Category Archives: Student Posts

The Patent Fight Between Qualcomm and Apple

Posted by Chengjie Chu. 

The business dispute between Qualcomm and Apple has a long history, focusing on patents. In fact, Apple and Qualcomm were once close business partners. However, the quarrel between Apple and Qualcomm stems from the fact that Apple provided relevant correct information to the South Korean government when it was investigating Qualcomm, which made the situation of Qualcomm become very awkward at that time. Because of this, Qualcomm withheld $1 billion in royalties it had promised to pay Apple. The matter was also investigated by the federal trade commission of the United States. After verification, Qualcomm has paid billions of dollars of kickbacks to Apple in exchange for the exclusive chip purchase agreement signed by Apple in 2011 and 2013 to exclude competitors. In fact, this kind of transaction is a kind of a monopoly, which is very unfair to other downstream enterprises. Moreover, this kind of transaction is illegal in Europe, America, Japan, China or Taiwan.

On December 10, 2018, China’s Fuzhou intermediate people’s court granted Qualcomm to Apple’s four subsidiaries in China in the two preliminary injunctions to limit Apple to a total of seven related products in China and to stop selling immediately, because Apple’s seven products infringe the patents of Qualcomm, as well as in China imports and sales. And the commercial war continues. We don’t know what result will be.

Both for enterprises and individuals, the protection of patents is very important, and the legal punishment for patent infringement is also very serious. The reason for the long and wide commercial war between the two transnational corporations on the patent issue may lie in the combination of the two corporations in the field of modern communication, which makes it difficult to solve some problems with a fixed legal formula, and the patent dispute will become very difficult. And other legal issues arising from patents, such as monopoly and corruption, will become a major uncertainty in the debate.

Chengjie is a student at the Stillman School of Business, Seton Hall University.

Resource:

https://www.digitaltrends.com/business/apple-vs-qualcomm-news/

Analysis of Jordan Sports Tort Case

Posted by Rui Hu.

2·23 Jordan trademark case means that on February 23, 2012, Michael Jordan appeared in a video claiming a lawsuit in a Chinese court, alleging that Jordan Sports Co., Ltd. (referred to as Jordan Sports) infringed on his name. The result of this case ended in failure. Some facts of the case are set forth here.

In 1983, Nike signed a contract with Michael Jordan, a rookie, and shortly thereafter, launched a basketball shoe brand named “AIR JORDAN.” Nike’s bold move has created a brand myth. Jordan Sports is a Chinese company that has evolved from a factory that specializes in the production of daily necessities. Moreover, the “Jordan” trademark mainly used by Jordan Sports was registered before 2003.

Several important reasons why Nike lost the lawsuit: 1) Although Nike registered the “Michael Jordan” trademark in China in 1991, its Chinese trademark registration began in 2008, and since the relevant procedures do not comply with some Chinese systems, the Chinese trademark has not been registered yet. For this reason, the Nike could not have the Chinese trademark for now; 2): Michael Jordan is only a big name in the basketball field, and Jordan Sports involves a number of different sports areas, including running, basketball, leisure sports, etc., and the name “Jordan” is just an ordinary name in the United States. Legally speaking, “Jordan” is not the same as Michael Jordan; 3): The logo of Jordan Sports is not similar to the logo of “Flying Jordan” previously registered by Nike, because Jordan Sports just used a rear view of the “flying man” Jordan and it is difficult to recognize Michael Jordan from this icon.

Article: https://baike.baidu.com/item/2%C2%B723%E4%B9%94%E4%B8%B9%E5%95%86%E6%A0%87%E6%A1%88/17206394?fr=aladdin

Several States Trying to Sue President over National Emergency

Posted by John Nativo.

