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In Vogue Again: The Re-Rise of SPACS in the IPO Market
Get PDFIf the capital markets described the year 2020 in a few words, it would certainly be Special Purpose Acquisition Company (SPACs), which - although to a different extent - are now gaining momentum on both shores of the pond. While, in the United States, SPACs are really enjoying a new lease on life due to the pandemic, the outlook seems positive in Europe too, although data are not comparable to those registered across the Atlantic. This article focuses on SPACs in the United States prior to the COVID-19 pandemic (between January 2010 and December 2019), in order to understand their structural changes over the years and the grounds for their recent resurgence. First, the article aims to identify the length and profitability of such an investment phenomenon and also understand the behavior of institutional investors in this context. Second, the article analyzes the possible investment shifts in the sector of SPACs, driven by the 2020 post-COVID bubble, relying on data retrieved from different providers and players, and specifically focusing on three main concerns: the increasing litigation phenomenon, the (resulting) increase in Directors and Officers (D&O) insurance costs, and the engagement of Private Investment in Public Equities (PIPEs) as guarantors of the soundness and of the successful outcome of the transaction. The results of this analysis may lead to several considerations and wide-ranging policy implications. But most importantly, they reasonably prompt the belief that U.S. SPACs will hold a foreground role in the near future, not plunging back into the shadows (or even worse into the darkness that they had been living in for years), especially if some disclosure tools, like the one suggested here with regard to their sponsors, are implemented. Moreover, SPACs will certainly be able to update and evolve for good, as they have shown themselves capable of doing in the past, thus, overcoming the problems and perplexities they raise. “Faced with unforeseen circumstances, a change of mindset is as necessary in this crisis as it would be in times of war. […] The cost of hesitation may be irreversible.” — Mario Draghi, We face a war against coronavirus and must mobilise accordingly, FIN. TIMES, Mar. 25, 202
Walking Between the Lines: Why the Wright Line Standard is Not Always Applicable While Employees Demand Safer COVID-19 Working Conditions
Get PDFBefore the National Labor Relation Board’s (NLRB) July 2020 decision in General Motors LLC and Charles Robinson, employers faced difficulty in disciplining employees that engaged in protected activity under the National Labor Relations Act (NLRA) when their behavior was abusive. However, this changed after the NLRB adopted the Wright Line standard in General Motors, a burden-shifting analysis that gives employers the opportunity to prove that the employer would have taken the same action even without the NLRA protected activity. Compared to the NLRB’s prior standards, this standard offers employers a clear-cut defense and the ability to adhere to discrimination laws and their workplace policies, but it is too broad in that it does not recognize the heightened emotions of employees during turbulent working conditions. This is an especially prevalent concern during the COVID-19 pandemic, where employees must advocate for themselves as they face several setbacks including: lack of assistance from the Occupational Safety and Health Administration, difficulty in receiving workers compensation or inability to take off work after contracting COVID-19, and fear of not receiving unemployment benefits on time. This Note seeks to establish that by creating per se unprotected categories of behavior, which include conduct that is offensive to a protected class or conduct that could reasonably lead to violence, employers can use these unprotected categories as a defense when the burden shifts to them in the Wright Line analysis. Such a tactic would also eradicate employees’ fears of being disciplined for passionately advocating for their rights in a manner that may be considered offensive, but not to the same degree as the per se unprotected categories
Fit for Its Ordinary Purpose: Implied Warranties and Common Law Duties for Consumer Finance Contracts
Get PDFThe Gatekeepers of Research: Why a Data Protection Authority Holds the Key to Research in the New York Privacy Acts
Get PDFBiometric data is among the most sensitive of personal data because it is biologically tied and unique to the individual. Nonetheless, biometric data is an invaluable facet of the research that enables progressive scientific, technological, and medical innovation. Because a comprehensive federal data privacy act does not appear to be on the horizon, the torch has been passed to the states to create their own personal data protection regimes. New Yorkers’ personal biometric data is not aptly protected, partially because neither the New York Privacy Act nor the Biometric Privacy Act (collectively, the NY Privacy Acts) have matured to the point of becoming a legislative reality. This note seeks to establish that the NY Privacy Acts, while necessarily restricting data processing practices by businesses that endanger the consumer, fail to clearly define research and the boundaries of a sufficient research exemption from mandated erasure. To protect New Yorkers’ biometric data while simultaneously maximizing the benefits of biometric data to research, this note proposes that the New York legislature should amend the NY Privacy Acts to include a tripartite definition of “research,” inspired by the definitions of the General Data Protection Regulation, the California Consumer Privacy Act and California Privacy Rights Act, with a reasonable degree of added reverence for the “open science” concept. Finally, the New York legislature should mandate the imposition of both a data protection agency and a biometric data subcommittee that would ensure compliance with the elevated privacy standards required for biometric data while determining appropriate exemptions for research, thereby serving as the gatekeepers for research in the Empire State. Without these gatekeepers, New York would be locking up research and throwing away the key
