executives
- [1.144] Certification — Financials
- [1.145] Internal Controls
- [1.146] Director and Officer Disqualification
- [1.147] Audit Committees
- [1.148] Auditor Regulations
- [1.149] Off-Balance-Sheet Transactions
- [1.150] Securities and Exchange Commission Bankruptcy Debt
- [1.151] Public Company Accounting Oversight Board
- [1.152] Transactions During Blackout Periods
- [1.153] Whistleblowers
- [1.154] Attorney Obligations
- [1.155] Criminal Penalties
- [1.156] Foreign Corrupt Practices Act
- [1.157] Fiduciary Standard — Broker-Dealers and Investment Advisers
- Chapter 2 — State Regulation of Securities
- I. [2.1] Introduction
- [2.2] Nature of State Securities Regulation
- National Securities Markets Improvement Act of 1996
- [2.3] In General
- Amendments to the Illinois Securities Law and Rules as a Result of the National Securities Market Improvement Act of 1996
- [2.4] Registration of Securities
- [2.5] Broker-Dealers
- [2.6] Crowdfunding Amendment
- [2.7] Investment Advisers and Investment Adviser Representatives
- [2.8] 2010 Dodd-Frank Act Amendments
- [2.9] Other Amendments to the Illinois Securities Law
- II. Registration of Securities
- [2.10] Registration Requirement
- [2.11] Security
- [2.12] Offer or Sale
- Other Important Definitions
- [2.13] Issuer
- [2.14] Person
- [2.15] Controlling Person
- [2.16] Underwriter
- [2.17] Dealer; Salesperson
- [2.18] Notification Filing Requirements
- [2.19] Illinois Exemptions from Registration
- [2.20] Exemption of Certain Securities
- [2.21] Exemption of Certain Transactions
- [2.22] Preorganization subscriptions
- [2.23] Sales to existing security holders
- [2.24] Reorganizations
- [2.25] Sales not involving issuer, underwriter, dealer, or controlling person
- [2.26] Isolated transactions
- [2.27] Small offerings
- [2.28] Sales resulting in 50-percent ownership
- [2.29] Sales to corporations and other institutions
- [2.30] Uniform limited offering exemptions
- [2.31] Accredited investor exemptions
- [2.32] Net worth requirements
- [2.33] Minimum purchase requirements
- [2.34] Sales to directors and officers
- [2.35] Crowdfunding
- Registration Process
- [2.36] In General
- [2.37] Registration by Qualification
- Examination by Illinois Securities Department
- [2.38] Review Process
- [2.39] Full and Fair Disclosure
- [2.40] Certain Regulatory Powers
- III. Violations of the Illinois Securities Law
- IV. [2.45] Conclusion
- Chapter 3 — Distribution Agreements
- I. [3.1] Scope of Chapter
- II. [3.2] Role of Sales Representatives and Distributors
- III. [3.3] Written Agreements
- IV. [3.4] Federal and State Laws
- V. Initial Considerations
- VI. [3.9] Contract Period
- VII. [3.10] Products
- VIII. [3.11] Territory
- IX. [3.12] Exclusivity Clauses
- X. Terms of Sale
- XI. [3.18] Distributor’s and Supplier’s Obligations
- XII. [3.19] Termination
- XIII. [3.23] Intellectual Property
- XIV. [3.24] Indemnification; Insurance
- XV. [3.25] Notices
- XVI. [3.26] Choice of Law
- XVII. [3.27] No Franchise
- XVIII. [3.28] Other Provisions
- XIX. [3.29] Conclusion
- Chapter 4 — General Franchising Considerations
