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Articles 91 - 120 of 208
Full-Text Articles in Business Organizations Law
Sorting Out White-Collar Crime, Miriam Baer
Firm Value And Intracorporate Arbitration, Andrew K. Jennings
Firm Value And Intracorporate Arbitration, Andrew K. Jennings
Faculty Scholarship
No abstract provided.
Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu
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
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
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 …
Dads Are Parents, Too: Why Amending The Pregnancy Discrimination Act Is Necessary For Courts To Determine If A Parental Leave Policy Violates Title Vii, Krista Gay
Brooklyn Journal of Corporate, Financial & Commercial Law
To attract millennials desiring a work-life balance, large companies have begun to offer new parent leave to both male and female employees and commonly offer longer leave to women than men. Although a company may offer pregnancy disability leave to women without offering similar leave to men, if the company classifies the leave as parental bonding leave, it must be offered equally. If it is not, as highlighted by recent lawsuits against JP Morgan and Estée Lauder, a Title VII claim can arise. Historically, courts have had difficulty deciding if such a policy does in fact violate Title VII, because …
Corporate Governance And Bankruptcy, Daniel J.H. Greenwood
Corporate Governance And Bankruptcy, Daniel J.H. Greenwood
Brooklyn Journal of Corporate, Financial & Commercial Law
Ordinary corporate law invests enormous authority in corporate leaders, largely without accountability either to those they govern or to the judiciary, in defiance of much of what we know about effective governance procedure. Instead, we rely on the markets in which the corporation participates as the primary check on incumbent officials. Regardless of whether relying on markets is sufficient in the ordinary course, corporate insolvency is the markets’ verdict that incumbent management has failed. Accordingly, in bankruptcy and insolvency more generally, the law ought to abandon its ordinary deference to the corporate powers that be and instead impose standard good …
Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben
Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben
Brooklyn Journal of Corporate, Financial & Commercial Law
Outside of bankruptcy, a board of directors’ decision to take control rights away from existing shareholders and grant them to another is subject to heightened fiduciary duties. As the sale of control represents a kind of end game, shareholders have one last chance to realize the full value for their investment. In such a context, their interests warrant special protection. A similar sale of control can happen in a chapter 11 procedure when a bankruptcy plan revamps the capital structure of the firm. In such a restructuring of the firm, control rights can be newly created, redefined and redistributed to …
Disruptive Philanthropy: Chan-Zuckerberg, The Limited Liability Company, And The Millionaire Next Door, Dana Brakman Reiser
Disruptive Philanthropy: Chan-Zuckerberg, The Limited Liability Company, And The Millionaire Next Door, Dana Brakman Reiser
Faculty Scholarship
No abstract provided.
The Governing Authority's Responsibilities In Compliance And Risk Management, As Seen In The American Law Institute's Draft Principles Of Compliance, Risk Management, And Enforcement, James Fanto
Faculty Scholarship
No abstract provided.
Understanding The Scope Of Business Law Clinics: Perspectives From The United Kingdom, Israel And The United States,, Jonathan Askin, Dov Greenbaum, Assaf Ben-David, Victoria Roper, Elaine Campbell
Understanding The Scope Of Business Law Clinics: Perspectives From The United Kingdom, Israel And The United States,, Jonathan Askin, Dov Greenbaum, Assaf Ben-David, Victoria Roper, Elaine Campbell
Faculty Scholarship
No abstract provided.
