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Full-Text Articles in Law

The Compliance Process, Veronica Root Martinez Aug 2019

The Compliance Process, Veronica Root Martinez

Veronica Root

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of ...


Domestic Asset Protection Trusts: Ushering In The Klackaba Era, Cheyenne Vankirk Aug 2019

Domestic Asset Protection Trusts: Ushering In The Klackaba Era, Cheyenne Vankirk

Seattle University Law Review

The growth in the U.S. economy has allowed Americans to increase their savings--but how? A novel approach has emerged in seventeen states: domestic asset product trusts (DAPTs). DAPTs are self-settled spindthrift trusts that allow the settlor to retain a beneficial interest in the trust while removing it from the reach of future creditors. Through the lens of the favorable ruling in Klackaba v. Nelson, this Note addresses why DAPTs should be regarded as an effective method of protecting a settlor’s money and argue for more states to follow suit.


Measuring Regulation: A Labor Task-Based Approach, Michael Simkovic, Miao Ben Zhang Aug 2019

Measuring Regulation: A Labor Task-Based Approach, Michael Simkovic, Miao Ben Zhang

University of Southern California Legal Studies Working Paper Series

This paper uses occupational employment and wage data for over 270 industries from 1990 to 2017 to estimate the percentage of an industry's annual labor spending on performing regulation-related tasks. We hypothesize that this measure reflects the intensity of regulations that incentivize firm spending on compliance to avoid legal liability or regulatory sanctions. We study the sensitivity of this measure to shocks that change regulatory intensity in the finance and energy sectors. Compared to supply-side measures that count words in regulations, our response-based measure, Regulation Index, reflects broader sources of regulation, can better detect the impact of regulations, and ...


Toward A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy S. Lund Aug 2019

Toward A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy S. Lund

University of Southern California Legal Studies Working Paper Series

This paper analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate, though an in-depth docket review, whether and how the ten largest mutual funds participate in shareholder litigation. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them ...


Law And Corporate Governance, Robert P. Bartlett, Eric L. Talley Aug 2019

Law And Corporate Governance, Robert P. Bartlett, Eric L. Talley

Robert Bartlett

Pragmatic and effective research on corporate governance often turns critically on appreciating the legal institutions surrounding corporate entities – yet such nuances are often unfamiliar or poorly specified to economists and other social scientists without legal training. This chapter organizes and discusses key legal concepts of corporate governance, including statutes, regulations, and jurisprudential doctrines that “govern governance” in private and public companies, with concentration on the for-profit corporation. We review the literature concerning the nature and purpose of the corporation, the objects of fiduciary obligations, the means for decision making within the firm, as well as the overlay of state and ...


The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland Aug 2019

The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland

Katrice Bridges Copeland

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not ...


Data Devolution: Corporate Information Security, Consumers, And Future Of Regulation, Andrea M. Matwyshyn Jul 2019

Data Devolution: Corporate Information Security, Consumers, And Future Of Regulation, Andrea M. Matwyshyn

Andrea Matwyshyn

No abstract provided.


The New Global Financial Regulatory Order: Can Macroprudential Regulation Prevent Another Global Financial Disaster?, Behzad Gohari, Karen E. Woody Jul 2019

The New Global Financial Regulatory Order: Can Macroprudential Regulation Prevent Another Global Financial Disaster?, Behzad Gohari, Karen E. Woody

Karen Woody

This Article posits that the success of macroprudential regulation will depend on four factors. First, the economic philosophy of the central banker in charge of the domestic institution with jurisdiction over macroprudential regulation will prove crucial in the implementation of adopted regulation. If, like Chairman Greenspan, the banker is averse to the exercise of the Central Bank's regulatory oversight authority, then no amount or volume of policy or regulation will prevent or mitigate systemic risks and the accompanying shocks. Second, a sufficiently deep level of international cooperation is required to mitigate regulatory arbitrage, without being so broad that the ...


Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody Jul 2019

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Karen Woody

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the ...


Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody Jul 2019

Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody

Karen Woody

Professor Peter Reilly’s article, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act, 67 Fla. L. Rev. 1683 (2015), challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC),2 self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability.

This Article takes a broader look ...


No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody Jul 2019

No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody

Karen Woody

The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign public officials in order to obtain or retain business. It is, for all intents and purposes, an anti-bribery statute. To detect bribery, the FCPA contains accounting provisions related to bookkeeping and internal controls. The books and records provision requires issuers to make and maintain accurate books, records, and accounts; likewise, the internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. If one considers the analogy that bribery is the “fire” in FCPA enforcement actions, and books and records violations ...


Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody Jul 2019

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Karen Woody

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which ...


