Legal Briefs

NASAA plays an important role in representing the membership’s position, including as amicus curiae, in significant legal proceedings that may have a widespread impact upon securities regulators and the rights of investors.

An index of all NASAA legal briefs is below.

12/12/14 NASAA’s brief filed in the Texas Supreme Court in Life Partners v. Arnold, arguing life settlements are securities under an investment contract analysis.
04/14/14 NASAA brief filed with the Colorado Court of Appeals in Rome v. HEI Resources, Inc.
02/05/14 NASAA and AARP joint brief to the U.S. Supreme Court in Halliburton and David Lesar v. Erica P. John Fund, Inc. arguing that overturning or substantially modifying the fraud-on-the-market presumption in Basic v. Levinson would contravene Congress’ and the Court’s continually expressed support for private securities fraud litigation, which is an essential tool necessary to protect the integrity of the securities markets, maintain investor confidence in the markets, and compensate investors who have been victims of fraud.
05/08/13 NASAA’s brief to the National Adjudicatory Council in FINRA Department of Enforcement v. Charles Schwab & Company, Inc., arguing that a Hearing Panel erred by refusing to enforce FINRA rules prohibiting the use of class action waivers in customer agreements.
1/31/13 NASAA’s brief to the New York Court of Appeals in People of the State of New York v. Greenberg, arguing that the New York Attorney General is not preempted by NSMIA or SLUSA from pursuing an enforcement action that includes a claim for money damages based on harms to investors.
10/12/12 NASAA and Maryland Securities Commisioner’s joint brief to the Maryland Court of Appeals in Mathews v. Cassidy Turley, Inc., arguing that: (1) the tenant-in-common interests at issue were “investment contracts” and, therefore, securities under the Maryland Securities Act; and (2) private causes of action for fraud under the Maryland Securities Act are subject to the tolling provisions of Md. Cts. & Jud. Proc. §5-203 or the “Discovery Rule” recognized by Maryland common law.
03/06/12 NASAA’s Memorandum in Support of Jurisdiction to the Ohio Supreme Court in State of Ohio v. Willan, arguing that: (1) a finding of reliance is not required to support a securities fraud conviction; (2) a statement made for the purposes of registering a securities offering is material if a reasonable investor would consider it important in deciding whether to invest; and (3) registration and licensing regulations are to be construed broadly in order to protect the investing public. 
02/10/12 NASAA’s Memorandum in Opposition to the Defendant’s Motion for Temporary Restraining Order and Permanent Injunction in Mitchell v. Securities America, arguing against a Federal District Court enjoinder of a state enforcement action under the All-Writs Act. 
01/09/12 NASAA’s brief to the Colorado Supreme Court in Mathers Family Trust, et al. v Cagle, et al.,arguing that public policy and the anti-waiver provision of the Colorado Securities Act preclude the use of a forum selection clause. 
11/07/11 NASAA’s Brief to the Colorado Court of Appeals in support of a Final Cease and Desist Order in which the Colorado Securities Commissioner refused to apply a rigid presumption that interests in a general partnership are not securities, in favor of a fact-based “economic realities” approach. 
08/31/11 NASAA’s Brief to the Oregon Supreme Court in Support of the State of Oregon’s Brief on the Merits in Oregon v. Marsh & McLennan Companies, Inc., arguing that the Oregon Court of Appeals erred by holding that: (1) antifraud claims under Blue Sky statutes prohibiting misrepresentations and omissions require proof of reliance; and (2) reliance cannot be presumed under the “fraud on the market” doctrine based on the general investment market’s reliance on the misstatements or omissions.
05/23/11 NASSA’s Brief in Support of the State of Oregon’s Petition for Review to the Oregon Supreme Court in opposition of the Oregon Court of Appeals’ holding that Oregon’s anti-fraud law requires proof of reliance.
03/15/11 NASAA Brief in Billitteri v. Securities America Opposing Plaintiffs’ Motion for Preliminary Approval of Partial Class Action Settlement
03/01/11 NASAA and AARP amicus brief arguing that the Fifth Circuit’s requirement that a plaintiff prove loss causation by a preponderance of the evidence prior to class certification creates an insurmountable hurdle that will close the door to the private securities actions that Congress embraced under Section 10(b) of the Securities and Exchange Act of 1934 and the SEC implemented through Rule 10b-5. (Erica p. John Fund, Inc. v. Halliburton Co., et al)
02/08/11 NASAA amicus brief filed in the Oregon State Court of Appeals in opposition of the Circuit Court’s ruling that life settlements were not securities under an investment contract analysis.
