Showing papers by "Jones Day published in 2011"

Yes, I Destroyed the Evidence – Sue Me? Intentional Spoliation of Evidence in Illinois

Abstract: This Article examines the availability of intentional spoliation as an independent cause of action under Illinois law. The topic is timely in light of the on-going debate and uncertainly surrounding spoliation of evidence law. Given the importance and timeliness of this topic, this Article is aimed not only at legal academics, but also at judges, legislators, and practitioners. This Article is among the first to focus on intentional spoliation in Illinois. In short, it argues that the Illinois Supreme Court should recognize intentional spoliation as an independent tort. After providing background about spoliation generally, and the watershed case of Boyd v. Travelers Insurance Company, the Article details the policy interests at stake and sets forth a strong case for permitting a tort for intentional spoliation.

M&A prophecy: One year later

Abstract: Last year, the authors wrote an article for JCAF entitled “Is the M&A Market Back?” They were not sure if the glass was half full or half empty Now, a year later, they look back at their predictions Were they accurate? And what does the future hold? © 2011 Wiley Periodicals, Inc

So What If Corporations Aren't People?

Abstract: Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court's decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not "real" people. While it's true that corporations aren't human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren't people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

Is There Life after Death for Sports League Immunity? American Needle and Beyond

Abstract: American Needle, Inc. v. National Football League decisively rejected the argument that a professional sports league is a “single entity” exempt from Section I antitrust scrutiny, yet this immunity argument had barely been interred before some commentators sought to articulate alternative grounds for immunizing sports leagues and other joint ventures from scrutiny. This Essay argues that these new theories of sports league immunity – one of them based on American Needle itself, and another rooted in an enigmatic statement by the Supreme Court, in Texaco Inc. v. Dagher, about the “core functions” of joint ventures – are inconsistent with both American Needle and with bedrock principles of antitrust law.

Are Federal Agencies the Sole Judges of Their Own Authority

Abstract: Federal agencies incrementally expand their regulatory power by adopting statutory interpretations that go beyond the underlying legislation’s plain meaning and purpose. The courts are supposed to check this overreach, but they increasingly defer to agencies’ own “discretion” in exercising their authority. The U.S. Supreme Court had the opportunity to reverse this trend in National Corn Growers Association v. Environmental Protection Agency, a suit that challenged the EPA’s refusal to hold public evidentiary hearings concerning “material issues of fact,” contrary to federal law. Unfortunately, the Court has passed on this opportunity.

Brazil's Congress approves a new competition law that significantly restructures the landscape of competition enforcement

Abstract: On October 5, 2011, Brazil's Congress approved a new competition law that significantly restructures the landscape of competition enforcement in Brazil. Brazil's Congress will now forward the bill…

The Brazilian Parliament approves new competition law subject to prior significant vetoes

Abstract: On December 1, 2011, Brazil's new competition law was published in its final form, having been approved by President Dilma Rousseff. The new law goes into effect on May 29, 2012. Before…

International mergers: How to detect corruption

Abstract: Virtually every corporate merger and acquisition (M&A) or joint venture today involves some international component. That means an increasing number of US businesses operate through third parties in distant lands—where the notions of ethical practices may differ from our own. Even worse, they could be illegal under the US Foreign Corrupt Practices Act (FCPA), the UK Bribery Act, and other applicable laws. As the media reports, such investigations and prosecutions have become epidemic in corporate America. So how do you avoid these problems? The authors of this article detail how to conduct effective anticorruption due diligence on acquisitions and foreign business partners. © 2011 by Andrew J. Sherman and R. Christopher Cook

The Chinese MOFCOM publishes final rules on the national security review of foreign investment in national companies

Abstract: China has published new rules to implement the national security review that will be conducted as part of the review of mergers and acquisitions by foreign investors and involving Chinese…

Dodd–Frank: Time for Some Serious Pushback?

Abstract: Does the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 endanger the future of capitalism itself ? In this article, the author warns that the excessive regulatory authority granted under Dodd-Frank could be used to unduly restrict property rights and could sap the energy of American capitalism. The author reminds the reader that structured finance was designed to be the most rational form of finance and that for the most part securitization structures were not to blame for the financial crisis. The author also challenges the view that excessive greed and negligence within the structured finance and securitization industry were the primary drivers of the crisis. Rather, the author discusses the role of external factors, including the weakening of the dollar and the rise in energy prices, as well as the aggressive shorting of the credit markets, combined with an industry all too eager to make hand-wringing mea culpas, in the precipitation and response to the crisis. While the undesirable effects of Dodd-Frank can be ameliorated through regulatory action or inaction, ultimate relief may have to come from the repeal of offending provisions of the legislation. The author discusses some of the constitutional concerns with Dodd-Frank, but ultimately concludes that true freedom from the Act’s restrictions will require political action.