- I. Introduction
- II. [4.7] Alternatives to Franchising
- III. State Franchise Registration and Disclosure Laws
- [4.13] Illinois Franchise Disclosure Act
- [4.14] Registration and Disclosure Requirements under the Illinois Franchise Disclosure Act
- [4.15] Enforcement and Remedies Under the Illinois Franchise Disclosure Act
- [4.16] Relationship Provisions of the Illinois Franchise Disclosure Act
- [4.17] Development of State Laws
- [4.18] Franchise Disclosure Document
- [4.19] Business Opportunity Laws
- IV. [4.20] Federal Trade Commission Rule
- V. [4.28] Termination and Nonrenewal of Franchises
- VI. [4.35] Problems Under Antitrust and Trade Regulation Laws
- [4.36] Exclusive Franchises — Refusals To Deal
- [4.37] Territorial Confinement and Customer Restrictions
- [4.38] Schwinn Per Se Rule
- [4.39] Sylvania and a Return to the Rule of Reason
- [4.40] Horizontal Restraints and Dual Distribution
- [4.41] Resale Price Control and Price Management
- Control of Product Purchases and Sales
- [4.42] Problem Practices
- [4.43] Exclusive Dealing and Requirement Contracts
- [4.44] Tying Arrangements
- [4.45] Vendor Rebates and Other Payments
- Antitrust Considerations — Termination and Nonrenewal of Franchises
- [4.46] Antitrust Claims
- [4.47] Unilateral Refusals To Deal
- VII. Franchisor Liability for Acts of Franchisee
- VIII. [4.50] Transfers
- IX. [4.51] Channel Conflicts and Encroachment
- X. [4.52] Franchise as a Security
- XI. [4.53] Conclusion
- Chapter 5 — Overview of Antitrust Law for the Corporate Practitioner
- I. [5.1] Introduction
- II. [5.2] Per Se Illegal Offenses
- III. Offenses Subject to the Rule of Reason
- IV. Monopolies
- [5.16] Overview
- [5.17] Actual Monopolization Offense
- [5.18] Monopoly Power
- [5.19] Monopoly Conduct: Deliberateness
- [5.20] Attempted Monopolization
- [5.21] Specific Intent
- [5.22] Predatory or Anticompetitive Conduct
- [5.23] Dangerous Probability of Success
- [5.24] Conspiracy To Monopolize
- [5.25] Illinois Antitrust Act
- V. Other Antitrust Violations
- Chapter 6 — Employment Agreements Involving Restrictive Covenants and Trade Secrets
- I. [6.1] Introduction
- II. Employment Agreements and Buy-Sell Agreements
- III. Types of Restrictive Covenants
- IV. Drafting Restrictive Covenants
- [6.11] Overview of Requirements
- [6.12] Consideration
- [6.13] Ancillarity
- [6.14] Reasonableness
- [6.15] No Greater than Required for Protection of a Legitimate Business Interest
- [6.16] The “Near-Permanence” of Customer Relationships
- [6.17] Employee’s Acquisition of Confidential Information
- [6.18] Time/Place Restrictions
- [6.19] Geographic Reasonableness
- [6.20] Temporal Reasonableness
- [6.21] Reasonableness of Activity Restrained
- [6.22] Undue Hardship to the Employee
- [6.23] Injurious to the Public
- V. Enforcing Restrictive Covenants
- VI. [6.30] Confidentiality Agreements and Trade Secrets
- What Is a “Trade Secret”?
- [6.31] Definition Under Illinois Trade Secrets Act
- [6.32] Common-Law Factors
- [6.33] Cases Regarding Existence of Trade Secret
- What Is “Misappropriation”?
