Law Commons^™

Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly

UC Law Business Journal

From business to individual, almost anyone can be the subject to investigation for possible violations of the U.S. Foreign Corrupt Practices Act. If a party is indicted, the case may be resolved through an ADR vehicle currently being employed by the DOJ: The Deferred Prosecution Agreement (“DPA”) or the Non-Prosecution Agreement (“NPA”).

The use of such agreements is not guaranteed as an alternative to trial; rather they are awarded to defendants through negotiations with the DOJ. But here is the problem: This negotiation between prosecutor and accused can sometimes be unfair to the point where any “bargaining” taking place is …

Rational Financial Meltdowns, Manuel A. Utset

UC Law Business Journal

This article focuses on the following question: how can a group of rational, and often very sophisticated, financial actors cause financial meltdowns, in the regular course of business? There is no doubt much we still need to learn about irrational financial meltdowns, but more likely than not, cognitive shortcomings only make matters worse: they exacerbate the type of behavior that can lead even super-rational actors to cause financial meltdowns.

Microlending: State Regulatory Reforms To Promote Economic And Employment Growth In California, Deanna Chea

UC Law Business Journal

Microlending has earned a great deal of acclaim for alleviating poverty and facilitating self-sufficiency among entrepreneur recipients of microloans, particularly in developing countries. The microlending structure has been repeatedly replicated and tailored to successfully meet each community’s unique needs. As one of the most socioeconomically, geographically, and culturally diverse states in the United States, California can reap the benefits of microlending with careful development of proper infrastructure. This note examines the history of microlending, provides and overview of the current economic state of California, and proposes a number of state legislative and regulatory reforms to create a sustainable and robust …

Bringing Dark Money Into The Light: 501(C)(4) Organizations, Gift Tax, And Disclosure, Tyler J. Kassner

UC Law Business Journal

Political speech funneled through 501(c)(4) organizations and funded by anonymous contributions is not just legal: It’s rampant. Could applying the gift tax to 501(c)(4) contributions resolve a legal grey area while curbing this anonymous political speech? Legally, expanding the gift tax would appear to be a legitimate option. It would be consistent with prior tax expansions and it is not abnormal for tax incentives to influence taxpayer behavior. The problem is not whether Congress could expand the tax, but whether it should. Applying the gift tax to 501(c)(4) contributions may very well curtail anonymous spending by c4s, but it would …

Choice Of Procedural Law In International Commercial Arbitration: Providing "Proper Notice" To A Foreign Party To Ensure That The Arbitral Award Can Be Enforced, Tiffany Ng

UC Law Business Journal

In recent years, the Federal Circuit has made an effort to rein in excessive or unfounded patent damages awards. In Uniloc v. Microsoft, the Federal Circuit granted a motion for retrial on the issue of damages, rejecting the validity of plaintiff’s damages expert testimony. This note advocates a broad reading of Uniloc and encourages trial courts to take a greater role in providing juries with sound methodology for assessing damages. Specifically, this article encourages the use of court-appointed damages experts to restore predictability in the U.S. patent system.

What Counts As A Domestic Transaction Anymore: The Second Circuit And Other Lower Courts' Struggles In Interpreting The Supreme Court's Intent In Morrison V. National Australia Bank When Dealing With Derivative Securities Transactions, Jacob True

UC Law Business Journal

The U.S. Supreme Court recently created uncertainty in the over-the-counter derivative securities market with its decision in Morrison v. National Australia Bank Ltd. Courts used to determine if claims involving fraudulent actions effecting securities transaction could be made under U.S. securities law by assessing whether the fraud was conducted or the effects of the fraud was felt within the United States, but after Morrison that changed. Now, a securities transaction must be made on a “domestic exchange” or be a transaction occurring within the United States. The Supreme Court did not thoroughly define what constitutes a “transaction occurring within the …

The Uncertain Scope Of Revised Article 9'S Statutory Prohibition Of Exculpatory Breach Of Peace Clauses, Michael Korybut

UC Law Business Journal

What length may an agent for a secured lender with a lien on a debtor’s personal property go to in order to repossess the debtor property to satisfy the debt? Wombles Charters, a 1990 New York case decided under Article 9 of the Uniform Commercial Code, was the first in a trilogy to condone the use of exculpatory repossession clauses allowing actions that would otherwise amounted to a breach of the peace. In 2001, Article 9 received a makeover that many presumed would invalidate Wombles carve outs yet, there is virtually no case law on the subject. This has led …

