Authors:Nicholas P. Mack Abstract: This is not simply your run–of–the–mill COVID–19 article. Instead, this article highlights a salient issue that has been right in front of our eyes this whole time and COVID–19 simply took our blinders off. ESG—short for environmental, social, and governance—is gaining significant momentum both at the firm level and in investment strategy, yet the SEC is trailing behind in ensuring the market is adequately informed of firms’ ESG information. It is important to note that the COVID–19 pandemic initially threw the market into an unanticipated downward spiral; however, many ESG funds still managed to outperform the market in the midst of this financial downturn. Why is that and where do we go from here' PubDate: Wed, 09 Mar 2022 06:09:28 PST
Authors:Frederick V. Perry et al. Abstract: As the coronavirus pandemic intensified, many communities in the U.S. experienced shortages of ventilators, ICU beds, and other medical supplies and treatment. There was no single national response providing guidance on the allocation of scarce healthcare resources. There has been no consistent state response either. Instead, various governmental and nongovernmental state actors in several but not all states formulated “triage protocols,” known as Crisis Standards of Care, to prioritize patient access to care where population demand exceeded supply. One intended purpose of the protocols was to immunize or shield healthcare providers from tort liability based on injuries resulting from a medical decision rationing access to care. Research shows that various state protocols have been implemented to this end by either executive order issued by the governor; state legislation; or action by individual hospital ethics boards. This paper examines a legal question of first impression: Whether the right to institute suit for pandemic related healthcare injuries can be constitutionally eliminated using state triage protocol immunity provisions passed by executive order or state statute during the pandemic. The paper concludes that healthcare providers may still be subject to some legal liability depending upon each state’s unique constitutional grant of powers to the executive and legislative branches and the dictates of the Fourteenth Amendment. PubDate: Wed, 09 Mar 2022 06:09:27 PST
Authors:Paul Nylen et al. Abstract: The virus known as SARS–CoV–21 (Coronavirus) swept over the United States in ways that no other crisis has affected modern society. While the Spanish Flu of 1918 has often been cited for its pandemic similarities to the Coronavirus, from an economic standpoint the attacks of September 11, 2001, and the Great Recession of 2008 are perhaps the Coronavirus’s best analogy for the modern economic carnage that has occurred. In those previous events, Congress responded with sweeping legislation like Dodd–Frank and the Patriot Act. With the Coronavirus, Congress responded with the CARES Act. Within the CARES Act are historical changes to the tax code. By exploring the provisions of the CARES Act, taxpayers receive a glimpse into Congress’s highest priorities in times of crisis. This article explores those changes in the tax law with the hope of providing taxpayers some insight into which priorities Congress views as most vital to a country in crisis. PubDate: Wed, 08 Dec 2021 08:42:23 PST
Authors:Nicolas Torres Abstract: No other form of property ownership is as synonymous with Florida as the condominium. While ownership of airspace was possible under common law, modern condominiums are more accurately described as creatures of statute. Although the Florida Condominium Act (FCA) expressly provides for fee simple airspace ownership of condominium property, it had been unclear if the Act could provide for fee simple airspace ownership of non–condominium property. Sterling Breeze v. New Sterling Resorts cleared up that ambiguity and found that the FCA can provide for fee simple ownership of non–condominium airspace. First, this note will review the development of airspace ownership rights as they relate to condominiums within both common law and statutory regimes. Next, this note will explain key provisions of the FCA as well as Florida case law relevant to airspace ownership. This note will then discuss Sterling Breeze v. New Sterling Resorts which tested whether, under the Florida Condominium Act, non–condominium airspace can be owned in fee simple if the non–condominium airspace was described in a condominium declaration. Adopting a contract–based approach that looks to condominium declarations governed by the FCA, the Sterling Breeze court affirmed that non–condominium airspace can be owned in fee simple if that airspace was described in the declaration creating the condominium. This note will then consider potential benefits of the contract–based approach to airspace ownership adopted in Sterling Breeze and briefly discuss the urban planning and land–use benefits that flow from including non–condominium airspace within the FCA’s scope. This note concludes with a consideration of how Florida common law may also provide for fee simple airspace ownership outside of the Florida Condominium Act. PubDate: Wed, 08 Dec 2021 08:42:22 PST