Nonprofit Governance: The Basics, Lawrence J. Trautman, Janet Ford Jul 2019

Nonprofit Governance: The Basics, Lawrence J. Trautman, Janet Ford

Akron Law Review

Nonprofit organizations are prevalent in today’s economy, and many are governed by individuals who have been chosen on the basis of their advocacy of or contributions to various nonprofit causes rather than on the basis of business experience or acumen. Yet effective nonprofit governance, while presenting concerns unique to nonprofits, also presents many of the same concerns as does governance of for-profit entities. This article seeks to provide a primer for nonprofit organizations that need to recruit effective governance talent. First, we discuss the nature of nonprofits, their impact on the business landscape, and their similarities to and differences ...


Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Cynthia Williams, Janis P. Sarra Jul 2019

Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Cynthia Williams, Janis P. Sarra

Cynthia A. Williams

The Expert Panel on Sustainable Finance has been commissioned by the Canadian Government to determine how best to generate sustainable finance, a significant challenge given the carbon intensity of Canada’s economy. The Expert Panel has defined sustainable finance as capital flows, risk management activities and financial processes that assimilate environmental and social factors as a means of promoting sustainable economic growth and the long-term stability of the financial system. While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this report addresses two critically important issues: fiduciary obligation of corporate- and pension-fiduciaries, and ...


The Stewardship Of Trust In The Global Value Chain, Kishanthi Parella Jul 2019

The Stewardship Of Trust In The Global Value Chain, Kishanthi Parella

Kish Parella

Global governance has not yet caught up with the globalization of business. As a result, our headlines provide daily accounts of the extent and consequences of these "governance gaps." The ability of corporations to evade state control also contributes to an unusual, even frightening, phenomenon: corporations are governing like states. Some governance functions traditionally delivered by state actors are now increasingly undertaken by transnational corporations. One area that is experiencing this substitution is dispute resolution of human rights. Corporations and other business enterprises, individually or collectively, are creating a variety of grievance mechanisms to address human rights and other conflicts ...


Reforming The Global Value Chain Through Transnational Private Regulation, Kishanthi Parella Jul 2019

Reforming The Global Value Chain Through Transnational Private Regulation, Kishanthi Parella

Kish Parella

In many industries, corporations have changed the organization of their production from a vertically integrated model to a model that is often characterized by outsourcing-shifting business activities to external parties -and offshoring, where production occurs at sites overseas. The global value chain (GVC) for an American corporation often involves several tiers of suppliers. One end of the GVC is often occupied by a multinational buyer (MNB), such as a large brand name corporation. At the opposite end of the value chain are the factories, farms, and other production sites that supply multinational corporations with their goods. This organization of production ...


Outsourcing Corporate Accountability, Kishanthi Parella Jul 2019

Outsourcing Corporate Accountability, Kishanthi Parella

Kish Parella

This Article addresses the problem of preventing human rights violations abroad that result from the globalization of business. It specifically explores the challenge of improving labor standards in global value chains. The modern business has changed dramatically and has “gone global” in order to court foreign markets and secure resources, including labor. Familiar household names, such as Nike and Apple, have “outsourced” many of their functions to suppliers overseas. As multinational buyers, they dominate one end of the global value chain. At the opposite end of the value chain are the local managers and owners of the factories and workhouses ...


Identities Lost: Enacting Federal Law Mandating Disclosure & Notice After A Data Security Breach, John Ogle Jul 2019

Identities Lost: Enacting Federal Law Mandating Disclosure & Notice After A Data Security Breach, John Ogle

Arkansas Law Review

Identity theft is real, it’s here, and consumers need protection. Over the past five years hackers have stolen billions of consumers’ sensitive information like social security numbers, addresses, and bank routing numbers from companies that have neglected their security measures. Most of the time these security breaches are easily preventable. Companies sometimes wait weeks, months, or even years to inform the customers whose information was stolen because there is no federal law that requires disclosure. As of 2018, all 50 states have adopted security breach notification laws that require companies to inform consumers that their information may have been ...


It's Complicated: The Challenge Of Prosecuting Tncs For Criminal Activity Under International Law, Jena Martin Jul 2019

It's Complicated: The Challenge Of Prosecuting Tncs For Criminal Activity Under International Law, Jena Martin

Faculty Scholarship

This essay aims to tackle an increasingly thorny and relevant issue: what do you do if a Transnational Corporation (TNC) commits a crime? The question raises a number of challenges, both philosophically and practically. First, what does it mean to prosecute an organization? Although there are some limited examples (the United States’ prosecution of accounting firm Arthur Andersen being among the most note-worthy), we have relatively little precedence regarding what this would entail; how exactly do you put a corporation on trial? Second, practically speaking, where do you hold the trial? This challenge is magnified by the fact that, by ...


