Business Commons^™

Canceling Difficult Cancellation: An Analysis Of Recent Regulatory Efforts To Make Canceling Subscriptions Easier, Carter Mccants

William & Mary Business Law Review

The subscription-based economy is on the rise, and so are complaints of difficult cancellations. Companies utilize coercive and exploitative techniques, known as “dark patterns,” to trap consumers in subscription-based services. One notorious “dark pattern” is the “click-to-subscribe, call-to-cancel” scheme, whereby individuals can sign up online. But, when it comes time to cancel, many consumers often find themselves waiting on hold for hours.

In the interest of consumer welfare, subscription-based services should be as easy to cancel as they are to sign up for. Accordingly, this Note discusses the merits of recent crackdowns on cancellation barriers, including the Federal Trade Commission’s …

Death Of A Corporation: How A Seemingly Innocuous Probate Provision Can Fundamentally Undermine The Corporate Form, Kenya Jh Smith

William & Mary Business Law Review

Imagine that you are assisting the surviving shareholders and officers of a corporation in settling affairs with the estate of a deceased shareholder. In a corporate governance dispute that ensues, the estate representative uses a seemingly innocuous probate provision allowing him to “continue any business” of the deceased to petition the probate court for direct control of the corporation. You find that there is little statutory or jurisprudential guidance on coordinating that probate provision with longstanding corporate governance requirements that directors, not shareholders, directly manage corporate affairs. This Article explores the unintended consequences of allowing a misplaced but literal reading …

Political Risk Management, Omari Scott Simmons

William & Mary Law Review

The COVID-19 pandemic and social unrest have focused considerable corporate attention on political risk. The disruptions to company operations are voluminous and diverse: entertainment and hospitality industry closures, airline industry cancellations, eviction moratoriums in residential real estate, international trade interruptions, manufacturing supply shortages, employee vaccination mandates, and ride-hailing service restrictions. Enterprise risk management (ERM) is the mechanism through which boards and their respective firms can manage complex political risks. In the current business climate, more companies should emphasize and integrate political risk oversight in their ERM programs. Although neglecting political risk may not trigger legal liability from regulators or courts, …

The All Events Test In An Era Of Self-Regulation, Glenn Walberg

William & Mary Business Law Review

Accrual-method taxpayers must use the all events tests to account for rights and liabilities under contracts for sales of goods and services. These longstanding tests evolved from transactions that involved relatively straightforward exchanges of goods or services for payments, and the tests currently reflect an expectation that a taxpayer will usually make an accrual when a seller’s performance fixes the contracting parties’ respective right to and liability for payment. Business practices have changed such that many sales now occur in relationships where contracting parties assume, monitor, and enforce process-related obligations, including adoptions of codes of conduct by members of global …

Government Ownership Of Banks: A Curse Or A Blessing For The United States?, Yueh-Ping (Alex) Yang

William & Mary Business Law Review

During the Financial Crisis of 2007–2008, the Treasury injected an enormous amount of capital and held equity in 707 financial institutions to stabilize the U.S. financial system. The government’s large-scale ownership of banks alarmed the U.S. banking sector. The mainstream opinion in the United States strongly opposed this practice, mostly due to the distrust of the government and the fear that government intervention would jeopardize private shareholders’ interests. Later developments, including the Treasury’s quick exit from its holdings and the Dodd-Frank Act’s declaration of the end of bailouts, suggest that the U.S. government eventually succumbed to the mainstream opinion.

Such …

Criminal Trade Secret Theft Cases Against Judgment Proof Defendants In Texas And California, Michelle Evans, Kurt M. Saunders

William & Mary Business Law Review

Trade secret theft is a costly and ongoing risk to many businesses. As the two most populous states, California and Texas are home to numerous businesses that own trade secrets. Although civil remedies afford one source of relief when a trade secret has been stolen or disclosed, collecting on a judgment may be impossible due to the Homestead laws in both states, which effectively render the defendants judgment proof. In such cases, another alternative is to consider a criminal prosecution under the Federal Economic Espionage Act or state law. The same misconduct that results in civil liability can also violate …

Loyalty Loses Ground To Market Freedom In The U.S. Supreme Court, Daniel Harris

William & Mary Business Law Review

In the last decade, the U.S. Supreme Court has taken a much less moralistic and much more market-oriented approach to questions of fiduciary loyalty. In cases involving fiduciaries with conflicts of interest, the Court has shifted the burden of proof to the party claiming unfair treatment, thereby protecting deals and making loyalty harder to enforce. The Court has also struck down or narrowly construed laws designed to prevent disloyalty by fiduciaries on the theory that broad prohibitions on business conduct encroach on constitutionally protected freedoms.

