Current Issue

VOLUME 3, ISSUE 2

Published July 29, 2022

 

Articles

 

ARE VOCATIONAL EXPERTS NECESSARY FOR THE DEFENSE? A RATIO BELLICA FOR THE FORENSIC ACCOUNTANT TO INCLUDE VOCATIONAL HYPOTHETICALS IN ECONOMIC DAMAGE ANALYSIS

James A. DiGabriele & Victor Nicholas A. Metallo
 

This Essay presents a novel solution to an overlooked question as to the most efficient way to present forensic accounting testimony for economic damages. Oftentimes, parties in a case employ forensic accountants to determine economic losses. But questions arise as to how a party who claims economic damages may have a duty to mitigate damages. Vocational experts are used to present possible employment alternatives in light of a plaintiff’s medical injuries. This Essay posits the forensic accountant is in the best position to serve both functions: projecting economic loss and vocational alternatives. It also presents the conclusions of various studies as to how courts weigh a forensic accountant’s credentials and projects how judges might view a forensic accountant who also serves as a vocational expert. This Essay will aid legal professionals in decerning how to employ a forensic accounting expert and perhaps spark community dialogue as to what constitutes “best practices” in this area.

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TO RELEASE OR NOT TO RELEASE? AN EXAMINATION OF NONDEBTOR RELEASES IN THE CONTEXT OF COMPLEX CHAPTER 11 BANKRUPTCY FILINGS

Jennifer Kellner
 

Several complex and high-profile Chapter 11 bankruptcy filings, such as the filing of Purdue Pharmaceuticals and USA Gymnastics, have called into question the validity of nondebtor releases in the context of approval of Chapter 11 reorganization plans in consideration of the tenets, principles, and goals set forth in the Bankruptcy Code. Nondebtor releases provide an additional challenge in the context of complex Chapter 11 Reorganizations as they release claims against “related entities and persons” who have not filed for bankruptcy protection themselves. The recent high-profile bankruptcy filing of Purdue Pharmaceuticals has generated particular and considerable scrutiny into the validity of such releases and when, if ever, nondebtor releases should be provided and approved. The Purdue Pharmaceuticals case presents compound issues surrounding the discretion of bankruptcy judges in balancing the cost of ongoing litigation with the release of nondebtor liability in the context of the opioid epidemic, one of the deadliest drug crises in American History. This note analyzes how the lack of uniformity in the treatment of nondebtor releases is inherently problematic, forcing bankruptcy judges to use their broad, discretionary powers without clear guidelines promulgated by the Bankruptcy Code and without a coherent consensus on whether the standards for nondebtor releases apply differently in complex Chapter 11 Reorganizations, especially those involving salient issues of public policy and health.

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SHAREHOLDER LITIGATION IN BRAZIL: THE OVERLOOKED ROLE OF RESCISSION LAWSUITS

André Elias Schwartz
 

Brazilian corporate law enforcement is widely held as ineffective. This perception stems from the stated dearth of derivative suits in the country, even though little is known about how shareholder litigation plays out in practice. Against this backdrop, comparative studies on the subject argue that, in jurisdictions where derivative suits are rare, shareholders often resort to lawsuits aiming to invalidate general meeting resolutions to address grievances. Considering this scenario, this article presents a close examination of shareholder litigation in Brazil by surveying precedents from the Court of Appeals of São Paulo between 2015 and 2020. It reveals that, following the experience of several other civil law jurisdictions, the rescission suit is the main judicial remedy sought by shareholders in the country. It also shows that, more often than not, rescission suits are judged in favor of plaintiffs, even though they still leave gaps in investor protection. By shedding light on this reality, this article unveils the dominance of rescission suits in judicial corporate disputes in Brazil and offers further support to the OECD’s existing recommendations to strengthen the country’s legal framework for derivative suits.

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IN SUPPORT OF SUPERVISORY GUIDANCE

Todd Phillips
 

The role and appropriateness of bank supervisory guidance is widely misunderstood. Some have argued that supervisory guidance is used in lieu of notice-and- comment rulemakings, binding banks to policies on which they had no opportunity to comment. This claim, however, misunderstand that the Federal banking agencies have wide latitude to interpret and apply the banking statutes during examinations and that guidance serves to narrow the universe of possible enforcement actions regulators may take while simultaneously providing regulated entities predictability. This essay argues in support of and encourages regulators to issue bank supervisory guidance, placing it within the administrative law framework governing bank examinations. It also discusses supervisory guidance’s benefits to banks, examiners, and the public. This essay concludes by arguing that the banking agencies should not be concerned that Congress may use the Congressional Review Act to overturn their guidance.

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