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Business Organizations Law

2019

Institution
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Articles 1 - 30 of 141

Full-Text Articles in Law

Appraisal Confusion: The Intended And Unintended Consequences Of Delaware's Nascent Pristine Deal Process Standard, Alex Peña, Brian Jm Quinn Dec 2019

Appraisal Confusion: The Intended And Unintended Consequences Of Delaware's Nascent Pristine Deal Process Standard, Alex Peña, Brian Jm Quinn

Boston College Law School Faculty Papers

In a merger, shareholders who believe the consideration being offered is too low have a statutory right to seek fair value for their shares through a judicial process called appraisal. In recent years, there has been an explosion in the number of appraisal actions leading some to argue that the remedy was being abused. In this Article, we argue that a recent line of cases by the Delaware Supreme Court that places heavy reliance on merger price as part of the judicial determination of fair value in appraisal proceedings is misguided and may lead to unintended consequences. Rather than rely ...


Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker Dec 2019

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the ...


Corporate Governance And Institutional Investors: Proxy Voting Behavior After The Stewardship Code (コーポレートガバナンスと機関投資家―スチュワードシップコード改訂後の議決権行使の状況について), Mari Yamauchi, Toru Yoshikawa Dec 2019

Corporate Governance And Institutional Investors: Proxy Voting Behavior After The Stewardship Code (コーポレートガバナンスと機関投資家―スチュワードシップコード改訂後の議決権行使の状況について), Mari Yamauchi, Toru Yoshikawa

Research Collection Lee Kong Chian School Of Business

本稿では,日本版スチュワードシップコードの改訂により始まった機関投資家 による議決権行使の結果について,投資家のタイプごとに分析し,どのような投 資家がどのような会社提案議案についてより多くの反対票を投じているかについ て検討した。先行研究に従えば,資産運用会社のように投資先企業とアームズレ ングスの関係を持つ投資家は,保険会社のように投資先企業とビジネス上の関係 を持つ投資家と比較すると,会社側提案に対して異議を唱える可能性が高いとさ れる。また,株式持ち合いなど日本的背景を考慮すると,日本においては,外資 系投資家の方が国内の投資家に比べて,会社提案に対して反対票を投じる可能性 が高いことも予想される。2018年度の議決権行使の結果を分析したところ,ほぼ 先行研究と同じ結果が得られ,業種で分類した場合,資産運用会社の方が生損保 のような保険会社より反対票の比率が高いこと,資本国籍で分類すると,外資投 資家の方が買収防衛策の導入や退任役員への退職慰労金の支給など特定の項目に ついて,日系の投資家に比べて反対率が高いことが確認された。


Watching Insider Trading Law Wobble: Obus, Newman, Salman, Two Martomas, And A Blaszczak, Donald C. Langevoort Nov 2019

Watching Insider Trading Law Wobble: Obus, Newman, Salman, Two Martomas, And A Blaszczak, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

“The crime of insider trading,” Judge Jed Rakoff has said, “is a straightforward concept that some courts have managed to complicate.” In the last eight years or so, insider trading law has wobbled visibly (in the Second Circuit in particular) in applying the standard for tipper-tippee liability originally set in the Supreme Court’s Dirks decision in 1983: from Obus (2012) to Newman (2014), with a detour to the Supreme Court in Salman (2016), and then two Martoma opinions (2017 and 2018). Most recently, the court of appeals offered what to many was a major surprise in its Blaszczak decision ...


The Dodge Brothers’ Monster: A Legal Analysis Of The Effect Of Fiduciary Duty On Dual Voting Structures, Jer'ron J.L. Dinwiddie Ii Nov 2019

The Dodge Brothers’ Monster: A Legal Analysis Of The Effect Of Fiduciary Duty On Dual Voting Structures, Jer'ron J.L. Dinwiddie Ii

Student Publications

The purpose of this research paper is to determine the legal obligations that a shareholder with majority voting rights would have in a dual-voting structure. The focus on the paper is on breaking down the fiduciary duty analysis for its application to dual-voting structures, which currently stands as the shareholder with majority voting rights have no duty to other shareholders.

The paper details the evolution of the common law and the social responses to the use of these structures. Then, the paper measure the application fiduciary duty would have on a dual-voting structure using WeWork as a case study. On ...


Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden Nov 2019

Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Gatekeepers, Cultural Captives, Or Knaves? Corporate Lawyers Through Different Lenses, Donald C. Langevoort Oct 2019

Gatekeepers, Cultural Captives, Or Knaves? Corporate Lawyers Through Different Lenses, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Studying the behavior of high-status corporate lawyers is challenging. Much writing (including some of my own) addresses the risk of lawyer enabling of client misconduct by drawing from work in behavioral ethics suggesting that at least some apparent complicity is without full awareness of the impropriety. Is this naïve? The first part of this essay pushes harder on consciousness by looking more closely at the lengthy continuum—not a binary yes/no—in the awareness of wrongdoing risk as heavily influenced by the “slippery slope.” Looking at corporate lawyers’ professional responsibility through this lens has some interesting, and as far ...


Law School News: A Busy, Busy Time In Admiralty Law 10-18-2019, Michael M. Bowden Oct 2019

Law School News: A Busy, Busy Time In Admiralty Law 10-18-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Amicus Brief: Smith V. Kelley, Natali De Corso, Rebecca Rabinowitz, Brian J.M. Quinn Oct 2019

Amicus Brief: Smith V. Kelley, Natali De Corso, Rebecca Rabinowitz, Brian J.M. Quinn

Boston College Law School Faculty Papers

Theories of successor liability and piercing the corporate veil are not substantive legal doctrines but rather shorthand descriptions of equitable remedies adopted by courts in the interests of fairness and justice. These interests include striking a balance between the limitation on shareholders’ individual liability – essential to the modern corporate form – and curtailing incentives for controllers of corporations to use the corporation as a weapon against innocent creditors. Applying principles of Equity, courts analyze a transaction according to its real nature, looking through its form to its substance and intent. Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 560 (2008 ...


Public Or Private Venture Capital?, Darian M. Ibrahim Oct 2019

Public Or Private Venture Capital?, Darian M. Ibrahim

Faculty Publications

The United States has an unparalled entrepreneurial ecosystem. Silicon Valley startups commercialize cutting-edge science, create plentiful jobs, and spur economic growth. Without angel investors and venture capital funds (VCs) willing to gamble on these high-risk, high-tech companies, none of this would be possible.

From a law-and-economics perspective, startup investing is incredibly risky. Information asymmetry and agency costs abound. In the United States, angels and VCs successfully mitigate these problems through private ordering and informal means. Countries without the robust private venture capital system that exists in the United States have attempted to fund startups publicly by creating junior stock exchanges ...


The Emergence And Influence Of Transactional Practice Within Clinical Scholarship, Paul R. Tremblay Oct 2019

The Emergence And Influence Of Transactional Practice Within Clinical Scholarship, Paul R. Tremblay

Boston College Law School Faculty Papers

This essay, in honor of the twenty-fifth anniversary of the founding of the Clinical Law Review, reflects on the gradual emergence, and the limited influence, of transactional practice within clinical scholarship as reflected by writing in the Clinical Law Review since 1994. The essay offers three observations. First, a review of the fifty or so published issues of the journal demonstrates that writing about transactional practice has increased demonstrably between 1994 and 2019. Second, that development notwithstanding, it appears that when writers, even in recent years, write about lawyering in some generalizable fashion, the examples that appear in those works ...


Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili Oct 2019

Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili

Elisabeth Haub School of Law Faculty Publications

Four-fifths of the corporate board seats in the United States are held by men and a shocking number of companies lack any female representation on their boards. While institutional investors have pushed these companies for change, California took a more aggressive step and followed several European countries by mandating a quota for board representation. Heated argument has ensued over what diversity we should prioritize and what mechanisms should be used to promote diversity. Yet could these challenges be avoided altogether through the use of term limits?

This Article is the first academic inquiry exploring the connection between term limits and ...


Emerging Trends In Corporate Enforcement And Corporate Compliance: Symposium Introduction, James Fanto, Miriam Baer Oct 2019

Emerging Trends In Corporate Enforcement And Corporate Compliance: Symposium Introduction, James Fanto, Miriam Baer

Faculty Scholarship

No abstract provided.


