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Business Organizations Law

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2021

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The Cost Of Doing Business? Corporate Registration As Valid Consent To General Personal Jurisdiction, Matthew D. Kaminer Oct 2021

The Cost Of Doing Business? Corporate Registration As Valid Consent To General Personal Jurisdiction, Matthew D. Kaminer

Washington and Lee Law Review Online

Every state has a statute that requires out-of-state corporations to register with a designated official before doing business there, but courts disagree on what impact, if any, those statutes can or should have on personal jurisdiction doctrine. A minority of states interpret compliance with their registration statutes as the company’s consent to general personal jurisdiction, meaning it can be sued on any cause of action there, even those unrelated to the company’s conduct in that state. The United States Supreme Court upheld this “consent by registration” theory over 100 years ago, but since then has manifested a sea ...


A Gilti Fix For An Employment Tax Glitch, Richard Winchester Sep 2021

A Gilti Fix For An Employment Tax Glitch, Richard Winchester

Pepperdine Law Review

Self-employed individuals who operate through a business entity can often dictate how much employment tax they pay, if any. That’s because the rules permit them to control whether their earnings count as labor income – which is subject to employment tax – or the returns on any capital invested in their business – which is not subject to the tax. The GILTI rules enacted as part of the 2017 Tax Act assume that capital investments generally earn a 10 percent annual rate of return. That same assumption can be used to allocate the earnings of a self-employed individual between the income from ...


Bill Ab5 And The Gig Economy, Peter Buckley Aug 2021

Bill Ab5 And The Gig Economy, Peter Buckley

University of Miami Business Law Review

This paper explores California Assembly Bill No. 5 and its effect on the “gig economy.” Notably, this paper takes an in-depth look at companies providing cheap services to California residents and the detrimental effects on California business models by labeling independent contractors as employees. I will contrast the Bill with previous California court decisions on independent contracts and the joint ballot initiatives being jointly proposed by Uber, Lyft, DoorDash, and other gig companies. Within this paper I will refer to workers as “drivers” for the sake of simplicity; however, it should be noted that these companies refer to them as ...


Rock The Cash-Bah! How Alston Presents A New Challenge To The Amateurism Justification And Ways The Ncaa Can Modernize To Remain Afloat, John Y. Doty Aug 2021

Rock The Cash-Bah! How Alston Presents A New Challenge To The Amateurism Justification And Ways The Ncaa Can Modernize To Remain Afloat, John Y. Doty

University of Miami Business Law Review

During the last decade, antitrust litigation involving Division I athletes and the NCAA has resulted in changes to the NCAA’s rules, presenting a threat to amateurism. As athletes have voiced concerns about their likeness being used without permission in video games, the difficulty of balancing sports and academics, and going to bed hungry when millions of dollars in profits are being made off of them, the NCAA has allowed conferences and schools to provide student-athletes with stipends for cost of attendance expenses. However, even though the NCAA has modified its rules, athletes continue to ask for more, and courts ...


Wells Fargo & Co. V. U.S.: A Potential Beginning Of The End Of The Objective Reasonable Basis Tax Penalty Defense, Beckett G. Cantley, Geoffrey C. Dietrich Aug 2021

Wells Fargo & Co. V. U.S.: A Potential Beginning Of The End Of The Objective Reasonable Basis Tax Penalty Defense, Beckett G. Cantley, Geoffrey C. Dietrich

University of Miami Business Law Review

The Internal Revenue Code (“IRC”) § 6662(a) permits the IRS to impose a twenty-percent (20%) accuracy-related penalty to an underpayment of tax, and there are several different defenses to this penalty depending on the facts of the case and the reason for the penalty.3 One of the most common accuracy-related penalties is the negligence penalty.4 Although there are multiple different reasons for the application of an accuracy-related penalty, only one penalty may be applied for each understatement.5 If a taxpayer faces the negligence penalty, one common defense is that the taxpayer’s return position has a reasonable ...


