Law Commons^™

Piercing The Shield Of U.C.C. Article 4a: Estate Of Levin V. Wells Fargo Bank’S, Implications For Terrorism Victims’ Attachment Of Blocked Electronic Wire Transfers Originating From State Sponsors Of Terrorism, Olivia Lu

University of Miami Business Law Review

This Piece examines how ambiguity in the property interests that would be subject to attachment under section 201 of the Terrorism Risk Insurance Act (“TRIA”) and section 1610(g) of the Foreign Sovereign Immunities Act (“FSIA”) has affected efforts by victims of terrorism to fulfill their monetary judgments, especially in light of courts’ use of Article 4A of the Uniform Commercial Code to fill the definitional gap. This Piece focuses on a recent D.C. Circuit decision, Estate of Levin v. Wells Fargo Bank, N.A., analyzing its implications for terrorism victims holding monetary judgments to attach blocked electronic funds transfers (“EFTs”) originating …

Bowlero Atlantic Station, Llc V. Regal Cinemas, Inc., Order On Motion To Compel Discovery, John J. Goger

Georgia Business Court Opinions

No abstract provided.

Bowlero Atlantic Station, Llc V. Regal Cinemas, Inc., Et Al., Order On Partial Motions To Dismiss, John J. Goger

Georgia Business Court Opinions

No abstract provided.

Bridging The Gap In Corporate Governance For Interlocking Directors In Colombia, Juan D. Ovalle

Emory Corporate Governance and Accountability Review

No abstract provided.

Controlling Moral Hazard In Limited Liability With The Consumer Sales Practices Act, Nathaniel Vargas Gallegos

Journal of Legislation

The few states that have passed the Model Consumer Sales Practices Act have common definitions and case law regarding the definition of a “supplier.” This definition is broad enough to include managers of companies in limited liability entities in the states that have adopted the model act. The practicality is that business principals, owners, and managers can be held personally liable for deceptive practices under the state acts. But this is not a piercing of the corporate veil or of the limited-liability company. This Article is meant to accomplish four purposes: (1) exhibit the origins of the act, (2) show …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Scholarly Articles

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

How European Human Rights Law Will Reshape U.S. Business, Rachel Chambers, David Birchall

UC Law Business Journal

In recent years several European states have enacted human rights due diligence laws, culminating in the imminent EU-wide Corporate Sustainability Due Diligence Directive.

This article provides a comprehensive analysis of these laws and explores their potential impact on U.S. businesses. Human rights due diligence emerges from the United Nations Guiding Principles on Business and Human Rights (2011) and was originally conceived as a voluntary means by which corporations could demonstrate that they proactively monitor and manage potential human rights abuses within their corporate group and supply chains. Since 2017, European states have begun enacting binding human rights due diligence laws. …

The Professional Employer Organization Regulatory Regime, Ursula Ramsey

UC Law Business Journal

No abstract provided.

Protecting Worker Health Data Privacy From The Inside Out, Elizabeth A. Brown

UC Law Business Journal

This article investigates three new opportunities for complementary public, private, and design-centric protections of worker health data, an overlooked yet critical area of data privacy regulation. The expansion of biometric monitoring, of the $50 billion femtech industry, and the commercial value of health data also underscore the need for greater protection of worker health data. Now that states are developing more comprehensive data privacy laws, it is critical to consider innovative solutions that build on the best of these laws nationwide. Especially after the Supreme Court’s Dobbs decision, the health data of women workers has become especially prone to misuse. …

The False Hope Of Stewardship In The Context Of Controlling Shareholders: Making Sense Out Of The Global Transplant Of A Legal Misfit, Dan W. Puchniak

Research Collection Yong Pung How School Of Law

In 2010, the United Kingdom issued the world’s first stewardship code. Since then, stewardship codes have been issued in many of the world’s leading economies and now exist in 20 jurisdictions on six continents, with more jurisdictions considering adopting them. In the UK, stewardship codes were promised to transform rationally passive institutional investors into actively engaged shareholders to prevent another Global Financial Crisis. More recently, the new 2020 UK Code has been promoted as a mechanism to save the planet by incentivizing institutional investors to pressure listed companies to focus on ESG.There is a vigorous debate and developed literature on …

Exiting The Disaster, Evading The Responsibility? Wadi Al-Qamar -- The Moon Valley, Suzan Nada

Perspectives

This essay explores a case that delivered no results for the complainants, where harm was not prevented, and where stakeholders who filed the complaint were not compensated. Investigated by the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC), the Wadi al-Qamar case illustrates some of the limitations of accountability mechanisms in limiting the harms caused directly or indirectly by projects in which the International Financial Institutions (IFIs) invest.

