For years, the investment adviser community has called for all financial professionals who provide investment advice to be subject to the fiduciary standard. On June 17, 2009, it seemed their calls would be answered when the Obama Administration issued its framework for financial regulatory reform, which declared that "standards of care for all broker-dealers when providing investment advice about securities to retail investors should be raised to the fiduciary standard to align the legal framework with investment advisers."Continue Reading >
Though a matter of corporate law—not limited liability company law—Smith v. Van Gorkom2 was the 1985 Delaware decision that laid the groundwork for the apparently increasing ambiguity over fiduciary duties of and among managers and members of limited liability companies. 3 The Van Gorkom court found corporate directors "grossly negligent"Continue Reading >
Imagine you are the owner of a factory, and you have just begun a long day of promising interviews for a new supervisor position. Your first candidate walks through the door and he is a five-foot three-inch tall man weighing more than 340 pounds. You respectfully greet him and review his impressive credentials. However, you catch yourself thinking about how his weight could possibly affect his work performance. You anticipated that his obesity might put him at a greater risk of developing serious illnesses, thus promoting absenteeism and increasing the likelihood of workers' compensation claims.Continue Reading >
Since its enactment, no plaintiff has ever prevailed in a court case challenging the size of an advisory fee charged by a mutual fund adviser under § 36(b) of the Investment Company Act of 1940 (the “ICA”). Continue Reading >
Since 1945, courts have struggled to develop a precise formula in which price-squeeze claims can be settled under antitrust law. This struggle has resulted in a variety of inconsistent rulings throughout the court of appeals. In 2009, the Supreme Court attempted to remedy this dilemma by separating the price-squeeze into its core components of an antitrust duty to deal at the wholesale level, and predatory pricing at the retail level. This decision has dramatically changed the course of antitrust law by redefining the manner in which courts deal with the price-squeeze claim.Continue Reading >
In 14 Penn Plaza v. Pyett, the United States Supreme Court concluded that a collective-bargaining agreement that expressly states that Age Discrimination in Employment Act ("ADEA") claims are subject to arbitration is enforceable as a matter of federal law. This note will give a detailed summary as to the facts, procedural history, and the Supreme Court's analysis. Secondly, this note will address two dissenting opinions and the relevant history related to labor union contracts and compulsory arbitration.Continue Reading >
Do states have the power to enforce their own fair-lending laws against national banks? This was the question presented to the Supreme Court of the United States in Cuomo v. Clearing House Ass'n, L.L.C. In a majority opinion by Justice Antonin Scalia, the Court answered in the affirmative, holding that states have the power to enforce state laws against national banks.Continue Reading >