The Clients’ Waiver of Their Rights Under Regulation BI of the Securities and Exchange Commission

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses the Securities and Exchange Commission (SEC)’s Regulation Best Interest (BI), which imposes on broker-dealers a commitment to act in the best interests of their clients. Specifically, Frankel addresses the SEC’s treatment of client waivers of the Regulation BI, which goes even further than general fiduciary law to prohibit any waiver of the broker-dealer’s conflicting interests.

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California v. Mora-Duran

Docket: C085192(Third Appellate District)

Opinion Date: February 21, 2020

Judge: William J. Murray, Jr.

Areas of Law: Constitutional Law, Criminal Law

Defendant Fidel Mora-Duran waived preliminary hearing and pleaded no contest to felony marijuana cultivation. After his plea, but before sentencing, Proposition 64 was passed, which amended Health & Saf. Code section 11358 narrowing the scope of conduct constituting felony marijuana cultivation. Defendant asked the trial court to sentence him and redesignate his conviction as a misdemeanor. The trial court refused, explaining the parties had not agreed to that. The court then rejected the plea agreement and reinstated charges. After the prosecution filed an amended information, defendant pleaded no contest to felony marijuana cultivation under section 11358(d)(3)(C), a new provision enacted as part of Proposition 64 requiring proof of additional elements. Thereafter, defendant was placed on probation for two years on the condition that he serve a period in jail that amounted to time served. On appeal, defendant contended: (1) the trial court abused its discretion in rejecting the plea agreement; (2) his conviction should have been reversed because charges were added to the amended information after a preliminary hearing was waived in violation of Penal Code section 1009; and (3) his sentence violated the prohibition on ex post facto punishment. The Court of Appeal concluded defendant’s second contention had merit: the amendment to the information, though ostensibly filed pursuant to the same statute, constituted a significant variance from the original charges. Defendant's conviction under section 11358(d)(3)(C) was reversed, and the attendant sentence was vacated. The matter was remanded for further proceedings on the other charges.

In re Amber K.

Docket: A155515(First Appellate District)

Opinion Date: February 21, 2020

Judge: Miller

Areas of Law: Criminal Law, Juvenile Law

A juvenile court found that Amber had committed felony assault by force likely to produce great bodily harm, adjudged her a ward of the court, and imposed conditions of probation. The conditions included a requirement that she submit her electronic devices to warrantless searches of any medium of communication likely to reveal whether she is complying with the conditions of her probation. The court of appeal held that the condition is appropriate but too broad to withstand scrutiny. It imposes a burden that is not proportionate to the legitimate interest it serves of ensuring that Amber does not have contact with a specific person.

People v. Lipsett

Docket: H045282(Sixth Appellate District)

Opinion Date: February 21, 2020

Judge: Nathan D. Mihara

Areas of Law: Criminal Law

Lipsett pled guilty to battery on a non-prisoner by a prisoner and admitted a prior conviction that qualified as a strike. He was sentenced to six years in prison. The court of appeal affirmed, rejecting his argument that the trial court abused its discretion and violated his constitutional rights in refusing to strike the strike, noting that Lipsett has an extensive criminal history involving violence and that this crime was violent. The court also rejected an argument that his case should be remanded for a determination of whether he qualifies for mental health diversion, Penal Code 1001.36. That section was not intended to apply retroactively to cases that have been adjudicated but are not yet final on appeal.