Law Commons^™

The Impact Of Tefra On Employee Benefits, Louis A. Mezzullo

William & Mary Annual Tax Conference

No abstract provided.

Planning For Disadvantaged Corporations, Paul Broderick

William & Mary Annual Tax Conference

No abstract provided.

The Future Of Personal Service Corporations: Is There Life After Tefra?, Converse Murdoch

William & Mary Annual Tax Conference

No abstract provided.

Tefra: Purchase And Sale Of A Corporate Business, Martin D. Ginsburg

William & Mary Annual Tax Conference

No abstract provided.

State Income Taxation Of Multijurisdictional Corporations, Part Ii: Reflections On Asarco And Woolworth, Walter Hellerstein

Scholarly Works

The first part of this Article, State Income Taxation of Multiurisdictional Corporations: Reflections on Mobil, Exxon, and H A 5076, did not contemplate a sequel. The Supreme Court's decisions last term in two state corporate income tax cases, however, created an irresistible opportunity to write one. The Court's opinions in ASARC0 and Woolworth picked up where its opinions in Mobil and Exxon left off. Yet the direction taken by these more recent decisions veers sharply from the course ostensibly set by their predecessors. This Article will consider the Court's latest pronouncements in this area in a continuing if quixotic effort …

State Income Taxation Of Multijurisdictional Corporations, Part Ii: Reflections On Asarco And Woolworth, Walter Hellerstein

Scholarly Works

The first part of this Article, "State Income Taxation of Multijurisdictional Corporations: Reflections on Mobil, Exxon, and H.R. 5076" [79 Mich. L. Rev. 113], did not contemplate a sequel. The Supreme Court's decisions last term in two state corporate income tax cases, however, created an irresistible opportunity to write one. The Court's opinions in ASARCO and Woolworth picked up where its opinions in Mobil and Exxon left off. Yet the direction taken by these more recent decisions veers sharply from the course ostensibly set by their predecessors. This Article will consider the Court's latest pronouncements in this area in a …

The Fallacy Of Weighting Asset Value And Earnings Value In The Appraisal Of Corporate Stock, Elmer J. Schaefer

Faculty Publications

No abstract provided.

Intracorporate Plurality In Criminal Conspiracy Law, Sarah N. Welling

Law Faculty Scholarly Articles

The concept of conspiracy currently plays a significant role in three areas of substantive law: antitrust, civil rights, and criminal law. Although the role of conspiracy in these substantive areas of law differs in many ways, all three require that the conspiracy consist of a plurality of actors. Determining what constitutes a plurality of actors when all the alleged conspirators are agents of a single corporation poses a continuing problem.

This problem raises two distinct questions. The first is whether, when one agent acts alone within the scope of corporate business, the agent and the corporation constitute a plurality. The …

The Future Of Personal Service Corporations, Howard S. Chapman

All Faculty Scholarship

No abstract provided.

Contract Law In Modern Commercial Transactions, An Artifact Of Twentieth Century Business Life?, James J. White

Articles

Diligent first year law students study contract law with a passion previously reserved for romantic objects and religious idols. Their professors lead them in extensive and difficult intellectual explorations of the wilds of contract law. There are careful analyses of why damage recovery X will stimulate performance Y, why recovery A is appropriate to encourage the aggrieved party to return to the market, and so on and so forth. Lurking behind this year long analysis are several inarticulate hypotheses: that they make rational evaluations of the threat of legal sanctions; that they respond in other varied and subtle ways to …

A Constitutional Analysis Of The Delaware Director-Consent-To-Service Statute, Susan Grover

Faculty Publications

No abstract provided.

Resale Price Maintenance And The Ftc: The Magnavox Investigation, Victor P. Goldberg

Faculty Scholarship

Franchise agreements between a manufacturer and a distributor or retail dealer of the manufacturer's products often impose conditions on the dealer regarding items such as price, dealer location, service, and advertising. These vertical restrictions, whether price or nonprice, may violate the Sherman Act, which prohibits every contract, combination, or conspiracy in restraint of trade. Whereas vertical price restrictions historically have been held per se invalid, nonprice vertical restrictions have been permitted, subject to a rule of reason. In United States v. Arnold, Schwinn & Co., however, the Supreme Court articulated a per se rule of illegality for nonprice vertical restrictions, …

