Business Commons^™

2013 Jobs Act Review & Analysis Of Emerging Growth Company Ipos, Todd Blakeley Skelton

Transactions: The Tennessee Journal of Business Law

In April 2012, the U.S. Congress passed the Jumpstart Our Business Startups Act (the “JOBS Act”) with the goals of expanding access to capital markets and increasing flexibility in capital formation. In short, the JOBS Act eases restrictions imposed by federal securities laws. These laws—primarily the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Sarbanes-Oxley Act of 2002,5 as amended (the “Sarbanes-Oxley Act”), and the Dodd-Frank Wall Street Reform and Consumer Protection Act,6 as amended (the “Dodd-Frank Act”)—are intended to protect both investors and markets.

This article …

Vestigal Literalism In The Interpretation Of Corporate Financing Instruments, Royce De R. Barondes

Transactions: The Tennessee Journal of Business Law

Modernly, one will study the law of contracts as a homogeneous body of law. The conceptualization is helpful in creating an appearance of order, allowing for the development of analytical frameworks. The construct breaks down, however, on detailed inspection. This article provides an illustration by examining aspects of the law governing corporate finance—legal principles at the intersection of the law of contracts and corporation law.

This article examines the application of contract doctrine to corporate financing transactions to a number of ends. First, it illustrates substantial inconsistencies in the application of contract doctrine depending on the subject matter. Principles applied …

Dysfunction In Contract Drafting: The Causes And A Cure, Kenneth A. Adams

Transactions: The Tennessee Journal of Business Law

The primary task in empirical research is describing the characteristics of whatever it is you’re researching, but usually you also attempt to explain your findings. The skills required for the former task differ from those required for the latter, so it’s not unusual that explanations offered by those who undertake research are superseded by better explanations subsequently offered by others.

That comes to mind on reading The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design, by Mitu Gulati, a professor at Duke Law School, and Robert E. Scott, a professor at Columbia Law School. It …

Case Commentaries

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Front Matter And Faculty Notes

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Leveraging Property Tax Growth: Tax Increment Financing In Tennessee, G. Mark Mamantov, Jeffrey A. Oldham, Jordana K. Nelson, James P. Moneyhun Jr.

Transactions: The Tennessee Journal of Business Law

Local economic development officials face the daunting challenge of attracting new businesses and promoting worthy projects in challenging economic times, when every community in the country is prepared to vigorously compete for any new project. As local economic development officials in Tennessee strive to promote their communities, they try to utilize every possible tool in the economic development toolbox to make their location as attractive as possible. At the local level, however, the breadth of incentives in Tennessee is fairly limited, and the mythical toolbox is not very full.

However, one type of incentive that has become a tool frequently …

Abi Commission Testimony November 7, 2013, George W. Kuney

Transactions: The Tennessee Journal of Business Law

There are two areas that I believe should be the focus of Chapter 11 reform: reducing reorganization costs in small to middle-market cases and instituting a uniform structure and process for § 363 sales of substantially all the assets of a debtor. Essentially, I think that the plan process in all cases needs to be streamlined and sped up to decrease transactions costs, and the 363 sale process needs to be slowed down to promote more robust disclosure and exposure of the assets in question to the market.

Judge Rakoff V. The Securities And Exchange Commission: Are "Neither Admit Nor Deny" Settlement Agreements In Securities Cases In The Public Interest?, Daniel T. Hubbell

Transactions: The Tennessee Journal of Business Law

“DPAs [(Deferred Prosecution Agreements)] have had a truly transformative effect on particular companies and, more generally, on corporate culture across the globe,” declared Lanny Breuer, the head of the Criminal Division of the U.S. Department of Justice (DOJ) on September 13, 2012.2 Deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) are settlement agreements between a prosecutor and a defendant in which the prosecutor agrees to either defer or forego prosecution in return for the defendant’s cooperation in an ongoing investigation or prosecution, as well as an agreement to comply with the requirements of the settlement. Rather than forcing prosecutors to …