A Means To An End: How The Expansion Of The Federal Arbitration Act Of 1925 By The Supreme Court Created A Loophole For Corporations To Avoid Claims By Consumers And Workers Alike, Brittany L. Pushkin Aug 2021

A Means To An End: How The Expansion Of The Federal Arbitration Act Of 1925 By The Supreme Court Created A Loophole For Corporations To Avoid Claims By Consumers And Workers Alike, Brittany L. Pushkin

University of Miami Business Law Review

A Means to an End: How the Expansion of The Federal Arbitration Act of 1925 by the Supreme Court Created a Loophole for Corporations to Avoid Claims by Consumers and Workers Alike Arbitration is rarely thought of outside the legal and business world by the everyday lay person. Whether we know it or not—all of us, in some capacity, have agreed to a mandatory arbitration clause. A contract for cellular service, an employer-employee arrangement, or an agreement to open a bank account are just a few common examples that lock not only clients, but also employees, in contracts that ...


A More Pixelated Union: A Look At The Path To Unionization In The Video Game Industry Under Trump’S National Labor Relations Board, William C. Selfridge Aug 2021

A More Pixelated Union: A Look At The Path To Unionization In The Video Game Industry Under Trump’S National Labor Relations Board, William C. Selfridge

University of Miami Business Law Review

In the past twenty years, the video game industry has become one of the largest entertainment industries not only in the United States but in the entire world. Yet as video game sales continue to increase at massive rates, it seems the conditions for those making the games have not improved with it, at least according to some in the know. While other entertainment industries have moved to unionize, those in the video game industry have yet to take that leap. To make matters worse, during the administration of President Donald J. Trump, the National Labor Relations Board (“NLRB”) shifted ...


The Hottest Employee Benefit Of 2020: Employers Offer To Repay Employees’ Student Loan Debt, Anne Kotlarz Aug 2021

The Hottest Employee Benefit Of 2020: Employers Offer To Repay Employees’ Student Loan Debt, Anne Kotlarz

University of Miami Business Law Review

The Student Loans Crisis has spread like wildfire reaching a whopping $1.56 trillion worth of debt. What started off as the Federal government’s initiative to encourage Americans to invest in their future through obtaining secondary education, has turned into a systemic crisis that burns just as hot as global warming. Lobbyists are currently petitioning Congress to enact meaningful legislation to extinguish the flames of the growing student loan debt. Most notably, the private sector is proposing congressional reform to amend the tax code to enable employers to offer employees student loan repayment assistance tax-free. This article delves into ...


Litigating California Contracts, Curtis E.A. Karnow Jul 2021

Litigating California Contracts, Curtis E.A. Karnow

Hastings Business Law Journal

No abstract provided.


Masthead Jul 2021

Masthead

Hastings Business Law Journal

No abstract provided.


Financial Benchmark Control As Monopoly Power, Sharon E. Foster Jul 2021

Financial Benchmark Control As Monopoly Power, Sharon E. Foster

Hastings Business Law Journal

No abstract provided.


Cinderella’S Slipper: A Better Approach To Regulating Cryptoassets As Securities, Carol R. Goforth Jul 2021

Cinderella’S Slipper: A Better Approach To Regulating Cryptoassets As Securities, Carol R. Goforth

Hastings Business Law Journal

The Securities and Exchange Commission (SEC) seeks both to protect investors and to promote efficient capital formation, but in the context of cryptoassets these goals sometimes collide. The SEC vigorously reacts to fraudulent offerings of cryptoassets but has had to do so by forcing crypto into an antiquated framework designed with very different interests in mind. Even worse than the convoluted and complex arguments needed to force crypto into the existing category of “investment contracts,” once crypto is treated as a security, a host of onerous and inapt disclosure requirements and regulations follows. Developers, promoters, exchanges, and others who might ...