Authors:Melissa Stewart Abstract: Within the past few years, unprecedented class action lawsuits have been filed against the National Association of Realtors (“NAR”) and major real estate brokerage firms that could have multibillion-dollar implications to homeowners across the United States. One lawsuit claims that NAR rules requiring home sellers’ brokers (“seller-broker”) to offer home buyers’ brokers’ (“buyer-broker”) compensation when listing a property on a local database of properties for sale called the Multiple Listing Service (“MLS”) have driven up costs to the seller and discouraged competition, violating the Sherman Antitrust Act. This commission structure has been upheld in the courts before, but the real estate industry has changed over the years. Technology has had the biggest impact on the real estate industry in recent years. Technology has caused real estate agents’ services to become more expedited and efficient. For example, buyers now have the ability to find property on their own due to real estate websites. Technology like the MLS and current real estate commission rules have been blamed for setting a standard commission that has inflated real estate costs, causing stifled negotiations in real estate transactions and triggering steering of clients to properties with the highest commissions for the real estate agents. However, NAR argues just the opposite of this. NAR contends that its rules and enforcement of its rules on the MLS provide sellers with an increased opportunity to sell their homes by marketing it on an industry-wide platform. The verdicts of pending recent lawsuits will not just be felt by the defendants whom could find themselves potentially liable for millions of dollars. These verdicts will have a historic impact on the entire real estate industry and all American homeowners by changing the way real estate transactions have been conducted in the United States for years. If buyers had to pay their brokers’ real estate commissions, this would discourage buyers from attaining real estate agents, which could lead to buyers entering into one of the biggest purchase of their life without a professional, potentially leading to more lawsuits. Consequently, even though sellers have various options when selling their home that do not force a standard real estate commission for the seller-broker and buyer-broker, how could current commission structures violate an act meant to prohibit restraints on trade' Although many homeowners argue that in today’s modern era buyers should pay the buyer-broker commission, this Comment explores why having sellers pay the buyer-broker commission is beneficial and supported from an antitrust, economic, and equitable perspective.( PubDate: Wed, 08 Dec 2021 08:42:22 PST
Authors:Hayley R. Goodman Abstract: This paper focuses on the ways that collaborative law can be used to resolve family business disputes. Such disputes can get ugly and leave families and businesses in shambles after years of fighting and even litigation. Such disputes can involve those between divorcing partners, parents and children, extended family members, and new and ex partners. Sometimes, these disputes cannot be resolved, forcing family members to sell all or part of the company. Moreover, when families try to resolve disputes through litigation, they end up spending a lot of money. Mediation is often used to resolve disputes in the family business context, but this note shows why collaborative law may be more suitable for resolving family business disputes. Collaborative law stems from the family law field, particularly in the divorce context. This form of alternative dispute resolution requires that parties share retained experts, disclose all facts related to the dispute, and be committed to a win–win resolution. Furthermore, collaborative law requires attorneys to be committed to settling the dispute, because if they do not settle and any party goes to court, the attorneys are contractually barred from representing the parties in the ensuing litigation. Family business disputes are emotional, and more than other sort of business dispute, saving the relationship is a common goal. Additionally, in a family business, no party truly wants to harm the other party (at least financially) because financial stability is crucial to the business’s success. Collaborative law lends itself to resolving family business disputes in several ways. Collaborative law focuses on maintaining relationships, which is often important for people’s professional and personal lives. Also, the use of shared experts helps to ensure that the business remains successful. Finally, collaborative law can save businesses time and money as the parties create a sustainable solution, hopefully without the need for further mediation or litigation. As collaborative law grows into areas outside of the divorce law realm, the legal community and collaborative law organizations should adapt to extend collaborative law to different kinds of legal disputes. PubDate: Wed, 08 Dec 2021 08:42:21 PST
Authors:Jordan J. Saddoris Abstract: Financial market regulators in the US have proposed cutting down their own rulebooks in recent years. However, when it comes to deregulating modern capital markets, the outcomes of historical alterations of similar natures should serve as lessons in what works and what doesn’t. This comment analyzes three modern-day proposals to deregulate US financial markets, using historical actions to argue for the likely efficacy of each. PubDate: Mon, 06 Dec 2021 07:48:07 PST
