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Forrest v. Meta
Full text linkDEFENDANT META PLATFORMS, INC.’S NOTICE OF MOTION AND MOTION FOR CERTIFICATION UNDER 28 U.S.C. § 1292(B) OF THE COURT’S ORDER GRANTING IN PART MOTION TO DISMISS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREO
VENTURE CAPITAL CULPABILITY: POTENTIAL LIABILITIES FOR VENTURE CAPITAL INVESTMENT OF FRAUDULENT PORTFOLIO COMPANIES
Full text linkDue to the possible detrimental effects of broadening liability for venture capitalists, any change would need to balance the dangers of limiting economic growth with the public policy motives of protecting shareholders. An expansion of securities law in Section 10b and Rule 10b-5 could open venture firms to liability as aider-abettors to securities fraud, specifically when venture firms continue to offer financial or directional assistance after having reason to know of securities fraud by their portfolio companies. Additionally, stricter examinations of agency relationships and director duties that are required from venture firm partners that sit on portfolio boards could see liability imposed via this secondary theory. While venture firms continue to invest billions and make even more, shareholders and consumers suffer in the wake. Courts need to draw the line and hold the negligent actors accountable
GUNS, ABORTION AND COURTS
Full text linkThe Supreme Court decided both Dobbs v. Jackson Women’s Health and New York State Rifle v. Bruen in June 2022. Bruen involves gun rights and incorporation doctrine. Dobbs addresses abortion rights and substantive due process (SDP). However, the doctrinal distinction between SDP and in- corporation is untenable. Both doctrines are rooted in the Four- teenth Amendment Due Process Clause; neither finds support in the text or original understanding of the Fourteenth Amend- ment.
The Court applies the same historical test for both SDP and incorporation cases to determine which rights the Due Process Clause protects. Both doctrines address legal issues where states traditionally enjoyed broad autonomy. The Court’s his- torical test fails to provide a principled justification for the cen- tral feature of both doctrines: the decision to replace a consistent historical tradition of state autonomy with a new federal con- stitutional rule that mandates national uniformity.
Before WW II, the Court treated SDP and incorporation as a single doctrine; it invoked natural law to justify that doctrine. This article contends that natural law provides the only theo- retically coherent rationale for the doctrine. The article defends a natural law test linked to the human rights principles in the Universal Declaration of Human Rights.
The human rights (HR) test offers three main advantages over the historical test. First, the HR test is more compatible with the constitutional principles of dual sovereignty and legis- lative primacy. Second, the HR test is less subjective and less prone to manipulation than the historical approach. Third, the natural law, HR theory provides a principled justification for the decision to replace a historical tradition of state autonomy with a uniform, federal constitutional rule. Under the HR test, the right to bear arms does not qualify as a fundamental right. In contrast, there is a plausible argument that a woman’s right to terminate her pregnancy is a fundamental right, but that ar- gument is not a slam dunk
UNRAVELING THE DISGORGEMENT REGIME
Full text linkDisgorgement is a legal remedy requiring those who gain from illegal or wrongful acts to give up any profits they made as a result of that conduct. The current state of disgorgement is uncertain, marked by rising tension between limitations in recent Supreme Court jurisprudence and newly enacted statutory authority granted to the Securities Exchange Commission (SEC) by Congress. Problems emerging from this regime threaten to render adjudication of disgorgement actions ineffective and inconsistent, potentially damaging the integrity of the financial system and eroding public trust in the markets. A comprehensive legislative framework is needed to fill in the gaps; one that firmly delineates the bounds of the disgorgement remedy and also sheds light on its ambiguities.
This note paints a full picture of the pertinent legal landscape. In doing so, the intricate knots tying the Supreme Court’s Liu v. SEC opinion to the text of 15 U.S.C. § 78u are unraveled and disgorgement’s duality as equitable and statutory is revealed. In light of the apparent bifurcation, this note proposes additional legislation on the matter in order for litigation to meaningfully move forward under a single theory in future SEC enforcement actions. Setting aside uncertainty on this topic is necessary as disgorgement awards have made up the largest monetary recovery in recent years. With clearer guidance from this legislative framework, the SEC’s time and resources can be more effectively utilized in educating Main Street investors rather than spent on litigation
