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Full-Text Articles in Business Organizations Law
The Uncertain Scope Of Revised Article 9'S Statutory Prohibition Of Exculpatory Breach Of Peace Clauses, Michael Korybut
The Uncertain Scope Of Revised Article 9'S Statutory Prohibition Of Exculpatory Breach Of Peace Clauses, Michael Korybut
UC Law Business Journal
What length may an agent for a secured lender with a lien on a debtor’s personal property go to in order to repossess the debtor property to satisfy the debt? Wombles Charters, a 1990 New York case decided under Article 9 of the Uniform Commercial Code, was the first in a trilogy to condone the use of exculpatory repossession clauses allowing actions that would otherwise amounted to a breach of the peace. In 2001, Article 9 received a makeover that many presumed would invalidate Wombles carve outs yet, there is virtually no case law on the subject. This has led …
A Right Without A Remedy Is No Right At All: A Case For Why Ab 1844 Requires A Remedial Scheme And What It Might Be, Tina Lu
UC Law Business Journal
This note seeks to explore whether California intended to create a right or right of action for a plaintiff seeking to sue an employer for an AB 1844 violation, and if so, what remedies are available to the plaintiff. This note discusses several remedies that may be available: options include, but are not limited to, a discussion of the remedial scheme created by the Private Attorney General Act of 2004; a wrongful discharge claim in violation of public policy; or a civil penalty. Next, this note discusses whether or not the trifocal approach of the rights--right of action--remedy equation is …
Fiduciary Duty And The Ex Officio Conundrum In Corporate Governance: The Troublesome Murkiness Of The Gubernatorial Trustee's Obligations, Salar Ghahramani
Fiduciary Duty And The Ex Officio Conundrum In Corporate Governance: The Troublesome Murkiness Of The Gubernatorial Trustee's Obligations, Salar Ghahramani
UC Law Business Journal
Should governors serve on the boards of incorporated universities as ex officio members? This article examines the question by considering the expeience of Pennnsylvania State University and analyzes the implications of governors serving on the boards of state- aided corporations by focusing on the fiduciary responsibilities of directors under corporate law. The article concludes that the current statutory framework needs reconsideration and asserts that while there is no question that the state's public interests should trump an institution's "private" interests, it is the state that has chartered the corporation for the promotion of a public good (education) and has appointed …
To Be Or Not To Be A Funding Portal: Why Crowdfunding Platforms Will Become Broker-Dealers, Shekhar Darke
To Be Or Not To Be A Funding Portal: Why Crowdfunding Platforms Will Become Broker-Dealers, Shekhar Darke
UC Law Business Journal
The recently enacted JOBS Act created crowdfunding exemption to securities registration, allowing entrepreneurs to raise capital for their ventures from everyday investors. The crowdfunding exemption has many stipulations such as a maximum investment and offering amounts within a given period. Also, investors can only invest in crowdfunding opportunities through intermediaries that are registered as broker-dealers or funding portals. The JOBS Act created funding portal registration as an easier alternative to the more burdensome broker-dealer registration. Thus, many people believe that crowdfunding platforms will opt to register as funding portals. However, this note argues that crowdfunding platforms would rather choose broker-dealer …
Confidential Ideas And Independent Contractors: Trade Secret Ownership In The Age Of The Hired Gun, Rob P. Saka
Confidential Ideas And Independent Contractors: Trade Secret Ownership In The Age Of The Hired Gun, Rob P. Saka
UC Law Business Journal
Does an independent contractor or a party hiring the contractor own the new, confidential ideas that fall outside of what the contract or is hired to provide, but that arise during the course of that work? The issue of tradesecret ownership is important due to the growing use of contractors, particularly in the tech development industry. This note explores the emerging issue of trade secret ownership in the post- Great Recession era of increased reliance on contractor-inventors. In concluding that-absenta contrary written agreement- contractor- inventors are the rightful owners of their incidentally created trade secrets while assigned to a project, …
Creating A Culture Of Compliance: Why Departmentalization May Not Be The Answer, Michele Destefano
Creating A Culture Of Compliance: Why Departmentalization May Not Be The Answer, Michele Destefano
UC Law Business Journal
Over the past few decades, as corporate criminal liability rules, sentencing guidelines, and settlement incentives have changed, there has been increased emphasis on and resources devoted to the compliance function at large publicly held companies. In this article, Professor DeStefano traces the development of the compliance function at large corporations and questions the recent mandate by certain governmental entities that malfeasant corporations designate a chief compliance officer and separate the compliance gatekeeping function from the legal department so that this chief compliance officer does not report to the general counsel. She categorizes the types of arguments made for and against …
