Showing papers by "Jones Day published in 2012"

Ensuring an Impartial Jury in the Age of Social Media

Abstract: The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions — the impartial jury. Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct. Just recently, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted about the case during deliberations. In light of the significant risks to a fair trial that arise when jurors communicate through social media during trial, judges must be vigilant in monitoring for potential outside influences and in deterring misconduct.In this Article, we present informal survey data from actual jurors on their use of social networking during trial. We discuss the rise of web-based social networks like Facebook and Twitter, and the concerns that arise when jurors communicate about a case through social media before returning a verdict. After surveying how courts have responded to jurors’ social media use, we describe the results of the informal survey. The results support a growing consensus in the legal profession that courts should frequently, as a matter of course, instruct jurors not to use social media to communicate about trial. Although others have stressed the importance of jury instructions in this area, we hope that the informal survey data will further the dialogue by providing an important perspective — that of actual jurors.

Honored in the Breach: Issues in the Regulation of Tender Offers for Debt Securities

Abstract: The unique sensitivities of debt securities to tender offer pricing structures and timing requirements have raised concerns for both the SEC and market participants. The SEC staff has addressed problems arising from, for example, the requirement that a tender offer be open for 20 days, by issuing no-action relief to market participants where the staff recognizes a market need for a shorter offer period that - while technically breaching securities laws - does not pose significant dangers to holders of debt securities. The reliance on no-action relief in debt tender offers began in the 1980s and continues to the present, with no legally enforceable provisions following the nonbinding no-action process to formally approve of these technically illegal transactions. This paper gives a detailed discussion of a number of tender offer structures that have been approved of by the SEC staff through the no-action process. The paper then focuses on issues faced by attorneys in rendering legal opinion letters in light of the SEC’s regulatory approach to debt tender offers.

The benefits of mergers. Hospital mergers can increase competition through access to capital and economies of scale.

Abstract: Hospital mergers can preserve local care and increase competition.

The German Competition Authority clears merger in the healthcare industry despite presumed market dominance and a presumed oligopoly, and applies a rather detailed economic analysis, in relation to the SIEC and the old dominance test (Fresenius Kabi / Fenwal)

Abstract: The Bundeskartellamt cleared the merger between Fresenius Kabi and Fenwal following its Phase II investigation. The merger concerned the healthcare sector and, in particular, the market for…

The EFTA Court sanctions for abuse of dominant position a company active in the market for business-to consumer parcel services with over-the-counter delivery, thus addressing the issue of judicial review (Posten Norge)

Abstract: A lesson on judicial review from the other European Court in Luxembourg* Legal change sometimes takes unpredictable paths: mid-April, something important happened for European law in Luxembourg,…

Le référé en droit de la concurrence devant le juge de l'Union

Abstract: Quels sont les contours du refere en droit de la concurrence devant le juge de l'Union ? C'est a cet exercice que s'essaie cet article, a travers l'analyse des ordonnances de refere rendues dans cette…

Goodyear, 'Home,' and the Uncertain Future of Doing Business Jurisdiction

Abstract: The general jurisdiction decision Goodyear Dunlop Tires Operations, SA v Brown, received relatively little attention when it was handed down on the final day of the Supreme Court’s October 2010 Term, but it will likely have far-reaching effects on both the doctrine and theory of general jurisdiction Goodyear added what appears to be a significant new hurdle, requiring that the defendant corporation’s “affiliations” with the forum state be sufficient “to render [it] essentially at home in the forum State” This standard undermines a great deal of lower court authority, and in particular seems inconsistent with the notion — widely accepted in lower court cases, though never endorsed by the Supreme Court — that a corporation is subject to general jurisdiction wherever it is “doing business” This article argues that Goodyear casts significant doubt on the ongoing validity of doing business jurisdiction, and in doing so goes a long way toward putting general jurisdiction, for the first time, on a solid theoretical footing In particular, it contends that doing business jurisdiction, contrary to common assumptions, has no meaningful historical pedigree, and that it cannot be justified under any cogent jurisdictional theory Because general jurisdiction by definition involves claims that are unrelated to the state, it can be justified only when the defendant is so closely tied to the state as to create legitimate authority over all of the defendant’s worldwide conduct Such all-encompassing authority has traditionally been recognized only with respect to a state’s citizens or residents — an understanding that corresponds well with the Court’s new limitation of general jurisdiction to where the defendant is “at home” Merely doing business in a state gives the state legitimate authority over the in-state conduct, but no legitimate interest in asserting authority over activities unrelated to the state Such authority is, and should be, reserved for circumstances in which the forum state can fairly be regarded as the corporation’s home

(Mis)Understanding 'Undue Discrimination': FERC's Misguided Effort to Extend the Boundaries of the Federal Power Act

Abstract: In Order No. 1000, issued on July 21, 2011, FERC concluded that a right of first refusal is anticompetitive and unduly discriminates against independent transmission developers. FERC had previously suggested in Primary Power, LLC that it believed the company proposing the transmission project should have the right to build it unless the regional entity can adequately justify selecting another entity for construction. That decision and the Order No. 1000 reforms will have a significant impact on the way transmission infrastructure is planned and constructed in the United States. FERC, however, lacks jurisdiction to specify which entity may con-struct transmission facilities approved in a regional planning process. The FPA's jurisdictional grant limits FERC's ability to adopt a federally sanctioned selection process requiring equal treatment for all potential transmission developers, regardless of whether or not the developers are similarly situated. Moreover, in Order No. 1000, FERC recognized that it lacks authority under the FPA to preempt states' transmission siting, permitting, and construction decisions. It is well settled law that FERC cannot do indirectly that which it cannot do directly. Even if the new federal regulations are not attempting to exercise preemptive authority and, at the pre-compliance stage, do not directly infringe on the states, the regulations create the potential for conflict between federal and state policy. The potential for conflict indirectly limits state authority by pushing states to conform their regulations to the federal policy and, as a result, implicitly preempts state authority.