Development And Application Of Business Valuation Methods By The Delaware Courts, Edmund H. Mantell, Edward Shea Jul 2021

Development And Application Of Business Valuation Methods By The Delaware Courts, Edmund H. Mantell, Edward Shea

Hastings Business Law Journal

No abstract provided.


Bart: The Enron Of Public Transit The Need For Csr In U.S. Public Transportation, Nicole Mirkazemi Jul 2021

Bart: The Enron Of Public Transit The Need For Csr In U.S. Public Transportation, Nicole Mirkazemi

Hastings Business Law Journal

No abstract provided.


How The “Exception” Becomes The Standard, Margeaux Bergman Jul 2021

How The “Exception” Becomes The Standard, Margeaux Bergman

Hastings Business Law Journal

No abstract provided.


Marchand V. Barnhill'S Impact On The Duty Of Oversight: New Factors To Assess Directors' Liability For Breaching The Duty Of Oversight, Katherine M. King Jun 2021

Marchand V. Barnhill'S Impact On The Duty Of Oversight: New Factors To Assess Directors' Liability For Breaching The Duty Of Oversight, Katherine M. King

Boston College Law Review

In 2019, in Marchand v. Barnhill, the Delaware Supreme Court reversed the dismissal of a complaint alleging that the defendants, Blue Bell directors, breached their duty of oversight. In doing so, the court invoked two new factors—whether the corporation is monoline and whether it is heavily regulated—to consider when evaluating claims against directors for an oversight failure. These factors inform whether a court can identify an essential compliance concern, such that a court can infer the directors violated their obligation to act in good faith by consciously disregarding a known duty. This inference allows a court to find ...


"There Is No Planet 'B'": How U.S. Music Festival Production Companies Can Reduce Their Negative Environmental Impact By Incorporating As A Benefit Corporation, Bryce Ballard Jun 2021

"There Is No Planet 'B'": How U.S. Music Festival Production Companies Can Reduce Their Negative Environmental Impact By Incorporating As A Benefit Corporation, Bryce Ballard

William & Mary Environmental Law and Policy Review

The music festival industry in the United States is growing exponentially each year, both in terms of fan attendance and the money being produced by concession, merchandise, and ticket sales. However, there is also a growing realization that there are several negative externalities associated with the growth of the music festival industry, not the least of which is the environmental damage that follows in the wake of music festivals.

The scene at most music festivals in the United States today is the same: a caravan of vehicles lined up single-file waiting to enter the campgrounds, camping tents of various sizes ...


Legal Liability For Corporations Doing Business In The West Bank: An Analysis Of Corporate Liability And A Shareholder Proposal Solution For Mitigating Risky Business Activity, Mila Kelly Jun 2021

Legal Liability For Corporations Doing Business In The West Bank: An Analysis Of Corporate Liability And A Shareholder Proposal Solution For Mitigating Risky Business Activity, Mila Kelly

William & Mary Business Law Review

For over half a century, Israeli Settlements in the occupied West Bank have expanded significantly in both land and economic activity. While this expansion has not been without criticism from the international community over fear of humanitarian law violations, global businesses have not shied away from the profitability of this region. This engagement in corporate activity within any disputed territory comes with its fair share of business risk, including legal liability for complicity in purported human rights violations.

This Note will examine the hypothetical liability for corporations doing business in the West Bank and explain how international law and the ...


The Challenges Of Nonprofit Governance, Peter Molk, D. Daniel Sokol May 2021

The Challenges Of Nonprofit Governance, Peter Molk, D. Daniel Sokol

Boston College Law Review

The stakes for proper nonprofit governance are extremely high. Over 1.5 million nonprofits are registered with the Internal Revenue Service (IRS), collectively employing twelve million people and accounting for 5.6% of U.S. gross domestic profit. Yet whereas for-profit companies have significant checks on the behavior of boards and management, nonprofit firms lack many of the same types of internal and external governance control mechanisms. COVID-19 is just the latest shock to expose the lack of preparedness and capability of many nonprofit boards in fulfilling their essential governance functions. This Article contributes to the corporate governance literature by ...