Bolstering Competition In The International Remittance Market: A Proposal For Reforming The Current Regulatory Licensing Framework Governing Money Transmission Businesses, Leslie Gutierrez
UC Law Business Journal
State licensing requirements for money transmission businesses involved in international remittances have allowed key players Western Union and MoneyGram to benefit from the high demand for remittances and the lack of competition by enabling these entities to impose inflated prices on migrant consumers. With the growth of remittance flows and the rise of technological innovations, such as Internet and mobile payments, the current state-by-state licensing requirements for money transmission businesses prove to be overly burdensome and expensive and, ultimately, a barrier to entry for small businesses and start-ups. This note proposes to replace the current money-transmitting state licensing framework with …
One Worldwide Set Of Global Accounting Standards? - Hmm, Neal F. Newman
One Worldwide Set Of Global Accounting Standards? - Hmm, Neal F. Newman
UC Law Business Journal
This paper examines the contemplated worldwide adoption of IFRS. This paper explores whether a one size fits all accounting regime is viable where economies around the globe, though interconnected, have different histories, different cultural norms, different economic dynamics, different investor and capital bases, and therefore, perhaps different uses for financial information. Do these different cultural norms, economic dynamics, investor and capital bases therefore necessitate different uses for financial information? And if so, how does that affect the stated goal of "[a] single set of high quality global accounting standards?" It is possible that these different cultural norms, economic dynamics, investor …
The Timeliness Of Financial Reporting: An Empirical Legal Study Of Russian Banks, Robert W. Mcgee, Yeomin Yoon, Thomas Tarangelo
The Timeliness Of Financial Reporting: An Empirical Legal Study Of Russian Banks, Robert W. Mcgee, Yeomin Yoon, Thomas Tarangelo
UC Law Business Journal
The timeliness of financial reporting has been an important topic in the accounting literature for decades. There is a tradeoff between the timeliness of reporting and the value of the information being reported. Prior to the advent of the Internet, reporting had to be done using print media. However, now that many companies post their annual and quarterly reports on the Internet, it is possible to report in a more timely fashion than has previously been possible. The problem is that companies in some countries do not make full use of this disclosure tool. They sometimes take many months to …
Throwing The Red Flag: Challenging The Nfl's Lessons For American Business, Heather M. Field
Throwing The Red Flag: Challenging The Nfl's Lessons For American Business, Heather M. Field
Faculty Scholarship
No abstract provided.
Intracorporate Opportunism: Redistributional Compensation And Fixing Underexposed Abuses Of Corporate Wealth, Scott H. Mollet
Intracorporate Opportunism: Redistributional Compensation And Fixing Underexposed Abuses Of Corporate Wealth, Scott H. Mollet
UC Law Business Journal
Changes in government policy significantly affect the value of investments, and in some circumstances, the government may have to provide compensation for losses in investment value. Discussions on whether these losses should be compensated have failed to investigate whether changes to corporate governance policy are similar to the standard model against compensation for policy change. Acorporation combines a variety of economic interests and decisionmakers that permits opportunistic behavior in ways not considered in the compensation debate. This Articlequestions whether the presumption against compensation sufficiently addresses this risk of opportunism due to changes in corporate policy. This Article identifies the potential …
The Uncertain Viability Of A Single Member Limited Liability Company As A Choice Of Entity, John A. Pearce Ii, Lya A. Lipin
The Uncertain Viability Of A Single Member Limited Liability Company As A Choice Of Entity, John A. Pearce Ii, Lya A. Lipin
UC Law Business Journal
Single Member Limited Liability Companies (“SMLLC”) play an increasing role in a wide array of transactions—including corporate reorganizations, like-kind exchanges, and asset protection. However, recent legal developments showcase pitfalls and uncertainty associated with utilizing SMLLCs as an operating business entity. Specifically, courts have held that creditors of a SMLLC can go beyond traditional remedies of obtaining a charging order or piercing the corporate veil to satisfy an existing judgment. For owners to take full advantage of the SMLLC form, they need to heed the cautions implicit in recent legal developments and enact operating agreements and bylaws that help preserve control …
Dancing With The Derivatives Devil: Mutual Funds' Dangerous Liaison With Complex Investment Contracts And The Forgotten Lessons Of 1940, Kelly S. Kibbie
