Category Archives: Volume 8

Settled No More: An Administrative Agency May Overturn Prior Judicial Interpretation of a Statute within its Jurisdiction so long as the Statutory Language is Ambiguous

BY ZAHN

The Supreme Court of the United States held that (1) If a statute is ambiguous, and the implementing agency’s construction is reasonable, Chevron requires federal courts to accept the agency’s interpretation, even if the agency’s interpretation differs from prior judicial construction of the statute; and (2) the FCC’s classification of Cable Modem Service as an Information Service rather than Telecommunications Service under Title II of the Communications Act was lawful and therefore subject to deference by the courts. Title II of the Communications Act of 19341 requires all providers of “telecommunications service” to comply with strict common-carrier regulations. In March 2002, the Federal Communications Commission (hereafter, “the FCC”) declared that cable modem service is not a “telecommunications service,” but rather an “information service” subject to far less regulation under the Communications Act. This declaration came two years after a Ninth Circuit judicial construction found precisely the opposite; that cable modem service is a “telecommunications service” as defined within the statute. In this case, the Court was asked to determine whose view should prevail.
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Monopolistic Sleeper: How the Video Gaming Industry Awoke to Realize that Electronic Arts was Already in Charge

BY LIRON OFFIR

Some industries are more attractive than others, they produce healthier numbers, higher profit margins, and even have there own fan base following. One industry in particular boasted an astonishing $7.3 billion dollars in sales last year alone, and is stated to have sold 248 million units. This particular industry has shown growth in the last nine years that has doubled overall industry sales and almost tripled the total units sold.3 This astonishing industry is none other than computer and video gaming. There is one computer and video gaming company, though, that is as lucrative and attractive as the entire collective industry. Headquartered in Redwood City California, Electronic Arts (EA) claims to be the world’s leading independent developer and publisher of interactive entertainment software for personal computers and advanced entertainment systems. Since its inception, EA has garnered more than 700 awards for outstanding software in the United States and Europe. EA markets its products world- wide under four brand logos, and has over 33 product franchises that have reached more than a million unit sales worldwide. In recent years, Electronic Arts has obtained numerous exclusive licensing and partnership agreements. By establishing these business agreements, Electronic Arts has worked its way to the top of the video and gaming industry.
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Understanding Maryland’s Business Judgment Rule

BY BERNARD S. SHARFMAN

The “Business Judgment Rule” (“BJR”) is a common law stan- dard of judicial review. The BJR is applied by the courts to favor the actions of corporate managers. According to Henry Manne, a leading commentator on corporate law, the BJR protects from ju- dicial review “honest if inept business decisions” made by corpo- rate managers. By accomplishing this strategic objective, the BJR tries to obtain its ultimate goal – preventing courts from exer- cising regulatory authority over corporate management. The creation of the BJR as a means of obtaining this goal is a direct product of the time period in which it originated. The BJR first appeared in the 19th century, a time when there was a fear of gov- ernment regulation. Since then, the BJR has been used by the courts as a means to avoid the exercise of regulatory authority over corporations.
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A Catch-22 or a Catch-All?: Delaware and Texas Grasp for Certainty in Shareholder Ratification

BY KRYSTAL PFLUGER SCOTT

In the wake of corporate calamities such as Enron and World Bank, a renewed interest in corporate law has arisen among legis- lators, judges, lawyers, and businesspeople. Specifically, in the post-Enron corporate environment, corporate management must understand their fiduciary duties to the corporation and the situa- tions in which legal annulment alleviates a breach of these duties. One way directors may avoid litigation for breaching their fiduci- ary duties when involved in self-dealing transactions is by the safety net known as shareholder ratification. Broadly defined, shareholder ratification is “any approval of challenged board ac- tion by a fully informed vote of shareholders, irrespective of whether that shareholder vote is legally required for the transac- tion to attain legal existence.”
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Statistical Analysis and Interpretation of Data Commonly Used in Employment Law Litigation

BY C. PAUL WAZZAN & KENNETH D. SULZER

Employment law litigation, such as “wage and hour” misclassification class action lawsuits and “overtime” or “off the clock” lawsuits, has increased in frequency over the past few years as a result of many factors, including increased awareness by the Plaintiffs’ bar and new developments in the law. In many of these cases, the use of statistical analysis is increasingly common. The California Supreme Court, in Sav-on Drug Stores, Inc. v. Superior Court of Los Angeles County (“Sav-on”) encouraged trial courts to adopt “procedurally innovative” methods, including survey results and the statistical analysis thereof, for evaluating class certification. In Dukes v. Wal-Mart Store Inc. (“Dukes”) plaintiffs sought certification of a class of as many as one million women who asserted gender discrimination claims. The large number of potential plaintiffs in (“Dukes”), virtually requires statistical analysis. This article provides legal scholars and practitioners with a vocabulary to address the statistical analysis and interpretation of data commonly used in employment and labor law litigation. We describe tests of significance, random sampling, and required sample size…
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The Enforceability of Pre-Dispute Jury Waiver Agreements in Employment Discrimination Cases

BY ROBERT FRANKHOUSER

Employers are always attempting to find new ways to limit their exposure to employment discrimination claims. Many employers have implemented multi-level alternative dispute resolution procedures which attempt to prevent claims of discrimination from occurring, settle the dispute before it reaches the appropriate judicial system and/or avoid the uncertainty of a jury trial if a claim is ultimately litigated. Throughout the 1990’s mandatory arbitration agreements in employment contracts were the alternative dispute resolution program of choice. There are several drawbacks to mandatory arbitration agreements, however, and as a result employers have continued their quest to find a better method of limiting their financial exposure in jury trials. The newest method utilized by employers to attempt to reduce the risk of excessive jury awards is the jury trial waiver. Jury trial waivers are generally included in a provision of an employment agreement and provide that the right to a jury trial is waived for any claim or cause of action arising under the agreement or out of the employment relationship.
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