Prof. Steven Davidoff Solomon's latest article discusses how the scandal over the ouster of Dov Charney from American Apparel shows the consequences of confidentiality agreements.
On July 9, Ken Taymor presented "From Corruption to Good Governance: Lessons from the FCPA and the OECD" at the Goldman School's Ethics and Governance executive education program. The program serves senior-level Indian government administrative officers responsible for making policy in areas such as education, health, transportation and energy.
In “Actavis and Error Costs”, Prof. Aaron Edlin et al. defend the position they took in “Activating Actavis” that payments from a patent holder to fend off litigation from a competitor should be suspect whenever the payment exceeds the cost of litigation and the competitor agrees to stay out of the market. Such “reverse payments” can too easily be a subterfuge for allowing the competitors to split profits even when the patent is of dubious value or validity. This position has been criticized by some economists as too easily marking legitimate, pro-competitive agreements for antitrust litigation, and that SCOTUS never intended Actavis to be applied so broadly. Edlin et al. argue that their approach follows directly from Actavis, and that large reverse payments are generally not economically rational. In the unlikely case where competitors have legitimate pro-competitive reasons for large reverse payments, they would still be able to offer these reasons in defense.
In their article “Cartels by Another Name” (U Penn Law Review), Prof. Aaron Edlin and Rebecca Haw argue that state licensing boards established to protect consumer health and safety are frequently used to suppress competition. This can happen when the boards are placed in the hands of members of the profession who have an interest in using the boards as a mechanism to maximize the income of members of the profession. Edlin and Haw argue that this hurts consumers, and that the Supreme Court should settle a recent split in the Circuits by clarifying that “when competitors hold the reins to their own competition, they must answer to Senator Sherman.”
A WSJ article questions whether private equity firm KKR has withheld from its investors millions in consulting fees by improperly classifying its relationship with KKR Capstone. KKR is required to share 80% of consulting fees collected by “affiliates”, but claims Capstone is not an affiliate, even though KKR referred to Capstone as such in its SEC filings. KKR relies on an opinion by Linklaters LLP, but, says Prof. Robert Bartlett, Linklaters’ analysis was “very formalistic” and provides “a weak case it’s not an affiliate” since it didn't address important functional-control tests or relevant SEC guidance about the consequences of Capstone's accounting consolidation.
On Friday, May 2, Prof. Krishnamurthy presented a paper at the Consumer Financial Protection Bureau (CFPB) in Washington, D.C., entitled “Mortgage Regulation for Bubbles”, co-authored with Ryan Bubb of NYU Law School. The paper, as yet unpublished, argues that housing bubbles are the greatest risk the mortgage market poses to financial stability. The Dodd Frank Act's approach to mortgage regulation relies on regulatory incentives that are likely to be ineffective in a future bubble. Krishnamurthy and Bubb suggest ways to improve on Dodd Frank's approach by directly regulating the underwriting terms of mortgages.
This year, the Business Law
Certificate program recognized 38 recipients. Twelve J.D. and twenty-six
LL.M. students were awarded the certificate in recognition of their
completion of rigorous course of study in preparation for professional
practice as legal advisors to businesses, to business-oriented NGOs, and
to government entities. To view a photostream of the ceremony click here. To learn more about the Business Law courses and Certificate programs click here.
The U.S. Supreme Court recently revisited the scope of the Fifth Amendment's Takings Clause--this time, in the land-use permitting context. In this Casenote, Christopher Hammond argues that the Court in Koontz v. St. Johns properly prioritized the right at issue over the means by which the government might infringe upon it and, in so doing, provided a broader jurisprudential view of property protections under the U.S. Constitution.
Professor Suzanne Scotchmer, of the UC Berkeley Economics Dept., School of Public Policy, and School of Law, was among the most influential economists of her generation. A Tribute by the Berkeley community captures a range of perspectives on her influence and carries forward her legacy. Read more>
At the end of a spirited debate between Jamie Yood ’14 and Joseph Santiesteban ’14, the latter won the prestigious McBaine Moot Court Competition. The competitors argued their cases before a trio of prominent judges: UC President Janet Napolitano, California Supreme Court Justice Goodwin Liu, and Northern District Court of California Chief Judge Claudia Wilken ’75. This fall, Santiesteban will begin work at Ropes & Gray, where he will focus on intellectual property and privacy.