A New Kind Of Pitch: The Rise Of Sports Dedicated Private Equity Funds And The Future Of The Single Entity Defense, Chase Browndorf May 2021

A New Kind Of Pitch: The Rise Of Sports Dedicated Private Equity Funds And The Future Of The Single Entity Defense, Chase Browndorf

Jeffrey S. Moorad Sports Law Journal

No abstract provided.


Treble, Treble Toil And Trouble: The New Per Se Rule As A Protection Against The Curse Of The "Supreme Evil", Seth Konopasek May 2021

Treble, Treble Toil And Trouble: The New Per Se Rule As A Protection Against The Curse Of The "Supreme Evil", Seth Konopasek

William & Mary Business Law Review

The Supreme Court has called collusion between firms the “supreme evil” of antitrust. Despite public and private enforcement efforts, collusive firms and the cartels they form cost American consumers billions of dollars a year and undermine the virtues of our free market economy. The Chicago School theory of antitrust enforcement, which has dominated antitrust scholarship, vehemently disapproves of private antitrust actions that enable plaintiffs to recover treble damages. Recent scholarship, however, has rejected the Chicago School’s concerns of overdeterrence and embraced the treble damages remedy. This Note follows the recent scholarship and proposes the New Per Se Rule, which ...


Blurred Lines: Disparate Impact And Disparate Treatment Challenges To Subjective Decisions-- The Case Of Reductions In Force, Allan King, Alexandra Hemenway May 2021

Blurred Lines: Disparate Impact And Disparate Treatment Challenges To Subjective Decisions-- The Case Of Reductions In Force, Allan King, Alexandra Hemenway

William & Mary Business Law Review

Subjective employment decisions may be challenged under disparate treatment (intentional discrimination) and/or disparate impact (the discriminatory consequences of a neutral policy) theories of discrimination. However, these theories and supporting evidence often are conflated when the criteria for selecting employees are ill-defined or unrecorded. In those instances, the process by which employees are selected merges with the selections themselves, these legal theories converge as well. This Article critically discusses how courts have struggled to distinguish these theories in cases alleging a discriminatory reduction in force. It suggests how these cases should be submitted to juries, to preserve the liability and ...


Corporate Social Responsibility, Uche Ewelukwa Ofodile, Chisara Ezie, Nigel Roberts, Dr. Corinne Lewis, Constance Wagner, Claudia Feldkamp, Michael Judin May 2021

Corporate Social Responsibility, Uche Ewelukwa Ofodile, Chisara Ezie, Nigel Roberts, Dr. Corinne Lewis, Constance Wagner, Claudia Feldkamp, Michael Judin

The Year in Review

No abstract provided.


International M&A And Joint Ventures, Vanesa Balda, Marilen Figueroa, Jose Otavio Pinheiro Olivero, Gordon N. Cameron, Laura Fraser, Francisco Ugarte, Lucille Barale, H. Jayesh, Aditi Bagri, Aaheree Mukherjee, Nicolas Van Heule, Eva Das, Frederik De Hosson, Elena Cuatrecasas, Isabel Gandoy, Timur Bondaryev, Alex L. Khakarian, Joseph J. Basile May 2021

International M&A And Joint Ventures, Vanesa Balda, Marilen Figueroa, Jose Otavio Pinheiro Olivero, Gordon N. Cameron, Laura Fraser, Francisco Ugarte, Lucille Barale, H. Jayesh, Aditi Bagri, Aaheree Mukherjee, Nicolas Van Heule, Eva Das, Frederik De Hosson, Elena Cuatrecasas, Isabel Gandoy, Timur Bondaryev, Alex L. Khakarian, Joseph J. Basile

The Year in Review

No abstract provided.