This Article discusses how the Supreme Court’s new approach represents a departure from the Court’s …

Snapshot Of Trade Secret Developments, Elizabeth A. Rowe

William & Mary Law Review Online

As we enter the second year of the DTSA, this Article presents a snapshot of developments to assess whether there appears to be any significant doctrinal changes afoot in trade secret litigation— including civil and/or criminal—during the past year. Professors David Levine and Christopher Seaman provided some empirical data and quantitative analysis of the case filings during the first year of litigation under the DTSA (from May 2016 to May 2017). This Article complements their excellent work by taking a qualitative look at some of the substantive rulings from the following year. My assessment based on this limited sampling is …

The Value Of Insider Control, Benjamin Means

William & Mary Law Review

According to conventional wisdom, insider control of businesses is detrimental to the interests of noncontrolling investors. Family-run businesses, in particular, are seen as nepotistic and inefficient. Yet, commentators have overestimated the dangers of insider control and overlooked its potential benefits for all stakeholders. Controlling owners have a personal stake that gives them reason to identify with their business and to adopt responsible business practices capable of creating lasting value. A stewardship model of insider control helps explain the continuing vitality of family businesses as well as the success of recent public offerings by Facebook, Google, and Snapchat involving low-vote or …

Not So "Clean Diesel"-- How Germany's Protection Of Industry Risks The Health Of Its Citizens, Thomas White

William & Mary Environmental Law and Policy Review

“Clean Diesel.” This was the tagline of a significant advertising campaign that Volkswagen (“VW”) debuted in 2008. These advertisements attempted to counter the notion that diesel engines are dirty and polluted the air. It featured older women in Volkswagens discussing tales of what they knew about diesel engines (a play off the phrase “old wives tales”). At the time of airing, few could have predicted what was to come for VW and their eventual diesel engine scandal, the fallout of which is still ongoing at the time of writing this Note. As this Note will show, the myth of the …

Section 5: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

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The Early Eight And The Future Of Consumer Legal Activism To Fight Modern-Day Slavery In Corporate Supply Chains, Andrew G. Barna

William & Mary Law Review

No abstract provided.

You Can’T Stop What You Can’T See: Complementary Risk Mitigation Through Compensation Disclosure, Matt Reeder

William & Mary Business Law Review

Section 956 of the Dodd-Frank Act requires regulators to help prevent the next financial crisis by monitoring executive compensation arrangements to prevent them from becoming excessive or leading to “material financial loss.” A now-pending rule seeks to do just this. This Article argues that the rule is well-conceived inasmuch as it limits the total portion of compensation that can be based on risk-inducing incentives, ties incentive-based compensation to longer-term performance, places a ceiling on potential incentivebased earnings, provides for downward adjustment and clawbacks, prohibits many hedging behaviors, and institutionalizes governance mechanisms and oversight policies. But, by placing a number of …

The Ethics Of Representing Founders, Paul R. Tremblay

William & Mary Business Law Review

Lawyers assisting entrepreneurial startups frequently work with individual founders before any formal organizational client materializes. In advising founders about such legal matters as whether to establish an entity, and if so, which entity best fits the needs of the enterprise, as well as how to arrange the owners’ relationships within the business, the lawyer necessarily has an attorney-client relationship with someone. The prevailing scholarship about startup representation pays surprisingly little attention to the posture of the lawyer and her founder-clients in the pre-organization context. This Article investigates the lawyer’s responsibilities and commitments in depth.

A lawyer working with a solo …

Corporate Governance In An Era Of Compliance, Sean J. Griffith

William & Mary Law Review

Compliance is the new corporate governance. The compliance function is the means by which firms adapt behavior to legal, regulatory, and social norms. Formerly, this might have been conceived as a typical governance matter to be handled at the discretion of the board of directors. Compliance, however, does not fit traditional models of corporate governance. It does not come from the board of directors, state corporate law, or federal securities law. Compliance amounts instead to an internal governance structure imposed upon the firm from the outside by enforcement agents. This insight has important implications, both practical and theoretical, for corporate …

Why Now Is The Time To Statutorily Ban Insider Trading Under The Equality Of Access Theory, Bruce W. Klaw

William & Mary Business Law Review

This Article makes the case for a new U.S. statutory provision that defines and prohibits insider trading under an “equality of access” theory. It supports this claim, and contributes to the important public dialogue concerning this prevalent practice, by highlighting the moral and legal gaps in existing U.S. law that result from understanding the harms of trading on the basis of material nonpublic information solely with reference to fiduciary breach or misappropriation, as evidenced by the recent cases of United States v. Newman and United States v. Salman. It weaves legal analysis together with current literature in business ethics, moral …

Let's Make A Deal! Business Succession Planning, John M. Olivieri, Stefan F. Tucker

William & Mary Annual Tax Conference

No abstract provided.