At a meeting with the California State Bar’s Task Force on Admissions Regulation Reform last month, Prof. Eric Talley emphasized the correlation of technical skills in business and finance, which are not routinely taught in law school, with a corporate lawyer’s ability to serve clients. According to a recent survey of transactional specialists conducted by Talley, document drafting, professional ethics, and fact development and analysis were among the most crucial skills needed for practice. Currently, the new training requirements proposed include: practice-based, experiential coursework or apprenticeships, the provision of legal services to pro bono or modest means clients, and additional MCLE (Minimum Continuing Legal Education) hours. A follow-up meeting is April 23 in Los Angeles. Survey>
Congratulations to winners of the inaugural Pircher, Nichols & Meeks 2014 Joint Venture Challenge!
The winning teams were composed of the following Haas and Berkeley Law students:
First Place: Ben Bradbury (MBA), Mary Loum (JD), Arkadiusz Malinowski (JD), and Kim McGinnis (MBA)
Second Place: Zane Keller (MBA), Steven McCarthy (JD), and Sam Wang (MBA)
And thanks to our Judges: Phil Nichols and Stevens Carey, partners at the sponsoring firm, and Josh Myerberg, Executive Director, at Morgan Stanley's San Francisco office. The JV Challenge was organized by BCLBE, with support from Pircher, Nichols & Meeks and Leo Pircher '57. Read more>
Prof. Aaron Edlin has published the final edition of Activating Actavis. The article helps courts and counsel fill in the gaps in the Supreme Court's recent decision in FTC v. Actavis which explored the relationship between antitrust and intellectual property law in the context of litigation settlements in which a brand name drug manufacturer (and patent rights holder) paid a would be generic competitor to stay out of the market. The paper describes the elements of a plaintiff’s affirmative case and justifications that may be offered by defendants. For private cases, it outlines an appropriate procedure for evaluating damages and suggests specific jury instructions. Read more>
An ABA task force recently made a proposal to establish minimum requirements within ABA-accredited law schools for “experiential” learning related to building practical skills and competencies. While an important invitation for law schools to re-imagine how they deliver legal education, the proposal raises the question of what constitutes “skills and competencies.” Within business law, this challenge is perhaps greatest for transactional attorneys. However, it is unclear how much, if any, input these practitioners/educators have had on the process of drafting guidelines, or whether there has been much systematic analysis of what topics constitute important “skills.” To address these gaps, Berkeley Law faculty, led by Eric Talley, devised an on-line survey instrument to help gauge what sorts of core competencies established professionals consider important. The preliminary results can be found here. We hope the results will help both practitioners and legal educators assess (and if necessary, work to amend) the current proposed ABA guidelines.
On February 24, BCLBE hosted a lunch presentation featuring Eugene Ludwig, founder and CEO of Promontory Financial Group. In his talk titled "Financial Regulation in the Post Reform Era: Putting Dodd-Frank in Context," Ludwig shared his perspectives on the Dodd-Frank Act and other regulation efforts within the context of earlier cycles of crisis and reform.
He discussed what the changes mean for the evolution of the American regulatory model and the transformative potential of the financial services industry. Video> Read more>
Prof. Eric Talley comments on the proposed Comcast-Time Warner Cable merger, which has brought to light issues surrounding monopsonies: single, dominant buyers that create imbalances in price purchasing power. Because monopsonists exert considerable influence as dominant buyers, sellers are adversely affected and undermined. According to Talley, Comcast-Time Warner Cable’s defense of their deal will likely center around suppliers’ (like Netflix’s) extensive market power, and the cable companies’ ability to translate the merger into more bargaining power for its consumers.