On February 15, 2019 President Donald J. Trump declared a national emergency on the United States southern border due to illegal immigration as many illegals continue to cross the border. Trump is declaring sufficient funds in order to build a border wall to prevent illegal immigrants from crossing over the border. Trump’s reasoning for building the border wall is the enormous amount of money the nation will save billions of dollars by not having to pay for illegal immigrants. However, Many Democratic leaders disapproved of Trump’s action and are trying to confront the situation in ways that they feel are necessary to overturn this national emergency.

As of February 19th, sixteen separate states have filed a lawsuit in federal court against the President’s declaration of calling a national emergency. These states believe Trump’s executive power is unconstitutional as he is “invoking” his emergency power to redirect money from being used in other federally funded programs in order to have money to pay for the wall. The controversy presented in the situation is if the states have correct standing to sue the President in this matter. According to the Constitution, federal judicial power is limited as it permits it to only consider cases and controversies. The requirement of the case to be “standing” is to see if the plaintiff, which are the states, to see if they have any personal stake in the outcome of the litigation. To prove this standing requirement, a plaintiff must demonstrate it has clearly suffered a concrete injury.

States usually do not have standing to sue the federal government, this is why this specific case is unique. States do not really have the power to enforce their citizen rights against the federal government. However, a state has the right to assert interest in physical and economic well-being of its populace but are technically not allowed to have a standing to sue the federal government on behalf of their citizens. Trump and his administration are most likely going to bring a motion to dismiss the case, but the court must seek to see if this is a preliminary matter to see if these injuries meet the constitutional requirement of standing. Overall, the outcome of this matter will be a very interesting one and one of the sides will not be happy with the result.

BusinessLawBlog.docx

John is a business administration major at the Stillman School of Business, Seton Hall University, Class of 2022.

The $15 Minimum Wage Doesn’t Just Improve Lives, It Saves Them

Posted by Wenxuan Yu.

The minimum wage for workers must be guaranteed, which is the basis for social stability. Yet many social workers have unimaginably low basic salaries. Julio Payes from Guatemala has two jobs. He works 80 hours a week. He had to work sixteen hours a day, seven days a week, to pay for basic living expenses, and he once said he felt like a zombie.

The federal minimum wage was first established by the fair labor act of 1938 (FLSA). The bill’s immediate goal is to reduce poverty. Minimum wage legislation is designed to maximize the total income of minimum wage workers and lift their families out of poverty. The FLSA is administered by the U.S. department of labor’s wage and hour division. Today, the act’s labor standards affect the rights of more than 130 million workers, both full-time and part-time, in the private and public sectors.

After that, the Emeryville city council began to reconsider the city’s minimum wage. Emeryville followed Oakland’s decision to raise the minimum wage to $12.25. The city’s minimum wage was eventually raised to about $16 an hour by 2019, thanks to labor marches and advocacy efforts. That’s equivalent to the highest minimum wage in the United States, and even higher than the minimum wage in major cities like San Francisco and Seattle.

And in 2016, the minimum wage for workplaces with fewer than 55 employees jumped to $13 an hour, up from $14 in 2017 and $15 in 2018.On July 1, wages for all businesses will hit $16 an hour.

This is good news for all workers. At the same time, the increase in the minimum wage also led to many other benign effects. Patients are less stressed, and in high-wage states they are better able to pay for their care. Higher wages have also made society safer, and rates of child abuse and teenage drinking have fallen. Therefore, the implementation of the correct minimum wage is conducive to the development of society.

Wenxuan is a student at the Stillman School of Business, Seton Hall University.

Article:
https://www.nytimes.com/interactive/2019/02/21/magazine/minimum-wage-saving-lives.html

Business Law and Players’ Rights

Posted by Jidong Zhang.

The recent Nike incident caused a heated discussion among sneaker owners. Nike’s shoes are usually representative of comfort, durability, and high-tech integration. Most people have Nike brand sports shoes. Nike’s latest shoes, “Back to Future,” has been sold on the stockx for thousands of dollars because of the automatic lace-up feature. This time the defective shoes broke the stereotype of Nike, also let people think about the balance between the player’s right to health and business transactions.