Section 4: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

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A Concept-Sensitive Managerial Analysis With Law: Applying A Business Concept To A Legal Rule To Identify The Domain Of Business Situations, James E. Holloway

William & Mary Business Law Review

The traditional fact-sensitive managerial analysis with law analyzes business situations to identify legal issues and applies legal rules to facts to make judicial decisions. The fact-sensitive managerial analysis takes decades to identify a family of business situations and lacks the analytical capacity to use business knowledge (concepts) and analytical methods to identify business situations. Alternatively, a concept-sensitive managerial analysis with law increases factual sensitivity by applying a business concept to a legal rule to shorten the duration of identifying an extensive family of business situations. All situations are not useful or effective when making business decisions or managing a business. …

The Federal Common Law Of Successor Liability And The Foreign Corrupt Practices Act, Taylor J. Phillips

William & Mary Business Law Review

In recent years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have vigorously enforced the Foreign Corrupt Practices Act (FCPA). The FCPA prohibits bribery of foreign government officials, and the statute provides for significant civil and criminal sanctions. Settling and remediating violations can cost corporate defendants millions, with several corporate enforcement actions exceeding $100 million in sanctions. Moreover, enforcement actions related to the FCPA often are not brought until many years after the alleged violations.

Because the massive potential liabilities associated with an FCPA violation may not manifest themselves until years after the violation occurred, prospective …

Section 4: Business, Institute Of Bill Of Rights Law, William & Mary Law School

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Broker-Dealers, Institutional Investors, And Fiduciary Duty: Much Ado About Nothing?, Lynn Bai

William & Mary Business Law Review

Under the mandate of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the SEC is soliciting public opinions on whether broker-dealers should be subject to a fiduciary duty when advising retail and institutional investors. This Article focuses on the advisability of such a proposal for institutional investors. It shows that, first, a fiduciary duty could potentially enhance broker-dealers’ standard of conduct for only a subset of institutional investors who are well capitalized, capable of assessing risks independently, and acknowledge in writing their nonreliance on broker-dealers’ advice. Thus, the benefit of fiduciary duty is much narrower than what …

A Corporation Has No Soul — The Business Entity Law Response To Challenges To The Ppaca Contraceptive Mandate, Thomas E. Rutledge

William & Mary Business Law Review

The most contentious matter in the implementation of the Patient Protection and Affordable Care Act is not one of health care, but rather one of the law of business organizations. Numerous for-profit business organizations have challenged the portion of the PPACA and its related regulations requiring that group health insurance plans provide, on a no-cost sharing basis, coverage for a variety of procedures and prescription medicines involving contraception and what some describe as “abortificants.” In these suits, the various business ventures and their owners assert that they should be exempt from the requirement of the mandate on the basis that, …

Section 4: Business, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Law And Entrepreneurial Opportunities, D. Gordon Smith, Darian M. Ibrahim

Faculty Publications

No abstract provided.

The Constitution, The Roberts Court, And Business: The Significant Business Impact Of The 2011-2012 Supreme Court Term, Corey Ciocchetti

William & Mary Business Law Review

The 2011–2012 Supreme Court Term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the Term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors, as well as civil procedure disputes involving qualified immunity for witnesses in grand jury proceedings and private parties assisting the government in litigation. The Justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a passport. …

To Believe In Black Stars Or Red Dragons?: Comparing The Foreign Direct Investment Climates Of Ghana And China, Theodore W. Briscoe Iii

William & Mary Business Law Review

When thinking of overseas business expansion, most think of China. This is for good reason: China commands a lion’s share of foreign direct investment money. It would shock readers to know that there are destinations that are far more suitable for overseas investment than China. It would shock readers even more to know that one of these destinations is in sub-Saharan Africa.

Ghana—the Black Star country—has quietly put together a legal regime that is extremely attractive for foreign direct investment. When comparing Ghana’s foreign investment policies to China’s, Ghana’s policies are indisputably more favorable to foreign investors. Ghana offers more …

Section 5: Business, Institute Of Bill Of Rights Law, William & Mary Law School

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Business Courts And Interstate Competition, John F. Coyle

William & Mary Law Review

Over the past two decades, specialized trial courts that hear business disputes primarily or exclusively have been established in nineteen states. To explain the recent surge of interest in these courts, policymakers and scholars alike have cited the process of interstate competition. Specifically, these commentators have argued that business courts serve, among other purposes, to attract out-of-state companies to expand their business, reincorporate, or litigate disputes in the jurisdiction that created the business court.

This Article critically evaluates each of these theories. It argues first that business courts do not serve to attract companies from other states because business expansion …

Section 5: Business, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.