- [6.34] Definition Under Illinois Trade Secrets Act
- [6.35] Acquisition by Improper Means
- [6.36] Disclosure or Use of Trade Secrets
- [6.37] Inevitable-Disclosure Doctrine
- [6.38] Application in Illinois and Seventh Circuit
- [6.39] Application in Other Jurisdictions
- [6.40] Remedial Scheme of Illinois Trade Secrets Act
- [6.41] Defend Trade Secrets Act
- VII. [6.42] Emergency Injunctive Relief and Appeals Therefrom
- VIII. [6.43] Possible Related Claims
- [6.44] Uniform Deceptive Trade Practices Act
- [6.45] Common-Law Unfair Competition
- [6.46] Tortious Interference with Contractual Relations
- [6.47] Tortious Interference with Prospective Economic Advantage
- [6.48] False Representation of Material Fact
- [6.49] Malicious Prosecution
- [6.50] Antitrust Violations
- [6.51] Patent and Trademark Infringement
- [6.52] False or Misleading Statements
- [6.53] Defamation
- [6.54] Conversion
- [6.55] Conspiracy
- [6.56] Racketeer Influenced and Corrupt Organizations Act
- [6.57] Computer Fraud and Abuse Act
- IX. [6.58] Appendix — Recommended Reading
- Chapter 7 — Intellectual Property Rights
- I. [7.1] Scope of Chapter
- II. [7.2] Patents
- [7.3] America Invents Act
- [7.4] Requirements for Patentability
- [7.5] Components of a Patent Application
- [7.6] Examination of a Patent Application
- Options Available After Receiving a Final Rejection
- [7.7] Continuing Application
- [7.8] Continuation-in-Part Applications
- [7.9] Board of Patent Appeals
- [7.10] Federal Court
- [7.11] Interference/Derivation Proceedings
- [7.12] One-Year Grace Period
- [7.13] Confidentiality
- [7.14] Experimental Use
- [7.15] Patent Pending/Patent Marking
- [7.16] Enforcement of Patent Rights
- III. [7.17] Copyrights
- IV. [7.22] Trademarks
- V. Trade Secrets
- [7.27] “Trade Secret” Defined
- [7.28] Development of Trade Secret Law in Illinois
- [7.29] Trade Secrets Under the Illinois Trade Secrets Act
- [7.30] Combination Analysis
- [7.31] Importance of Trade Secret Protection in the Information Age
- [7.32] Trade Secret Audits
- [7.33] Six-Factor Test for the Identification of Trade Secrets
- [7.34] Table of Protectable Trade Secrets
- [7.35] Trade Secret Protection Programs
- [7.36] Checklist of Reasonable Security Measures
- [7.37] Computer Security
- [7.38] Traps for Theft
- [7.39] Company-Owned Computers
- [7.40] Password Protection/User Level Access
- [7.41] Encryption
- [7.42] Cellular Communications
- [7.43] E-Mail Communications
- [7.44] A Sizable Budget and Trusted Information Technology Professionals
- [7.45] Large (Locked) Waste Bins
- [7.46] No Private Scanners, No Private Faxes
- [7.47] Red Team Attacks
- [7.48] Manual Typewriters and Writing by Hand
- [7.49] Anti-Copy and Anti-Fax Paper
- [7.50] 800 Number for Reporting Suspicious Activities
- [7.51] Trade Secret Control Committee
- [7.52] Economic Espionage Act of 1996
- [7.53] Defend Trade Secrets Act of 2016
- [7.54] Forfeiture of Trade Secret Rights
- [7.55] 24/7 Computer Monitoring and Security
- [7.56] “John Doe” Lawsuits
- Edward X. Clinton
Edward X. Clinton
Edward X. Clinton is Principal at The Clinton Law Firm, LLC, in Chicago, where he has specialized in corporate and securities law matters since he began practicing law. Mr. Clinton is a member of the Evanston Golf Club, a member of the Lay Advisory Board of the Little Sisters of the Poor Chicago Home, and the President of the Children’s Care Foundation. A former instructor in securities regulation at The John Marshall Law School, he has written and lectured extensively on corporate, securities, and banking law topics. Mr. Clinton received his J.D. from The John Marshall Law School.
- Edward X. Clinton, Jr.
Edward X. Clinton, Jr.
Edward X. Clinton, Jr., is a Shareholder at The Clinton Law Firm, LLC, in Chicago where he focuses his practice on commercial litigation. Mr. Clinton served as law clerk to the Honorable Michael S. Kanne of the U.S. Court of Appeals for the Seventh Circuit and also as an associate with the firm of Mayer, Brown & Platt before joining the Law Offices of Edward X. Clinton, P.C., in Chicago. He is a member of the Seventh Circuit, Chicago, Illlinois State, and American (Section of Litigation) Bar Associations. Mr. Clinton is a member of the Lay Advisory Board of the Little Sisters of the Poor Chicago Home and a member of the Board of Directors for Saint Ignatius Chicago Rowing Club. He maintains a blog on commercial litigation and securities issues and has authored presentations for IICLE® and other groups on contract law. He received his B.A. from the University of Chicago, his LLM from Chicago-Kent College of Law, and his J.D. with honors from Harvard Law School.
