Author Archives: Victor N. Metallo, MAE, MBA, MLIS, JD

Court Narrows Jurisdiction in Foreign-Bribery Cases

Posted by Brianna McCoy. 

In the very end of August of this year, 2018, a court ruling involving the FCPA could potentially limit the government’s power to go after foreign companies and individuals in bribery cases. This type of court situation is dealt within the U.S. appeals court. The appeals court supported a ruling that tightens and limits the jurisdiction under which prosecutors can bring foreign bribery charges. Attorneys involved in this ruling recognize that “affirming a lower-court ruling that dismissed conspiracy charges against a foreign national accused of facilitating a bribery scheme could have a significant effect on future enforcement,” (WSJ Samuel Rubenfeld). This statement demonstrates the limits of the Foreign Corrupt Practices Act (FCPA). The FCPA was passed in 1977, with the primary purpose to prohibit the payment of bribes, in any form, to foreign officials in order to secure or retain business. It is interesting how this act is for business purposes by American individuals, companies, and issuers of American stock, yet if a foreigner is involved in a corruption scheme while in the U.S. they are also subject to the law.

However, now that there is a narrower view of this statute, the Justice Department is going to see a drawback on their ability to go after foreign companies and foreign individuals. You may wonder where this idea is coming from… This appellate decision is focused “on an individual’s challenge in the foreign-bribery case involving Alstom SA. The French transportation manufacturer agreed in December 2014 to pay $772 million to settle the case, which involved allegations in several countries,” (WSJ Samuel Rubenfeld). Several other people have been charged, one being Lawrence Hoskins, a U.K. national. Hoskins was probed because while he was working for a French unit of Alston, it was alleged that he approved payments to third-party consultants related to a bribery scheme in Indonesia. Luckily for Hoskins, he wasn’t subject to the FCPA because he “didn’t work directly for the U.S.-based unit of Alstom and didn’t participate in the bribery conspiracy while physically in the U.S.” However, the appellate court revised this lower court ruling because prosecutors can argue that Hoskins colluded with the Alstom’s employees while they conducted bribery acts in the U.S., even though Hoskins wasn’t physically in the U.S.

Now, the Justice Department is “reviewing the ruling and considering next steps.” By doing this, questions may come up about whether the U.S. has jurisdiction in an FCPA case earlier in an investigation. In the past, it has been uncommon for an individual to challenge the U.S. government’s affirmation in jurisdiction in an FCPA case, but the appellate decision could provoke more attempts to do so. Because in the past these FCPA settlements have relied on conspiracy theories, now prosecutors will turn toward developing evidence regarding conduct in the U.S. by foreign nationals to bring its FCPA cases. In addition to this, the government may continue its tendency of using money-laundering statue where necessary.

Brianna is a management major at the Stillman School of Business, Seton Hall University, Class of 2021.




SEC vs Elon Musk

Posted by Dan Mikrut.

Who knew that typing 280 characters could turn into a $40 Million dollar law suit. This is the cold reality in the case of the SEC vs. Elon Musk. On September 27, 2018 the SEC filed securities fraud charges against Elon Musk, the chairman and CEO of Tesla Motors. On August 7, 2018 Mr. Musk stated in a Twitter post “Am considering taking Tesla private at $420. Funding secured.” According to the SEC, his statement mislead the investing public that he could take the company back at a substantial premium during the current price of the company stock. The information was noted as misleading and false because they lacked any basis in fact. During the time of the tweet Musk had not received or secured funding for the proposed transaction. The stock price of Tesla ended up sky rocketing to $379.57 an increase in $37.58 a share within 24 hours of the tweet going public to Musk’s 22 million twitter followers.

Musk’s questionable actions lead to some serious consequences. The SEC and Musk had settled the case on September 29, 2018. Musk had to abide by 4 main points.