With deep sorrow we share the news that our colleague, Prof. Suzanne Scotchmer, passed away on January 30. She joined the Berkeley faculty in 1986 and, despite many offers from other universities, Suzanne remained a devoted and deeply distinguished member of the Berkeley faculty for almost her entire professional life. Suzanne was a brilliant, internationally-renowned economist who made significant contributions to basic as well as applied theory in the areas of game theory, club theory, and patent law and incentives for R&D. She wrote more than 20 books, served as a consultant to the Department of Justice on antitrust, was a fellow of the Econometrics Society, and was highly sought after as a lecturer and speaker at universities across the globe. Read more>
Berkeley Business Law Journal has recently published a new Journal (Volume 10.2). This issue includes articles from practitioners and educators, including:
"Is Self-Regulation the Answer?" - Ian Peck, Kirkland & Ellis; "Charitable Insolvency and Corporate Governance" - Reid Weisbord, Rutgers School of Law; "The Law of Corporate Purpose" - David Yosifon, Santa Clara Law
Download the Journal here.
India's public distribution system (PDS) distributes subsidized food to India's poor. Reforms to the PDS in the state of Chhattisgarh have been lauded as a model for the National Food Security Act that other states can emulate. Prof. Prasad Krishnamurthy and two co-authors analyzed the impacts of these reforms on rice consumption in the state for the decade ending 2010. Their findings suggest that sustained reforms, when coupled with political and social will can improve access to food and other essentials through the PDS, but in the absence of such commitments, any PDS improvements may be insubstantial or unsustainable.
BCLBE received a cy près award to fund the launch of its Financial Literacy Education and Research Institute. The Institute will research, create, and implement consumer financial education programs that address the complex array of social, psychological, and economic factors that have historically limited efforts to improve consumer financial literacy. The diverse skills of the Berkeley Law faculty and the school's close affiliation with the East Bay Community Law Center uniquely position the Institute for success. Read more>
In a recent article, Profs. Aaron Edlin and Rebecca Haw contend that occupational licensing boards, which now license as much as one-third of the US workforce, operate in a manner similar to cartels, excluding competition and raising prices for consumers. Because licensing boards are created by the states, they have been considered exempt from antitrust scrutiny under the state action doctrine. A recent decision by the Fourth Circuit, however, allowed a suit by the FTC against a state licensing board, providing an opportunity for the Supreme Court to clarify doctrine in this area. The authors recommend that the Court allow antitrust action against state licensing boards whenever the boards are composed of industry competitors. Read more>
A great opportunity for Berkeley Law and Haas students to participate in a joint venture financing, structuring and drafting competition. The competition entails students being given a complex joint venture financing and structuring hypothetical case and being required to prepare a memo that responds to very specific questions that, to answer, requires the students to explore and understand the strategic, control and economic consequences of different joint venture structuring options. Details and sign-up information (first-come, first served) are here.
Michael Halloran, partner at Pillsbury law firm, has received the 2013 award of the State Bar of California Business Law Section’s Lifetime Achievement. Mr. Halloran is a nationally-recognized authority on corporate and securities law.
California has embarked on an aggressive path to reduce greenhouse gases through curbing the energy consumption of buildings. In September 2013, the CPUC issued a landmark rule allowing state public ratepayer funds to help finance energy efficiency improvements by building owners. One of the most innovative financing mechanisms authorized is a version of On-Bill Repayment financing (OBR) for single-family homeowners, allowing repayment of a private financial institution energy efficiency loan via the utility bill. To help California decision-makers, BCLBE Senior Fellow Lori Bamberger assembled the very first publicly detailed OBR Single-Family Financing Program Chart that compares operating decisions made in Oregon/Washington, New York, Kansas City, and South Carolina.
