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Articles 1 - 30 of 130
Full-Text Articles in Law
What Covid-19 Retail Bankruptcies Can Teach Us About Intellectual Property In A Post-Pandemic World, Brenna Arbuckle
What Covid-19 Retail Bankruptcies Can Teach Us About Intellectual Property In A Post-Pandemic World, Brenna Arbuckle
The Journal of Business, Entrepreneurship & the Law
Both IP and bankruptcy laws are quite complex. With that in mind, this comment will narrowly focus on what retail bankruptcies amid COVID-19 can teach us about the value of IP, particularly trademarks and trade secrets, post-pandemic. Part II of this comment explores the relevant legal background, in particular IP and bankruptcy laws. Part III provides context regarding the retail industry and delves into relevant pre-pandemic trends. Further, Part IV discusses the impact of COVID-19 on the retail industry, particularly on consumer behaviors and bankruptcy bids. Part IV details lessons from such bankruptcies and the possible impacts on the industry …
Toward An Enhanced Level Of Corporate Governance: Tech Committees As A Game Changer For The Board Of Directors, Maria Lillà Montagnani, Maria Lucia Passador
Toward An Enhanced Level Of Corporate Governance: Tech Committees As A Game Changer For The Board Of Directors, Maria Lillà Montagnani, Maria Lucia Passador
The Journal of Business, Entrepreneurship & the Law
Although tech committees are increasingly being included in the functioning of the board of directors, a gap exists in the current literature on board committees, as it tends to focus on traditional board committees, such as nominating, auditing or remuneration ones. Therefore, this article performs an empirical analysis of tech committees adopted by North American and European listed companies in 2019 in terms of their composition, characteristics and functions. The aim of the study is to understand what “technology” really stands for in the “tech committees” label within the board, or – to phrase it differently – to ascertain what …
Shareholder Activism & Departure From Board Centrism: Beware Of Federal Government’S Intervention, Artur Aziev
Shareholder Activism & Departure From Board Centrism: Beware Of Federal Government’S Intervention, Artur Aziev
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
A Gilti Fix For An Employment Tax Glitch, Richard Winchester
A Gilti Fix For An Employment Tax Glitch, Richard Winchester
Pepperdine Law Review
Self-employed individuals who operate through a business entity can often dictate how much employment tax they pay, if any. That’s because the rules permit them to control whether their earnings count as labor income – which is subject to employment tax – or the returns on any capital invested in their business – which is not subject to the tax. The GILTI rules enacted as part of the 2017 Tax Act assume that capital investments generally earn a 10 percent annual rate of return. That same assumption can be used to allocate the earnings of a self-employed individual between the …
Human Rights Incorporated, Not Everyone Agrees, Dana Johnston
Human Rights Incorporated, Not Everyone Agrees, Dana Johnston
The Journal of Business, Entrepreneurship & the Law
There is a massive gap between the operations of businesses and the fundamental human rights of the workers and people impacted by the businesses. This has become apparent in the multiple major cases of abuse that have occurred in recent history. Businesses should be looking to hold their operations to high human rights requirements. Companies should be required to respect all human rights and not pick and choose which rights to deal with or which rights are easy for them to handle. Businesses have the ability to negatively or positively impact all human rights issues including, health and safety, freedom …
Ministries Of Truth: Free Speech And The Tech Giants, Clayton Calvin
Ministries Of Truth: Free Speech And The Tech Giants, Clayton Calvin
The Journal of Business, Entrepreneurship & the Law
As the tech giants’ influence has grown, they have increasingly become arbiters of truth. This comment explores three methods for lessening their authority over digital speech. Antitrust, adjustment of the companies’ “neutral platform” status, and even creative use of First Amendment could each serve its role. At the same time, the First Amendment rights of the companies themselves pose a barrier, justifiably, to each method. To remain true to its founding ideals, America must lessen this private grip on civic discourse without expanding the government’s dominion over it.
