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Business Law Bulletin, Spring 2018, 2018 University of Maryland Francis King Carey School of Law

Business Law Bulletin, Spring 2018

Business Law Bulletin

No abstract provided.


How Special Is The Special Timing Rule? Analyzing The Timing Of Fica Taxation In Nonqualified Deferred Compensation Plans, Alan J. Ponce 2018 Georgia State University College of Law

How Special Is The Special Timing Rule? Analyzing The Timing Of Fica Taxation In Nonqualified Deferred Compensation Plans, Alan J. Ponce

Georgia State University Law Review

Many employers offer nonqualified deferred compensation plans as a benefit to select employees, and those plans allow the employees to prepare for retirement in a tax-efficient manner. For employers,designing and administering such plans in compliance with federal law represents a paramount concern in order to achieve the tax advantages such plans entail. However, for these employers, there remains an inherent ambiguity in the tax code regarding how and when employers should withhold Federal Insurance Contribution Act (FICA) taxes—that is, Social Security and Medicare taxes—on deferred compensation in nonqualified retirement plans.

Tax regulations provide two distinct methods for ...


Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens 2018 Boston College Law School

Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens

Kent Greenfield

Professor Greenfield was the principal author of an amicus brief on behalf of 33 corporate law professors in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued in December 2017. The brief argues that shareholders’ religious and political beliefs should not be projected onto a corporation for purposes of First Amendment accommodation.


Mom Approval In A World Of Active Shareholders, Edward Rock 2018 NYU School of Law

Mom Approval In A World Of Active Shareholders, Edward Rock

New York University Law and Economics Working Papers

Majority of Minority (MOM) approval is a common mechanism used in many jurisdictions to control conflicts of interest in related party transactions. Recently, in M & F Worldwide, the Delaware Supreme Court held that MOM approval in a controlling shareholder freezeout shifted the standard of review from Entire Fairness to Business Judgement Rule. In this article, I investigate how MOM approval functions in the presence of active shareholders (both hedge funds and actively managed mutual funds).

After reviewing the potential benefits and problems with MOM approval, I review the use of MOM provisions in controlling shareholder freezeouts in the U.S. between 2010 and 2017. I combine this with three case studies involving MOM approval: the Dell MBO; the Oracle/NetSuite merger; and the unsuccessful effort by the Dolan family to take Cablevision private in 2007. I then briefly consider a quite different sort of MOM approval: the EU Takeover Directive’s requirement that conditions mandatory freezeouts on achieving a very high level of ownership (90-95%), typically through a tender offer.

The principal lessons of this investigation are ambiguous. First, I do not find significant evidence that the use of MOM conditions in ...


The Architecture Of Contract Innovation, Matthew Jennejohn 2018 Brigham Young University Law School

The Architecture Of Contract Innovation, Matthew Jennejohn

Boston College Law Review

Contract law and the formal models of contract economics assume that agreements are fully customized. On the other hand, recent legal research highlights the role standardized terms play in contract design. Those lines of research overlook an important class of contracts between those extremes. Many contracts, such as the merger agreements studied here, are complex combinations of customized and standardized terms, and thereby achieve economies of both scale and scope. Such contracts are “mass customized,” to borrow a term from engineering research. This Article introduces a theoretical framework for understanding how mass customization of such complex agreements is achieved. It ...


Organic Corporate Governance, Robert C. Bird, Stephen Kim Park 2018 University of Connecticut

Organic Corporate Governance, Robert C. Bird, Stephen Kim Park

Boston College Law Review

A publicly-held corporation maintains a system of governance through separation of ownership and control of the firm. Under this framework, corporations attract capital and repatriate profits to their shareholders under the authority vested in the board of directors. However, significant evidence exists that Chief Executive Officers (“CEOs”) are commonly driven by self-interest, boards often indulge CEOs, and shareholders find it difficult to monitor management. Many recent reforms have sought to improve corporate governance through regulatory interventions that empower shareholders. This Article identifies the limitations of this approach and advances a new model that looks within the “black box” of the ...