Ken Taymor recently co-authored a paper titled “Biosimilars And The European Experience: Implications For The United States.” Biosimilars, biotech medicines that can be marketed after their brand name counterparts lose patent protection, could help bend the health care cost curve. Although biosimilars have been available since 2006 within the European Union and are expected to save $15–$44 billion by 2020, the US FDA has yet to finalize the regulatory processes for their approval in the United States. The authors look to the European experience with biosimilars to inform how the US biosimilars market will develop once the FDA acts. Read more>
BCLBE was awarded a grant by the US Department of State to undertake a “Survey of Russian Law Obstacles to Innovation in Russia” in collaboration with the Higher School of Economics in Russia, one of that country’s largest National Research Universities. The joint project will survey Russian entrepreneurs, venture capital firms, university academics and others involved in innovation, research and development, to identify obstacles and lack of incentives in the current Russian Federation legislation that regulates innovation. Read more>
Private banks have been accused of deceiving consumers and investors, taking on excessive risks, and leaving taxpayers to foot the bill. The recent financial crisis and its aftermath have led some observers to ask whether we would be better off with a mix of public and private banks. Prof. Prasad Krishnamurthy discusses whether the Bank of North Dakota, a state-owned bank, could be taken as a model, and what the risks and implications the lending industry could face. Krishnamurthy believes that state-owned or public banks could play a useful role in stabilizing overall lending and mitigating some of the boom and bust cycle in credit markets. (Daily Journal, November 7, 2013 - registration required)
Prof. Stavros Gadinis weighs in on the legal crackdown in Wall Street's mortgage practices and the eventual pioneering use of the law Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). (NYT, October 30, 2013)
On November 8, Prof. Eric Talley hosted a group of students from Alternatives in Action High School, a college- and career-oriented charter school serving primarily students of color, non-English speakers, and those struggling with poverty. Talley gave an overview of legal careers, college admissions, and law school, and gave them a taste of the experience by engaging the students in a mock contracts class on a recent case filed by music producer Quincy Jones against the estate of Michael Jackson.
The recent government shutdown proved how vital it is for the US to reform its budgetary processes. Currently, budgeting differs from almost every other area of federal policy. When Congress and the President cannot agree on other kinds of legislation, existing law remains in effect. But with budget-making, there is no automatic default policy in the absence of congressional action, causing the government to stop functioning. In an Op-Ed piece for the LA Times, Prof. David Gamage and co-author David Louk propose ways to prevent government shutdowns, explaining that if lawmakers fail to agree on a budget, the previous year's spending plan should carry over until a new one is passed. Read more>
On October 19, Profs. Robert Bartlett, Eric Talley and Prasad Krishnamurthy participated in the University of Chicago’s Sloan Conference on Benefit-Cost Analysis of Financial Regulation. The conference explored whether government agencies like the SEC and CFTC should be required to comply with a benefit-cost analysis when they issue financial regulations and, if so, how that benefit-cost analysis should be conducted. Participants contributed their insights into how valuations of the benefits and costs associated with financial regulation can be calculated, or whether they can. Agenda>
The 2012 LIBOR scandal may prove to be one of the most significant events associated with the global financial crisis. In an attempt to inflate profits and appear creditworthy, banks misreported the interest rate they paid when borrowing from other banks. The scandal played out over two “phases”: (1) the distortion of LIBOR reports because of banks’ derivatives positions, and (2) the under-reporting of the cost of debt to avoid external scrutiny by regulators and watchdogs wary of banks’ credit risks. In, “Financial Regulation and the World’s Most Important Number: LIBOR Reporting Behavior during the Credit Crisis,” Prof. Eric Talley focuses on the second phase. He asserts that regulators’ and watchdogs’ reactions - and thus banks’ incentives to misreport - are most significant during episodes of economic crisis/uncertainty. Talley supports his thesis with theanalysis of daily LIBOR reports from 2006-2010. During this time, the data show that participating banks’ reported credit spreads relative to US treasury yields appear to "shrink" (not grow) during moments of heightened economic uncertainty.
On October 26, Profs. Robert Bartlett and Justin McCrary presented their paper “Shall We Haggle in Pennies at the Speed of Light or in Nickels in the Dark?" at the Empirical Legal Studies Conference in Philadelphia. Bartlett and McCrary demonstrated how recent proposals to modify the penny-based system of stock trading may have simultaneous and opposite effects on the incidence of high frequency trading and the trading of undisplayed, or "dark", liquidity. Agenda>
Prof. Robert Bartlett spoke on KCBS Radio about what he calls a "huge legal change" in securities law. Companies are now able to raise equity money without taking the IPO route. Listen to the interview>
Prof. Aaron Edlin recently released a new research paper titled "Activating Actavis," which provides an in-depth analysis of the Supreme Court's recent decision in FTC v. Actavis. You can download the paper here.