As we all know, sports brand companies will provide sponsorship funds for famous universities. This will not only promote the development of the university’s sports career, but also bring benefits to the company. Players don’t need to buy shoes at full price, as long as they wear them for a few games. In this part of the agreement, the player seems to be wearing a sneaker for a game and then will get the shoes for free. In fact, when the players wear the sneakers, the game will be broadcast live or recorded, so that the sports brand company will be advertised. To a certain extent, an employment relationship exists between the player and the sports brand company. As the employee, the player should be guaranteed to be safe and healthy during the game, and the sports brand company should take on such responsibility, but these responsibilities are usually are ignored.

As for Williamson, in this incident, if he suffers from injuries due to defective shoes this will ultimately affect his career. Would Nike be responsible for him? For a player, good health is crucial. The university or the league organizations should fully consider the interests of the players when signing the equipment agreement with the sponsor. The law related to this case needs to be improved.

Jidong is a student at the Stillman School of Business, Seton Hall University.

Work Cited:

http:// https://www.nytimes.com/2019/02/21/sports/zion-nike-shoe-ncaa.html?action=click&module=Top%20Stories&pgtype=Homepage

New Jersey Sues Pharmaceutical Company Over Opioids

Posted by Simran Patel.

Throughout the country, the opioid epidemic has seen a 10 percent rise and taken the lives of more than 72,000 people due to overdoses. New Jersey has filed a lawsuit against a subsidiary of Johnson & Johnson that manufactures opioids and wants them to be liable for their products. The pharmaceutical company has been accused of misleading patients about the addictive dangers of the drugs. New Jersey Attorney General, Gurbir Grewal, is trying to contain this spiraling opioid crisis by bringing legal action against the subsidiary, Janssen Pharmaceuticals. Mr. Grewal states that this company minimized the risks of opioid addiction in their marketing messages and targeted patients and older people who had little to no knowledge of opioids. New Jersey is known for its pharmaceutical industry and has a long history of producing vital, lifesaving drugs. Therefore, Mr. Grewal has said that they cannot turn a blind eye to the violation of laws and lives that are being threatened by companies like Janssen Pharmaceutical.

Eleven states, including New Jersey, have filed separate lawsuits against the manufacturer, Purdue Pharma, of the popular opioid painkiller OxyContin. More than 40 state attorney generals have joined New York state in an investigation of manufacturers and distributors of opioids. The federal government has not been effective in regulating the practices of pharmaceutical companies, so the opioid crisis has become a state issue. Although, this pharmaceutical company plays a major role in New Jersey’s economy, Mr. Grewal represents a new front in the battle against opioids. Mr. Grewal states that he is not shying away from holding Janssen accountable even though they are one of the state’s largest employers. Even though Janssen sold their rights to the drugs in 2015, the state attorney general’s office is focusing on the eight-year period that the company marketed the drug. The lawsuit has also brought to light disturbing trends in the prescription. According to one patient on a state health care plan, they received 125 prescriptions for opioids over the course of a year. This lawsuit is fighting against the misinformation and marketing put out by these pharmaceutical companies saying that these drugs do not cause addiction or dependence and do not lead to abuse. New Jersey is fighting to stop the reality in which tons of people die using the drugs as directed.

I agree with Mr. Grewal and his lawsuit against the subsidiary of Johnson & Johnson, Janssen Pharmaceuticals. The opioid crisis has increased at an alarming speed and the death toll from this epidemic rises every year. Without legal action being taken against the pharmaceutical companies that violate the law and misinform the public, the epidemic will continue to rise until the effects are detrimental. The federal government has not been making any major moves to regulate the practices of pharmaceutical companies and hold them accountable for their actions. State legislatures have taken this issue into their own hands and decided to create stricter regulations and issue lawsuits against the companies who are at fault for this rising crisis. I believe this epidemic can be decreased significantly if the pharmaceutical companies are forced to take responsibility for their misleading marketing campaigns and the misinformation they provided to the public. Especially in their own backyard, New Jersey companies should support and protect their community and ethically build up their economy.

