Banking and Finance Law Commons^™

Altering The Deal: The Importance Of Gse Shareholder Litigation, Joseph W. Silva

North Carolina Banking Institute

It is the overarching goal of this Note to provide a broad framework for understanding the issues at stake in current dividend sweep litigation against the Government. Specifically, this Note asserts that although Perry and similarly situated plaintiffs bringing APA-based actions rightfully question the Government’s reasoning in entering the Third Amendment, HERA’s anti-injunction provision presents what is likely an insurmountable jurisdiction problem for dividend sweep litigation plaintiffs. This Note proceeds in four parts. Part II provides a general background of the GSEs’ history, role in the secondary mortgage market, and path to conservatorship. Part III summarizes the arguments Perry and …

Thanks, North Carolina Banking Institute

North Carolina Banking Institute

No abstract provided.

Bank Directors Beware: Post-Crisis Bank Director Liability, Emily S. May

North Carolina Banking Institute

This Note examines the most recent wave of personal liability for bank directors regarding decisions made in their official capacity, as well as the implications that this trend may have on bank directors and shareholders. Part II discusses FDIC claims against bank directors, including the FDIC claim process, the applicable law, and the standard of care in director liability cases. Part III details the trend prior to the 2008 financial crisis in bank director personal liability in enforcement actions. Part IV examines the post-2008 financial crisis trend in bank director personal liability in enforcement actions and details the characteristics of …

The Consolidated Audit Trail: An Overreaction To The Danger Of Flash Crashes From High Frequency Trading, Hayden C. Holliman

North Carolina Banking Institute

This Note discusses High Frequency Trading ("HFT"), its potential dangers and effects, and the regulations attempting to control the dangers and effects. Additionally, the Note analyzes the Consolidated Audit Trail's ("CAT") goals, potential problems, and costs. Part II provides an overview of HFT, how it affects the market landscape, and its function and goals. Part III examines the causes and repercussions of the Flash Crash. Part IV analyzes SEC regulations concerning market control, how they function, why they are important to prevent extreme market volatility, and the effectiveness of each regulation. Part V examines the purpose and need for the …

Bank Directors: Heightened Expectations And Blurred Lines In A Changing Regulatory Framework, A Conversation From The Clearing House Annual Conference (Moderators: Lissa L. Broome And Derek M. Bush), Michael S. Helfer, Jewell Hoover, Oliver Ireland, Martin Pfinsgraff

North Carolina Banking Institute

On November 21, 2014, the Center for Banking and Finance at the University of North Carolina School of Law hosted a dialogue on heightened expectations and blurred lines for bank directors in a changing regulatory environment at The Clearing House’s Annual Conference. Biographical information about the moderators and the panelists is set forth before the transcript of the dialogue begins.

Rocky Mountain High: The Impact Of Federal Guidance To Banks On The Marijuana Industry, Tyler T. Buckner

North Carolina Banking Institute

This Note considers the implications of these recent federal guidelines issued to financial institutions with respect to their freedom to do business with the state-sanctioned marijuana industry. It also discusses whether viable legal alternatives might be available to allow growth in the burgeoning marijuana markets while still remaining faithful to the federal government’s position regarding marijuana as a dangerous drug worthy of prohibition. This Note attempts to balance competing economic and governmental interests in an emerging industry that continues to evolve amid a tumultuous national landscape. This Note argues that current guidelines are excessively onerous for financial institutions and without …

The Financial Institutions Reform, Recovery, And Enforcement Act Of 1989: The Effect Of The “Self-Affecting” Theory On Financial Institutions, Filmon M. Sexton

North Carolina Banking Institute

This Note addresses why the Self-Affecting Theory misinterprets § 1833a. This Note argues that in cases where the DOJ could bring, but is unwilling or unable to bring, criminal actions, a federally insured financial institution should not be held civilly liable under § 1833a for engaging in fraudulent conduct "affecting" that same institution. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") does not define what it means to "affect[] a federally insured financial institution." Congressional intent demonstrates that Congress enacted § 1833a in response to the pervasive insider abuse and fraud of the savings and loan crisis …

Who’S Your Debt Collector Now? Extending Debt Collection Regulation To First-Party Lenders, Rebecca Plett

North Carolina Banking Institute

This Note proceeds in five parts. Part II outlines the primary differences between third-party debt collectors and first-party lenders. Part III provides an overview of current regulations of third-party debt collectors and first-party lenders, specifically relating to "unfair, deceptive, and abusive [acts or] practices." Part IV explains the areas in which the ANPR suggests changes in regulation, particularly as those changes apply to first-party lenders. Part V discusses whether regulation of first-party lenders is statutorily feasible, or even necessary, and addresses some of the practical barriers to such regulation. Part VI concludes by arguing that, while additional regulation of first-party …

