Digital Commons Network^™

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

William & Mary Law Review

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

Real Housewives & Real Crimes: The Implications Of Broadened Privacy Rights On White-Collar Offenses, Shrinithi Venkatesan

William & Mary Business Law Review

Reality television stars turn their fame into fortune, often blurring ethical lines as they exploit their platforms for personal gain. These personalities engage in fraud, tax evasion, and embezzlement, all while maintaining a prominent presence on-screen. Specifically, stars on The Real Housewives franchise realize tremendous successes from their stints on the famous television show by capitalizing on their exposure through social media. With their newfound wealth and fame, many of these stars commit white-collar crimes under their viewers’ watchful eyes. This Note examines three prevailing examples of reality television stars who committed various white-collar crimes. Interestingly, networks tolerate criminal behavior …

Forensic Accounting And Valuation In Delaware Litigation, J.W. Verret

William & Mary Business Law Review

This Article describes the forensic accounting and valuation tools available to Delaware litigators in commercial and corporate litigation as well as family law. Further, it details the licensing process and standards applicable to forensic accountants and shows how the methods utilized in this profession can assist litigators in a variety of contexts. Delaware cases in which courts have accepted or limited the use of expert forensic accountant testimony are explored and general principles for utilizing forensic accounting expertise in Delaware litigation are developed. The uses of forensic accounting in Delaware litigation are demonstrated across appraisal actions, divorce cases, fraud and …

Contagion. Ftx, A Sector's Crisis & Crypto's Silent Victims, Lev E. Breydo

Faculty Publications

Late 2022 was crypto’s Minsky moment, characterized by wholesale sector collapse and over a dozen major bankruptcies, including FTX’s implosion. For millions of investors, it was the worst of all worlds, combining the frenetic contagion of 2008 with consumer protections most reminiscent of the Panic of 1907.

While the industry’s challenges are often attributed to the nature of crypto itself, the true root cause reflects a fundamental category error. This Article’s comprehensive market taxonomy identifies as the sector’s nexus of risk entities it terms “Crypto Platforms,” like FTX. Crypto Platforms are essentially financial institutions – a cauldron of externalities subject …

Digital Asset Regulation: Peering Into The Past, Peering Into The Future, Kevin Werbach

William & Mary Law Review

Blockchain is often compared to the internet as a disruptive technology that will realign economic structures across the world. This analogy extends to law and regulation. Similar to internet-based services, digital assets raise a host of challenges for policymakers. They also pose general questions regarding the desirability and practicality of regulating decentralized systems. Such debates play out against a backdrop of concerns that regulatory action will chill innovation or push market activity to more tolerant jurisdictions. The story of internet policy in the late 1990s and early 2000s therefore provides important lessons for policymakers today when confronting digital assets. Two …

Article Iii Standing, The Sword And The Shield: Resolving A Circuit Split In Favor Of Data Breach Plaintiffs, R. Andrew Grindstaff

William & Mary Bill of Rights Journal

The recent proliferation of data breaches is one such event requiring a rethreading of standing doctrine. The Courts of Appeal are currently split on whether to allow or deny standing for data breach plaintiffs—those persons seeking recourse from the entities that fell victim to the breach and therein lost plaintiffs’ data to an unknown third party. Standing requires plaintiffs to show some injury, and how courts approach the concept of injury in these data breach cases determines whether plaintiffs will survive the standing analysis. Despite the disparate treatment of litigants across the circuits, the Supreme Court has repeatedly punted when …

Fraud Against Financial Institutions: Judging Materiality Post-Escobar, Matthew A. Edwards

William & Mary Business Law Review

In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court held that proof of materiality is required for convictions under the federal mail, wire and bank fraud statutes. During the past 20 years, the federal courts have endeavored to apply the complex common law concept of materiality to the federal criminal law context. The Supreme Court’s recent decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), a civil case involving the False Claims Act, provided the federal appellate courts with an ideal opportunity to reconsider materiality standards in federal fraud …

Mother Nature Needs Her Sox: Reviewing The Impetus And Goals Of The Increased Financial Regulations Of The Sarbanes-Oxley Act And How They Parallel The Needs Of Today's Environmental Protection Agency, Scott Meyer

William & Mary Environmental Law and Policy Review

As climate change and natural disasters appear to be increasingly prevalent across the United States, the question of how to respond to these threats looms large. Arguably, the Environmental Protection Agency (“EPA”) represents the tip of that responding spear. The agency, literally dedicated to protecting the environment, is positioned to drive industry environmental standards, set sustainable metrics, and even determine thresholds for habitable life.

