Law Commons^™

Antitakeover Legislation: Not Necessary, Not Wise, Jeffrey A. Johnson

Cleveland State Law Review

This Note will consider the merits of antitakeover legislation with special emphasis on legislative proposals which, like second generation state takeover statutes, would subject tender offers to the approval of shareholders. But discussion and analysis are also applicable to federal proposals which seek to restrict takeovers through regulatory restrictions rather than a shareholder vote, as well as to second generation state takeover statutes. The view taken herein is that all antitakeover legislation, whether at the federal or state level, is neither necessary nor wise. In part II, this Note will examine the proposed antitakeover legislation which prescribes procedures for shareholder …

The Scope Of Liability Under Section 12 Of The Securities Act Of 1933: "Participation" And The Pertinent Legislative Materials, Douglas E. Abrams

Fordham Urban Law Journal

The Securities Act of 1933 creates two private rights of action. Since 1971, seven circuits have adopted the "participation" theory, imposing section 12 liability not only on the transferor, but also on any person whose participation in the transaction is substantial in causing the transaction to occur. This article traces the development of the participation theory. The author argues that limiting section 12 liability to the transferor would significantly diminish the protections afforded by the act and that the scope of the act should be reexamined by Congress rather than determined by judicial interpretation. Finally, in light of his thesis, …

The Misappropriation Theory: Rule 10b-5 Insider Liability For Nonfiduciary Breach, Elliot Brecher

Fordham Urban Law Journal

This note traces the history of rule 10b-5 and its expansion and restriction in judicial decisions. The note goes on to discuss United States v. Carpenter, a Second Circuit case that drastically expands insider trading liability. The author agues that the misappropriation theory is outside of the statutory purpose of 10b-5 and that extending the provisions to reach insider trading goes beyond the premises of statutory construction articulated by the Court.

Disclosure Of Preliminary Merger Negotiations Under Rule 10b-5, Anne L. Barragar

Washington Law Review

The present formulation of the law takes an overly simplistic approach to disclosure during merger negotiations. This Comment argues that disclosure rules should be standardized to accommodate competing concerns related to investor protection and predictability for management.

Competitive Reform In Health Care: The Vulnerable Revolution, Thomas L. Greaney

All Faculty Scholarship

This article, written at the dawn of the era of "competitive reform" in health care examines the case and prospects for the introduction of competition in health care delivery and financing. It observes the failures of the ancienne regime of fee for service payment and professional sovereignty and discusses the benefits of market-oriented policy. Its contribution, still salient today, is the lesson that competition cannot succeed without regulation. It identifies legislative, professional, and cultural hurdles to effective implementation of competitive norms and policies that have impeded the success of competition policy in health care.

Delaware Amendment Relaxes Directors' Liability

Washington and Lee Law Review

No abstract provided.

Statutory Solutions To Conflicts Of Interest In Close Corporations, Lizabeth Ann Moody

Cleveland State Law Review

The close corporation' operates in a continual atmosphere of conflict and self-dealing. Typical close corporation transactions between directors and the corporation produce conflicts which, more often than not, evolve from frustration to friction, from friction to disaffection and, ultimately, from disaffection to litigation. Problems caused by transactions between a corporation and one or more of its directors have constituted a pervasive theme of corporate law for the last half century. It is the purpose of this article to consider state statutory provisions governing conflicts of interest and their application to close corporations to determine whether or not such provisions provide …

The Changing Role Of The Attorney With Respect To The Corporation, Wilton S. Sogg, Michael L. Solomon

Cleveland State Law Review

Supreme Court Justice Potter Stewart once stated that "the propriety of a lawyer serving as a member of the Board of Directors of his corporate client remains, even today, a vexing problem of professional responsibility.” Historically, accountants have been assumed, as well as required, to be independent of any enterprise in which they express an opinion regarding the enterprise's financial statements. Independence had been interpreted to mean that accountants may not serve on the board of directors or invest in any enterprise which they, or their firm, audit, or for whom either expresses an opinion on the enterprise's financial statements. …

Market Delineation Under The Naag Horizontal Merger Guidelines: Realities Or Illusions, Gregory J. Werden

Cleveland State Law Review

The Reagan Administration expressed its enforcement policy for horizontal mergers in Merger Guidelines issued in 1982 and 1984 ("DOJ Guidelines"), implemented its policy through its specific enforcement actions pursuant to section 7 of the Clayton Act, and proposed to codify its policy in amendments to section 7. The National Association of Attorneys General (NAAG) now has gone beyond mere criticism. It has announced the intention of state attorneys general to challenge mergers they believe to be anticompetitive and has issued its own enforcement guidelines for horizontal mergers ("NAAG Guidelines"). The purpose of this Article is to show that the NAAG …

Limiting Directors' Duty Of Care Liability: An Analysis Of Delaware's Charter Amendment Approach, Craig W. Hammond

University of Michigan Journal of Law Reform

This Note explores the corporate law principles guiding the amendment of section 102(b)(7) and considers what effects this statute will have on the investor-director relationship. The Note focuses on whether this reform measure excessively protects directors at the expense of shareholders.

Part I analyzes the neoclassical economic view of the contractual relationship between stockholders and management that serves as the theoretical justification of section 102(b)(7). Part II proposes a modification of the Delaware statute that would provide for periodic shareholder review of charter amendments limiting liability.

