10 Hastings Business Law Journal, Issue 2

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Articles

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THE UNCERTAIN SCOPE OF REVISED ARTICLE 9’S STATUTORY PROHIBITION OF EXCULPATORY BREACH OF PEACE CLAUSES
Michael Korybut, 10 Hastings Bus. L. J. 271 (2014)

What length may an agent for a secured lender with a lien on a debtor’s personal property go to in order to repossess the debtor property to satisfy the debt? Wombles Charters, a 1990 New York case decided under Article 9 of the Uniform Commercial Code, was the first in a trilogy to condone the use of exculpatory repossession clauses allowing actions that would otherwise amounted to a breach of the peace. In 2001, Article 9 received a makeover that many presumed would invalidate Wombles carve outs yet, there is virtually no case law on the subject. This has led academics to disagree about whether a Womble-like clause would survive judicial scrutiny under Revised Article 9. This Article takes up the challenge and sorts through the fray of arguments underlying the differing positions.

 
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NEGOTIATING BRIBERY: TOWARD INCREASED TRANSPARENCY, CONSISTENCY, AND FAIRNESS IN PRETRIAL BARGAINING UNDER THE FOREIGN CORRUPT PRACTICES ACT
Peter Reilly, 10 Hastings Bus. L. J. 347 (2014)

From business to individual, almost anyone can be the subject to investigation for possible violations of the U.S. Foreign Corrupt Practices Act. If a party is indicted, the case may be resolved through an ADR vehicle currently being employed by the DOJ: The Deferred Prosecution Agreement (“DPA”) or the Non-Prosecution Agreement (“NPA”). 

The use of such agreements is not guaranteed as an alternative to trial; rather they are awarded to defendants through negotiations with the DOJ. But here is the problem: This negotiation between prosecutor and accused can sometimes be unfair to the point where any “bargaining” taking place is merely illusory. In many instances, the government has too much power, too much leverage, and too much discretion in presenting, negotiating, and implementing DPAs and NPAs. There is not enough transparency or consistency within these two negotiation processes. This is not a trivial matter. Monetary recoveries related to DPAs and NPAs over a thirteen-year period total more than $37 billion. And while they might seem similar to plea bargains, DPAs and NPAs are substantively quite different from plea bargains. 

This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pretrial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair.

 
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RATIONAL FINANCIAL MELTDOWNS
Manuel A. Utset, 10 Hastings Bus. L.J. 407

This article focuses on the following question: how can a group of rational, and often very sophisticated, financial actors cause financial meltdowns, in the regular course of business? There is no doubt much we still need to learn about irrational financial meltdowns, but more likely than not, cognitive shortcomings only make matters worse: they exacerbate the type of behavior that can lead even super-rational actors to cause financial meltdowns.


Student Notes

MICROLENDING: STATE REGULATORY REFORMS TO PROMOTE ECONOMIC AND EMPLOYMENT GROWTH IN CALIFORNIA
Deanna Chea, 10 Hastings Bus. L. J. 451 (2014)

Microlending has earned a great deal of acclaim for alleviating poverty and facilitating self-sufficiency among entrepreneur recipients of microloans, particularly in developing countries. The microlending structure has been repeatedly replicated and tailored to successfully meet each community’s unique needs. As one of the most socioeconomically, geographically, and culturally diverse states in the United States, California can reap the benefits of microlending with careful development of proper infrastructure. This note examines the history of microlending, provides and overview of the current economic state of California, and proposes a number of state legislative and regulatory reforms to create a sustainable and robust microlending framework. In arguing that microlending is an effective potential tool to facilitate optimal economic recovery and growth, post-housing bubble recession, this paper seeks to promote further research and exploration of microlending in the California context.

 

BRINGING DARK MONEY INTO THE LIGHT: 501(C)(4) ORGANIZATIONS, GIFT TAX, AND DISCLOSURE
Tyler J. Kassner, 10 Hastings Bus. L. J. 471 (2014)

Political speech funneled through 501(c)(4) organizations and funded by anonymous contributions is not just legal: It’s rampant. Could applying the gift tax to 501(c)(4) contributions resolve a legal grey area while curbing this anonymous political speech? Legally, expanding the gift tax would appear to be a legitimate option. It would be consistent with prior tax expansions and it is not abnormal for tax incentives to influence taxpayer behavior. The problem is not whether Congress could expand the tax, but whether it should. Applying the gift tax to 501(c)(4) contributions may very well curtail anonymous spending by c4s, but it would also hurt legitimate c4s and would not be likely to reduce the scale of anonymous contributions. Instead of using the gift tax as a blunt instrument that is unlikely to fix the problem, Congress should instead focus on mandating disclosure for any organization that engages in political speech.

 

CHOICE OF PROCEDURAL LAW IN INTERNATIONAL COMMERCIAL ARBITRATION: PROVIDING “PROPER NOTICE” TO A FOREIGN PARTY TO ENSURE THAT THE ARBITAL AWARD CAN BE ENFORCED
Tiffany Ng, 10 Hastings Bus. L. J. 491 (2014)

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.

 

WHAT COUNTS AS A DOMESTIC TRANSACTION ANYMORE: THE SECOND CIRCUIT AND OTHER LOWER COURTS’ STRUGGLE IN INTERPRETING THE SUPRME COURT’S INTENT IN MORRISION V. AUSTRALIA NATIONAL BANK WHEN DEALING WITH DERIVATIVE SECURITIES TRANSACTIONS
Jacob True, 10 Hastings Bus. L. J. 513 (2014) 

The U.S. Supreme Court recently created uncertainty in the over-the-counter derivative securities market with its decision in Morrison v. National Australia Bank Ltd. Courts used to determine if claims involving fraudulent actions effecting securities transaction could be made under U.S. securities law by assessing whether the fraud was conducted or the effects of the fraud was felt within the United States, but after Morrison that changed. Now, a securities transaction must be made on a “domestic exchange” or be a transaction occurring within the United States. The Supreme Court did not thoroughly define what constitutes a “transaction occurring within the United States” and now lower courts are struggling to interpret the Supreme Court’s intent when applying the Morrison test to derivative transactions cases.