FTX: An Illustration of the Difficulties in Structuring Crypto-Asset Regulation and Incentives

The financial woes of cryptocurrency exchange FTX and hedge fund Alameda Research have dominated the recent financial news cycle. On November 2, 2022, CoinDesk reported that Alameda Research held a substantial amount of the FTT token issued by FTX. Both FTX and Alameda Research were founded by Sam Bankman-Fried. Following this revelation, rival cryptocurrency exchange … Continue reading FTX: An Illustration of the Difficulties in Structuring Crypto-Asset Regulation and Incentives

Restructuring Futures Markets

Before the run on FTX, its subsequent bankruptcy, and the resignation of its founder Sam Bankman-Fried, an FTX affiliate (i.e., “LedgerX” or “FTX U.S. Derivatives”) filed a proposal with the Commodity Futures Trading Commission that had the potential to fundamentally change central clearing in U.S. futures markets. The proposal is part of a growing trend … Continue reading Restructuring Futures Markets

The Epistemology of Collective Scienter

There is a circuit split over the standard to plead scienter in 10b-5 securities fraud litigation against corporations. NARROW PLEADING dismisses complaints for failure to plead scienter, unless the complaint names a natural person at the corporation who has scienter. But BROAD PLEADING allows a complaint to survive dismissal, even without naming any natural person … Continue reading The Epistemology of Collective Scienter

Extraterritorial Application of the Lanham Act

United States corporations operating abroad often look to the Lanham Act, 15 U.S.C. § 1051 et seq., for protection of their intellectual property. If you take almost any Fortune 100 company or company listed on the Dow Jones Industrial Average, you will probably find that it derives a sizable portion of its revenue from international operations. … Continue reading Extraterritorial Application of the Lanham Act

Assessing the Biden Administration’s Actions on Agriculture Antitrust

In President Biden’s 2021 speech announcing his administration’s approach to antitrust enforcement, the President sounded a revolutionary note: America had been doing antitrust wrong, and it was time for change. “Forty years ago, we chose the wrong path,” President Biden intoned, “following the misguided philosophy of people like Robert Bork.” Now, 40 years into the … Continue reading Assessing the Biden Administration’s Actions on Agriculture Antitrust

Shareholders Get Some Slack on Section 11, Direct Listing Pleading Standard

This past September, the United States Court of Appeals for the Ninth Circuit held that shareholders who purchased securities in Slack’s direct listing have standing under Section 11[1] of the Securities Act of 1933 (Securities Act) to sue the company for misrepresentations in its registration statement, even if they cannot prove that their shares were … Continue reading Shareholders Get Some Slack on Section 11, Direct Listing Pleading Standard

Musk: Feared or Loved? Delaware Chancery Court’s Controlling Shareholder Doctrine and the Expansion of Judicial Inquiry into Directorial Decision Making

In Delaware, there is no answer to whether a defendant’s “soft power alone, anchored in historical and commercial ties” can support a controlling shareholder determination imposing fiduciary duties. Elon Musk has been a prominent star in recent years, specifically as Tesla’s CEO. While Musk’s tweets have been a focal point of his media attention, his … Continue reading Musk: Feared or Loved? Delaware Chancery Court’s Controlling Shareholder Doctrine and the Expansion of Judicial Inquiry into Directorial Decision Making

DOJ Files Antitrust Suit Against American Airlines and JetBlue

On September 21, 2021, the Department of Justice (DOJ) filed a civil antitrust suit against American Airlines (“American”) and JetBlue in the United States District Court for the District of Massachusetts. The suit alleges a violation of § 1 of the Sherman Act and seeks to enjoin an alliance formed between the two airlines. Back … Continue reading DOJ Files Antitrust Suit Against American Airlines and JetBlue

A Sea of Change in Delaware Corporate Dilution Claims

Earlier this year, the Supreme Court of Delaware decided Brookfield Asset Mgmt. v. Rosson, overturning fifteen years of precedent and simplifying an area of law the Court itself referred to as “reflect[ing] fundamental unworkability.” To understand the importance of this case, some background is necessary. According to the Delaware Court’s holding in Tooley v. Donaldson, … Continue reading A Sea of Change in Delaware Corporate Dilution Claims

Vaccines at 31,000 feet: Collective Bargaining, Labor Disputes, and Southwest Airlines’ Vaccine Mandate

Southwest Airlines (“SWA”), the low-cost carrier renowned for its forward-thinking workplace culture of levity and employee empowerment, has found itself in a bitter labor standoff over a recently-decreed edict that its employees—some 56,000 people—must be vaccinated against COVID-19 by December 8, 2021, barring any religious or medical exemptions. The requirement was imposed pursuant to President … Continue reading Vaccines at 31,000 feet: Collective Bargaining, Labor Disputes, and Southwest Airlines’ Vaccine Mandate

Delaware Supreme Court Clarifies Demand Futility Lawsuits in United Food and Commercial Workers v. Zuckerberg

The Delaware Supreme Court recently clarified its demand futility jurisprudence, an area of Delaware corporate law that has confused members of the bar, academics, and shareholders for nearly thirty years. This clarification came from the court’s recent decision in United Food and Commercial Workers v. Zuckerberg, a case concerning a stockholder’s complaint over past actions … Continue reading Delaware Supreme Court Clarifies Demand Futility Lawsuits in United Food and Commercial Workers v. Zuckerberg

A Settled Case and an Unsettled Law: The Reform Act’s Discovery-Stay at the Supreme Court

Discovery is “both a tool for uncovering facts essential to accurate adjudication, and a weapon capable of imposing large and unjustifiable costs on one's adversary.” Pivotal Software, Inc. v. Tran, to which the Supreme Court granted certiorari on July, 2, 2021, was a case about the use of discovery as a weapon by plaintiffs in … Continue reading A Settled Case and an Unsettled Law: The Reform Act’s Discovery-Stay at the Supreme Court

Why IP Waivers Are Not the Best Option for the COVID-19 Vaccine

In the midst of the COVID-19 pandemic, South Africa and India have asked the World Trade Organization (“WTO”) to waive enforcement of certain provisions of the Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) agreement  “until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity.” The TRIPS agreement sets … Continue reading Why IP Waivers Are Not the Best Option for the COVID-19 Vaccine