Category Archives: Volume 10

A “Common” Problem: Examining the Need for Common Ground in the “Common Enterprise” Element of the Howey Test

BY CHRISTOPHER L. BORSANI, ESQ.

An undeniable fact in securities regulation law is that if a transaction is a security, and assuming none of the exemptions of 15 U.S.C. 77c apply, then that security must be registered with the Securities and Exchange Commission (“SEC” or “the Commission”). Whether or not the registration requirements of the Securities Act of 1933 (“Securities Act” or “1933 Act”) will be triggered rests with one main issue: whether a “security,” as defined by the statute, is present. “Congress’ purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called.”
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Arbitrating Hate: Why Binding Arbitration of Discrimination Claims is Appropriate for Union Members

BY DANIEL B. MOAR

When the Supreme Court issued its opinion in Alexander v. Gardner-Denver Co., the Court appeared to announce a clear rule that all employees have a right to bring a statutory discrimination suit in federal court. This holding also included union members who were employed under a collective bargaining agreement mandating binding arbitration. Sixteen years later, however, the Court issued a different opinion in Gilmer v. Interstate/Johnson Lane Corp., requiring a non-union employee to arbitrate any Age Discrimination in Employment Act (“ADEA”) claim as a result of his having signed an arbitration agreement when registering as a securities representative. While the Court in Gilmer was careful to avoid explicitly overruling Alexander, much of the reasoning found in Gilmer is at odds with the Alexander decision.
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Only “the Punctilio” if I Say So: How Contractual Limitations on Fiduciary Duties Deny Protection to Victims of Oppressive Freeze-Outs within Private Business Entities

BY MARY-HUNTER MORRIS

Justice Cardozo first famously formulated the unassailable core of fiduciary duties in Meinhard v. Salmon: “Joint adventurers, like co-partners, owe to one another the duty of the finest loyalty something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive is the standard of behavior.” In the wake of the rise of the contractarian paradigm – championed by Delaware corporate law’s juggernaut of contractual excess – Cardozo’s vision of an obdurate fidelity provided by strict and immutable fiduciary duties appears to have met its greatest challenge. The scope of the fiduciary duty has been gradually eroded since Cardozo’s seminal statement of its predominate authority. It has suffered trivialization by the business judgment rule and marginalization by some states’ statutes that oppressively constrict the fiduciary definition or liberally allow members to “opt-out” of the fiduciary duty entirely.
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The Qualified Right To Free Movement of Workers: How the Big Bang Accession Has Forever Changed A Fundamental EU Freedom

BY BRIAN J. WOODRUFF

It has been more than sixty years since Winston Churchill made the speech that has forever changed Europe. Churchill, speaking most directly to France and Germany, urged the continent of Europe to unite. He spoke to the creation of a “United States of Europe.” Churchill’s idea for France and Germany was quite simple; join French and German interests so as to avoid the start of another war that could ravage the continent of Europe that was still in recovery from the destruction of World War II. More than sixty years later, Churchill’s suggestions are being played out in the lives of nearly half a billion people and 27 member states that make up the European Union. The political landscape of Europe has changed beyond recognition since Churchill’s speech in 1946. Such changes are best exemplified by the creation of the European Union (EU) itself, the rise and fall of Communism on the continent, and most recently the “big bang” expansion of the European Union.
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