Prof. Eric Talley joins the BARBRI Legal Education Advisory Board. BARBRI formed the board to help the company analyze legal education trends and to identify potential solutions for industry challenges. Press release>
Berkeley Business Law Journal has been ranked the nation's top law journal in the discipline of commercial law by ExpressO, one of the top law review submissions companies. The 2013-2014 Submissions Guide has just been released, and can be viewed here. Congratulations to the students of BBLJ!
This year, 30 LL.M. recipients received a Certificate in Business Law from Berkeley Law, the only premier US law school that offers an LL.M. degree over two summers. The flexible curriculum includes business law, intellectual property, and core US law courses. The program is designed
for lawyers educated outside the US who want a renowned Berkeley Law
degree, but can’t leave professional commitments for an entire year. Graduates of this program become part of an exclusive network of lawyers from around the globe. Watch a video about the program.
Prof. David Gamage writes that key reforms are needed to prevent the Affordable Care Act from hurting low- and moderate-income workers. If not, he says businesses may shift some full-time workers to part-time and cut their salaries to circumvent the employer mandates.
The SEC passed a series of rules that would allow for easier and more accessible funding for startups. Prof. Robert Bartlett weighs in, saying that more platforms will emerge "that provide verification services for investors looking to invest in crowd-funded/angel deals." Read more>
In a recently-published LA Daily Journal article, Prof. Eric Talley weighs in on how the job market has changed over the years. Talley claims that the market is most promising for entering lawyers who have developed an appropriate skill set and who are less in need of rudimentary training while on the job.
Prof. Dwight Jaffee testified in Congress that the private market should relieve government-sponsored enterprises Fannie Mae and Freddie Mac of their role in guaranteeing against mortgage borrower defaults.
On June 4th, Prof. Robert Bartlett presented on the JOBS Act at the Graduate School of International Corporate Strategy at Hitotsubashi University in Tokyo, Japan.
Drawing on the diverse skills of the Berkeley Law faculty, BCLBE plans to create a Financial Literacy Education and Research Institute (FLER). The Institute will research, create, and implement consumer financial education programs that address the complex array of social, psychological, and economic factors that have historically limited efforts to improve consumer financial literacy.
Prof. Alan Auerbach writes about corporate tax law
and how it should be updated. He concludes, "US should tax corporate earnings based on where products are sold, not where firm is based." (NYT)
Prof. Aaron Edlin recently posted “The Role of Switching Costs in Antitrust Analysis: A Comparison of Microsoft and Google.” This analysis, co-authored by Robert Harris, addresses the common perception that Google’s current market position and conduct is comparable to Microsoft’s prior to the antitrust action brought against it by the Department of Justice in 1998.
After five years as general counsel of Facebook, Ted Ullyot is stepping down in July. "The timing of when someone leaves a job is almost never accidental," says Prof. Eric Talley. Ullyot's successor will have many legal issues to address, especially in regards to information privacy, Talley adds.
On May 15, Prof. Eric Talley was a panelist on ‘Regulatory Enforcement and the Judiciary,’ which examined the litigation engendered by the global financial crisis. The keynote was delivered by Judge Jed Rakoff, an outspoken critic of the use of settlements to resolve litigation against major financial institutions, arguing that they risk privileging the ‘facade of enforcement.’ The roundtable was hosted by the University of New South Wales.
Robert Bartlett's article, “Making Banks Transparent” (65 Vand. L. Rev. 293-386), has been included in this year’s list of the Ten Best Corporate and Securities Articles. The list is selected by an annual poll of corporate and securities law academics from a field of more than 550 articles published and indexed in legal journals during 2012. Bartlett argues that basic credit risk modeling combined with mandatory bank disclosures would help prevent another round of severe banking crises.
April 24, 2013. Justin McCrary will discuss the economics of safety and policing at Councilmember Schaaf’s Safe Oakland Speaker Series. McCrary will share findings from his recent study, “The Effect of Police on Crime: New Evidence from U.S. Cities, 1960-2010,” including a cost-benefits analysis of policing.
The Inspector General criticized the lack of public education about the IRS’s plans to garnish tax refunds for taxpayers who don’t purchase health insurance under the new Federal Affordable Care Act beginning in 2014. David Gamage weighs in.
