Business Law, Public Responsibility, and Ethics Commons^™

Expanding Mfw: Delaware Law Should Offer A Business Judgment Rule Safe Harbor For All Conflicted Controller Transactions, Alex Lindsey

Fordham Journal of Corporate & Financial Law

While courts usually defer to a board’s business decisions under the business judgment rule, courts will apply a much less deferential standard of review due to loyalty concerns if a conflicted controller is involved in a business decision such as a merger. However, in Kahn v. M & F Worldwide (“MFW”) when a squeeze out merger was challenged by a minority stockholder, the Delaware Supreme Court reviewed the transaction under the deferential business judgment rule standard because the Court found that the structure of the transaction neutralized the controller loyalty concerns. Building on this reasoning, the Court developed a checklist …

The Battle With Big Tech: Analyzing Antitrust Enforcement And Proposed Reforms, Youngjae Lee, Morgan Hagenbuch

Fordham Journal of Corporate & Financial Law

No abstract provided.

Humanity Constrains Loyalty: Fiduciary Duty, Human Rights, And The Corporate Decision Maker, Malcolm Rogge

Fordham Journal of Corporate & Financial Law

This article considers whether the values contained within the idea of human rights have normative priority over economic values as they are inscribed in shareholder-oriented interpretations of the duty of loyalty in corporate law. While stakeholder theorists have sought to expand the ambit of the fiduciary duty—arguing generally that corporate fiduciary law permits managers to take into account a broad range of stakeholder interests—this article shifts the frame of analysis: It proposes that the range of corporate fiduciary loyalty is constrained by human rights as normative values that are distinct from the strictly economic values that are given primacy in …

Shareholder Primacy And The Moral Obligations Of Directors, Mark J. Loewenstein, Jay Geyer

Fordham Journal of Corporate & Financial Law

One of the most written-about and important topics in corporate law is the fiduciary obligations of corporate directors. Increasingly, critics of American capitalism have urged that corporations, and implicitly, corporate directors, act in a more socially responsible fashion and thus eschew the notion that shareholder primacy is the exclusive guide to a director’s fiduciary duty. Under this view, directors must consider the effect of their actions on “stakeholders” other than shareholders and be guided by morality—doing the right thing—when making business judgments.

When directors move away from shareholder primacy, however, decision-making becomes more difficult and problematic. This article analyzes the …

Who Makes Esg? Understanding Stakeholders In The Esg Debate, Matthew Diller, Stephanie Betts, Lorenzo Corte, David M. Silk, Scott V. Simpson, Lisa M. Fairfax, Carmen X. W. Lu, David H. Webber, Leo E. Strine, Jr., Sean J. Griffith

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Eighteenth Annual Albert A. Destefano Lecture On Corporate, Securities, & Financial Law At The Fordham Corporate Law Center: Corwin V. Kkr Financial Holdings Llc— An “After-Action Report”, The Honorable Joseph R. Slights Iii, Matthew Diller

Fordham Journal of Corporate & Financial Law

No abstract provided.

Small Business Fintech Lending: The Need For Comprehensive Regulation, Lenore Palladino

Fordham Journal of Corporate & Financial Law

The 28.7 million small businesses in the United States—99% of all American businesses—are the backbone of the American economy. Historically, small businesses relied on community banks for their credit needs. Over the last decade, however, small businesses increasingly have turned to “fintech” lenders—nonbank lenders that are largely unregulated. Nonbank consumer lending is governed by consumer protection statutes, but nonbank small business lending is outside of any clear regulatory framework that would protect borrowers from potentially predatory practices. This Article argues that the optimal regulatory regime is a combination of both state authority over fintech lenders and inclusion of small business …

List Voting’S Travels: The Importance Of Being Independent In The Boardroom, Maria Lucia Passador

Fordham Journal of Corporate & Financial Law

The life of the law, especially with regard to corporations, is strongly influenced by experience and practice. The board, a living element of corporate law, is therefore one of the most noteworthy aspects to be studied, given its relevant implications and role as the lifeblood of scholarly debates.

This Article offers a novel contribution to the assessment of list voting, a fairly unique Italian system that has been increasingly appreciated by institutional investors. A hand-picked dataset that stretches from 2005 to 2015 shows a positive correlation between minority-appointed directors in the boardroom and dividend payouts. Furthermore, the findings shed light …

The Consumer Financial Protection Bureau: A Novel Agency Design With Familiar Issues, Thomas Arning

Fordham Journal of Corporate & Financial Law

This Note examines the structure of the Consumer Financial Protection Bureau, with a specific focus on its single-director structure. The balance of authority between agencies and the three branches of government has been a point of contention for generations, especially since the early twentieth century. This area of the law became even more contested following the financial crisis in 2008. As part of the response to the perceived abuses that led to the global recession, Congress created the Consumer Financial Protection Bureau, ultimately opting to give it a single director as opposed to a board structure. Proponents of this regime …

Decoding Smart Contracts: Technology, Legitimacy, & Legislative Uniformity, Jared Arcari

Fordham Journal of Corporate & Financial Law

Blockchain technology is increasingly permeating the everyday lives of countless people. Applications of the cutting-edge technology range from secured banking to tracking mortgage titles. A particular blockchain technology, dubbed “smart contracts,” has the potential to revolutionize how individuals and companies securely contract with each other. Smart contracts, however, are not widely employed, mainly because potential users are uncertain of their enforceability as contracts under existing state contract laws. Similar skepticism slowed the acceptance of electronic signatures in the late 1990s, but was resolved ultimately through a model uniform act recognizing electronic signatures’ effectiveness across interstate borders. This Note proposes a …

A New Standard For Governance: Reflections On Worker Representation In The United States, Julian Constain

Fordham Journal of Corporate & Financial Law

The contemporary state of corporate law in the United States is one that is skewed toward the archaic principle of shareholder primacy. This narrow conception of corporate purpose has resulted in governance mechanisms that tend to overlook the many stakeholders that are affected by, and, in turn, affect the bottom line of modern corporations. In the wake of the recently proposed Accountable Capitalism Act, this Note investigates the viability of adopting a system of mandated worker board representation—codetermination—in the United States. The Note employs a comparative analysis of the German and Swedish experiences with codetermination, and then evaluates the policy, …