The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo Oct 2019

The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo

Faculty Scholarship

An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One ...


Liquid Business, Vanessa Casado-Pérez Oct 2019

Liquid Business, Vanessa Casado-Pérez

Faculty Scholarship

Water is scarcer due to climate change and in higher demand due to population growth than ever before. As if these stressors were not concerning enough, corporate investors are participating in water markets in ways that sidestep U.S. water law doctrine’s aims of preventing speculation and assuring that the holders of water rights internalize any externalities associated with changes in their rights. The operation of these new players in the shadow of traditional water law is producing elements of inefficiency and unfairness in the allocation of water rights. Resisting the polar calls for unfettered water markets, or, contrarily ...


Law School News: Throw Out The Old Thinking 9-30-2019, Michael M. Bowden Sep 2019

Law School News: Throw Out The Old Thinking 9-30-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


The Professor Anthony J. Santoro Business Law Lecture Series Presents Becoming A Valued Business Lawyer, Roger Williams University School Of Law, Michael M. Bowden Sep 2019

The Professor Anthony J. Santoro Business Law Lecture Series Presents Becoming A Valued Business Lawyer, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.


Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine Sep 2019

Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine

Faculty Scholarship at Penn Law

To promote fair and sustainable capitalism and help business and labor work together to build an American economy that works for all, this paper presents a comprehensive proposal to reform the American corporate governance system by aligning the incentives of those who control large U.S. corporations with the interests of working Americans who must put their hard-earned savings in mutual funds in their 401(k) and 529 plans. The proposal would achieve this through a series of measured, coherent changes to current laws and regulations, including: requiring not just operating companies, but institutional investors, to give appropriate consideration to ...


Law Professor Comment Letter On Harmonization Of Private Offering Rules, Elisabeth D. De Fontenay, Erik F. Gerding, John Coffee, Jr., James D. Cox, Stephen F. Diamond, Merritt B. Fox, Michael Guttentag, Colleen Honigsberg, Renee M. Jones, Donald Langevoort, Saule T. Omarova, James Park, Jeff Schwartz, Andrew F. Tuch, Urska Velikonja Sep 2019

Law Professor Comment Letter On Harmonization Of Private Offering Rules, Elisabeth D. De Fontenay, Erik F. Gerding, John Coffee, Jr., James D. Cox, Stephen F. Diamond, Merritt B. Fox, Michael Guttentag, Colleen Honigsberg, Renee M. Jones, Donald Langevoort, Saule T. Omarova, James Park, Jeff Schwartz, Andrew F. Tuch, Urska Velikonja

Research Data

Comment letter filed on Sept. 24, 2019.

"File No. S7-08-19"

"We are fifteen law professors whose scholarship and teaching focuses on securities regulation. We appreciate the opportunity to comment on the U.S. Securities and Exchange Commission’s (“SEC” or the “Commission”) Concept Release on Harmonization of Securities Offering Exemptions (the “Concept Release”)."


Concept Release On Harmonization Of Securities Offering Exemptions; File Number S7-08-19, Robert Anderson, Samantha Prince, John Neil Conkle, Sarah Zomaya Sep 2019

Concept Release On Harmonization Of Securities Offering Exemptions; File Number S7-08-19, Robert Anderson, Samantha Prince, John Neil Conkle, Sarah Zomaya

Faculty Scholarly Works

No abstract provided.


The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky Sep 2019

The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky

Faculty Scholarship at Penn Law

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had long-lasting impact on corporate law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem that is the mirror image of the agency problem has surfaced—the reverse agency problem. The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms including Pretrial Diversion Agreements (PDAs), and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach ...


Congressional Testimony: Examining Private Market Exemptions As A Barrier To Ipos And Retail Investment, Renee M. Jones Sep 2019

Congressional Testimony: Examining Private Market Exemptions As A Barrier To Ipos And Retail Investment, Renee M. Jones

Boston College Law School Faculty Papers

This testimony, presented to the House Financial Services Committee, Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets, focuses on the risks the growing number of large private companies present for investors, employees, consumers and society. This testimony (1) highlights the main objectives of the federal securities laws and the mechanisms Congress adopted to achieve these objectives, (2) explains the statutory bases for the principal exemptions from the securities laws registration and disclosure requirements, and (3) shows how regulatory exemptions that once sought to clarify and reinforce the principles embodied in the statutes have evolved to the point that they are ...