1. Musk must give up being Chairman for 3 years, but will retain a seat on Tesla’s board
2. Two new independent directors must be put on the Tesla Board
3. Musk & Tesla must pay $20 million each in fines
4. Musk must have a an oversight personnel on all his communications and social media accounts

On the personal note, I believe that the SEC went harsh on Musk and the whole ordeal is little obscured. While yes, I do believe Musk made a mistake and posted false information; he was quick to make sure it was known that his tweet was a joke for his wife referencing a 420 joke. This case is another perfect example of the American legal system taking advantage of American businesses and their profits over small legal incidents. I believe that the overpriced fine should’ve only been given to Musk and not the company, because Musk was the only person responsible for the tweet and not the company. As if the fine wasn’t bad enough, the SEC striped Musk of his position and responsibility in his own company that he helped cofound. While the oversight personnel on Musk’s accounts sounds like a good idea, it does also sound a little invasive and going against Musk’s freedom of speech. All in all, I don’t agree with the final verdict in this case because it was too aggressive over a small mistake that Elon Musk made, and shows how the justice system is a costly system that is failing America.

Dan is an IT management major in the Stillman School of Business, Seton Hall University, Class of 2021.

Works Cited:

CBS/AP. “5 Things to Know about the SEC’s Complaint against Elon Musk.” CBS News, CBS Interactive, 28 Sept. 2018, www.cbsnews.com/news/5-things-to-know-about-the-secs-complaint-against-elon-musk/.

Henning, Peter J. “What Are the Consequences of Elon Musk’s S.E.C. Criticism?” The New York Times, The New York Times, 12 Oct. 2018, www.nytimes.com/2018/10/12/business/dealbook/musk-tesla-twitter.html




California Becomes 1st State to Pass Important Business Law for Women

Posted by Frank J. Frasco.

For decades upon decades, the debate of women in the workforce had been a strong debate, a once disregarded topic that was controlled and ignored by the patriarchal society that was once America before the 19th amendment. However, with more and more women having full-time, career jobs, there has been a continued struggle for women to be allowed in higher, more official standings within a company no matter the qualifications, which may be equal to or even higher than that of their male competitor.

Well, the state of California has seen enough. Recently, on September 30th, Governor Jerry Brown signed a law that puts the Golden State as the first state to require publicly traded companies to have at least one woman on their board of directors, states NPR reporter Laurel Wamsley. The companies whose official executive headquarters are located in California will need to conform to this demand by the end of next year or face fines of $100,000. Which companies will these effect? The question really should be, which companies won’t these effect? According to last year’s Fortune 500 list, 53 out of the 500 very successful corporations are within the west coast state, which includes powerhouses such as Apple, Alphabet (Google), Disney, HP, Gap, Visa, EBay, just to name a few. According to Wamsley, within the law companies will have a minimum of two female directors if it has five directors on its board, or three women if it has seven directors by the close of 2021. Will these numbers increase if a company has more than seven on an executive profile? Take technology juggernaut Apple for example. Their leadership of eleven members only has two women on the board. So, should Apple be forced to add at least two additional female members to create more equality within an industry that typically comes across as masculine? It will be interesting to see.

State senators Hannah Beth-Jackson and Toni Atkins had enough with unfair, unethical business treatment and were the key sponsors of the bill. And they have facts to justify their frustrations, as television station KQED reports that a quarter of the 445 publicly traded companies in the politically progressive state don’t have a single woman on their boards. The dichotomy is near shocking. Of course, there was backlash, as California’s Chamber of Commerce as well as over twenty-five business groups opposed the bill in their letter to the senate pleading it was “unconstitutional”. However, it was the frightening, plain, old facts again that helped Senators Beth-Jackson and Atkins win their argument. One of them, the fact that only five percent of the companies that are traded on the Standard & Poor’s 500 have female CEOs, brought hesitation to the adversaries.

It is safe to say that this has been a hot topic in recent news outlets, ranging from political shows to obvious business channels such as CNBC. However, what this law, signed by Governor Brown less than a month ago, provides is hope. Hope for women in conservative states such as Mississippi and North Dakota to understand that progress in the workforce is truly happening, and that the 19th amendment will not be the last major amendment to benefit women’s lives.

Frank is a visual and sound media major with a minor in film, business administration minor, at the Stillman School of Business, Seton Hall University, Class of 2019.