Authors:Daniel Roy Settana III Abstract: Federal courts have grappled with the issue of whether or not to include in-and-out traders in federal securities class action lawsuits. One set of courts has excluded in-and-out traders on the grounds that they could not prove loss causation, while another set of courts has included in-and-out traders because of the possibility that they could prove that they had suffered a loss. In Mineworker’s Pension Scheme versus First Solar, Inc., the Ninth Circuit recently addressed what should be the correct standard for loss causation. While the Ninth Circuit’s decision resolved its own intra-circuit split, the Court’s decision widened an already existing circuit split. Where some circuits have adopted a restrictive view of loss causation that requires a corrective disclosure revealing the fraud, the Ninth Circuit adopted the view of loss causation that requires a corrective disclosure revealing the fraud, the Ninth Circuit adopted the view that loss causation only requires that plaintiff’s economic loss be proximately caused by a defendant’s misstatement. By embracing the Ninth Circuit’s standard, this note argues that in-and-out traders can show economic loss in the absence of any corrective disclosures. Through proximate cause’s intervening event pattern, it can be shown that an in-and-out trader has suffered a loss in the absence of a disclosure, obviating the need to show that a corrective statement was issued to the market. PubDate: Mon, 06 Dec 2021 07:48:07 PST
Authors:Brandon Mantilla Abstract: This note provides a brief history of the Federal Trade Commission (FTC)’s enforcement authority before analyzing the U.S. Court of Appeals for the seventh Circuit’s circuit-splitting decision in FTC v. Credit Bureau Center, LLC. As the Supreme Court prepares to tackle questions surrounding authority to seek monetary relief, I contextualize how enforcement authority has historically been derived before analyzing how the issue may be resolved. Doing so involves engaging several cases that may prove consequential in determining the outcome and outlines potential legislative solutions to the battle over restitution. Before arriving at the most likely scenarios, a view of the budding relationship between consumer protections giants the FTC and Consumer Financial Protections Bureau (CFPB) provides potential for a synergistic solution, but uncertainty surrounding both institutions indicates a murky outlook on a purely administrative resolution. This in-depth dive, breaking down various aspects of the administrative predicament, details the common law history of traditional restitution authority in the FTC, examines challenges facing the FTC and CFPB, and explores how similar issues facing the Securities and Exchange Commission (SEC) may affect FTC enforcement authority. PubDate: Mon, 06 Dec 2021 07:48:05 PST
Authors:Kassandra C. Cabrera Abstract: Section 230 of the Communications Decency Act (“CDA”) has been held to give online service providers acting as interactive computer services sweeping immunity for content posted on their platforms. The intention behind the creation of Section 230 was not to immunize online service providers from all liability. Rather, Section 230 was enacted to protect online intermediaries acting as “Good Samaritans” – those who made “good faith” efforts to restrict unlawful or harmful content, but due to the breadth of the internet and advancements in technology over or under-filtered content on their platforms. This note outlines an approach for courts to hold online service providers liable for the foreseeable consequences of harmful content on their platforms. Under a theory of premises liability, online service providers can be held liable for the foreseeable consequences of dangerous, harmful, or illegal content made by third parties and allowed on their platforms. In other words, like physical landowners or business operators, online service providers should have a duty to maintain their websites in a reasonably safe condition and to protect against, and remedy, harmful third-party content by making “good faith” efforts to moderate content. Generally, the owners of physical locations open to the public have a duty to make reasonable efforts to protect people against foreseeable harm caused by the acts of third parties that they know, or should know about, and that are likely to occur without such efforts. That same duty should be extended to the online context. By extending a duty similar to that required in the theory of premises liability, online platforms will be incentivized to implement measures to prevent future da present once having been informed of such. Only when online intermediaries make reasonable, “good faith” moderation efforts, should they be given immunity under Section 230. Thus, applying the theory of premises liability to the online context would serve the purpose of Section 230 better than the status quo. Specifically, this note applies the theory of online premises liability by applying it to two cases that were submitted to the United States Supreme Court for review this term – Herrick v. Grindr (review denied on October 7, 2019) and Daniel v. Armslist (review denied on November 25, 2019). This analysis will demonstrate how the imposition of a duty similar to that of premises liability will incentivize online operators to implement measures to prevent against foreseeable harm. PubDate: Mon, 06 Dec 2021 07:48:04 PST
