Law Commons^™

Editor's Observations: The Sarbanes-Oxley Act And What Came After, Frank O. Bowman Iii

Faculty Publications

On December 2, 2001, the Enron Corporation filed the largest bankruptcy petition in U.S. history. Losses to investors, creditors, employees, and pensioners were in the billions. Criminal investigations are ongoing. On May 1, 2003, the U.S. Sentencing Commission passed a set of amendments to the U.S. Sentencing Guidelines that will, among other things, prevent a federal district judge from awarding a sentence of straight probation to a defendant convicted at trial of an $11,000 mail fraud. This Issue of FSR tells the story of how the first of these apparently unrelated events led to the second. Put another way, this …

Creditors' Ball: The "New" New Corporate Governance In Chapter 11, David A. Skeel Jr.

All Faculty Scholarship

In the 1980s and early 1990s, many observers believed that the American corporate bankruptcy laws were desperately inefficient. The managers of the debtor stayed in control as "debtor in possession" after filing for bankruptcy, and they had the exclusive right to propose a reorganization plan for at least the first four months of the case, and often far longer. The result was lengthy cases, deteriorating value and numerous academic proposals to replace Chapter 11 with an alternative regime. In the early years of the new millennium, bankruptcy could not look more different. Cases proceed much more quickly, and they are …

Reforming The Japanese Commercial Code: A Step Towards An American-Style Executive Officer System In Japan?, Matthew Senechal

Washington International Law Journal

After more than a decade of attempting to remedy failing banks, rising unemployment, and a shrinking economy, Japan has taken a new approach to economic reform. With the hope of improving corporate profits and international competitiveness, the Japanese Diet passed legislation in May 2002 amending the Commercial Code to allow corporations to adopt an American-style executive officer system. The amendment establishes a workable new framework for more effective corporate governance in Japan and serves as an important early step in what promises to be a long road to reform. These benefits notwithstanding, its impact will be limited by the Amendment's …

Racial Stereotypes, Broadcast Corporations, And The Business Judgment Rule, Leonard M. Baynes

University of Richmond Law Review

No abstract provided.

Reforming The Japanese Commercial Code: A Step Towards An American-Style Executive Officer System In Japan?, Matthew Senechal

Washington International Law Journal

After more than a decade of attempting to remedy failing banks, rising unemployment, and a shrinking economy, Japan has taken a new approach to economic reform. With the hope of improving corporate profits and international competitiveness, the Japanese Diet passed legislation in May 2002 amending the Commercial Code to allow corporations to adopt an American-style executive officer system. The amendment establishes a workable new framework for more effective corporate governance in Japan and serves as an important early step in what promises to be a long road to reform. These benefits notwithstanding, its impact will be limited by the Amendment's …

Business Litigation And Cyberspace: Will Cyber Courts Prove An Effective Tool For Luring High-Tech Business Into Forum States?, Jacob A. Sommer

Vanderbilt Law Review

From beginning to end businesses are wed to the law. The life of a corporation typically begins with the filing of articles of incorporation with the secretary of state' and ends with either a merger into another corporation or dissolution. At every point in a corporation's life cycle, the American legal system places its imprimatur on the corporation's activities and governance. Inevitably, because of the sophisticated nature of business and frequent encounters with the law, businesses become engaged in their fair share of litigation and must resort to the judicial system for resolution.

Business, especially high-tech business, moves very quickly, …

The Director's Fiduciary Obligations: A Fresh Look?, Pearlie Koh

Research Collection Yong Pung How School Of Law

It is a pillar of equity that a person in a fiduciary position must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict (per Lord Upjohn in Phipps v. Boardman [1967] 2 A.C. 46, 123). The House of Lords in Regal (Hastings) v. Gulliver [1942] 1 All E.R. 378 demonstrated the unrelenting nature, and some have argued inequitable severity (see, e.g., Jones, (1968) 84 L.Q.R. 472), of the director-fiduciary’s obligations to his company. Such absolutism (Lowry …