Fiduciary Duty And The Ex Officio Conundrum In Corporate Governance: The Troublesome Murkiness Of The Gubernatorial Trustee's Obligations, Salar Ghahramani

UC Law Business Journal

Should governors serve on the boards of incorporated universities as ex officio members? This article examines the question by considering the expeience of Pennnsylvania State University and analyzes the implications of governors serving on the boards of state- aided corporations by focusing on the fiduciary responsibilities of directors under corporate law. The article concludes that the current statutory framework needs reconsideration and asserts that while there is no question that the state's public interests should trump an institution's "private" interests, it is the state that has chartered the corporation for the promotion of a public good (education) and has appointed …

To Be Or Not To Be A Funding Portal: Why Crowdfunding Platforms Will Become Broker-Dealers, Shekhar Darke

UC Law Business Journal

The recently enacted JOBS Act created crowdfunding exemption to securities registration, allowing entrepreneurs to raise capital for their ventures from everyday investors. The crowdfunding exemption has many stipulations such as a maximum investment and offering amounts within a given period. Also, investors can only invest in crowdfunding opportunities through intermediaries that are registered as broker-dealers or funding portals. The JOBS Act created funding portal registration as an easier alternative to the more burdensome broker-dealer registration. Thus, many people believe that crowdfunding platforms will opt to register as funding portals. However, this note argues that crowdfunding platforms would rather choose broker-dealer …

Bolstering Competition In The International Remittance Market: A Proposal For Reforming The Current Regulatory Licensing Framework Governing Money Transmission Businesses, Leslie Gutierrez

UC Law Business Journal

State licensing requirements for money transmission businesses involved in international remittances have allowed key players Western Union and MoneyGram to benefit from the high demand for remittances and the lack of competition by enabling these entities to impose inflated prices on migrant consumers. With the growth of remittance flows and the rise of technological innovations, such as Internet and mobile payments, the current state-by-state licensing requirements for money transmission businesses prove to be overly burdensome and expensive and, ultimately, a barrier to entry for small businesses and start-ups. This note proposes to replace the current money-transmitting state licensing framework with …

A Right Without A Remedy Is No Right At All: A Case For Why Ab 1844 Requires A Remedial Scheme And What It Might Be, Tina Lu

UC Law Business Journal

This note seeks to explore whether California intended to create a right or right of action for a plaintiff seeking to sue an employer for an AB 1844 violation, and if so, what remedies are available to the plaintiff. This note discusses several remedies that may be available: options include, but are not limited to, a discussion of the remedial scheme created by the Private Attorney General Act of 2004; a wrongful discharge claim in violation of public policy; or a civil penalty. Next, this note discusses whether or not the trifocal approach of the rights--right of action--remedy equation is …

Creating A Culture Of Compliance: Why Departmentalization May Not Be The Answer, Michele Destefano

UC Law Business Journal

Over the past few decades, as corporate criminal liability rules, sentencing guidelines, and settlement incentives have changed, there has been increased emphasis on and resources devoted to the compliance function at large publicly held companies. In this article, Professor DeStefano traces the development of the compliance function at large corporations and questions the recent mandate by certain governmental entities that malfeasant corporations designate a chief compliance officer and separate the compliance gatekeeping function from the legal department so that this chief compliance officer does not report to the general counsel. She categorizes the types of arguments made for and against …

One Worldwide Set Of Global Accounting Standards? - Hmm, Neal F. Newman

UC Law Business Journal

This paper examines the contemplated worldwide adoption of IFRS. This paper explores whether a one size fits all accounting regime is viable where economies around the globe, though interconnected, have different histories, different cultural norms, different economic dynamics, different investor and capital bases, and therefore, perhaps different uses for financial information. Do these different cultural norms, economic dynamics, investor and capital bases therefore necessitate different uses for financial information? And if so, how does that affect the stated goal of "[a] single set of high quality global accounting standards?" It is possible that these different cultural norms, economic dynamics, investor …

Confidential Ideas And Independent Contractors: Trade Secret Ownership In The Age Of The Hired Gun, Rob P. Saka

UC Law Business Journal

Does an independent contractor or a party hiring the contractor own the new, confidential ideas that fall outside of what the contract or is hired to provide, but that arise during the course of that work? The issue of tradesecret ownership is important due to the growing use of contractors, particularly in the tech development industry. This note explores the emerging issue of trade secret ownership in the post- Great Recession era of increased reliance on contractor-inventors. In concluding that-absenta contrary written agreement- contractor- inventors are the rightful owners of their incidentally created trade secrets while assigned to a project, …