Simran is a marketing major at the Stillman School of Business, Seton Hall University, Class of 2020.

Link to Article: https://www.nytimes.com/2018/11/13/nyregion/nj-opioid-lawsuit.html?rref=collection%2Ftimestopic%2FLiability%20For%20Products&action=click&contentCollection=timestopics&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=collection

Operating an Unregistered Digital Tokens Exchange is Unlawful

Posted by Natalia Serrano.


In a recent blog post done by attorney Arina Shulga at Mitchell Silberberg & Knupp LLP., there has been conversation about what is happening to a certain Digital Tokens Exchange company since they have not been officially registered. The U.S. Securities and Exchange Commission is an independent agency of the United States Government. Its purpose is to protect investors from dangerous or illegal financial practices. Recently, the SEC, “published an order announcing a settlement of charges it brought against Zachary Coburn, the founder of EtherDelta, a digital token trading platform.” This is what was stated in Shulga’s blog post on November 8th, 2018. This is all because the platform has failed to register their tokens and has not been abiding by the federal laws. 

“EtherDelta is a decentralized trading platform that lets you trade Ether and Ethereum-based tokens directly with other users. You are responsible for your own account, funds, and private keys. EtherDelta makes no guarantee about the tokens that you trade using EtherDelta.” A decentralized exchange is a cryptocurrency which operates without a central authority. This simply means that it works independently without requiring any validation from an external third party. This is a peer-to-peer network technology. Because of all these technical terms, Coburn did not formally register his platform and is now getting fined for not doing so. The SEC is trying to send out a clear message to all its cryptocurrency participants. Just because you claim your platform to be decentralized, does not mean that you are not to obey the laws. 

Coburns platform has been advised once before that it needed to start obeying the federal laws but continued to do things his way. In the article, Shulga explains that many of her clients claimed that their contemplated crypto exchanges did not need to register due to their decentralized nature. In section 5 of the SEC it explains what an exchange entail. It states that an exchange is “any organization, association, or group of persons, whether incorporated or unincorporated, which provides a market place or facilities for bringing together purchasers and sellers of securities.” If the company that one owns can be measured through this description it must abide by the SEC laws. “The SEC found that “EtherDelta operated as a market place for bringing together the orders of multiple buyers and sellers in tokens that included securities” without registration or exemption, regardless of its decentralized nature.” 

http://www.businesslawpost.com/

Natalia is a finance and information technology major at the Stillman School of Business, Seton Hall University, Class of 2020.

Should McKinsey & Company Shift the Bills to Four Projects?

Posted by Huangan Pan.

Earlier this year, McKinsey & Company, a famous consulting firm, was accused because of its misdeeds in a previous bankruptcy case, which has increased the probability of which the judge could order McKinsey & Company to return tens of millions of dollars in fees. This accusation was raised by the bankruptcy case of SunEdison. In 2016, SunEdison filed for bankruptcy protection in United States Bankruptcy Court in Manhattan and employed McKinsey & Company as a bankruptcy consultant. However, FTI Consulting, an outside company that hired by the board of SunEdison, claimed that the managers of SunEdison were misstating cash flows, and described an email about how McKinsey was going to be paid between a McKinsey consultant and a SunEdison executive. Finally, an agreement will arrange these unpaid bills to four solar-energy projects that SunEdison set up for other customers instead of billing them from SunEdison itself. Jay Alix, a creditor of SunEdison, declared that “McKinsey had used the four projects whose financing was separate from that of SunEdison and would not be affected by the bankruptcy to remove any risk of the court finding out that McKinsey pulled money out of the company just before it went bankrupt” (Walsh 5).

