Discovery in a lawsuit, at its core, is about finding the truth.[1][2] Due to the explosion of electronically stored information (“ESI”), discovery costs have become extreme.[3] Before ESI, discovery was lawyers sitting around in a room with boxes of paper. Now, it’s millions, if not billions, of pages of documents on a computer. The cost of discovery alone is staggering; and it shouldn’t be.[4] This blog has updates on the law surrounding ESI, which is essential for companies to understand because even good faith missteps resulting in the destruction of ESI can prove costly and, in some instances, irreversible This…
Author: Michael A. Hurckes
I. Introduction[1]* In 1997, a financial contagion swept through the banking system in Southeast Asia, causing a credit crisis and initiating a worldwide economic slowdown.[2] The then-dubbed “Asian flu”[3] threw financial markets as far as the U.S. into a frenzy, even causing the New York Stock Exchange (NYSE) to activate its “circuit breaker” rules for the first time, and to temporarily close the trading floor in an effort to curb panic trading.[4] For the first time since 1997, the NYSE circuit breaker protocols were again activated this March. They were activated four times.[5] The coronavirus pandemic has wreaked havoc through…
I. Overview This blog does not serve as a critique of the Coronavirus Aid, Relief and Economic Security (“CARES”) Act or the U.S. bailout packages from 2008 through 2009. Instead, this blog seeks to highlight and explain key economic provisions of the emergency funding in response to the 2008 financial crisis and the ongoing financial crisis resulting from COVID-19. Setting aside the debate of which institution was responsible for the 2008 financial crisis, the bank bailouts served the essential purpose of providing credit to the mainstream economy.[1] The mainstream economy then was no different from the economy today. It included…
As the country and world experience the COVID-19 pandemic,[1] corporations such as Amazon are thriving.[2] In the words of Vice President Mike Pence, “[the United States will] work in partnership with the private sector, but where an emergency exists—and it’s very important that we get to the bottom line and quickly—we will do what we have to do and immediately exercise all available lawful authorities to get the job done.”[3] It is exciting to see private industry coming to the rescue as called,[4] even when a public partnership is not required and private industries rise to the occasion. Where many…
American antitrust policy has been described as “one of the most successful U.S. exports.”[1] The past two decades saw substantial convergence between the competition regulation regimes of the U.S. and European Union, particularly in merger enforcement and overall policy goals.[2] Though the European Commission and EU member states arguably led the way, recent years have seen both jurisdictions closely scrutinizing both the data processing practices and market dominance of Google and Facebook.[3] The first question is whether these two inquiries should be combined, that is, whether data policies can potentially harm consumers and competition. If that is the case, the…
The creation of the Qualified Opportunity Zone (“QOZ”) was an important part of the 2017 tax reform program. While the majority of media attention focused on the corporate and personal tax cut portions of the act,[1] the overlooked QOZ provision also offered a significant change to the tax code. Originally authored by Senator Tim Scott (R-SC) as a separate piece of legislation,[2] QOZs are envisioned as a means of increasing financial investment in distressed communities across the country.[3] A recent increase in investment activity related to QOZs has also spurred increased media attention. Last year, President Trump included a reference…
For the past seven decades, international investment agreements (IIAs) between nations have been viewed as one of the most successful aspects of international commercial law.[i] In short, IIAs are investment treaties that two or more countries agree upon, which then provide specific protections and privileges to private investors. As a result of IIAs, billions of dollars have been invested into foreign states by various private entities – which has led to increased trade, stimulated economic development, and even marked improvements in foreign relations.[ii] But with these fairly clear benefits, some drawbacks have also emerged behind the scenes that have revealed…
Just about everyone in a big city knows a tenant and/or a landlord. If you are fortunate enough, you are either one. In fact, being a tenant in a big city is a rite of passage for many, regardless of the cost of rent or the mind broadening experience of having your bed a few short feet away from your refrigerator. On the other hand, despite the common criticisms frequently offered against landlords, the position is a source of income across a wide range of socioeconomic classes and not all criticisms are necessarily true of all landlords. Landlords are in…
The prohibition against insider trading is a judge-made law that has evolved for over fifty years, and has reached a critical impasse in two recent decisions in the Second Circuit Court of Appeals: United States v. Newman and United States v. Martoma. Judges of the Second Circuit are sharply divided over what conduct constitutes improper trading on material nonpublic information (“MNPI”), leaving the law in profound disarray. At bottom, the disagreement stems from a decades-old split within the judiciary about how to (1) ensure a fair securities marketplace, while (2) enabling institutional analysts to probe for corporate information in…
For decades, changing technology and policy choices have worked to fragment securities markets, rendering them so dark that neither ownership nor real-time price of securities are generally visible to all parties multilaterally. The policies in the U.S. National Market System and the EU Market in Financial Instruments Directive— together with universal adoption of the indirect holding system— have pushed Western securities markets into a corner from which escape to full transparency has seemed either impossible or prohibitively expensive. Although the reader has a right to skepticism given the exaggerated promises surrounding blockchain in recent years, we demonstrate in this…