Essay: Corporate Triplespeak: Responses By Investor-Owned Utilities To The Epa’S Proposed Clean Power Plan, Alan R. Palmiter
Essay: Corporate Triplespeak: Responses By Investor-Owned Utilities To The Epa’S Proposed Clean Power Plan, Alan R. Palmiter
Brooklyn Law Review
During the year following the EPA’s proposed Clean Power Plan to regulate CO2 emissions in the power sector, the largest investor-owned electric utilities engaged in a curious triplespeak. Employing the moral language of political conservatives, the utilities focused on whether and how the EPA had transgressed its “traditional” regulatory role, thus altering the “structure” of energy federalism and potentially “degrading” orderly power supplies. In disclosure filings with the Securities and Exchange Commission, the utilities used the moral language of political libertarians, focusing on the “financial risks” that federal government “intervention” poses to efficient power “markets” and to the “freedom” of …
Rules Are Meant To Be Amended: How Regulation Crowdfunding's Final Rules Impact The Lives Of Startups And Small Businesses, Dylan J. Hans
Rules Are Meant To Be Amended: How Regulation Crowdfunding's Final Rules Impact The Lives Of Startups And Small Businesses, Dylan J. Hans
Brooklyn Law Review
The Securities and Exchange Commission effectuated the final crowdfunding rules in 2016, and since then, those rules have become the target of scrutiny from startups and investors. Crowdfunding, a form of public capital raising, is an exciting means by which new companies raise money. But, how long will this regulation be a viable option for startups and small businesses? Will the regulation continue to create opportunities for small market enterprises to raise capital? This Note argues that the Securities and Exchange Commission must make adjustments to the Regulation Crowdfunding exemption to improve investor protection, while also reducing draconian disclosure requirements …
The Corporate Law Dilemma And The Enlightened Sovereign Control Paradigm: In Search Of A New Legal Framework, Vincenzo Bavoso
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 …
Propping Up Corporate Crime With Corporate Character, Miriam H. Baer
Propping Up Corporate Crime With Corporate Character, Miriam H. Baer
Faculty Scholarship
No abstract provided.
Constitutive Compliance, Edward Janger
The Fiduciary Principle Of Insider Trading Needs Revision, Roberta S. Karmel
The Fiduciary Principle Of Insider Trading Needs Revision, Roberta S. Karmel
Faculty Scholarship
No abstract provided.
Regulating The “Too Big To Jail” Financial Institutions, Jerry W. Markham
Regulating The “Too Big To Jail” Financial Institutions, Jerry W. Markham
Brooklyn Law Review
This article addresses the “too big to jail” regulatory model in which large banks pay hundreds of billions of dollars to settle multiple and duplicative regulatory charges brought by a horde of state, federal, and even foreign regulators. The banks pay those massive settlements in order to keep their banking charters and to obtain immunity from prosecution for senior executives. In turn, regulators benefit from the headlines these fines generate. Much criticism has been directed at these settlements because the banks are allowed to continue business as usual and no senior executives are jailed. Other critics contend that these settlements …
Opacity, Fragility, & Power: Lessons From The Law Enforcement Response To The Financial Crisis, Gregory M. Gilchrist
Opacity, Fragility, & Power: Lessons From The Law Enforcement Response To The Financial Crisis, Gregory M. Gilchrist
Brooklyn Law Review
Review of Mary Kreiner Ramirez and Steven A. Ramirez, THE CARE FOR THE CORPORATE DEATH PENALTY: RESTORING LAW AND ORDER ON WALL STREET (New York 2017) The Case for the Corporate Death Penalty, by Mary Kreiner Ramirez and Steven A. Ramirez, argues that the limited law enforcement response to the 2008 financial crisis represented an unprecedented failure of the rule of law. It further maintains that the weak response by law enforcement was caused by the economic and political power of the largest financial institutions and those who run them. It concludes that the failure to vigorously prosecute the people …
Tax In The World Of Antitrust Enforcement: European Commission’S State Aid Investigations Into Eu Member States’ Tax Rulings, Nina Hrushko
Tax In The World Of Antitrust Enforcement: European Commission’S State Aid Investigations Into Eu Member States’ Tax Rulings, Nina Hrushko
Brooklyn Journal of International Law
In August 2016, after a two-year investigation, the European Commission issued a negative State aid ruling against Ireland, finding that the country had provided illegal tax benefits to Apple Inc. and requesting the government to collect €13 billion in retroactive taxes from the company. This decision sparked a heated debate around the globe about the European Commission’s authority to interfere into the individual EU Member States’ fiscal policies and order retroactive tax recoveries. This Note explores the application of EU State aid rules to tax laws and, in particular, EU Member States’ tax rulings, and discusses the European Commission’s investigations …
Reconceptualizing The Whistleblower's Dilemma, Miriam Baer
Reconceptualizing The Whistleblower's Dilemma, Miriam Baer
Faculty Scholarship
No abstract provided.