Looks can be deceiving, though. This Note examines the current state of the EPA, and the minimal effect it currently has on penalizing and deterring industry environmental degradation. It specifically focuses on a number of high-profile …

Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky

William & Mary Business Law Review

The Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.

In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of the purpose of …

Regulating Culture: Improving Corporate Governance With Anti-Arbitration Provisions For Whistleblowers, Nizan Geslevich Packin, Ben Edwards

William & Mary Law Review Online

A focus on corporate culture, especially at financial institutions, has emerged as a regulatory, public, and media priority in the aftermath of the 2008 financial crisis. With Dodd-Frank, Congress embraced whistleblower statutes as a key instrument to improve corporate culture and governance, and to extirpate undesired and unethical business practices. Despite the clear policy goals, Dodd- Frank’s unclear statutory text has created interpretative controversies. Although Dodd-Frank adds anti-arbitration provisions to preexisting whistleblower statutes, it does not include a dedicated, standalone anti-arbitration provision for Dodd-Frank’s new whistleblower cause of action. This Article argues that courts should not allow employers to use …

Corporate Governance In An Era Of Compliance, Sean J. Griffith

William & Mary Law Review

Compliance is the new corporate governance. The compliance function is the means by which firms adapt behavior to legal, regulatory, and social norms. Formerly, this might have been conceived as a typical governance matter to be handled at the discretion of the board of directors. Compliance, however, does not fit traditional models of corporate governance. It does not come from the board of directors, state corporate law, or federal securities law. Compliance amounts instead to an internal governance structure imposed upon the firm from the outside by enforcement agents. This insight has important implications, both practical and theoretical, for corporate …

Broker-Dealers, Institutional Investors, And Fiduciary Duty: Much Ado About Nothing?, Lynn Bai

William & Mary Business Law Review

Under the mandate of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the SEC is soliciting public opinions on whether broker-dealers should be subject to a fiduciary duty when advising retail and institutional investors. This Article focuses on the advisability of such a proposal for institutional investors. It shows that, first, a fiduciary duty could potentially enhance broker-dealers’ standard of conduct for only a subset of institutional investors who are well capitalized, capable of assessing risks independently, and acknowledge in writing their nonreliance on broker-dealers’ advice. Thus, the benefit of fiduciary duty is much narrower than what …

Crop Insurance Fraud And Misrepresentations: Contemporary Issues And Possible Remedies, Chad G. Marzen

William & Mary Environmental Law and Policy Review

No abstract provided.

Internet Voting, Security, And Privacy, Jeremy Epstein

William & Mary Bill of Rights Journal

No abstract provided.

Finding Equilibrium: Exploring Due Process Violations In The Whistleblower Provisions Of The Fraud Enforecement And Recovery Act Of 2009, Laura Hough

William & Mary Bill of Rights Journal

No abstract provided.

Investors And Employees As Relief Defendants In Investment Fraud Receiverships: Promoting Efficiency By Following The Plain Meaning Of "Legitimate Claim Or Ownership Interest", Jared A. Wilkerson

W&M Law Student Publications

Relief defendants are nominal, innocent parties who hold funds traceable to the receivership but have no legitimate claim or ownership interest in them. These nominal parties, as opposed to full or primary defendants, have no cause of action asserted against them, and if they show no legitimate claim to the funds traced to the receivership, the funds are disgorged — generally at summary judgment. This seemingly simple relief defendant tool is used by receivers and regulatory agencies to quickly recover receivership funds for ultimate distribution to creditors. Recently, however, conflict has arisen in federal courts concerning the meaning of “legitimate …

Washington Tax Legislative Update: Weathering The Gathering Storm, Jonathan Talisman

William & Mary Annual Tax Conference

No abstract provided.