Gender Diversity In Corporate Boardrooms: Do Equal Seats Mean Equal Voices?, Nicolena Farias-Eisner
Gender Diversity In Corporate Boardrooms: Do Equal Seats Mean Equal Voices?, Nicolena Farias-Eisner
The Journal of Business, Entrepreneurship & the Law
This paper will first trace the history and evolution of gender diversity on boards. It then will assess why the growing trend toward greater gender diversity has become prevalent in recent years and the effects of this trend. Third, the paper will address the social impacts that increasing gender diversity on boards will place on companies. Lastly, this paper will conclude by discussing and suggesting policy implications that would enhance boardroom gender diversity and ultimately achieve gender equality.
The Social Costs Of Dividends And Share Repurchases, J.B. Heaton
The Social Costs Of Dividends And Share Repurchases, J.B. Heaton
The Journal of Business, Entrepreneurship & the Law
A long-held view in the academy is that shareholders are "residual claimants” in the sense that shareholders are paid in full only after the corporation pays its creditors. The reality on the ground is far different. Corporations give assets away to their shareholders long before they have satisfied creditors, both voluntary contract creditors and involuntary tort creditors. In particular, existing U.S. corporate and voidable transfer laws allow corporations to pay dividends and make share repurchases up to the point where the corporation is insolvent or nearly so. Voluntary creditors can limit dividends and share repurchases by contract, but involuntary creditors …
Crashing The Boards: A Comparative Analysis Of The Boxing Out Of Women On Boards In The United States And Canada, Diana C. Nicholls Mutter
Crashing The Boards: A Comparative Analysis Of The Boxing Out Of Women On Boards In The United States And Canada, Diana C. Nicholls Mutter
The Journal of Business, Entrepreneurship & the Law
This paper will first provide a critical, comparative look at the Canadian and the federal American responses to the under-representation of women on boards of large, publicly traded corporations. There will be a discussion about the competing conceptions which emerge in addressing the regulation of women on boards in the United States and Canada and why each jurisdiction implemented its policy when it did. The conceptions arising out of questions about under-representation of women on boards tend to fall within two categories: business case rationales and normative rationales. Given the competing conceptions of this issue, this paper will attempt to …
Behavioural Economics And The Non-Frustration Rule: Accounting For Bias, Matthew Cole
Behavioural Economics And The Non-Frustration Rule: Accounting For Bias, Matthew Cole
The Journal of Business, Entrepreneurship & the Law
The purpose of this paper is to argue how reforming the UK takeover and merger rules can lead to greater long-term investment by UK firms, while causing commensurate growth in productivity without hindering overseas investment or entrenching inefficient management.
Getting What You Bargained For: Avoiding Legal Uncertainty In Survival Clauses For A Seller's Representations And Warranties In M&A Purchase Agreements, Will Pugh
The Journal of Business, Entrepreneurship & the Law
This note will examine the variables that effect the way that courts may limit parties’ contractual freedom to shorten or lengthen statutes of limitation. It will describe the legal levers that determine the applicable survival period and suggest ways that parties can reduce legal uncertainty around the “basket” of provisions including reps, warranties, survival, and indemnification periods. One key detail examined by this note is “borrowing statutes ”that could operate to import another state’s controlling statute. Additionally, this note will discuss ways in which the contractual right to indemnification for breached reps and warranties is a substantive right that is …
"Flaw-Backs:" Executive Compensation Clawbacks And Their Costly Flaw, Connor Douglas Maag
"Flaw-Backs:" Executive Compensation Clawbacks And Their Costly Flaw, Connor Douglas Maag
The Journal of Business, Entrepreneurship & the Law
