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Sales Suppression: The International Dimension
Get PDFSales transaction taxes are highly susceptible to technology fraud, which is an inevitable result of today’s widespread reliance on technology to document taxed transactions. Technology can be (and is) manipulated to defeat the collection of these taxes. Both the U.S. retail sales tax (RST) and the European value added tax (VAT) are vulnerable to technology-based fraud. This Article concerns sales suppression — intentionally not recording sales — in the RST, and at the final stage of the VAT, the retail stage, when tax is collected from final consumers.
The modern electronic cash register (ECR)/point of sale (POS) system is vulnerable to fraud. These devices are essentially computers with programming that is molded to meet the commercial needs of any particular business.
This Article will focus on a particular POS system called Profitek, manufactured in Vancouver by InfoSpec, which uses an MS SQL server, and can be purchased with a dedicated sales suppression device — the Profitek Zapper.
The cash register/POS market divides along database lines and the market further subdivides when attributes such as operator language preferences are considered. The market for POS systems is both niche and international, and so are sales suppression software applications. It is common, therefore, to find that the same person who sells an ECR/POS system is also able to provide the business with the zapper that can suppress sales recorded in that specific system.
An application that effectively manipulates the digital records of a specific POS system will quickly travel to other countries and states with the associated POS system for which it was designed.
This Article follows the InfoSpec/Profitek system and its associated zapper as it migrated from the Canadian restaurant market into the U.S. market
VAT Fraud Mutation, Part 2: CITIBank as a Transition
Get PDFThe first part of this paper considered traditional MTIC fraud (push MTIC) in CO2 permits. The fraud in that case (Dosanjh) was swiftly put down. The traditional design of the fraud did not mean it was “garden variety.”
Sweeping arrests in the early morning hours of August 19, 2009, followed by year-long imprisonment without bail for seven individuals suggest concern at the highest levels. The UK zero-rated CO2 permits on August 1, 2009 because of the Dosanjh case.
However, with Dosanjh out of commission who would step up and be the new supplier of CO2 permits if the “blue chip” companies that Dosanjh sold to were interested in continuing to purchase from fraudsters? Based on the size of its purchases from Dosanjh, CITIBank was the natural target for HMRC’s follow-up surveillance. The CITIBank case explores thee suppliers.
This part argues that the CITIBank is transitional. We are moving from Dosanhj’s push-type (or externally controlled) MTIC fraud, to a sustained pull-type (or economically controlled) MTIC fraud. The first of these mature pull-type frauds is considered in the final part of this paper, the Deutsche Bank case. The Deutsche Bank case cannot be fully understood without grasping what occurred in the CITIBank transition
\u3cem\u3eConscience Protection and Discrimination in the Republican Party Platform and Mississippi\u27s H.B. 1523\u3c/em\u3e, Religious Freedom Institute
Get PDFLast May, before the Supreme Court issued its landmark opinion in Obergefell v. Hodges,Cornerstone sponsored a symposium on “Responding to Indiana RFRA and Beyond,” which focused on Governor Mike Pence’s swift “fix” of Indiana’s RFRA, after protests and threats of boycotts, to clarify that it would “not create a license to discriminate.” Particularly controversial were provisions protecting the conscience of persons operating for-profit businesses. In that symposium, I observed that public discourse frequently referred back to the Civil Rights Act of 1964, because “many people relate the current battle over protecting conscience in the context of public accommodations to earlier opposition to ending racial segregation in public accommodations.” That historical reference point remains salient post-Obergefell, as calls for protecting religious liberty and conscience increasingly employ the language of protection against “discrimination,” as is illustrated in the recently-enjoined Mississippi law, H.B. 1523
Bankruptcy and Corporate Reorganization, Legal and Financial Materials, 4th ed.