Collective Bargaining And The Coase Theorem, Stewart J. Schwab

Cornell Law Faculty Publications

Commercial Bribery And The Sherman Act: The Case For Per Se Illegality, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

Standards Of Conduct For Directors Of Nonprofit Corporations, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the standards of care and loyalty that should apply to directors of nonprofit corporations. It suggests that the movement toward corporate law principles neither reflects the differences in the types of nonprofit corporations nor provides a coherent rationale for the conduct regulated. The "trust law"-"corporate law" distinction has often centered upon the label to be applied rather than on an analysis of the principles involved. Too often the selection of the label has determined the result. At other times, the label has been used as a convenient rationalization of a socially desirable conclusion. This Article will attempt …

The Nuclear Regulatory Commission's Regulation Of Radiation Hazards In The Workplace: Present Problems And New Approaches To Reproductive Health, Neal Smith, Michael S. Baram

Faculty Scholarship

On December 20, 1985, the Nuclear Regulatory Commission (NRC) proposed revisions to its Standards for Protection Against Radiation [hereinafter Standards].¹ If adopted, the new Standards will provide additional protection for millions of workers and their unborn children. The effects of the Standards will extend, however, far beyond the health of those exposed to radiation. Specifically, the NRC's proposal may provide a new paradigm for regulating health hazards that have no safe threshold level of exposure. It will also focus debate on whether or not women should be precluded from working in fetotoxic environments

Legal Factors In The Acquisition Of A United State Corporation: Litigation By Hostile Targets, Johan E. Droogmans

LLM Theses and Essays

Acquisitions of United States corporations have become increasingly complex takeover contests, where bidders and target corporations are forced into offensive and defensive litigation strategies to protect their respective interests. Targets often assert that the bidders have violated federal or state securities laws, federal antitrust laws, federal margin regulations, federal and state regulatory systems, and federal anti-racketeering laws. These lawsuits are primarily based on the principal federal regulation of takeovers in section 14(a) of the Securities and Exchange Act of 1934 and the Williams Act. Target litigation is customary, but entails certain disadvantages; a lawsuit rarely stops an offer, is expensive, …

Limited Liability For Shareholders In Virginia Professional Corporations: Fact Or Fiction?, Laura R. Brown

University of Richmond Law Review

In 1970, Virginia enacted the Professional Corporation Act which permits members of certain professions to form corporations for the purpose of rendering professional services. It is available to most professionals as an alternative to practicing individually or in partnerships. While many professionals have formed such corporations to avail themselves of certain tax benefits, others have formed professional corporations simply to gain the advantages of practicing in the corporate form. One traditional advantage of the corporate form is that shareholders are shielded from personal liability for the negligent acts committed by agents or employees of the corporation and for the debts …

Corporate Mergers: Redefining The Role Of Target Directors, Mary Siegel, Jennifer J. Johnson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Evaluating Dual Class Common Stock: The Relevance Of Substitutes, Ronald J. Gilson

Faculty Scholarship

The proposal of the New York Stock Exchange to end its prohibition on listing the securities of companies with dual classes of common stock has focused public policy debate over this evolution in capital structure both too broadly and too narrowly.

The debate has been too broad because it has encompassed one situation – an initial public offering by a company with a capital structure containing dual class common stock – that should not be controversial at all. Whatever may have originally prompted the New York Stock Exchange's longstanding prohibition against listing non-voting common stock or common stock with voting …

Criminal Rico: Forfeiture Of Fees, Sixth Amendment Rights, And Attorney Responsibilities, Elizabeth E. Stanulis

University of Richmond Law Review

The Racketeer Influenced and Corrupt Organizations Act (RICO) is the most expansive criminal statute ever passed by Congress. The statute and its amendments impose strict penalties for various activities associated with organized crime, including forfeiture of the proceeds of criminal activity. However, RICO's ambiguous language has caused confusion in its interpretation by federal courts.

Annual Survey Of Virginia Law: Business And Corporate Law, David R. Ruby

University of Richmond Law Review

This article reviews recent developments in the law affecting Virginia businesses and corporations. Part I covers judicial developments, including: (1) the United States Supreme Court's upholding of the validity of an Indiana anti-takeover statute, similar to Virginia's affiliated transactions provisions; (2) the Virginia Supreme Court's ruling that the providing of day care in one's home constitutes a "business pursuit" within the meaning of a standard exclusionary clause found in homeowners' insurance policies; and (3) in what appears to be a case of first impression before any Virginia court, a Virginia circuit court's invalidation of a stock option granted by the …

Continuity And Change: Partnership Formation Under The Common Law, Deborah W. Post

Scholarly Works

No abstract provided.

Subchapter S Distributions And Pseudo Distributions: Proposals For Revising The Defective Blend Of Entity And Conduit Concepts, Glenn E. Coven

Faculty Publications

No abstract provided.

Private Ordering Within Partnerships, Robert W. Hillman

University of Miami Law Review

No abstract provided.

Takeover Statutes: The Dormant Commerce Clause And State Corporate Law, Arthur R. Pinto

University of Miami Law Review

No abstract provided.

Employee Benefits Legislation- Another Round: The Tough Get Tougher, Mark S. Dray

William & Mary Annual Tax Conference

No abstract provided.

A Review Of The Provisions Of The Tax Reform Act Of 1986 Relating To Corporate Acquisitions, Samuel C. Thompson Jr.

William & Mary Annual Tax Conference

No abstract provided.

Capital Cost Recovery Changes, B. Cary Tolley Iii

William & Mary Annual Tax Conference

No abstract provided.

Tax Shelter Limitations, Thomas R. Frantz

William & Mary Annual Tax Conference

No abstract provided.

The Allocation Of Partnership Income And Loss Under Sec.704, Herschel M. Bloom

William & Mary Annual Tax Conference

No abstract provided.

Purchase Price Allocations In Cost Basis Acquisitions: Sections 338 And 1060 Under The 1986 Code, William Rogers, John W. Lee

William & Mary Annual Tax Conference

No abstract provided.