Dancing With The Derivatives Devil: Mutual Funds' Dangerous Liaison With Complex Investment Contracts And The Forgotten Lessons Of 1940, Kelly S. Kibbie
UC Law Business Journal
This Article examines the implications of the drastic increase in the use of complex derivative instruments by mutual funds and the inadequacy of the current statutory and regulatory framework to protect investors. With a series of derivatives disasters and with ninety-four percent of individual mutual fund investors saving for retirementemphasize the need for prompt reform. The 1940 Act was not designed to address complex derivative instruments utilized today and actually prohibits most derivative transactions by mutual funds. Further, the SEC has never engaged in any rulemaking with respect to derivatives transactions by mutual funds. Thus, reforms must be enacted to …
To Tax Or Not To Tax, That Is The Question: A Critique Of The United States’ Policy On Taxation Of Servers, Christopher Trester
To Tax Or Not To Tax, That Is The Question: A Critique Of The United States’ Policy On Taxation Of Servers, Christopher Trester
UC Law Business Journal
The international tax authorities are struggling to create an effective scheme to generate revenue from electronic commerce (“e-commerce”). Currently, the United Stateshas no clear policy on the taxation of these transactions, which deters international companies from locating their servers within the United States based on the fear of high tax rates and uncertain results. The United States should adopt a domestic and international policy that focuses on a consumption-based approach to taxing e-commerce. However, the Organization for Economic Co-operation and Development (“OECD”) and several member countries recommend using source-based concept of permanent establishment to tax the transactions based on the …
Occupy Information: The Case For Freedom Of Corporate Information, Roy Peled
Occupy Information: The Case For Freedom Of Corporate Information, Roy Peled
UC Law Business Journal
Demands for oversight over government operations and the desire for citizens to become more engaged in the democratic process had helped usher in the Freedom of Information Act. This Article argues for extending a similar general duty of disclosure requirement to corporations, because corporations hold pertinent information required for democratic participation. This Article examines the justifications for this general duty of disclosure and reviews existing disclosure mechanisms employ by various countries.
Cloud Computing And State Sales Tax, Tuan Q. Ngo
Cloud Computing And State Sales Tax, Tuan Q. Ngo
UC Law Business Journal
Once a significant source of states’ revenue, the state sales tax systems in state public finance now face formidable challenges. Cloud computing brings to light the inherent flaw in a tax system. While some states have extended their sales taxes to apply to cloud computing services, others have explicitly determined that such services are not taxable. Drawing the distinction between tangible property versus service as the basis for imposing sales tax is no longer a workable framework for cloud computing services. Addressing the systemic problem of the sales tax system requires shedding this outdated paradigm. This Note examines the piecemeal …
Six Years On And Still Counting: Sifting Through The Mortgage Mess, Robert Hockett
Six Years On And Still Counting: Sifting Through The Mortgage Mess, Robert Hockett
UC Law Business Journal
U.S. primary and secondary real estate and mortgage markets reman one of the principal drags upon economic recovery. Upwards of 12 million new mortgages face foreclosure in the coming six years. The reason for this self-perpetuating slump is exceedingly complex, thanks to the large number of causal factors in play. After identifying the principal interests at stake and the constituencies that hold these interests, this article identifies the impediments thatprevent economic recovery and proposes a solution to remove them. The conclusion reached is that municipalities exercising their eminent domain powers in partnership with investors are best situated to move the …
Burning Man: A Case Study Of Altruism Thriving In A For-Profit Organizational Form And The Rationales For Llc-To-Nonprofit Conversion, Yuan Ji
UC Law Business Journal
Burning Man is a temporary city of over 50,000 citizens that exists for one week every year in Nevada’s Black Rock Desert. It is best known in popular culture for its celebration of interactive art, gift economy, and ritualistic burning of a large wooden structure in the shape of a man. The case study of Burning Man illustrates that an altruistic, not profit driven, organization can thrive in a for-profit legal form without abandoning its mission. Nevertheless, this article discusses the theories on nonprofit formation and suggests rationales for Burning Man’s conversion to a nonprofit structure. This articlealso makes specific …
Avic International A Success: How Regulatory Changes To Cfius Has Limited Political Interference And Empowered Chinese Investors To Obtain A Successful Review, Amrietha Nellan
UC Law Business Journal