Manual De Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

High Drama And Hindsight: The Llp Shield Post-Anderson, Susan Saab Fortney

Faculty Scholarship

This article explores several disadvantages associated with limited liability partnerships (LLPs) in the wake of the Anderson-Enron debacle. The article explains how conversion to LLP from a traditional partnership may undercut the incentive for partners to devote time and resources to monitoring and risk management activities. Additionally, the article notes that conflicts may arise regarding the payment of debts when a firm, without sufficient malpractice insurance, converts to an LLP. The article delves into the exodus problem caused by the lack of partners’ commitment to the firm. The article also describes the tension between partners over malpractice insurance decisions that …

Corporate Governance Issues, Peter Peterson, John Foster, Jeffrey M. Colon, William Treanor

Fordham Journal of Corporate & Financial Law

No abstract provided.

A Tangled Web: Compliance Director Liability Under The Securities Laws, Anthony Pirraglia

Fordham Journal of Corporate & Financial Law

No abstract provided.

Information Privacy And Internet Company Insolvencies: When A Business Fails, Does Divesture Or Bankruptcy Better Protect The Consumer?, Farah Z. Usmani

Fordham Journal of Corporate & Financial Law

No abstract provided.

Proposals For Insider Trading Regulation After The Fall Of The House Of Enron, James P. Jalil

Fordham Journal of Corporate & Financial Law

No abstract provided.

To Shred Or Not To Shred: Document Retention Policies And Federal Obstruction Of Justice Statutes, Christopher R. Chase

Fordham Journal of Corporate & Financial Law

No abstract provided.

In Employers We Trust The Federal Right Of Contribution Under Internal Revenue Code Section 6672, Kenneth Ryesky

Fordham Journal of Corporate & Financial Law

No abstract provided.

Disclosure Of The Irrelevant? –Impact Of The Sec’S Final Proxy Voting Disclosure Rules, Brian D. Stewart

Fordham Journal of Corporate & Financial Law

No abstract provided.

The New Mandate Of The Corporate Lawyer After The Fall Of Enron And The Enactment Of The Sarbanes-Oxley Act, Christina R. Salem

Fordham Journal of Corporate & Financial Law

No abstract provided.

International Insolvency And Environmental Obligations: A Preclude To Resolving The Conflicting Policies Of A Clean Slate Versus A Clean Site In Transnational Bankruptcies, David Neiman

Fordham Journal of Corporate & Financial Law

No abstract provided.

Regulating Corporations: Who's Making The Rules, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Should Congress Repeal Securities Class Action Reform?, Adam C. Pritchard

Other Publications

The Private Securities Litigation Reform Act of 1995 was designed to curtail class action lawsuits by the plaintiffs’ bar. In particular, the high-technology industry, accountants, and investment bankers thought that they had been unjustly victimized by class action lawsuits based on little more than declines in a company’s stock price. Prior to 1995, the plaintiffs’ bar had free rein to use the discovery process to troll for evidence to support its claims. Moreover, the high costs of litigation were a powerful weapon with which to coerce companies to settle claims. The plaintiffs’ bar and its allies in Congress have called …

Beyond The Business Judgment Rule: Protecting Bidder Firm Shareholders From Value-Reducing Acquisitions, Ryan Houseal

University of Michigan Journal of Law Reform

During the takeover transactions of the 1980s, bidder firms paid target firm shareholders average premiums of approximately 50% for their shares. Did the sizable premiums paid to target firm shareholders during the 1980s reflect post-takeover improvement in the target's performance? Or were the premiums a result of the mismanagement of the bidder firms' assets?