Clarifying What Is “Clear”: Reconsidering Whistleblower Protections Under Dodd-Frank, Caroline E. Keen

North Carolina Banking Institute

This Note argues that the Fifth Circuit’s holding should be disregarded and the definition of a whistleblower should be expanded to include those who report potential securities laws violations internally, in addition to those who report directly to the SEC. This Note proceeds in four parts. Part II explains the differences between the anti- retaliation provisions of SOX and Dodd-Frank. Part III provides an overview of the approach taken by the Fifth Circuit in adopting a restrictive definition of whistleblower in Asadi. Part IV discusses how the majority of courts choose not to follow the Fifth Circuit after correctly applying …

Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Faculty Scholarship

In a time of limited resources and sluggish economic growth, competition between cities has become palpable, and the race for new investment often dictates the public agenda. To that end, the explosive growth of public-private partnerships between local governments and private investors has resulted in the creation of a myriad of special taxing districts, the purposes of which are limited only by the imagination. Of particular concern has been the growth of certain real estate development-related districts. Although first conceived to fund critical improvements where conventional credit was not available, in more recently years these special districts have been used …

Afterword To The Aig Bailout, William K. Sjostrom Jr.

Washington and Lee Law Review

No abstract provided.

Sovereign Wealth Funds: Investors In Search Of An Identity In The 21st Century, Locknie Hsu

Research Collection Yong Pung How School Of Law

Sovereign Wealth Funds (SWFs), as they have come to be known, are a hybrid type of foreign investor. They invest beyond their own borders with an aim to maximize returns as a foreign investor is expected to. At the same time, they are closely associated with governments, by ownership, source of funding, and/or investment objectives. Even as within this group, individual SWFs take various forms and may have divergent investment priorities and risk approaches. There is not even a universal definition of SWFs. As a result, they are often not viewed as typical foreign investors. The association of a SWF …

Minority And Women Entrepreneurs: Building Capital, Networks, And Skills, Michael S. Barr

Other Publications

The United States has an enviable entrepreneurial culture and a track record of building new companies. Yet new and small business owners often face particular challenges, including lack of access to capital, insufficient business networks for peer support, investment, and business opportunities, and the absence of the full range of essential skills necessary to lead a business to survive and grow. Women and minority entrepreneurs often face even greater obstacles. While business formation is, of course, primarily a matter for the private sector, public policy can and should encourage increased rates of entrepreneurship, and the capital, networks, and skills essential …

Empowering Distributed Autonomous Companies, Houman B. Shadab

Other Publications

No abstract provided.

The Separation Of Intelligence And Control: Retirement Savings And The Limits Of Soft Paternalism, Jacob Hale Russell

William & Mary Business Law Review

“Soft paternalism” is in vogue among academics and lawmakers, but too much is being asked of it. This Article studies soft paternalist techniques—including nudging and disclosure—which have been used in the employersponsored retirement system. Defined-contribution retirement plans represent an ideal test case for libertarian paternalism: there has been extensive experimentation, and nudge advocates have often held up such plans as successes. In particular, this Article focuses on investment allocation decisions in retirement portfolios, and suggests that we should be skeptical of the ability of soft paternalism to improve those decisions. When a domain is rife with conflicts of interest—as in …

The Hedge Fund Regulation Dilemma: Direct Vs. Indirect Regulation, Hossein Nabilou, Alessio M. Pacces

William & Mary Business Law Review

This Article studies regulatory strategies to address the potential systemic risk of hedge fund operation in financial markets. Due to the implications of the choice of regulatory strategies and instruments in terms of mitigating systemic risk, the Article focuses on one critical aspect of hedge fund regulation, namely the choice between direct regulation and indirect regulation. This Article defines the distinction between direct and indirect regulation, maps this distinction’s implications in terms of regulatory techniques and instruments, and analyzes the arguments for and against direct and indirect regulation of hedge funds. This Article argues that the indirect regulation of hedge …

Superior Supererogation: Why Credit Default Swaps Are Securities Under The Investment Advisers Act Of 1940, J. Tyler Kirk

William & Mary Business Law Review

No abstract provided.

Maggie Walker's Bank, Mehrsa Baradaran

Popular Media

Maggie Walker was the first woman of any race to own a bank. What makes this achievement remarkable is that she was born in 1867 to a former slave in Richmond, Va. Her mother was widowed and left destitute when her father was murdered. She and her mother survived by doing laundry for whites families in the area, an experience that shaped her understanding of wealth and race inequality. But Maggie was a brilliant student and finished high school at 16. She became a teacher, but was forced to quit when she married as it was unlawful for married women …

Buying Time In Spain: The Spanish Law Of Installment Sales, John M. Steadman

Georgia Journal of International & Comparative Law

No abstract provided.

