Business Organizations Law Commons^™

Disclosure Procedure, Andrew K. Jennings

Faculty Articles

Securities disclosure is a human process. Each year, public companies collectively spend over fifteen million hours producing disclosures that undergird an equities market with tens of trillions in market capitalization. The procedures they follow in doing so affect whether their disclosures contain misstatements or omissions—errors that can cause trading losses for investors, and litigation for issuers. Yet despite the importance of the disclosures that firms produce, the literature says little about how they do it, including whether they are spending too much, too little, or just enough on their disclosure procedures. To fill that gap, this Article uses original surveys …

To Have Or Have Not: The Limits Of Comply-Or-Explain Governance In An American Exchange, Johnson A. Salisbury Jr.

Emory Law Journal

In 2020, the National Association of Securities Dealers Automated Quotations (“Nasdaq”) proposed a comply-or-explain governance rule to the Securities and Exchange Commission (“SEC”), aimed at increasing diversity in companies listed on its exchange. The resulting listing rule—approved by the SEC in 2021—was met with a mixed chorus of cheers and jeers from the public and regulated companies. Missing from that chorus, however, was an analysis of the effectiveness of Nasdaq’s approach in using a flexible, predominantly international comply-or-explain governance model to regulate the companies listed on its exchange.

Framed as a disclosure code, Nasdaq’s Listing Rule 5605(f)(2) requires listed companies …

Money Creation And Bank Clearing, Nadav Orian Peer

Fordham Journal of Corporate & Financial Law

Like many other countries, the U.S. money supply consists primarily of deposits created by private commercial banks. How we understand bank money creation matters enormously. We are currently witnessing a debate between two competing understandings. On the one hand, a long-standing conventional view argues that bank money creation originates in individual market transactions. Based on this understanding, the conventional view narrowly limits the scope of banking regulation to market failure correction. On the other hand, authors in a new legal literature emphasize the public aspects of bank money creation, characterizing it as a “public franchise,” a “public-private partnership,” and part …

Gamestopped: How Robinhood’S Gamestop Trading Halt Reveals The Complexities Of Retail Investor Protection, Neal F. Newman

Fordham Journal of Corporate & Financial Law

Should brokers have the unfettered right to restrict investor trading? GameStop, a brick-and-mortar video game retailer, had been experiencing declining revenues since 2016. However, GameStop saw its share price climb almost 1000 percent in the span of a one- week period from January 21, 2021 to January 27, 2021 due to retail investors buying significant amounts of GameStop shares during that period. Melvin Capital, a hedge fund, ended up losing billions as they were betting that GameStop shares would lose value instead of increase—a practice referred to as short selling. On January 28, 2021, brokers inexplicably halted trading on GameStop …

The Battle With Big Tech: Analyzing Antitrust Enforcement And Proposed Reforms, Youngjae Lee, Morgan Hagenbuch

Fordham Journal of Corporate & Financial Law

No abstract provided.

Foreword, Nicholas Keenan, Senya Merchant, Clara Lane

UC Law Business Journal

No abstract provided.

Don’T Let The Green Grass Fool You: Green Contingent Convertible Bonds And Their Role In The Pursuit Of A Sustainable Economy, Eyolf Aaro

UC Law Business Journal

This paper exposes some prominent issues that arise when banks label their contingent convertible bonds (CoCos) as “green,” and proposes a mechanism to improve green CoCos as climate change mitigation instruments. The green label is weakly protected due to regulatory requirements for capital instruments issued by banks. Current and proposed green bond frameworks, when applied to standard green bonds are insufficient in ensuring real environmental impacts from the bonds, are not prepared for the novelty of labeling CoCos as green. The result is a financial instrument through which issuing banks unsuccessfully try to achieve both regulatory and environmental aims. The …

The Collapse Of The Turnover-Proof Business Model: Combatting A Labor Crisis, Simran Thiara

UC Law Business Journal

No abstract provided.

Attack On Antitrust: Preventing A Grim Future For Anime Streaming, Michael L. Cederblom

UC Law Business Journal

No abstract provided.

A Vision Of The Anti-Racist Public Corporation, Steven A. Ramirez

Faculty Publications & Other Works

The publicly traded corporation rightly exemplifies the great potential of legal infrastructure to advance macroeconomic growth and human development. Left to its current legal and regulatory frameworks, however, it will fuel inequality and the replication of racial hierarchy indefinitely. Taking affirmative action to broaden participation of our population at all levels of the public firm will open its ability to fund human ingenuity to all. This would vindicate the essential public purpose of the legal infrastructure governing the public corporation. It would also place capitalism itself on a firmer social foundation through the creation of a more cohesive and productive …

The Exit Theory Of Judicial Appraisal, William J. Carney, Keith Sharfman

Fordham Journal of Corporate & Financial Law

For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders based on widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to be completed.