The Foreign Corrupt Practices Act Turns 40: "Reflections On Walmart's Enhanced Ethics & Compliance Program", Jay T. Jorgensen 2018 Texas A&M University School of Law

The Foreign Corrupt Practices Act Turns 40: "Reflections On Walmart's Enhanced Ethics & Compliance Program", Jay T. Jorgensen

Texas A&M Law Review

As Walmart’s business has been changing, the company has also evolved and changed in our corporate governance. In 2012, the company started a significant effort to enhance our ethics and compliance programs. Prior to that time the company maintained separate compliance efforts in different countries. For example, Walmart’s business in the United States had a well-developed compliance program. The company had separate compliance-related activities and personnel in our businesses in Canada, China, Mexico, and elsewhere. All of these compliance programs operated independently of each other, reporting to their local business leaders.


Hb 192 - Banking And Finance, Caroline G. Mayson, Jesse C. Moore 2018 Georgia State University College of Law

Hb 192 - Banking And Finance, Caroline G. Mayson, Jesse C. Moore

Georgia State University Law Review

The Act changes the provisions relating to the responsibilities and standard of care for directors and officers of banks, trust companies, and corporations. The Act codifies the business judgment rule. The operative liability standard for directors and officers is gross negligence, as opposed to simple negligence, and directors and officers may rely on other individuals in the performance of their duties. A rebuttable presumption exists that directors and officers act in good faith.


Newsroom: From Farm To School 1-2-2018, Roger Williams University School of Law 2018 Roger Williams University

Newsroom: From Farm To School 1-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


What Conflict Minerals Rules Tell Us About The Legal Transplantation Of Corporate Social Responsibility Standards Without The State: From The United Nations To The United States To Taiwan, Chang-hsien (Robert) TSAI, Yen-nung WU 2017 National Tsinghua University

What Conflict Minerals Rules Tell Us About The Legal Transplantation Of Corporate Social Responsibility Standards Without The State: From The United Nations To The United States To Taiwan, Chang-Hsien (Robert) Tsai, Yen-Nung Wu

Chang-hsien (Robert) TSAI


To resolve global political and scholarly concerns over conflict minerals (“CM”) produced in the Democratic Republic of the Congo and neighboring regions, two kinds of CM-related disclosure rules (or “CM rules”) come into play in regulating their use: government-mandated laws such as Section 1502 of the Dodd-Frank Act in the United States (hereinafter “Sec. 1502”) and transnational voluntary codes such as the Electronic Industry Citizenship Coalition (“EICC”) Code of Conduct. The creation of both of these CM rules could be attributed to the promotion of such concerns by the United Nations. This article is the first attempt to unpack and ...


A Relationship Of Reciprocal Influence: Singapore Company Law And The Economy, Vincent Ooi, Cheng Han Tan 2017 Selected Works

A Relationship Of Reciprocal Influence: Singapore Company Law And The Economy, Vincent Ooi, Cheng Han Tan

Vincent Ooi

A strong reciprocal relationship has existed between Singapore Company Law (“SCL”) and the economy since Independence in 1965. Swift Parliamentary responses to economic events and successful implementation of Government policies has made it possible to clearly attribute cause and effect to statutory amendments and economic events in turn, proving the reciprocal relationship between the two. The first theme of this paper seeks to explain the fundamental characteristics of SCL that have resulted in such an unusually strong reciprocal relationship: the 1) Autochthonous nature of SCL; 2) Responsive nature of legislation; and 3) Government control at multiple levels of implementation. The ...


On Dictas Trail: Espinosa's Messy Repercussions, Amir Shachmurove 2017 Selected Works

On Dictas Trail: Espinosa's Messy Repercussions, Amir Shachmurove

Amir Shachmurove

United States Aid Funds, Inc. v. Espinosa is not an unusual case in at least one particular: it combined an uncontroversial holding with rather portentous dicta. Writing for his every colleague, Justice Clarence Thomas first penned a simple holding endorsed by the decided majority of lower courts: once a debtor has won confirmation of a multi-year repayment plan pursuant to Chapter 13 of the Bankruptcy Code (“Code”), any creditor who received actual notice of the plan may not challenge a single provision, even those inconsistent of the Code, as void pursuant to Federal Rule of Civil Procedure 60(b ...