Chinese businesses are wary of merging or acquiring United States companies due to a perceived hostile environment. The Committee on Foreign Investment in the United States (“CFIUS”) may deny the transaction or make recommendations to the President to divest a completed deal if a risk is found. After a string of highly public failed CFIUS reviews against Chinese acquirers, the process seemed insurmountable for Chinese investors.The recent success of a Chinese aviation firm, AVIC International, in acquiring a U.S. based aviation companyindicates that the United States is not an impenetrablemarket for Chinese investors. In particular, AVIC International’s use of the …
Defending Patagonia: Mergers Andacquisitions With Benefit Corporations, J. Haskell Murray
Defending Patagonia: Mergers Andacquisitions With Benefit Corporations, J. Haskell Murray
UC Law Business Journal
The timeliness of financial reporting has been an important topic in the accounting literature for decades. There is a trade-off between the timeliness of reporting and the value of the information being reported. Prior to the advent of the internet, reporting had to be done using print media. However, now that many companies post their annual and quarterly reports on the internet, it is possible to report in a more timely fashion than has previously been possible. The problem is that companies in some countries do not make full use of this disclosure tool. They sometimes take many months to …
Gatekeeping Post-Uniloc: Expert Testimony In Multi-Component Patent Litigation, Erika Mayo
Gatekeeping Post-Uniloc: Expert Testimony In Multi-Component Patent Litigation, Erika Mayo
UC Law Business Journal
In recent years, the Federal Circuit has made an effort to rein in excessive or unfounded patent damages awards. In Uniloc v. Microsoft, the Federal Circuit granted a motion for retrial on the issue of damages, rejecting the validity of plaintiff’s damages expert testimony. This note advocates a broad reading of Uniloc and encourages trial courts to take a greater role in providing juries with sound methodology for assessing damages. Specifically, this article encourages the use of court-appointed damages experts to restore predictability in the U.S. patent system.
Mers: The Unreported Effects Of Lost Chain Of Title On Real Property Owners, David E. Woolley, Lisa D. Herzog
Mers: The Unreported Effects Of Lost Chain Of Title On Real Property Owners, David E. Woolley, Lisa D. Herzog
UC Law Business Journal
A Mortgage Electronic Registry System ("MERS") keeps electronic records on half of the home mortgages in the United States. The author analyzes the destructive effect that the MERS system will have on 400 years of recorded property rights in the United States, explains how junior and senior property rights are determined in the face of a boundary dispute, and discusses the robo-signer scandal. The article explains how the lost chain of title affects homeowners with or without mortgages in the MERS system, including the ramifications on the ground for determining property boundaries and proof of ownership in order to obtain …
Connecting Law And Creativity: The Role Of Lawyers In Supporting Creative And Innovative Economic Development, Amanda M. Spratley
Connecting Law And Creativity: The Role Of Lawyers In Supporting Creative And Innovative Economic Development, Amanda M. Spratley
UC Law Business Journal
The article presents and discusses opportunities for advocacy that lie at the intersection of the legal and creative community. Economists have identified a shift from in the economy where the most valued quality for stimulating the economy is creativity. This shift will force lawyers to reorient their legal services to survive and better responds to their clients. The articles examines the challenges facing a subset of artists and the link between the creative economy and strengthening regional and local U.S. economies, focusing on the development of microenterprises. The article also details practical steps lawyers can take to provide legal assistance …
Green Building Liability: Considering The Applicable Standards Of Care And Strategies For Establishing A Different Level By Agreement, Darren A. Prum
Green Building Liability: Considering The Applicable Standards Of Care And Strategies For Establishing A Different Level By Agreement, Darren A. Prum
UC Law Business Journal
Many in the construction industry have begun adopting green building practices, leading owners to demand specialists in this area to meet sustainable building goals. In taking on these projects, the parties may overlook the standard of care for disputes concerning green building liability. No case law has definitively resolved the appropriate standard of care for such projects, but through analysis of existing common law and approved strategies for creating contractual relationships, a likely standard for court treatment begins to emerge. The article recommends particular strategies that parties to green building contracts should undertake to avoid future disputes and set an …
Encouraging Litigation: Why Dodd-Frank Goes Too Far In Eliminating The Procedural Difficulties In Sarbanes-Oxley, Jessica Luhrs
Encouraging Litigation: Why Dodd-Frank Goes Too Far In Eliminating The Procedural Difficulties In Sarbanes-Oxley, Jessica Luhrs
UC Law Business Journal
