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Articles 1 - 30 of 67
Full-Text Articles in Commercial Law
Clawing Back Fraudulent Profits—Investor Protection Or Regulatory Overreach: The Disgorgement Dilemma In Securities Law, Jessica Sun
The Journal of Business, Entrepreneurship & the Law
This comment explores the legal complexities surrounding the Securities and Exchange Commission’s (SEC) use of disgorgement as an enforcement tool, specifically addressing the tension between investor protection and regulatory overreach. Sun examines the evolution of disgorgement from a court-created equitable remedy to a power formally codified by the National Defense Authorization Act of 2021, while highlighting the significant limitations imposed by Supreme Court rulings in Kokesh v. SEC and Liu v. SEC. The comment centers on a current circuit split between the Second Circuit’s decision in SEC v. Govil—which requires a showing of "pecuniary harm" to victims before awarding disgorgement—and …
Corporate Governance As Bloodsport, Jeremy Kidd, George A. Mocsary
Corporate Governance As Bloodsport, Jeremy Kidd, George A. Mocsary
Pepperdine Law Review
The modern Environmental, Social, and Governance (ESG) movement promotes diversion of corporate assets from shareholders to “stakeholders.” This is done in the name of a corporate duty to society. But “successful” ESG efforts threaten the success of the corporate form by inviting rent-seeking. This conflict between ESG principles and established theories and norms of corporate law is difficult to resolve because corporate law lacks the tools needed to understand the type of collective decision-making that occurs in the corporate setting. This Article is the first to apply public choice economics—the economic study of collective decision-making—to corporate decision-making to identify the …
Stitching Up Industry Issues: Arbitration Can Offer Customized Solutions To Fashion Intellectual Property Disputes, Catherine Meng
Stitching Up Industry Issues: Arbitration Can Offer Customized Solutions To Fashion Intellectual Property Disputes, Catherine Meng
Pepperdine Dispute Resolution Law Journal
This comment proposes alternative dispute resolution (ADR), specifically arbitration, as a more effective mechanism for resolving fashion copyright disputes. The fashion industry has historically received limited protection for designs—primarily trademark and patent law—resulting in widespread copying and difficulty enforcing claims. In the 2017 case Star Athletica, L.L.C. v. Varsity Brands, Inc., the Supreme Court added copyright to the patchwork of protections. However, that protection is available only for aesthetic elements, not functional ones. The difficulty in distinguishing these components, along with the challenges of enforcing claims across borders and between parties with unequal bargaining power, as in Hian v. Louis …
Dispute Review Boards And The Construction Industry: The Song Remains The Same—Or Does It?, Daniel Mcmillan
Dispute Review Boards And The Construction Industry: The Song Remains The Same—Or Does It?, Daniel Mcmillan
Pepperdine Dispute Resolution Law Journal
Dispute Review Boards (DRBs) are a unique form of alternative dispute resolution (ADR) used on large and complex construction projects across the country. Although largely ignored by legal scholars, DRBs have been highly successful in resolving costly, time-consuming disputes involving hundreds of billions of dollars’ worth of projects since their advent in 1975. DRBs are a hybrid form of ADR that combine facilitative and evaluative as well as coercive and non-coercive features of more common forms of ADR. But what actually makes DRBs so effective at dispute avoidance and resolution? This article analyzes: (i) the attributes that make DRBs an …
Flowing Cleanly: The Proper Roles Of The Courts And The Ftc In The Information Marketplace Of Advertising, Kateri J. Son
Flowing Cleanly: The Proper Roles Of The Courts And The Ftc In The Information Marketplace Of Advertising, Kateri J. Son
Journal of the National Association of Administrative Law Judiciary
After an introduction in Section I, Section II of this article will present the history of the commercial speech doctrine, illustrating the rules courts use to evaluate whether the FTC’s actions were constitutional. Section III will explain how the FTC combats deception and will describe the choice of remedies the FTC has available. Section IV will present and evaluate three potential solutions to the conflict between the courts and the FTC on First Amendment issues that courts have implemented. Finally, Section V argues that conflict between the two entities is inevitable, and therefore the middle approach is the best solution …
Emortgage And Crypto-Mortgage In Home Finance, Julia Patterson Forrester Rogers
Emortgage And Crypto-Mortgage In Home Finance, Julia Patterson Forrester Rogers
Pepperdine Law Review
Most home mortgage loans today are documented on physical paper, but they are increasingly closed as eMortgages. The move to electronic documents is inevitable and will ultimately be a positive change for lenders and borrowers. However, additional regulation is needed to address issues raised by electronic home mortgage closings and the “crypto-mortgage,” a mortgage loan with the obligation evidenced by or tethered to a non-fungible token. Lenders have traditionally required that home mortgage loans be evidenced by a wet-signed paper promissory note to gain the advantages and the certainty of Article 3 of the Uniform Commercial Code (UCC) governing negotiable …
Online Disinhibited Contracts, Wayne R. Barnes
Online Disinhibited Contracts, Wayne R. Barnes
Pepperdine Law Review
There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …
The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza
The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza
Pepperdine Law Review
Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, …