A Corporate Duty To Rescue: Biopharmaceutical Companies And Access To Medications, Rebecca E. Wolitz Jul 2019

A Corporate Duty To Rescue: Biopharmaceutical Companies And Access To Medications, Rebecca E. Wolitz

Indiana Law Journal

Controversies regarding the pricing of biopharmaceutical products are pervasive. Patients must choose between treatment and rent, prescriptions go unfilled, and health systems are forced to restrict access to life-saving medications— all because of cost. Though there is often consensus that these issues are problematic, there is disagreement as to what are appropriate solutions and who has responsibility to bring about those solutions. Most efforts to address biopharmaceutical pricing concerns focus on governmental regulation. This Article has a different focus. It provides a legal and normative analysis of a form of corporate self-regulation that could help address access and pricing concerns ...


Corporate Governance And The Cult Of Agency, J.B. Heaton Jul 2019

Corporate Governance And The Cult Of Agency, J.B. Heaton

Villanova Law Review

No abstract provided.


How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby Jul 2019

How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby

Scholarly Articles

This article dissects both the origins and resulting harms of what the author terms the "hedge fund conundrum," in which institutional investors, such as pension plans and endowments, have consistently increased hedge fund allocations over the past decade despite pervasive evidence of excessive fees and subpar returns. It then utilizes an historical institutionalist lens to examine how lawmakers may have enabled a conundrum of this magnitude. By and large, this phenomenon is a symptom of regulatory loopholes that have permitted the private hedge fund market to increase in "publicness" through its expanding access and subsequent harm to retail investors. Such ...


Public Relations Litigation, Kishanthi Parella Jul 2019

Public Relations Litigation, Kishanthi Parella

Scholarly Articles

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in ...


The Regulatory Framework Of Executive Remuneration: Contributions From Shareholder Activism And Board Accountability, Jingchen Zhao, Zhihui Li Jul 2019

The Regulatory Framework Of Executive Remuneration: Contributions From Shareholder Activism And Board Accountability, Jingchen Zhao, Zhihui Li

Hastings Business Law Journal

Executive remuneration is influenced by multiple factors including capital markets, product markets, corporate internal governance, corporate finance, governmental regulation, and legislation. Related to various practical factors, executive remuneration is no longer simply fixed based on the contractual arrangements between companies and their directors. Due to the complicated relationship network in executive remuneration and

the way public companies produce their remuneration policies, remuneration structures and levels can be extremely complex and easily affected by undue influence. This paper focuses on how to solve executive remuneration problems through regulation. Legislations from several developed countries in areas such as providing shareholders with more ...


Ticket To An Antitrust Violation? Why The Nfl And Directv’S Exclusive Distributorship Agreement For Sunday Ticket May Violate Antitrust Laws, And How The U.S. District Court For The Central District Of California May Have Gotten It Wrong, Haig Siranosian Jul 2019

Ticket To An Antitrust Violation? Why The Nfl And Directv’S Exclusive Distributorship Agreement For Sunday Ticket May Violate Antitrust Laws, And How The U.S. District Court For The Central District Of California May Have Gotten It Wrong, Haig Siranosian

Hastings Business Law Journal

No abstract provided.


Cross Border Patent Disputes, David A. Makman Jul 2019

Cross Border Patent Disputes, David A. Makman

Hastings Business Law Journal

No abstract provided.


Influencing Juries In Litigation "Hot Spots", Megan M. La Belle Jul 2019

Influencing Juries In Litigation "Hot Spots", Megan M. La Belle

Indiana Law Journal

This Article considers how corporations are using image advertising in litigation "hot spots" as a means of influencing litigation outcomes. It describes how Samsung and other companies advertised in the Eastern District of Texas--a patent litigation "hot spot"--to curry favor with the people who live there, including by sponsoring an ice rink located directly outside the courthouse. To be sure, image advertisements are constitutionally protected speech and might even warrant the highest level of protection under the First Amendment when they are not purely commercial in nature. Still, the Article argues, courts should be able to prohibit such advertisements ...


Masthead Jul 2019

Masthead

Hastings Business Law Journal

No abstract provided.


Current Issues Of U.S.-Japan Cross-Border Ip Disputes, Ryoichi Mimura Jul 2019

Current Issues Of U.S.-Japan Cross-Border Ip Disputes, Ryoichi Mimura

Hastings Business Law Journal

No abstract provided.


The Development Of Social Enterprise And Rise Of Benefit Corporations: A Global Solution?, Dina Dalessandro Jul 2019

The Development Of Social Enterprise And Rise Of Benefit Corporations: A Global Solution?, Dina Dalessandro

Hastings Business Law Journal

No abstract provided.