Saving money should not be expensive. Compensation “clawbacks” are a legal mechanism for companies to reclaim employee compensation, but the legislative framework is complex and disorganized. There are four primary federal claw-back provisions: Sarbanes-Oxley § 304, Dodd-Frank § 954, 12 U.S.C.A. § 5221(TARP), and Dodd-Frank § 956—as well as voluntary contractual clawback policies. This comment untangles the web of clawback legislation by overlaying each clawback mechanism to extract a single, clear, and concise description of executive compensation clawbacks, called the “Comprehensive Clawback Coverage.” The Comprehensive Clawback Coverage reveals a major flaw in the legal and regulatory framework: clawbacks increase agency …
Failed Anti-Activist Legislation: The Curious Case Of The Brokaw Act, Alon Brav, J.B. Heaton, Jonathan Zandberg
Failed Anti-Activist Legislation: The Curious Case Of The Brokaw Act, Alon Brav, J.B. Heaton, Jonathan Zandberg
The Journal of Business, Entrepreneurship & the Law
The Brokaw Act was proposed legislation aimed at “financial abuses being carried out by activist hedge funds who promote short-term gains at the expense of long-term growth . . . .” Sponsoring Senators named it after a small town in Wisconsin that, according to the Act’s sponsors, was decimated by the actions of a hedge fund activist in shutting down the local paper mill with a loss of hundreds of jobs. The Brokaw Act represented the first attempt at federal legislation aimed at restricting hedge fund activism. Since then, new and similar bipartisan proposals have appeared as have threats of …
Holding U.S. Corporations Accountable: Toward A Convergence Of U.S. International Tax Policy And International Human Rights, Jacqueline Laínez Flanagan
Holding U.S. Corporations Accountable: Toward A Convergence Of U.S. International Tax Policy And International Human Rights, Jacqueline Laínez Flanagan
Pepperdine Law Review
International human rights litigation underscores the inverse relationship between corporate power and corporate accountability, with recent Supreme Court decisions demonstrating increased judicial protections of corporate rights and decreased corporate accountability. This article explores these recent decisions through a tax justice framework and argues that the convergence of international human rights law and U.S. international tax policy affords alternate methods to hold corporations accountable for violations of international law norms. This article specifically proposes higher scrutiny of foreign tax credits and an anti-deferral regime targeting the international activity of U.S. corporations that use subsidiaries to shelter income and decrease taxation while …
Entire Fairness: A Call To Preserve Delaware Doctrine, Lisa Bei Li
Entire Fairness: A Call To Preserve Delaware Doctrine, Lisa Bei Li
The Journal of Business, Entrepreneurship & the Law
Appraisal arbitrage is on the rise. Institutional investors—namely, hedge funds—buy into target companies after their merger announcements and bet on the price. By purposely taking a minority position, these funds proceed to courts to obtain what they otherwise could not in the market: a “fair value.” Where there is no allegation of wrongdoing or injury, these plaintiffs nonetheless successfully divert deal value away from business combinations. Based on a misunderstood statute, appraisal arbitrage has exploded into a multi-billion dollar industry for large fund investors. In June 2016, amid growing concerns, the Delaware General Assembly amended section 262, Delaware’s appraisal statute. …
To Be Creditor Or To Be Shareholder, That Is The Question: Is The Debt-For-Equity Swap Creditors’ Financial Suicide?, Jongho Kim
The Journal of Business, Entrepreneurship & the Law
This Article deals with debt-for-equity swap-related issues in Korean corporate restructuring procedures. Debt-for-equity swaps were widely employed during the Latin American foreign debt restructuring process, but the Korean case is slightly different. Because the creditors of reorganizing corporations are mainly Korean domestic financial institutions rather than foreign creditors, this type of financial scheme is applied under local law. The following examines the legal aspects of debt-for-equity swaps, which have been promoted as a way to eliminate excessive insolvent loans and financial debts (and stood in the way of restructuring, via IMF bail-out funds). It also discusses how a debt-for-equity swap …
Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner
Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner
Pepperdine Dispute Resolution Law Journal
No abstract provided.
