Digital Commons Network^™

Should Courts Do Behavioral Analysis Of Boardroom Conduct?, Dale A. Oesterle

Journal of Business & Technology Law

No abstract provided.

The (Un)Enforcement Of Corporate Officers' Duties, Megan Wischmeier Shaner

Faculty Articles

No abstract provided.

Corporate Headhunting, Daniel C. Richman

Faculty Scholarship

A wide range of commentators – including some pretty sophisticated ones – have raked through the ruins of the 2008 financial collapse, confident that there are significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to bring them. Their confidence that blockbuster criminal cases could have been made rests on shaky grounds. So, too, does their faith that the hunting of heads is a socially productive response to the collapse. If anything, a focus on headhunting will only distract from, and reduce the pressure for, efforts to explain the collapse and …

The Conundrum Of Corporate Liability Under The Alien Tort Statute, Joel Slawotsky

Georgia Journal of International & Comparative Law

No abstract provided.

Who Wants To Watch? A Comment On The New International Paradigm Of Financial Consumer Market Regulation, Toni Williams

Seattle University Law Review

This Article explores the capacity of the G20’s model of financial consumer protection to reconfigure relationships between financial firms and consumers, focusing in particular on the market conduct of financial firms. Although this Article does not focus directly on Adolf A. Berle’s work, it does engage with some of his enduring concerns about economic relations between corporations, regulators, and individuals; the socialcontext of those economic relations; and the role of law and legal regulation in shaping market relations. More specifically, this Article considers new international regulatory principles related to corporate social responsibility— a recurring theme of Berle’s work11—in the somewhat …

Inequities In Corporate And Securities Law: Disabling The Exploitative Chinese Corporation And Charting A Path To International Commercial Accountability, Jonathan P. Schmidt

San Diego International Law Journal

This article seeks to illuminate these issues and provide a roadmap for the U.S. federal and state legislatures to come together to protect the U.S. investor from the type of accounting fraud and stock misinformation that was the impetus behind enacting the Sarbanes-Oxley Act of 2002. First, this article will discuss the legal backdrop and legislative policy behind U.S. laws such as SOX and its enforcement mechanisms, and the ability for shareholders to bring securities class action derivative actions for financial fraud. This article will also discuss trade secrets laws, criminal extradition treaties, international enforcement of judgments, and elucidate the …

Unregulated Corporate Internal Investigations: Achieving Fairness For Corporate Constituents, Bruce A. Green, Ellen S. Progdor

Faculty Scholarship

This article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief …

Risk-Shifting Through Issuer Liability And Corporate Monitoring, Martin Gelter

Faculty Scholarship

This article explores how issuer liability re-allocates fraud risk and how risk allocation may reduce the incidence of fraud. In the US, the apparent absence of individual liability of officeholders and insufficient monitoring by insurers under-mine the potential deterrent effect of securities litigation. The underlying reasons why both mechanisms remain ineffective are collective action problems under the prevailing dispersed ownership structure, which eliminates the incentives to moni-tor set by issuer liability. This article suggests that issuer liability could potentially have a stronger deterrent effect when it shifts risk to individuals or entities holding a larger financial stake. Thus, it would …

Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann

Articles

On April 5, 2010, a massive explosion killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the explosion, President Barack Obama vowed that the U.S. Department of Labor would conduct "the most thorough and comprehensive investigation possible" and work with the U.S. Department of Justice ("Justice Department" or the "Department") to address any criminal violations. Later in the month, the President and Vice President flew to West Virginia to eulogize the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss of life at the …

Imputation, The Adverse Interest Exception, And The Curious Case Of The Restatement (Third) Of Agency, Mark J. Loewenstein

Publications

The imputation doctrine in the common law of agency provides that knowledge of an agent acquired in the course of the agency relationship is imputed to the principal. An important exception to the imputation doctrine, known as the adverse interest exception, provides that knowledge is not imputed if it is acquired by the agent in a course of conduct that is entirely adverse to the principal. These doctrines play an important role in sorting out liability when senior management of a corporation engages in a financial fraud that harms the company. Typically, new management is brought in and it sues …

The Supreme Court's Theory Of The Fund, William Birdthistle

All Faculty Scholarship

Just as the firm has long served as the foundational molecule of the U.S. capitalist economy, theories of the firm have for more than a century dominated legal and economic discourse. Ever since Ronald Coase published The Nature of the Firm in 1937 and asked why firms should exist in an efficient market, classicists and neoclassicists have competed to develop theories — predominantly managerialist and contractual — that best explain the structure and behavior of business organizations.

The investment fund, by contrast, has languished at the margins of corporate theory, relegated as simply a minor, if somewhat curious, example of …

Mutiny By The Bounties? The Attempt To Reform Wall Street By The New Whistleblower Provisions Of The Dodd-Frank Act, Geoffrey Christopher Rapp

BYU Law Review

No abstract provided.

Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott

Washington and Lee Law Review

No abstract provided.

Encouraging Litigation: Why Dodd-Frank Goes Too Far In Eliminating The Procedural Difficulties In Sarbanes-Oxley, Jessica Luhrs

UC Law Business Journal

This note reviews the whistleblower protections in the Dodd-Frank Wall Street Reform and Consumer Protection Act. These sweeping protections decrease the barriers and increase the incentives for corporate whistleblowers, in part by decreasing procedural hurdles and providing potentially staggering cash bounties. This note argues that these whistleblower protections go too far and are likely to increase the number of false and meritless claims filed with the Securities and Exchange Commission. This note concludes that the Securities and Exchange Commission should address these shortcomings and supplement its regulatory efforts by incentivizing corporate transparency, penalizing those who file false claims, and encouraging …

The Future Of Hedge Fund Regulation: A Comparative Approach: United States, United Kingdom, France, Italy, And Germany, Anne Riviere

Richmond Journal of Global Law & Business

No abstract provided.

The Lion Awakens: The Foreign Corrupt Practices Act - 1977 To 2010, Michael B. Bixby

San Diego International Law Journal

This Article discusses the history, purposes and provisions of the Foreign Corrupt Practices Act, and traces its use and enforcement activity from 1977 to the present. This once little-used law has in recent years become the focus of aggressive activity by both the U.S. Department of Justice and the Securities and Exchange Commission. The manuscript also includes numerous charts reporting on key cases and enforcement activities over the last thirty-three years by the DOJ and SEC, as well as other information and statistics regarding the Foreign Corrupt Practices Act.

Saying What They Mean: The False Claims Act Amendments In The Wake Of Allison Engine, Jeremy E. Gersh

Journal of Business & Technology Law

No abstract provided.

Personal Jurisdiction Over Foreign Directors In Cross-Border Securities Litigation, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.

Governing Corporate Compliance, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Law Upside Down: A Critical Essay On Stoneridge Investment Partners, Llc V. Scientific-Atlanta, Inc., Franklin A. Gevurtz

NULR Online

No abstract provided.

The Unaccountability Of The Accounting Regulators: Analyzing The Constitutionality Of The Public Company Accounting Oversight Board, 42 J. Marshall L. Rev. 1019 (2009), Whitney Innes

UIC Law Review

No abstract provided.

Who's In Charge Here? Requiring More Transparency In Corporate America: Advancements In Beneficial Ownership For Privately Held Companies, 42 J. Marshall L. Rev. 1049 (2009), Dean Kalant

UIC Law Review

No abstract provided.

Confessions Of A Whistleblower: The Need To Reform The Whistleblower Provision Of The Sarbanes-Oxley Act, 43 J. Marshall L. Rev. 241 (2009), Jisoo Kim

UIC Law Review

No abstract provided.

Electronic Tax Fraud - Are There "Sales Zappers" In Japan?, Richard Thompson Ainsworth

Faculty Scholarship

Although there is no public acknowledgement - in the press, in a court case, though any announcement by the Japanese National Tax Administration, or in any academic studies or papers - that Zappers and Phantom-ware are a fraud problem in Japan, a number of factors suggest that Japan may be very fertile ground for technology-assisted cash skimming fraud. Those factors include: (1) a high concentration of small to medium sized businesses; (2) the fact that the retail economy is highly cash-based; and (3) the high level of technology acceptance in the Japanese retail sector - electronic cash registers (ECRs) and …

Sarbanes-Oxley, Kermit The Frog, And Competition Regarding Audit Quality, Matthew J. Barrett

Journal of Business & Technology Law

No abstract provided.

What Is A Business Crime?, Richard A. Booth

Journal of Business & Technology Law

No abstract provided.

Sarbanes-Oxley Turns Six: An Enforcement Perspective, Linda Chatman Thomsen, Donna Norman

Journal of Business & Technology Law

No abstract provided.

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

UF Law Faculty Publications

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

Evaluating The Mission: A Critical Review Of The History And Evolution Of The Sec Enforcement Program, Paul S. Atkins, Bradley J. Bondi

Fordham Journal of Corporate & Financial Law

No abstract provided.

Fraud Not On The Market: Rebutting The Presumption Of Classwide Reliance Twenty Years After Basic Inc. V. Levinson, Matthew L. Mustokoff

UC Law Business Journal

This article explores a wave of recent federal court decisions addressing the applicability of the "fraud-on-the-market" presumption of reliance in securities fraud cases at the class certification stage. In the two decades since the US Supreme Court first recognized the fraud-on-the-market doctrine in Basic, Inc. v. Levinson, the district and circuit courts have taken somewhat divergent approaches to the question of classwide reliance. The most recent decisions, however, mark an emerging trend, one which signifies heightened judicial scrutiny - in many cases, going beyond the pleadings and involving extensive fact-finding and expert analysis. Among the decisions discussed are the Second …