The answer will help determine whether additional legal mechanisms should be established to protect bidder firm shareholders from the threat of management's consummation of value reducing acquisitions. Accordingly, this Note examines various studies which attempt to identify the source of the premiums paid to target firm …

Allocation And Reallocation In Accordance With The Partners' Interests In The Partnership, Stephen Utz

Faculty Articles and Papers

If a partnership agreement either fails to allocate an item of partnership income, gain, deduction, credit, or loss, or does so invalidly, section 704(b) requires the item to be allocated in accordance with the partners' interests in the partnership (PIP). A brief portion of the section 704(b) regulations interpret this reallocation standard, providing guidelines of varying specificity. Commentators agree that the guidelines are vague and puzzling. The courts have not often had to apply this portion of the regulation. However, in the event that the courts do employ section 704(b), they have assigned an implicit priority to the different guidelines, …

Business Law Reform In South Africa: The Right Path, The Right Reason, Allan W. Vestal

Kentucky Law Journal

No abstract provided.

Red Owl's Legacy, Gregory M. Duhl

Faculty Scholarship

In the early 1960s, Joseph Hoffman, a high school graduate, baker and father of seven, sought to obtain a Red Owl grocery store franchise in Wisconsin. He entered into negotiations with Red Owl Stores, Inc. after the franchisor assured him that the $18,000 he had to invest in the franchise was sufficient. Over the course of the negotiations, Red Owl encouraged Hoffman to sell his bakery, buy a small grocery store to gain experience in the grocery business, sell his grocery store three months later, and move his family to the desired location for his Red Owl franchise. The negotiations …

So, You Want To Be A Partner At Sidley & Austin?, Rafael Gely, Leonard Bierman

Faculty Publications

One of the effects of the “industrialization” of professional organizations has been a shift in the business forms that these organizations adopt. Some organizations have shifted from partnership associations into professional corporations. Other organizations have remained partnerships in form, but have significantly restructured the roles of partners.

Bring On 'Da Noise: The Sec's Proposals Concerning Professional Conduct For Attorneys Under Sarbanes-Oxley, Marilyn Blumberg Cane, Sarah Smith Kelleher

Faculty Scholarship

In the wake of Enron's and numerous other corporate scandals, Congress enacted the Sarbanes-Oxley Act, which empowered the Securities and Exchange Commission (the Commission) to establish rules of professional conduct for attorneys who appear before it. In November 2002, the Commission released a proposal where attorneys would be required to report perceived violations of corporate governance and Commission rules up-the-ladder. Additionally, if the company failed to make an appropriate response, the attorney would be required to make a noisy withdrawal. After an onslaught of comments against the proposal, the Commission issued an alternative proposal for comment.

Under the alternative rule, …

The Provisional Director Remedy For Corporate Deadlock: A Proposed Model Statute, Susanna Ripken

Susanna K. Ripken

The article discusses a unique remedy for shareholder and director deadlock within corporations: the appointment of provisional directors to corporate boards. Provisional directors are neutral third parties who are appointed by courts to act temporarily as tie-breaking directors in corporations paralyzed by deadlock. Provisional directors possess the same rights and powers of ordinary directors to vote at meetings. The provisional director remedy is a valuable dispute resolution mechanism that shares similarities with other alternative forms of dispute resolution, including arbitration, mediation, and a hybrid form called mediation-arbitration.

The appointment of a provisional director raises concerns about both the autonomy rights …

Responsabilidad Civil Ante Las Pérdidas Por Gestión En Los Fondos Comunes De Inversión, Martin Paolantonio

Martin Paolantonio

Nota crítica al primer fallo que resolvió asignar responsabilidad a los órganos del fondo común de inversión ante resultados negativos de la gestión

O Direito Da Empresa No Novo Código Civil, Cássio Cavalli

Cássio Cavalli

Este artigo é o resultado dos meus primeiros esforços na investigação do tema da empresa. Seu objeto é a teoria da empresa, notadamente no que respeita à evolução histórica do tema e à teoria dos perfis da empresa.

Premiums In Stock-For-Stock Mergers And Some Consequences In The Law Of Director Fiduciary Duties, Lawrence A. Hamermesh

Lawrence A. Hamermesh

No abstract provided.