Law School News: Remembering Rwu Laws Founding Dean 9-10-2019, Roger Williams University School Of Law Sep 2019

Law School News: Remembering Rwu Laws Founding Dean 9-10-2019, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo Sep 2019

Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo

Faculty Scholarship at Penn Law

The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.


Regulating Entities And Activities: Complementary Approaches To Nonbank Systemic Risk, Patricia A. Mccoy, Daniel Schwarcz, Jeremy C. Kress Sep 2019

Regulating Entities And Activities: Complementary Approaches To Nonbank Systemic Risk, Patricia A. Mccoy, Daniel Schwarcz, Jeremy C. Kress

Boston College Law School Faculty Papers

The recent financial crisis demonstrated that, contrary to longstanding regulatory assumptions, nonbank financial firms—such as investment banks and insurance companies—can propagate systemic risk throughout the financial system. After the crisis, policymakers in the United States and abroad developed two different strategies for dealing with nonbank systemic risk. The first strategy seeks to regulate individual nonbank entities that officials designate as being potentially systemically important. The second approach targets financial activities that could create systemic risk, irrespective of the types of firms that engage in those transactions. In the last several years, domestic and international policymakers have come to ...


Index Funds And The Future Of Corporate Governance: Theory, Evidence, And Policy, Scott Hirst Sep 2019

Index Funds And The Future Of Corporate Governance: Theory, Evidence, And Policy, Scott Hirst

Faculty Scholarship

Index funds own an increasingly large proportion of American public companies. The stewardship decisions of index fund managers—how they monitor, vote, and engage with their portfolio companies—can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policymaking can improve it, is thus critical for corporate law scholarship. In this Article we contribute to such understanding by providing a comprehensive theoretical, empirical, and policy analysis of index fund stewardship.

We begin by putting forward an agency-costs theory of index fund incentives. Stewardship decisions by ...


The Effects Of Shareholder Primacy, Publicness, And “Privateness” On Corporate Cultures, Donald C. Langevoort Aug 2019

The Effects Of Shareholder Primacy, Publicness, And “Privateness” On Corporate Cultures, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

There is widespread belief in both scholarship and business practice that internal corporate cultures materially affect economic outcomes for firms. In turn, there is also a growing belief that corporate governance arrangements materially affect corporate cultures. If this is true, it suggests an intriguing three-link causal chain: governance choices influence corporate performance, at least in part via their effects on internal culture. This essay, written for the “Berle XI” symposium, explores that possibility. This subject is important to lawyers and legal scholars because of the symbiotic nature of law and governance, with an increasing risk of enhanced corporate criminal and ...


Public Relations Litigation, Kishanthi Parella Jul 2019

Public Relations Litigation, Kishanthi Parella

Scholarly Articles

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in ...


How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby Jul 2019

How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby

Scholarly Articles

This article dissects both the origins and resulting harms of what the author terms the "hedge fund conundrum," in which institutional investors, such as pension plans and endowments, have consistently increased hedge fund allocations over the past decade despite pervasive evidence of excessive fees and subpar returns. It then utilizes an historical institutionalist lens to examine how lawmakers may have enabled a conundrum of this magnitude. By and large, this phenomenon is a symptom of regulatory loopholes that have permitted the private hedge fund market to increase in "publicness" through its expanding access and subsequent harm to retail investors. Such ...


Social Activism Through Shareholder Activism, Lisa Fairfax Jul 2019

Social Activism Through Shareholder Activism, Lisa Fairfax

Faculty Scholarship at Penn Law

In 1952, the SEC altered the shareholder proposal rule to exclude proposals made “primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes.” The SEC did not reference civil rights activist James Peck or otherwise acknowledge that its actions were prompted by Peck’s 1951 shareholder proposal to Greyhound for desegregating seating. Instead, the SEC indicated that its change simply reflected a codification of a position the SEC staff had taken in 1945.

Today, the shareholder proposal rule has evolved, giving way to several amendments that now enable shareholders to submit proposals on the proxy ...