No full textThis casebook for a basic bankruptcy course takes a deal-oriented finance approach to bankruptcy, with a focus on business bankruptcy. The student will not only learn the major elements of bankruptcy and corporate reorganization in chapter 11 of the Bankruptcy Code, but also the major facets of bankruptcy that influence financing transactions. The hidden message behind these materials is how to understand complex financial deal-making and how to integrate finance with law, in the context of bankruptcy.https://scholarship.law.bu.edu/books/1025/thumbnail.jp
Lead Plaintiffs and Lead Counsel in Deal Litigation
Get PDFThe shareholder lawsuit is the primary vehicle for enforcing corporate law. While closely related fields like securities regulation rely on private shareholder lawsuits to supplement the enforcement work of public regulators like the Securities Exchange Commission, corporate law enforcement depends largely on private rights of action brought by aggrieved investors and their lawyers. The purpose of these lawsuits is straightforward: to induce corporate fiduciaries like boards and managers to abide by the duties of loyalty and care in overseeing the corporation. There are many situations that implicate these fiduciary duties, but none that are as fraught with conflict and temptation as mergers and acquisitions (M&A). Not surprisingly, M&A generates a significant amount of litigation. This chapter assesses the evidence on a key facet of that litigation: the selection of lead plaintiffs and lead counsel
Beyond Lifestyle: Governing the Social Determinants of Health
Get PDFNon-communicable and chronic diseases have overtaken infectious diseases as the major causes of death and disability around the world. Despite recognition that reduction in the chronic disease burden will require governance systems to address the social determinants of health, most public health recommendations emphasize individual behavior as the primary cause of illness and the target of intervention. This Article argues that focusing on lifestyle can backfire, by increasing health inequities and inviting human rights violations. If States fail to take meaningful steps to alter the social and economic structures that create health risks and encourage unhealthy behavior, health at the population level is unlikely to improve significantly. Viewing the global health challenges from the perspective of human rights reveals opportunities for positive change in all sectors of governance. Explicit recognition of human rights can help refocus attention on the fundamental causes of health and protect individuals from unnecessary harm
(In)valid Patents
Get PDFIncreasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages award it had previously affirmed — because the PTO had since decided that the patent was invalid. The Federal Circuit reasoned that only “final” court judgments are immune from the effects of PTO review and, because of the open issue about royalties, no final judgment existed when the PTO rendered its conflicting decision on patent validity.
The Federal Circuit’s stringent conception of finality, which this Article terms the “absolute finality rule,” raises serious questions of judicial economy, fairness, and separation of powers. Among other things, it allows accused infringers multiple opportunities to defeat liability, permits an administrative agency to effectively nullify decisions of Article III courts, and incentivizes courts to abstain from hearing patent cases altogether, at least until the PTO reconsiders the patent’s validity. That said, some inefficiency or unfairness is inevitable when two different government bodies can evaluate the validity of the same patent, and the absolute finality rule, if nothing else, provides a relatively bright-line test. But it is not the only way to mediate disagreements between the courts and the PTO. This Article, in addition to identifying, describing, and critiquing the absolute finality rule, explores several other options for providing greater certainty about patent validity
After Tackett: Incomplete Contracts for Post-Employment Healthcare
Get PDFThis paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes that, at least for a while, conscious ambiguity was maintained because it was in the best interests of both parties. Only when the cost of providing the benefits became unbearable did the employer finally take advantage of the long standing silence and assert its right to modify the retiree health plan. Tackett sidelines the Sixth Circuit’s well known decision in Yard-Man as the Court insists upon the importance of applying traditional contract principles in these cases. This paper concludes that even without the favorable inference Yard-Man supplied, it is still possible (although not guaranteed) that the plaintiffs will meet their burden of proof on remand and hold onto their health benefits in retirement
Companies Should Reject Online Threats
No full textThreats of violence are not welcome on many social media platforms, and good riddance. People cannot engage in online discourse if they are under assault. Protecting against threats defends the freedom of targeted individuals, though it limits the expressive freedom of those making them. When companies take a stand against online threats, their message is clear: The liberty of threatened individuals matters too. Online threats that silence, terrify and coerce individuals do not deserve our solicitude
Moral Courage in Indigent Defense
No full textIn this essay, I take a different perspective, one that focuses on why people are able to act ethically despite pressures to do otherwise. Social science has convincingly demonstrated that the power of the situation can exert significant influence over individual behavior, thus undermining the claim that only “bad” people engage in unethical conduct.4 Yet, we know that there are individual differences to how people respond to ethical dilemmas, which raises a core question: why do some individuals act more ethically than others, even in similar situations?
To explore this question, I focus on a familiar domain from my past work—the well-known ethical challenges faced by defense lawyers who represent indigent clients in criminal cases.5 On the one hand, these defenders often work under extremely trying conditions, including persistent underfunding, excessive caseloads, and heavy pressure from judges who want to move cases quickly.6 On the other hand, none of these factors absolve lawyers from their ethical duty to provide competent, diligent, and conflict-free representation to each client.7 Much of the scholarship on indigent defense, including my own, has focused on mediating these competing forces, which often turns into a discussion on why professional obligations are honored so often only in the breach.
...That said, the purpose here is to look beyond anecdotes of individual cases to see whether a more systematic answer can be gleaned from the available social science on why people, such as Brian Jones, tend to act ethically in the face of pressure to the contrary. The phenomenon, which is often called “moral courage,” has been the subject of growing academic study.15 And while the research conclusions in this area are still preliminary, the early findings can be useful when considering why some lawyers resist the temptations against subpar performance, and what can be done to encourage greater acts of moral courage by others.
To engage this inquiry, this essay proceeds in three parts. Part I briefly reviews the types of risks that defense lawyers often face when they seek to meet their ethical duties, focusing on how the duty to maintain manageable caseloads conflicts with the realities facing most defense lawyers who represent the poor. Part II turns to the current state of the research on moral courage. Part III considers the research implications that might be the most useful in considering how lawyers can meet their ethical duties to their clients