11/12/10 NASAA files an amicus brief in the United States Supreme Court in support of an investor’s right to state a claim under § 10(b) of the Securities Exchange Act and SEC Rule 10b-5 based on a company’s nondisclosure of “adverse event” reports even though the reports are not alleged to be statistically significant. (Matrixx v. Siracusano)
11/02/10 NASAA brief filed in U.S. Supreme Court in support of respondents (First Derivative Traders) in determining the extent to which a person or entity must be involved in drafting false statements to trigger §10(b) liability. (Janus Capital Group, et al., v. First Derivative Traders)
07/02/10 NASAA amicus brief filed in support of the State of North Dakota regarding North Dakota’s authority to license/register individuals who offer Reg D securities
06/21/10 NASAA amicus brief filed in the Colorado Court of Appeals arguing that choice of law provisions in securities agreements are void. (Mathers Family Trust, et al. v Cagle, et al.)
06/18/09 NASAA amicus brief filed in the U.S. Supreme Court in Jones v. Harris Associates, supporting the right of mutual fund shareholders to pursue claims against the fund’s investment adviser for charging excessive fees in breach of the fiduciary duty under Section 36(b) of the Investment Company Act.
04/10/09 NASAA’s amicus brief filed jointly with AARP and MetLife on April 10, 2009, in the D.C. Circuit, arguing that the SEC’s new rule regulating equity-indexed annuities under federal securities law should be upheld on legal and policy grounds. (American Equity v. SEC)
03/19/09 NASAA’s amicus brief filed on March 19, 2009, in the Tennessee Supreme Court, arguing that a criminal conviction under state law for willful failure to register as a broker or agent does not require a showing of specific intent. (Tennessee v. Casper) Part 1 & Part 2
03/04/09 NASAA Amicus brief filed in the U.S. Supreme Court arguing that OCC rules do not preempt the New York Attorney General ‘s authority to investigate discriminatory lending practices by national banks and their operating subsidiaries.
07/28/08 NASAA files an amicus brief in the Eighth Circuit in Pet Quarters, Inc. v. The Depository Trust and Clearing Corporation, arguing that federal law does not preempt a fraud claim under state law against various clearing and settlement organizations.
09/07/07 NASAA filed an amicus brief in support of the New York Attorney General’s opposition to a stockbroker’s petition to confirm an expungement recommendation issued by an arbitration panel. (Gibson)
09/07/07 NASAA filed an amicus brief in support of the New York Attorney General’s opposition to a stockbroker’s petition to confirm an expungement recommendation issued by an arbitration panel. (O’Neill)
09/06/07 NASAA files brief in Richard W. Mack v. Utah Department of Commerce, Division of Securities, arguing (1) Mack’s request for injunctive relief should be dismissed for failure to exhaust his administrative remedies as required by the Administrative Procedures Act; and (2) res judicata does not preclude Utah from pursuing an administrative enforcement action against Mack’s license for his participation in a “ponzi” scheme and defrauding investors.
08/24/07 NASAA files an amicus brief in New York Supreme Court addressing issues related to the application of NASD Rule 2130 and the expungement of customer complaint information from the CRD.
06/11/07 NASAA files an amicus brief in the United States Supreme Court in the Stoneridge appeal, in support of an investor’s right to sue those who have participated in securities fraud through deceptive conduct, not just through misrepresentations and omissions, under Section 10(b) of the Securities Exchange Act of 1934.
04/10/07 NASAA files an amicus brief in the United States Court of Appeals in the Ninth Circuit in support of the California Department of Corporations arguing that state securities regulators are not preempted from requiring registration of offerings that are not in compliance with the provisions of Regulation D Rule 506.
03/21/07 NASAA files brief in Whistler Investments, Inc. v. The Depository Trust and Clearing Corporation, arguing that federal law does not preempt a fraud claim under state law against various clearing and settlement organizations.
03/08/07 NASAA files amicus brief in Tellabs, Inc. v. Makor Issues & Rights, Ltd., arguing that plaintiffs in a securities fraud action should not be subjected to an overly burdensome pleading standard for scienter under the Private Securities Litigation Reform Act of 1995.
