Business Organizations Law Commons^™

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 …

How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones

Renee Jones

No abstract provided.

Conflicted Counselors: Retaliation Protections For Attorney-Whistleblowers In An Inconsistent Regulatory Regime, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing about their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (“SEC”) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (“SOX”) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Recent federal …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Judges, Prosecutors, Jurors, And Organized Labor: Four Perspectives Of Corporate Citizenship, Noel Beasley, Janine P. Geske, Valerie P. Hans, E. Michael Mccann, Frank Daily

Valerie P. Hans

Some people argue that the civil jury is in decline. They argue that it's not really so important to be focusing on jurors and jurors' views about corporate responsibility as it might have been in prior times. I want to raise some arguments in favor of the continuing importance of the civil jury. First of all, the cases that juries try may be very important cases in terms of the company and in terms of the role of the company vis-a-vis government regulation. Jurors are symbolic representatives of the public in the courtroom. Finding out what juries do when they …

Notable Employee Benefits Articles Of 2012, 139 Tax Notes 656 (2013), Kathryn Kennedy

Kathryn J. Kennedy

No abstract provided.

A Primer On The Taxation Of Executive Deferred Compensation Plans, 35 J. Marshall L. Rev. 487 (2002), Kathryn J. Kennedy

Kathryn J. Kennedy

No abstract provided.

Freedom Of Establishment Within The European Union & Italian Logistics And Transport Companies, Sajjad Khaksari

SAJJAD KHAKSARI

When European Union (UE) fixed “FREEDOM OF ESTABLISHMENT WITHIN THE EUROPEAN UNION”, transport world dramatically has changed, as many other EU industries. A dramatic change that was not so visible for costumers (who received transport or logistics services) but it has changed the Labour Rights for the persons whose are working hard in the hard conditions...

Democracy In The Private Sector: The Rights Of Shareholders And Union Members, Michael Goldberg

Michael J Goldberg

In the years since Enron, there has been a lively debate over the value of shareholder democracy as a means to improve corporate performance and reduce the likelihood of future Enrons or Lehman Brothers. That debate has been enriched by comparative scholarship looking at corporate governance abroad, and comparing corporate governance with public government. This Article explores a different comparison, between corporations and their sometime adversaries across bargaining tables and picket lines – labor unions. More specifically, this article compares the regulation of corporate governance and the regulation of the internal affairs of unions, and the rights of shareholders and …

Collective Bargaining And The Coase Theorem, Stewart J. Schwab

Stewart J Schwab

No abstract provided.

Coase, Rents, And Opportunity Costs, Stewart J. Schwab

Stewart J Schwab

Professor Posin is to be congratulated on his recent article in this Review, "The Coase Theorem: If Pigs Could Fly," for creating a precise example that purports to disprove the Coase Theorem. Legal scholarship should strive more towards verifiable or falsifiable statements about the law. Of course, falsifiable statements are a risky strategy, and in this case the risk has materialized. Posin's claim—that his example shows a flaw in the Coase Theorem—is false. Posin's claim is an especially bold one, for his example deals with a shifting legal entitlement between two producers. Most successful attacks on the Coase Theorem have …

Realigning Corporate Governance: Shareholder Activism By Labor Unions, Stewart J. Schwab, Randall S. Thomas

Stewart J Schwab

No abstract provided.

Union Raids, Union Democracy, And The Market For Union Control, Stewart J. Schwab

Stewart J Schwab

In this article, Professor Schwab compares the union member-leader relationship to the corporate shareholder-manager relationship and examines what can be learned from the voluminous literature regarding corporate control about problems of internal union democracy. Specifically, he questions whether a viable market for union control does or could exist that might induce leaders to act in the interests of their members. He analyzes the structural weaknesses in the market for union control and the legal factors inhibiting a union takeover market. Schwab concludes that a weak market does exist, despite the nonprofit nature of unions that limits the ability of leaders …

Amended Brief Of Professor Nancy Gertner And Professor Kent Greenfield As Amici Curiae In Support Of Plaintiff, Louisiana Municipal Police Employees' Retirement System V. The Hershey Company, C.A. No. 7996-Ml, Nancy Gertner, Kent Greenfield

Kent Greenfield

Amicus brief filed by Nancy Gertner and Kent Greenfield in the case of Louisiana Municipal Police Employees' Retirement System v. The Hershey Company, C.A. No. 7996-ML.

Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who are convicted …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

The Merits Of Cooperative Corporate Governance In The Digital Age, Meredith-Anne Kurz

Meredith-Anne Kurz

No abstract provided.

The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein

Cynthia C. Lichtenstein

Large internationally active financial institutions, in particular multinational banks, have the capacity to create profound disturbances in the globalized financial markets in the event of failure. For that reason, these entities are supervised and examined in a manner that is completely different than the ordinary business corporation. This piece describes the new methodology that has been developed by the United States' central bank, the Board of Governors of the Federal Reserve System or "the Fed" for short, since 1995, for examining what the Fed calls "large complex banking organizations" or LBCOs and indicates how the system in fact carries out …

La Transparencia En La Protección De Datos Personales, Bruno L. Costantini García

Bruno L. Costantini García

La Transparencia en la Protección de Datos Personales, ponencia elaborada dentro de los trabajos del VII Congreso Nacional de Organismos Públicos Autónomos (OPAM)

Directors And Due Diligence In Workplace Safety, Neil J. Foster

Neil J Foster

The duties of directors and other company officers under s 27 of the model Work Health and Safety Act are explored, along with related duties. Issues considered are: what level of company officer will be caught by the legislation? How will volunteer officers, and officers of nonprofit organisations, be dealt with? What are the courts likely to consider as “due diligence”? This question is considered both in terms of the Act and published guidance, but also against the background of previous court decisions on the concept in the workplace safety area and elsewhere.

The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos

Michael Diathesopoulos

The paper examines the characteristics of some common alternative forms of dispute settlement and their key differences from arbitration regarding their nature and scope. Its purpose is to explore each mechanism's suitability for specific types of disputes.

Aspectos Generales Dela Publicidad En México. "La Publicidad De Productos, Servicios, Y Actividades Reguladas Por La Ley General De Salud", Bruno L. Costantini García

Bruno L. Costantini García

Introducción a las generalidades de la regulación en materia de publicidad de insumos para el consumo humano (salud) en México.

Something Is Better Than Nothing Enhancing The Protection Of Indian Migrant Workers Through Bilateral Agreements And Memoranda Of Understanding, Piyasiri Wickramasekara

PIYASIRI WICKRAMASEKARA

India’s has had an impressive record recently in negotiating bilateral Memoranda of Understanding (MOUs) and Memoranda of Agreement (MOAs) on emigration of Indian workers, and social security agreements for Indian workers with a number of destination countries. The study undertakes a review of MOUs and MOAs on migration of Indian workers entered into by the Government of India with destination countries in the Gulf Cooperation Council (GCC) states, Jordan and Malaysia. The findings however, have broader relevance in the context of similar MOUs by other Asian origin countries.

The study fails to find any concrete evidence that the MOUs and …

An Alternative Universe To §1113 Of The Bankruptcy Code: The Mediation Of American Airlines And Its Pension Obligations, Max L. Schatzow

Max Schatzow

This paper explores mandatory mediation as an alternative method to the current §1113 framework, where judges determine the fate of collective bargaining agreements. Through dialogue, this paper will explore one potential outcome to the ongoing dispute between the various labor unions with collective bargaining agreements with American Airlines.

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay

Paul R. Tremblay

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without …

The Unjustified Absence Of Federal Fraud Protection In The Labor Market, Kent Greenfield

Kent Greenfield

Federal law offers significant protection against fraud in the capital market, based on the compelling rationale that accurate information is important in allowing the securities markets to allocate financial capital to real capital. Notwithstanding some recent statutory adjustments, federal securities law remains committed to a central idea: it is wrong for a company or a corporate official knowingly to make a misrepresentation in order to take value from another in a securities transaction. This article argues that rationales analogous to those justifying fraud protection in the capital market also hold true in the labor market. Fraud may in fact be …

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Kent Greenfield

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that result. …