Digital Commons Network^™

Reevaluating Fourth Amendment Protections In The Digital Age, Tiffany Benjamin

UC Law Constitutional Quarterly

No abstract provided.

Women & Whistleblowing, Mary Saade

UC Law SF Journal on Gender and Justice

As more women in the United States take on leadership positions in the public and private sector, we have seen an influx of women whistleblowers. This Note examines whistleblower laws through a gender lens and offers insight to reveal why women blow the whistle, how women approach whistleblowing situations, and the effect current whistleblower laws have on women in the workforce.

This Note is divided into five parts. Part I includes an introduction and discusses competing definitions of whistleblower. Part II explores society’s differing perception of men and women whistleblowers and what may motivate women to report wrongdoings. Part III …

Social Enterprise Governance Post-Sox, Alina Ball

Faculty Scholarship

Social enterprises-nonprofit and for-profit businesses that use market-based strate­ gies to achieve social change for marginalized populations-demonstrate a new para­ digm for doing business in the United States. The Sarbanes-Oxley Act of 2002 ("SOX"), which transformed financial reporting and heightened internal controls for public com­ panies, has, perhaps unintentionally, also had an outsized influence on the development of social enterprise governance. The primary impact of SOX is found in the state-level auditing and reporting reforms imposed on large nonprofits. Moreover, "benefit re­ ports," the lynchpin of social enterprise state legislation, also mirror the SOX emphasis on transparency through third-party assessment. …

The Role Of Esg Rating Agencies And Market Efficiency In Europe’S Climate Policy, Ebbe Rogge, Lara Ohnesorge

UC Law Environmental Journal

The European Union (“EU”) set out an ambitious policy agenda to reduce its impact on climate change. Although the popular image is that economic growth and sustainability are practically incompatible, this policy agenda includes measures enabling reallocation of investment towards sustainable projects and companies. This paper posits that, by adopting measures requiring the disclosure of non-financial and in particular Environmental, Social, and Governance (“ESG”) information, EU policy relies on market efficiency to ensure the desired reallocation of investment.

In order for this market efficiency approach to work properly, non-financial information must be accessible, comparable, and verified. This creates a new …

Closing The Side-Door: An Argument For Imposing A Duty Of Oversight On University Boards Of Trustees, Simone Van Ommeren-Akelman

UC Law SF Journal on Gender and Justice

No abstract provided.

Effects Of Japanese Financial Regulations And Keiretsu Style Groups On Japanese Corporate Governance, Ken Kobayashi

UC Law SF International Law Review

No abstract provided.

Legal Transplants, Law Books, And Anglo-American Corporate Fiduciary Duties, Victoria Barnes

UC Law Business Journal

This Article explores legal transplants and divergences in Anglo- American corporate fiduciary law. The internal management rule in English law acts to restrict judicial interference in corporate governance disputes. It is conceptually similar to the business judgment rule but the two remain distinct. This Article explains why Anglo-American corporate law developed differently, despite its shared roots. It pinpoints the origins of the internal management rule to Lord Lindley’s work, which was written in the late nineteenth century. Lord Lindley was central to the development of corporate law in England and other common law jurisdictions within the British Empire, but his …

Uc Hastings Law (Spring 2019), Hastings College Of The Law Alumni Association

Hastings Magazine (2008-2019)

No abstract provided.

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 …

The “Too Big To Jail” Effect And The Impact On The Justice Department’S Corporate Charging Policy, Court E. Golumbic, Albert D. Lichy

UC Law Journal

In the wake of the 2008 financial crisis, the failure of the Department of Justice (“Justice Department” or “DOJ”) to bring criminal charges against any financial institutions prompted critics to question whether the DOJ maintained a policy that certain corporations are “too big to jail.” The criticism piqued after the DOJ announced that it had entered into a deferred prosecution agreement (“DPA”) with HSBC to resolve a massive money laundering and government sanctions investigation. This wave of criticism is the backdrop for what the Authors call the “too big to jail” effect—two related developments, each of which has the potential …

Preying On The Graying: A Statutory Presumption To Prosecute Elder Financial Exploitation, Andrew Jay Mcclurg

UC Law Journal

With seventy-eight million baby boomers in or nearing retirement, elder financial exploitation has been labeled the “Crime of the 21st Century,” yet little has been done to address the problem. While states and the federal government have passed hundreds of laws protecting children based on the assumption they are vulnerable and unable to protect themselves, older at-risk adults have been comparatively ignored despite extensive research showing they too are vulnerable. A substantial roadblock to prosecuting elder financial predators is the inability to prove that the financial transfers at issue were the result of exploitation rather than legitimate transactions. Many victims …