In this case, McKinsey had not disclosed sufficient information about its relationship between SunEdison while acting as a creditor. At the same time, as a consulting company that was hired by SunEdison, they can easily reach an internal agreement with SunEdison in order to transfer the risk of bankruptcy because they can more easily access SunEdison’s internal business information and decision-making information than any other creditor. In response to this accusation, a spokeswoman for McKinsey said that “The firm had always conducted itself in compliance with the law. Mr. Alix was motivated by a desire to undercut its ability to compete with AlixPartners” (Walsh 9).

In my opinion, what McKinsey’s spokeswoman said seems reasonable. However, The Wall Street Journal’s survey found that McKinsey disclosed far fewer potential conflicts of benefit than other bankruptcy professionals. Hence, McKinsey still needs to give a sufficient disclosure in any case to compliance the bankruptcy law. In this case, McKinsey tries to shift its risk to another four solar-energy projects which were set by SunEdison. This kind of action obviously have violated the bankruptcy codes and undermined the rights of other creditors. “To make sure no one tries to remove assets before the court takes control, the bankruptcy code calls for a review of transactions within 90 days — and sometimes longer — of when the company files for bankruptcy” (Walsh 11). This means the court can order McKinsey to return consulting fees that SunEdison have paid and then, SunEdison needs to repay all creditors according to the priority of their claims. `

Huangan is an accounting major at the Stillman School of Business, Seton Hall University, Class of 2020.

Works Cited:

Corrigan, Tom. “Justice Department Chides McKinsey in Another Bankruptcy Case.” The Wall Street Journal, Dow Jones & Company, 15 Dec. 2018, www.wsj.com/articles/justice-department-chides-mckinsey-in-another-bankruptcy-case-11544901946.

Walsh, Mary Williams. “McKinsey & Company Is Again Accused of Misdeeds in Bankruptcy Case.” The New York Times, The New York Times, 23 Jan. 2019, www.nytimes.com/2019/01/22/business/mckinsey-bankruptcy-sunedison.htmlhttp://www.nytimes.com/2019/01/22/business/mckinsey-bankruptcy-sunedison.html.

Note
Article’s link: https://www.nytimes.com/2019/01/22/business/mckinsey-bankruptcy-sunedison.html

Alston v. NCAA

Posted by Christopher Saker.

Who would of thought after all these years college players are being closer to being paid than ever. Lawsuit has conferences quietly preparing for the likelihood of compensating players. Four years after she presided over the trial for Ed O’Bannon v. NCAA, U.S. District Judge Claudia Wilken is about to preside over a second college sports trial that could be a game-changer. On Tuesday, a trial for a lawsuit led by former West Virginia running back Shawne Alston and former Cal center Justine Hartman will begin in an Oakland federal courthouse. Alston and Hartman are co-lead plaintiffs in In Re: NCAA Grant-in-Aid Cap Antitrust Litigation v. NCAA, a class action brought on behalf of former men’s and women’s college players against the NCAA and the 11 major athletic conferences.

Once again, the NCAA will need to defend the unusual economics of big-time college sports from legal rebuke—and once again the 69-year-old judge will decide how to shape the relationship between universities and the student-athletes who bring them notoriety and revenue. A judge in the ongoing Alston vs. NCAA trial will conduct a final hearing on Dec. 18 pertaining to closing arguments. She will then decide — likely early in 2019 — whether scholarship limits imposed by the association violate anti-trust laws. Fearing what would amount to an open marketplace, a handful of conferences have notified officials within their leagues not to discuss the case outside their conferences for fear of collusion accusations. If conferences shared information on how to compensate athletes, that in itself could be interpreted as a way to cap scholarship benefits. That fear of collusion is based in part on rival league administrators even speaking casually about the outcome of the case. Example: “If the plaintiffs win, as expected, the SEC could theoretically compensate athletes with cars. Meanwhile, another league could offer … better cars or apartments or …”