Ending 30 Years Of Imf Exceptionalism: A Call For An Accountability Mechanism At The International Monetary Fund, Luiz Vieria

Perspectives

This year marks the 30^th anniversary of the World Bank’s Inspection Panel (WBIP or Panel), created as the result of grass-roots and international pressure on the Bank to address the well-documented negative impacts on marginalised communities of the Bank-financed Narmada dam and similar projects.

The establishment of the world’s first independent accountability mechanism (IAM) at the World Bank led to the creation of similar mechanisms at nearly all international financial institutions (IFIs), with the IMF an important exception. The establishment of the WBIP and other IAMs was a step-change in accountability, as previously IFIs were only accountable to shareholders …

Unacceptable Means: The Inspection Panel Actions On World Bank Forcible Resettlement, Lori Udall

Perspectives

This essay reviews the World Bank’s Inspection Panel’s work on cases involving involuntary resettlement. Since its Inception, the Panel has received 89 requests involving resettlement (over half of all cases) and has investigated 32. It traces Panel cases, lessons learned, and advisory reports on resettlement and livelihood restoration. Despite the growing evidence through the years of resettlement failures, the World Bank continues to violate its own safeguard policies and repeat the same omissions and mistakes in projects. The essay concludes with recommendations for empowering the Inspection Panel and for the Bank to move towards bottom-up community development that better addresses …

How A “Superstar” Ceo Exposes The Necessity For Third Party D&O Insurance, Angela N. Aneiros, Karen Woody

Scholarly Articles

he influence that “superstar” CEOs have over a company’s board of directors can be alarming. Among other things, Elon’s ability to skirt personal liability for seemingly obvious breaches of duty has raised concerns within the realm of corporate governance and corporate regulation. While much has been written on Elon’s influence on Tesla’s board of directors, one area of the law that often gets overlooked that has exacerbated Elon’s corporate governance issues, is that of directors and officers (D&O) liability insurance. While personally insuring board members seems like a very "Elon" move, it could have broader implications beyond Elon. Are “superstar” …

Esg As A Test Case For The Convergence Thesis In Corporate Law: Notes From India, Rudresh Mandal

LL.M. Essays & Theses

This paper uses four concepts key to the ESG agenda – investor stewardship codes, corporate purpose, independent directors and ESG disclosures – to examine which way the corporate convergence pendulum is swinging in India. It finds that none of the aforesaid concepts are examples of perfect convergence or perfect divergence. Instead, they lie somewhere in the convergence-divergence matrix – India’s investor stewardship codes and framework on independent directors are examples of formal convergence but functional divergence, and her corporate law provisions on corporate purpose and ESG disclosure are functionally convergent, but formally divergent. The dichotomies in the analysis are explained …

Catalyzing Climate Resilience In The Electric Utility Sector: Investor-Backed Utilities Must Prepare For The Approaching Storm, Jose J. Gonzalez

Emory Corporate Governance and Accountability Review

Communities and businesses that fail to take proactive measures will be devastated by the impacts of climate change. Across the United States, public and private entities have taken steps to protect companies and communities from climate change. However, financial restrictions and shareholder concerns have slowed such a response from the electric utility sector. This inaction has devastated communities such as Paradise, California and Lahaina, Hawaii. This Comment identifies how electric utility companies should utilize recently passed federal legislation, including the Bipartisan Infrastructure Law and Inflation Reduction Act, to finance large-scale projects to update America's power grid. This Comment also argues …

Antitrust, Labor Markets, And Issue-Spotting Dei Initiatives, Francesca Pisano

Emory Corporate Governance and Accountability Review

No abstract provided.

The End Of Remedies?, Joshua Shapiro

Emory Corporate Governance and Accountability Review

No abstract provided.

Negotiating For Certainty In An Uncertain World, Matthew D. Kent

Emory Corporate Governance and Accountability Review

No abstract provided.

When Can An Agreement On Environmental Policies Comply With U.S. Antitrust Laws?, Nathan Mendelsohn

Emory Corporate Governance and Accountability Review

No abstract provided.

Lobbying By Brief: Unveiling The Dominance Of Amicus Lobbying In The Development Of Business Law, Tomer Stein, W.C. Bunting

Scholarly Works

This Article uncovers the pervasive and significant impact of business law Amicus Lobbying, a strategic tactic whereby lobby groups have commandeered the amicus curiae filing process in state courts to shape business law according to their interests.