To Be Creditor Or To Be Shareholder, That Is The Question: Is The Debt-For-Equity Swap Creditors’ Financial Suicide?, Jongho Kim 2017 Pepperdine University

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 ...


The Unicorn Governance Trap, Renee Jones 2017 Boston College Law School

The Unicorn Governance Trap, Renee Jones

Boston College Law School Faculty Papers

The recent trend of large-scale start-up companies delaying an IPO creates a new kind of corporate governance problem. The prevalence of “unicorns” – privately held companies with market valuations of $1 billion or more – means the disciplinary mechanisms on which investors traditionally relied no longer function to prevent misconduct or mismanagement by unicorn founders. High profile frauds by unicorns like Zenefits and Theranos, and the recent travails of Uber highlight the need to rethink unicorn governance structure. These burgeoning controversies call for reconsideration of legal reforms that allow unicorns to remain for protracted periods in an ill-defined limbo between private and ...


Budzko V. One City Center Associates Limited Partnership: Maine's Unique Approach To Business Owners' Duty To Remove Ice And Snow, Jennifer A.W. Williams 2017 University of Maine School of Law

Budzko V. One City Center Associates Limited Partnership: Maine's Unique Approach To Business Owners' Duty To Remove Ice And Snow, Jennifer A.W. Williams

Maine Law Review

In February 2001, the Maine Supreme Judicial Court, sitting as the Law Court, decided for the first time in Budzko v. One City Center Associates Limited Partnership, what duty of care a business landowner owes to business invitees regarding the accumulation of ice and snow during a storm. Terry Budzko slipped and fell as she was exiting One City Center, the building in which her employer leased office space. The steps had not been shoveled or sanded and a snowstorm had been progressing throughout the day. The Law Court, placing heavy reliance on the factor of foreseeability, held that “[b ...


The Crisis In Corporate Governance: 2002 Style, Robert W. Hamilton 2017 University of Maine School of Law

The Crisis In Corporate Governance: 2002 Style, Robert W. Hamilton

Maine Law Review

The period from November 1, 2001 to October 1, 2002 has been an astonishing period for corporate governance in many respects. It began with the completely unexpected collapse of Enron Corporation on November 1, 2001, followed almost immediately thereafter by widely publicized downward profit restatements and bankruptcy filings by a significant number of telecommunication companies. Since November 1, 2001, there have been numerous public reports of fraud, misconduct, and scandals by directors of other well-known corporations such as Lucent Technologies, Kmart, Merck & Co., and Rite Aid Corporation. There also have been disclosures of many instances in which corporate officers and ...


The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas 2017 U.S. Securities and Exchange Commission

The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas

Faculty Scholarship

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger ...


Leaving Law Firms With Client Fees: Florida's Path, Donald J. Weidner 2017 Florida State University College of Law

Leaving Law Firms With Client Fees: Florida's Path, Donald J. Weidner

Scholarly Publications

No abstract provided.


The Seventeenth Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center, Caroline M. Gentile, The Honorable Karen L. Valihura 2017 Fordham University School of Law

The Seventeenth Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center, Caroline M. Gentile, The Honorable Karen L. Valihura

Fordham Journal of Corporate & Financial Law

No abstract provided.


Finding The Right Balance In Appraisal Litigation: Deal Price, Deal Process, And Synergies, Lawrence A. Hamermesh, Michael L. Wachter 2017 Delaware Law School

Finding The Right Balance In Appraisal Litigation: Deal Price, Deal Process, And Synergies, Lawrence A. Hamermesh, Michael L. Wachter

Faculty Scholarship

This article examines the evolution of Delaware appraisal litigation and concludes that recent precedents have created a satisfactory framework in which the remedy is most effective in the case of transactions where there is the greatest reason to question the efficacy of the market for corporate control, and vice versa. We suggest that, in effect, the developing framework invites the courts to accept the deal price as the proper measure of fair value, not because of any presumption that would operate in the absence of proof, but where the proponent of the transaction affirmatively demonstrates that the transaction would survive ...


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