Banking and Finance Law Commons^™

Three Decades Of Seeking Elusive Remedies, Richard E. Bissell

Perspectives

Remedy is a topic to be approached with some trepidation in the area of accountability. Throughout three decades of proliferating International Accountability Mechanisms ( IAMs), remedy has been the issue least addressed by leadership. Most management and board members find it threatening, wherever a remedial action falls on the spectrum, from an apology for error to financial compensation. The pursuit of remedy builds on the demonstrated existence of harm, which is embarrassing at the least, and brings a focus on consequences and actionable steps for those people whose lives have been damaged as well as for environmental violations. This short …

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

The Federal Reserve As Agent To Another Principal: Monetary Penalties 1997-2022, David Zaring

Indiana Law Journal

Enforcement is how agencies make policy, but the Federal Reserve Board, perhaps the country’s most important independent agency, and certainly its most important regulator of banks, does most of its enforcement in secret. This secrecy means that it is difficult for outside observers to see what the Fed is prioritizing. One exception to the secret sanction paradigm is the civil monetary penalty: once the Fed decides to fine a bank or a banker, no matter how small the amount, it must publicize the fine and the basis for it. We read twenty-five years’ worth of civil monetary penalty orders to …

Offshore Entanglements, Martin W. Sybblis

Faculty Articles

For decades, scholars have struggled to determine how to deploy laws and legal institutions to spur economic prosperity. But, without knowing which legal rules and institutions to prioritize for a particular social context, the outcomes have been generally unsatisfactory. The case of offshore financial centers provides fresh and compelling new insights into this puzzle. This Article uses the sociological concept of community economic identity (“CEI”) to understand why some offshore financial centers prioritize investments in legal institutions that bolster their offshore finance enterprises while others do not. CEI refers to a community’s shared identity that is linked to a specific …

Consumer Uncertainty In Trademark Law: An Experimental Investigation, Barton Beebe, Roy Germano, Christopher Jon Sprigman, Joel H. Steckel

Emory Law Journal

Nearly every important issue in trademark litigation turns on the question of what consumers in the marketplace believe to be true. To address this question, litigants frequently present consumer survey evidence, which can play a decisive role in driving the outcomes of trademark disputes. But trademark survey evidence has often proven to be highly controversial, not least because it has sometimes been perceived as open to expert manipulation. In this Article, we identify and present empirical evidence of a fundamental problem with trademark survey evidence: while the leading survey formats in trademark law test for whether consumers hold a particular …

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 …

Exploring Financial Data Protection And Civil Liberties In An Evolved Digital Age, Amanda Lindner

Fordham Journal of Corporate & Financial Law

There is no comprehensive financial privacy law that can protect consumers from a company’s collection sharing and selling of consumer data. The most recent federal financial privacy law, the Gramm-Leach-Bliley Act (“GLBA”), was enacted by Congress over 20 years ago. Vast technological and financial changes have occurred since 1999, and financial privacy law is due for an upgrade.

As a result, loopholes exist where companies can share financial data without being subject to laws or regulations. Additionally, federal financial privacy related laws provide little to no recourse for consumers to self-remediate with litigation, also known as a private right of …

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 …

Without Reservation: Ensuring Uniform Treatment In Bankruptcy While Keeping In Mind The Interests Of Native American Individuals And Tribes, Connor D. Hicks

Fordham Journal of Corporate & Financial Law

The Bankruptcy Code (“Code”) exists as a mechanism for good faith debtors to discharge debts and seek a “fresh start” in life and finance. 11 U.S.C. § 106(a) ensures that not only are all debtors treated uniformly, but that all creditors, including governmental creditors which may otherwise enjoy immunity from suit, are equally subject to the jurisdiction of Bankruptcy courts and bound to the provisions of the Code.

However, a recent circuit split has demonstrated one niche yet significant instance in which a debtor may not receive the same treatment as their counterparts. While § 106 contains an express waiver …

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

Fordham Journal of Corporate & Financial Law

No abstract provided.

Blacking Out Congressional Insider Trading: Overlaying A Corporate Mechanism Upon Members Of Congress And Their Staff To Curtail Illegal Profiting, Nicholas Gervasi

Fordham Journal of Corporate & Financial Law

Congressional insider trading involves members of Congress or their staff trading on material, nonpublic information attained while executing their official responsibilities. This type of private profit-making, while in a government role, casts doubt on the efficacy and impartiality of lawmakers to regulate companies they hold shares of. Egregious acts of illegal profiting from insider trading based on information entrusted to the government escape prosecution and liability due to fundamental gaps in the common law and the Congress specific statutes lack enforcement. Recent calls on Congress by the public and multiple bipartisan proposed bills in both chambers have begun to address …

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 …

From Tether To Terra: The Current Stablecoin Ecosystem And The Failure Of Regulators, Mary E. Burke

Fordham Journal of Corporate & Financial Law

The Tether controversy and Terra crash have placed stablecoins in the regulatory spotlight. Stablecoins are often portrayed as posing systemic risks to financial markets, with some pundits labelling them “the villain of the finance world.” Global regulatory bodies, namely the International Monetary Fund (IMF) and the Bank of International Settlement (BIS), and political leaders, including the Biden Administration, have all called for stablecoin regulation. These officials allege that stablecoins’ structure, combined with their exponential growth, pose a unique risk to global markets. Before the May 2022 Terra crash, government reports superficially treated stablecoins by exclusively focusing on asset-backed coins. Post …

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 …

Tax-Free And The Offshore Imaginary, Allison Anna Tait

Law Faculty Publications

Much of the legal geography of wealth and wealth inequality—the cartography of capitol distribution and financial concern—is easily expressed in coordinates that define neighborhoods and visible in structured spaces of both confinement and opportunity. There are elite zip codes, million-dollar blocks, and pockets of poverty across the landscape. Some geographic localizations of family money tend, however, more toward the offsite, the clandestine, and most particularly the offshore. For high-wealth families and individuals—and the financial institutions that cater to them—the dream of finding offshore islands and locating off-map comes with many benefits since remote siting promises not just the spatial privacy …

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 …

Constraining Corporate Law Principles In Affiliate World, Anita K. Krug

Emory Law Journal

No abstract provided.

Transition-Denial And Structural Adjustment: Causation And Culpability In The Cuban Economy, José Gabilondo

FIU Law Review

In 2020, Cuba implemented the Tarea Ordenamiento (Tarea), the most significant economic reform since the construction of the socialist economy after the Revolution. Signaling an eclectic brand of Cuban socialism, the Tarea clears away three decades of tried and failed economic doctrines, drawing a new fiscal border around state enterprises, nodding to market realities, and preparing the island for greater insertion into the world economy. While the political economy of post-Castro Cuba has changed in this way, the United States continues to subject the island to an unprecedented program of unilateral sanctions, universally condemned as a breach of human rights, …

Don't Foreclose On Me: Adr's Role In Regulating The Foreclosure Power Of Homeowners Association In The Aftermath Of Covid-19, Jessica Lalehzar

Cardozo Journal of Conflict Resolution

No abstract provided.