Betting On The Wrong Horse: The Detrimental Effect Of Noncompliance In The Internet Gambling Dispute On The General Agreement On Trade In Services (Gats), Kathryn B. Codd

William & Mary Law Review

No abstract provided.

The Federal Government Lawyer's Duty To Breach Confidentiality, James E. Moliterno

Faculty Publications

The lawyer's duty of confidentiality springs from the lawyer-client relationship and its parameters are determined by the nature of that relationship. The federal government lawyer's client is like no other. The uniqueness of representing the United States calls for a unique approach to the duty of confidentiality. Unlike the private individual client, the government as a client does not speak with a single, unmistakable voice. Unlike the private entity client, the federal government has a paramount interest in the public good, including the public's right to know about government (the entity's conduct), especially its misconduct. The result is a client …

The Advocate (Vol. 2, Issue 8)

Student Newspaper (Amicus, Advocate...)

No abstract provided.

Historical Quirks, Political Opportunism, And The Anti-Loan Provision Of The Sarbanes-Oxley Act, Jayne W. Barnard

Faculty Publications

No abstract provided.

The Entrapment Defense: An Interview, Paul Marcus

Faculty Publications

No abstract provided.

An Economic Analysis Of The Private Securities Litigation Reform Act: Auctions As An Efficient Alternative To Judicial Intervention, Charles H. Gray

William & Mary Law Review

No abstract provided.

Criminal Copyright Infringement, I. Trotter Hardy

William & Mary Bill of Rights Journal

No abstract provided.

Can The "Public Interest" Justify Non-Consensual Searches Of Homes In Bankruptcy Cases?, A. Mechele Dickerson

William & Mary Bill of Rights Journal

No abstract provided.

Bits And Bytes: The Carnivore Initiative And The Search And Seizure Of Electronic Mail, Sandy D. Hellums

William & Mary Bill of Rights Journal

This Note examines the application of Fourth Amendment search and seizure doctrines to the interception of electronic mail within the context of the FBI Carnivore initiative. The author argues that the traditional law of electronic surveillance's understanding of communication is outdated and never contemplated new technologies like Carnivore and their far reaching implications. Consequently, the author argues, that to protect our long-understood expectations of privacy, the search and seizure of electronic documents should be analyzed under the traditional papers analysis. To do so, the Supreme Court would afford the interception electronic documents the highest form of constitutional protect available under …

Safeguarding Juror Privacy: A New Framework For Court Policies And Procedures, Paula Hannaford-Agor

Faculty Publications

This article briefly discusses the difficulty courts face in balancing the privacy of citizens summoned for jury service with the rights of litigants and the public to information about those individuals. I propose that focusing on the content of the information re­quested of prospective jurors and the purposes for which juror infor­mation is used by courts provides a more helpful analysis than the legal framework traditionally employed in case law. Specifically, I argue that distinguishing between information that is relevant and information that is not relevant to the fairness or im­partiality of prospective jurors should be the primary analytical framework …

Section 3: The Court And Race Relations, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Ethical Issues In Tax Practice, Robert I. Brauer, James P. Holden

William & Mary Annual Tax Conference

No abstract provided.

When Is A Corporate Executive "Substantially Unfit To Serve"?, Jayne W. Barnard

Faculty Publications

The recently enacted Securities Enforcement Remedies and Penny Stock Reform Act of 1990 provides that, in an SEC enforcement action, a federal court may enjoin or "disbar" the defendant from serving in the future as an officer or director of a public company. A court may enter such an order if it finds that the defendant is "substantially unfit" to serve as a corporate executive; the Act, however, does not define "substantial unfitness." In this Article Professor Jayne Barnard provides a framework for defining this term and identifying the defendants to which the Remedies Act should apply. Professor Barnard begins …