To Be A "Whistleblower," Or Not To Be A "Whistleblower? " That Is The Question-Whether 'Tis Nobler In The Mind Of The Courts To Suffer For Reporting Wrongdoing To The Sec Or Employers Internally: Examining The Recent Circuit Split Regarding The Definition Of A Whistleblower Under Dodd-Frank, Luke I. Landers
The Journal of Business, Entrepreneurship & the Law
Under the current state of the law, the circuit courts are split over whether an employee must report corporate wrongdoing directly to the Securities and Exchange Commission (SEC), or report wrongdoing to a company’s management in order to receive whistleblower protection under Dodd–Frank. The resolution of this circuit split not only will have implications for American employees caught in situations similar to the fiction above, but also will provide a prime opportunity for the Supreme Court to clarify how courts are to understand the interpretive and deferential relationship between the language of legislative statutes and their corresponding bureaucratic regulations. In …
Clarifying The Original Clawback: Interpreting Sarbanes-Oxley Section 304 Through The Lens Of Dodd-Frank Section 954, J. Royce Fichtner, Patrick Heaston, Lou Ann Simpson
Clarifying The Original Clawback: Interpreting Sarbanes-Oxley Section 304 Through The Lens Of Dodd-Frank Section 954, J. Royce Fichtner, Patrick Heaston, Lou Ann Simpson
The Journal of Business, Entrepreneurship & the Law
In the early 2000s, major accounting scandals involving reporting violations and audit failures sent the United States financial markets into turmoil. Congress and President George W. Bush reacted to the controversy by passing the Public Company Accounting Reform and Investor Protection Act, better known as the Sarbanes–Oxley Act (SOX), in July of 2002. Section 304 created an explicit procedure, whereby the SEC could disgorge or clawback a CEO or CFO’s incentive-based compensation or stock gains when such profits were based on inflated financial statements later required to be restated to reflect the company’s true financial position. When the stock market …
Burwell V. Hobby Lobby Stores, Inc.: Creating Power For Corporations At The Cost Of Changing Women’S Lives, Tara Zabehi
Burwell V. Hobby Lobby Stores, Inc.: Creating Power For Corporations At The Cost Of Changing Women’S Lives, Tara Zabehi
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Disrupting Immigration: How Administrative Rulemaking Could Transform The Landscape For Immigrant Entrepreneurs, Tess Douglas
Disrupting Immigration: How Administrative Rulemaking Could Transform The Landscape For Immigrant Entrepreneurs, Tess Douglas
Pepperdine Law Review
Immigrant entrepreneurs come to the United States and start thriving companies that create jobs, drive the economy, and facilitate innovation. However, U.S. laws do not provide a clear path for immigrant entrepreneurs to lawfully enter and work in America. Therefore, immigrant entrepreneurs must seek lawful status in the United States through unusual routes. While Congress, the President, and the United States Citizenship and Immigration Services (USCIS) recognize the need for clear and accessible immigration standards for immigrant entrepreneurs, the politicized nature of immigration law has impeded significant change. This Comment details how administrative rules could offer a less politicized and …
Credit Default Swaps And The Empty Creditor Hypothesis—If It Ain’T Broke, Don’T Fix It, Florian Gamper
Credit Default Swaps And The Empty Creditor Hypothesis—If It Ain’T Broke, Don’T Fix It, Florian Gamper
The Journal of Business, Entrepreneurship & the Law
An empty creditor is a creditor who, through the use of derivatives, especially credit default swaps (CDSs), takes a position where she retains the legal rights of a creditor but has little or no economic exposure to a borrower. Thus far, the debate on empty creditors has focused mainly on how the law should react to the perceived problem of empty creditors. The debate also covers the prominent argument that empty creditors violate the underlying corporate law assumption that creditors and shareholders hold their legal rights in proportion to their economic exposure to a company. This article argues that the …
The Trademark As A Novel Innovation Index, Brian J. Focarino
The Trademark As A Novel Innovation Index, Brian J. Focarino
The Journal of Business, Entrepreneurship & the Law
When studying the relationship that exists between entrepreneurship and intellectual property, patents receive the most scholarly attention. The attention makes sense when we consider that patents are closely associated with technical progress, grant temporary monopolies that incentivize investment in research & development (R&D), and function as vectors of technological dissemination in and of themselves. In a number of industries however, conventional forms of innovation often associated with patenting are minimal or missing altogether, and require us to look elsewhere to discern innovative behavior. This Essay highlights novel applications for trademark law to entrepreneurial activity in low-technology industries and low-financing locations …