The Case Against Shark Repellent Amendments: Structural Limitations On The Enabling Concept, Ronald J. Gilson

Faculty Scholarship

The tactical history of the tender offer movement resembles an unrestrained arms race. Faced with offeror assaults in the form of Saturday night specials, various types of bear-hugs, godfather offers, and block purchases, target management responded with equally intriguing defensive tactics: the black book, reverse bear-hug, sandbag, show stopper, white knight, and, drawing directly on military jargon, the scorched earth. But however varied the labels given particular defensive strategies, they share the common characteristic of being responsive: They are available only after an offer is made and the battle for the target's independence joined. From the target's perspective, what was …

Seeking Competitive Bids Versus Pure Passivity In Tender Offer Defense, Ronald J. Gilson

Faculty Scholarship

Responding to my comments in the Stanford Law Review, and to those of Lucian Bebchuk in the Harvard Law Review, Professors Easterbrook and Fischel have reiterated their preference for a rule of pure passivity by target management in response to a tender offer. Unlike my more limited rule barring defensive tactics designed to prevent the offer but not barring the facilitation of competitive bids, Easterbrook and Fischel would prohibit both. Because their response to the points that Bebchuk and I raised goes beyond their initial treatment of the subject, it is appropriate that I respond here by extending …

Capital Expenditures: A Result In Search Of A Rationale, John W. Lee, Nina R. Murphy

Faculty Publications

No abstract provided.

Franchise Regulation: Comprehensive State Regulation Now Unnecessary, Robert C. Downs

Faculty Works

Since 1970, there has been an epidemic of state regulatory activity con­cerning the sale of franchises and business opportunities. In addition to those states which actually have adopted franchise regulation statutes, several state legislatures currently are considering pending legislation. Undoubtedly, other states, including Missouri, soon will have the opportunity to protect their un­suspecting citizens from the risks believed to be inherent in the franchising industry.

Nor has the franchising business gone unnoticed by the federal govern­ment. On December 21, 1978, the Federal Trade Commission (FTC) published its rule 436, entitled "Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures." …

Implied Rights Of Action, Tamar Frankel

Faculty Scholarship

In Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis,¹ the United States Supreme Court declined to imply a private right of action for damages under the Investment Advisers Act of 1940.² Transamerica is the most recent of a series of Supreme Court decisions limiting the availability and scope of implied private actions under the federal securities laws.³ It stands in sharp contrast to J.L Case Co. v. Borak,⁴ a 1964 decision in which the Court seemed to extend an open invitation to "private attorneys general" to supplement SEC enforcement with private damage actions.

The Court's withdrawal from …

Investment Company Advertising, Tamar Frankel

Faculty Scholarship

SEC Regulation has changed from specific guidelines for advertisers to a general antifraud provision. Despite greater latitude, conflicts may arise between the commission's regulation and first amendment protection of commercial speech.

Equity Insolvency And The New Model Business Corporation Act, Daniel T. Murphy

Law Faculty Publications

By eliminating earned and capital surplus, the new Model Business Corporation Act may be perceived as providing directors with some additional flexibility regarding distributions to shareholders. As a practical matter however, the statute does not dramatically enlarge the ambit of their discretion. Directors have always had the flexibility to make distributions from both earned or capital surplus. The distributions are still tempered, as they were under the old statute, by the notion of equity solvency. On the other hand, the Comment to new section 45 provides the board of directors with substantial guidance of the proper methodology to use in …

The New Debt-Equity Regulations Under The Internal Revenue Code, Christopher R. Hoyt

Faculty Works

One of the most litigated tax issues is whether an interest in a corporation is stock or debt. Although stock and debt have many similar characteristics, the tax consequences can vary drastically depending on which interest exists. Recognizing the need to end this uncertainty, Con­gress enacted section 385 of the Internal Revenue Code as part of the Tax Reform Act of 1969. That section authorized the Treasury Department to issue regulations distinguishing debt from equity for all tax purposes and listed five factors that may be considered. On December 29, 1980, the department filed final regulations scheduled to become effective …

Partnership Allocations And Capital Accounts Analysis, Donald J. Weidner

Scholarly Publications

No abstract provided.

Accounting For Mergers, Acquisitions And Investments, In A Nutshell: The Interrelationships Of, And Criteria For, Purchase Or Pooling, The Equity Method, And Parent-Company-Only And Consolidated Statements, Ted J. Fiflis

Publications

No abstract provided.