Article:

https://www.npr.org/2018/10/01/653318005/california-becomes-1st-state-to-require-women-on-corporate-boards




Facebook Lawsuit Saying Violent Images Caused Her PTSD

Posted by Jasmine Lightburn.

In this law suit, a content moderator is suing Facebook for causing her post traumatic stress disorder (PTSD). Content moderators are responsible for sifting through often criminal and disturbing posts that users all over the world upload and removing them from the web before the general public sees. She claims that the violent images and other brutal content she viewed caused immense trauma and led to this disorder. The former moderator, Selena Scola, viewed the harshest material ok the web. This included rape, suicides, and other killings every day and claims that she was not protected fairly. According to Scola, the correct psychological services were not in place.

In order to protect other content moderators, Scola urges Facebook to implement effective psychological support services to ensure that employees are receiving the necessary help. She also wants to incorporate mandatory medical testing on a regular basis to further guarantee on site medical attention. She believes that this will reduce the amount of workers who suffer from extreme disorders like herself and other issues that do not get reported or addressed.

In my opinion, Facebook should offer Scola a package deal to cover any medical costs associated with her diagnosis of PTSD. I do not think the company should have to pay any other money other than those costs related to her individual psychological appointments. Moving forward, I agree that Facebook should take deeper measures to monitor the content moderators. In the job description, the company should also include possible health effects that may result from the work that needs to be done. I don’t believe all of the blame can solely be put on Facebook, but they should be responsible for some of what happened.

Jasmine is a business management major with a non-profit minor at the Stillman School of Business, Seton Hall University, Class of 2020.

Article:




Elon Musk and His Public Statements

Posted by Surya Makkar.

Over the past few years, Tesla has emerged as a frontrunner when it comes to electric vehicle technology. Their technology packed, self-driving, vehicles have come with their fair share of problems however. Not only has Tesla faced legal obstacles when it comes to their various technologies they use in their products, but more recently, Tesla CEO Elon Musk was sued by the Securities and Exchange Commission (SEC). Elon Musk was accused of committing fraud by publically making false statements, which could have impacted investors. To give some background, around a month ago, Elon Musk tweeted saying that he had “funding secured” to take Tesla private at $420. Something interesting to note is that the SEC did not sue Tesla as a whole, but rather only filed a suit against Elon Musk.

Elon Musk had never said anything before this to investors or shareholders about taking the company private, which is why everyone was caught off guard and was extremely shocked. After the suit was filed, Tesla shares fell more than 12 percent in after-hours trading. The SEC subpoenaed Tesla, financial institutions, and Tesla board members, to interview them and gather more information. The SEC found that Musk had been in a feud with investors who continued to say Tesla shares would fall.
A few days later, Musk and the SEC reached an agreement that required Elon to step down as Chairman of the board of Tesla and required him to pay a $20 million fine. According to the agreement, Musk does not have to admit any guilt and has 45 days to step down from the role of chairman. He will continue to serve as the CEO of Tesla however. This case goes to show how business professionals are being watched at every moment. One wrong move in the business world can lead to millions of dollars of legal action being taken against you, which is why it is imperative that people in the business world act as if they are being watched at all times.

Surya is a business law student at the Stillman School of Business, Seton Hall University, Class of 2021.

Sources:
https://www.nytimes.com/2018/09/27/business/elon-musk-sec-lawsuit-tesla.html

https://electrek.co/2018/09/29/elon-musk-settles-sec-lawsuit-resign-tesla-board-million-fine/




The Benefits of Running a Law Firm like a Business

Posted by Marisol Ramirez Ugarte.

In the recent years there has been an upheaval in the legal profession. Legal services, more than ever, are being required by the population. In the rise of employment for attorneys comes the need to manage legal firms in a manner which exploits the large increase in demand.

In fact, speculation on whether legal firms should adopt the structure of corporations has become prominent. According to Frank Carone, executive partner at Abrams Fensterman, “Law firms that are able to consistently bring in high-quality business and ensure that a sizable portion of the revenues go to the bottom line are the ones that will seriously excel” (Prince). He concedes that while the best interests should remain on the clients, the firm should pay attention to growth through the introduction of new legal matters, as well as a focus on profitability. A firm would do well to systematically reach out to potential clients, and referral sources through business development activities. Firms would be able to benefit their client as much as possible, which would in turn provide the greatest profitability for the firm.