Last Rights: A Theory of Individual Impact
Get PDFTitle VII recognizes both individual and group disparate treatment claims, which allege intentional discrimination. But Title VII recognizes only group claims for disparate impact. Conspicuously absent are claims for individual impact. The reason for the absence of an individual-disparate-impact claim is a problem of proof. To establish a Title VII claim, a plaintiff must prove that he or she lost a job opportunity was “because of” membership in a protected class. Showing that a single individual lost a job opportunity because of a test score, resume evaluation, or interview does not prove that any of these selection criteria unlawfully discriminated within the meaning of Title VII. A plaintiff would seemingly need a statistical basis to prove that one of these selection criteria would discriminate against the protected class in question. But an individual plaintiff faces the problem that the relevant sample size – perhaps only one – may be too small to support a meaningful inferential statistic. This observation casts doubt on the viability of individual-impact theory. If a group-based statistic is necessary to prove an individual’s case, then no independent theory of individual impact seems tenable. A feasible solution to this problem comes from the framework announced in McDonnell Douglas v. Green. Applied currently to disparate-treatment cases, this ingenious three-step burden-shifting framework provides a means of inferring intent absent direct evidence. If suitably adapted, this framework provides a means to sidestep the difficulty in developing a statistical basis for an impact claim and would permit an inference that an employment practice has a discriminatory impact on a protected class. This approach would rescue individual-impact theory from the dead zone that it now occupies. Such an approach would bring significant benefits. Deserving plaintiffs, previously denied judicial recourse, would have a viable claim. By broadening Title VII protections, such claims would deter employment discrimination. Perhaps most important, such claims would hold employers accountable for unconscious bias that might otherwise escape detection
Voice Shoppers: From Information Gaps to Choice Gaps in Consumer Markets
Get PDFRecent years have seen exponential growth in the use of voice shoppers – artificial intelligence–based algorithms installed on digital voice assistants, such as Alexa and Google Assistant, that buy products based on verbal requests received from consumers. This game-changing switch to semi-automated shopping is shaking up markets by reshaping consumer–supplier relationships, as well as the business models of suppliers and search services. Voice shoppers benefit consumers by offering speedier and more sophisticated transactions while reducing search and transaction costs. At the same time, consumers’ voluntary delegation of their search powers and product selection creates what we call a “choice gap,” wherein the voice shopper chooses the product to be offered to the consumer. This gap is distinct from the commonly recognized information gap, which exists when suppliers possess more information than consumers. The choice gap might create a misalignment between consumer preferences and the products actually sold, which harms consumers as well as the function of markets. Yet market forces cannot be relied upon to remedy this market failure. Despite the significant consequences of this market failure, the negative effects of the choice gap are currently undertreated. Consumer protection and antitrust laws are ill-suited to the task. To remedy this, we suggest that transactions conducted by voice shoppers be reviewed under agency law. Agency law enables the application of fiduciary, performance, and information duties that protect consumers’ interests in the transaction, rather than consumer choice. Such duties can reduce the choice gap, improve consumer welfare, and restore market performance. Our findings and suggestions have relevance well beyond voice shoppers, for technologies which completely automate consumer choice without any human involvement, which are the future of commerce
If You Can’t Beat Them, Get Even: A Proposal to Level the Playing Field Between Social Media Platforms and Their Wrongfully Removed Users
Get PDFMillions of individuals in the United States maintain both personal and business accounts on social media platforms, a handful of which dominate the market for online content. However, if one of these platforms removes an account without cause, the affected user has little recourse because most platforms’ Terms of Service contain clauses allowing them to terminate user accounts for any reason. Nevertheless, as the power imbalance between platforms and users grows, scholars and judges are starting to believe that there is a need for greater regulation of these platforms. This note explores the ramifications of the social media regulatory gaps for users whose accounts are terminated without cause. Such users may suffer serious financial harm if they use the platforms to advertise or monetize their content, as well as emotional damage relating to the loss of content in which they had invested for years. While platforms used Section 230 in the past to escape liability, in recent years, users have increasingly been able to move their cases past the initial motions to dismiss on breach of contract theories. That said, there is no consistent standard for US courts to use when they encounter users suing platforms for wrongfully terminates accounts. This note posits that a legislative solution be enacted to provide a singular standard to assess such claims. The proposed law will prevent social media platforms from making arbitrary decisions regarding user accounts by requiring them to document the reasons for removing an account and hold them accountable as algorithms play a larger role in the way that platforms monitor content. By removing platforms’ unilateral right to terminate accounts without cause, this solution will help address the ever-growing power gap between platforms and their users