Corporate Distributions And The Income Tax: A Consideration Of The Inconsistency Between Subchapter C And Its Underlying Policy, Charles O'Kelley

Faculty Articles

The issue of whether the sale of shares to an issuer shall be treated as a dividend or as received in exchange for a capital asset has troubled Congress, courts, and commentators since the Revenue Act of 1913. If a corporation redeems some of its shares or distributes all of its assets in complete liquidation, the transaction is generally described as having the characteristics of a divided to the extent the distribution is ‘out of earnings and profits' and the characteristics of a sale to the extent that it terminates the equity interest of the redeemed party. In light of …

Corporate Distributions And The Income Tax: A Consideration Of The Inconsistency Between Subchapter C And Its Underlying Policy, Charles R.T. O'Kelley

Scholarly Works

This Article suggests that although one part of a corporate distribution may be analogous to a sale and the remainder to a dividend, there is no overlap of, or competition between, analogies. This lack of overlap is apparent when one realizes that a dividend and a sale are methods of realizing different types of gain, rather than alternative methods of realizing the same type of gain. This Article examines the basic conceptual model underlying the present system of taxing corporate distributions, describes the appropriate treatment of corporate distributions that is suggested by an understanding of the underlying concepts, and indicates …

Perspectives On Corporate Mergers And The Antitrust Laws, C. Paul Rogers Iii.

Faculty Journal Articles and Book Chapters

No abstract provided.

Choice Of Federal Or State Law For Attorneys' Professional Responsibility In Securities Matters, Ted J. Fiflis

Publications

Professional standards of duty are implicated in the federal securities laws in two types of cases: those instituted by the SEC to impose sanctions for lack of character or unethical conduct and those brought by the SEC or private parties for violations of substantive provisions of the securities laws. The question faced by Professor Fiflis is whether state or federal standards should define the duties imposed under these laws. He argues that the proper method of resolving this question is to apply an interest analysis. Analyzing the various state and federal interests leads Professor Fiflis to the conclusion that federal …

The Revolution In Corporate Governance, The Monitoring Board, And The Director's Duty Of Care, George W. Dent

Faculty Publications

The theory of corporate governance underwent a revolution in the 1970's. Theorists finally abandoned the myth that a public corporation' is managed by its board of directors, and constructed a new model under which the corporation is managed by its executive officers, and the board, dominated by outside directors, monitors management's performance. This new "monitoring model" has gained wide acceptance among commentators, and several of its elements have been adopted by many public corporations. Even those commentators who do not enthusiastically embrace the entire monitoring model tend to agree that monitoring management is a significant board function.

But expositions of …

Tender Offers And The Sale Of Control: An Analogue To Determine The Validity Of Target Management Defense Measures, Stuart R. Cohn

UF Law Faculty Publications

The hostile tender offer phenomenon has spawned wholesale defensive measures adopted by target company management. In recent years, confrontations like those of Occidental Petroleum-Mead Corporation and American Express-McGraw-Hill have resulted in target management causing the eventual withdrawal of the tender offer by employing a variety of defensive measures known colloquially as “scorched earth” tactics. The “urge to merge” among major corporations will continue to produce unsolicited, nonnegotiated tender offers at varying scales of size. Consequently, strategies and techniques have been created at a pace faster than the process of litigation, causing a discernible lag between the ingenuity of corporate management …

The Power Of Directors To Terminate Shareholder Litigation: The Death Of The Derivative Suit?, George W. Dent

Faculty Publications

This article will analyze the problems raised by the board's attempt to terminate shareholder suits and will advance proposals to deal with those problems.

A Structural Approach To Corporations: The Case Against Defensive Tactics In Tender Offers, Ronald J. Gilson

Faculty Scholarship

Tender offers present an obvious and inherent conflict of interest between management and shareholders. On the one hand, an offer provides shareholders with the opportunity to sell their shares for a substantial premium over market price. On the other hand, the tender offer is the principal mechanism by which management can be forcibly unseated from control. It should thus come as no surprise that management often resists outsiders' efforts to direct tender offers at its shareholders. The form of that resistance, however, is somewhat surprising. Because the tender offer is the only form of corporate acquisition addressed directly to the …