CABLJ Forum

The Corporate and Business Law Journal Forum is a companion to the Corporate and Business Law Journal. It features short responses to scholarship and comments on legal news.

We welcome submissions from professors, practitioners, judges, legislators, and law students. Submissions should be a minimum of 500 words. Each submission is subject to similar editorial standards as the articles published in the Journal.

FINDERS KEEPERS, LOSERS WEEPERS? BANKING ERRORS IN CRYPTOCURRENCY

By: Raynee Cooper

In February 2021, a New York federal judge rejected Citibank’s attempt to recover $504 million erroneously transferred to lenders. Citibank intended to make a loan interest payment on behalf of Revlon, Inc., but instead paid the full outstanding amount of $900 million. Some recipients returned the money, but $504 million remained unreturned and the contention of the case. The court relied on Banque Worms v. Bank America Int’l, 77 N.Y.2d 362 (N.Y. 1998) which held that a creditor can keep payment erroneously made by a third party if the creditor did not realize it was sent in error and did not make any misrepresentations. Here, the court determined that the lenders were not on constructive notice of Citibank’s error. Despite this ruling, Citibank argues that they are entitled to their funds and intends to appeal the court’s decision.

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AMAZON PRIME TIME FOR COLLECTIVE BARGAINING

By: ANNA SASAKI

Vote counting is underway for the biggest push towards unionization of Amazon employees since the company’s founding in 1995. 6,000 workers in Bessemer, Alabama voted on a collective decision as to whether the warehouse employees should formally unionize and bargain for a contract with Amazon through the Retail, Wholesale, and Department Store Union. The last attempt to unionize was in 2014 at an Amazon warehouse in Delaware, where the 30 workers ultimately turned it down. While the employees in Bessemer only represent a fraction of Amazon’s more than 500,000 front line workers, the decision to unionize will likely provide momentum for other Amazon employees to begin collectively bargaining.

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LIGHTS OUT FOR VARIABLE PRICING?

By: Tim Hamilton

In February 2021, Texas experienced extraordinary winter weather for four days. As a result of the freezing temperatures, Texans faced rolling blackouts across the state. Current reports estimate that over sixty percent of Texans lost power at some point during the winter storm. Public outrage was severe, and lawmakers vowed to pass new regulations to ensure the power supply will not be impacted by winter weather again. Other states will certainly study what went wrong in Texas to ensure their electric grid is able to withstand winter weather.

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BITCOIN ETFS: IS THE SEC READY FOR CRYPTO?

By: Malcom Giles

Recent filings with the U.S. Securities and Exchange Commission (SEC) may soon provide investors the opportunity to gain exposure to bitcoin without needing to custody the digital asset, allowing investors to execute trades through their existing brokers. A New York-based investment firm, Skybridge Capital, joined several other companies in filing for bitcoin ETFs in recent months. Several major financial services firms submitted applications in the hopes of offering bitcoin ETFs, including Morgan Stanley, Fidelity, and VanEck. While many of these firms filed to offer the ETFs, none completed the process by filing the requisite 19b-4 form needed to kick off the SEC review process until recently. The investment management company Van Eck Global recently filed the 19b-4 form, which kicks off a 45-day review period where the SEC has to decide whether to approve the application. If the SEC approves the ETF application, investors would be able to participate in this new digital asset class without having to endure the process of setting up digital wallets or transferring portions of their investment portfolios onto complicated crypto exchanges. Theoretically, if approved, investors could buy and sell bitcoin investments much like traditional stocks.

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BOY SCOUTS OF AMERICA SEEK POSSIBLE REFUGE IN DELAWARE BANKRUPTCY COURTS

By: Monya Cohen

Due to the magnitude of sexual-abuse lawsuits filed by numerous Boy Scouts of America (“BSA”) adversaries, from both former and current Boy Scout members, BSA filed for Chapter 11 bankruptcy earlier this year. BSA is an extremely complex organization with several different levels of business, including an array of local councils that have charters through the BSA that run the day-to-day operations of the organization. For that reason, BSA poses one of the most complex financial restructurings in history. BSA has an estimated 275 lawsuits pending in state and federal courts asserting abuse-related claims against them. In addition, there are more 1,400 survivors with “to-be-brought” claims, and as a result, drove BSA to file for bankruptcy to determine survivor’s damages, as well as keep the organization running without completely dissolving it

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SHIFTING TIDES: HOW THE AMERICAN RESCUE PLAN ACT OF 2021 PROVIDES FUNDING FOR THE BUSINESS SECTOR

By: Grace Diamond

President Biden signed the American Rescue Plan Act (“Act”) into law in early March 2021 promising impactful relief for many Americans from the coronavirus pandemic. The Act provides fourteen hundred dollar checks and an extension of unemployment benefits to eligible Americans. More substantially, the Act provides tens of billions of dollars of aid for businesses. But who is actually covered, how does this relief Bill differ from prior pieces of legislation and what does it mean for business owners across the country? Essentially, this Act, unlike its predecessors, is narrowly tailored towards specific industries and begins phasing out generally available relief funding for the business sector.

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PRUNEYARD AND THE “REVOLVING DOOR”:THE GROWING CASE TO HOLD BIG TECH COMPANIES LIABLE FOR ABRIDGING THE FREEDOM OF SPEECH

By: Parker Jackson

It is well known that the First Amendment protects the freedom of speech. Many understand that traditionally the prohibition on abridging freedom of speech applied only to the federal government (“Congress shall make no law…”). Some are familiar with the 14th Amendment and its doctrine of incorporation, which imposed most of the restraints of the Bill of Rights on the states. Few, however, know that the Supreme Court has held that the ban on abridging the freedom of speech can sometimes extend to private actors as well.

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TECH COMPANY’S BATTLE ANOTHER SYMPTOM OF COVID-19 AS STATES LOOK TO RECOUP LOSSES

By: JACE RILEY

Maryland recently overruled the Governor’s veto to enact a gross receipts tax on digital advertisement revenue to help earn back some of the lost profits due to the COVID-19 Pandemic. However, tech companies are quickly challenging the tax as unconstitutional. While Maryland’s tax specifically targets digital advertisements, states across the country are looking at many ways to make back some of the lost revenues stemming from the virus.

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