Business Commons^™

Is A Ban On Non-Competes Supported By Empirical Evidence?, Sarah Oh Lam, Thomas Lenard, Scott Wallsten

Fordham Journal of Corporate & Financial Law

The U.S. Federal Trade Commission (FTC) has proposed a rule to declare virtually all non-compete agreements unfair methods of competition under Section 5 of the FTC Act and therefore, illegal. However, the empirical literature on non-compete agreements cited by the FTC in its Notice for Proposed Rulemaking (“NPRM”) shows mixed results on earnings, job creation, firm formation, entrepreneurship, training, investment, and firm value. Evidence in other current studies also does not support an economy-wide ban. The FTC concludes that the proposed rule would yield net benefits even though by its own admission it lacks the information necessary to conduct a …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

Divined Comity: Assessing The Vitamin C Antitrust Litigation And Updating The Second Circuit’S Prescriptive Comity Framework, William Weingarten

Fordham Journal of Corporate & Financial Law

In re Vitamin C Antitrust Litigation, recently decided by the Second Circuit, sets a grave precedent for American plaintiffs seeking redress for antitrust injuries wrought by foreign defendants. The case involved a group of Chinese manufacturers and exporters of vitamin C, who conspired to fix prices and restrict output in the export market, injuring American consumers in import commerce. The foreign manufacturers conceded that they had colluded in fixing prices and restricting output, in flagrant violation of U.S. antitrust law. And yet, with the assistance of the Chinese government—intervening as amicus curiae—the defendants were successfully able to argue, on appeal …

How Trade Liberalization And Labor Development Could Coincide In The Philippines, Aeneas Dr Hernandez, Brendan Emmanuel A. Miranda, Martin William P. Regulano, Andrae Jamal Tecson, Martin William P. Regulano, Ma. Ella Oplas, Tereso S. Tullao Jr, Winfred M. Villamil

Angelo King Institute for Economic and Business Studies (AKI)

As the world adapts to the rapid pace of globalization in the 21st century, countries ease trade restrictions by gradually removing tariffs and non-tariff barriers to incentivize the free flow of goods across nations. This prevalence of trade liberalization policies propelled policymakers and economists to investigate the relationship between trade reforms and economic outcomes including wage inequality around the world. They found that trade liberalization, on average, has had a positive impact on economic growth, but prior studies that examine the effects of trade liberalization on wage inequality in developing countries have found mixed results. Recently, Murakami (2021) examined the …

Comment Letter On Sec’S Proposed Rule On Conflicts Of Interest Associated With The Use Of Predictive Data Analytics By Broker-Dealers And Investment Advisers, File Number S7-12-23, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Faculty Works

This comment letter responds to the Securities and Exchange Commission’s proposed rule Release Nos. 34-97990; IA-6353; File Number S7-12-23 - Conflicts of Interest Associated with the Use of Predictive Data Analytics by Broker-Dealers and Investment Advisers. Our comments draw on our scholarship relating to laypersons’ participation in securities markets and the corporate sector as well as on the role of technology in corporate governance.

We express concerns that the SEC’s proposed regulation undermines individuals’ ability to access capital markets in an efficient and cost-effective manner. In the era of excessive concentration of equities ownership and power, often with negative societal …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Antitrust Interoperability Remedies, Herbert J. Hovenkamp

All Faculty Scholarship

Compelled interoperability can be a useful remedy for dominant firms, including large digital platforms, who violate the antitrust laws. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.

Given the wide variety of structures and business models for big tech, “interoperability” must be defined broadly. It can realistically include everything from “dynamic” interoperability that requires real time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real time interactions. Also included are the compelled sharing of intellectual property or …

The Battle With Big Tech: Analyzing Antitrust Enforcement And Proposed Reforms, Youngjae Lee, Morgan Hagenbuch

Fordham Journal of Corporate & Financial Law

No abstract provided.

Endogenous Market Choice, Listing Regulations, And Ipo Spread: Evidence From The London Stock Exchange, Hafiz Hoque, John Doukas

Finance Faculty Publications

This study examines the endogenous market choice and its impact on underwriter spread if Alternative Investment Market (AIM) IPOs that meet Main Market (MM) listing requirements had issued equity in the MM during the 1995–2021 period. We find that the spread is 1.33% higher in the AIM than the MM for IPO listings that meet the MM listing requirements. This finding suggests that AIM companies, meeting the MM listing requirements, could have saved more than £100 million by going public through the MM than the AIM market. We also find that this spread differential is attributed to the issuing firms' …

The Power Of Antitrust Personhood, Herbert Hovenkamp

University of Pennsylvania Journal of Business Law

Antitrust law addresses conspiracy, or collaborative conduct, more harshly than it does unilateral conduct. One person acting alone can get away with far more than groups of firms acting by agreement. In most cases that distinction is justified. Creating substantial market power unilaterally is difficult and relatively uncommon, but it can be created in a moment’s time by an agreement among firms. But how do antitrust tribunals determine when conduct is unilateral rather than collaborative? Often the ansawer is obvious, but sometimes it is not. Two statutory provisions were intended to be the umpire of such decisions. A section of …