Looking To Australia To Overhaul U.S. Foreign Investment In Real Estate, Stephanie L. Kahn
Looking To Australia To Overhaul U.S. Foreign Investment In Real Estate, Stephanie L. Kahn
Brooklyn Journal of International Law
This Note examines the controversy of the EB-5 Immigrant Investor Visa, which was created under the 1990 U.S. Immigration Act. The EB-5 Immigrant Investor Visa was meant to encourage foreign investment in U.S. real estate. Under the EB-5 immigrant visa program, an investor can obtain U.S. permanent residency through the EB-5 category, if the investor fulfills either of the two requirements. After an applicant proves they have met the requirements, the holder of the visa and their immediate family members can begin their paths to citizenship, first through the Greencard program. While created with good intent, the EB-5 visa program …
Too Vast To Succeed, Miriam Baer
Purposive Loyalty, Andrew S. Gold
Financing The Benefit Corporation, Steven A. Dean, Dana Brakman Reiser
Financing The Benefit Corporation, Steven A. Dean, Dana Brakman Reiser
Faculty Scholarship
No abstract provided.
Insider Trading's Legality Problem, Miriam Baer
Insider Trading's Legality Problem, Miriam Baer
Faculty Scholarship
No abstract provided.
Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen
Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article examines how a director’s social capital might affect his or her behavior, the board’s performance, and corporate governance, as well as the potential normative implications of the director’s social network. We argue that the quality of board performance could be improved where the social network closure within the board is high and there are many non-redundant contacts beyond the board. Network closure can improve trust and collaboration within a board, while external contacts may benefit a company with more diverse sources of information. Moreover, different network positioning leads to the inequality of social capital for directors. With more …
Financing The Benefit Corporation, Dana Brakman Reiser, Steven A. Dean
Financing The Benefit Corporation, Dana Brakman Reiser, Steven A. Dean
Faculty Scholarship
No abstract provided.
An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz
An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz
Brooklyn Law Review
Mutual funds differ greatly from traditional corporations in the way they are formed and operated. Despite these differences, courts apply the same rules for derivative shareholder litigation to both types of entities. While these rules make sense and were mostly created with corporations in mind, courts have generally been unwilling to consider mutual funds’ unique characteristics in determining whether to allow direct litigation from shareholders. This note explores those unique characteristics and the usual policy reasons for requiring derivative litigation. It concludes that in most cases these unique characteristics make a derivative suit nearly impossible to sustain. Further, the normal …
Delaware’S Ban On Fee-Shifting: A Failed Attempt To Protect Shareholders At The Expense Of Officers And Directors Of Public Corporations, Ryan S. Starstrom
Delaware’S Ban On Fee-Shifting: A Failed Attempt To Protect Shareholders At The Expense Of Officers And Directors Of Public Corporations, Ryan S. Starstrom
Brooklyn Law Review
In 2014, the Delaware Supreme Court issued its opinion in ATP Tour, Inc. v. Deutscher Tennis Bund, which held that non-stock Delaware corporations may validly enact fee-shifting provisions in their bylaws and certificate of incorporation. Subsequently, the Delaware Legislature, fearing that the ATP Tour decision would extend to stock corporations, amended Title 8 of the Delaware Code (DGCL) Sections 102(f) and 109(b). These amendments provide for a blanket prohibition of fee-shifting provisions in a Delaware corporation’s certificate of incorporation or bylaws, respectively, in regard to “internal corporate claims.” Such a prohibition eliminates the possibility for a Delaware corporation to enact …