Authors:Samuel Ludington Abstract: Private prisons, like hotels, are most profitable when they are at maximum occupancy and their guests stay for longer periods of time. Because the business-model for private prisons is predicated on incarceration rates dictated by public policy, one would presume that private prison corporations expend great resources to advocating for stricter criminal laws and sentencing. This note explores the role of political lobbying and campaign contributions of private prison corporations to see if a correlative relationship exists between their advocacy and stricter crime laws. Part I of the note provides a history of private prisons in America and explores the laws which lead to the explosive growth in prison populations. Part II will provide an overview of the three largest providers of private prisons and analyzes their political contributions. Part III discusses other business development strategies employed by private prison operators, outside of traditional political lobbying schema. Part IV discusses the present threat to private prison organizations and concludes that public outrage with the capitalization of incarceration, poses an existential threat to private prisons. While private prisons have expended significant resources in political lobbying, the greatest dividends were attributable to their involvement in the American Legislative Exchange Council, which allowed private prisons to draft legislation that produced demand for their services. Nevertheless, these legislative victories are unlikely to withstand the threat posed by widespread public frustration, which has limited these corporations’ access to the capital necessary to sustain their operations. PubDate: Mon, 06 Dec 2021 07:48:04 PST
Authors:Yahel Kaplan Abstract: In the past decades, particularly following the collapse of huge corporation such as WorldCom and Enron due to dubious or illegal financial management, countries began gradually increasing the oversight of publicly traded companies with few jurisdictions conjuring recommended corporate governance codes (RCGC) to ensure sufficient oversight, reduce manager’s ability to loot their companies, and ensure that shareholders’ and stakeholders’ interests are monitored effectively by companies. While RCGC was intended namely for public company, several organizations called for the adoption of RCGC in startup companies. Startup companies suffer from various failures which the classic corporate laws are not equipped to address significant conflicts of interest throughout their financing process, interested parties’ transactions, and rapid change in ownership and board composition. Among the proposed solutions for such failures, as regulated in recent years for public companies, is the implementation of such RCGC. This article presents the fundamental issues in startups which call for adoption of RCGC: the principal-agent problem, numerous conflicts of interest and misalignment of interest between the founders and the investors (and amongst the investors) regarding the company’s management and future. This article reviews the possible application of RCGC doctrines to startups; with respect to empirical and economical researchers that examine the benefit of RCGC on the value of startups and reducing the cost of raising capital, and researches and position papers which call for the adoption of RCGC in startup companies. This article also analyzes the clashes between the startups need for flexibility with the benefits and importance of adoption of RCGC. Lastly, the article presents various RCGC models, which have not yet been introduces in academic papers, which can be adopted in startups, inter alia, increasing the number of outside directors (both as a casting vote in even of founders-investors dead-locks as well as an impartial mentor for the founders), adopting procedures for board meetings and increasing their frequency, and amending the controlling and management rights in the company as a factor of the expected return on investment. PubDate: Mon, 06 Dec 2021 07:48:03 PST
Authors:Lauren Bomberger Abstract: The definition of a bank under the Bank Holding Company Act of 1956 (“BHCA”) has changed several times since the statute was first enacted. Congress has identified a number of underlying rationales for applying the BHCA to certain entities thus necessitating a change in the definition. Recent innovations in technology, however, have made it challenging to adapt the U.S. financial regulatory regime to these advances, particularly for the financial technology (“FinTech”) industry. The Office of the Comptroller of the Currency’s (“OCC”) FinTech charter is one example of an attempt by a U.S. financial regulator to grapple with emerging technologies in financial services in a meaningful way. Despite the OCC initially suggesting that the BHCA could apply to FinTech companies chartered as special purpose national banks (“SPNBs”), these entities do not and cannot meet the definition of a bank under the BHCA because FinTech SPNBs are not permitted to take deposits. This Comment sets out a framework by which to analyze whether the definition of a bank under the BHCA should include FinTech firms who make loans and do not take deposits, i.e., “marketplace leaders.” This Comment finds that including FinTech firms, specifically marketplace lenders, in the statutory definition of a bank would serve a majority of the BHCA’s underlying policy rationales. PubDate: Mon, 06 Dec 2021 07:48:02 PST
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