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Articles 1 - 14 of 14
Full-Text Articles in Securities Law
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 …
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 …
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 …
Delaware Corporate Law Recognizes The Fundamental Validity Of The Forum Selection Bylaw: A Survey Of The Boilermakers Litigation, Zachary R. Cormier
Delaware Corporate Law Recognizes The Fundamental Validity Of The Forum Selection Bylaw: A Survey Of The Boilermakers Litigation, Zachary R. Cormier
The Journal of Business, Entrepreneurship & the Law
Boilermakers Local 154 Retirement Fund v. Chevron Corp. represents a new and important chapter in the relationship between the forum selection clause and modern business relations. A forum selection clause is “[a] contractual provision in which the parties establish the place (such as the country, state, or type of court) for specified litigation between them.” Forum selection clauses have most often been analyzed by courts within contractual relationships between businesses, or a business and its customers. The Boilermakers case sets important precedent for forum selection in an equally fundamental business relationship--the corporation and its stockholders. This article will survey the …
Governing The Corporate Insiders: Improving Regulation Fair Disclosure With More Robust Guidance And Stronger Penalties For Individual Executives, Christopher Ippoliti
Governing The Corporate Insiders: Improving Regulation Fair Disclosure With More Robust Guidance And Stronger Penalties For Individual Executives, Christopher Ippoliti
The Journal of Business, Entrepreneurship & the Law
This article discusses the history of Regulation Fair Disclosure (Regulation FD), the problems it was intended to remedy, the scope of the regulation, and acceptable methods of disclosing material information in compliance with the rule. Part III examines specific further guidance and two investigative reports issued by the United States Securities and Exchange Commission (SEC) impacting Regulation FD disclosures. In Part IV, this article sets forth a comprehensive analysis of all the specific enforcement actions pursued by the SEC and the penalties assessed against publicly traded companies and individuals for Regulation FD violations. Part V evaluates the effectiveness of the …
Unilateral Forum Selection Clauses In Corporate Bylaws: A Synopsis Of The Debate, Bryce Cullinane
Unilateral Forum Selection Clauses In Corporate Bylaws: A Synopsis Of The Debate, Bryce Cullinane
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker
The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker
The Journal of Business, Entrepreneurship & the Law
One of the biggest Delaware Supreme Court cases of 2013 wasn’t. The Delaware Court of Chancery opinion in Boilermakers Local 154 Retirement Fund v. Chevron Corp., upheld the enforceability of Delaware forum selection clause bylaws unilaterally adopted by corporate boards of directors. It was widely expected that the Delaware Supreme Court would uphold the Court of Chancery’s opinion. However, Plaintiffs dismissed their appeal and moved to dismiss their remaining claims in the Court of Chancery, leaving intact Chancellor Strine’s strong support of forum selection clauses. National Industries Group (Holding) v. Carlyle Investment Managements L.L.C. and TC Group, L.L.C., a 2013 …
Exploring The Standard Of Review Of Transactions With Controlling Shareholders After In Re Mfw Shareholders Litigation (Decided May 29th, 2013), Miriam Bitton, Odelia Minnes
Exploring The Standard Of Review Of Transactions With Controlling Shareholders After In Re Mfw Shareholders Litigation (Decided May 29th, 2013), Miriam Bitton, Odelia Minnes
The Journal of Business, Entrepreneurship & the Law
This Article will begin with a review of the MFW case, followed by a review of the judicial history prior to this decision. Then it will try to analyze, albeit partially, some of the reasons for why this judgment is timely and reasonable considering changes that occurred in the last decades. It will also address some of the courts' reasoning and its persuasiveness.
Lessons Of 2013: The Perils Of "Ready, Fire, Aim" And The Importance Of An Integrated Litigation Strategy In Corporate Governance Matters, Thad A. Davis, Leslie A. Wulff
Lessons Of 2013: The Perils Of "Ready, Fire, Aim" And The Importance Of An Integrated Litigation Strategy In Corporate Governance Matters, Thad A. Davis, Leslie A. Wulff
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Fall 2013 Symposium: Contemporary Trends In Corporate Litigation, Robert Anderson Iv, Myron T. Steele, Katherine J. Blair, Thad A. Davis, James R. Griffin, James J. Moloney
Fall 2013 Symposium: Contemporary Trends In Corporate Litigation, Robert Anderson Iv, Myron T. Steele, Katherine J. Blair, Thad A. Davis, James R. Griffin, James J. Moloney
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Ceo & Employee Pay Discrepancy: How The Government's Policies Have Encouraged The Gap, David R. Meals
Ceo & Employee Pay Discrepancy: How The Government's Policies Have Encouraged The Gap, David R. Meals
The Journal of Business, Entrepreneurship & the Law
This paper examines the role of the U.S. Government in the CEO versus worker pay gap, both in contributing to its creation and the ability to reverse it. To better understand this issue, this paper includes a survey of current U.S. and foreign CEO compensation practices, a survey of theories proposed to explain the divergence between U.S. and foreign CEO compensation, a review of the social and business impact of excessive CEO compensation, and identifies socioeconomic theories regarding the excessive CEO pay trend. This is followed by a review of the history of attempted solutions along with newly enacted and …
Unfinished Business: Dodd-Frank's Whistleblower Anti-Retaliation Protections Fall Short For Private Companies And Their Employees, Chelsea Hunt Overhuls
Unfinished Business: Dodd-Frank's Whistleblower Anti-Retaliation Protections Fall Short For Private Companies And Their Employees, Chelsea Hunt Overhuls
The Journal of Business, Entrepreneurship & the Law
The Sarbanes-Oxley Act of 2002 (“SOX”) revolutionized the world of securities law whistleblowing. It encouraged employees to reveal corporate fraud by providing federal anti-retaliation protection to incentivize such reports. Securities law whistleblowing was transformed a second time in 2010 when Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Under Dodd-Frank, employees that report information to the Securities and Exchange Commission (“SEC”) are not only provided federal anti-retaliation protections but also are eligible for a hefty bounty. Two major differences separate these statutes: (1) SOX is limited to employees of companies who are subject to the reporting …