02/23/07 NASAA files amicus brief in California v. Edward D. Jones & Co., arguing that NSMIA does not preempt California’s enforcement action for failure adequately to disclose shelf-space arrangements.
09/14/06 NASAA files Amicus Brief in California v. American Funds Distributors, Inc., arguing that NSMIA does not preempt California’s enforcement action for fraud in mutual fund offering documents
05/03/06 NASAA Files Amicus Brief in Nanopierce Technologies Inc. vs. The Depository Trust and Clearing Corporation, The Depository Trust Company, and the National Securities Clearning Corporation
04/12/06 NASAA has filed an amicus brief with the U.S. District Court of Appeals for the District of Columbia Circuit in support of the Financial Planning Association’s position that the SEC’s Rule 202(a)(11)-1 (also known as the “BD/IA Rule”) is inconsistent with the Investment Advisers Act of 1940.
01/17/06 NASAA’s Amicus Brief filed in Blue Flame Energy Corp. v. Ohio Dept. of Commerce, arguing (1) that a promoter’s offering was not a “covered security” exempt from state regulation because the offering failed to comply with all of the requirements of Rule 506, Regulation D; and (2) that the Ohio Department of Commerce had personal jurisdiction over the promoter as a result of the promoter’s use of the internet to advertise the offering and solicit investors.
12/15/05 NASAA Amicus Brief Filed in Life Partners, Inc. v. Miller, in Support of the Virginia State Corporation Commission and the Virginia Commissioner of Insurance, Arguing that the Virginia Viatical Settlement Act Is Constitutional
09/08/05 NASAA Amicus Curiae Brief in support of The People of the State of California in the appeal of a judgment against viatical promoter Robert Shearburn, et al
12/14/04 NASAA Amicus Brief filed in the U.S. Court of Appeals for the Eleventh Circuit, in Support of the SEC and in Support of the Lower Court`s Determination that the Viatical Settlements Offered and Sold by Mutual Benefits Are Securities
11/19/04 NASAA Amicus Brief, in the United States Supreme Court, in Support of the Respondents/Investors and in Support of the Ninth Circuit`s Ruling on Loss Causation
10/21/04 NASAA Amicus Brief, in the United States Court of Appeals for the Second Circuit, in Support of the Connecticut Banking Commissioner`s Right Under State Law to Regulate Operating Subsidiaries of National Banks
04/28/04 NASAA’s Amicus Brief in Support of the Maryland Securities Divisions in the Case of Lubin v. Agora, Inc.
04/15/04 NASAA`s Amicus Brief in Support of Delaware`s Appeal to the Third Circuit in Ropp v. 1717 Capital Management Co., Arguing that the Federal Arbitration Act Does Not Preempt State Authority to Seek Restitution in Enforcement Actions
04/15/04 NASAA Amicus Brief in In re Simon, Defending the Constitutionality of the Sarbanes-Oxley Exceptions to Discharge for Debts Arising from Violations of the State and Federal Securities Laws
10/14/03 NASAA`s Amicus Brief in Support of the Oklahoma Department of Securities in the Accelerated Benefits Corp. Case
06/26/03 NASAA`s Amicus Brief in Support of the SEC in the ETS Payphones Case
05/23/03 NASAA Amicus Brief in the U.S. Court of Appeals for the 10th Circuit in the case of Nuveen v. Morgan Keegan, regarding the scope of the Oklahoma Securities Act
04/04/03 NASAA’s Amicus Brief in Support of the Texas Supreme Court Granting Review of an Appellate Court Decision in the Case of Millan v. Dean Witter Reynolds, Inc.
03/17/03 NASAA`s Amicus Brief in Support of the SEC`s Petition for a Writ of Certiorari in the ETS Payphones Case
02/10/03 NASAA Amicus Curiae motion and brief filed in the Virginia Supreme Court in support of a Petition for Rehearing, Tanner vs. State Corporation Commission
10/22/02 Amicus Curiae Brief SEC v. ETS Payphones
10/22/02 Motion for Amicus Curiae Brief in SEC v. ETS Payphones
06/12/02 Amicus Curiae Brief Tennessee Pay Phone Case of King v. Pope
02/15/02 Amicus Curiae Brief in Texas Viaticals Case of Griffitts v. Life Partners, Inc.
Enforcement Activity, Legal Briefs