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 …

Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita K. Krug

UC Law Journal

This Article contends that more effective regulation of investment advisers could be achieved by recognizing that the growth of hedge funds, private equity funds, and other private funds in recent decades is a manifestation of institutionalization in the investment advisory context. That is, investment advisers today commonly advise these “institutions,” which have supplanted other, smaller investors as advisory clients. However, the federal securities statute governing investment advisers, the Investment Advisers Act of 1940, does not address the role of private funds as institutions that now intermediate those smaller investors’ relationships to investment advisers. Consistent with that failure, investment adviser regulation …

Measuring Insider Trading Damages For A Private Plaintiff, William K.S. Wang

Faculty Scholarship

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 …

Prosecuting Elder Abuse: Setting The Gold Standard In The Golden State, Arthur Meirson

UC Law Journal

This Note proposes amending California's elder abuse law. Currently, California Penal Code sections 368(b) and (c) allow the prosecution of any person who willfully causes or permits a person they know to be an elder or dependent adult "to suffer, or inflicts thereon unjustifiable physical pain or mental suffering." The failing of this law is its focus on the subjective experience of the elder or dependent adult victim. Because the law only allows punishment where the victim suffers or experiences unjustifiable physical pain or mental suffering, there are numerous circumstances that allow a perpetrator of abuse to escape prosecution. These …

Corporate Crime. Reporting Obligations For Executives And Managers. Statute.

Initiatives

Requires that executives and managers of corporations or limited liability companies report, in writing, any violation by company involving financial fraud, consumer protection, health and safety, environmental protection or labor. Establishes criminal penalties (jail up to one year and/or fine up to $100,000) for failure to report within 15 days after actual knowledge of violation acquired. Defines manager as having both management authority and significant responsibility for an aspect of business. Defines actual knowledge as information that would convince a reasonable person in same situation that violation exists. Summary of estimate by Legislative Analyst and Director of Finance of fiscal …

Identity Theft And Solicitation. Criminal Gang Activity. Forensic Computer Analysis Fund. Initiative Statute.

Initiatives

Increases criminal penalties for persons convicted of specified identity theft crimes. Adds crimes involving personal identification to enumerated list of criminal gang activities. Expands definition of personal identifying information, and requires prison terms and increased fines for acquisition of such information with intent to defraud. Outlaws electronic solicitation of identifying information through misrepresentation (phishing). Expands venue in identity theft prosecutions to include county where victim resided. Creates fund to pay for analysis of electronic evidence in criminal investigations, financed through criminal fines. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: …

The Legal Character Of Private Codes Of Conduct: More Than Just A Pseudo-Formal Gloss On Corporate Social Responsibility, Veronica Besmer

UC Law Business Journal

Corporate codes, nothing more than statements that define a corporation's own best behavior, have become ubiquitous in today's business reality that witnesses ever-louder demands for greater corporate accountability. However, the codes' enforceability is uncertain, as they lack the statutory liability or the jurisdictional nexus in case of transnational enterprises. Still, consumers, who are increasingly socially and environmentally conscious, often reward any voluntary declaration of corporate social responsibility. This article outlines the current forms of regulations and reviews some legal enforcement theories. The author concludes that quasi-formal enforcement mechanisms such as stakeholder pressure and greater consumer demand for responsible corporate behavior …

Hastings Community (Summer 2004), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.

Disclosure Of Social Security Numbers, Confidential Information. Unfair Competition Actions. Telemarketing. Initiative Statute.

Initiatives

DISCLOSURE OF SOCIAL SECURITY NUMBERS, CONFIDENTIAL INFORMATION. UNFAIR COMPETITION ACTIONS. TELEMARKETING. INITIATIVE STATUTE. Prohibits businesses from disclosing consumers' social security numbers and confidential information except as specified. Allows identity theft victims to recover treble damages. Authorizes unfair competition actions to remedy violations of this measure and constitutional right of privacy; increases time to file such actions. Provides recovered monies be used to remedy harm, to prevent/redress such practices, or by court-approved fund for specified purposes. Allows remaining monies and civil penalties to be used for any purpose. Prohibits telemarketing calls from 5:00 p.m. to &:00 a.m. next day. Summary of …

Disclosure Of Social Security Numbers. Identity Theft Remedies. Unfair Competition Actions. Telemarketing Calls.Initiative Statute.

Initiatives

DISCLOSURE OF SOCIAL SECURITY NUMBERS. IDENTITY THEFT REMEDIES. UNFAIR COMPETITION ACTIONS. TELEMARKETING CALLS. INITIATIVE STATUTE. Prohibits businesses from disclosing consumers' social security numbers except as specified. Allows identity theft victims to recover treble damages. Authorizes unfair competition actions to remedy violations of this measure and constitutional right of privacy. Requires that monies obtained from unfair business practices be used to remedy harm, to prevent/redress unfair business practices, or by court-approved fund for other specified purposes. Allows remaining monies and civil penalties to be used for any purpose. Prohibits telemarketing calls from 5:00 p.m. to 8:00 a.m. next day. Summary of …

Disclosure Of Social Security Numbers. Unfair Competition Actions. Initiative Statute.