The Article makes three primary contributions to the literature. First, it presents the only comprehensive dataset of amicus curiae filings in business law cases. This hand-collected dataset encompasses nearly all business law amicus curiae filings from 2005 to 2022 in the key jurisdictions of New York, California, Delaware, Texas, and Nevada. Second, it reveals a striking empirical finding: lobby groups account for 67% …

Why Do Banks Fail Together? Evidence From Executive Compensation, Deniz Anginer, Jinjing Liu, Cindy A. Schipani, H. Nejat Seyhun

Fordham Journal of Corporate & Financial Law

Recent bank failures have elicited extensive interest about the causes, focusing on incompetence of bank executives, policymakers, bank regulators and supervisors and even uninsured depositors. Yet, before we can prescribe solutions to bank failures, we need to identify the correct causes of the underlying problems. We argue that the problem is not so much with incompetence of executives, depositors, or regulators per se, but rather with managerial incentives.

We provide both a conceptual basis as well as empirical evidence to show that bank executives have incentives to increase systemic risks in order to maximize the benefits of bank bailouts. Consequently, …

Minutes Are Worth The Minutes: Good Documentation Practices Improve Board Deliberations And Reduce Regulatory And Litigation Risk, Given As The 21st Annual Destefano Lecture, Leo E. Strine Jr.

Fordham Journal of Corporate & Financial Law

This Essay, originally the basis for the 21st Annual Albert A. DeStefano Lecture on Corporate, Securities & Financial Law given on February 27, 2024, at Fordham University School of Law, addresses the importance of good corporate minuting and board documentation practices. Using lessons from Delaware cases where the quality of these practices has determined the outcome of motions and cases, this Essay identifies effective and efficient practices to better address this decidedly not sexy, but unquestionably essential, corporate governance task. The recent Delaware cases underscore the importance of quality and timely documentation of board decision-making, the material benefits of doing …

A Bona Fide Dispute: Can Bankrupt Debtors Sell Assets Free And Clear Of Federal Civil Forfeiture Claims?, Joseph Peter Gomez

Fordham Journal of Corporate & Financial Law

Auctions are wheeling-dealing extravaganzas in which frenzies of bidders fight over shiny objects. What would happen if the government busted down the doors of the auction house, took the shiny objects, and sold them online? An asset sale through section 363(b) of the Bankruptcy Code provides a court-supervised opportunity to maximize economic value for the bankruptcy estate. To sell estate assets, the debtor must either (1) pay off each creditor holding an interest in the assets or (2) strip the creditor’s interest and attach it to the proceeds of the sale. When the government asserts a civil forfeiture claim against …

Another Major Question: The Department Of Labor Should Retire The Tiebreaker Rule And Reemploy Pecuniary Language In Erisa, Brandon Chesner

Fordham Journal of Corporate & Financial Law

The Employee Retirement Income Security Act of 1974 (“ERISA”) soon turns 50. Instead of celebrating with cake, retirees and future retirees alike get to witness a new chapter in the debate over the consideration of Environmental, Social, or Governance (“ESG”) factors in investing with plan assets. As employees cross the bridge into retirement, they look to their 401(k)s and pension plans for peace of mind, for it is ERISA that has been working silently in the background establishing minimum standards, practices, and fiduciary duties to protect participants. In recent years, the U.S. Department of Labor (“DOL”) has passed three regulations—two …

Corporate Esg Falls Short: Systemic Anti-Black Racism And Inequality Should Be Addressed Through A Cumulative Integrated Approach, Ferrell L. Littlejohn

Fordham Journal of Corporate & Financial Law

In the 1896 case Plessy v. Ferguson, the Supreme Court endorsed the “separate but equal” doctrine, essentially codifying racial segregation. This decision guaranteed that systemic racism would permeate every fabric of society despite the abolition of slavery. Recently, many corporate institutions have pledged to actively support the fight against systemic racism through their environmental, social, and governance (“ESG”) initiatives. Corporate stakeholders have actively advocated for these initiatives, particularly in response to recent scholarship revealing the significant involvement of capitalist institutions in historical slavery, and the continued perpetuation of anti-Black racism. Nevertheless, such initiatives, for example, internal diversity, equity, and …

Speech Without Speakers: Eliminating Artificial Barriers To Pleading Corporate Scienter In Securities Fraud Claims, Jennifer Ligansky

Fordham Journal of Corporate & Financial Law

To successfully plead securities fraud claims under Rule 10b–5, the Private Securities Litigation Reform Act (“PSLRA”) requires that plaintiff-investors raise a “strong inference” that the defendant acted with scienter when issuing a false statement. But pleading scienter presents a challenging issue when the defendant is not a person, but an entity. When the defendant is a corporation, U.S. Circuit Courts of Appeals have adopted different approaches for determining whether the plaintiff has pleaded a strong inference of scienter. Some circuits hold that plaintiffs can raise a strong inference of corporate scienter only if the complaint identifies a speaker who knew …