The Growing Monopoly In The Corn Seed Industry: Is It Time For The Government To Interfere?, Bethany K Sumpter Apr 2021

The Growing Monopoly In The Corn Seed Industry: Is It Time For The Government To Interfere?, Bethany K Sumpter

Texas A&M Law Review

How a company conducts business is often a consumer concern. Individuals have accused company after company of monopolistic behavior. These individuals have also criticized the Department of Justice for not stopping a monopoly from forming in a specific industry. An example is the corn seed industry, where stakeholders have accused companies of monopolistic behavior. Recent mergers and acquisitions in the corn seed industry have left fewer companies in control, and because of this consolidation, individuals are urging the government to act. This Comment argues that, while the corn seed industry is on the road to containing a monopoly, the industry ...


You're The Problem, Officer: Whether Executive Officers Should Be Subjected To The Same Standards Of Liability As Directors Under Current Corporate Governance Law, Margo Brandenburg Apr 2021

You're The Problem, Officer: Whether Executive Officers Should Be Subjected To The Same Standards Of Liability As Directors Under Current Corporate Governance Law, Margo Brandenburg

University of Cincinnati Law Review

No abstract provided.


Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller Apr 2021

Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller

Notre Dame Law Review

This Essay considers two methods of valuing public companies in the context of appraisal proceedings under section 262 of the Delaware General Corporation Law (DGCL). The first method relies on the efficient capital markets hypothesis (ECMH) and values the company based on the market price of its shares before any public disclosure of the possibility of a transaction (the unaffected market price). The second relies on the price that an unrelated party agrees to pay to acquire the company in a transaction negotiated at arm’s length after a robust sales process by the selling board (the deal price). Both ...


Rethinking Mac Clauses In The Time Of Akorn, Boston Scientific, And Covid-19, Samuel Shapiro Apr 2021

Rethinking Mac Clauses In The Time Of Akorn, Boston Scientific, And Covid-19, Samuel Shapiro

Michigan Business & Entrepreneurial Law Review

The MAC clause is perhaps the most important clause in contract law, giving acquirers the ability to terminate even the largest agreements in the face of an often vaguely defined “Material Adverse Change.” For decades, even though MAC clauses have been present in nearly every merger agreement, courts have almost universally refused to enforce them. But the Delaware Chancery Court’s 2018 decision in Akorn may finally change that. As the world deals with the economic uncertainty caused by COVID-19, courts may soon get more opportunities to decide whether or not they will follow Akorn’s lead and begin to ...


The Case For Preemptive Oligopoly Regulation, Jeffrey D. Manns Apr 2021

The Case For Preemptive Oligopoly Regulation, Jeffrey D. Manns

Indiana Law Journal

One of the few things former President Donald Trump and leading Democrats appear to agree on is the need to subject Big Technology (“Big Tech”) firms to antitrust scrutiny. But unsurprisingly they disagree about how to address the problem. Senator Elizabeth Warren and many other leading Democrats have called for breaking up large technology firms, such as Google, Amazon, and Facebook, in a revival of the trust-busting progressive era of the early twentieth century. In contrast, the Trump administration triggered more traditional antitrust monopoly review of potential anticompetitive activities of a number of leading technology firms, which is more likely ...


A Corporate Law Rationale For Reparations, Susan S. Kuo, Benjamin Means Mar 2021

A Corporate Law Rationale For Reparations, Susan S. Kuo, Benjamin Means

Boston College Law Review

Should the United States pay reparations to African Americans? A majority of Americans object, arguing that they are not personally responsible for slavery or Jim Crow laws. Their objection is rooted in the principle of ethical individualism, which holds that people can be blamed only for their own actions. This Article contends that the ethical-individualism objection to reparations is misplaced because it assumes that what matters is the culpability of each citizen. This Article argues that like a corporation, the United States is a legal person. Consequently, seeking reparations from the United States does not turn on the guilt of ...