Business Organizations Law Commons^™

Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal securities law seeks to ensure the quality and quantity of information that corporations make publicly available. Informational asymmetries associated with companies in financial distress, but not in bankruptcy, have received little attention. This Article explores some important asymmetries in this context that are curious in their origin, nature, and impact. The asymmetries are especially curious because of the impact of a world with credit default swaps (CDS) and CDS-driven debt “decoupling.” The Article explores two categories of asymmetries. The first relates to information on the company itself. Here, the Article suggests there is fresh evidence for the belief that …

Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow

Brooklyn Journal of Corporate, Financial & Commercial Law

In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee’s administration of a debtor’s estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of “bankruptcy M&A.” My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is still a source …

Transparency In Corporate Groups, Jay Lawrence Westbrook

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article addresses a remarkable blind spot in American law: the failure to apply the well-established principles of secured credit to prevent inefficiency, confusion, and fraud in the manipulation of the webs of subsidiaries within corporate groups. In particular, “asset partitioning” has been a fashionable subject in which the central problem of non-transparency has been often mentioned but little addressed. This Article offers a concept for a new system of corporate disclosure for the benefit of creditors and other stakeholders. It would require disclosure of corporate structures and allocations of assets among affiliates to the extent the affiliates are to …

Female Entrepreneurs And Equity Crowdfunding In The Us: Receiving Less When Asking For More, Seth C. Oranburg, Mark Geiger

Law Faculty Scholarship

In this paper, we explore the relationship between gender and funding raised through equity crowdfunding. Using data collected from the population of US equity crowdfunding campaigns, we find that campaigns receive significantly less funding when the primary signatory is female. Furthermore, we explore interactions between gender and a campaign's funding target. The results suggest that campaigns raise significantly less funding, as the target amount increases, when the primary signatory is female. These results are the first to suggest a relationship between gender and funding among the population of US equity crowdfunding campaigns. Implications and future directions are discussed.

The Corporate Law Dilemma And The Enlightened Sovereign Control Paradigm: In Search Of A New Legal Framework, Vincenzo Bavoso

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article is centered on the proposal of a new model of corporate decision-making: the enlightened sovereign control paradigm. In revisiting the long-standing academic debate on the corporate objective, typically enshrined in the dichotomy between shareholder value and stakeholder theory, a critique of these existing models is put forward. In particular, it questions the ability of the existing theories to take account of the complex and multidimensional risks that are created by the company which affect different constituencies both inside and outside the company. While the global financial crisis of 2008 reignited the urgency to further define an appropriate legal …

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests …

Direct Regulation Of Hedge Funds: An Analysis Of Hedge Fund Regulation After The Implementation Of Title Iv Of The Dodd-Frank Act, Jacob Johnson

DePaul Business & Commercial Law Journal

Jacob Johnson is a Class of 2018 Juris Doctor Candidate at DePaul University

College of Law and Research Staff Member of the DePaul Business and Commercial

Law Journal. He earned a B.A. in Political Science and minor in Business from the

University of Illinois at Urbana-Champaign in 2015. He would like to thank his

parents, John and Rebecca Johnson, for their constant support.

Deregulating The Music Industry: A Push To Give Power Back To The Songwriters, Scott Hanus

DePaul Business & Commercial Law Journal

Scott Hanus is a class of 2018 Juris Doctor Candidate at DePaul University

College of Law and a member of the research staff of the DePaul Business and

Commercial Law Journal. He earned a B.A. in History and Political Science from

the University of Illinois at Urbana-Champaign in 2015. He would like to thank his

parents, Don and Laura Hanus, for their constant support throughout his academic

career, the editors of the journal for their hard work, and Leo Fender for creating the

Fender Telecaster.

Creating Stability In The International Fashion Industry By Using Corporate Structures And Conglomerates, Joyce Boland-Devito Esq.