If conferences took over, they would most likely have to establish their own enforcement staffs. At that point, the question would have to be asked: Why is there an NCAA at all? The NCAA argues that $4,000 is available to each family of a Final Four participant to travel to the games. Bowl gifts (capped at $550 per player) seemingly are a reward for playing football. The NCAA has argued that “pay for GPA” – grade point average incentives conferences could adopt — would establish “perverse incentives” forcing athletes to take easier classes. It should be noted that coaches regularly get contract bonuses for reaching a benchmark team GPAs. Also, in many instances, players already are encouraged to take classes that don’t interfere with their sport. This will be a very long process as both sides continue to battle this issue and will be something to keep an eye on.

Christopher is a finance major at the Stillman School of Business, Seton Hall University, Class of 2022.

Dodd, Dennis. “Lawsuit Has Conferences Quietly Preparing for the Likelihood of Compensating Players.” CBSSports.com, CBS Sports, 12 Dec. 2018, http:// www.cbssports.com/college-football/news/lawsuit-has-conferences-quietly-preparing-for-the-likelihood-of-compensating-players/.

Ninth Circuit Allows Recovery Of Investor Referral Fees Paid In $120 Million Ponzi Scheme

Posted by Christopher Saker.

NASI raised more than $120 million from roughly 2,000 investors with the promise of guaranteed returns of 20% for each automated teller machine (ATM) an investor purportedly purchased and leased back to the company. 

Each investor signed a contract memorializing their investment which included the serial number and location of each ATM but also prohibited the investor from “interfering” with the ATM’s operation by contacting any location where the ATM was installed or any ATM service provider. 
A bank account analysis showed that NASI raised more than $120 million from January 2013 to August 2014 alone.  After NASI began bouncing checks to investors in August 2014, the Securities and Exchange Commission brought an emergency enforcement action and obtained the appointment of William Hoffman as Receiver.  Gillis and Wishner were later arrested and sent  to prison terms of ten and nine years.

In addition to the promised returns, NASI also paid a referral fee of $500 to $1,000 to each investor or non-investor who referred investors to the scheme.  The district court granted the receiver’s request to pursue claims against various third parties including those who received referral fees.  The receiver filed suit against Howard Markowitz and alleged that Markowitz received nearly $750,000 in referral fees from NASI.  The district court  gave a  partial summary judgment in the receiver’s favor in August 2017 and allowed the recovery of all referral fees paid to Markowitz, and that decision was later appealed.  

When the appeal happened, the Ninth Circuit noted that the California Uniform Voidable Transactions Act (CUVTA) made payments from a Ponzi scheme to a third party voidable when made with either actual or constructive intent unless the transferee could show that they received the transfer in good faith and that they provided reasonably equivalent value for the transfer.  Here, the receiver alleged that the referral fees were voidable under CUVTA because Moskowitz’s referral services provided no value to NASI investors and instead only served to further deepen the scheme’s insolvency through the increase in underlying liabilities. Other courts around the country have split on this issue, but the receiver urged the Ninth Circuit to follow the decision reached by the U.S. Court of Appeals for the Fifth Circuit which held that referral services for a Ponzi scheme did not provide any value to the scheme.  

The Ninth Circuit declined to adopt a brightline rule holding that referrals to a Ponzi scheme are “per se voidable because they never provide value,” but did observe that Markowitz conceded that the only service he provided in return for the referral fees was the referral of new investors to the scheme. Based on these facts and the reasoning in Warfield, the Court sided with the receiver and affirmed the district court’s finding that Markowitz was required to disgorge nearly $750,000 in referral fees to the receiver.  While the decision was not published and cannot serve as binding precedent, it is yet another tool available to receivers seeking to maximize recovery for defrauded victims.

Christopher is a finance major at the Stillman School of Business, Seton Hall University, Class of 2022.

http://www.ponzitracker.com/