- Allison E. Czerniak
Allison E. Czerniak
Allison E. Czerniak is an associate at Taft Stettinius & Hollister LLP, in Chicago, where she focuses on business and commercial litigation. Ms. Czerniak has been named an Illinois Super Lawyers Rising Star (2019 – present) and has been listed a One to Watch by Best Lawyers in America. She is a member of the Chicago Bar Association and the Coalition of Women’s Initiatives in Law Firms. She earned her J.D. summa cum laude from the University of St. Thomas School of Law.
- R. Mark Halligan
R. Mark Halligan
R. Mark Halligan is a Partner at FisherBroyles, LLP, in Chicago, where he concentrates in intellectual property litigation. Mr. Halligan has been selected as “Lawyer of the Year” for his work in Trade Secrets Law — Chicago, as one of America's Leading Lawyers for Business for his exceptional standing in intellectual property law, and as an “IP Star” by Managing Intellectual Property. Legal 500 has inducted Mr. Halligan into its Hall of Fame for trade secret litigation. He has also served on the Adjunct Faculty of UIC John Marshall Law School teaching advanced trade secrets law for 26 years. Mr. Halligan earned his J.D. from Northwestern University School of Law and B.A. from the University of Cincinnati summa cum laude.
- Edwin G. Harvey
Edwin G. Harvey
Edwin G. Harvey is a Partner at Thompson Coburn LLP, in St. Louis, and focuses his practice in antitrust and commercial litigation. Mr. Harvey is a member of the American Bar Association and its Antitrust Section, the Missouri Bar Association and its Antitrust Committee, and the Bar Association of Metropolitan St. Louis and its Antitrust, Trade Regulation Committee. He received his B.A. summa cum laude from Truman State University and his J.D. from Washington University School of Law, where he was Senior Editor of the Washington University Law Quarterly.
- Richard Y. Hu
Richard Y. Hu
Richard Y. Hu is a Partner at Taft Stettinius & Hollister LLP, in Chicago, where he focuses his practice on commercial litigation, gaming law, administrative law, healthcare law, and technology. Mr. Hu has been named an Emerging Lawyer by the Leading Lawyers Network (2017 – 2020), a Rising Star by Illinois Super Lawyers (2016 – 2021), and One to Watch in Commercial Litigation and Healthcare Law by Best Lawyers in America (2021). He received his J.D. from Northwestern University School of Law and his B.A. from Emory University.
- Robert N. Kamensky
Robert N. Kamensky
Robert N. Kamensky is a Partner with Thompson Coburn LLP, in Chicago, in the firm’s Corporate and Securities practice. Mr. Kamensky guides companies through major transactions and provides comprehensive advice on their day-to-day operations and business needs. He has been included as an Illinois Super Lawyer (2010 – present) and an Illinois Leading Lawyer (2014 – present). He received his B.A. from the University of Iowa and his J.D. from DePaul University College of Law, where he was a member of the DePaul Journal of Health Care Law.
- John F. Kennedy
John F. Kennedy
John F. Kennedy is a Partner at Taft Stettinius & Hollister LLP, in Chicago, where he is a trial lawyer with a focus on crisis management. He is a Professor at The King’s Inns, Dublin, Ireland, and also serves as General Counsel and as a Member of the Board for the National Alliance on Mental Health. He earned his B.A. cum laude from Niles College of Loyola University and his J.D. with honors from DePaul University College of Law.
- Joseph W. Sheyka
Joseph W. Sheyka
Joseph W. Sheyka, Senior Counsel with the firm DLA Piper LLP (US), in Chicago, concentrates his practice in franchise and distribution law. Mr. Sheyka is a member of the American Bar Association and its Antitrust Committee and Forum on Franchising. He received his B.A. from the University of Illinois and his J.D., Order of the Coif, from Northwestern University School of Law.
Business Law: Miscellaneous Operating Issues (ARCHIVED 2017 EDITION)
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