DePaul Business & Commercial Law Journal

Abstract:

This paper will analyze the challenges currently facing the global fashion industries as consumers change their shopping habits. During these tumultuous times, retailers should re-evaluate their organizational structures. According to the Forbes Global 2000, apparel companies make up 29 of those top businesses. For instance, a corporate structure helps businesses like TJX Companies (headquartered in Framingham, Massachusetts) – which owns TJ Maxx, Marshalls, HomeGoods and Sierra Trading Post – to operate efficiently and maintain over 1000 stores in the U.S., Canada, U.K., Ireland, Germany, Poland, Austria, The Netherlands and Australia. It sells apparel and home fashions (sheets, pillows, …

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution …

Rise Of The Machines: The Legal Implications For Investor Protection With The Rise Of Robo-Advisors, Bret E. Strzelczyk

DePaul Business & Commercial Law Journal

This note examines the complex state of financial innovation and preexisting investor protection regimes, mainly the Investment Advisers Act of 1940, which do not properly address the question of whether a robo-advisor platform serving as registered investment advisers satisfies the fiduciary standard elements laid out in the Act. This article examines the current regulation from the Department of Labor, the Financial Industry Regulatory Authority, and the Securities and Exchange Commission and addresses the inadequacies in each regulatory entity’s policy prescription. This article contends that robo-advisors can not act as a fiduciary for several reasons – primarily because these platforms do …

Consumers In Shock: How Federal Government Overregulation Led Mylan To Acquire A Monopoly Over Epinephrine Autoinjectors, Nicole O'Toole

DePaul Business & Commercial Law Journal

The philosophy that federal government intervention increases costs and decreases options and values available to consumers can be analyzed across a plethora of markets. This Note will focus on the epinephrine autoinjector market, specifically looking at Mylan's epinephrine autoinjector known as the EpiPen. Today, the EpiPen is considered the “Kleenex” of epinephrine autoinjectors as it is estimated to control over ninety percent of the market share. From a Darwinist perspective it would appear that because the EpiPen controls most of the market, it must be the most superior product available to consumers. However, as this note will cover, this is …

Over- And Under-Funding: Crowdfunding Concerns Of The Parties Involved, Tanya M. Marcum J.D., Eden S. Blair Phd

DePaul Business & Commercial Law Journal

Financial collaboration for new business ventures or the expansion of existing businesses utilizing the internet and social media is expanding. One area of growth is in the area of crowdfunding. Crowdfunding or crowdsourcing is known as collaborative funding using the internet to attract many investors to a new business venture.

Newsroom: From Farm To School 1-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

From Corporate Law To Corporate Governance, Ronald J. Gilson

Faculty Scholarship

In the 1960s and 1970s, corporate law and finance scholars gave up on their traditional approaches. Corporate law had become “towering skyscrapers of rusted girders, internally welded together and containing nothing but wind.” In finance, the theory of the firm was recognized as an “empty box.” This essay tracks how corporate law was reborn as corporate governance through three examples of how we have usefully complicated the inquiry into corporate behavior. Part I frames the first complication, defining governance broadly as the company’s operating system, a braided framework of legal and non-legal elements. Part II adds a second complication by …

The Cambridge Handbook Of Social Enterprise Law, Lloyd Histoshi Mayer

Books

Book Chapters

Lloyd Hitoshi Mayer, Creating a Tax Space for Social Enterprise, in The Cambridge Handbook of Social Enterprise Law 157 (Benjamin Means & Joseph W. Yockey eds., 2018)

While still relatively few in number compared to traditional nonprofit and for-profit organizations, the rise of social enterprises represents a possible disruption of not only existing models of doing business but also areas of law that in many respects have seen little fundamental change for decades. One such area is domestic tax law, where social enterprises currently find themselves subject to the rules of for-profit activities and entities. Here, both scholars …

Delaware's Retreat: Exploring Developing Fissures And Tectonic Shifts In Delaware Corporate Law, James D. Cox, Randall S. Thomas

Faculty Scholarship

No abstract provided.

