Dancing With The Derivatives Devil: Mutual Funds' Dangerous Liaison With Complex Investment Contracts And The Forgotten Lessons Of 1940,
2013
UC Law SF
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,
2013
UC Law SF
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,
2013
UC Law SF
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,
2013
UC Law SF
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,
2013
UC Law SF
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,
2013
UC Law SF
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,
2013
UC Law SF
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,
2013
UC Law SF
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.
Franchise Goodwill: Take A Sad Song And Make It Better,
2013
University of Florida
Franchise Goodwill: Take A Sad Song And Make It Better, Robert W. Emerson
University of Michigan Journal of Law Reform
The end of a franchisor-franchisee relationship is often like a divorce, with the parties engaged in a heated battle over the ownership of the franchise goodwill. In this debate, the same franchisors or franchisees often change their positions on goodwill ownership depending on current needs. This Article analyzes cases in many areas of franchise law to determine why franchisors and franchisees engage in such inconsistent reasoning, what the consequences are for franchising, and if there are ways to produce a more logical and efficient form of analysis and debate. In addressing the most contentious issues of franchising, adherence by litigants …
Hunting Stag With Fly Paper: A Hybrid Financial Instrument For Social Enterprise,
2013
Boston University School of Law
Hunting Stag With Fly Paper: A Hybrid Financial Instrument For Social Enterprise, Dana Brakman Reiser, Steven A. Dean
Faculty Scholarship
Social entrepreneurs and socially motivated investors share a belief in the power of social enterprise: ventures that pursue a "double bottom line" of profit and social good. Unfortunately, they also share a deep mutual suspicion. Recognizing that social ventures-just like traditional for-profit and nonprofit enterprises-need capital to flourish, this Article offers a financing tool to transform that skepticism into commitment. Unlike the array of new entities that have emerged in recent years-including L3Cs, benefit corporations, and flexible purpose corporations-the hybrid financial instrument this Article describes provides a robust and transparent solution to the puzzle that lies at the heart of …
The Next Stage Of Csr For Canada: Transformational Corporate Governance, Hybrid Legal Structures, And The Growth Of Social Enterprise,
2013
Allard School of Law at the University of British Columbia
The Next Stage Of Csr For Canada: Transformational Corporate Governance, Hybrid Legal Structures, And The Growth Of Social Enterprise, Carol Liao
All Faculty Publications
The period when corporate social responsibility (CSR) only referred to corporate philanthropic donations has passed. Present day CSR is intimately intertwined with sustainable development, and its growth in the last several decades has been evident in Canada. The recent appearance of “hybrid” corporate legal structures on the international stage marks a growing trend toward enabling the dual pursuit of economic and social mandates for businesses. It suggests that the next significant stage in the CSR movement will be in the reformation and creation of corporate legal models that not only enable, but require, CSR concepts to be embodied within corporate …
Carrots And Sticks: How Vcs Induce Entrepreneurial Teams To Sell Startups,
2013
Indiana University Maurer School of Law
Carrots And Sticks: How Vcs Induce Entrepreneurial Teams To Sell Startups, Brian J. Broughman, Jesse M. Fried
Articles by Maurer Faculty
Venture capitalists (VCs) usually exit their investments in a startup via a trade sale. But the entrepreneurial team – the startup’s founder, other executives, and common shareholders – may resist a trade sale. Such resistance is likely to be particularly intense when the sale price is low relative to VCs’ liquidation preferences. Using a hand-collected dataset of Silicon Valley firms, we investigate how VCs overcome such resistance. We find, in our sample, that VCs give bribes (carrots) to the entrepreneurial team in 45% of trade sales; in these sales, carrots total an average of 9% of deal value. The overt …
Fiduciary Duties And Fiduciary Outs,
2013
Notre Dame Law School
Fiduciary Duties And Fiduciary Outs, Julian Velasco
Journal Articles
Fiduciary outs are virtually ubiquitous in acquisition agreements, but almost unheard of in other contexts. This is because the fiduciary out is an inherently problematic device. Although it is not intended to do so, it almost necessarily transforms an agreement into an option in the hands of one party. Nevertheless, fiduciary outs make sense in the context of acquisition agreements. This is because fiduciary outs are essentially contractual proxies for fiduciary duties. As such, they have the same purpose: to protect shareholders from abuse at the hands of directors. Fiduciary outs do this in the context of acquisition agreements by …
Preparing "Main Street" Lawyers: Practicing Without Big Firm Experience,
2013
Drake University
Preparing "Main Street" Lawyers: Practicing Without Big Firm Experience, Lisa Reel Schmidt, Steve Garland, Robert Statchen
Faculty Scholarship
This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panelists advance two premises: First, that law schools need to teach transactional skills because many students will either focus on transactional law or practice general law where transactional skills are necessary; and second, that some of the transactional skills the schools teach should be specific to main street lawyering because a number of students will be main street lawyers. The panelists explain how the transactional skills necessary for main street lawyering differ from skills needed in litigation and big law firms. They …
Persuasion Treaties,
2013
Washington University in St. Louis School of Law
Persuasion Treaties, Melissa (M.J.) Durkee
Scholarship@WashULaw
All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, …
Removing Revlon,
2013
Pacific McGeorge School of Law
Removing Revlon, Franklin A. Gevurtz
McGeorge School of Law Scholarly Articles
This Article advocates the abolition of the Revlon doctrine— the junior partner in Delaware’s corporate takeover jurisprudence, which governs certain contests involving auctions and sales of control. Revlon arose in the twilight zone created by the overlap between defenses to hostile tender offers and efforts by directors to avoid or coerce a shareholder vote on corporate mergers and sales (shotgun corporate marriages). The narrow holding of the case stands for the common sense proposition that if directors decide to sell their corporation by choosing between two bids, both of which will pay all of the shareholders cash for all of …
Auction Theory And Standstills: Dealing With Friends And Foes In A Sale Of Corporate Control,
2013
Louisiana State University Law Center
Auction Theory And Standstills: Dealing With Friends And Foes In A Sale Of Corporate Control, Christina M. Sautter
Journal Articles
A fundamental issue in Delaware mergers & acquisitions (M&A) law is the extent to which a target company’s board of directors may restrict a sales process to extract value from bidders and grant a “winning bidder” certain deal protections to protect a transaction from being overbid. Standstill agreements are one such form of deal protection. Standstills prevent bidders from making or announcing a bid for the target without the target’s consent both during the sales process and for a period after the sales process is completed and the target has executed an agreement with a “winning bidder.” Recent 2011 and …
Making Money: Leverage And Private Sector Money Creation,
2013
Vanderbilt University Law School
Making Money: Leverage And Private Sector Money Creation, Margaret M. Blair
Vanderbilt Law School Faculty Publications
In the wake of the financial crisis of 2008-2009, practitioners and theorists in law, finance, and economics are rethinking our theories about how the financial sector influences the real economy. In particular, they are reexamining the linkages among financial innovation, supply of credit and money, monetary policy, bubbles, financial stability, and economic growth. One of the key issues that is being reconsidered is the dynamics of how banks and other financial institutions drive credit creation and credit allocation, and how these factors, in turn affect the performance of the macroeconomy. In this article, I argue that, by providing an alternative …
On The Rise Of Shareholder Primacy, Signs Of Its Fall, And The Return Of Managerialism (In The Closet),
2013
Cornell Law School
On The Rise Of Shareholder Primacy, Signs Of Its Fall, And The Return Of Managerialism (In The Closet), Lynn A. Stout
Cornell Law Faculty Publications
No abstract provided.