The University Of Tennessee College Of Law's Business Law Clinic Continues To Make An Impact For Students, Clients, And The Community, Michael R. Crowder

Transactions: The Tennessee Journal of Business Law

In 1992, the American Bar Association published a report entitled Legal Education and Professional Development – An Educational Consortium (commonly known as the MacCrate Report), and in 2007, the Carnegie Foundation published a report entitled Educating Lawyers: Preparation for the Profession of Law, (known as the Carnegie Report). Both reports made suggestions for improving the immediate usefulness of legal education, and, although published fifteen years apart, both reports essentially advocated the same thing: that legal education should place more of an emphasis on practical skills training in order to increase its usefulness to law graduates and their employers. The disconnect …

When Should Ediscovery Vendors Be Disqualified?, Michael A. Cottone

Transactions: The Tennessee Journal of Business Law

As a general proposition, courts have inherent authority to disqualify parties and their representatives and consultants from participating in litigation. Attorneys, expert witnesses, and litigation consultants may face disqualification motions in the event of a conflict of interest. With the rapid expansion of the eDiscovery industry, however, a new question has arisen: If an eDiscovery vendor has a potential conflict of interest, when should it be disqualified? What standard should apply?

Front Matter And Faculty Notes

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Proposed Subordination Provisions For Master Trust Indenture, Taylor K. Wirth

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Legal Form, Style, And Etiquette For Email, George W. Kuney

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Case Commentaries

Transactions: The Tennessee Journal of Business Law

No abstract provided.

A More Realistic Approach To Directors' Duties, Michelle M. Harner

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Willful Blindness, Plausible Deniability, And Tippee Liability: Sac, Steven Cohen, And The Court's Opinion In Dirks, Joan Macleod Heminway

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Using An Interviewing, Counseling, Negotiating, And Drafting Simulation In The First Year Legal Writing Program, Kirsten A. Dauphinais

Transactions: The Tennessee Journal of Business Law

No abstract provided.

The First Year: Integrating Transactional Skills, Lynnise E. Pantin

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Transactional Drafting: Using Law Firm Marketing Materials As A Research Resource For Teaching Drafting, Ted Becker

Transactions: The Tennessee Journal of Business Law

No abstract provided.

A Cultural Revolution: The Demise Of Corporate Culture Through The Whistleblower Bounty Provisions Of The Dodd-Frank Act, Rachel S. Taylor

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Hostess Brands, Inc. Bankruptcy, Kathryn K. Ganier, Frederick L. Conrad Iii, Wendy G. Patrick

Chapter 11 Bankruptcy Case Studies

In 1930, the Hostess Corporation[1] began as the Interstate Baking Corporation (IBC). In Kansas City Missouri, flour, wheat, and grain marched from machines as workers placed sliced white squares into Wonder Bread’s iconic yellow, red, and blue packaging.[2]

Hostess grew from its small town beginnings into a large corporation thanks in large part to its innovation in its product lines as well as growth through the acquisition of its competitors. By the end of 2012, “Hostess [was] one of the largest wholesale bakers and distributors of bread and snack cakes in the United States [and] operate[d] 36 bakeries, …

In Re Thq Inc. "Game Over", Henry Ned Hildebrand, Carlo Julio Salas, Taylor K. Wirth

Chapter 11 Bankruptcy Case Studies

(From Introduction)

Videogames have come a long way since PONG for Atari was introduced in 1972. The industry has advanced from simplistic 8-bit geometric shapes descending from players’ screens (Tetris) and a side-scrolling, overall-clad plumber saving a princess in a faraway land (Super Mario Bros.). Today, the global videogame industry is a $67 billion enterprise, consisting of hardware (gaming consoles like Nintendo and Playstation), software (the actual videogames themselves), and secondary markets (online games, mobile phones, and other devices). The major players in this enterprise are few—the “AAA” game developers. In the videogame industry, …

Force Out: A Dodgers Bankruptcy, Richard Marrero, Cj Fayton

Chapter 11 Bankruptcy Case Studies

The premise of a chapter 11 bankruptcy is that the business’ going concern value exceeds its liquidation value. It provides the debtor with an opportunity to restructure their debt so that they can pay back their creditors and stay in business.