Provided that a firm’s management decides to manage the firm like a business, they must consider a key element. The ability to develop and use metrics. The firm’s management would need to clearly identify which areas of law were most profitable, as well as which lawyers participated in the largest monetary gains. Inversely, those areas and attorneys seen as underperforming would need to be identified. In concert with the law firm’s strategic vision, metrics could aid the firm to reach the highest profits through the pursuit of a business model.

Given the success of those firms who have already chosen this path, many others should soon follow suit. I suspect that upon realizing they can continue to serve their clientele to their greatest potential leaders in management will rise to the task with vigor. I find most curious that most firms do not view themselves are businesses; in providing services, albeit legal ones, they are participating in a commercial transaction. Thus, I believe it only natural for the firms to manage as businesses for the benefit of its customers, and the sake of the legal firm.

Marisol majors in finance and philosophy at the Stillman School of Business, Seton Hall University, Class of 2020.

Sources:

https://www.forbes.com/sites/russalanprince/2018/01/29/how-to-dramatically-increase-law-firm-profitability-by-running-the-firm-as-a-business/#5fc6a2d2bd61




The Ethical Questions of Musk’s Statements

Posted by Aishwarya Rai.

Tesla, the Palo Alto-based automative and energy company, has been subject to much staggering lately, due to the conduct of its ex-Chairman and CEO, Elon Musk. Musk and Tesla have been subject to inquiries by the Department of Justice (DOJ) and Securities and Exchange Committee (SEC), as a result of Musk’s conduct; Musk tweeted about taking the company private, stating that funding had already been secured and shares would be priced at $420. Additionally, Musk made reference to those betting on shorting Tesla stocks by mentioning them and the “burn of the century.” Further details showed that Musk had no such funding secured, all whilst Tesla stocks zoomed upwards and short-sellers did in fact face losses.

This led to the DOJ and SEC to inquire into Tesla’s conduct as the tweets seemed to show that Musk misled the market to believe that Tesla would undergo privatization and thus gain some greater market value. When it was revealed that Tesla did not have the required amount of capital to go private, the SEC deemed that Musk’s actions were done to increase stock value and to financially harm short-sellers, making it an act of bad faith.

Furthermore, Musk’s actions showed a lack of ethical consideration as he seemed hostile towards short-sellers. Musk has a responsibility to shareholders as a CEO and the accuracy and truthfulness in the information he disseminates falls under this stipulation. Other acts that put his ethics in question were smoking on a podcast with Joe Rogan, which may go against Tesla’s codes of conduct as it can be said that he was acting as the CEO of the company while on camera.

These incidents put into perspective the need for important business officials to be mindful of the ripple effects of their actions on their fellow employees, clients, and shareholders. The effects of bad conduct, whether intentional or not, can be harmful and put companies at risk of failure. Accurate information is what creates a safe market, legally and financially.

Aishwarya is an economics and finance major at the Stillman School of Business, Seton Hall University,
Class of 2020.

Article:

https://www.cnbc.com/2018/09/27/tesla-falls-4percent-on-report-elon-musk-sued-by-sec.html




Mattress Firms Chapter 11 Bankruptcy

Posted by Deana Curis. 

Mattress Firm has been known as the largest mattress chain in America for several generations. However, it seems that this time is coming to an end. Traditional means of purchasing mattresses are slowly diminishing as online shopping has become more and more popular. Consequently, Mattress Firm has run into the need to file for Chapter 11 bankruptcy. Mattress Firm claims that they will still have timely deliveries and continue to pay suppliers in full, as Chapter 11 bankruptcy allows for companies to keep businesses active while they pay back creditors. The filing of Chapter 11 bankruptcy will ultimately allow Mattress Firm to try and fix the downfalls in their company that had previously prevented them from success.