In this Article, we propose to end the problem of discretionary judicial valuation by tracing …

The Solution To Shadow Trading Is Not Found In Current Insider Trading Law: A Proposed Amendment To Rule 10b5-2, Jamel Gross-Cassel

Fordham Journal of Corporate & Financial Law

Shadow trading is a lucrative way to exploit a loophole in insider trading law. Insiders abuse this loophole to make six-figure profits and escape liability when done at the right companies. Those who shadow trade use material, nonpublic information to trade not in the securities of their own company, which would be illegal, but in the securities of a closely related company where the information is just as impactful. Efforts to close this loophole rely on the individual insider trading policies of the involved companies. These policies vary in language, making liability for shadow trading dependent on specific language or …

Sheriffs, Shills, Or Just Paying The Bills?: Rethinking The Merits Of Compelling Merchant Cooperation With Third-Party Policing In The Aftermath Of George Floyd’S Death, Stephen Wilks

Washington and Lee Law Review

This Article frames the killing of George Floyd as the result of flawed business regulation. More specifically, it captures the expansion of third-party policing paradigms throughout local nuisance abatement regulations over a period of time that coincided with the militarization of policing culture across the United States. Premised on the notion that law enforcement alone cannot succeed in reducing crime and disorder, such regulations transform grocery stores, pharmacies, bars, and other retail spaces into surveillance hubs by prescribing situations that obligate businesses to contact the police. This regulatory framework, however, sustains the larger historical project of rationalizing enhanced scrutiny of …

The Disrupted Path To Becoming Easy, Breezy, Beautiful: How Companies Are Deceiving Consumers With Their Animal Testing Products, Wendy Chao

University of San Francisco Law Review

No abstract provided.

The Exit Theory Of Judicial Appraisal, William J. Carney, Keith Sharfman

Faculty Publications

For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders based on widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to be completed.

In this Article, we propose to end the problem of discretionary judicial valuation by tracing …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

The Security-Shaped Hole In Global Anti-Corruption: Closing The Loop On The Fcpa, Tarun Krishnakumar

UC Law Business Journal

Despite the significant interplays between national security and corruption, discourse around the national security dimensions of the Foreign Corrupt Practices Act (FCPA) – the most prominent global anticorruption framework – has been limited. With the deepening of global economic dependencies and data flows in critical areas such as telecommunications and ICT, there is ample reason to suggest that the use of private sector entities by governments for national security (e.g., intelligence-gathering) purposes is only likely to become more common. Recent controversies around the activities of Crypto AG and Huawei only serve to support this trend.

Within this broad context, this …

Utilizing Legal Expertise To Positively Impact Coastal Communities, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Publicizing Corporate Secrets, Christopher J. Morten

Faculty Scholarship

Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines …

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Works

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. The unique characteristics of total return swaps and …

Pregnant Workers Fairness Acts: Advancing A Progressive Policy In Both Red And Blue America, Deborah Widiss

Articles by Maurer Faculty

Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to stay on the job safely through a pregnancy. In the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divide in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay offers the first detailed case study of this remarkably effective campaign, and it shows how it laid the groundwork for analogous federal legislation, passed in December 2022, that ensures workers across the country will …

Right Of Association For Platform Workers In Thailand (A Case Study Of Food Delivery Platform Workers), Kanut Thamromdee

Chulalongkorn University Theses and Dissertations (Chula ETD)

Platform work has become the prominent form of employment in the last decade due to its unique features which are seemingly beneficial to workers, whether it is flexibility, autonomy, diverse job opportunities or ease of entry resulting in many people choosing to be platform workers working with platform providers on platforms. During the last decade, platform work has rapidly grown thanks to the advanced technology and innovative business models; however, it seems that Thai labour law focusing on traditional employment has not been adequately developed to catch up the growth of platform work in Thailand. Platform providers have classified platform …

Wto Trade Facilitation Agreement: Doing Enough For Developing Countries?, Soe Ohnmar Aung

Chulalongkorn University Theses and Dissertations (Chula ETD)

The WTO Trade Facilitation Agreement was concluded in 2013. It aims to facilitate theinternational trade through simplifying, harmonizing and standardizing procedures, therebyreducing the trade costs. It has reached a milestone of fourteen years since its adoption.However, there is a question about the effectiveness and efficiency of the WTO TFA for itsmembers and international trade. Based on that, this study will consider two questions: whetherthe structural framework of the WTO Trade Facilitation Agreement is even for developingcountries in terms of implementing obligations, and whether it reduces trade costs fordeveloping countries. In exploring, it applies the doctrinal legal research methodology. Thisstudy argues …

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

The Fresh Start Paradox: Economic Disaster Relief Available To Title 11 Debtors, Kellsie Davis Ruane

Emory Bankruptcy Developments Journal

The Small Business Administration (“SBA”) has been providing disaster relief in the form of Economic Injury Disaster Loans (“EIDLs”) since its inception in 1953. In the context of the COVID-19 pandemic, the CARES Act charged the SBA with issuing forgivable loans through the Paycheck Protection Program (“PPP”) to small businesses which would otherwise face permanent closure. Though the CARES Act did not specifically grant the SBA authority to do so, the SBA interpreted its powers to include the ability to set requirements for loan approval which were not laid out in the Act itself. Specifically, the SBA promulgated a rule …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Public Reporting Of Monitorship Outcomes, Veronica Root Martinez

Faculty Scholarship

When a corporation engages in misconduct that is widespread or pervasive, courts, regulators, or prosecutors often insist that the firm obtain assistance from an independent third party — a monitor — to oversee the firm’s remediation effort. The largest firms in the world — from Deutsche Bank, to Volkswagen, to Carnival Cruise Lines — have found themselves having to retain a monitor for corporate misconduct, despite attempts to avoid a monitorship entirely. Traditionally, monitors, or their special master forebearers, were utilized by courts to assist in overseeing compliance with court orders, and their work was both accessible and transparent. As …