The debtor’s filing of the bankruptcy petition creates an “automatic stay.”[1] The automatic stay is an injunction that prevents creditors from pursuing legal actions against the debtor and its assets. The automatic stay, however, protects not only the debtor but the creditors as well. In the absence of the automatic stay, creditors would “race to the courthouse” to …

In Re Dewey Ranch Hockey, Llc: The Bankruptcy Of The Phoenix Coyotes, Chris Rowe, Jeff Upshaw

Chapter 11 Bankruptcy Case Studies

While only a small percentage of Chapter 11 bankruptcy filings garner the attention of the American public, a bankruptcy petition involving a “big four” professional sports franchise (NFL, MLB, NBA, NHL) is big news to the American sports world. Perhaps the reason is that few, if any, commercial entities make such a passionate connection with its customers as professional sports teams.

In comparison to the other members of the “big four”, the NHL simply does not have the same level of financial success. Almost half of the 30 NHL franchises lost money in the 2011-2012 season.^[1] Of the nine …

Circuit City's Chapter 11 Bankruptcy, Jeff Smith, Peyton Hairston

Chapter 11 Bankruptcy Case Studies

Circuit City Stores, Inc. sold consumer electronics, personal computers, entertainment software, and appliances in the growing consumer electronics market.[1] Circuit City was founded by Samuel S. Wurtzel in 1949 under the name Wards Company. The store named “Wards” was an acronym of Wurtzel’s family name’s: “W” for Wurtzel, “A” for his son Alan, “R” for his wife Ruth, “D” for his son David, and “S” for his own name.[2] Circuit City was the first electronics superstore and was the nation’s second largest retailer of consumer electronics as recently as 2004.[3] Circuit City began the superstore concept for …

A Blockbuster Failure: How An Outdated Business Model Destroyed A Giant, Todd Davis, John Higgins

Chapter 11 Bankruptcy Case Studies

The rise of the Internet in the 1990s and 2000s rapidly created new markets. Companies like Apple seized on the ability to distribute music online for a lower price than independent record stores, or even large-scale ones like Tower Records could afford, driving record stores to near-extinction.[1] A similar fate has fallen upon the video rental stores. Giants Movie Gallery and Blockbuster, driven by physical rental stores, began struggling to compete with streaming and mailing platforms. Both were driven into bankruptcy because they failed to adapt quickly enough. A series of poor choices by Blockbuster, including passing on the …

2013 Revisions To The Tennessee Business Corporation Act, Trevor Mcelhaney

Transactions: The Tennessee Journal of Business Law

The Tennessee Business Corporation Act, as amended (“TBCA”), is the primary governing authority over the formation and operation of all Tennessee for-profit corporations. The TBCA was enacted in 1986 and became effective on January 1, 1987, replacing the Tennessee General Corporation Act of 1968. The TBCA is codified in sections 48-11-101 through 48-27-103 of the Tennessee Code Annotated.

In general, the TBCA was enacted as an enabling statute and was written to conform to the standards of the Revised Model Business Corporation Act (“MBCA”), which was adopted by the Corporate Law Committee of the Business Section of the American Bar …

Reforms For Hire: The Jobs Act Legislation, James E. Bitter, Todd B. Skelton

Transactions: The Tennessee Journal of Business Law

Just over ten years ago, following corporate and accounting scandals in which investors lost billions of dollars, Congress enacted the Sarbanes-Oxley Act of 2002. Sarbanes-Oxley reformed public accountability reporting standards, raising the costs of compliance. In 2010, following the recent financial crisis, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The Dodd-Frank Act further increased market regulation. Sarbanes-Oxley and the Dodd-Frank Act have together worked to stem market participation.

On April 5, 2012, President Barack Obama signed the bipartisan Jumpstart Our Business Startups Act (the “JOBS Act”). The JOBS Act now seeks to ease …

Front Matter

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Business Faculty Notes

Transactions: The Tennessee Journal of Business Law

No abstract provided.