Commercial Mediation In Mainland China: Pitfalls & Opportunities, Meng Chen
Commercial Mediation In Mainland China: Pitfalls & Opportunities, Meng Chen
Pepperdine Dispute Resolution Law Journal
This article offers insight into the practice of Chinese mediation, especially in resolving commercial disputes, considering the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) entered into force on September 12, 2020. First, this article evaluates the attractiveness, vulnerabilities, and popularity of mediation as a means of dispute resolution. The article then introduces the Chinese model of using mediation to resolve commercial disputes, specifically in judicial and arbitral proceedings. Based on empirical data and rules analysis, this article concludes with the benefits of using mediation in China to resolve disputes and exposes a discrepancy between …
The Social Costs Of Dividends And Share Repurchases, J.B. Heaton
The Social Costs Of Dividends And Share Repurchases, J.B. Heaton
The Journal of Business, Entrepreneurship & the Law
A long-held view in the academy is that shareholders are "residual claimants” in the sense that shareholders are paid in full only after the corporation pays its creditors. The reality on the ground is far different. Corporations give assets away to their shareholders long before they have satisfied creditors, both voluntary contract creditors and involuntary tort creditors. In particular, existing U.S. corporate and voidable transfer laws allow corporations to pay dividends and make share repurchases up to the point where the corporation is insolvent or nearly so. Voluntary creditors can limit dividends and share repurchases by contract, but involuntary creditors …
Recent Developments Concerning The Purchase Of Consumer Debt; Defining Potential Problems And Proposals For Suggested Solutions, Gerald A. Williams
Recent Developments Concerning The Purchase Of Consumer Debt; Defining Potential Problems And Proposals For Suggested Solutions, Gerald A. Williams
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Conceptualizing A Framework Of Institutionalized Appellate Arbitration In International Commercial Arbitration, Axay Satagopan
Conceptualizing A Framework Of Institutionalized Appellate Arbitration In International Commercial Arbitration, Axay Satagopan
Pepperdine Dispute Resolution Law Journal
The absence of the option to prefer substantive appeals from arbitral adjudication is a conspicuous systemic peculiarity of the arbitral process. While this absence has for the most part been accepted without question or resistance as being an axiomatic entailment of the arbitral process, the last two decades have witnessed an increasing amount of criticism directed at it, both from scholarship as well as the business community. The criticism has been especially emphatic, in relation to international commercial arbitrations, a sizeable proportion of which pertain to complex and high stake disputes. Moreover, there has been a concurrent increase in the …
Online And “As Is”, Colin P. Marks
Online And “As Is”, Colin P. Marks
Pepperdine Law Review
Online retail is a multi-billion-dollar industry in the United States. Consumers enjoy the ease with which they can browse, click, and order goods from the comfort of their own homes. Though it may come as no surprise to most lawyers, retailers are taking advantage of online transactions by attaching additional terms and conditions that one would not normally find in-store. Some of these conditions are logical limitations on the use of the retailers’ websites, but others go much further, limiting consumers’ rights in ways that would surprise many shoppers. In particular, many online retailers use these terms to limit implied …
The Hierarchy Of Priority, Paul Wangerin
The Hierarchy Of Priority, Paul Wangerin
The Journal of Business, Entrepreneurship & the Law
The analysis in this article suggests that there is a hierarchy of priorities in Article 9 of the UCC and that this hierarchy is relatively simple to describe. The analysis here describes this hierarchy by engaging in a two-part analysis. Part I suggests that the rules for priorities in Article 9 come out of the interaction of a number of variables, variables that are well-known to everybody who is familiar with Article 9. Part II suggests that the variables described in Part I allow us to put all of the important rules about priorities into a simple chart that shows …
Can You Ever Disclaim An Express Warranty?, Kurt M. Saunders
Can You Ever Disclaim An Express Warranty?, Kurt M. Saunders
The Journal of Business, Entrepreneurship & the Law
Article 2 of the Uniform Commercial Code (UCC) recognizes both express warranties and implied warranties of quality in the sale of goods. Within specific limits, the UCC permits sellers to exclude or modify implied warranties. When it comes to disclaiming express warranties, however, the UCC is not so explicit. However, sellers of goods sometimes inquire about the possibility of doing so and whether such disclaimers are enforceable. This essay attempts to answer these questions.
Stopping The Madman: Lessons From The Kaesong Industrial Complex, Sei Hee Park
Stopping The Madman: Lessons From The Kaesong Industrial Complex, Sei Hee Park
Pepperdine Dispute Resolution Law Journal
Section I briefly introduces the Kaesong Industrial Complex, and its closure and reopening. Section II looks at the history of North and South Korea that has set up the current tension between the nations. Section III highlights the significance of the KIC to the two Koreas' relationship. Section IV then explores North Korea's behavior over the years, intertwining discussion of Thomas Schelling's "Madman Theory" to describe North Korea's growing unpredictability and irrationality. Section V provides suggestions for how South Korea can appease North Korea's erratic behavior, as exemplified by their actions during the KIC negotiations. Section VI concludes.