Initiatives

DISCLOSURE OF SOCIAL SECURITY NUMBERS. UNFAIR COMPETITION ACTIONS. INITIATIVE STATUTE. Prohibits businesses from disclosing consumer social security numbers for profit. Allows disclosure of social security number with consumer's express permission, to complete an authorized financial transaction or as required or permitted by federal law. Authorizes unfair competition actions to remedy violations of this measure and constitutional right of privacy. Requires that monies obtained from unfair business practices be used to remedy harm, to prevent/redress unfair business practices, or by court-approved fund for specified purposes. Allows any remaining monies and all civil penalties to be used for any purpose. Summary of …

Social Security Numbers And Consumer Confidential Information. Disclosure. Identity Theft Remedies. Unfair Competition Actions. Initiative Statute.

Initiatives

SOCIAL SECURITY NUMBERS AND CONSUMER CONFIDENTIAL INFORMATION. DISCLOSURE. IDENTITY THEFT REMEDIES. UNFAIR COMPETITION ACTIONS. INITIATIVE STATUTE. Prohibits businesses from disclosing consumer social security numbers and confidential information to third parties except as specified. Allows identity theft victims to recover treble damages. Authorizes unfair competition actions to remedy violations of this measure and constitutional right of privacy. Requires that monies obtained from unfair business practices be used to remedy harm, to prevent or redress unfair business practices, or by court-approved fund for other specified purposes. Allows any remaining monies and all civil penalties to be used for any purpose. Summary of …

Social Security Numbers. Disclosure. Identity Theft Remedies. Unfair Competition Actions. Telemarketing Calls. Initiative Statute.

Initiatives

SOCIAL SECURITY NUMBERS. DISCLOSURE. IDENTITY THEFT REMEDIES. UNFAIR COMPETITION ACTIONS. TELEMARKETING CALLS. INITIATIVE STATUTE. Prohibits businesses from disclosing consumers' social security numbers except as specified. Allows identity theft victims to recover treble damages from businesses. Authorizes unfair competition actions to remedy violations of this measure and constitutional right of privacy. Provides monies obtained from unfair business practices to be used to remedy harm, to prevent or redress unfair business practices, or by court-approved fund for other specified purposes; allows any remaining monies to be used for any purpose. Prohibits telemarketing calls from 5:00 p.m. to 8:00 a.m. next day. Summary …

Disclosure Of Consumer Confidential Information And Social Security Numbers. Unfair Competition Actions. Telemarketing Calls. Initiative Statute.

Initiatives

DISCLOSURE OF CONSUMER CONFIDENTIAL INFORMATION AND SOCIAL SECURITY NUMBERS. UNFAIR COMPETITION ACTIONS. TELEMARKETING CALLS. INITIA TIVE STATUTE. Prohibits businesses from disclosing consumer social security numbers and confidential information except as specified. Authorized unfair competition action to remedy violations of this measure and constitutional right of privacy. Requires that monies obtained from unfair business practices be used to remedy harm, to prevent or redress unfair business practices, or by court-approved fund for other specified purposes. Allows any remaining monies and all civil penalties to be used for any purpose. Prohibits telemarketing calls from 5:00 p.m. to 8:00 a.m. next day. Summary …

Disclosure Of Consumer Confidential Information. Unfair Competition Actions. Initiative Statute.

Initiatives

DISCLOSURE OF CONSUMER CONFIDENTIAL INFORMA TION. UNFAIR COMPETITION ACTIONS. INITIATIVE STATUTE. Prohibits businesses from disclosing consumers' confidential information except as specified. Authorizes unfair competition actions to remedy violations of this measure and constitutional right of privacy. Requires monies obtained from unfair business practices to be used to remedy harm, to prevent or redress unfair business practices, or by court-approved fund for other specified purposes. Allows any remaining monies and all civil penalties to be used by state and local agencies for any purpose. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local …

A New Player In The Boardroom: The Emergence Of The Independent Directors' Counsel, Geoffrey C. Hazard Jr., Edward B. Rock

Faculty Scholarship

No abstract provided.

The Case Against Secret Settlements (Or, What You Don't Know Can Hurt You), Richard Zitrin

Faculty Scholarship

No abstract provided.

The Judicial Politics Of White Collar Crime, J. Kelly Strader

UC Law Journal

White collar crime cases produce a curious paradox in Supreme Court jurisprudence: in a substantial number of the Court's leading white collar criminal cases, ranging from insider trading to political corruption cases, the "liberal" justices have voted to affirm convictions, and the "conservative" justices to reverse them. Even more frequently, these cases have produced strange alliances among the liberals and conservatives, who rarely split into such groupings in non-white collar criminal cases. And it is not merely votes and alliances that change in white collar cases; judicial philosophies, attitudes, and rhetoric transmogrify into a veritable twilight zone of Supreme Court …