April 16, 2013. Prof. Robert Bartlett participated in The JOBS Act: First Year Report Card. This roundtable, hosted by Nixon Peabody in San Francisco, discussed key points such as the effectiveness of the JOBS Act from legal, accounting, and investor perspectives. Bartlett's presentation is here.
April 11, 2013. Berkeley Law Chris Hammond '15 and Will Schildknecht '15 won the 2013 Halloum Negotiation Competition. The competition pairs teams to negotiate hypothetical M&A, financing, and technology licensing transactions. Teams are scored on their preparation, strategy and the outcome. The winners outlasted 48 other competitors to take home the championship and accompanying iPad minis. A big thank you to Skadden and Gibson Dunn, which sponsored the two week long competition.
The America Invents Act of 2011 (AIA) made extensive changes to U.S. patent law. Perhaps the most significant change goes into effect March 16, 2013 when the US changes from the current "first-to-invent" system to the more widely followed "first-to-file" (i.e., first-inventor-to-file) system. Eric Talley discusses the implications for the historic shift in US patent law on KPCC.org. Listen>
Thomas Brown, lecturer at UC Berkeley Law School and partner at Paul Hastings, has submitted a paper to the California State Assembly Banking and Finance Committee. The paper discusses the California Money Transmission Act and its effect on innovation in the payments industry. This includes background on the role that California has played in incubating new technologies for value exchange, the regulatory framework that governs the payment industry, issues that have arisen since the CMTA was last amended, and concludes with some thoughts about possible modifications to the CMTA that would address these issues.
Eric Talley recently joined a panel discussion on AirTalk (KPCC.org) on the implications for corporate governance of shareholder activism. This comes as Apple, PNC Financial Services Group and gun manufactures are each under pressure from activist investors. The panel examines the strategies of all the stakeholders and the history of investor activism. How do shareholder rights coexist or conflict with corporate interests? Should corporate governance be “shareholder-centric” or “board-centric?” Do these new tactics improve the bottom line? Listen to Talley's take.
Regarding tax fraud and identity theft in the Bay Area, David Gamage notes that it is "a risk of the technology age." Read more>
Energy Efficiency Retrofits for U.S. Housing: Removing the Bottlenecks, co-authored by Dwight Jaffee, Nancy Wallace, Ashok Bardhan, and Cynthia Kroll, evaluates the alternative mechanisms that could expedite energy efficiency retrofits for US housing. The paper considers the bottlenecks that hamper energy-saving investments for the residential sector, evaluates the state of the art with respect to scoring and assessment tools for energy saving investments and the On-Bill and PACE programs to facilitate secured loans, and it concludes with a series of proposals to overcome the bottlenecks. Read more>
Berkeley Law Negotiation Team Wins Top Award at Ninth Circuit Bankruptcy Competition. Third-year Berkeley Law students Yulia Buyanin, Cristiana Blauth Oliveira, and Charles Rogerson won top writing honors at the American College of Bankruptcy’s inaugural Ninth Circuit Negotiation Competition. Coached by attorney Suzzanne Uhland, they competed in mock negotiations involving a winery’s debt restructuring. The Berkeley Center for Law, Business and the Economy sponsored the team. The competition was held on the USC campus in Los Angeles, and involved 12 teams from major Western law schools as well as a panel of bankruptcy judges. The event had two components: the preparation of a written term sheet, and a live mock negotiation, both of which pertained to a debt restructuring for a financially distressed winery. The Berkeley Law team's hard work and preparation were amply rewarded, garnering them First Place in the written component of the competition ("Best Term Sheet"). Congrats to Yulia, Cristiana, and Charles. Particular thanks and congratulations go out to Suzzanne Uhland (O'Melveny & Myers), who was invaluable as the team's coach, working with them and challenging them throughout the process.
January 16, 2013. The Oakland Tribune. Prasad Krishnamurthy calls on Feds to restructure underwater mortgages by writing off debt in exchange for equity. Read more>
Stavros Gadinis’ latest article, “From Independence to Politics in Financial Regulation,” is forthcoming in the California Law Review. Gadinis’ work focuses on the intersections between finance and government regulation. This paper takes a global look at how governments reformed their “independent” financial regulatory agencies by making them more politically accountable after the 2007-08 financial crisis. Read more>