Surveying The Landscape Of Conflict Management, Tom Stipanowich, J. Kwang Ho Lim, E. Y. Park, Beomsu Kim, Joongi Kim
Surveying The Landscape Of Conflict Management, Tom Stipanowich, J. Kwang Ho Lim, E. Y. Park, Beomsu Kim, Joongi Kim
Pepperdine Dispute Resolution Law Journal
No abstract provided.
The Intersection Between Legal Risk Management And Dispute Resolution In The Commercial Context, Garrick Apollon
The Intersection Between Legal Risk Management And Dispute Resolution In The Commercial Context, Garrick Apollon
Pepperdine Dispute Resolution Law Journal
This article explains the key advantages and challenges of using LRM to help lawyers managing substantive matters related to the commercial negotiations and disputes, and the key advantage of using ADR techniques for the management of nonsubstantive matters related to commercial negotiations and disputes. This article overall demonstrates that LRM can complement dispute resolution and vice versa. This article also demonstrates how LRM can be utilized in commercial negotiations and mediations.
Private Equity And The Fcpa: Deal-Making As Reform Mechanism, Thomas J. Manning
Private Equity And The Fcpa: Deal-Making As Reform Mechanism, Thomas J. Manning
Pepperdine Law Review
No abstract provided.
Secret Arbitration Or Civil Litigation?: An Analysis Of The Delaware Arbitration Program, Jores Kharatian
Secret Arbitration Or Civil Litigation?: An Analysis Of The Delaware Arbitration Program, Jores Kharatian
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
The Delaware Arbitration Experiment: Not Just A “Secret Court”, Jessica Tyndall
The Delaware Arbitration Experiment: Not Just A “Secret Court”, Jessica Tyndall
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Delaware's Closed Door Arbitration: What The Future Holds For Large Business Disputes And How It Will Affect M&A Deals, Myron T. Steele, Thomas J. Stipanowich, Robert Anderson, James R. Griffin, Katherine Blair, Monica Shilling
Delaware's Closed Door Arbitration: What The Future Holds For Large Business Disputes And How It Will Affect M&A Deals, Myron T. Steele, Thomas J. Stipanowich, Robert Anderson, James R. Griffin, Katherine Blair, Monica Shilling
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program , Thomas J. Stipanowich
The Journal of Business, Entrepreneurship & the Law
The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …
The Likely Impact Of National Federation On Commerce Clause Jurisprudence, Robert J. Pushaw Jr., Grant S. Nelson
The Likely Impact Of National Federation On Commerce Clause Jurisprudence, Robert J. Pushaw Jr., Grant S. Nelson
Pepperdine Law Review
In National Federation of Independent Businesses v. Sebelius, the Supreme Court exhaustively analyzed Congress’s constitutional power to enact the watershed Patient Protection and Affordable Care Act (ACA or “Obamacare”). The ACA imposes a “shared responsibility requirement,” popularly known as the “Individual Mandate” (IM), which forces Americans to buy medical insurance or pay a “penalty.” The ACA’s text and legislative history, as well as the public defenses of it by President Obama and his supporters, consistently described the IM as a valid exercise of Congress’s power “[t]o regulate Commerce . . . among the several States.” This reliance on the Commerce …
Regulation - The Balance Point , W. D. Brewer
Regulation - The Balance Point , W. D. Brewer
Pepperdine Law Review
No abstract provided.
Debtor's Defense To A Deficiency Judgment Under Ucc , Gail Clifford Hutton
Debtor's Defense To A Deficiency Judgment Under Ucc , Gail Clifford Hutton
Pepperdine Law Review
No abstract provided.
Goldie V. Bauchet Properties - California Uniform Commercial Code: Division Nine's Application To Ownership Interests In Trade Fixtures Acquired Under A Real Property Lease, Charles M. Morgan Iii
Goldie V. Bauchet Properties - California Uniform Commercial Code: Division Nine's Application To Ownership Interests In Trade Fixtures Acquired Under A Real Property Lease, Charles M. Morgan Iii
Pepperdine Law Review
No abstract provided.
Napa To New York With The Click Of A Mouse: The Dormant Commerce Clause And The Direct Shipment Of Wine To Consumers As Discussed In Granholm V. Heald , Shirlene Love
Journal of the National Association of Administrative Law Judiciary
This case note examines the U.S. Supreme Court's decision in Granholm v Heald. Part II will explore the history of the Dormant Commerce Clause and Twenty-First Amendment; Part III will present the facts of the case; Part IV will discuss and analyze the majority and two dissenting opinions; Part V will speculate about the future impact of this decision; and Part VI will conclude.
Deceptive Advertising And The Federal Trade Commission: A Perspective, Larry T. Pleiss
Deceptive Advertising And The Federal Trade Commission: A Perspective, Larry T. Pleiss
Pepperdine Law Review
No abstract provided.
Seller's Warranty Liability Under The Uniform Commercial Code: Should Buyer's Merchant Status Affect His Right Of Recovery?, Olin W. Jones
Seller's Warranty Liability Under The Uniform Commercial Code: Should Buyer's Merchant Status Affect His Right Of Recovery?, Olin W. Jones
Pepperdine Law Review
No abstract provided.