Again, the availability of online shopping has caused several companies to file for bankruptcy. Brookstone, Nine West, and now even Sears have needed to file for bankruptcy due to “online culture”. In terms of the mattress industry, online platforms, such as Amazon, have put Mattress Firm and other mattress companies at major risk. However, Mattress Firm faces many more issues that prevent them from prosperity. The existence of multiple locations in close proximity to one another is a large matter in question for the company. Luckily, Chapter 11 bankruptcy is frequently used to “reorganize” a corporation, and this is exactly what Mattress Firm plans to accomplish by filing it as well. For example, the company plans to reorganize by closing down seven hundred locations that are in close proximity to others by the end of this year alone. The company also claims that they will use the money that is saved by closing locations in order to overall improve the brand as a whole.

Universally, it is evident that more and more physical stores will be obligated to shut down due to online trends in today’s society. The mattress industry began to plummet with the closing of Sleepy’s, and is now continuing with the filing of bankruptcy from Mattress Firm. Yet, it is not solely the mattress industry that is being damaged by online shopping, but retail and other corporations as well. It is interesting to think about what this may propose for the future of shopping as a whole, and the amount of companies that may also need to file for bankruptcy as a result.

Deana is marketing major, pre-dental track at the Stillman School of Business, Seton Hall University, Class of 2021.

Works Cited
“’A Wake-up Call for Traditional Mattress Chains’: Mattress Firm Files for Bankruptcy.” The Washington Post, WP Company, 5 Oct. 2018, www.washingtonpost.com/business/2018/10/05/wake-up-call-traditional-mattress-chains-mattress-firm-files-bankruptcy/?noredirect=on&utm_term=.c16972a2522b.




Schlesinger v. Ticketmaster

Posted by Leigh Ann Rofrano.

In 2003, a class action lawsuit was filed against Ticketmaster, entitled Schlesinger v. Ticketmaster. The lawsuit claimed that Ticketmaster “failed to fully disclose to consumers all aspects of its UPS and order processing fees” (Ticketmaster). Ticketmaster settled the case in 2013, but the courts did not grant the final approval of the settlement until early 2015. The settlement includes all customers who purchased tickets on Ticketmaster’s website between October 21st, 1999 and February 27th, 2013.

As a part of the settlement, all class members were eligible to receive discount codes or ticket vouchers. Each class member was given a discount code worth $2.25 for every purchase they made during the class period. Class members who used UPS delivery during the class period were provided with a $5 UPS discount code for each purchase that included UPS delivery. Additionally, each class member was given one ticket voucher (which was redeemable for two tickets for an event at a Live Nation venue) for every purchase made during the class period on Ticketmaster’s website.

I choose to research and discuss this case because it is extremely relevant in my life. I am a frequent Ticketmaster and Live Nation customer, as I attend many events every year. The lawsuit was filed against Ticketmaster due to its ridiculously high order processing fees that are tacked onto every ticket. As a Ticketmaster customer, I agree and can attest to the fact that when browsing tickets for events, the magnitude of the order processing fees in not clearly outlined; it is not until you are in the checkout process that you are fully aware of the fees. I was notified through email this past summer about this lawsuit and the discount codes and vouchers in which I was entitled. Many customers were quick to complain that Ticketmaster acted unjustly in notifying customers about the settlement and the class members’ potential benefits. I agree with this argument on the basis that I too was notified of my voucher and discount codes after all of the eligible tickets had been already claimed. I feel Ticketmaster should have notified customers of their vouchers and discount codes sooner, in an attempt to give all class members a fair chance at receiving free event tickets from their vouchers. Overall, I do appreciate the small compensation that was provided to me from the lawsuit, since it is extremely rare to receive discounts on Ticketmaster.com, but would have liked to have been notified earlier and provided with more details about the settlement sooner.

Leigh Ann is a marketing and management major at the Stillman School of Business, Seton Hall University, Class of 2021.

Article Links:

https://insider.ticketmaster.com/frequently-asked-questions-schlesinger-v-ticketmaster/?_ga=2.76895829.1994249424.1539478038-1512211698.1510348971

http://www.ticketfeelitigation.com/

https://www.nytimes.com/2016/06/22/business/media/ticketmaster-lawsuit-vouchers.html