Competition Merger Review For Cross-Border Mergers And Acquisitions In Indonesia, Zulheri Zulheri

Indonesia Law Review

This article aimed at expressing ideas on a legal construction of competition merger review (CMR) on Crossborder Mergers and Acquisitions (CBM&A) that have Indonesian legal dimension. The problem has been triggered by the lack of CMR guidelines for CBM&A to nurture a fair and sustainable business competition (FSBC). Consequently, the existing guideline is inadequate for reviewing CBM&A proposals which have a multi-jurisdiction dimension character. As a result, merging (gigantic) companies doing business in Indonesia have enormous opportunities to engage in anti-competitive behavior in the domestic market. In its turn, it brings the impact of reducing competition itself whereby national companies …

The Crisis In Corporate Governance: 2002 Style, Robert W. Hamilton

Maine Law Review

The period from November 1, 2001 to October 1, 2002 has been an astonishing period for corporate governance in many respects. It began with the completely unexpected collapse of Enron Corporation on November 1, 2001, followed almost immediately thereafter by widely publicized downward profit restatements and bankruptcy filings by a significant number of telecommunication companies. Since November 1, 2001, there have been numerous public reports of fraud, misconduct, and scandals by directors of other well-known corporations such as Lucent Technologies, Kmart, Merck & Co., and Rite Aid Corporation. There also have been disclosures of many instances in which corporate officers …

Maine Corporation Law & Practice, 2nd Edition, George F. Eaton Ii, Kristy M. Smith

Maine Law Review

In 2001, several members of the Business Law Section of the Maine Bar Association convened the Corporate Law Revision Committee (the Committee), which set out to adapt the Model Business Corporation Act (the Model Act) for use in Maine. Maine's corporation law had not benefited from a comprehensive over-haul since 1971, and notwithstanding periodic updates of specific components of the statutory regime over the years, a thorough and comprehensive revision was needed to keep pace with modern corporate law and practice in the twenty-first century. The Committee's efforts, under the leadership of James B. Zimpritch, Esq., widely acknowledged as the …

A Progressive Case For A Universal Transaction Tax, Gary Chartier

Maine Law Review

Federal Reserve Board chair Alan Greenspan’s recent call for tax simplification and his acknowledgement of arguments for a consumption tax may help to place the question of such taxes, including a value-added tax (VAT), on the national political agenda. If the possibility of imposing a VAT does receive significant national attention, the debate it occasions will obviously, and appropriately, focus in part on a variety of technical questions. But normative questions will likely be at issue as well. A VAT is like a sales tax, but is applied at each stage in a product’s development and not merely when it …

The Corporation As Sovereign, Allison D. Garrett

Maine Law Review

In the past two hundred years, sovereignty devolved from the monarch to the people in many countries; in our lifetimes, it has devolved in several significant ways from the people to the corporation. We are witnesses to the erosion of traditional Westphalian concepts of sovereignty, where the chess game of international politics is played out by nation-states, each governing a certain geographic area and group of people. Eulogies for the nation-state often cite globalization as the cause of death. The causa mortis is characterized by the increase in the power and normative influence of supranational organizations, such as the United …

Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra

All Faculty Publications

Fiduciary obligation, under both corporate law and the common law, requires directors and officers to identify and address climate-related financial and other risks. In fulfilling their obligations to act in the best interests of the company, directors and officers must directly engage with developments in knowledge regarding physical and transition risks related to climate change and how these risks may impact their corporation. Depending on the firm’s economic activities, the risk may be minor or highly significant, but directors and officers have an obligation to make the inquiries, to devise strategies to address risks, and to have an ongoing monitoring …

Uniform Commercial Acts, Samuel Williston

Dickinson Law Review (2017-Present)

No abstract provided.

Newsroom: From Farm To School 09-21-2017, Jill Rodrigues, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Supremacy Of Law Or Religion: Congress's Power To Amend The Constitution Bypassing Constraints Of The Constitutional Process, Roman Sankovych

DePaul Business & Commercial Law Journal

No abstract provided.

The Netflix Tax: Chicago's Extension Of Its Amusement Tax To Include Electronically Delivered Entertainment Faces Numerous Changes And Sets The Stage For Taxing On Streaming-Based Entertainment, Stephanie Cueman

DePaul Business & Commercial Law Journal

No abstract provided.

Dodd-Frank Wall Street Reform And Consumer Protection Act: The Evolution Of Whistleblower Protections, Employment Contracts And Mandatory Arbitration Agreements, Florence Shu-Acquaye

DePaul Business & Commercial Law Journal

No abstract provided.

The Eleventh Circuit's Second Shot At Getting It Right: Nonconsensual Nondebtor Releases In Bankruptcy Court, Pierce G. Hand Iv

DePaul Business & Commercial Law Journal

No abstract provided.