Poison Pills: Recent Negative Economic Effects Justify Repealing The Related Legislation And Increasing Shareholder Ownership Rights, Wilton Robinson
Poison Pills: Recent Negative Economic Effects Justify Repealing The Related Legislation And Increasing Shareholder Ownership Rights, Wilton Robinson
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Whistling In Silence: The Implications Of Arbitration On Qui Tam Claims Under The False Claims Act, Mathew Andrews
Whistling In Silence: The Implications Of Arbitration On Qui Tam Claims Under The False Claims Act, Mathew Andrews
Pepperdine Dispute Resolution Law Journal
For nearly twenty years, corporate defendants have sought unsuccessfully to use arbitration to roll back protections for whistleblowers suing under federal law. The state and federal judiciaries have long stymied these efforts, on the grounds that defendants cannot force the Government's claims into the secretive forum of arbitration. In January 2013, this protection came to an end. A federal court ruled for the first time that a whistleblower suing on behalf of the United States must pursue its action in arbitration. Five months later, this trend continued as federal courts have compelled arbitration of state law qui tam actions. This …
Foreign Corrupt Practices Act: Pleading ParentSubsidiary Liability, Alexander Avery
Foreign Corrupt Practices Act: Pleading ParentSubsidiary Liability, Alexander Avery
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
How Entrepreneurs Can Crowdfund Renewable Energy Projects, Adrian Chiang
How Entrepreneurs Can Crowdfund Renewable Energy Projects, Adrian Chiang
The Journal of Business, Entrepreneurship & the Law
This Article explains how the entrepreneurial efforts and the upcoming changes in crowdfunding law will allow for more successful renewable energy projects in the United States. Part II examines the renewable energy market, its relevance, and the United States' transition from traditional non-renewable energy production to renewable energy production. Part III covers the general methods of energy financing from both public and private sources and how they have been utilized in typical energy financing structures. Part IV explains how an entrepreneur, utilizing the new rules on crowdfunding, can address the existing deficiencies in financing renewable energy projects. Part V explores …
The Family Llc: A New Approach To Insuring Dynastic Wealth, Evan Michael Purcell
The Family Llc: A New Approach To Insuring Dynastic Wealth, Evan Michael Purcell
The Journal of Business, Entrepreneurship & the Law
This Article introduces the taxpayer to the basic background principles needed to understand the inner workings of the investment, then provides a guide to drafting considerations for the family's attorney, and concludes with a general plan to maintain business legitimacy and take advantage of tax-favored status, while retaining the flexibility essential to combating the unexpected. Part II addresses the historically favored tax treatment of life insurance products, as well as relatively recent restrictive reforms. Part III addresses the background foundation of the LLC entity and surveys its skeletal structure. Part IV introduces a practical example of how to create an …
“Because That's Where The Money Is”: A Theory Of Corporate Legal Compliance, William C. Bradford
“Because That's Where The Money Is”: A Theory Of Corporate Legal Compliance, William C. Bradford
The Journal of Business, Entrepreneurship & the Law
The study and regulation of firms per se as agents of compliance may be misguided. Firms are abstractions that exist only in the legal, and not the natural, sense, and, as such, utterly lack decisional capacity. Firms do not decide whether to comply with law; people, specifically officers who exercise decisional authority on their behalf, do. Any theory that would explain or predict firm compliance must account for the individual level of analysis. However, most corporate legal compliance research minimizes the salience of personality. Accordingly, Part II traces associations between personalities of CEOs and firm compliance with obligations arising under …
The Ipo Crisis: Title I Of The Jobs Act And Why It Does Not Go Far Enough, Brian Howaniec
The Ipo Crisis: Title I Of The Jobs Act And Why It Does Not Go Far Enough, Brian Howaniec
Pepperdine Law Review
This Comment explores the brewing controversy over Title I and assesses the actual impact that it is having (and will have) on investor protection and the IPO market. This Comment argues that Title I has the ability to affect both, but, due to factors outside of Congress's control, will likely have only a minimal effect on either. Part II discusses the objectives of investor protection legislation and how previous legislation regulated the financial markets. Part III explains how these regulations have been changed for emerging growth companies under Title I. Part IV examines what impact Title I will have on …