Business Organizations Law Commons^™

Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee

University of Miami Business Law Review

In recent years, the federal courts’ analysis of the competitive effects of conduct challenged under the Sherman Act’s rule of reason, which generally includes market definition as a critical step, has been properly guided by sensitivity to business reality and sound economic analysis of the conduct at issue. When it comes to two–sided platforms, the courts should adhere to that same flexible but principled approach and avoid rigid alternatives that would apply regardless of the platform, conduct, or fact–pattern.

In Ohio v. American Express Co., (Case No. 16–1454), now before the U.S. Supreme Court, the U.S. Department of Justice …

Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro

University of Miami Business Law Review

The Department of Justice’s theory of liability in its case attacking the non–discrimination provisions in American Express’s merchant contracts contends that point–of–sale competition on the price of making a purchase with a credit card is an instrument creating economic efficiency. That is, the economy would run more efficiently, and consumers would be better off, if merchants were free to charge variable prices for different types of credit cards. After all, charging different prices for using different types of payment mechanisms appears to be just another form of presumptively positive price competition.

The Second Circuit rejected that conclusion, recognizing that in …

Market Power And American Express, John B. Kirkwood

University of Miami Business Law Review

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express clearly exercised …

Corporate Governance, Compliance, Social Responsibility, And Enterprise Risk Management In The Trump/Pence Era, Marcia Narine Weldon

Articles

No abstract provided.

Breaking Up Is Hard To Do: Developments In Partitioning Real And Personal Property In Marital, Business, And Personal Relationships In Florida Jurisprudence, Harry M. Hipler

University of Miami Business Law Review

This article focuses on partition of real and personal property in Florida in the 21st century. It discusses questions and issues about partitioning real and personal property, so that private lawyers who practice in a variety of areas can familiarize themselves with how partition proceedings work. Partition of real and personal property is not restricted to one area of the law. Instead, it relates to and bleeds over into a multitude of areas of the law making it necessary for all practitioners to be familiar with the area of partition. Partition is now provided in all 50 states, and Florida’s …

The Rise Of Independent Directors In Australia: Adoption, Reform, And Uncertainty, Luke Nottage, Fady Aoun

University of Miami International and Comparative Law Review

No abstract provided.

Follow The Money: A Discussion Of The Organisation For Economic Co-Operation And Development’S Base Erosion And Profit Shifting Project: Has The Us Taken Steps To Adopt A Global Solution To This Worldwide Problem?, Claire Arritola

University of Miami Business Law Review

This article looks at the recent actions taken by the Organisation for Economic Co-operation and Development (OECD) to prevent hybrid mismatches and tax base erosion. These actions have come in the form of the “Action Plan for Base Erosion and Profits” (BEPS). BEPS has spanned from 2013 to 2015 and has been the collaborative effort of representatives from 34 countries (with much help from the G-20 countries) as well as input from other non-member countries. Through this project, the OECD seeks to eradicate the problems caused by the current corporate tax structure and the tendency of countries to choose country-specific …

Corporate Intent And Corporate Crime: A Matter Of Inference, Caroline Bradley

Articles

No abstract provided.

Cuba Conundrum: Corporate Governance And Compliance Challenges For U.S. Publicly-Traded Companies, Marcia Narine

Articles

No abstract provided.

Microfinance: Importing Regulations In Reforms For The Real Small Businesses, Triet Leminh

University of Miami International and Comparative Law Review

No abstract provided.

Disclosing Disclosure's Defects: Addressing Corporate Irresponsibility For Human Rights Impacts, Marcia Narine

Articles

Although many people believe that the role of business is to maximize shareholder value, corporate executives and board members can no longer ignore their companies' human rights impacts on other stakeholders. Over the past four years, the role and responsibility of non-state actors such as multinationals has come under increased scrutiny. In 2011, the United Nations Human Rights Council unanimously endorsed the "UN Guiding Principles on Business and Human Rights," which outline the State duty to protect human rights, the corporate responsibility to respect human rights, and both the State and corporations' duties to provide remedies to parties. The Guiding …

Distinguishing Deductible Repairs From Capitalized Improvements: An Expectations Approach To The New Repair Regulations, George Mundstock, Thomas J. Korge

Articles

No abstract provided.

Export Control Proliferation: The Effects Of United States Governmental Export Control Regulations On Small Businesses—Requisite Market Share Loss; A Remodeling Approach, Jared A. Borocz-Cohen

University of Miami Business Law Review

Made in the USA. This phrase, stamped on the bottom of many domestic items, is becoming increasingly difficult to find abroad. The United States government, of course, regulates almost every good manufactured in America. The obvious federal regulations encompass topics such as, but not limited to, consumer safety, durability, and warranty. However, perhaps the most important of these regulations are those aimed at national security. Federal regulations concerning national security is the junction at which export controls come into play. The central goal of export controls in the United States, and globally, is to promote security. The main issue this …

Creating A Culture Of Compliance: Why Departmentalization May Not Be The Answer, Michele M. Destefano

Articles

Over the past few decades, as corporate criminal liability rules, sentencing guidelines, and settlement incentives have changed, therehas been increased emphasis on and resources devoted to thecompliance 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 departmentalization and …

Claim Funders And Commercial Claim Holders: A Common Interest Or A Common Problem?, Michele M. Destefano

Articles

Commercial claim funding, where funders invest in business disputes in exchange for a percentage of any eventual settlement or judgment, is a growing industry in the United States. Funders may request confidential information about the claim and litigation strategy both before deciding to invest (to analyze the strength of the claim) and during the course of the financial relationship (to manage the investment). Further, these funders may work and communicate with claim holders and lawyers about the claim. However, there has been little caselaw and little in-depth analysis on whether--and in what circumstances-the attorney--client privilege and work-product doctrine can be …

Climate Change And Business Law In The United States: Using Procurement, Pay, And Policy Changes To Influence Corporate Behavior, Marcia Narine

Articles

No abstract provided.