This note reviews the whistleblower protections in the Dodd-Frank Wall Street Reform and Consumer Protection Act. These sweeping protections decrease the barriers and increase the incentives for corporate whistleblowers, in part by decreasing procedural hurdles and providing potentially staggering cash bounties. This note argues that these whistleblower protections go too far and are likely to increase the number of false and meritless claims filed with the Securities and Exchange Commission. This note concludes that the Securities and Exchange Commission should address these shortcomings and supplement its regulatory efforts by incentivizing corporate transparency, penalizing those who file false claims, and encouraging …
A Responsibility To Speak: Citizens United, Corporate Governance And Managing Risks, Roger Coffin
A Responsibility To Speak: Citizens United, Corporate Governance And Managing Risks, Roger Coffin
UC Law Business Journal
Contrary to prior assumptions, the right to corporate political speech established by Citizens United v. Federal Election Commission should not damage corporate stock prices or negatively affect firm value. A sampling of indexes and individual corporate stock prices provides empirical data demonstrating that corporate political spending does not harm shareholders. Special shareholder protections in the event of corporate political speech are therefore unnecessary and such corporate speech does not impinge a shareholder’s ability to exercise political beliefs. On the contrary, corporations require the ability to protect their own interest against regulation that may hamper economic success by engaging in political …
Scratch My Back, And I'Ll Scratch Yours: Scratching The Surface Of The Duty Of Care In Cross Sector Collaborations - Are For-Profits Obligated To Ensure The Sustainability Of Their Partner Non-Profits?, Christyne J. Vachon Esq.
Scratch My Back, And I'Ll Scratch Yours: Scratching The Surface Of The Duty Of Care In Cross Sector Collaborations - Are For-Profits Obligated To Ensure The Sustainability Of Their Partner Non-Profits?, Christyne J. Vachon Esq.
UC Law Business Journal
Nonprofits and For-profit corporations increasingly interact with each other to gain the mutual benefits of cross sector Collaborations. Nonprofits gain access to resources, expertise, and new business avenues, among other benefits. For-profits gain good will, trust, and access to new markets. The Collaboration can lead to corporate governance issues that should not be overlooked during management decision making. The article evaluates a Continuum of engagement in the For-profit and Nonprofit Collaboration that informs the requisite duty of care for the entities’ boards of directors. Ultimately, the duty of care owed by the For-profit to the Nonprofit depends on where the …
Plus Ultra: Third-Party Preservation In A Cloud Computing Paradigm, Joseph A. Nicholson
Plus Ultra: Third-Party Preservation In A Cloud Computing Paradigm, Joseph A. Nicholson
UC Law Business Journal
This note analyzes problems of electronic document preservation in the context of cloud computing. Such document storage policies pose special problems when a litigant’s data is subject to discovery but stored on the network of a third-party vendor. Without contractual preservation obligations, these third parties are likely to escape sanctions even when crucial data is destroyed. The note proposes various electronic storage solutions that would preserve data for discovery during litigation while exposing current problems associated with current litigation tools that fail to compel document production. Finally, the author proposes using terms of service agreements that would ease tensions but …
Supplier Tactics For Dealing With Financially Distressed Corporate Customers, John A. Pearce Ii, Ilya A. Lipin
Supplier Tactics For Dealing With Financially Distressed Corporate Customers, John A. Pearce Ii, Ilya A. Lipin
UC Law Business Journal
The 2007 recession led to thousands of corporate bankruptcies. When a corporation declares bankruptcy, suppliers are forced to recover payments that are legally owed to them, and thus suffer severe economic losses. Suppliers can benefit from being proactive in their use of legal tools to increase the probability of collecting receivables from their customers. This article explains how bankruptcy can affect suppliers' ability to obtain full payment for goods sold and details remedies available to suppliers under the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"). The author also provides tactics for how to improve the leverage of the supplier …
High-Frequency Trading And The Flash Crash: Structural Weaknesses In The Securities Markets And Proposed Regulatory Responses, Ian Poirier
UC Law Business Journal
This note will illuminate the relatively unknown highfrequency trading industry. First, it will examine the state of the industry, in context with the flash crash of May 6, 2010 when a single trader in Kansas City sent the U.S. securities markets into a tailspin. Next, it will explain why the hodgepodge of regulations struggling to control this industry is entirely inadequate to prevent another crash. Finally, the authors suggest a better solution-relatively noninvasive controls that could be put in place to prevent future flash crashes and restore investor confidence.