Securities Regulations Investigations - United States-Swiss Treaty Attempts To Increase Cooperation In Releasing Names Of Swiss-Based Account Holders Involved In United States Securities And Exchange Commission Investigations, Daniel B. Simon Iii

Georgia Journal of International & Comparative Law

No abstract provided.

Incorporating Legal Claims, Maya Steinitz

Notre Dame Law Review

Recent years have seen an explosion of interest in commercial litigation funding. Whereas the judicial, legislative, and scholarly treatment of litigation finance has regarded litigation finance first and foremost as a form of champerty and sought to regulate it through rules of legal professional responsibility (hereinafter, the “legal ethics paradigm”), this Article suggests that the problems created by litigation finance are all facets of the classic problems created by “the separation of ownership and control” that have been a focus of business law since the advent of the corporate form. Therefore, an “incorporation paradigm,” offered here, is more appropriate. “Incorporating …

Law And Finance In The Chinese Shadow Banking System, Dan Awrey

Cornell International Law Journal

No abstract provided.

Harmonizing Third-Party Litigation Funding Regulation, Victoria A. Shannon

Cardozo Law Review

Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a "wild west" due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation …

Should The Law Preserve Party Control? Litigation Investment, Insurance Law, And Double Standards, Anthony J. Sebok

Articles

Litigation investment, sometimes known as litigation finance, is increasingly accepted around the world. Once prohibited as champerty, litigation investment is now embraced in England, Canada, and Australia, as well as in many civil law nations. In the United States, the development of a robust market for investment in litigation has been met by various objections. One objection is that litigation investment interferes with the autonomy of lawyers. A second objection is that it promotes frivolous litigation.

This Article takes up a popular argument against litigation investment: the legal system should not encourage parties to sell their control over litigation that …

Annual Survey Of Developments In International Trade Law: 1985, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

The Export Trade Note: A New Instrument For International Trade, Eugene A. Ludwig, Michael J. Coursey

Georgia Journal of International & Comparative Law

No abstract provided.

Phishing And Vat Fraud In Co2 Permits: The Digital Invoice Customs Exchange Solution, Richard Thompson Ainsworth

Faculty Scholarship

In accordance with Directive 2003/87/EC of October 13, 2003, trade in greenhouse gas emissions commenced in the European Union (EU) on January 1, 2005. The EU-Emissions Trading System (EU-ETS) was born.

The EU has a Value Added Tax (VAT). VAT is a transaction-based levy on all trade in goods and services. Each Member State has a VAT as a condition of membership. Until January 3, 2017 transactions in CO2 permits are taxed as services. After this date they are exempt as financial instruments.

This change in VAT treatment of CO2 permits is directly attributable to rampant fraud in the market. …

Balance And Team Production, Kelli A. Alces

Seattle University Law Review

For decades, those holding the shareholder primacy view that the purpose of a corporation is to earn a profit for its shareholders have been debating with those who believe that corporations exist to serve broader societal interests. Adolph Berle and Merrick Dodd began the conversation over eighty years ago, and it continues today, with voices at various places along a spectrum of possible corporate purposes participating. Unfortunately, over time, the various sides of the debate have begun to talk past each other rather than engage with each other and have lost sight of whatever common ground they may be able …

The Boundaries Of "Team" Production Of Corporate Governance, Anthony J. Casey, M. Todd Henderson

Seattle University Law Review

We examine the cooperative production of corporate governance. We explain that this production does not occur exclusively within a “team” or “firm.” Rather, several aspects of corporate governance are quintessentially market products. Like Blair and Stout, we view the shareholder as but one of many stakeholders in a corporation. Where we depart from their analysis is in our view of the boundaries of a firm. We suggest that they overweight the intrafirm production of control. Focusing on the primacy of a board of directors, Blair and Stout posit a hierarchical team that governs the economic enterprise. We observe, however, that …

The Team Production Model As A Paradigm, Brian R. Cheffins

Seattle University Law Review

Margaret Blair and Lynn Stout suggested a few years after the publication of their 1999 Virginia Law Review article, A Team Production Theory of Corporate Law, that their team production model was poised to emerge as part of a new corporate law “paradigm.” In so doing, they specifically invoked Thomas Kuhn’s well-known analysis of scientific revolutions. This Article revisits Blair and Stout’s team production theory by offering a critique of their claim that their model is destined to become a new corporate law paradigm in the Kuhnian sense. In so doing the Article draws upon key corporate law theories and …