Unwinding The Ceiling Rule, Leigh Osofsky

Articles

This article closely examines the unwinding of the ceiling rule. Congress and partnership tax experts historically have assumed perfect unwinding of the ceiling rule on liquidation or sale of a partnership interest. However, this assumption glosses over a significantly more complicated reality. This article closely examines the history of section 704(c) and the interaction between the ceiling rule and the rules regarding sales and liquidations of partnership interests to reveal the extent to which the assumption does not hold. By debunking long-held assumptions about the perfect unwinding of the ceiling rule, this article displays that there is no reasonable justification …

Corporate Tort Liability Under The Alien Tort Statute Post-Kiobel, Scott E. Allbright Jr.

University of Miami Business Law Review

No abstract provided.

“Comply Or Explain”—A Flexible Mechanism To Countervail Behavioral Biases In M&A Transactions, Gerrit M. Beckhaus

University of Miami Business Law Review

Mergers and acquisitions (M&A) are a common phenomenon of great importance in today’s business world. However, the majority of them fail to achieve the aspired objectives. These failures can be attributed to various circumstances, inter alia decision-makers’ vulnerability to behavioral biases due to the complexity, uncertainty, and time pressure characteristic of M&A transactions. Such biases often lead to predictable irrational behavior resulting in momentous misjudgments. Despite numerous psychological studies proving that people systematically tend to make irrational decisions under uncertainty, neither the transactional practice nor its current legal framework address this problem. Instead, the present law shields decision-makers from potential …

“Package Deal”: The Curious Relationship Between Fiduciary Duties And The Implied Covenant Of Good Faith And Fair Dealing In Delaware Limited Liability Companies, Monica E. White

University of Miami Business Law Review

Since 1977, the popularity of the limited liability company (“LLC”) has grown tremendously, overtaking the corporation and the partnership as the preferred business structure in many jurisdictions. Amidst this growth in popularity, a legal debate has sparked concerning the existence, nature, and extent of the fiduciary and contractual duties owed in the LLC context.

Drafters of LLC agreements can adjust fiduciary “norms” through limitation or, in certain jurisdictions like Delaware, through complete elimination of fiduciary duties. However, the implied contractual covenant of good faith and fair dealing (the “Implied Covenant” or the “Covenant”) remains and cannot be waived by the …

Back To The Future, Sergio J. Campos

Articles

No abstract provided.

From Kansas To The Congo: Why Naming And Shaming Corporations Through The Dodd-Frank Act's Corporate Governance Disclosure Won't Solve A Human Rights Crisis, Marcia Narine

Articles

No abstract provided.

Ending The Silence: Shareholder Derivative Suits And Amending The Dodd-Frank Act So "Say On Pay" Votes May Be Heard In The Boardroom, William Alan Nelson Ii

University of Miami Business Law Review

No abstract provided.

The Shocking Impact Of Corporate Scandal On Directors' And Officers' Liability, Nancy R. Mansfield, Joan T.A. Gabel, Kathleen A. Mccullough, Stephen G. Fier

University of Miami Business Law Review

Directors and officers liability (hereinafter D&O) serves as a deterrent to corporate wrongdoing. Recent cycles of corporate scandal have impacted the tools used to manage the risk that D&O liability creates. The impact of these scandals is a "shock," which is a sudden event that alters the market profoundly. Market alteration has counter intuitively resulted in increased availability of D&O insurance at a lower price, despite an increase in D&O liability. With increased D&O coverage offerings at lower costs, the market has become soft, making coverage readily available. Carriers are competing for insureds and there is now a risk of …

Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine

Articles

No abstract provided.

For A Few Dollars Less: Explaining State To State Variation In Limited Liability Company Popularity, Daniel M. Häusermann

University of Miami Business Law Review

The limited liability company (LLC) is a much more popular business entity in some U.S. states than in others. This empirical study provides the first detailed analysis of this phenomenon.

I find that formation fees, rather than taxes or substantive rules or anything else, explain the variation in LLC popularity best. Differentials between the fees for organizing an LLC and the fees for organizing a corporation explain 17% to 28% of the state-to-state variation in LLC popularity. These formation fee differentials are not very big, but they are highly visible at the moment the business entity is formed. In contrast, …

Costing Financial Regulation, Caroline Bradley

Articles

No abstract provided.

Collective Bargaining Agreements In Corporate Reorganizations, Andrew B. Dawson

Articles

Congress enacted § 1113 to the Bankruptcy Code in 1984 in order to establish a standard for the rejection of Collective Bargaining Agreements. But the statute's ambiguous language has caused a split between the Second and Third Circuits, and has precipitated a lengthy academic debate largely centered on the interpretation of one word: "necessary." This debate has focused on proper statutory interpretation as well as deeper concerns regarding the policy goals behind the Bankruptcy Code. The present study reports data that indicate that the different interpretations are irrelevant in practice. No matter how "necessary" is defined, the result is always …

Report To The American Bankruptcy Institute: Prevalence Of Substantive Consolidation In Large Public Company Bankruptcies From 2000 To 2005, William H. Widen

Articles

No abstract provided.

"Acoustic Segregation" And The Hispanic Small Business Owner, Patricia S. Abril

Articles

No abstract provided.